may be hereafter laid out across any such location; Provided, always, That such right of way shall not be exercised against any location duly made and recorded, and not abandoned prior to the establishment of the ditch, flume, tramway or pack trail, without consent of the owner, except by condemnation, as in case of land taken for public highways. Parol consent to the location of any such easement accompanied by the completion of the same over the claim shall be sufficient without writings; And Provided further, That such ditch or flume shall be so constructed that the water from such ditch or flume shall not injure vested rights by flooding or otherwise.-Feb. 13, 1874. Besides the Act of 1886, above printed, Congress allows right of way to ditches, tramways, reservoirs and power lines over the public lands by Act of 1895 and its amendment.-28 St. L. 635; 29 Id. 120; 30 Id. 404. The Right of the Miner to Divert Water from its natural stream, in opposition to the common law, has been not only granted under the above Act of 1866, but the doctrine of appropriation has now become universally conceded in all the mining and arid states of the Pacific and Rocky Mountain slopes. Atchison v. Peterson, 1 M. R. 583; 20 Wall. 507; Jennison v. Kirk, 4 M. R. 504; 98 U. S. 453. The party who first appropriates the water for mining, irrigation or other beneficial use, obtains the right to use it both as against those who later attempt to tap the stream above, or who need it in the stream below. Neither agricultural nor mining uses have any class priority one over the other. first in time is the first in right. A homestead or other entry is subject to the rights of a prior appropriation of water.-South Yuba Co. v. Rosa, 22 Pac. 222; Tynon v. Despain, 22 Colo. 240. The A Ditch is an Easement Over the Land which it crosses. Quinlan v. Noble, 75 Cal. 250. A party can not locate a ditch in such a manner as to prevent the practical mining by hydraulic power, or otherwise, of claims which it crosses; nor so as to cut off the water used by the hydraulic. When ditch crosses ditch, the later claimant must adjust the crossings so as not to interfere with the full use of the prior ditch. Jennison v. Kirk, supra. Appropriation by Placer Location. It has been held that a placer location is of itself an appropriation of all the water flowing across it to the extent needed for working it.— Schwab v. Beam, 86 Fed. 41. This is an extreme holding and seems to us an indefensible position. The Change of Locality where the water is used does not forfeit the right.—Maeris v. Bicknell, 7 Cal. 262; 1 M. R. 601. The owner may change either the point of diversion or the place of use.-Strickler v. Colorado Springs, 26 Pac. 314. If he has prior right to the water he may take it by a new and different ditch.-Jacob v. Lorenz, 33 Pac. 120; Greer v. Heiser, 16 Colo. 306. Intervening Rights. But he can not change the point of diversion or the line of his ditch to the injury of those who have in the mean time acquired rights.-Last Chance Co. v. Bunker Hill Co., 17 M. R. 449; 49 Fed. 430; Handy Ditch Co. v. Louden Co. 27 Colo. 515; Fuller v. Swan River Co. 16 M. R. 258; 12 Colo. 12. The only case which disregards the rights of intervening appropriators seems to be Davis v. Gale, 4 M. R. 604; 32 Cal. 26. A Party May Use the Bed of a Natural Stream as his means of conducting water added to it by a ditch, without being considered as abandoning the water by mingling it with the original waters of the stream.-Butte Co. v. Vaughn, 11 Colo. 143; 4 M. R. 552; Oppenlander v. Left Hand Co. 18 Colo. 142. Location of Ditch Right. At the point where water is taken from the stream, post notice as follows: DITCH NOTICE. MIDLAND DITCH.-I claim 50 inches of the water of this stream, to be taken by ditch from this point to claims Wightman's Gulch, in Summit Mining District, Rio Grande County, for mining purposes. on January 17, 1905. ALEXANDER G. COCHRAN. The posting of this notice where local statutes require no further filings, would, when accompanied by collateral acts showing intention to follow up, give a reasonable time to begin the ditch.-Dyke v. Caldwell, 18 Pac. 276. The ditch should be staked and work commenced and prosecuted with reasonable diligence. If the notice be not followed up within a reasonable time by actual work in carrying out the intended appropriation, it amounts to absolutely nothing. Unless required by district rule or statute the existence of a record could not be insisted on as a condition of title, where the ditch is actually constructed and continuously used. But record is customary, always advisable, and when made becomes the initial point in the chain of recorded title. In Colorado, by Act of 1903 p. 289 duplicate maps and statements are required to be filed with the State Engineer within sixty days after the commencement of actual construction, or the beginning of the survey of the ditch. After approval the State Engineer certifies the duplicate map and statement, returning it to the claimant who must file it within ninety days from the time stated as the date of commencement, with the Recorder of the county in which the headgate is located. DITCH STATEMENT. KNOW ALL MEN BY THESE PRESENTS, That I, Alexander G. Cochran, of St. Louis, in the State of Missouri, do hereby declare and publish as a legal notice to all the world that I have a valid right to the occupation and possession of that certain tract or parcel of land lying in Summit Mining District, in the County of Rio Grande, State of Colorado, for ditch and mining purposes, and more particularly described in the map hereto attached. That I have located the MIDLAND DITCH, and do hereby make and file, in compliance with the laws of the State of Colorado, this statement in duplicate, and that the accompanying map, which shows the location of said ditch, forms a part of this filing and is hereby made a part thereof. First. The headgate is located at a point on the south bank of the Alamosa river, from which it derives its supply of water, whence the N. E. corner of Section No. 31, Township 37, Range 4 East of the New Mexico Principa! Meridian, bears N. 45° E. 600 feet. Second. Said ditch is four feet deep, five feet wide at the top and four feet wide at the bottom; the grade is ten feet per 1,000 feet and the length is 21⁄2 miles. Third. The carrying capacity of said ditch is 150 cubic feet per second of time. Fourth. Work was commenced on said ditch on the 5th day of August, 1905. (Claimant may take either date of survey or date of actual construction begun for this paragraph.) Fifth. The estimated cost of ditch is $3,000. STATE OF COLORADO, County of Fremont: ss. Alexander G. Cochran, being first duly sworn, deposes and says that he is the claimant of the within named ditch and water-right; that he has read the foregoing statement and has examined the accompanying map, and that the same are true to the best of his knowledge and belief. ALEXANDER G. COCHRAN. Subscribed and sworn to before me this 1st day of September, A. D. 1905. George W. Clelland, The map accompanying the above statement is required to be on white linen drawing paper, 24 by 36 inches in size, with a two inch margin on the left side, and should show the following: First. The location of the headgate by course and distance to a corner of the public survey, or if upon unsurveyed land, to some natural object, so that the same may be easily located. stream. Second. The general course and the name of the Third. The route of the ditch by course and disFourth. The legal 40 acre subdivisions and other patented lands. tance. Fifth. The ownership of all lands crossed by the ditch or canal. And should also contain the following: AFFIDAVIT OF SURVEYOR. STATE OF COLORADO, County of Fremont: ss. E. E. Chase, being duly sworn on oath, deposes and says that he is the engineer (or surveyor) of the MIDLAND DITCH; that the survey of the same and the map thereof was made by him (or that such map was made under his instructions), and that such survey is accurately represented upon this map; that he has read the statement thereon, and that the same is true of his own knowledge. E. E. CHASE, Engineer (or Surveyor). Subscribed and sworn to before me this 1st day of September, A. D. 1905. George W. Clelland, When it is impracticable to make a complete survey and maps within the sixty day period, temporary maps may be filed with the statements, to be supplemented by a detailed map when the survey is completed. When local statutes do not require other details or the filing of maps the above statement would be a valid location certificate of ditch rights, by incorporating into the statement a description of the course of the ditch, and omitting reference to the map. How Conveyed. 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; 43 Cal. 371; Bradley v. Harkness, 26 Cal. 69; 11 M. R. 389; Burnham v. Freeman, 11 Colo. 601; 3 M. A. S. § 427A. Appurtenance. Whether a deed of land conveys the ditches and water rights depends upon the intent of the grantor, and may be implied where the use is necessary to its beneficial enjoyment.-Arnett v. Linhart, 21 Colo. 188; Gelwicks v. Todd, 24 Colo. 494. The water right goes with the sale of a mill site.-N. A. Co. v. Adams, 104 Fed. 404. The ditch was held no appurtenance in Quirk v. Falk, 47 Cal. 453; 2 M. R. 19, and Ginocchio v. Amador Co. 67 Cal 493. It has become a rule of property in Montana that “a water right is appurtenant to the land upon which it is used."-Leggat v. Carroll, 76 Pac. 806. A patent does not divest ditch rights.-Dodge v. Mar |