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even though the mining occupant may sustain some injury therefrom; he would only be liable for a negligent or willful injury done to the other occupant by means of his irrigation. What is thus true of an occupant whose title to a riparian tract of the public lands rests wholly upon a prior possession, must certainly be true of an owner whose title to such a tract rests upon a prior patent, conveyance, or other grant from the United States.

§ 37. Riparian rights protected.

In Wixon v. Bear River, etc., Co.,1 the court held that if a tract of land on the bank of a stream in the mineral regions is inclosed and appropriated for the purposes of a garden or orchard, and the water of the same stream is afterwards appropriated by another person for mining purposes, at a point above the tract, the water subsequently appropriated must be used so as not to injure the garden, orchard, or fruit trees; that one who incloses a tract of public land in the mineral regions, and plants it with fruit trees, acquires a vested right therein, and a subsequent appropriator must use the water for mining purposes so as not to disturb such vested right, or destroy or injure the garden or orchard.

The rights of a private owner who has obtained a full title to a tract of land bordering upon a stream have been stated by quite recent decisions of the California supreme court. "As being owners of the land, the plaintiffs have an interest in the living stream of water flowing over the land; their interest is called

124 Cal. 367; and see Rupley v. Welch, 23 Cal. 453; Hill v. Smith, 27 Cal. 476. The right of the prior occupant was here merely possessory as against the United States. An early statute of California seems to have given miners a right

to enter upon the lands of prior occupants used solely for farming purposes, when situated in the mineral regions; the interest of such occupants being only possessory.

the 'riparian right.' Under settled principles, both of the civil and the common law, the riparian proprietor has a usufruct in the stream as it passes over his land."1 In Creighton v. Evans2 the same court held that the right of a riparian private owner to have the water of the stream run through his land is a vested right, and any interference with it by another person gives him a cause of action for appropriate relief; that a diversion of the water by one who is not a riparian proprietor on the same stream is a legal wrong to the person who is such a riparian owner; that a person who is not a riparian proprietor has no right to take any water from the stream, even if enough is left for the uses of the riparian owner,-even if the latter has sustained no actual damage from the diversion.

§ 38. Doctrine of relation applied to patentees.

It having been shown that the rights of a patentee from the United States, as a prior purchaser or owner, relate back at least to the time when he has duly performed all the acts, including payment, which entitle him to a patent, the question still remains whether his rights do not in fact relate back to the date of his first or initiative step in the course of proceedings prescribed by congress, -as in case of a pre-emptor, to the filing of his declaratory statement.

§ 39. Grounds for the application of this doctrine. This question arises in the construction and application of general statutes of congress, which were intended to encourage actual settlers and occupants of the public lands, by providing a means for such actual settlers to acquire the private ownership of tracts of land, and for such actual occupants to acquire the right to divert and use the waters of streams. The same policy plainly underlies the whole system of legislation. When any 'Pope v. Kingman, 54 Cal. 3, 5. 253 Cal. 55.

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conflict arises between parties seeking to avail themselves of these different statutes, ― between parties seeking to acquire tracts of land under one set of statutes and parties seeking to acquire water rights under another, it would seem to be just and reasonable that the same principle or method of construction and interpretation should be extended to all these statutes in determining the rights of such conflicting claimants. In respect to the appropriator of water on the public lands, when he has duly posted and given the notices of his appropriation, and has followed up this initiative by proceeding to construct his ditches, dams, and other works with reasonable diligence, and without unreasonable delay, his right of appropriation, when his works are thus completed, relates back to the date of his first or preliminary act.' This rule seems to be fully settled. In cases of conflict as to priority of right between such appropriator of water and a patentee of land from the United States, it would seem to be just and reasonable that the same rule of interpretation should be extended to the other similar legislation of congress by which private persons are authorized to acquire title to portions of the public domain as pre-emptors, homestead occupants, and the like. Congress has given no intimation of a policy more favorable to the use of water on the public domain than to the use of the public lands for all other beneficial purposes. In the absence of decisions, it would naturally be supposed that the same rule should be applied to all persons who acquire rights under this system of legislation, in determining any conflict which may arise between them.

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The decisions dealing or appearing to deal directly with this question are very few. In California the rule is settled against the claims of a pre-emptor who has received his patent from the 1 See Osgood v. El Dorado, etc., Co., 56 Cal. 571.

United States, so far as it can be put at rest by one decision. In Farley v. Spring Valley M. & I. Co.,' the plaintiff, a preemptor, settled on government land; filed his declaratory statement February 27, 1871; proved up and paid in 1877; and obtained his patent January 23, 1879. The defendants made an appropriation of water which began after 1871, but before 1877. The plaintiff's right was held to have begun only in 1877, when he had "proved up and paid,” and he was therefore a subsequent purchaser to the defendant. This decision was rested upon the following grounds: The public land belonged to the United States until the plaintiff had proved up and paid in 1877. Until that time congress had full power to withdraw the land from sale, and to sell or grant it to another. Certain cases were cited as expressly sustaining these conclusions.2

§ 41. Review of the cases.

With great respect for the able court which rendered this decision, and deference to its learning and ability in all questions connected with governmental land titles, I think that the matters actually decided in Frisbie v. Whitney, Hutton v. Frisbie, and Western Pac. R. R. v. Tevis do not sustain the conclusion which they reached in Farley v. Spring Valley M. & I. Co.; that a careful examination of these prior cases will show that they dealt with an entirely different state of facts, and an entirely different kind of legislation; and that the opinions in these cases avowedly

158 Cal. 142.

2 Namely, Frisbie v. Whitney, 9 Wall. 187; Hutton v. Frisbie, 37 Cal. 475; Western Pac. R. R. v. Tevis, 41 Cal. 489. The court also held that under the acts of congress, July 26, 1866, and July 9, 1870, the defendants obtained "existing rights" to construct and use their reservoir, which were excepted

and saved in the patent issued to the plaintiff; citing Jennison v. Kirk, 98 U. S. 460; Broder v. Natoma, etc., Co., 50 Cal. 621. Of course the real question was whether the defendants had any such "existing rights" at the time when the right of the plaintiff first accrued and became vested as against the defendants.

and carefully except and exclude from their operation such questions as that of priority of right between a pre-emptor and an appropriator of water, arising under the general statutes of congress concerning the disposition of the public lands among private proprietors or occupants. In order to understand the exact points decided by the United States supreme court in Frisbie v. Whitney, and the character of the legislation to which it relates, a brief statement of the material facts is necessary. A certain person, whom I will designate as A., held a Mexican grant to a large tract of land in California. This grant was for years supposed to be perfectly valid, and A.'s title as perfectly good. He had from time to time sold and conveyed portions of it to divers purchasers, who had for years held possession of their farms, inclosed them, built on them, planted orchards, and otherwise improved them, under the supposition that the titles obtained from A. were valid. At length the supreme court of the United States decided that the grant to A. was null and void, and the land included in such grant was therefore the public domain of the United States, subject to all of the general statutes of congress concerning the public domain. Immediately upon the rendition of this decision, a great number of persons rushed onto the tract, and, disregarding the rights of the prior occupants, proceeded to locate claims as pre-emptors upon it, upon the improved and cultivated and occupied portions, to file their declaratory statements, and to take the other steps necessary, under the general statutes, in order to secure their titles as preemptors of the public lands. This proceeding was a palpable wrong to the bona fide and innocent occupants who were thus dispossessed. In this condition of facts, congress interfered, after the pre-emptors had filed their declaratory statements, but before they had paid the price so as to be entitled to patents, and by a special statute, applicable to the lands included in A.'s grant, withdrew those lands, or at least such portions of them as had

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