III. THE RIGHT RESTRICTED TO THE PUBLIC DOMAIN.

§ 30. Appropriation confined to public lands.

Whatever rules may be adopted by the statutes or the decisions of a particular state, with reference to the rights of riparian proprietors who have acquired titles to all the lands on the borders of a stream, before any appropriation of its waters had been made while these were lands public,-even though the state might by its statutes or decisions expressly extend the same doctrines to all such proprietors, still the two doctrines, heretofore described as originating from the local customs of miners and sanctioned by the legislation of the state and of congress, are confined in their operation to the public domain of the United States. All extension of these doctrines to other lands and other proprietors, and all additional rules, must necessarily proceed from the states themselves.

§ 31.

Jurisdiction of state and United States distinguished.

It should be observed, in this connection, that the United States government has no power whatever to prescribe for its

against a subsequent appropriation of water, a prior appropriator of land, through which the stream may run, would have the better right. It is enough to say that, as between two persons, both mere occupants of land or water on the state lands, the courts have determined controversies. The implied permission by the general government to private persons to enter upon its lands has been assumed to have been given by the state with reference to the lands of the state: and the state, for the main

tenance of peace and good order, has protected the citizen in the acquisition and enjoyment on its lands of certain property rights obtained through possession,perhaps the mode by which all property was originally acquired. In view of these facts, we feel justified in saying that it was the legislative intent to exclude as well the state as the United States from the protection which is extended to riparian proprietors by section 1422 of the Civil Code. "]

grantees any general rules of law concerning the use of their lands, or of the lakes and streams to which they are adjacent, binding upon its grantees of portions of the public domain situated within a state, and becoming operative after they have acquired their titles from the federal government. The power to prescribe such rules, forming a part of the law concerning real property, belongs exclusively to the jurisdiction of the states. Over its public lands situate within a state, the United States has only the rights of a proprietor, and not the legislative and governmental rights of a political sovereign. Even with respect to the navigable streams within a state, the powers of the federal government are limited, and a fortiori that is so with respect to streams which are innavigable. In the great case of Pollard's Lessee v. Hagan,' the authority of the United States over its public lands within a state was thus defined by the supreme court: "When Alabama was admitted into the Union, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the date of the cession, except so far as this right was diminished by the public lands remaining in the possession and under the control of the United States. Nothing remained in the United States, according to the terms of the agreement, but the public lands. And, if an express stipulation had been inserted in the agreement granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative, because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain within the limits of a state, except in cases in which it is expressly granted. * In the case of Martin v. Waddell, the present chief justice, in delivering the opinion of the court, said: When the revolution took place, the people of

13 How. 223.

* *

216 Pet. 410.

each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution.' To Alabama, then, belong the navigable waters, and soils under them, in controversy in this case, subject to the rights surrendered by the constitution to the United States." Recognizing the power of the United States over such navigable streams for the purpose of regulating commerce, the court adds: "The right of eminent domain over the shores and the soils under the navigable waters, belongs exclusively to the states within their respective territorial jurisdictions, and they, and they only, have the constitutional power to exercise it. Summing up its conclusions, the court said: "First, the shores of navigable waters, and the soils under them, were not granted by the constitution to the United States, but were reserved to the states respectively; secondly, the new states have the same rights, sovereignty, and jurisdiction over this subject as the original states; thirdly, the right of the United States to the public lands, and the power of congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the land in controversy in this case."

§ 32. Power of government to annex conditions to grants.

1

Over the public domain within a state, and the innavigable streams and lakes situated thereon, the United States has therefore only the rights of a proprietor. Undoubtedly, as held in the case of Union Mill & Min. Co. v. Ferris, by virtue of its proprietorship, the United States has a perfect title to the public domain, and an absolute and unqualified right of disposal; and neither a state nor a territorial legislature can modify or af12 Sawy. 176, before Sawyer and Hillyer, JJ.

fect, in any manner, the right of the federal government to the primary disposal of the public land. Also an innavigable stream or lake, lying within the public domain, is a part and parcel of the land itself, inseparably annexed to the soil, and the use of it is an incident to the soil, and as such passes to the patentee of the soil from the United States. As the federal government, in conveying any particular portion of its public domain within a state to a particular grantee, may as proprietor annex any conditions to the conveyance, so that the title will be taken and held subject thereto, so it may, by congressional legislation, adopt any general regulations imposing any conditions or limitations upon the use of the public domain by all persons, or upon all persons who acquire title to portions of the public domain from the government, and the titles so acquired will be held by the grantees thereof subject to such conditions and limitations. Thus, congress may provide, by general statute, for a right of way over the public lands unsold, for the ditches and canals of those who have made a prior appropriation of water, and that all grantees who subsequently acquire portions of this land shall take and hold their titles subject to such existing rights of way; or that all grantees of the public lands bordering. upon a stream shall take and hold their titles subject to any previously existing appropriation of its water; or that all grantees of the public lands shall take their titles subject to the local customs or laws of the state within which the lands are situated, concerning the uses of water for mining, irrigating, agriculture, and other purposes. Congress has, in fact, adopted such legislation, prescribing rules concerning the disposition of public lands, and imposing conditions or limitations upon the titles obtained by purchasers. By one section of the act of 1866, already mentioned, it is enacted: "As a condition of sale, in the

1 Rev. St. U. S. § 2338.

absence of necessary legislation by congress, the local legislature of any state or territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent." The patent here spoken of is clearly that issued by the United States to the purchasers and other grantees of the public domain, and such grantees take their titles subject to easements and other similar rights held by other persons under the customs and laws of the state. This power of the United States to impose conditions and limitations upon the use of the lands within a state, which were originally public, is confined to their primary disposal to its immediate grantees. If, therefore, the public land bordering upon a stream, and situate within a state, should all be conveyed to private persons, free from any conditions or limitations, congress would have no power to control such persons in the use of their lands or in the use of the stream upon which their lands border. The power to legislate and to prescribe rules under these circumstances belongs exclusively to the state, as a part of its supreme municipal authority over persons and property within its jurisdiction.

IV. CONFLICTING CLAIMS BETWEEN SETTLERS AND APPROPRI

ATORS.

§ 33. Converse of doctrine of appropriation.

It has already been shown that the prior appropriation of water wholly upon the public lands of the United States is good against subsequent grantees or patentees of tracts upon the same stream or lake deriving their titles from the federal government." It follows, by necessary implication from this statute, as well

1 See the observations of Sawyer, J., in Woodruff v. North Bloomfield G. M. Co., 9 Sawy. 441, s. c. 18 Fed. Rep. 801.

2 See ante, §§ 25-28; Act Cong. July 9, 1870.