timation of a policy more favorable to the use of water on the public domain than to the use of the public lands for all other beneficial purposes. In the absence of decisions, it would naturally be supposed that the same rule should be applied to all persons who acquire rights under this system of legislation, in determining any conflict which may arise between them.

§ 40. California decisions.

The decisions dealing or appearing to deal directly with this question are very few. In California the rule is settled against the claims of a pre-emptor who has received his patent from the United States, so far as it can be put at rest by one decision. In Farley v. Spring Valley M. & I. Co.,1 the plaintiff, a preemptor, settled on government land; filed his declaratory statement February 27, 1871; proved up and paid in 1877; and obtained his patent January 23, 1879. The defendants made an appropriation of water which began after 1871, but before 1877. The plaintiff's right was held to have begun only in 1877, when he had "proved up and paid," and he was therefore a subsequent purchaser to the defendant. This decision was rested upon the following grounds: The public land belonged to the United States until the plaintiff had proved up and paid in 1877. Until that time congress had full power to withdraw the land from sale, and to sell or grant it to another. Certain cases were cited as expressly sustaining these conclusions.2

§ 41. Review of the cases.

With great respect for the able court which rendered this decision, and deference to its learning and ability in all questions

158 Cal. 142.

2 Namely, Frisbie v. Whitney, 9 Wall. 187; Hutton v. Frisbie, 37 Cal. 475; Western Pac. R. R. v. Te

vis, 41 Cal. 489. The court also held that under the acts of congress, July 26, 1866, and July 9, 1870, the defendants obtained "existing

connected with governmental land titles, I think that the matters actually decided in Frisbie v. Whitney, Hutton v. Frisbie, and Western Pac. R. R. v. Tevis do not sustain the conclusion which they reached in Farley v. Spring Valley M. & I. Co.; that a careful examination of these prior cases will show that they dealt with an entirely different state of facts, and an entirely different kind of legislation; and that the opinions in these cases avowedly and carefully except and exclude from their operation such questions as that of priority of right between a pre-emptor and an appropriator of water, arising under the general statutes of congress concerning the disposition of the public lands among private proprietors or occupants. In order to understand the exact points decided by the United States supreme court in Frisbie v. Whitney, and the character of the legislation to which it relates, a brief statement of the material facts is necessary. Α certain person, whom I will designate as A., held a Mexican grant to a large tract of land in California. This grant was for years supposed to be perfectly valid, and A.'s title as perfectly good. He had from time to time sold and conveyed portions of it to divers purchasers, who had for years held possession of their farms, inclosed them, built on them, planted orchards, and otherwise improved them, under the supposition that the titles obtained from A. were valid. At length the supreme court of the United States decided that the grant to A. was null and void, and the land included in such grant was therefore the public domain of the United States, subject to all of the general statutes of congress concerning the public domain. Immediately upon the rendition of this decision, a great number of persons rushed onto

rights" to construct and use their reservoir, which were excepted and saved in the patent issued to the plaintiff; citing Jennison v. Kirk, 98 U. S. 460; Broder v. Natoma, etc., Co., 50 Cal. 621. Of

course the real question was whether the defendants had any such "existing rights" at the time when the right of the plaintiff first accrued and became vested as against the defendants.

the tract, and, disregarding the rights of the prior occupants, proceeded to locate claims as pre-emptors upon it, upon the improved and cultivated and occupied portions, to file their declaratory statements, and to take the other steps necessary, under the general statutes, in order to secure their titles as preemptors of the public lands. This proceeding was a palpable wrong to the bona fide and innocent occupants who were thus dispossessed. In this condition of facts, congress interfered, after the pre-emptors had filed their declaratory statements, but before they had paid the price so as to be entitled to patents, and by a special statute, applicable to the lands included in A.'s grant, withdrew those lands, or at least such portions of them as had been sold to bona fide purchasers, from sale or pre-emption under the general statutes, and confirmed and established the rights and titles of such prior bona fide purchasers holding under A.'s grant, as against the claims of the pre-emptors who had located tracts and filed declarations, but had not yet proved up and paid. A controversy arose concerning the ownership of a certain tract between a pre-emptor and a prior purchaser and occupant under A.'s grant, which the supreme court of the United States finally decided in the case of Frisbie v. Whitney.' As the reporter's head-note accurately describes the questions passed upon by the court, it will be sufficient to quote it, without giving more elaborate extracts from the opinion. It will be seen that all the equities were strongly in favor of the prior occupants and against the pre-emptors. The head-note is as follows: "Occupation and improvement on the public lands, with a view to pre-emption, do not confer a vested right in the land so occupied, [i. e., as the rest of the case plainly shows, a vested right against the United States.] It does confer a preference over others in the purchase of such land by the bona fide settler, which will enable

19 Wall. 187.

him to protect his possession against other individuals, and which the land-officers are bound to respect. This inchoate right may be protected by the courts against the claims of other persons who have not an equal or superior right, but it is not valid against the United States. The power of congress over the public lands, as conferred by the constitution, can only be restrained by the courts, in cases where the land has ceased to be government property by reason of a right vested in some person or corporation. Such a vested right, under the pre-emption laws, is only obtained when the purchase money has been paid, and the receipt of the proper land-officer given to the purchaser. Until this is done, it is within the legal and constitutional competency of congress to withdraw the land from entry or sale, though this may defeat the imperfect right of the settler." The case of Hutton v. Frisbie1 was an exactly similar controversy, growing out of the very same transaction, involving exactly the same questions, which the supreme court of California decided in the same manner. In Western Pac. R. R. v. Tevis the court held, for the same reasons, that congress has power, by a special statute giving the right of way over the public lands of the United States to a railroad company, to include within such statutory grant, and thus convey to the railroad, portions of the public lands which pre-emptors had previously entered, located, and claimed, under the pre-emption laws, but for which they had not yet. paid and received certificates of purchase.

It is plain that the courts do not intend, in these three cases, to touch upon the question, to what period or stage of his preliminary proceedings does the right of a pre-emptor, (or other purchaser,) after he has received his patent, relate back, in a contest as to priority with another person claiming title under the general legislation of congress? These cases simply hold that a

137 Cal. 475.

241 Cal. 489.

pre-emptor who has merely located a tract of the public land, occupied it, and filed the preliminary declaration, but has not yet paid the price, obtains no vested right therein against the United States; and that congress may, therefore, by some special statute exercise its continuing rights of ownership over such tract, withdraw it from entry, location, settlement, or sale under the operation of the general legislation, and may sell or donate or grant such tract to another person, without regard to the inchoate and imperfect right to it of the pre-emptor. The conflicting rights of two persons claiming under different provisions of the general statutes of congress concerning the acquisition of private titles or interests in the public lands,-general statutes which were dictated by and carry out the same liberal policy,-present, in my opinion, another question, which, I would most resectfully but earnestly submit, is not embraced within nor passed upon by the three decisions above described, and which were cited and relied upon in Farley v. Spring Valley M. & I. Co. Those cases deal with the interest of a pre-emptor before he obtains a patent, and before he has paid the price, not with his interest by relation after the patent is delivered. Even that inchoate interest is not a mere nullity. While it is not, in its imperfect condition, a perfect and vested right to the land as against the United States, the supreme court pronounces it to be an existing right which the courts will protect against third persons who have no superior or equal claims. When are the claims of third persons, derived from other portions of the general system of legislation concerning the acquisition of private ownership in the public lands, superior or equal to the inchoate right of the pre-emptor? It seems to me that this question is carefully distinguished by the decisions above quoted, and excepted from their operation; that those decisions are con

158 Cal. 142.