ize a party holding such a claim to cut and remove the timber for purposes of speculation, and although he can dispose of it as he sees fit, whenever the timber was removed for the purpose of facilitating his mining operaations, he is not entitled to the growing timber for any other than mining purposes,1 and he will not be permitted to remove and sell the timber, several acres in advance of his mining operations, for this would permit the numerous adventurers to strip the public land of its valuable timber, under the pretense of developing a mining claim, with no other object than to secure the timber for speculative purposes.2

- A lease of

§ 225. Timber rights on private lands. land for mining purposes does not carry with it the right to cut timber on the land, for use in such operations, as the property in the mineral and the timber are of separate distinct species and the one could not, by analogy, be said to accompany a grant of the other. A grant of the right to cut timber on the land demised, for mining purposes, would be recognized as vesting in the lessee, however, a right to cut such timber as would be reasonably necessary for the mining operations, and even in the absence of such a grant, the lessee could cut and remove out of the way, such timber as was necessary to be removed to enable him to exercise the power to get the mineral or stone, and this

See Act of Mar. 2, 1891, R. S. U. S.; Rogers v. Soggs, 22 Cal. 444; B. & W. L. C. 170-171; Cotton v. U. S. (11 How. 229) where it was held the government could maintain trespass against one cutting the public timber.

2

Rogers v. Soggs, supra; B. & W. L. C., pp. 170-71, 319. As to what will amount to waste on private lands, see chapter on Waste; also B. & W. L. C., p. 319.

3 Dorcey v. Askwith, Hob. 234; s. c. Hutt. 19.

4 Snodgrass v. Ward, 3 Haywood (Tenn.), 40.

would not be held to be a breach of covenant on his part.1

§ 226. Easements

in water-courses.— The various rights so far mentioned, in water-courses, are natural rights, acquired by usage, or implied or established by law. They exist independent of any contract or grant. But such rights may be either enlarged, diminished, or altogether extinguished by means of an express grant,2 in the same manner as the creation of express and special easements affect the right of property in other cases. Where special rights are acquired in a stream of water by grant, the owner of the dominant estate, or grantee, has no right to make such use of the water as will inflict greater injury upon the other riparian owners than is expressly permitted by the terms of the grant. And the rights acquired by appropriation cannot in the same way be enlarged or extended.3 The right of a water-course over another's land places upon the holder of such easement the duty of keeping the water way in repair in the absence of a covenant imposing such obligation on the owner of the land, and for that purpose he has the right to enter upon the land and make repairs, taking care that no unnecessary damage results to the servient estate.1

1 Doe v. Price, 8 C. B. 894.

2 Manning v. Mosdale, 5 A. & E. 750; Stockport Water Works v. Potter, 3 H. & C. 300; Dudley Canal v. Grazebrook, 1 B. & Ald. 59; Goldsmith v. Tunbridge Wells Com., L. R. 1 Ch. 349; Cook v. Hull, 3 Pick. 269; Stowell v. Lincoln, 11 Gray, 434; Watkins v. Peck, 13 N. H. 360.

3 Sampson v. Hodinott, 1 C. B. (N. s.) 590; Bickett v. Morris, L. R. 1 H. L. Cas. 47; Northern v. Hurley, 1 E. & B. 665; Embrey v. Owen, 6 Exch. 353; Jennison v. Walker, 11 Gray, 423.

4 Peter v. Daniel, C. B. 568; Prescott v. White, 21 Pick. 341. As to the property and rights in water, both upon public and private land, see the chapter following. After the acquisition of a water right under statute (R. S. U. S., Sec. 2339), the subsequent locator of a mining claim takes

§ 227. Legalized nuisances. Where one acquires from the owner of land by grant or prescription, the right to do things which without such license would be a nuisance and for which an action would lie, he is said to have acquired an easement in the land to commit the nuisance, free from liability for the consequences. Such is very often the case with mining and other noisome and offensive trades.1 But before an easement of this character can be acquired, the trade to be carried on must be conducted in a lawful manner, and likely to be productive of benefit to the public, and a nuisance, which has become legalized in this manner, must be kept strictly within the conditions upon which the right was acquired. The licensee will not be permitted to increase the nuisance, or to establish a new one in its place, and the right must be exercised with the least possible discomfort or annoyance to the owners of the adjoining lands.2

subject to the water easement. Broder v. Natoma Water Co., 101 U. S. 274; Jacob v. Lorenz, 98 Cal. 332; Jacob v. Day, 111 C 1. 571; Barnes v. Sabron, 10 Nev. 217; 20 Am. & Eng. Enc. Law (2d Ed.), 760 et sub.

1 Tiedeman R. P. 622, and cases. For damage from deposit of refuse of quartz mill upon adjoining land, see Montana Co. v. Gehring, 75 Fed. Rep. 384

St. Helens Smelting Company v. Tipping, 11 H. L. Cas. 642; Dana v. Valentine, 5 Metc. 8; Atwater v. Bodfish, 11 Gray, 152; Holeman v. Boiling Sp. Co., 14 N. J. Eq. 346; Aldred's Case, 9 Rep. 59a; Cole v. Barlow, 4 C. & B. (N. s.) 434; Baxendale v. McMurray, L. R. 2 Ch. 790; Elliotson v. Feetham, 2 Bing. N. C. 134: Bower v. Hill, Ib. 339.

CHAPTER XV.

PROPERTY IN WATER AND WATER COURSES.

SECTION 228. Common law inapplicable.

229. Right based on prior appropriation.

230. What will constitute an appropriation.

231. Limitation on the right.

232. Right to running water.
233. How the right is acquired.

234. How the right is perfected.

235. How the right is lost.

236, Fouling water with refuse matter.

237. Right to divert water.

238. Sale and transfer of water right.

239. Subterranean streams - No easement in.
240. As to percolations.

241. Artificial water-courses.

§ 228. Common law inapplicable. The doctrine of the common law, declaratory of the rights of riparian proprietors respecting the use of running water, applies only to a limited extent to the necessities of the miners of the Western States and Territories, and would be entirely inadequate to their protection. By the common law the riparian owner on a non-navigable stream took the land to the middle thread of the stream, and had the right to use the water flowing over the land as an incident to his estate.2 All the owners on the same stream had an equality of right to the use of the water, as it naturally flowed in quality, and without diminution, except for

1 Atchison v. Peterson (a leading case), 20 Wall. 507; B. & W. L. C., p. 730; Irwin v. Phillipps, 5 Cal. 140.

23 Kent's Com. 439 (side paging); Tyler v. Wilkinson, 4 Mason, 397; Wright v. Howard, 1 En. Ch. Rep. 190; Bl. Com. Bk. 2, p. 17; Westen v. Alden, 8 Mass. 136; Norton v. Valentine, 14 Vt. 239; Arnold v. Foot, 12 Wend. 330; Clinton v. Myers, 46 N. Y. 511; 7 Am. Rep. 375.

a reasonable use and one owner could not divert the water from the owner next below him or retard it in its flow to the injury of the owner above him.1 No property could be acquired in the water itself, any more than in the air, but simply a right to its use. No proprietor had the right to use the water to the prejudice of any other proprietor, either above or below him, unless he had acquired a prior right to possess it by an adverse use for the statutory period,2 or a title to some exclusive enjoyment; but when the water left his estate, unless he had the consent of the other proprietors to divert or diminish the quantity of water, he was compelled to return it to its ordinary channel.3

1 Ante, idem. "The doctrine of riparian rights does not prevail in Nevada." Walsh v. Wallace, 67 Pac. Rep. 914. (Nev. 1902).

Prescott v. Phillipps, cited in Bealey v. Shaw, 6 East, 213; Mason v. Hill, 5 B. & Adol. 25; 2 Nev. & M. 747; Angell on Water-courses, 210223; Whetstone v. Bowser, 29 Pa. St. 59; 45 Id. 521; Ogburn v. Conner, 46 Cal. 346; Collier on Mines, 69; Saunders v. Newman, 1 B. & A. 258; Williams v. Moreland, 2 B. & Cr. 910; Bainbridge on Mines, p. 84; Gale Easements, 140; Blanchard & Weeks Ld. Cases, p. 720 et sub.

3 3 Kent's Com., side page 439 and cases cited. "A stream is parcel of the land through which it flows, inseparably annexed to the soil, and the use of it as an incident to the soil passes to the patentee." Union M. & M. Co. v. Ferris, 2 Saw. C. C. 176; M. M. D. 404. "A prior appropriator of water in a river acquires no right to the corpus of the water until such appropriator has conducted it into his canal for use." Salt Lake City v. Salt Lake City Water & Electrical Power Co., 67 Pac. Rep. 672. (Utah, 1902). The Government statute is as follows: § 2339. "Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customas, laws and the 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 purposes herein specified, is acknowledged and confirmed; but whenever any person in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or