lands has by virtue of its proprietorship, the absolute and unqualified right of disposal,1 and neither a State nor Territorial legislature can dictate, modify or embarrass in any manner the right of Congress to the primary disposal of the public lands.2 Also an inland lake or stream incapable of being navigated, is naturally a part and parcel of the land itself, inseparably annexed to the soil, and as such passes to the grantee or patentee of the soil from the United States, unless certain conditions are annexed, either in the grant itself, or by general Act of Congress, prior to the grant. But the Federal Government as proprietor of the public domain has the power to annex conditions to grants. It may do this either in the grant or patent itself, conveying each particular portion of the public domain to its grantees and patentees, or it may by Congressional legislation adopt any general regulations or impose any conditions or limitations upon the use of the public domain, upon all persons who acquire title to portions of the public lands from the Government. And the title so acquired will be held by the grantee thereof, subject to such conditions and limitations. Congress has provided by general statute that, "whenever, by priority of possession, rights to the use of water for mining, agricultural or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of Courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals, for the purpose herein specified, is acknowledged and confirmed." Also by another section of the Act of 1866, it is enacted: "As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines, involving easements, drainage and other necessary means, to their complete development; 1 Ante Section 134; Irvine vs. Marshall, 20 How. 558. 2 Irvine vs. Marshall, 20 How. 558; Richert vs. Felps, 6 Wall. 160; Gibson vs. Chouteau, 13 Wall. 92; 3 Jourdan vs. Barratt, 4 How. 169; United States vs. Gratiot, 14 Pet. 526. 3 Act of 1866, U. S. Rev. Stat. 2339. and these conditions shall be fully expressed in the patent.' The patent spoken of is that issued by the United States to the purchasers of the public domain. Thus by a general statute, Congress has provided for a right of way over the public lands for ditches and canals for all those who have made an appropriation of water before the lands were disposed of, and that all grantees of the Government who subsequently acquire portions of this land, shall take and hold this title subject to such existing rights of way; or that all grantees of public lands bordering upon a stream or lake shall hold their titles subject to any previously existing appropriation of water; or further that all grantees of the public lands shall take their titles, subject to the local customs or laws of the State within which the lands are situated concerning the uses of water for mining, irrigating, agricultural and other purposes.2 § 148. Same.-Same.-Authorities Discussed.-It must be borne in mind that these conditions and limitations to the title to the lands which originally belonged to the public domain are not confined to the immediate grantees of the Federal Government. If the grantee of the Government sells his land, his purchaser only acquires the same title that he himself had, and takes the land also subject to the same conditions and limitations. Also on the other hand, if the public land bordering upon a stream or lake and situated within a State, should all be conveyed to private persons, free from any condition or limitation, Congress would have no power to control such persons in the use of their lands or in the use to which they put the waters of the stream or lake upon which their lands border. If, also, the streams and lakes are wholly situated on lands which have been granted to a State and no appropriation of the water of such streams or lakes was ever made prior to the grant then the grant carries all right, title or interest in and to the waters to the State, and the waters must be appropriated under its laws. However, if all or part of the water had been appropriated prior to the grant, then the State 1 United States Rev. Stat. 2338. 2 Basey vs. Gallagher, 20 Wall 670; Union M. & M. Co. vs. Ferris, 2 Sawyer 176. as well as any other grantee of the Government takes the land from the United States, subject to all "vested rights." The power to legislate and to prescribe rules after once the title to lands which were public has passed in the first instance to individuals, corporations or states, belongs exclusively to the State as a part of its supreme municipal authority over persons and property within its jurisdiction. Mr. Justice Hillyer in rendering the opinion in the case of Union Mill and Mining Co. vs. Ferris,1 discusses this general subject at some length, and the part relating thereto is well worth quoting in this connection. He says, relative to Section nine, of the Act of Congress of July 26th, 1866, which we quote as follows: "It gives the possessor of a quartz lode a right of pre-emption, and it declares that the person who has acquired a right to the use of water by priority of possession shall be maintained and protected in the same if such right is recognized and acknowledged by the local customs, laws and decisions of Courts. The policy of this enactment, so far at least as it relates to agricultural districts, may be doubtful, but it is the law of the land, and the Courts must carry out what appears to be the intention of the legislature, as therein expressed. And that, as indicated by the Act, appears to be to grant to the owner of possessory rights to the use of water under local customs, laws and decisions the absolute right to such use, which the Government alone could grant. Under this law, when a possessory right to the use of waters is claimed, whether or not such right exists will be determined by reference to the local customs, laws, decisions, and the question will be determined just as it would have been had it been raised between occupants before the title to the land had passed from the Government. When the right is thus ascertained the statute has the force of confirming it to the person entitled under the local laws and decisions. As against these patents, neither can claim any right to the use of the water by virtue of prior appropriation or possession, but in respect to them their rights to the water must be fixed by the law applicable to them as owners of the soil through which 12 Sawyer, 176. * * * the stream naturally flows. But if when the Act was passed, the defendant had such a right of priority of possession as that Act contemplates, upon the construction which must be given, that right is confirmed in him, and he is entitled to protection as against one claiming as riparian proprietor merely, through a patent issued after, and when no right had vested in the patentee before the Act became a law. The statute is in effect incorporated into such subsequent patent, and operates as an exception out of the estate granted." 1 Hobart vs. Ford, 6 Nev. 77; Shoemaker vs. Hatch, 13 Nev. 261; Rivers vs. Burbank, 13 Nev. 398; Jones vs. Adams, 19 Nev. 78; Broder vs. Natoma Water Co., 50 Cal. 621; 101 U. S. 274; Titcomb vs. Kirk, 51 Cal. 288; Cave vs. Crafts, 53 Cal. 135; Osgood vs. El Dorado CHAPTER VI. Methods by Which Appropriations of Water are Effected. Section. 149. Scope of Present Chapter. 1. ESSENTIALS OF AN APPROPRI- 150. Appropriation of waters for cussed. 152. Same.-Essentials of appro- 153. Same.-Combs vs. Agricul II. METHOD BY WHICH AN AP- 155. Who are entitled to appro priate waters. 156. Title to the soil unnecessary. 157. Notice of intent to appropriate. Section, 158. Same.-Continued. 159. Physical acts necessary to 163. Same.-Continued. 166. Same.-Continued. 168. Doctrine of relation. § 149. Scope of Present Chapter. - Having shown how the appropriation of water upon the public domain originated, and having followed the history of the doctrine down to the present time, we will devote this chapter to a discussion of the requisite essentials of a valid appropriation of waters, the theory of an appropriation for a "beneficial use," and next to the methods by which an appropriation is effected. I. Essentials of an Appropriation. § 150. Appropriation of Waters for a "Beneficial Use." -The Supreme Court of California defines the word "appropriation," as follows: "Appropriation is the intent to take, |