ship of the land which is contiguous to and borders upon the water, and they do not attach to any lands, however near, which do not extend to the water. The right of the riparian proprietor is undoubtedly to have the flow of the stream across his premises in its natural state; the water being undiminished by being diverted for any purpose.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 27.]

3. SAME-APPROPRIATION.

Merely taking water from a stream is not an appropriation of the water. To make an appropriation one must not only take it from the stream, but must apply it to some beneficial use. the extent of the use there is an appropriation.

То

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 7.]

4. MUNICIPAL CORPORATIONS-TOWNS.

Municipal corporations may exercise only the powers directly granted and those necessarily implied and those indispensable to the proper purposes of the corporation.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 149.]

The plaintiff corporation filed its bill of complaint in this case on June 6, 1903, wherein it is alleged, in addition to facts showing an interference with the water rights of the plaintiff company and the building of the dam, etc., that endangered the existence of its plant, that an emergency existed for the granting of the preliminary injunction pending a suit, owing to the work upon the dam, which it was alleged was rapidly being pushed to completion, and if completed would result in great and irreparable damage and the destruction of their property. This allegation of emergency and the necessity of issuing an immediate order of injunction is in accordance with the statute upon this question, and the restraining order-the temporary injunction was issued in accordance with the showing made and the prayer of the complaint. The injunction order was served and returned by the marshal and filed June 24, 1903.

Thereafter, on the 29th day of June, the defendant company served their notice of motion to dissolve the temporary injunction, and fixed the time of bringing such motion before the court as the 6th day of July, 1903. On the same day (June 29th) the defendant company filed what it termed its "answer and cross-complaint," and on the 6th day of July appeared in court to urge their motion to dissolve. Whereupon the plaintiff filed a motion attacking the answer and cross-complaint, and on leave granted the defendant withdrew their answer, and, making some changes, filed the same as an amended answer. It being apparent that the parties were not ready for at hearing, and it further appearing that one of the attorneys for the defendant, Arthur K. Delaney, had urgent business on the Atlantic coast and could not be present, had the hearing delayed for some days. The hearing of the case was finally set by agreement of all parties for August 10, 1903. In the meantime the plaintiffs filed their amended bill of complaint on July 6th, and their reply to defendant's amended answer on the 23d of July. On the 10th day of August, when the case came up for hearing, the judge of this division of the district, having at one time had some interest in the plant afterwards conveyed to the plaintiffs in this action, and it having been rumored that there might be some objection to the judge of this division hearing the case, he refused to proceed further with the hearing unless all parties to the suit should file a stipulation in writing requesting him to proceed with the hearing. Such stipulation and request having been filed, the judge of the court consented to take up the hearing because of the great delay that would occur in calling in another judge, and because of the anxiety of the parties in interest for an early and speedy hearing. The case was therefore proceeded with, and the evidence presented in the form of affidavits and oral testimony; and after the hearing and arguments of counsel, lasting for nearly a week, the case was submitted to the court on the mo

tion to dissolve the temporary injunction, the files, affidavits, and evidence produced before the court.

Malony & Cobb and W. E. Crews, for plaintiff.

A. K. Delaney and Charles E. Ingersoll, for defendant.

BROWN, District Judge. Several questions arise on the face of the pleadings in this case, most all of which have been determined by abundant authority. It may be said, and it is probably true, that section 2339 of the Revised Statutes of the United States (1878), concerning the vested rights to the use of water for mining, right of way for canals, etc., passed July 26, 1866, has not been put in force and is not in force in Alaska. This is not a part of the mining laws of the United States, but is an independent statute. Chapter 262, § 9, 14 Stat. 253 [U. S. Comp. St. 1901, p. 1437]. The terms of this statute are in part as follows:

"Whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of the courts, the possessors and owners of such vested rights shall be maintained and protected in the same."

Right of way for ditches and canals is also given by the same section.

This statute not being in force in Alaska, and no rights. whatsoever given by the statute for the appropriation of water upon the public domain, the questions arise as to what, if any, right whatsoever a party may obtain by the appropriation and use of water for mechanical and other purposes.

By a provision of our Code enacted by the Congress of the United States, the common law, where not inapplicable and not inconsistent with the Constitution of the United States or with any law passed or to be passed by Congress, is adopted and declared to be the law within the district of Alaska. Section 367, p. 432, Carter's Code. Possibly the rights in water, therefore, and the use of the same is restricted to what is

known in the common law as "riparian rights." These depend upon the ownership of the land which is contiguous to and borders upon the water, and they do not attach to any lands, however near, which do not extend to the water. It is said "that the rights of a riparian proprietor, so far as they relate to any natural stream, exist jure naturæ, because his land has by nature the advantage of being washed by the stream." The right of the riparian proprietor is undoubtedly to have the flow of the stream across his premises in its natural state; the water being undiminished by being diverted for any purpose.

In this case it does not seem to be of very much importance what the theory of the law is as to the rights of parties to the use of the water, whether it be as a riparian owner or as an appropriator who has reduced the water to possession, and appropriated it to a useful and beneficial purpose, as long as the water should be returned to the bed of the stream in undiminished quantities before it should reach the lands of another riparian proprietor. Such proprietor would have no ground for complaint under such circumstances.

It

It is undisputed that the plaintiff company was the elder appropriator of the waters of the creek; that as such it has the undisputed right to all the water flowing in the creek at the time they made their appropriation, and to the amount that was originally claimed and applied to beneficial use. would seem that the capacity of the plaintiff's flume determines the amount of water necessary for its use, and this by actual measurement appears to be very much greater than the amount of water flowing in the creek at the time the measurement was made in the month of July last. That the plaintiff is entitled to this amount of water less such small quantity, if any, as had been appropriated by others prior to the time the appropriation was made by the plaintiffs, uninterfered with by any other person or persons or corporations, there can be no doubt. But, as before stated, if others should make appropriation of water

for mechanical uses at a point above them, and return the same to the creek above the intake of the plaintiff company, so that the same should have been undiminished in quantity by such use, such persons or company unquestionably may take such appropriation without injury to the party plaintiff, and unless they are injured they cannot complain.

It is alleged on the part of the defendant that the defendant has a prior appropriation for a very considerable quantity of water, and illustrates their claim by showing the location of a small ram, which forces water from a point about where the plaintiff's intake begins up the side hill a considerable distance to the residences of two families, and it is shown that the two families have made use of this water or some portion of it, forced up through a small pipe by the ram. They further claim that a six-inch pipe had been put into the stream from the bank at a point above the plaintiff's intake; that the sixinch pipe was shortly reduced to a two-inch, and the two-inch pipe run to the wharf. It appears that this pipe would be capable of running a very considerable amount of water to the wharf where the same ends. It must be understood, however, that merely taking the water from a stream is not an appropriation of the water. To make an appropriation one must not only take it from the stream, but must apply it to some beneficial use. To the extent of the use made there is an appropriation. Whatever rights the defendant has through these two pipes that he refers to are admittedly prior in point of time to the taking of water by the plaintiff company. It will be necessary, then, to inquire the extent of the appropriation made, or, in other words, the extent to which the water taken has been applied to a beneficial use, unless the riparian rights of the plaintiff prevent. As to the water propelled by the ram through the small pipe, two families have used it. Allow the largest quantity (to wit, 100 gallons a day to each faniily) that could be reasonably used by them for domestic purposes, and