ferent from those which would govern and control all private ownership of land within the territorial jurisdiction of the United States, or within the jurisdiction of any particular states. Even if the treaty with Mexico had expressly stipulated, not only that the titles of private persons holding under Mexican grants should be protected and should continue to be valid and perfect, but also that the ownership of such lands, when situated on the banks of streams, should be governed and regulated by the rules of the Mexican law concerning water and other riparian rights, such a stipulation would be completely inoperative and void as soon as the territory embracing these granted lands was organized into a state; the whole subject-matter would belong exclusively to the jurisdiction of the state; the rules concerning riparian rights would fall exclusively within the domain of the state municipal law,—whether that law adopted the common-law doctrines, or promulgated other rules in the form of statutes.1 It seems plain, therefore, that the riparian rights of a private proprietor holding by a Mexican grant duly confirmed are exactly the same, governed by the same rules, as those held and enjoyed by any other private riparian proprietor within the state. The source of his title can make no difference as to the rights of property which accompany and flow from his ownership. The question of priority between such a grantee and a person who has appropriated the waters of the stream before his grant was confirmed by the United States authorities, must depend, we apprehend, upon the legal effect given to the confirmation. Does the confirmation relate back to the date of the treaty, so that 1 This principle, and the authorities which support it, are discussed by Sawyer, J., in Woodruff v. North Bloomfield, etc., Co., 9 Sawy. 441, s. c. 18 Fed. Rep. 801. The same principle is discussed by Mr. Justice Field in delivering the opinion of the court in the case of Hagar v. Reclamation Dist. No. 109, 111 U. S. 701, s. c. 4 Sup. Ct. Rep. 663. the grantee is regarded as deriving his title directly and holding it continuously from the Mexican government; or does the confirmation operate only from its own date, so that the grantee is regarded as deriving and holding his title immediately and directly from the United States, in pursuance of an executory agreement made with Mexico? This question we shall not examine. § 43. Summary of conclusions. The conclusions from the foregoing discussion may be briefly summed up as follows: While a natural stream or lake is situated on the public lands of the United States, within the limits of a state, a person may, under the customs and laws of a state, and the legislation of congress, acquire by prior appropriation the right to use the waters thereof for mining, agricultural, and other beneficial purposes, and to construct and maintain ditches and reservoirs over and upon the public land; which right, although merely possessory, is good against all other private persons, and is made by statute good as against the United States. and its subsequent grantees. When such a right has been acquired in this manner by prior appropriation, subsequent grantees of tracts of the public domain bordering on the same stream or lake-pre-emptors, homestead settlers, and all other purchasers-take and hold their titles subject thereto, and the patents issued to them by the United States government must expressly except or reserve all such "existing rights" so acquired by other persons in pursuance of the customs and laws of the state. The right thus excepted or reserved in a patent must, of course, be an "existing right" already acquired by some other person. When a grantee of the United States obtains title to a tract of the public land bordering upon a stream, the waters of which have not hitherto been appropriated, his patent is not subject to any possible appropriation which may be subsequently made by another party.1 These rules, founded upon local customs and laws, and ratified by congressional legislation, are confined in their operation to the public domain of the United States. If tracts of public land bordering on a stream, and situated within a state, have come into the private ownership of purchasers or grantees from the United States before any appropriation has been made of the water, their rights as riparian proprietors must be determined and regulated wholly by the municipal law of the state concerning that subject-matter, over which congress has no power whatever to legislate. Whenever a private person, as pre-emptor, homestead settler, or other purchaser or grantee, has acquired title from the United States to a tract of the public land bordering upon a stream or lake within a state, any subsequent appropriation of the waters thereof by another party is subject to his prior rights as a riparian proprietor, whatever those rights may be under the municipal law of the state; and, as against such subsequent appropriator, his rights as riparian proprietor are complete, at least 1 [When there is nothing in the record to show the contrary, it must be presumed that the lands through which the stream flowed were public lands, and had not passed into private ownership at the time of the appropriation. Lytle Creek Water Co. v. Perdew, (Cal.) 2 Pac. Rep. 732. Parties being in the actual possession and use of a water privilege have a good prima facie right to it; but, when other parties prove a prior possession and use, they overcome this prima facie case. Humphreys v. McCall, 9 Cal. 59.] 2 See Lobdell v. Simpson, 2 Nev. 274; Lobdell v. Hall, 3 Nev. 507; Ophir Silver M. Co. v. Carpenter, 4 Nev. 534; Robinson v. Imperial Silver M. Co., 5 Nev. 44; Covington v. Becker, Id. 281; Hobart v. Ford, 6 Nev. 77; Van Sickle v. Haines, 7 Nev. 249; Barnes v. Sabron, 10 Nev. 217; Shoemaker v. Hatch, 13 Nev. 261; Dick v. Caldwell, 14 Nev. 167; Strait v. Brown, 16 Nev. 317; Cramer v. Randall, 2 Utah, 248; Munro v. Ivie, Id. 535; Fabian v. Collins, Mont. 215; Burkley v. Tieleke, 2 Mont. 59; Caruthers v. Pemberton, 1 Mont. 111; and other cases previously cited. from the time when he has duly performed all of the statutory requirements, including payment of the purchase price, if necessary, so as to entitle him to a patent, and not merely from the time of issuing a patent; even if his rights do not relate back to the initiative act of the continuous proceeding by which his title is finally perfected. (72) CHAPTER IV. HOW AN APPROPRIATION IS EFFECTED. § 44. Successive appropriations. 45. Doctrines which control the appropriation. 46. The methods by which an appropriation is effected. 47. Intent to apply water to beneficial use. 48. There must be actual diversion. 49. There must be actual use of water. 50. Physical acts constituting appropriation. 51. Notice of intent to appropriate. 52. Reasonable diligence in completion of works. When appropriation is complete. 53. 54. Appropriation relates back to first step. § 44. Successive appropriations. Having thus described the appropriation of waters from natural streams and lakes on the public domain of the United States, I shall proceed to consider the special doctrines which regulate such appropriation, and define the rights of appropriators. It may be stated as a general proposition, in this connection, that, when there have been several successive appropriations of water from the same stream, each appropriator stands in the position and has the rights of a prior appropriator towards all others whose rights have been acquired subsequently to his own. The term "prior appropriator" does not, therefore, always mean the person who is absolutely the first to obtain an exclusive right to the water of a particular stream. § 45. Doctrines which control the appropriation. The most important practical doctrines embraced under this head may be regarded as having been definitely settled by numerous decisions; and they are substantially the same in all the Pacific states and territories where this theory of a prior exclu |