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 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. § 44. 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 per Sawy. 441, s. c. 18 Fed. Rep. 801. Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, s. c. 4 Sup. Ct. Rep. 663. sons, 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." 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 [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; Vansickle 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, 3 Mont. 215; Burkley v. Tieleke, 2 Mont. 59; Caruthers v. Pemberton, 1 Mont. 111; and other cases previously cited. 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 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. (75) CHAPTER IV. HOW AN APPROPRIATION IS EFFECTED. § 45. Successive appropriations. 46. 47. Doctrines which control the appropriation. The methods by which an appropriation is effected. 48. Intent to apply water to beneficial use. 51. Physical acts constituting appropriation. 52. Notice of intent to appropriate. 53. Reasonable diligence in completion of works. 54. When appropriation is complete. 55. Appropriation relates back to first step. 56. Effect of failure to comply with statutory rules. § 45. 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. § 46. 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 sive appropriation of water prevails. The various topics to which these doctrines relate, and which require any discussion, are the following: The methods by which an appropriation is effected; the time from which the rights under an appropriation become vested; the property and other rights in general of the prior appropriator; the amount of water embraced in an appropriation, or the extent of the appropriation; subsequent appropriation, and the relations between successive appropriators of the same stream; abandonment of a prior appropriation. I purpose to treat of these matters in the order here given. § 47. The methods by which an appropriation is effected. It should be carefully observed that the water right now under discussion may be, in its essential nature, merely a possessory right. Its acquisition and maintenance are not essential incidents of, and do not necessarily depend upon, a legal title to any portion of the public lands held by the appropriator under a patent or other conveyance from the government.' Nor is it necessary that the appropriator should have located or taken possession of any tract or parcel of the public domain bordering. upon the stream or lake from which the appropriation is made. The tract or claim which he possesses, and on or at which the water is actually used, may be at a distance from such stream or 1["One who locates upon public lands with a 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. He may admit that he is not the owner in fee, but his possession will be sufficient to protect him as against trespassers. If he admits, however, that he is not the owner of the soil, and the fact is established that he acquired his rights subsequent to those of others, then, as both rest for their foundation upon appropriation. the subsequent locator must take subject to the rights of the former, and the rule, qui prior est in tempore potior est in jure, must apply." Crandall v. Woods, 8 Cal. 143.] |