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ters, and the soils under them, were not granted by the constitution to the United States, but were reserved to the states respectively; secondly, the new states have the same rights, sovereignty, and jurisdiction over this subject as the original states; thirdly, the right of the United States to the public lands, and the power of congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the land in controversy in this case.”

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§ 32. Power of government to annex conditions

to grants. Over the public domain within a state, and the innavigable streams and lakes situated thereon, the United States has therefore only the rights of a proprietor. Undoubtedly, as held in the case of Union Mill & Min. Co. v. Ferris,' by virtue of its proprietorship, the United States has a perfect title to the public domain, and an absolute and unqualified right of disposal; and neither a state nor a territorial legislature can modify or affect, in any manner, the right of the federal government to the primary disposal of the public land. Also an innavigable stream or lake, lying within the public domain, is a part and parcel of the land itself, inseparably annexed to the soil, and the use of it is an incident to the soil, and as such passes to the patentee of the soil from the United States. As the federal government, in conveying any particular portion of its public domain within a state to a particular grantee, may as proprietor annex any conditions to the conveyance, so that the title will be taken and held subject thereto, so it may, by congressional leg. islation, adopt any general regulations imposing any conditions or limitations upon the use of the public domain by all persons, or upon all persons who acquire title to portions of the public domain from the government, and the titles so acquired will be

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12 Sawy. 176, before Sawyer and Hillyer, JJ.

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held by the grantees thereof subject to such conditions and limitations. Thus, congress may provide, by general statute, for a right of way over the public lands unsold, for the ditches and canals of those who have made a prior appropriation of water, and that all grantees who subsequently acquire portions of this land shall take and hold their titles subject to such existing rights of way; or that all grantees of the public lands bordering upon a stream shall take and hold their titles subject to any previously existing appropriation of its water; or that all grantees of the public lands shall take their titles subject to the local customs or laws of the state within which the lands are situated, concerning the uses of water for mining, irrigating, agriculture, and other purposes. Congress has, in fact, adopted such legislation, prescribing rules concerning the disposition of public lands, and imposing conditions or limitations upon the titles obtained by purchasers. By one section of the act of 1966, already mentioned, it is enacted:' “As a condition of sale, in the absence of necessary legislation by congress, the local legislature of any state or territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent." The patent here spoken of is clearly that issued by the United States to the purchasers and other grantees of the public domain, and such grantees take their titles subject easements and other similar rights held by other persons under the customs and laws of the state. This power of the United States to impose conditions and limitations upon the use of the lands within a state, which were originally public, is confined to their primary disposal to its immediate grantees. If, therefore, the public land bordering upon a stream, and situate

field G. M. Co., 9 Sawy. 441, s. C. 18 Fed. Rep. 801.

* Rev. St. U. S. § 2338. 2 See the observations of Sawyer, J., in Woodruff v. North Bloom

LAW W. R. -4


within a state, should all be conveyed to private persons, free from any conditions or limitations, congress would have no power to control such persons in the use of their lands or in the use of the stream upon which their lands border. The power to legislate and to prescribe rules under these circumstances belongs exclusively to the state, as a part of its supreme municipal authority over persons and property within its jurisdiction.



$ 33.

Converse of doctrine of appropriation. It has already been shown that the prior appropriation of water wholly upon the public lands of the United States is good against subsequent grantees or patentees of tracts upon the same stream or lake deriving their titles from the federal government." It follows, by necessary implication from this statute, as well as on general principle, that if a person has acquired title froin the United States to a tract bordering upon a stream or lake lying within the public domain, before an appropriation has been made of its waters, any subsequent appropriation of its waters, made by another person, in pursuance of the local customs or laws recognized by the legislation of the state and of congress, must be subject to such prior title, and to the riparian rights belonging to the holder thereof.? [And it is held that a rightful occupant of public land can acquire a water right which will become appurtenant thereto, although the land was unsurveyed, and he had no legal title, when the right was acquired. So also, one who acquires his right to a water ditch and water right through public land, under the act of congress of 1866,

1 See ante, SS 25-28; Act Cong. July 9, 1870.

2 Union Mill & M. Co. v. Ferris, 2 Sawy. 176; Union Mill & M. Co. v. Dangberg, id. 450; Vansickle v.

Haines, 7 Nev. 249; and see Crandall v. Woods, 8 Cal. 136; Leigh Co. v. Independent Ditch Co., Id. 323.

Ely v. Ferguson, 91 Cal. 187, 27 Pac. Rep. 587.


but after the grant of a right of way to a railroad company, takes subject to the prior right of the railroad and cannot recover the damages that may be necessarily occasioned to him by its entry on its right of way.']

$ 34.

When title from United States is perfected. When does a person thus acquire a title from the United States, within the meaning of this rule, so that any subsequent appropriation of water shall be subject thereto? The legislation of congress provides for various modes of acquiring title to public lands by different classes of persons, -by ordinary actual purchasers, by pre-emptors, by homestead settlers, and the like. In all these instances the claimant is required to do certain preliminary acts,-to file a declaration or notice, to make a location, to pay the purchase price, and the like; and after all these acts have been duly performed by him, including the payment of the price, if necessary, he is entitled to receive a patent from the government, which is executed and delivered to him by the proper officer, usually after some lapse of time. In all cases these steps must be taken in respect to land which has been surveyed by the government, or else the whole proceeding is nugatory. Wherever a patent is required by the legislation, no legal title passes to and vests in the purchaser, occupant, or other grantee until the patent is executed and delivered; the patent alone is the final conveyance of the legal estate. If, however, the settler, pre-emptor, or purchaser has duly complied with all the requirements of the statute, including, if necessary, the pay. ment of the purchase price, so that nothing is left to be done by him in order to entitle him to a patent, he certainly acquires an equitable estate in the tract of land, -an equitable estate which the courts will and do protect. When a person has thus

1 Bybee v. Oregon & C. R. Co.,139 U. S. 663, 11 Sup. Ct. Rep. 641.

done all that he is required to do, and all that he can do to perfect his title, and must await the convenience or leisure of the proper governmental official in obtaining the conveyance which clothes him with a complete legal estate, it would be in the highest degree unjust and inequitable if his rights, as a prior purchaser or grantee from the government, could be postponed, or endangered, or in any way prejudiced or affected, by a delay in the actual execution and delivery of the patent to him.


$ 35. When patentee's riparian rights vest.

We thus reach a conclusion which is in accordance with the plainest principles of equity, that the rights of a prior purchaser or grantee of public land from the government, as against any subsequent appropriator of water, become vested and perfect, at least from the time when he has duly performed all the statutory requirements, including, if necessary, the payment of the purchase price, which entitle him to a patent or other final conveyance or evidence of his legal title, and not merely from the time when he actually receives his patent or other final convey

Whether his rights are not even more extensive; whether, after he has duly performed all the statutory requirements, and has perfected his title by obtaining a patent, his rights as a prior grantee, purchaser, or owner do not relate back to the date of the first or initiative act in the whole continuous proceeding, is another question which will be separately examined.


§ 36. Review of the authorities on this point.

The above proposition, that the prior rights of the grantee, purchaser, or private owner under the government are at least vested and complete, as against any subsequent appropriator of water, by the due performance of all the preliminary steps, including payment, which entitle him to a patent, and do not originate solely from the patent nor attach only from the date

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