part of this work, all show the encroachment of this new theory upon the old English common law doctrine, with varying degrees of success. It is another phase of the conflict between conservatism and progress, and the spirit of the times points to the triumph of the new theory. CHAPTER V. Acquisition, Ownership, Disposal of and Jurisdiction over Lands and Waters by the United States. § 123. Scope of Present Chapter.-It is necessary at this point in our work, in order to get at the very foundation of the title to the waters of the "arid region" to go back, and · trace the source of title to the same, to the time of their acquisition by the Government of the United States; and as this can only be done, in connection with the lands over which they flow, the two will be treated together in the present chapter. And it is proposed in this chapter to consider only such lands and waters as are, or were at one time, the property of the United States. The principles governing the law relating to lands and waters belonging to the individual States will be treated of in Part II of this volume. And for the purposes of this chapter, when the terms "public lands" or "public domain" are used, they are meant to include not only the soil, but also the waters from any source upon the same, although they may not be specifically mentioned. will devote the chapter to a discussion of how the United States acquired its public lands and waters, the title acquired thereto, and the disposal thereof. Also a discussion as to the jurisdiction over the lands and waters upon the public domain of the United States. I. Source of Title of Government Lands and Waters. § 124. What are Public Lands.-The term "public domain" in its broadest sense comprehends all lands and waters in the possession or ownership of the United States, and including lands owned by the several States, as distinguished from lands possessed by private individuals or corporations. The term "public lands" only embodies such lands as are subject to the sale or other disposition by the United States under general laws. It is a well settled principle that land once reserved by the Government or appropriated for any special purpose, ceases to be a part of the public lands, and in all grants or proclamations, declaring public lands open to settlement, the portion already reserved is always excepted, though the exception is not specifically mentioned. The rule is also well settled by a long line of 1 Newhall vs. Sanger, 92 U. S. 766; Wirth vs. Bronson, 98 U. S. 118; Heydenfeldt vs. Daney Gold M. Co., 10 Nev. 290; Anderson's Law Dict. Sub. Public Land; Bouvier's Law Dict. Sub. Public Land. 2 Wilcox vs. Jackson, 13 Peters 498; Becher vs. Weatherby, 95 U. S. 517; Leavenworth etc. Ry. Co. vs. U. S., 92 U. S. 733; United States vs. Stone, 2 Wall. 525. decisions, that when public lands have been surveyed and placed on the market, or otherwise opened to private acquisition, a person who complies with all the requisites necessary to entitle him to a patent in a particular lot or tract is to be regarded as the equitable owner thereof, and the land is no longer public or open to location.1 No lands, wherein the Indian right to occupancy has not been extinguished, are public. The United States as proprietor merely, also owns and holds certain public lands within the boundaries of the several States, that have been acquired by cession, from individual States, and by treaties with Indians and other nations, and are possessed by virtue of the power vested by the Constitution. In fact, a large portion of the public domain, owned by the United States, is within the confines of the several States. § 125. Power of the United States to Acquire Lands.—The right of the Federal Government to acquire lands is sustained by several decisions of the Supreme Court of the United States, as a necessary accompaniment of the power to make treaties. The authority given by the Constitution is, that the President of the United States "shall have power, by and with the advice and 1 Wirth vs. Branson, 98 U. S. 119, where the Court held, that when public lands have been open to private acquisition, a person who complies with all the requisites to entitle him to a patent in a particular lot, is to be regarded as the equitable owner thereof, and the land is no longer open to location; and that the public faith had become pledged to him, and any subsequent grant of the land to another party is void, unless the first location or entry be vacated and set aside. Lytte vs. Arkansas, 9 How. 314; Stark vs. Starr, 6 Wallace 402; where it was held that the right to a patent once vested, is treated by the Government, when dealing with the public lands, as equivalent to a patent issued; and when, in fact the patent does issue, it relates back to the inception of the right of the patentee, so far as it may be necessary to cut off intervening claims. See also Frisbie vs. Whitney, 9 Wall. 187; Yosemite Valley Case, 15 Wall. 77; Railroad Co. vs. McShane, 22 Wall. 444; Shipley vs. Cowan, 91 U. S. 330. 2 Leavenworth, etc., Ry. Co. vs. U. S., 92 U. S. 723; where it was held that the Indians have the unquestionable right to the lands they occupy, until it be extinguished by a voluntary cession to the Government. United States vs. Carpenter, III U. S. 347. consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." From this it may be readily seen, the power to make treaties is given in general terms, by the Constitution, without any description of the objects intended to be embraced by it; and consequently, it was designed to include all those questions, which in the ordinary intercourse of nations, are usually made subjects of negotiations and treaty, and which are consistent with the nature of our institutions, and with the relation between the States and the United States. And since the acquisition and disposal of territory between nations is one of the most common subjects of ordinary intercourse, it follows that the treaty-making power of the United States has authority to make negotiations with other nations concerning the acquisition of additional territory by purchase or otherwise.2 1 Constitution of the United States, Art. 2, Sec. 2, Cl. 2. 2 See upon subject of treatymaking power, Holmes vs. Jennison, 14 Pet. 540; Holden vs. Joy. 17 Wal. 211. Amer. Ins. Co. vs. 365 Bales of Cotton, I Peters, 511, where it was held that the Constitution of the United States confers absolutely on the government of the Union the power of making war and of making treaties. Consequently, that Government possesses the power of acquiring territory, either by conquest or by treaty. I Kent Comm. 165, 166; Story Const. Sec. 1508, and cases cited; annals of Congress, 14 Cong. Ist Session, 1815, 1816, pp. 489, 526, 564, 539; Works of Hamilton, I Vol. pp. 501-528; annals of Congress, 4 Cong. Ist Sess. 1795, 1796, P. 760; Calhoun's Works, P. 202; People vs. Gerke & Clark, 5 Cal. 381, 384; Duer Const. Jur., P. 228, et seq.: Ware vs. Hilton et al., 3 Dall. 199; Marbury vs. Madison, I Cranch, 137; Foster & Elam vs Cherokee Nation vs. Georgia, 5 Pet. 1, where it was held that: The Cherokees are a State. They have been uniformly treated as a State since the settlement of our country. The numerous treaties made with them by the United States recognizes them as a people capable of maintaining the relations of peace and war; of being responsible in their political character for any violations of their engagements or for any aggressions committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The Acts of our Government plainly recognizes the Cherokee Nation as a State, and the courts are bound by these Acts. Patterson vs. Winn, et al., 5 Pet. 233; Worcester vs. State of Georgia, 6 Pet. 515: City of New Orleans vs. De Armas et al., 9 Pet. |