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Vol. VII, p. 875, art. 4 bis.

Effect of treaty.—By the convention concluded at Brussels Dec. 14, 1900, by the International Conference for the Protection of Industrial Property, at which the United States was represented, it was among other things ordained: "Art. 4 bis. Patents applied for in the different contracting states by persons admitted to the benefit of the convention under the terms of articles 2 and 3, shall be independent of the patents obtained for the same invention in the other states, adherents or nonadherents to the Union. This provision shall apply to patents existing at the time of its going into effect. The same rule applies in the case of adhesion of new states to patents already existing on

of took place on the vessel or on the wharf at which she lay, and that where all parties concerned were citizens of Norway, and the affair was not of such seriousness as to disturn the public peace, the local courts were without jurisdiction to arrest and detain officers of the ship on warrants issued at the instance of a seaman whether before or after his discharge from the vessel.

both sides at the time of the adhesion." This convention was ratified by the Senate March 7, 1901, and proclaimed by the President to go into effect Sept. 14, 1902, 32 Stat. L. 1936. It has been held that such treaty was self-executing, and the effect of its ratification was a complete doing away with the interdependence of foreign and do mestic patents, and of the limitation imposed on the term of domestic patents for inventions previously patented in foreign coun tries by R. S. sec. 4887, 5 Fed. Stat. Annot. 468, prior to its amendment in 1897. Hennebique Constr. Co. v. Myers, (C. C. A. 1909) 172 Fed. 869.

WAR DEPARTMENT AND MILITARY

ESTABLISHMENT.

Vol. VII, p. 960, sec. 1117.

A minor cannot lawfully be enlisted in any branch of the military or naval service without the consent of his parents, and one who has so enlisted by misrepresenting his age will be discharged by writ of habeas corpus at suit of his parents. Ex p. Houghton, (1904) 129 Fed. 239.

As

In Ex p. Lewkowitz, (1908) 163 Fed. 646, it was said: "It is well settled that an enlistment in the army by a minor without his parents' consent is valid as to the minor, although voidable, under section 1117 of the U. S. R. S., on the application of the parent. In re Morrissey, (1890) 137 U. S. 157, 11 S. Ct. 57, 34 U. S. (L. ed.) 644; In re Miller, (1902) 114 Fed. 838, 52 C. C. A. 472. the enlistment is valid as to the minor, any military offense committed by him after or in connection with his enlistment may be punished; and the fact that he enlisted without his parents' consent, or that, after the military authorities have instituted proceedings against him, his parent has instituted legal proceedings for his release, does not deprive the military authorities of the power F. 8. A. Supp.-118

1799

to punish. In re Scott, (1906) 144 Fed. 79, 75 C. C. A. 237; Moore v. U. S., (C. C. A. 1908) 159 Fed. 701; In re Dowd, (1898) 90 Fed. 718; In re Carver, (1906) 142 Fed. 623."

The marine corps of the United States is not a part of the navy, and enlistments therein are not governed by the statutes relating to enlistments in the navy, but by regulaticns prescribed by the Secretary of the Navy, under whose government and control such corps is primarily placed; and such officer, having prescribed in the published regulations of his department that "the regulations for the recruiting service of the army shall be applied to the recruiting service of the marine corps, as far as practicable," the enlistment of minors therein is governed by the statutory provisions relating to army enlistments, and no person under the age of twenty-one years can lawfully enlist without the consent of his parents ar guardians, as required by this section. McCalla v. Facer, (C. C. A. 1906) 144 Fed, 61,

Vol. VII, p. 998, sec. 3.

Errors and injustice done in the proceedings before the examining board convened under the authority of this section, which resulted in the discharge of an officer with one year's pay, by an order made by the President in the exercise of his reserved power to review the proceedings and decisions of such board, cannot be corrected by the courts on certiorari. Reaves r. Ainsworth, (1911) 219 U. S. 296, 31 S. Ct. 230, 55 U. S. (L. ed.) 225.

Due process of law. A proceeding under this section which resulted in the discharge of an officer with one year's pay, by order of

Vol. VII, p. 1013, sec. 1229.

A cadet in the United States Military Academy at West Point is not an officer in the army, within the meaning of this section. Hartigan v. U. S., (1905) 196 U. S. 169, 25 S. Ct. 204, 49 U. S. (L. ed.) 434.

Vol. VII, p. 1017, sec. 1242.

This section is not a criminal statute. It simply prohibits the disposition of the military stores of the United States, except as they are issued to soldiers in the service of the United States. U. S. r. Smith, (1907) 156 Fed. 859. See also Ontai r. U. S., (C. C. A. 1911) 188 Fed. 310.

Retention of title by government. This section, taken in connection with section 3748, makes it clear that in supplying the recruit with an equipment suitable and necessary for

Vol. VII, p. 1038, sec. 1262.

The "pay proper" on which the percentage of increased pay to an army officer serving in the Philippine Islands is to be computed, under Acts of May 26, 1900, and March 2, 1901, includes the longevity pay to

Vol. VII, p. 1070, sec. 1.

the President, was not had without jurisdiction, and hence without due process of law, because the board had previously made an order that such officer was then physically incapacitated for service from disability contracted in line of duty, but had a reasonable hope of recovery, and that he could not with safety proceed with his examination, since such order was merely provisional, and not a final decision, which, under the law, would have entitled him to be retired with threequarters pay for life. Reaves v. Ainsworth, (1911) 219 U. S. 296, 31 S. Ct. 230, 55 U. S. (L. ed.) 225.

The act of the governor of a state in relieving an officer of the National Guard of his command, does not constitute a removal of the officer from his office, within the meaning of this section. State v. Jelks, (1903) 138 Ala. 115, 35 So. 60.

the discharge of his military duties the gov ernment has been very careful to retain title to the same. It would seem to be public property, whether it remains in depot or is put in the possession of the individual soldier. The circumstance that, when his term expires, he is allowed to retain such articles of clothing as he has then in use, does not change the character of his holding while he is in the service of the government. Lobosco v. U. S., (C. C. A. 1911) 183 Fed. 742.

which he is entitled under this section, as well as the minimum pay prescribed by seetion 1261. U. S. r. Mills, (1905) 197 ̊U. S. 223, 25 S. Ct. 434, 49 U. S. (L. ed.) 732.

A constable may arrest a deserter in any part of the state without a warrant. State 1. Pritchett, (1909) 219 Mo. 696, 119 S. W. 386.

Vol. VII, p. 1073, séc. 1. [Act of March 2, 1901.]

Refusal to answer on advice of counsel. Where a civilian subpoenaed was advised by competent counsel that certain questions asked of him with reference to a publication concerning an army rifle contest, if answered, might subject him to a civil or criminal prosecution for libel, and for this reason he refused to answer on advice of counsel, and not from any evil intent or with legal malice,

his refusal did not constitute a violation of such Act. U. S. v. Praeger, (1907) 149 Fed. 474.

Waiver of jury trial. — In a proceeding to punish a civilian for refusal to testify before a general military court-martial under this Act, the parties may waive a jury by written stipulation. U. S. r. Praeger, (1907) 149 Fed, 474.

WATERS.

Vol. VII, p. 1090, sec. 2339.

Reason for statute. This and the following section (R. S. secs. 2339 and 2340) do not contemplate that the privilege of appropriating water or the right to occupy outside land for the purpose of its conveyance to the land of the appropriator should be unrestricted. The reason for the law was the necessity for the use of water upon the land which existed in the sections of country to which its provisions were intended to be ap plicable. Those sections, without the right to use water upon them, taken from the public domain, would have remained a wilderness. Where the water must be brought from a distance, unless the appropriator could convey it over the intervening land, the privilege would be useless. The rights recognized by the statute therefore spring from necessity, and the necessity is common to all the settlers in the neighborhood; so that, in order that others may not suffer injury, the rights of the appropriator, both as to water and right of way, are limited by his needs. Boglino v. Giorgetta, (1904) 20 Colo. App. 338, 78 Pac. 612.

Who may appropriate. One who completes a ditch across public lands for irrigation purposes, and who is in possession thereof at the time another makes his homestead entry on the lands, acquires a right of way across the lands, and the homesteader takes his homestead subject to such right of way. Cottonwood Ditch Co. v. Thom, (1909) 39 Mont. 115, 101 Pac. 825.

An appropriation of water by "squatter's right," not recognized by the laws of the state, the decisions of its courts, nor the general, well-recognized or widely respected custom therein, does not, by virtue of this section, give to the settler who has appropriated water in that way for a less period than ten years an exclusive right as against cther settlers upon the same stream. Meng v. Coffee, (1903) 67 Neb. 500, 93 N. W. 713.

But a settler who so appropriates water, and afterwards duly enters and receives a patent to the land from the government, may, as against other patentees from the government upon the same stream, count the time during which he appropriated the water as a mere squatter in making out the statutory period of prescription. Meng v. Coffee, (1903) 67 Neb. 500, 93 N. W. 713.

This

What waters may be appropriated. section does not authorize one person to go on the private property of another to make an appropriation except by condemnation proceedings; the general government having merely authorized the prospective appropriator to go on the public domain for that pur

pose. Prentice v. McKay, (1909) 38 Mont. 114, 98 Pac. 1081.

It can make no difference that the waters collecting and forming what is known as a spring are seepage and percolating waters, rather than from a well-defined subterranean stream, so long as such waters gravitate to and colleet at a certain and definite point and there constitute a volume of water known and designated as a spring. In either case such waters found upon the public domain, when subject to location and appropriation for any useful or beneficial purposes under the state statutes, are protected and reserved from future disposition under this section. Le Quime v. Chambers, (1908) 15 Idaho 405, 98 Pac. 415.

As long as land belongs to the United States as a part of the public domain, the water flowing over the same in nonnavigable streams is subject to appropriation for the purposes recognized and acknowledged by the local laws, customs, or decisions of the courts; and the mere fact that a stream traversing such public lands may border at some point or for some space on a specific territory reserved by the government for some particular governmental use or purpose will not of itself destroy the public character of its waters, which remain subject to appropriation the same as though the reserve had not been created, unless by the creation thereof there was a competent reservation of the waters also for use in connection therewith. U. S. v. Conrad Invest. Co., (1907) 156 Fed. 123.

In an action involving an alleged appropriation of certain springs, it appeared that certain so-called "springs" occupied a space of about one-half an acre, and that during a portion of the year about ten acres were marshy, and a witness testified that the springs rested right on the brow of a dropoff; that there was quite a bit of water standing around in the springs, and it looked as if there might be five or six springs; but the evidence showed that there was no stream leading into them, and that the water therefrom formed no channel or stream in leaving, though during a portion of the wet season some of the water would flow down for a short distance on the side hill, where it would disappear in the soil. It was held that the pools of water were not live springs, and that they constituted nothing more than a bog occasioned by seepage water. Dickey v. Maddux, (1908) 48 Wash. 411, 93 Pac. 1090.

Reserved lands. The creation by the government of an Indian reservation on the public lands bordering on a nonnavigable stream operates as a reservation of so much

of the waters of such stream as may be required by the proper needs of the government for use on the reservation for the benefit of the Indians thereon; but any surplus remains subject to appropriation by others in accordance with the local laws and customs, and such right includes the right to erect necessary dams, although they may rest in part on the lands of the reservation. U. S. v. Conrad Invest. Co., (1907) 156 Fed. 123.

Priority of appropriation. The broad principle which underlies the relative rights of appropriators from the same stream is, that whoever is first in time is first in right, and the fact that the stream the waters of which are appropriated is interstate and nonnavigable does not affect the rule. Bean v. Morris, (C. C. A. 1908) 159 Fed. 651.

One who by prior appropriation has acquired a right to the waters of a stream flowing through the public lands, for irrigation purposes, is protected in such right, as against subsequent appropriators, although the latter withdrew the water within a different state. Morris v. Bean, (1903) 123 Fed. 618.

One who has acquired a right to the use of water from a stream flowing through the public land, for domestic or irrigation purposes, in accordance with the laws of the state, is protected therein; and the jurisdiction of a federal court to determine the conflicting rights of parties is not affected by the fact that their lands and their points of diversion of the water are in different states. Anderson v. Bassman, (1905) 140 Fed. 14.

Where the water rights under which plaintiffs claimed title were located prior to any settlement on the lands by defendant's grantors, the plaintiffs are entitled to priority. Driskill v. Rebbe, (1908) 22 S. D. 242, 117 N. W. 135.

Where plaintiff posted notices of appropriation of water flowing from certain artesian wells on the public domain, and thereafter proceeded within sixty days to construct her ditches, etc., which work she prosecuted continuously until enjoined, her rights to the water flowing from the wells were prior to those acquired by a locator of the land as a homestead after the posting of the notices. De Wolfskill v. Smith, (1907) 5 Cal. App. 175, 89 Pac. 1001.

Where L. enters upon a tract of land claimed and held by I. as a homestead entry, and appropriates and diverts the waters of a spring thereon, and conveys the same by means of a pipe to other lands, and thereafter I.'s homestead entry is canceled and C. enters the land as a homestead, the latter takes the same subject to the burden and servitude of L.'s water appropriation and easement, and under the statute of this state and this section such water right and easement will be protected by the courts. Le Quime v. Chambers, (1908) 15 Idaho 405, 98 Pac. 415.

Where an irrigation company built its canal on government land after plaintiff had filed his homestead entry on it, but before patent was issued to him, the patent was not subject to the rights of the company, Atkin

son v. Washington Irrigation Co., (1906) 44 Wash. 75, 86 Pac. 1123.

An adverse use of the waters of a stream to give a right to such use by prescription as against another user must have been to the detriment of the latter, and continued with his acquiescence during the full period of the statute of limitations under a claim of right. So long as there was such quantity of water in a stream that the use of a por tion of it by defendants did not deprive plaintiffs of the quantity to which they were entitled, or so long as, when the quantity be came insufficient, plaintiffs forcibly prevented its use by defendants, the statute did not run against an action by plaintiffs to establish a priority of right. Anderson r. Bassman, (1905) 140 Fed. 14.

Rights acquired by appropriation. — The rights which one may acquire in government land for conducting and storing water, and subject to which the patentee shall take the land, spring from necessity only. Boglino t. Giorgetta, (1904) 20 Colo. App. 338, 78 Pac.

612.

This section does not create rights, but is a recognition by Congress of a pre-existing right of possession, constituting a valid claim to its continuance. Mohl v. Lamar Canal Co., (1904) 128 Fed. 776.

Vested rights in public lands to a right of way for ditches, canals, or reservoirs, for water purposes, are not acquired until the actual completion of the work, so that the water can be applied to beneficial use. U. S. v. Rickey Land, etc., Co., (1908) 164 Fed. 496.

One who has constructed upon the vacant public lands of the United States a system of reservoirs and ditches for the distribution of water appropriated by him for irrigation purposes, and has secured the approval of his plan and appropriation by the state board of irrigation, and was using his said reservoirs and ditches for the storage and distribution of such waters before said lands are entered, has a vested and accrued right within the meaning of sections 2339 and 2340 of the Revised Statutes of the United States. Rasmussen . Blust, (1909) 85 Neb. 198, 122 N. W. 862.

Rights acquired under this section are not forfeited by failure to comply with the Act of March 3, 1891, secs. 18, 20, 6 Fed. Stat. Annot. 508-510, granting the right of way to canal and ditch companies for irrigation purposes. Cottonwood Ditch Co. r. Thom, (1909) 39 Mont. 121, 104 Pac. 281.

The federal Supreme Court will assume. in the absence of state legislation to the contrary, that prior appropriators of the waters of an interstate stream at a point in Wyom ing could acquire rights as against junior appropriators of the waters of the same stream in Montana, enforceable in the latter state. Bean v. Morris, (1911) 221 U. S. 485, 31 S. Ct. 703, 55 U. S. (L. ed.) 821.

Where defendants had acquired a right of way for an irrigation ditch across certain land, when it was unoccupied public land of the United States, as authorized by this stat ute, they had no right by reason of such ease

ment, after plaintiff acquired title to the land and without his consent, to construct an additional ditch on a different line varying one to twenty feet distant from the line of the old ditch. Vestal v. Young, (1905) 147 Cal. 715, 82 Pac. 381.

Extent and purposes of appropriation. Appropriation of considerable quantities of water in seasons when that may be done without sensible injury to lower owners does not give a prescriptive right to divert the whole stream in dry seasons. Meng t. Coffee, (1903) 67 Neb. 500, 93 N. W. 713.

Diversion in another state. In California the common-law rule of riparian rights, and not that of prior appropriation, governs the right to use water from a stream for purposes of irrigation, each riparian owner having the right to make a reasonable use of a reasonable quantity of water on his land. In

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Nevada the rule of priority of appropriation governs without reference to whether or not the lands are riparian. Riparian owners of lands on a stream in California and appropriators of waters for irrigation purposes from the same stream lower down in Nevada are equally protected in the rights given them by the laws of the respective states, both subject to the limitation that a reasonable quantity of water only for the beneficial use to which it was devoted should be taken; that it should be economically distributed, and the surplus unused returned to the stream; and where the quantity of water in the stream was at times insufficient even for the users in California they would be restrained from diverting water from the stream during such part of the time as would give to the lower users in Nevada their just share. Anderson v. Bassman, (1905) 140 Fed. 14.

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Vol. VII, p. 1099, sec. 4.

The secretary may establish rules regulating the use of the withdrawn lands while not needed for the purpose for which they are reserved, and may lease them for grazing and limit the number of animals to be grazed thereon; the revenue derived from the leases going into the reclamation fund provided by the Act. Clyde v. Cummings, (1909) 35 Utah 461, 101 Pac. 106.

Charges. The Secretary of the Interior, being authorized to tax and determine the charges, was authorized to divide the same into two parts, one for construction, and the other for maintenance and operation; and hence he was authorized to impose reasonable assessments on land irrigated prior to the time when payment of the major portion of the cost of construction had been made, and

the works passed under management of the owners of the irrigated land. U. S. v. Cantrall, (1910) 176 Fed. 949.

Where, by a contract between the United States and landowners tributary to a federal irrigation system, such landowners agreed to pay to the United States the charges duly levied against their lands for the construction and maintenance of the system, they were only liable for such reasonable charges as the government was authorized to collect, proportionate to their share of the cost of maintaining and operating the system, and not such as might be arbitrarily fixed in advance by such secretary or other governmental officer. U. S. v. Cantrall, (1910) 176 Fed. 949.

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