dination to the rights of the prior appropriator, subsequent appropriators may use the channel and waters of the stream and mingle with it other waters, and divert it as often as they please.1

§ 232. Right to running water. - At common law, the riparian owners of a stream of running water held mutual easements, each upon the other's soil, for the free and unrestricted flow of the water. The riparian owner could use the water to a reasonable extent, but he could not divert the water, diminish the flow, corrupt the water or dam it up. At an early day the courts recognized the inadequacy of this doctrine to easements and rights pertaining to mining districts, and the right to prescribe rules suitable to govern in such cases, was

v. Laird, 15 Id. 180; Davis v. Gale, 32 Cal. 26; McKinney v. Smith, 21 Cal. 374; Union Water Co. v. Crary, 25 Cal. 504.

1 11 Cal. 162; 23 Id. 488, and Hill v. Smith, supra. “Anybody else may divert and use all the water, be it more or less, that a prior claim. ant is not in a present condition to use, and by lack of diligence, on his part, in pursuing and perfecting a prior inchoate right, may acquire rights even superior to his. (37 Cal. 314. See, also, Kimball v. Gear hart, 12 Cal. 27; Thompson v. Lee, 8 Cal. 275; 6 Cal. 105; McKinney v. Smith, 21 Cal. 374.) If A. erects a mill on a running stream, this shows an appropriation of the water for the mill; but if he suffers a portion of the water, or the body of it, after running the mill, to go down its accustomed course, we do not see why persons below may not as well appropriate this residuum as he could appropriate the first use.

(13 Cal. 38. See, also, Nevada Water Co. v. Powell, 34 Cal. 109; White v. Todd's Valley Water Co., 8 Cal. 443; Burnett v. Whitesides, 15 Cal. 35; Higgins v. Barker, 42 Cal. 233; Phoenix Water Co. v. Fletcher, 23 Cal. 481; Woolman v. Garringer, 1 Montana, 535.) But a claimant of water who has a right to divert it into his ditch may not, because the bed of the river has been raised by deposit from mines above, so raise his dam as to injure another." (Nevada Water Co. v. Powell, 34 Cal. 109. See Proctor v. Jennings, 6 Nevada, 83.) B. & W. L. C. 741 et sub.

2 Tiedeman on R. P., § 614.

3 Washburn v. Gilman, 64 Me. 163; Richmond Mfg. Co. v. Atl. DeLaine Co., 10 R. I. 106; Jacobs v. Allord, 42 Vt. 303.

delegated by the Federal government to the local legislatures of the mining districts. The object of the statute was to protect the rights and easements of private individuals pertaining to land which still belonged to the general government, and while a person could not, under the statute, acquire, by local rule or custom, the right to divert a stream of running water as against the lawful owner of the fee; 2 as to land that had yet been unpatented, the person who first appropriated the waters of a running stream to a beneficial purpose could hold the same against any subsequent claimant, either above or below, and was under no legal obligation to restore the water to its channel."

"The

1 R. S. U. S. 79, § 2338; Wade Am. Min. Laws, pp. 77-78. right to water must be treated in this State as a right running with the land and as a corporeal privilege bestowed upon the occupier or appropriator of the soil, and as such has none of the characteristics of mere personalty." Hill v. Newman, 5 Cal. 445; M. M. D. 401. "The right to the use of a water-course in the public mineral lands, and the right to divert and use the water taken therefrom, may be held, granted, abandoned or lost by the same means as a right of the same character issuing out of lands to which a private title exists. The right of the first appropriator may be lost by the adverse possession of another; and when such person has had the continued, uninterrupted and adverse enjoyment of the water, or of some certain portion of it, during the period limited by the statute of limitations for entry upon lands, the law will presume a grant of the right so held and enjoyed by him." Yankee Jim's U. W. Co. v. Crary, 25 Cal. 504; M. M. D. 402. 2 Wade Am. Min. Laws, 78-79; United States v. Hughes, 11 How. 568; Dias v. Tuller, 12 Vt. 190; Gibson v. Chouteau, 13 Wall. 92; Pope v. Kimmon, 54 Cal. 3.

8 Butte Canal Co. v. Vaughan, 11 Cal. 143; Atchison v. Peterson, 1 Mont. 561; Irwin v. Phillips, 5 Cal. 140 (a leading case, cited B. & W. L. C., p. 727). The U. S. Statute only confirms such easements as may have been acquired on unpatented land. Wade Am. Min. Laws, p. 80. But to vest a prior appropriator with the right to use and divert running water, the appropriation must be for a useful purpose and the appropriator be in actual as contradistinguished from the constructive possession of the right. Weaver v. Eureka Lake Co., 15 Cal. 271; Kelly v. Natoma Water Co., 6 Cal. 105; McKinney v. Smith, 21 Cal. 374.

3

§ 233. How the right is acquired. The right to use running water on land belonging to the government can only be acquired by appropriation or by purchase.1 By appropriation is meant the use or possession of the water for purposes that are necessary or beneficial to the claimant.2 No one can appropriate running water on the public land for purposes of speculation merely, and the water should be used on land occupied by the appropriator, and he can only claim as much as he can put to a reasonable use. Any appropriation of the surplus water would be equally good as against other subsequent claimants. Purchase is the transfer, for a consideration, by the appropriator, of his right to use the water. In some of the States the right to running water can only be transferred by deed, as real estate,5 but in the States where this rule obtains a defective transfer has the effect of an abandonment by the grantor, and a reappropriation by the grantee, provided there is a bona fide delivery of possession."

The right to use

§ 234. How the right is perfected. running water on public land may be established and preserved in any one of the three following ways: (1) By proof that the claimant exercised the right by virtue of

1 Wade's Am. Min. Laws, p. 82, § 54.

2 Atchison v. Peterson, 20 Wall. 507; s. c. B. & W. L. C. 730-738; Hill v. Smith, 27 Cal. 483.

3 Wade Am. Min. Laws, supra.

4 See definition of Title by Purchase. Tiedeman R. P., §§ 659-660. 5 This is the rule in Montana. Barkley ". Tieleke, 2 Mont. 59; Wade Am. Min. Laws, pp. 80-83. "Right to water appropriated may be transferred like other property. A ditch is real estate and is conveyed by deed. (Smith v. O'Hara, 1 M. R. 671; Bradley v. Harkness, 11 M. R. 389; Burnham v. Freeman, 11 Colo. 601; Colorado Act, 1893, p. 298.)" Mor. Min. Rts. (10 Ed.) 167.

6 Barkley v. Tieleke, supra. See Welch v. Garrett, 51 Pac. Rep. 405; New Co. v. Armstrong, 21 Colo. 357.

some local custom; (2) under authority given by the State legislature; (3) that his right has been recognized by some judicial decision. If a claimant has obtained his right by virtue of either a statutory enactment, a recognition by the courts, or under some local custom, it will be preserved inviolate by the courts; 2 but where there is a conflict between claimants of the right to running water, the one holding by virtue of some statutory enactment is held to have a better title than the one who holds under some local custom or by reason of a judicial recognition of his right.3 After the right to use running water is established, however, the appropriator can recover damages from one who subsequently appropriates the water of the same stream, if, in so doing, such appropriator infringes on his easement. But damages can seldom be recovered for a reasonable use of the water, for the injury would be so small, if any at all existed, that it would be regarded by the courts as damnum absque injuria.5

§ 235. How right is lost. The right to running water may be lost either by abandonment or divested by adverse possession under the statute of limitations. In order to

1 Blanchard & Weeks Ld. Cas., pp. 718-738; citing Basey v. Gallagher, 20 Wall. 670.

2 Wade Am. Min. Laws, pp. 83-84; Basey v. Gallagher, supra.

3 Basey v. Gallagher, supra; B. & W. L. C., supra; Thorp v. Freed, 1 Mont. 652; Wade's Am. Min. Laws, p. 84.

4 Blan. & Weeks Ld. Cas. 199; Sims v. Smith, 7 Cal. 148; Phoenix Water Co. v. Fletcher, 23 Cal. 481; Natoma Water Co. v. McCoy, 23 Id. 490; Wade Am. Min. Laws, p. 84; Elwell v. Crowther, 31 L. J. (N. 8.) Ch. 763; Hill v. Smith, 27 Cal. 476; B. & W. L. C. 641.

5 Blanchard & Weeks Ld. Cas., p. 200; Wixon v. Bear River & Auburn W. & M. Co., 24 Cal. 367; Esmond v. Chew, 15 Cal. 137; Wade Am. Min. Laws, p. 84.

6 Dougherty v. Creary, 30 Cal. 290; Barkley v. Tieleke, 2 Mont. 59; Morrison's Mining Digest, p. 3; Atchison v. Peterson, 1 Mont. 651; Wade Am. Min. Laws, p. 84.

constitute an abandonment there must be an actual intent to abandon the right before the claimant can be said to have lost his easement,1 and the mere fact that he allows the water to flow back into its natural channel, in the absence of such an intent, will not, of itself, operate as an abandonment.2 And abandonment can never operate to vest the title in another, and whenever it takes effect it can only have the force of destroying the title of the delinquent claimant.3 But although the title is not transferred by abandonment, it may be lost by estoppel, under the statute of limitations. In order for the title of the real owner to be barred by the statute, however, the possession by the adverse claimant must be continued and uninterrupted, and whether or not the title of the adverse claimant could be lost by abandonment, under the statute of limitations, depends upon the theory entertained by the trial court, regarding the effect of the statute upon the title of the adverse claimant.5

1 Bell v. Bed Rock Co., 36 Cal. 214; Butte Canal Co. v. Vaughan, 11 Cal. 143; B. & W. L. C. 736-738-743. Abandonment is always a question of fact. Karns v. Tanners, 66 Pa. St. 297; Weill v. Lucerne M. Co., 11 Nev. 200.

2 Butte Canal Co. v. Vaughan, supra; Jones v. Jackson, 9 Cal. 237. 2 Tiedeman R. P. 605-739. But when one's title has been lost by abandonment it cannot be afterwards revived to a grantee by means of a sale. Davis v. Gale, 32 Cal. 26.

4 Tiedeman on R. P., supra.

Ante, idem. "A water right, although real estate, may be abandoned. Barkley v. Tieleke, 2 Mont. 59. "The doctrine of abandonment only applies where there has been a mere naked possession without title. Where there is a title, to preserve it there need be no continuance of possession, and the abandonment of possession cannot affect the rights held by virtue of the title." Ferris v. Coover, 10 Cal. 589. M. M. D. 3. "If miners engaged in washing their mining claims with water, abandon the water and tailings which pass from their mining grounds, any other persons have a right to take and appropriate the same to their own use." Dougherty v. Creary, 30 Cal. 290; M. M. D. 3.