of its delivery, seems to be fully settled by the decisions. In Union Mill & Min. Co. v. Dangberg,' 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. In the very important case of Vansickle 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 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, 12 Sawy. 450; and see Union Mill & M. Co. v. Ferris, 2 Sawy. 176. 27 Nev. 249. 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.' 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 18 Cal. 323, (1857.) 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 diversion 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.' 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 appertain to the soil, subject to the single exception of rights antecedently acquired."" The conclusion heretofore reached, that the rights of a prior grantee or purchaser from the United States, as against subsequent appropriators of water, must be regarded as complete and perfect, at the latest, from the time when he has fully performed all of the statutory requirements, including payment, which entitle him to a patent, and not from the time of his receiving a patent, may appear, perhaps, to conflict with the recent decis 18 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 per fect riparian rights to the water. See, also, to the same effect, Nevada Co. & Sac. Canal Co. v. Kidd, 37 Cal. 282. ion in Osgood v. El Dorado, etc., Co.;1 but a careful examination of that case shows that no such conflict was intended, and none could legitimately arise upon the facts. The plaintiff relied upon the doctrine of relation, in order to carry his right back to his first proceedings, which were earlier than those of the defendants, and the court simply held that on the facts the doctrine of relation did not apply. The plaintiff's first step was taken while the lands were unsurveyed; and his earliest legiti 156 Cal. 571, 578. My reference to this decision on a previous page (ante, 26) does not describe it with perfect accuracy, and needs some correction. It is true that the reporter's head-note represents the court as laying down the following general rule: "In a question of priority of right between an appropriator of water on the public lands and a pre-emptor, the rights of the latter date from the issuance of his patent." It is also true that Mr. Justice Ross says, in his opinion: "The plaintiff's rights must therefore be held to have attached on the twenty-fifth of October. 1871, the date of the issuance of his patent." But this language cannot have been intended to lay down a general rule applicable to all pre-emptors; it must have referred entirely to the particular facts of that case. This plainly appears from the sentence immediately preceding, and from the cases which he cites in support of his conclusion,- these very cases recognizing the rule that a grantee's right may relate back to a date before that of his patent. He says: "The plaintiff seeks to invoke the doctrine of relation; but for obvious reasons no case was made for the application of that doctrine." The plaintiff took possession of his land several years before it was surveyed. It was surveyed in 1865. In June, 1868, he filed his first declaration as a pre-emptor; in 1870 he had paid up; and in 1871 he received his patent. But the defendants had taken their first step, from which their rights of appropriation arose, in March, 1867. It thus appears that, even if the plaintiff's title did relate back to the date of his declaration in 1868, it was still subsequent to defendants' right of appropriation, which accrued in 1867. The remark that plaintiff's title attached at the date of his patent was not, therefore, essential to the decision actually rade on the facts. [But a recent authority speaks of this case in the following language: "Osgood v. Water Co. presented a question of priority between an appropriator of water on lands of the United States and a pre-emptioner. It was there held that, by reason of the express language of the seventeenth section of the act of congress of July 9, 1870, amending the act of July 26, 1866, the rights of the pre-emption claimant, as against an appropriator, date only from his patent or certificate of purchase." Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 782.] mate proceeding was subsequent to the date at which defendants' rights of appropriation accrued. In Farley v. Spring Valley Min., etc., Co.' the plaintiff, a pre-emptor, had settled on public lands of the United States, and filed his declaratory statement on February 27, 1871; he had proved up and paid the purchase price in 1877; and he received his patent on January 23, 1879. The defendants made an appropriation of water after 1871, but before 1877. The court held that the plaintiff's rights as a private proprietor only accrued in 1877, when he had proved up and paid the price; and he was therefore a subsequent purchaser as against a prior appropriation of the defendants. This case clearly recognizes the doctrine that the rights of a grantee or purchaser from the United States, as against another party claiming under the government, do not accrue from the time of executing and delivering his patent alone; but are complete when his equitable estate is perfected by his performing all of the requisites which entitle him to receive a patent. 2 The rights of the prior owner of a tract bordering on a stream, as against a subsequent appropriator of its waters upon the public domain, are impliedly, even if not expressly, recognized by other decisions. In Gibson v. Puchta, the court held that when the title of two parties to public mineral lands is based on possession alone, the older possession gives the better title as between the two, even though the elder possessor uses his land for agriculture and the younger for mining. In such a case, their rights, as against each other, depend upon the common-law doctrines applicable to adjoining land-owners. The agricultural occupant has a right to use the water for the purpose of irrigating his own land in a proper and reasonable manner, and no cause of action can arise against him for such use, 158 Cal. 142. 233 Cal. 310. |