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protection to the claims of prior appropriators against subsequent owners, then the courts may fall back, if necessary, upon the broader principles of the common law. In this connection, it will be important to determine who are grantees or owners acquiring title from and under the United States. While the statute should be liberally construed in favor of the prior appropriators, it should also be fairly and equitably interpreted in ascertaining who are the grantees and owners holding title to the public domain under the government. The discussion of this question belongs, however, to a subsequent portion of our es

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§ 29. Public lands of the state.

The rules thus far considered are avowedly confined in their operation to the public lands of the United States. The first contemplates an appropriation from the water of a stream or lake while it lies wholly in the public domain, before any titles of tracts adjacent to it have been acquired by other persons. The second renders a prior appropriation, thus made, valid and ef

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1[At the same time it must be remembered that a grant of public land of the United States carries with it the common-law rights to an innavigable stream thereon, unless the waters are expressly or impliediy reserved by the terms of the patent, or of the statute granting the land, or unless they are reserved by the congressional legislation authorizing the patent or other muniment of title. To this point the supreme court of Cali. fornia speaks as follows: “And if the United States since the date of the admission of the state has been the owner of the innavigable streams on its lands, and of the

subjacent soils, grants of its lands must be held to carry with them the appropriate common-law use of the waters of the innavigable streams thereon, except where the flowing waters have been reservert from the grant. To hold otherwise would be to hold, not only that the lands of the United States are not taxable, and that the primary disposal of them is beyond state interference, but that the United States, as a riparian owner within the state, has other and dif. ferent rights than other riparian owners, including its own grantees.” Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 722.]

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sectual as against private persons who subsequently acquire, from the general government, titles to portions of the public land bordering on the same lake or stream. The question is at once presented whether the same rules apply to the public lands of the state, as well as to those of the United States. The United States has, through congressional legislation, donated to individual states-to California, for example-large tracts of the original public domain, under the name of “tide-water," "

"Swamp,” and "overflowed" lands. Over such lands the state has, of course, both the proprietary rights of an owner, and the governmental rights of a political sovereign; while over its public lands within the territory of a state the United States has only the rights of a proprietor. If a stream was wholly situated on such public lands of California, and an appropriation should be made of its waters for irrigating, agricultural, or manufacturing purposes, before any other private persons had acquired title to tracts bordering upon its banks, would this prior appropriation be valid against the state, and also against other riparian proprietors holding titles subsequently obtained from the state? This is an important question, but its disoussion will be more appropriate in connection with subsequent topics. It is enough now to say that the considerations which led to the adoption of the rules previously laid down concerning the public lands of the United States would seem to apply, with at least an equal force, to the lands owned by the state. The federal government, through its congress and its courts, has avowedly carried out a policy which was inaugurated by the legislative and judicial decisions of the state. As the doctrine of prior appropriation on the public lands of the United States originated from a policy recognized, favored, and promoted by state authority, and as similar needs exist and similar reasons apply in connection with the public lands of the state, it seems to be a natural, even if

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not an inevitable, consequence, that the same doctrine should be extended to those lands, as against the state itself and its subsequent grantees."

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III. THE RIGHT RESTRICTED TO THE PUBLIC DOMAIN.

$ 30. Appropriation confined to public lands.

Whatever rules may be adopted by the statutes or the decisions of a particular state, with reference to the rights of riparian proprietors who have acquired titles to all the lands on the borders of a stream, before any appropriation of its waters had been made while these were public lands,-even though the state might by its statutes or decisions expressly extend the same doctrines to all such proprietors,—still the two doctrines, heretofore described as originating from the local customs of miners

[The position taken in the text sons, both mere occupants of land is strongly supported by a very im- or water on the state lands, the portant decision lately rendered by courts have determined controverthe supreme court of California. sies. The implied permission by lo Lux v. Haggin, 69 Cal. 255, 10 the general government to private Pac. Rep. 775, it is said: “The citi. persons to enter upon its lands zens of the stete have never been has been assumed to have been prohibited from entering upon the given by the state with reference public lands of the state. The to the lands of the state; and the courts have always recognized a state, for the maintenance of right in the prior possessor of peace and good order, bas prolands of tbe state as against those tected the citizen in the acquisi. subsequently intruding upon such tion and enjoyment on its lands possession. The same principle of certain property rights ob. would protect a prior appropriator tained through possession, -- perof water against a subsequent ap- baps the mode by which all proppropriator, from the same stream. erty was originally acquired.

In It is not important here to inquire view of these facts. we feel justiwhether, as against a subsequent fied in saying that it was the legis. appropriation of water, a prior ap. lative intent to exclude as well the propriator of land, through which state as the United States from the the stream may run, would bave protection which is extended to the better right. It is enough to riparian proprietors by section say that, as between two per: 1422 of the Civil Code."]

and sanctioned by the legislation of the state and of congress, are confined in their operation to the public domain of the United States. All extension of these doctrines to other lands and other proprietors, and all additional rules, must necessarily proceed from the states themselves. [It is accordingly held that the federal statute, heretofore referred to, applies only to government lands, and does not give the right to appropriate water on lands already beld in private ownership. And in favor of one's claim of right in the waters of a stream by appropriation there is no presumption that, at the time of the appropriation, the lands were public lands. ]

$ 31. Jurisdiction of state and United States dis

tinguished.

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It should be observed, in this connection, that the United States government has no power whatever to prescribe for its grantees any general rules of law concerning the use of their lands, or of the lakes and streams to which they are adjacent, binding upon its grantees of portions of the public domain situated within a state, and becoming operative after they have acquired their titles from the federal government. The power to prescribe such rules, forming a part of the law concerning real property, belongs exclusively to the jurisdiction of the states. Over its public lands situate within a state, the United States has only the rights of a proprietor, and not the legislative and governmental rights of a political sovereign. Even with respect to the navigable streams within a state, the powers of the federal government are limited, and a fortiori that is so with respect to streams which are innavigable. In the great case of Pollard's Lessee v. Hagan,” the authority of the United States over its

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1 Curtis v. La Grande Water Co., 20 Oreg. 34, 23 Pac. Rep. 808.

2 City of Santa Cruz v. Enright, 95 Cal. 105, 30 Pac. Rep. 197.

33 Llow. 223.

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public lands within a state was thus defined by the supreme court: “When Alabama was admitted into the Union, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the date of the cession, except so far as this right was diminished by the public lands remaining in the possession and under the control of the United States. Nothing remained in the United States, according to the terms of the agreement, but the public lands. And, if an express stipulation had been inserted in the agreement granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative, because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain within the limits of a state, except in cases in which it is expressly granted.

In the case of Martin v. Wad. dell,' the present chief justice, in delivering the opinion of the court, said: "When the revolution took place, the people of cach state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution.' To Alabama, then, belong the navigable waters, and soils under them, in controversy in this case, subject to the rights surrendered by the constitution to the United States.” Recognizing the power of the United States over such navigable streams for the purpose of regulating commerce, the court adds: “The right of eminent domain over the shores and the soils under the navigable waters, belongs exclusively to the states within their respective territorial jurisdictions, and they, and they only, have the constitutional power to exercise it.

Summing up its conclusions, the court said: "First, the shores of navigable wa

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116 Pet. 410.

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