terpreted as a license to do whatever and however they wanted. This cause is fast disappearing, for the straightforward and public-spirited miner realizes that as a result of extensive settlement in or adjacent to the mineral and timber regions and the great conflict of interests, it is just as necessary to carefully administer and protect the estate of the Government as the estate of a private owner. He also realizes that the National Forest system tends to equalize opportunities and give the small miner and prospector a fair chance in competition with large companies or unprincipled operators, and to render incalculable benefit by protecting the timber and water for himself and others, and even his possessions from destruction by forest fires. The creation of the National Forests has benefited the mining industry in a way that has not been appreciated, by practically withdrawing the land from all entries save under the mineral laws. While homestead entries may be made within National Forests, they can only embrace land of a pronounced agricultural type, and in a general way very few are made, thus preserving practically the whole of the Forests for prospecting. On the other hand, public land outside of the National Forests is favorably subject to all kinds of entries, resulting in much ground suitable for prospecting being patented for agricultural and grazing purposes, even the miner's locations being occasionally filed upon and patented away from him. Considerable trouble along these lines has been experienced in certain localities, and there is some reason to believe that the mining industry would be benefited, though at the expense of other industries, by placing all the mineral land practicable within the National Forests. The purpose and intent of the Forest Service toward miners may be summarized by saying, that the Forest Service will be severe in cases of fraud and bad intention, but in cases of good faith and honest intention will be lenient, and while not overlooking the more essential requirements of the law, it will encourage and guide the miner toward a compliance with the law. This is seen in the case of where recommendations are made against granting patent to mining claims upon the point that the mineral character of the ground is not sufficiently established, through there being no mineral discoveries and the patent work not developing the ground of the claims; still the miner is encouraged to hold his claims by possessory right and keep on digging. The miner who finds himself at difference with the Forest Service in any way, should patiently, but firmly and insistently, take up the matter and thrash it out, knowing that the ultimate outcome will be in accordance with sound public policy and the rights of the great army of miners and prospectors as a whole. CHAPTER XXVIII Water Appropriation R. S., Sec. 2339. Whenever, by priority of possession, R. S., Sec. 2340. All patents granted, or pre-emption When the pioneer miners arrived in California, the only law on the use or possession of water that they knew was the common law or riparian right to the use of water. This law was in force in the older States and in England. It is based on the simple principle that the owners of the banks of a stream or body of water, are the sole owners of the right to use the water. This principle was found inapplicable to the new conditions; conditions requiring the use of water at points far distant and on lands nonadjacent to the streams from which the water was taken. This resulted in the development of the law of appropriation of water, the principle of which is that the first appropriator of water for a beneficial purpose has the prior right, without regard to riparian rights. Most of the water in the West has been used under the law of appropriation, and in over half of the Western States it is the only law under which a right to use water can be perfected. In the remaining Western States, the two laws-appropriation and riparian rights-are in force side by side. The history of water rights in the West is simply a phase of the development of the mineral-land laws. Under the common law of riparian rights, the owner of the land bordering on or containing a stream or body of water (as a lake) has a right to have the water flow past or through his land at all times in substantially the same quantity and quality as existed when he or others before him first obtained the land to which his riparian water rights are attached. At least, that the flow shall not be reduced in quantity to a point that will discommode him, subject, where the quantity is insufficient for the wants of all the various riparian owners along the stream, to having the supply apportioned among the riparian owners according to their holdings, and necessities. The owners of riparian rights do not own the water, but only the use of it. They may use the water for domestic purposes, for watering stock, or for irrigating their riparian land. Just what would be riparian land entitled to be irrigated as such, would be a question of fact for a jury; certainly land beyond a ridge and part of another watershed would not be riparian land. Riparian rights in water, where recognized, are attached to the land solely because it borders on or contains the stream or body of water. They are presumed to have been always attached, consequently they require no action or formality at law or any use or act to hold them. They are not subject to loss by abandonment or disuse, though the right to use the water to which the land is entitled may be disposed of separately from the land. Under the law of appropriation, riparian rights are entirely disregarded. The right to use water is appropriated by diverting it, usually from a natural stream on public land, or on private land by permission, for the purpose of putting it to a beneficial use. The claimant appropriates his water subject to all prior appropriations, which must be supplied first according to their actual needs up to the amount of their appropriations. Likewise his needs up to the amount of his appropriation, must be supplied before that of any subsequent appropriators. There is no apportioning of the water, the first appropriator has the first right and to the full amount he needs or is entitled to, and the other appropriators in the order of their respective appropriations. Later appropriations may be made of the surplus over what has been appropriated by prior claimants or of the surplus that is not used. Later comers may appropriate water above or below a prior appropriation, the water as discarded by the prior appropriator, or the water temporarily while it is not in use by him, but such use must not interfere with his use. The appropriator's right extends to the head of the stream and its branches to the extent that no later appropriation can be made or changes be effected, to his disadvantage. Preference is given to no appropriation for any particular use, except in some States, where during periods of drouth, domestic uses must be supplied first, irrigation next, and then the other needs. Appropriation is based on the intention to use water for a beneficial purpose, consequently the appropriator need not be the owner or user of land. Married women, minors, aliens, individuals, and companies may make appropriations. The rights of an appropriator begin where he takes his water from the natural stream and end where he returns it to a natural stream. He may change these points of diversion and discharge, provided he does not interfere with any rights obtained by others before he makes his change. Those who take the waste or discharge of an appropriator before it has reached a natural stream, have no right to object to the change in the place of discharge. The appropriator having diverted water from a natural stream, may make use of a watercourse or natural channel as an intermediate link in his ditch system required to get the water to the place of use. An appropriation of more than is used, does not give any right to the unused surplus. A surplus is always open to location and appropriation, consequently no sale of it can be made under usual conditions. The States that have adopted the dual system of the law of appropriation and the common law of riparian rights working side by side, a system known as the 'California system', are |