co-existing provisions of these general statutes. The decision in the case of Western Pac. R. R. v. Tevis' was also based 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 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, 141 Cal. 489. 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. Later decisions establishing doctrine of relation. [It does not appear that the supreme court of California has yet been called upon to reconsider its decision that the doctrine of relation cannot be applied to carry the rights of a pre-emptioner or homesteader back to the date of his original entry or settlement, as against an intervening appropriator of a watercourse flowing through or along the land. And so far as regards the judicial doctrine of that particular state, the question must be regarded as standing in the same condition as when our learned author wrote the preceding sections. In the state of Washington, also, the courts, following the lead of the California tribunals, have held that the right to appropriate waters on the public domain continues until the United States has made primary disposal of the soil; that the government cannot be said to have disposed of land under the pre-emption laws until final proof and payment, and not under the homestead. law until final proof of the homesteader which entitles him to a patent; and hence that the doctrine of relation cannot carry the rights of the pre-emptioner or homesteader back to the time of his first filing or settlement, so as to cut out the rights of an intervening appropriator of the water.' But these decisions can no longer be regarded as of force. For the supreme court of the United States has now fully and fairly decided the question, and in a directly contrary manner, and its judgment must of course be accepted as authoritative and conclusive. That court now holds that the filing of a homestead entry of a tract of land across which a stream of water runs in its natural channel, with no prior or existing right or claim of right to divert it therefrom, confers a right to have the stream continue to run in that channel without diversion, and this right, when completed by full compliance with the requirements of the statutes on the part of the settler, and the issue of a patent to him, relates back to the date of the filing, and cuts off intervening adverse claims to the water. This decision has been followed and applied in Oregon. And indeed, in that state, it had already been held, in accordance. with what was stated to be the ruling of the United States land department, that a settlement made by a homestead claimant upon the public lands of the United States, and compliance with the act of congress on the subject, segregated the same from the public lands and cut off intervening claims.* 3 2 Although the decisions to which we have here referred are confined, on the particular facts, to the rights of claimants under the homestead law, there are even stronger reasons for applying the doctrine of relation to the rights of pre-emption claimants. That it is the policy and intention of the general government to assimilate the rights acquired under these two 1 Tenem Ditch Co. v. Thorpe, 1 Wash. St. 566, 20 Pac. Rep. 588; Ellis v. Pomeroy Imp. Co., 1 Wash. St. 572, 21 Pac. Rep. 27. 2 Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. Rep. 350, affirming s. c. 6 3 Faull v. Cooke, 19 Oreg. 455, 26 Pac. Rep. 662. 4 Larsen v. Navigation Co., 19 Oreg. 240, 23 Pac. Rep. 974. systems of laws is fully demonstrated by the act of congress which provides that the right of a settler claiming under the homestead law "shall relate back to the date of settlement, the same as if he settled under the pre-emption laws."'] § 43. 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 uponunnavigable 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. 1 Act of March 14, 1880, c. 89, § 3; 21 U. S. St. at L. 141. 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 different 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.' It 1 This principle, and the authorities which support it, are discussed by Sawyer, J., in Woodruff v. North Bloomfield, etc., Co., 9 |