fined to a special act of congress directly withdrawing specific portions of the public lands from the operation of such general legislation as the pre-emption laws, and do not touch upon the effect of the general statutes dealing with the public lands, and prescribing the modes by which private titles or interests therein may be acquired.

In Hutton v. Frisbie, a case which arose on the same facts, Chief Justice Sawyer, delivering the opinion of the court, said:1 "Nor do we question the rule adopted in Chotard v. Pope2 and Lytle v. State, to the effect that when a party is authorized by an act of congress generally to enter 'in any land-office,' etc., 'a quantity of land not exceeding,' etc., he must be limited in his selection to lands subject to selection, and cannot take lands already sold, or reserved from sale, or upon which a pre-emption, or some other right, has attached under a law which is still in force, and which covers and protects it. The rule is obviously sound. It cannot for a moment be supposed that congress,, by such general acts, contemplated that the party should be authorized to take land upon which other parties had already entered and taken steps to acquire it, and were diligently pursuing their rights under acts still in force with reference to that land, or that it intended in this general way to repeal such acts. The two acts in such cases are not necessarily inconsistent, and can be so construed in the mode adopted by the court as to stand together; and in such cases it is obviously the duty of the court so to construe them. But such is not the case with the act we are now considering." Again: "The policy of the pre-emption laws was undoubtedly beneficent. They were intended to give those who were pioneers in the unsettled wilds of the public domain the first right to purchase the unoccupied lands which they have had the courage and hardihood to settle, and it will

137 Cal. 475, 485, 486.

212 Wheat. 587.

89 How. 333.

always be our pleasure as well as duty to extend to all such the utmost protection justified by the laws of the land. But this beneficent policy has no element in harmony with the principle that impelled men to rush in upon the improved possessions, and avail themselves of the labor of their neighbors, under the condition of things connected with the Suscol rancho, [i. e., the grant to A.] The equities which lay at the foundation of the pre-emption policy were, in this particular instance, not with those who entered upon the possessions of such of their neighbors as were honest. purchasers; but they were all, and even equities of a much higher obligation, with the purchasers in good faith, who were not merely pioneers, but also parties who had paid for their lands, and long occupied and improved them, under the belief that they had a good title; and congress hastened to recognize and give effect to those equities by passing the act in question." Again, the same able judge says: "The difference between this case and those of Chotard v. Pope and Lytle v. State, where the parties were entitled to select lands from a much larger portion of the public domain, is so obvious that argument can scarcely make it appear more plain. Where an act authorizes a party to enter any thousand acres of land he may select within specified exterior boundaries containing one hundred thousand acres, or in a whole state, and it happens that the government has already sold a given tract within said boundaries, or a pre-emption right in favor of another party has already attached to said particular tract under some prior law, it is not for a moment to be supposed that it was intended to permit an entry of the tract of land so sold, or upon which such prior right had already attached. But if he is authorized in express terms to enter the very same specific tract, and no other, before sold or upon which the pre-emption right had attached, there can be no doubt as to the intent to allow the entry of that specific tract, whether it was in the power of congress to give effect to POM.RIP.-5 (65)

that intent or not. And that is just the difference between the cases cited and the one under consideration." The opinion of Mr. Justice Clifford in Frisbie v. Whitney1 contains explanatory and limiting language to the same general effect.

It would seem that language could not be more plain and pointed than that of the foregoing extracts, to show that the decisions in Hutton v. Frisbie and Frisbie v. Whitney were confined to the operation of special legislation dealing with specified portions of the public domain, and had no reference whatever to the effect of the general statutes of congress forming parts of the same general system, nor to the conflicting rights of priority between two parties claiming under the different and co-existing provisions of these general statutes. The decision in the case of Western Pac. R. R. v. Tevis2 was also based upon upon special legislation of exactly the same character.

Where A. duly locates and settles upon a surveyed tract of the public land bordering upon a stream, and files his declaratory statement in (say) 1874, duly completes the requirements of the statute and pays the price in 1877, and receives his patent from the government in 1879; and B. duly posts and serves the notices of his appropriation of the water of the same stream in 1875, and proceeds with reasonable diligence to construct his dams, ditches, and other necessary works, which are not completed, however, so that he can begin the actual use of the water until 1880,-the appropriation of water by B., it is held, relates back to the time of his preliminary act of posting and giving notice in 1875, so that he is legally in the same position as though his actual use of the water had begun at that time; while it is said that the right of A. as a patentee shall only relate back to the time when he had paid up, in 1877. And thus, although A.'s initial step was made before any act

19 Wall. 187.

241 Cal. 489.

whatever done by B., and his legal title was perfected by patent before B.'s works were completed, and the actual use of the water began, yet A.'s rights as a riparian owner on the stream are said to be subsequent to those of B. to appropriate perhaps the entire waters of the stream. In my opinion, there is nothing in the decisions of the United States supreme court, nor in those of the California supreme court, prior to the case of Farley v. Spring Valley M. & I. Co., which necessarily establishes or tends to establish for the pre-emptor, or other grantee of the United States, a rule so different from that which governs the appropriator of water; and there is nothing in the general statutes of congress, nor in the policy which underlies the system, which requires such a discrimination between the two classes. of claimants. The notices posted and given by the appropriator of water clearly do not confer on him any higher equity as a bona fide purchaser; since the actual and' continuous possession required of the pre-emptor is a notice of his prior claim,a notice of the very highest character. I have dwelt upon this particular topic at such length because the subject seemed to be one of practical importance; the discrimination against the preemptor or other private grantee of the United States seemed to be inequitable; the decisions bearing upon it are very few; and possibly the court may be called upon to re-examine the question in some subsequent case.

§ 42. Riparian rights under Mexican grants.

What are the rights of a private riparian proprietor, who obtains his title by a grant from the Mexican government, guarantied and protected by the treaty between the United States and Mexico, and finally confirmed to him in the proceedings authorized by congress for the purpose of carrying into effect the stipulations of that treaty? We see no reason why the riparian rights of such a riparian proprietor should differ in any respect

from those held by any other riparian proprietor who derives his title immediately or mediately from the United States by patent or otherwise. All the doctrines and rules of the law which define and regulate the water-rights of private riparian proprietors upon innavigable streams at least, even if not upon navigable streams, belong entirely and exclusively to the jurisdiction and domain of state legislation. Congress has no power to interfere directly or indirectly with matters of this kind; any attempt of congress to control them by legislation would be wholly nugatory. The stipulations of the treaty with Mexico simply referred to, operated upon, and protected the titles of those private proprietors who held tracts of land, within the territory ceded to the United States, under grants from the Mexican government. These stipulations say in substance that such actual and bona fide grantees shall continue to be owners of their respective tracts, although the territory has passed into the domain of the United States; and that their right of ownership shall be respected by the United States government.

The legislation of congress, and the judicial proceedings instituted under it, were intended to carry into effect these treaty stipulations, and they operate solely upon the titles, by declaring, confirming, and establishing the private ownership of the grantees as derived from the Mexican government, the original sovereign proprietor. The treaty, and the legislation of congress which carries it into effect, are of course binding, not only upon the federal government, but also upon the governments of all the states which have been established within the ceded territory, and within whose boundaries the granted lands are situated. The treaty with Mexico, while thus securing to the private proprietors the title and ownership of the tracts of land which had been granted to them by Mexico, did not attempt to provide that this ownership should be governed and controlled by the rules of the Mexican law, nor by any other rules of law dif