CHAPTER VIII.

$529. Scope of the chapter.

EASEMENTS.

§ 530. Rights of way for ditches and canals-Highways.

§ 531. Location subject only to pre-existing easements.

2 529. Scope of the chapter.-It is not our present purpose to deal with that class of easements and privileges which are created by the acts of individuals, nor with those which are necessarily appurtenant to all land acquired and held in private ownership. The scope of this chapter is limited to a consideration of those burdens which the government permits to be imposed upon its public lands, and subject to which it subsequently conveys its title.

530. Rights of way for ditches and canals—Highways. During the early period of mining in the west, a system was established by common consent, enabling the miner, in connection with his located mining claim, to exercise certain privileges with respect to the means of working it. Water was essential; therefore, the right to appropriate it, divert it from its natural channel, and conduct it over the public lands by means of flumes and ditches to the place of intended use, became fully recognized and established.

The government was not consulted in this matter, but it passively recognized these rights, as it did the larger privilege of extracting gold from the public mineral lands,1 and by section nine of the act of July 26, 1866,

1 Ante, § 45.

gave legislative sanction to the exercise of these asserted rights. The section is as follows:

"That whenever, by priority of possession, rights to "the use of water for mining, agricultural, or manu"facturing, or other purposes, have vested and accrued, " and the same are recognized and acknowledged by the "local customs, laws, and the decisions of courts, the 66 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 aforesaid is hereby acknowledged and "confirmed; provided, however, that whenever, after "the passage of this act, any person or persons shall, "in the construction of any ditch or canal, injure or "damage 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 damage."1

66

This section was substantially re-enacted in the Revised Statutes. There are some verbal changes, but none affecting its substance or meaning.2

3

It has been contended, that this act only undertook to confirm and protect rights vested prior to its passage, and that it did not necessarily sanction the future acquisition of such privileges. The opinion of the supreme court of the United States in Broder v. Natoma Water Company would appear to support this contention, but as was said by the supreme court of California, in construing this opinion, the question was not before the court. The ditch there involved was completed in 1853, and therefore was clearly within the confirmatory clauses of the act.

For acts of congress providing for rights of way for canals, ditches, oil pipe-lines, and reservoirs, and regulations thereunder, see 27 L. D. 200. Jennison v. Kirk, 98 U. S. 453, 456.

101 U. S. 274.

Jacob v. Lorenz, 98 Cal. 332, 336, 33 Pac. 119.

The supreme court of Nevada in construing the section in question, after referring to its "turbid style," and "grammatical solecisms," says:

"In its adoption there appear to have been three dis"tinct objects in view :

"First-The confirmation of all existing water " rights;

"Second-To grant the right of way over the public "land to persons desiring to construct flumes or canals "for mining or manufacturing purposes;

"Third-To authorize the recovery of damages by "settlers on such land, against persons constructing "such ditches or canals, for injuries occasioned "thereby."

The court adds:

"That this section, granting rights of way over the "public land to all who may desire to construct ditches "or canals for mining or agricultural purposes, is "about as clear and certain as the objects and purposes "of the acts of congress usually are."

The supreme court of California coincides with the views of the supreme court of Nevada as to the scope and intent of the act under consideration.2

We have no intention of entering into a discussion of water rights generally, the manner of appropriating them, the purposes for which they may be acquired, or relative rights between such appropriators and riparian proprietors. As water may be the subject of appropriation under certain conditions for many useful purposes, other than as an adjunct to mining operations, and as there is nothing in the manner of perfecting such appropriation peculiar to this particular class of

1 Hobart v. Ford, 6 Nev. 77. See, also, Barnes v. Sabron, 10 Nev. 217. Jacob v. Lorenz, 98 Cal. 332, 336, 33 Pac. 119; Lorenz v. Waldron, 96 Cal. 243, 31 Pac. 54; Jacob v. Day, 111 Cal. 571, 44 Pac. 243.

ventures, we shall not undertake to deal with it to any serious extent in this treatise.1 The law of waters is too broad in its scope to permit its treatment in a collateral way. All that we expect to demonstrate in reference to it is, that mining locations made upon the public lands must be made subject to any easements theretofore lawfully acquired and subsisting, and held for the purposes of conducting water over them. That this is the settled law there can be no doubt.2

This is but the reannouncement of the early doctrine, that the miner who selects a piece of ground to work must take it as he finds it, subject to prior rights which have an equal equity, on account of an equal recognition from the sovereign power.3

As to highways, section twenty-four hundred and seventy-seven of the Revised Statutes grants the right of way for the construction of highways over public lands not reserved for public uses. A mining location made subsequent to the laying out of a public road crossing it would be subject to the public easement. This is a general principle applicable to all lands acquired from the government.5

2531. Location subject only to pre-existing easements. The right of the United States to grant easements and other limited rights on any portion of its public domain cannot be gainsaid, and subsequent pur

'Jacob v. Day, 111 Cal. 571, 44 Pac. 243; Rockwell v. Graham, 9 Colo. 36, 10 Pac. 284; Welch v. Garrett (Idaho), 51 Pac. 405.

Irwin v. Phillips, 5 Cal. 140, 63 Am. Dec. 113; Logan v. Driscoll, 19 Cal. 623, 81 Am. Dec. 90; Stone v. Bumpus, 46 Cal. 218; Maffet v. Quine, 93 Fed. 347.

Murray v. City of Butte, 7 Mont. 61, 14 Pac. 656.

McRose v. Bottyer, 81 Cal. 122, 22 Pac. 393; Bequette v. Patterson, 104 Cal. 284, 37 Pac. 917; Schwerdtle v. Placer County, 108 Cal. 591, 41 Pac. 448; Smith v. Hawkins, 110 Cal. 125, 42 Pac. 453.

chasers must take it burdened with such easements or other rights.1

"But when it has once disposed of its entire estate in "the lands to one party, it can afterwards no more "burden it with other rights than any other proprietor "of lands.'' 2

The same doctrine applies to perfected mining locations. After such location has once been completed, the estate of its owner cannot be subjected to burdens, except for some public use; or if sanctioned by the state constitution, perhaps, for a private use, upon condemnation proceedings.*

This phase of the subject has been discussed by us in a preceding portion of this work," and it is unnecessary to here repeat what was there said.

As to other privileges which may be said to be incident to the ownership of mines and mining claims, we shall consider them when discussing the nature of the title acquired and rights conferred by location. This will include the cross-lode question and the privileges granted, if any, to a junior cross-lode locator."

'Amador-Medean G. M. Co. v. S. Spring Hill M. Co., 13 Saw. 523, 36 Fed. 668; Welch v. Garret (Idaho), 51 Pac. 405.

'Woodruff v. North Bloomfield Gravel M. Co., 9 Saw. 441, 18 Fed. 753. See, also, Dower v. Richards, 73 Cal. 477, 15 Pac. 105; Amador Queen M. Co. v. Dewitt, 73 Cal. 482, 15 Pac. 74.

St. Louis M. and M. Co. v. Montana M. Co., 113 Fed. 900.

People v. Dist. Court, 11 Colo. 147, 17 Pac. 298; Robertson v. Smith, 1 Mont. 410; Noteware v. Sterns, Id. 311.