44 Wash. 75 | Wash. | 1906
Excluding all immaterial statements, the plaintiffs brought an action to enjoin the defendant from conducting an irrigation ditch over their land in Yakima county. It appears from the record and the findings of fact that the land in question was government land of ■ the United States on the 18th day of June, 1898, and that on that date the plaintiff, who is one of the respondents here, JBelgrave R. Atkinson, filed his homestead entry on it, and
The appellant’s claim is based upon §§ 2339 and 2340, Revised Statutes of the United States, which are as follows:
“Sec. 2339. 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 the decisions of courts, the possessors and owners of such
“Sec. 2340. All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water-rights, or rights to ditches and reservoirs used in connection with such water-rights, as have been acquired under or recognized by the preceding section.”
It is the contention of the appellant that the irrigation company, having built its lateral canal before patent was issued to the respondents, their patent is subject to the rights of the appellant which had vested before such patent was issued. The principal case relied upon is Tynon v. Despain, 22 Colo. 240, 43 Pac. 1039, and that case does hold that, under the statutes quoted, the patent issues in subjection to the rights of the irrigation company, where the canal had been constructed before the issuance of the patent but after the filing by the homestead applicant. But this case we think stands alone in this extreme construction of the statute. Colorado, no doubt, by reason of its extreme arid' condition, has gone further in the protection of water rights to irrigating canals than any other state. But this, it seems to us, is an unnatural construction of §§ 2339 and 2340, and the question of when rights have vested and accrued still remains. They had not vested and accrued by priority of possession or otherwise at the time the respondent had filed his homestead claim upon this land, and when a citizen of the United States makes a homestead filing, there is an implied contract that when he meets the requirements of the homestead laws with reference to residence, cultivation, improvements, etc., the government will invest him with the legal title. Certainly it was not the intention of Congress in the passage of the acts above quoted to allow
In the state of California the decisions rendered have been exactly contrary to the Colorado case. There it was held in McGuire v. Brown, 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384, which is the leading case in the state and a case most excellently reasoned, that the statutes above quoted do not confer the right upon an appropriator of water on public land to go upon land after its entry by another as a homestead but before the claimant. had made final proof, and change the point of diversion or construct new ditches or in any way to interfere with the initiatory rights of the homestead applicant. Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. 350, holds that the filing of a homestead entry of a tract across which a stream of water runs in its natural channel with no right or claim of right to divert it therefrom, confers a right to have the stream continue running in that channel without diversion, which right, when completed by full compliance with the requirements of the statutes on the part of the settler, relates back to the date of the filing, and cuts off intervening adverse claims to the water. The reasoning in this case would apply equally to the relation back of the right of the homestead entryman to the land conveyed to him by the patent. The same principle was laid down by this court in Slaght v. Northern Pac. R. Co., 39 Wash. 576, 81 Pac. 1062, in construing practically the same kind of a statute. So far as the question of estoppel is concerned, by reason of the respondents having made no objection to the
The judgment is affirmed.
Mount, C. J., Root, Crow, Hadley, and Fullerton, JJ., concur.