79 F. 241 | 9th Cir. | 1897
Lead Opinion
The decision of the court below was in large measure based upon tbe idea that the government, as the sovereign power, has, in respect to the waters of nonnavigable streams upon the public lands, a superior right to any which citizens can acquire. “Save such Indian title to the public lands
“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 vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed.” 14 Stat. 253.
. But prior to the enactment of thiá statute it was the established doctrine of the supreme court of the United States—
“That rights of miners who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged, and was bound to protect, before the passage of the act of 1866.”
It was so expressly held in the case of Broder v. Water Co., 101 U. S. 274, 276. And it was in that case further held that the act of July' 26, 1866, was “rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.” That doctrine of prior appropriation in respect to the waters upon the public lands was in full force when, according to the record in the case at bar, the plaintiff in error went upon the public lands and appropriated, for the purpose of irrigating his own land, a certain amount of the water of Cottonwood creek, there flowing. His appropriation was, of course, subject to the prior appropriation and use of the waters of the stream made by the government officials for the purposes of the military post reservation, which consisted of 640 acres of land, and was located on the stream in question below the point of the appellant’s diversion. The military reservation was established by presidential proclamation in January, 1868,—subsequent not only to the time when the government, by its conduct in recognizing and encouraging the local custom of appropriating the waters of the nonnavigable streams upon the public lands for agricultural and other useful purposes, had become bound to recognize and protect a right so acquired, but subsequent, also, to the passage of the act of congress of July 26,1866, making statutory recognition of that right, and confirming the holder in its continued use. The creation of the reservation for military post purposes did not destroy or in any way affect the doctrine of appropriation thus established by the government in respect to the water’s of the nonnavigable streams
Dissenting Opinion
(dissenting). The appellant and the appellee sustain to one another neither the relation of riparian proprietors nor that of locators of water rights. The appellant is not a riparian owner. He has not acquired title from the United Htates to any lands adjacent to Cottonwood creek. He has gone upon the public land, and has diverted from the stream, through his ditch, a quantity of water, which he has conveyed thereby to other lands. By this act he could acquire no rights against the United Htates. What rights he may have acquired as against other appropriators of the waters of the same creek, it is not necessary to consider. The United Htates have, to a certain extent, recognized the rights to water by appropriation which were conferred under local laws, which rights are in some respect a departure from the doctrine of the common law respecting riparian owners, in cases where such appropriating had no title to the soil, but had applied the waters of streams upon public lands to a useful purpose; and the courts, in construing such laws, have generally decided that the first appropriator might divert water from the stream to any useful purpose, without obligation to return it to the stream. It was for the protection of rights upon the public lands, such as these, that had accrued without claim to the title or entry under the land laws, that the act of 1866, section 9 of which appears in the Bevised Htatutes as section 2339, was enacted. But there is nothing in the statute, nor in any decision of the courts construing the same, to uphold the doctrine that an appropriator of water upon the public lands of the United States may, by virtue of such
.“Neither party has any title from the United States. No question as to the right of prior appropriators can therefore arise. It will he time enough to consider those rights when either of the parties has obtained the patent of the government.”
The event referred to in this quotation from the opinion did- not occur until the case of Sturr v. Beck. In that case the court was called upon to consider the rights of one who had obtained a patent of the government, and I know of no way to explain away the plain import of the decision, however much its doctrine may be opposed to tlie trend of the decisions of the state courts in the Pacific states. In the third case (Broder v. Water Co., 101 U. S. 274) it was held that a water right and canal upon the public lands, acquired and constructed in 1853, was by the act of July 26, 1866, made paramount to the right of one who thereafter acquired the title to the lands, whether he obtained title by pre-emption, or under the grant (o the Central Pacific Railroad Company made on July 2, 1864, in which grant there was confirmed to the owners of •such canals a pre-existing right. Recurring to the decision in Sturr v. Beck, it may be said that, -if the rights of a grantee from the United States under the public land laws are as there defined, it necessarily follows that the reservation to its own use by tlie United States of public land which is traversed by a running stream, before any rights have accrued to divert the water from its natural channel, includes the reservation of the water, and the right to have it flow as it was accustomed to flow, and that if the appellant in this case acquired, by bis appropriation of the waters from the creek, and the diversion thereof, and the continued use of the same, any right to the water, it is no.t adverse to the rights of the United States, and cannot affect the right of the government to demand the unrestricted flow of the water through the reservation, as it flowed at the time when it was so set apart for a military post. As against this reservation of property and the incidents thereto, the appellant: has acquired no rights whatever. I think the decree, therefore, should be affirmed.