vided it has not been returned to the original channel without intention to recapture it. Woolman vs. Garringer, 1 Mont. 535.

4 Barnes vs. Labron, supra; Munroe vs. Ivie, 2 Utah, 535. The measure of a water right was held to be the quantity a ditch would convey from the point of diversion without overflow. Caruthers vs. Pemberton, 1 Mont. 111.

5 Woolman vs. Garringer, 1 Mont. 535; Maeris vs. Bicknell, 7 Cal. 261; Davis vs. Gale, 32 Cal. 26.

$ 54. How water rights on public domain acquired. -The manner in which these peculiar privileges may be acquired, so that they will be recognized pursuant to the federal statute is (1) by appropriation, (2) by purchase from a prior appropriator. Appropriation evidently means something more than a claim evidenced by notice posted at the point where the water is claimed. It has even been decided judicially that a territorial legislature had no right to authorize any person, or association of persons, to take possession of the running waters on public lands to the exclusion of others, for anything else than beneficial purposes. It could not be so taken and wasted un il such time as a purchaser could be found for the privilege.1 So that a beneficial purpose does not mean purposes of speculation. It would probably be safe to say, that a claim to water which could not be applied to any purpose beneficial to the claimant, would be void. The water should be intended for use upon premises owned or occupied by the appropriator. In Montana it is held that water rights are only transferable by deed, as real estate; but that where there was an imperfect, or defective transfer and delivery of possession, it would amount to an abandonment by the grantor and a re-appropriation by the grantee, without interregnum in the te, so that by the re-appropriation the new occupant

lothed with all the rights of priority which his ined grantor had.2 It is also held that these rights

may be divested by adverse possession under the statute

of limitations.3

1 Munroe vs. Ivie, 2 Utah 535; see Atchison vs. Peterson, 20 Wall, 507; Hill vs. Smith, 27 Cal. 483.

2 Barkly vs. Tieleke, 2 Mont. 59.

3 Union Water Co. vs. Crory, 25 Cal. 509; Woolman vs. Garringer, 1 Mont. 535, 544.

§ 55. Rights acquired by appropriation.-We have seen that the usufruct is all the right to running waters acquired by appropriation, and that so long as it serves the purpose of its appropriator, and the quantity taken remains undiminished, the original appropriator will have no reason to complain of those who may subsequently divert the water above or below on the same stream. But where the water has been diverted into a private ditch for particular purposes, as irrigation, watering stock, or for domestic use, the owner of the ditch has a right as against a subsequent appropriator, to have the water flow in his ditch unaffected by impurities that would render it unfit for the uses to which it was originally applied, or to which it was applied prior to thre later appropriation.2

1 Supra, § 53.

2 Crane vs. Winsor, 2 Utah, 248; Atchison vs. Peterson, 1 Mont. 561; s. c., 20 Wall. 507; Sims vs. Smith, 7 Cal. 148; Butte Canal, &c. Co. vs. Vaughn, 11 Cal. 143.

§ 56. How right established-Remedies.-The law recognizing water rights1 does not attempt to define them or control the manner of their acquisition. But when they are shown to exist, preserves them inviolate.2 Such rights may be established by proof of a local custom, by the authority of an act of the local legislature, or the decisions of courts. The union of the three conditions is unnecessary in any particular case, to the perfection of the right claimed by priority. But in case of

a conflict between claims under a local custom and a statutory regulation, the latter will control.3 In a proper case the infringement of a right to flowing water or other easement obtained by prior appropriation, will be restrained by injunction. But injunction will not issue except in a very strong case, especially where the injuries resulting therefrom will be greater than those relieved against. The prior appropriator of a water right may recover damages from one subsequently appropriating the waters of the same stream for injuries to his right.6 But consequential injuries resulting from the reasonable use of the right are generally damnum absque injuria.7 Where several contribute to the injury, so that the damage done by each cannot be apportioned, the injured party will not necessarily be remediless.8

1 Rev. Stat. U. S., § 2339, ante, p. 24.

2 Wixon vs. Bear River, &c. Co., 24 Cal. 367.

3 Basey vs. Gallagher, 20 Wall. 670; Thorp vs. Freed, 1 Mont. 652. 4 Ibid; Fabian vs. Collins, 3 Mont. 215; Barkly vs. Tieleke, 2 Mont. 59; Crane vs. Winsor, 2 Utah, 248; Gregory vs. Nelson, 41 Cal. 278; Rupley vs. Welch, 23 Cal. 452; Bliss vs. Kingdom, 46 Cal. 651.

5 Atchison vs. Peterson, 1 Mont. 561.

6 Sims vs. Smith, 7 Cal. 148; Hill vs. Smith, 27 Cal. 475.

7 Edmonds vs. Chew, 15 Cal. 137.

8 Hill vs. Smith, 32 Cal. 166. Suggestions of SAWYER, J. ·

§ 57. Abandonment.-Water rights acquired by appropriation may be lost by abandonment, and such abandonment is purely a question of intention.1 Merely allowing the water to flow back into the natural channel in order to conduct it elsewhere, is no abandonment of the claim to its use. But he must not retake more than his own. And the burden of proof is on him.2

1 Atchison vs. Peterson, supra, § 55; Dougherty vs. Creary, 30 Cal. 290.

2 Butte Canal, &c. Co. vs. Vaughn, 11 Cal. 143; Dougherty vs. Creary, supra.

CHAPTER IX.

SECTION 58-The statute.

COAL LANDS.

59-Patent of reserved lands.

60-Construction by general land office.

§ 58. The statute.-The "act to provide for the sale of the lands of the United States containing coal," whether from the clearness of its provisions, or the lack of interest manifested by prospectors and capitalists in mineral deposits of this character, in the mining districts to which its provisions are peculiarly applicable, has received but meager judicial construction. Its provisions as to extent and manner of entry more nearly accord with the laws and regulations governing the exploration and purchase of placer claims, as to the quantity of land and the manner of setting it apart. But the land taken for deposits of coal must be from that portion of the public domain which has been surveyed, must be by legal subdivisions, and must not be taken so as to include deposits of gold, silver or copper.2

1 Ante, p. 26.

2 Ante, p. 28, § 6 of the act.

§ 59. Patent of reserved lands.-Mineral lands being reserved from entry and purchase for other than purposes of mining for the mineral deposits, if entered, and a patent secured as coal lands, the patent would be subject to cancellation at the suit of the United States as a patent of reserved lands.1

1 United States vs. Stone, 2 Wall. 525.

§ 60. Construction by general land office.-The general land office has found it necessary in construing

this act, to decide that public coal lands could not be entered for patent under the "Timber Culture Act,” and that patents so obtained would be canceled.1 Also, that all lands of the general government, containing coal of any kind, were subject to entry, under the provisions of the statute.2

15 Landowner, 166, post, § 136.

2 Sickel's Min. Laws, 337. post, § 136.

CHAPTER X.

HOMESTEADS AND TOWN SITES IN MINERAL DISTRICTS. SECTION 61-Homesteads.

62-Town sites.

§ 61. Homesteads.-In all cases public lands valuable for minerals are reserved from sale, except as otherwise expressly directed by law. This provision of the statute excludes such lands from homestead entry, the sections of the Revised Statutes expressly providing for the manner of appropriation and purchase of mineral lands on the public domain, to the exclusion of all others.

1 Rev. Stat. U. S. § 2318, Act of Congress July 4, 1866, Ch. 166, § 5, ante, p. 13.

§ 62. Town sites.-Title xxxii, Chapter 8, of the Revised Statutes contain the following for the reservation and sale of town sites on the public lands:

§ 2380. Town sites to be reserved.-The President is authorized to reserve from the public lands, whether surveyed or unsurveyed, town sites on the shores of harbors, at the junction of rivers, important portages, or any natural or prospective centers of population. (Act of Congress March 3, 1863, Ch. 80, § 1, v. 12, p. 754.)