as on general principle, that if a person has acquired title from the United States to a tract bordering upon a stream or lake lying within the public domain, before an appropriation has been made of its waters, any subsequent appropriation of its waters, made by another person, in pursuance of the local customs or laws recognized by the legislation of the state and of congress, must be subject to such prior title, and to the riparian rights belonging to the holder thereof.1

§ 34. When title from United States is perfected.

When does a person thus acquire a title from the United States, within the meaning of this rule, so that any subsequent appropriation of water shall be subject thereto? The legislation of congress provides for various modes of acquiring title to public lands by different classes of persons,-by ordinary actual purchasers, by pre-emptors, by homestead settlers, and the like. In all these instances the claimant is required to do certain preliminary acts,-to file a declaration or notice, to make a location, to pay the purchase price, and the like; and after all these acts have been duly performed by him, including the payment of the price, if necessary, he is entitled to receive a patent from the government, which is executed and delivered to him by the proper officer, usually after some lapse of time. In all cases these steps must be taken in respect to land which has been surveyed by the government, or else the whole proceeding is nugatory. Wherever a patent is required by the legislation, no legal title passes to and vests in the purchaser, occupant, or other grantee until the patent is executed and delivered; the patent

1 Union Mill & M. Co. v. Ferris, 2 Sawy. 176; Union Mill & M. Co. v. Dangberg, Id. 450; Van Sickle v. POM.RIP. -4

Haines, 7 Nev. 249; and see Crandall v. Woods, 8 Cal. 136; Leigh Co. v. Independent Ditch Co., Id. 323. (49)

alone is the final conveyance of the legal estate. If, however, the settler, pre-emptor, or purchaser has duly complied with all the requirements of the statute, including, if necessary, the payment of the purchase price, so that nothing is left to be done by him in order to entitle him to a patent, he certainly acquires an equitable estate in the tract of land,—an equitable estate which the courts will and do protect. When a person has thus done all that he is required to do, and all that he can do to perfect his title, and must await the convenience or leisure of the proper governmental official in obtaining the conveyance which clothes him with a complete legal estate, it would be in the highest degree unjust and inequitable if his rights, as a prior purchaser or grantee from the government, could be postponed, or endangered, or in any way prejudiced or affected, by a delay in the actual execution and delivery of the patent to him.

§ 35. When patentee's riparian rights vest.

We thus reach a conclusion which is in accordance with the plainest principles of equity, that the rights of a prior purchaser or grantee of public land from the government, as against any subsequent appropriator of water, become vested and perfect, at least from the time when he has duly performed all the statutory requirements, including, if necessary, the payment of the purchase price, which entitle him to a patent or other final conveyance or evidence of his legal title, and not merely from the time when he actually receives his patent or other final conveyWhether his rights are not even more extensive; whether, after he has duly performed all the statutory requirements, and has perfected his title by obtaining a patent, his rights as a prior grantee, purchaser, or owner do not relate back to the date of the first or initiative act in the whole continuous proceeding,is another question which will be separately examined.

ance.

§ 36. Review of the authorities on this point.

In

The above proposition, that the prior rights of the grantee, purchaser, or private owner under the government are at least vested and complete, as against any subsequent appropriator of water, by the due performance of all the preliminary steps, including payment, which entitle him to a patent, and do not originate solely from the patent nor attach only from the date of its delivery, seems to be fully settled by the decisions. Union Mill & Min. Co. v. Dangberg,1 the court held that one who has entered a tract of the public lands, under the provisions of the statutes of congress, and has fully paid for it, and has received the certificate of purchase from the governmental official, becomes vested with the equitable title, and as such equitable owner is entitled to all the water-rights of a riparian proprietor, even though he has not yet received a patent. Also that one who has duly entered a tract of land in conformity with the requirements of the homestead act, and continues to reside thereon, becomes entitled to the water-rights held by any riparian owners. And, in general, a person who entered and paid for a tract of the public lands before the act of 1866, holds his land unaffected by that act, since his patent will relate back to the date of his entry, -the inception of his title.

2

In the very important case of Van Sickle v. Haines, the supreme court of Nevada decided the following general propositions: As the United States has an absolute and perfect title to, and unqualified property in, the public lands; and as running water is an incident to or part of the soil over which it naturally flows, a patent given to a private person-in the absence of any special limitations or exceptions or easements contained in the instrument itself, or created by statute-carries not only

12 Sawy. 450; and see Union Mill & M. Co. v. Ferris, 2 Sawy. 176. 27 Nev. 249.

the unincumbered fee of the soil, but the stream naturally flowing through it, and the same rights to its use, or to recover for a diversion of it, as the United States or any other absolute owner could have. An owner of land over which a stream naturally flows has a right to the benefits which the stream affords, independently of any particular use; that is, he has an absolute and complete right to the flow of the water in its natural channel, and the right to make such use of the water, when he chooses, as will not damage others located on the same stream and entitled to equal rights with himself. A patent to land from the United States, in the absence of any statutory or other limitations, carries with it a natural stream running through the land as an incident thereto, together with the right to have it returned to its channel if diverted. It follows, therefore, in the absence of special legislation to the contrary, that a preemptioner, while occupying and improving one quarter section of the public land, has no right to enter upon another quarter section, to which he makes no claim, and divert from it a valuable stream of water for the benefit of the land which he is claiming. In regard to the general doctrine of riparian rights among the various proprietors of private lands on the borders of a stream, the court holds that the territorial statute, adopting the common law of England, was ratified and embraced by the state constitution; that the common-law doctrine as to running water allows all riparian proprietors to use it in any manner not incompatible with the rights of others, so that no one can absolutely divert all the water of a stream, but must use it in such a manner as not to injure those below him; that the early decisions of Nevada, and those of California, holding that priority of appropriation gave a right to the use of water, were made in cases where there was no title to the soil, and have no bearing in cases where absolute title has been acquired.

In Leigh v. Independent Ditch Co.1 the complaint alleged that the plaintiffs were owners and in possession of a certain tract of mining land through which a natural stream flowed, and that defendants had diverted the waters thereof to their injury, and prayed relief. Defendants demurred to this complaint, on the ground that it did not allege any appropriation or use of the waters by the plaintiffs. The court said: "The demurrer was properly overruled. The allegation that the plaintiffs were the owners and in the possession of the mining claims [the tract of land] was sufficient. And the ownership and possession of the 'claims' draw to them the right to the use of the water flowing in the natural channel of the stream. The diver. sion of the water was therefore an injury to the plaintiffs, for which they could sue. The principle involved in this case was expressly decided by this court in the case of Crandall v. Woods.2 In that case it was said: 'One who locates upon public lands, with the view of appropriating them to his own use, becomes the absolute owner thereof, as against every one but the government, and is entitled to all the privileges and incidents which

18 Cal. 323, (1857.)

28 Cal. 136, (1857.) The point actually decided in this case is, of course, authoritatively settled by the later utterance of the same court made in the subsequent case, as quoted above in the text. A perusal of the opinion in Crandall v. Woods would leave it doubtful, to say the least, in the absence of the subsequent interpretation, whether such a point was decided. Some portions of the opinion seem to intimate-even if they do not expressly hold

that the mere prior ownership and possession of a tract of land upon a stream do not render the proprietor's rights to

the waters thereof perfect, or at least do not entitle him to any relief against a diversion of such waters by another person; that even the prior owner of the land must have made some actual appropriation of the water to his own uses, before he can maintain an action against the diversion by another person whose claim is subsequent to his own. In other words, that mere prior ownership of riparian lands does not confer full and perfect riparian rights to the water. See, also, to the same effect, Nevada Co. & Sac. Canal Co. v. Kidd, 37 Cal. 282.