ditch or canal itself, used for conveying the water to a mine or elsewhere, is not a mere easement or incorporeal hereditament; it is land.' If, therefore, a ditch runs from a stream to a mining "claim," and belongs to the owner of the mine, who uses a portion of its water in working his mining claim, it does not follow that the ditch is an appurtenant of the mining claim. And if the owner of a mining claim purchases a water ditch, "and the water rights thereto appertaining," this purchase does not of itself constitute the ditch and water rights, appurtenances of the mining claim. The exclusive right to divert and use the water of a stream acquired by appropriation, as well as the ditch or other structure through which the diversion is effected, may be transferred and conveyed like other property or rights analogous to property. If a person having a possessory right to a parcel of land on a stream has erected a mill thereon, and has acquired a right to the water of the stream for his mill, a valid sale and conveyance of such real property transfers the water right also to the vendee." While a ditch or other similar structure for appropriating and diverting water may be sold, the sale and conveyance must be by a written instrument a deed-as in the case of other real estate. A mere verbal sale or transfer would be nugatory. A person who enters into possession of such a ditch, under a mere verbal sale to himself, does not succeed to any rights of priority held by the vendor, so as to obtain the benefit of the vendor's prior appropriation; he must date his own appropriation, as against all other opposing claimants, from the time when he enters into possession." In a very recent decision by the supreme court of Nevada, this same rule was declared in the most general form: "Where, in a contest concerning priority, a party claiming a right to water by appropriation fails to connect himself in interest with those who first appropriated and used the waters of a stream, his own appropriation of the water must be treated as the inception of his right;" or, in other words, his right of appropriation must be dated from the time when he himself began to use the waters; he can not link his own use on to that of the former occupants, and thus claim to be a successor to their prior rights. Their prior appropriation is virtually abandoned.12 10 Wherever ditches or other structures for diverting and appropriat Reed v. Spicer, 27 Cal. 61. 8 Quirk v. Falk, 47 Id. 453. McDonald v. Bear River etc. Co., 13 Id. 220. 1 Smith v. O'Hara, 43 Cal. 371; Lobdell v. Hall, 3 Nev. 507. 11 Smith v. O'Hara, supra. 12 Chiatovich v. Davis, 17 Nev. 133. This decision plainly formulates a general rule, of which that laid down in Smith v. O'Hara is a particular instance. ing water belong to two or more proprietors, such owners are, in the absence of special agreements to the contrary, tenants in common of the ditch and of the water rights connected therewith, and their proprietary rights are governed by the rules of law regulating tenancy in common. 13 Although the appropriator has no property in the water of the stream flowing in its natural channel above his point of diversion, yet he acquires a most important right over or with respect to such water. This general right over the stream, of the party who has perfected a prior appropriation, is that the water of the stream should continue to flow in its usual manner, through the natural channel or bed of the stream, down to the head of his ditch, or to the point where his own actual dominion over it commences, to the extent or amount of his appropriation, without diversion or material interruption." In a recent decision the court used the following language descriptive of this right: "The plaintiff's right to have the water flow in the river to the head of his ditch is an incorporeal hereditament appurtenant to his [artificial] watercourse [i. e, his ditch]. Granting that the plaintiff does not own the corpus of the water until it shall enter his ditch, yet the right to have it flow into the ditch appertains to the ditch." In another case a ditch, conveying water for purpose of sale to miners, took its water from a stream near its head in the mountains, and thence ran for a distance of twenty-four miles, the water flowing through its entire length. The title to the upper half of the ditch was vested in A., and that of the lower half in B. A. was held to be entitled to the exclusive use of the water from the stream at the head of the ditch.16 In Phoenix Water Co. v. Fletcher," it was held that the prior appropriator of a stream on the public lands, for mining purposes, has a right to have the water flow down the stream, above the point of his appropriation, without interruption or diminution in quantity. The question here arises, What is a "stream," which may thus be appropriated? I do not purpose to enter into any full discussion of this question, which may be regarded as rather speculative than practical throughout these Pacific communities. It is sufficient to say that there must be an actual, natural stream, with defined banks, bed, channel, and current, as contradistinguished from a mere occasional 13 Bradley v. Harkness, 26 Cal. 69. 14 Lower Kings River etc. Co. v. Kings River etc. Co., 60 Cal. 408; Parks Canal & M. Co. v. Hoyt, 57 Id. 44; Reynolds v. Hosmer, 51 Id. 205; McDonald v. Askew, 29 Id. 200; Phoenix W. Co. v. Fletcher, 23 Id. 481; Natoma W. & M. Co. v. McCoy, Id. 490; Kidd v. Laird, 15 Id. 161; 15 Lower Kings River etc. Co. v. Kings River etc. Co., 60 Cal. 408. 16 Reynolds v. Hosmer, 51 Cal. 205. 17 23 Cal. 481. torrent or flow of surface water from rains or melting snow, through a hollow, or depression in the surface of the soil. The essential nature of a "stream" which can be appropriated was briefly but accurately described by the supreme court of Nevada in a leading case:18 "To maintain the right to a watercourse, it must be made to appear that the water usually flows therein in a certain direction and by a regular channel with banks or sides. It need not be shown to flow continually, and it may at times be dry, but it must have a well-defined and substantial existence." It would plainly be impracticable to require, as an essential element of a "stream" in these Pacific states and territories, that the flow of water should be continuous, uninterrupted, and perennial, during the entire year and from year to year. It is well known that some of the most important and well-defined streams in these regions become dry throughout the whole or a considerable portion of their lengths during certain seasons of each year. It is, perhaps, more correct to say that their waters sink beneath their beds, and flow beneath the surface instead of in their channels on the surface. All these streams, nevertheless, have well-defined beds, channels, banks, and currents, and are in every respect natural "streams." Such being the appropriator's right over the stream as such, I proceed to consider his rights over the water which comes under his exclusive control by means of an actual diversion and appropriation. The general doctrine is settled, by the unanimous consent of the authorities, that the prior appropriator is entitled to the exclusive use of the water, up to the amount embraced in his appropriation, either for the original purpose or for any other or different purpose, provided the amount is not thereby increased, without diminution or material alteration in quantity or in quality; and his use will, to that extent and for such purposes, be protected against all subsequent appropriators or claimants using or interfering with the water, both above and below on the same stream; and to this end he may obtain all proper remedies, legal and equitable." As illustrations, it is held in Kimball v. Gearheart, that when the appropriator has completed his ditch so as to receive the water appropriated, "he is then entitled to 1 Barnes v. Sabron, 10 Nev. 217. 19 Hines v. Johnson, 61 Cal. 259; Stein Canal Co. v. Kern Island I. C. Co., 53 Id. 563; Reynolds v. Hosmer, 51 Id. 205; Gregory v. Nelson, 41 Id. 278; Clark v. Willett, 36 Id. 524; Davis v. Gale, 32 Id. 26; McDonald v. Askew, 29 Id. 200; Hill v. Smith, 27 Id. 476; 32 Id. 166; Rupley v. Welch, 23 Id. 453; Phoenix W. Co. v. Fletcher, Id. 492; Natoma W. Co. v. Mc Coy, Id. 490; Butte etc. Co. v. Morgan, 19 Id. 609; Kidd v. Laird, 15 Id. 161; Kimball v. Gearhard, 12 Id. 27; Ortman v. Dixon, 13 Id. 33; Bear River etc. Co. v. N. Y. M. Co., 8 Id. 327; Ophir Silver M. Co. v. Carpenter, 4 Nev. 534; Barnes v. Sabron, 10 Id. 217; Strait v. Brown, 16 Id. 317; Appleton v. Peterson, 20 Wall. 515. said water as against all persons subsequently claiming or locating it;" and "possession or actual appropriation is the test of priority in all claims to the use of water, when such claims are not dependent upon the ownership of the land through which the water flows." In Ortman v. Dixon, it is held that "a prior appropriator of water for mill purposes is entitled to it to the extent of his appropriation, and for those purposes to the exclusion of any subsequent appropriation for the same or for other purposes." In Barnes v. Sabron, the supreme court of Nevada held that "the first appropriator, for purposes of irrigation, of the water of a stream running through the public lands has the right to insist that the water flowing therein shall, during the irrigating season, be subject to his reasonable use and enjoyment to the full extent of his original appropriation and beneficial use. To this extent his rights go, but no further, for in subordination to such rights, subsequent appropriators may appropriate the remainder of the water running in said stream." (TO BE CONTINUED.) J. N. P. CIRCUIT COURT, DISTRICT OF CALIFORNIA. CAHN v. WONG TOWN ON. Filed February 4, 1884. SUB-COMBINATIONS-INDEPENDENT PATENTS.-Where a patent is issued for an invention consisting of a combination of a number of elements, and there is, at the same time, an invention made by the patentee consisting of a sub-combination of a part of the ele ments entering into the larger combination, and the patent issued does not embrace such sub-combination, the inventor of both, at the same time, may afterwards obtain an independent patent for the sub-combination, provided he applies therefor within two years after the invention has gone into public use or been on sale. M. A. Wheaton, for the complainant. J. L. Boone, for the defendant. SAWYER, Circuit Judge (delivering an oral decision). This action is upon a patent. The patent consists of lapping over two pieces of leather in making the seam of a boot, or any other work of the kind, running a line of rivets along, and then a line of stitching on each side of the line of rivets, so as to make a compact, tight seam. The plea sets up that the patentee in this case, on a prior occasion, procured a patent, and that this other and prior patent is for the same thing, with the addition of a piece of india-rubber inserted between two pieces of leather. The strip of india-rubber having been inserted, a line of rivets is run along with two lines of stitching, one on each side of the line of rivets, the same as in the second patent. The defendant claims that the second patent is not a new invention. That it is merely a combination of a part of the elements of the first patent, or of the prior invention, and, therefore, that the second patent is void, as not covering a new invention. I think, probably, that would be the case if the patentee were a different inventor-if the patentee in the prior patent had been a different person from the patentee in the second, I am inclined to think it would be so. But the prior patentee is the same man, and, doubtless, if he had made the invention at the time he obtained his first patent, he might have got a patent for the sub-combination, omitting one element-the slip of india-rubber. And it does not appear in the plea that this second invention has been in public use, or on sale, for more than two years, whereby it would be abandoned to the public. He failed, therefore, if he is the inventor of both at the same time, to obtain a patent for all he was entitled to. If he was the inventor at that time, he was entitled to patent the second or sub-combination of elements, omitting the inserted strip of india-rubber, as well as the first combining all the elements. He might, perhaps, have got a reissue covering both, if his invention of the sub-combination is sufficiently indicated in the specifications of the first patent; but he has chosen to obtain an independent patent for the sub-combination. If he invented it at the same time with the other, he might, undoubtedly, have obtained a patent in the first instance. I think if it was patentable with the additional element of the india-rubber, the sub-combination, without the addition of the india-rubber, invented at the same time, would be patentable. Justice Field says, in the giant-powder case, that this is the proper mode of proceeding, where there is another invention for which an independent patent might have been obtained, but has |