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II. APPROPRIATION AS AGAINST THE SUBSEQUENT GRANTEE OF

THE GOVERNMENT.

§ 25. Title of subsequent grantee is subject to

prior appropriation. Where a stream or lake was throughout its entire extent on the public land, the prior appropriator obtained a right, we have seen, good against all the world except the federal government. The government might have denied this right and treated it as non-existing. On the contrary, congress formally acknowledged it, and by the declaratory statute of 1866 made the national ownership of the public domain bordering on the stream or lake subject to the claims and uses of the prior appropriator. Wherever the title of the United States to any portion of the public domain was thus burdened, the same burden would, on general principles, accompany the title if transferred to any subsequent or private owner; whoever succeeded to the title of the United States, through any mode of acquisition or conveyance, would acquire and hold it subject to the same servitude which before existed in favor of the prior appropriator. This consequence would naturally follow from the operation of well-settled principles, independently of any express enactment; but it has not been thus left as a matter of inference. By an act of July 9, 1870, amending the statute of 1866, congress has provided “that all patents granted, or pre-emptions or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this is amendatory;" i. e., act of July 26, 1866.

§ 26. California decisions on this point.

In the recent case of Osgood v. El Dorado Water Co.,' it appeared that the plaintiff, Osgood, first went upon a certain tract of public land bordering on a stream, in 1863, and had resided there ever since. The land at the time was unsurveyed. The land was surveyed by the government surveyor in 1865. The plaintiff filed his declaratory stateinent as a pre-emptor in June, 1868; in June, 1870, he had completed his payments; and on October 25, 1871, he received his patent from the United States. In March, 1867, the predecessors of the defendant had posted a notice of their appropriation of the waters of the same stream which ran through the plaintiff's tract. From that date they had been engaged in constructing a ditch or canal, and were in active prosecution of the work at the time plaintiff obtained his patent, although they did not finally complete it until some time after that date. The action was brought to restrain the defendant from diverting the water, based upon the plaintiff's asserted rights as a riparian owner. The court held that the plaintiff's rights accrued only from the date of his patent, and did not relate back to the time of his first settlement, or of his filing a declaration of pre-emption. The defendant was thus in the position of a prior appropriator. In determining the rights of such an appropriator against a subsequent grantee from the United States, the court entered into no discussion of the question upon principle. It rested the decision wholly upon the statute of congress. Mr. Justice Ross said: “The principle of prior appropriation of water on the public lands in California, where its artificial use for agricultural, mining, and other like purposes is absolutely essential, which has all along been recognized and sanctioned

156 Cal. 571, (1880.)

9 In support of this conclusion the following cases were cited: Megerle v. Ashe, 33 Cal. 74; Dan.

els v. Lansdale, 43 Cal. 41; Smithu v. Athern, 34 Cal. 507; Lansdaler. Daniels, 100 U. S. 118.

by the local customs, laws, and decisions, was thus expressly recognized and sanctioned by the supreme court of the United States, and also by the act of congress of 1866.” The same policy, he continues, led to the further act of 1870, previously quoted. “The defendant's grantors, therefore, had the right to appropriate the water in controversy, and, if they acquired a vested right therein prior to the issuance of the plaintiff's patent, the plaintiff's rights, by express statutory enactment, are subject to the rights of the defendant."

[This doctrine is now conclusively established upon the authorities. It is held that an appropriation of the use of water for mining or agricultural purposes, under established customs in the arid regions, and under the acts of congress, confers a vested right, and all subsequently acquired rights or titles are subject thereto. And it is said that "whoever purchases land from the United States or this state, after the whole or some part of the water of a natural water-course running through such land has been appropriated by some one else under the act of congress of July 26, 1866, or under the provisions of title 8 of the Civil Code of this state, takes subject to the rights acquired by such prior appropriator." And when one obtains government land, he has a right to appropriate, for the purpose of irrigation and stock-raising, the waters of any stream flowing through government land which have not been previously appropriated by another, and in waters thus converted to his use he acquires a vested right which cannot be affected by those who purchase above or below him. And where an appropriator of water leads his ditch through the public lands, he, by the construction of his ditch and the appropriation and use of the water, acquires, as against a subsequent purchaser from the United States, as complete and perfect a right to maintain his ditch as though such easement had vested in him by grant.2 And such subsequent purchaser will not be permitted, by obstructions on his own land, to divert the water from the ditch of the prior appropriator.3 Where a person settles on unsurveyed public land, with the intention of acquiring title as soon as he can under the law, and appropriates water for its cultivation, such appropriation is effective from its date, though that may be several years before he succeeds in perfecting his title.“]

Lux v. Haggin, 69 Cal. 255, 4 Pac. Rep. 924; Lytle Creek Water Co. v. Perdew, 65 Cal. 447, 2 Pac. Rep. 732; Judkins v. Elliott, (Cal.) 12 Pac. Rep. 116; South Yuba Water Co. v. Rosa, 80 Cal. 333, 22 Pac. Rep. 222; Ramelli v. Irish, (Cal.)

31 Pac. Rep. 41; Barnes v. Sabron, 10 Nev. 217; Speake v. Hamilton, 21 Oreg. 3, 26 Pac. Rep. 855; Hill v. Lenormand, (Ariz.) 16 Pac. Rep. 266; Drake v. Earhart, (Idaho,) 23 Pac. Rep. 541; Kirk v. Bartholo. mew, (Idaho,) 29 Pac. Rep. 40.

$ 27. Views of United States supreme court.

In the case of Broder v. Natoma Water Co.,the supreme court seems to have held, or at least to have intimated by the course of its reasoning, that the subsequent grantee from the government would take subject to the rights of the prior appropriator, even in the absence of the express declaration contained in the act of 1870. A person had made a prior appropriation from the water of a stream running through a portion of the public domain included in a tract of the public land, which was afterwards, and before the statute of 1870, granted by congress to a railroad company. As between this appropriator and a subsequent purchaser from the railroad company of another parcel on the same stream, it was held that such purchaser took his title subject to the prior appropriation, because the congressional grant to the railroad company was expressly declared to be subject to all “lawful claims.” Although this provision in the grant to the railroad was similar in its import to the more comprehensive statute of 1870, yet the reasoning of the court is largely based upon the rights of the appropriator of water acquired through the operation of local customs, and recognized and protected by the earlier legislation of 1866. The established doctrine of the court was said to be that the "rights of miners who had taken possession of mines, and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged, and was bound to protect, before the passage of the act of 1866."

1 Kaler v. Campbell, 13 Oreg. 596, 11 Pac. Rep. 301.

2 Ware v. Walker, 70 Cal. 591, 12 Pac. Rep. 475.

3 Geddis v. Parrish, 1 Wash. St. 587, 21 Pac. Rep. 314.

4 Elliott v. Whitmore, (Utah) 24 Pac. Rep. 673. 6 101 U. S. 274.

$ 28. The act of 1870 is declaratory only.

Where a private person can thus acquire a right of property in the water of a public stream, or, if not an absolute right of property, at least a right in the nature of an easement or servitude to use the water, which is good against the United States, as proprietor of the remaining tract of land through which the stream flows, it would seem to follow, as a necessary result of the common-law doctrines concerning the devolution of title, that the same right would remain good and attached to the stream, as against any and all subsequent proprietors who may acquire title from and under the government to all or to any part of the public lands bordering upon, adjacent to, or situated near the same stream. In other words, it would seem that the statute of 1870 should be construed as simply declaratory of a familiar legal doctrine, and not as circumscribing or restricting such doctrine. If the language of such statute be fonnd to be too narrow or incomplete to afford, of itself, a sufficient

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