complained of, will depend upon the character and extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction.

No 2. BASEY ET AL. v. GALLAGHER.

(Reported in 20 Wallace, 670.)

1. In the Pacific States and Territories a right to running waters on the public lands of the United States for purposes of irrigation, may be acquired by prior appropriation, as against parties not having the title of the government. The right, exercised within reasonable limits, having reference to the condition of the country, and the necessities of the community, is entitled to protection. This rule obtains in the Territory of Montana, and is sanctioned by its legisla tion.

2. By the act of Congress of July 26, 1866, which provides that whenever by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same," the customary law with respect to the use of water, which had grown up among occupants of the public land under the peculiar necessities of their condition, is recognized as valid. That law may be shown by evidence of the local customs, or by the legislation of the State or Territory, or the decisions of the courts. The union of the three conditions in any particular case is not essential to the perfection of the right by priority; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, will control.

No. 3. HEYDENFELDT v. DANEY GOLD AND SILVER MINING COMPANY.

(Reported in 3 Otto, 634.)

Error to the Supreme Court of the State of Nevada. This is an action of ejectment, brought by Heydenfeldt in the district court of the first judicial district of Nevada,

against the Daney Gold and Silver Mining Company. The case was tried by the court, which found the following facts:

On the fourteenth day of July, 1868, the State of Nevada issued to one William Webelhuth its patent for the west half of the south-west quarter of section 16, township 16 north, range 21 east (lying in Lyon county, State of Nevada), Mount Diablo base and meridian, containing eighty acres according to the official plat of the survey of public lands as made by the United States surveyor-general for the district of Nevada; which said patent was recorded in the recorder's office of the county of Lyon, on the twentyfifth day of July, 1868, and was issued by the State authorities under and by virtue of the statute of Nevada, conveying lands assumed to have been granted to the State by the act of Congress approved March 21, 1864, entitled "An act to enable the people of the Territory of Nevada to form a State government upon certain conditions."

On the eighteenth day of August, 1873, William Webelhuth, by deed of conveyance duly signed, sealed, and acknowledged, conveyed the same premises to one Philip Kitz, which deed was recorded in the recorder's office of the county of Lyon, January 13, 1874.

On the ninth day of January, 1874, Philip Kitz, by deed duly signed, sealed, and acknowledged, conveyed the same premises to this plaintiff, which said deed was duly recorded in the recorder's office of the county of Lyon on the same day.

The

The defendant is in possession of the premises. plaintiff, prior to bringing this action, demanded the possession thereof, but the same was refused.

On the second day of March, 1874, the United States, by its proper authorities, granted to the defendant, by its patent, in due and regular form, lot No. 72, embracing a portion of section 16, in township 16, north of range 21 east, Mount Diablo meridian, in the Devil's Gate mining district, in the county of Lyon, and State of Nevada, in the district of lands subject to sale at Carson City, embracing thirteen (13) acres and seventy-eight one hundredths (78-100) of an acre, more or less, with the exclusive right of possession and enjoyment of all the land included within the ex

terior lines of the survey of said premises, not expressly excepted, and of two thousand linear feet of Mammoth lode ledge, vein, or deposit for said two thousand feet therein throughout its entire depth, etc., which said grant, by the patent, covers and includes the lands and premises sought to be recovered by the plaintiff from the defendant in this action, and which said patent was so issued to the defendant under and by virtue of the act of Congress approved July 26, 1866, entitled "An act granting the right of way to ditch and canal owners over the public land, and for other purposes;" the act amendatory thereof, approved July 9, 1870, and the act approved May 10, 1872, entitled "An act to promote the development of the mining resources of the United States."

The land in controversy is mineral land, containing precious metals, and the defendant is in possession, and is conducting and carrying on the business of mining thereon, having in the prosecution of mining erected and constructed improvements of the value of over eighty thousand dollars.

In 1867, and prior to the date of the survey or approval of the survey of section 16, township 16 north, range 21 east, by the United States, the defendant's grantors and predecessors in interest had entered upon the premises described by plaintiff in his complaint for mining purposes, and had claimed and occupied the same in conformity to the laws, customs, and usages of miners in the locality and mining district in which said premises are situated, and were so possessed and engaged in mining thereon when the said land was first surveyed, and when the State of Nevada issued its patent, as aforesaid, to William Webelhuth.

Thereupon, as conclusions of law, the court found:

The act of Congress approved March 21, 1864, enabling the people of the Territory of Nevada to form a constitution, etc., under and by virtue of which act the State of Nevada selected the land, and sold and conveyed the same to the predecessors in interest of the plaintiff, did not constitute a grant in præsenti, but an inchoate, incomplete grant until the premises were surveyed by the United States, and the survey properly approved.

Said survey, and the approval thereof, not having been made prior to the entry thereon and claim thereto by de

fendant's predecessors in interest for mining purposes, the same was not by said act of Congress, or in any other manner, ever granted by the United States to the State of Nevada.

The entry of defendant's grantors thereon for mining purposes, and their rights thereto, having become established prior to the survey of said section by the United States, the said premises were not included within and did not pass to the State of Nevada, by the granting clause contained in said act of Congress of March 21, 1864, but, on the contrary, were excluded therefrom by reason of their having been previously possessed and occupied by defendant's grantors for mining purposes, in conformity with the mining laws, rules, and customs of miners in the locality where the same was situated, and in conformity with the act of Congress, approved July 26, 1866, granting the right of way to ditch and canal owners over the public lands, and for other purposes.

Thereupon judgment was rendered for the defendant. The Supreme Court of Nevada having affirmed it, the plaintiff sued out this writ of error.

Submitted on printed arguments by Mr. W. E. F. Deal, for the plaintiff in error, and by Mr. C. E. De Long, for the defendant in error.

Mr. Justice Davis delivered the opinion of the court.

The validity of the patent from the State under which the plaintiff claims title, rests on the assumption that sections 16 and 36, whether surveyed or unsurveyed, and whether containing minerals or not, were granted to Nevada for the support of common schools by the seventh section of the Enabling Act, approved March 21, 1864, 13 Stat. 32, which is as follows: "That sections numbered 16 and 36, in every township, and where such sections have been sold or otherwise disposed of by any act of Congress, other lands equivalent thereto, in legal subdivisions of not less than one quarter section, and as contiguous as may be, shall be, and are hereby, granted to said State for the support of common schools."

The assumption is not admitted by the United States, who, in conformity with the act of Congress of July 26, 1866, 14 Stat. 251, issued to the defendant a patent to the

Which is

land in controversy, bearing date March 2, 1874. the better title is the point for decision. As it has been the settled policy of the government to promote the development of the mining resources of the country, and as miuing is the chief industry in Nevada, the question is of great interest to her people.

It is true that there are words of present grant in this law; but, in construing it, we are not to look at any single phrase in it, but to its whole scope, in order to arrive at the intention of the makers of it. "It is better always," says Judge Sharswood, "to adhere to a plain common-sense interpretation of the words of a statute, than to apply to them refined and technical rules of grammatical construction." Gyger's Estate, 65 Penn. St. 312. If a literal interpretation of any part of it would operate unjustly, or lead to absurdity, or be contrary to the evident meaning of the act taken as a whole, it should be rejected. There is no better way of discovering its true meaning, when expressions in it are rendered ambiguous by their connection with other clauses, than by considering the necessity for it, and the causes which induced its enactment. With these rules as our guide, it is not difficult, we think, to give a true coustruction to the law under consideration.

Congress, at the time, was desirous that the people of the Territory of Nevada should form a State government and come into the Union. The terms of admission were proposed, and, as was customary in previous enabling acts, the particular sections of the public lands to be donated to the new State for the use of common schools were specified. These sections had not been surveyed, nor had Congress then made, or authorized to be made, any disposition of the national domain within that Territory.

But this condition of things did not deter Congress from making the necessary provision to place, in this respect, Nevada on an equal footing with States then recently admitted. Her people were not interested in getting the identical sections 16 and 36 in every township. Indeed, it could not be known until after a survey where they would fall, and a grant of quantity put her in as good a condition as the other States which had received the benefit of this bounty. A grant, operating at once, and attaching prior to