Nevada Ditch Co. v. Bennett, 45 P. 472

45 P. 472 | Or. | 1896

Mr. Justice Wolverton,

after stating the facts in the foregoing language, delivered the opinion of the court.

Before proceeding to the discussion of the questions of vital importance, we will dispose of some that may be regarded as preliminary or incidental only. The defendants all filed demurrers to the complaint, which were general in their nature, and were all overruled by the court below. It is insisted here that the court erred in so doing. The objection is taken upon the theory that plaintiff’s complaint comprehends an aggregate of individual appropriations, taking their inceptions at different periods, and that the complaint should have stated facts supporting each individual appropriation, and then the acquirement of them by plaintiff; but the'complaint states a single appropriation upon which all the rights claimed are dependent, hence the objection is not well taken.

1. It is next contended by the defendants the Gillerman-Froman people that the especial rights of each of the defendants touching the quantity and priority of their several appropriations should be determined here, as well as plaintiff’s, and the correlative rights of all the parties to the suit finally fixed and determined. The point is more especially urged as it affects the Gillerman-Froman people. The other defendants earnestly object to such a course, and their objection is based upon the condition of the pleadings, as well as the course which was pursued in the court below. The answer of each of the defendants controverts the plaintiff’s claim, and, in order to show a prior right to that of plaintiff, each has set up its own claim, but no defendant has anywhere, by his or its pleading, assumed to controvert the alleged rights of any of the co-defendants, and no issue upon the record was ever made between any of them. However, the Gillerman-Froman people have alleged generally that their claim is prior and superior to all the other defendants, as well as to that of plaintiff, and they ask affirmative relief. But this is not denied by any of their co-defendants, nor would it seem that any were called upon to do so. The trial in the court below seems to have proceeded upon the theory that there was no contention among co-defendants, and no countervailing testimony was offered as between themselves. In this state of the record, and by the course of prior procedure, this court is powerless to determine the quantity and priority of any appropriations, except as between plaintiff and the several defendants: Hargrave v. Cook, 108 Cal. 72 (41 Pac. 18, 30 L. R. A. 390); Pomeroy on Code Remedies, § 808. It would have been much better if the rights of all the parties to the controversy could have been settled and determined in this suit. Such a thing could have been accomplished, had the pleadings and proofs been formulated and directed to that end and purpose; but, without indicating what would be the proper practice in such cases, let it suffice to say that this case is not in a condition to apply the remedy demanded.

2. The plaintiff, by its complaint, claims a single appropriation of 3,037 miner’s inches of the water of the Malheur River, made as of date July 12, 1881, that being the date when Mallett, Adams, and Lee posted their notice of appropriation at the original point of diversion through plaintiff’s ditch. To sustain the appropriation as of the date named, the doctrine of relation is invoked, it being contended that the promoters of the ditch prosecuted the work of construction with reasonable diligence, and had it fully completed within a reasonable time after the posting of such notice. There can be no question but that they did pursue the work of construction with all the diligence that could reasonably be required of them. The work was commenced in August or September after the posting and recording of their notice, and for the purpose of aiding in the excavation of the first section of upwards of two miles, a dam was constructed at the head of the proposed ditch, and a diversion made. This section was completed as early as the spring of 1882. Prior to the posting of notice a preliminary survey had been run with a triangle, covering, in extent, at least the first section completed; but in August prior to the beginning of the work of construction a permanent survey was made by C. M. Foster, and stakes and monuments set to indicate the route and actual location of the ditch, which was practically followed in the work of construction. This survey is spoken of as being ten miles in length, but the actual length of the ditch from the point of first diversion is something less than nine miles. In the fall of 1882 the way was cleared for the second section, reaching to the eastern terminal of the Foster survey. In the spring its excavation and construction was prosecuted until the irrigating season ©f that year, when it was discontinued to permit of the use of water through the completed portion of the ditch, by which use from forty to fifty acres of garden and small crops were irrigated during the season. The work of construction was resumed in the fall, and continued until the completion of the second section, in the spring of 1884. Water was run through the full length of these two sections in the year 1884, and used for irrigating purposes. There is some dispute as to whether the latter section was completed in the spring of 1884, or a year later; but, if not in every detail, it was practically completed in 1884. This shows an exercise of due and reasonable diligence, considering the magnitude of the undertaking, and the circumstances and difficulties usually attending the inception and prosecution of such work in a new country by pioneers with limited means and facilities: Kimball v. Gearhart, 12 Cal. 28.

3. It was sought to prove the existence of a custom, which it is alleged prevailed in that section of the country, whereby parties seeking to make an appropriation of water for agricultural or beneficial purposes were required to post at the point of diversion a notice containing in substance a statement of the amount of water claimed, the purposes to which it was to be applied, the names of the appropriators, the general direction of the proposed ditch, and the terminals thereof, and have the same immediately recorded in the office of the county clerk or the proper recording officer of the county in which the appropriation was sought to be made. The existence of such a custom is combatted by some of the defendants, and by others it is admitted, but in a qualified sense. By the latter it is claimed that the recording of the notice was not required. The referee found that the custom did exist at the time of the inception of each and every of the water appropriations involved in the controversy, to the full extent, as stated above, and in this he is supported by the evidence. Under these conditions the plaintiff’s appropriation would relate back to the date of posting the notice by Mallett, Adams, and Lee, July 12, 1881; certainly to the date of their commencing the construction of the ditch, which was either in August or September following. The rule seems to be that where notice is required, and one is given, and thereafter the work necessary and requisite to secure a diversion for a beneficial use is begun in good faith, and prosecuted with due and reasonable diligence until completed, and actual diversion made, the appropriation relates back to the first step taken. The authorities are somewhat in conflict as to what constitutes the first step, whether the posting of the notice, or the actual commencement of work: Cole v. Logan, 24 Or. at page 309 (33 Pac- 568); Kinney on Irrigation, § 168; Woolman v. Garringer, 1 Mont. 535. If, however, there has been an unreasonable delay in carrying forward the work of construction, and the works and appliances necessary to a diversion for the useful purpose intended are not completed within such time as reasonable diligence would require, the appropriation is considered by Mr. Black as beginning with the date of actual diversion, and by Mr. Kinney when the appropriation is fully completed: Black’s Pomeroy on Water Rights, § 55; Kinney on Irrigation, § 161. But whether the one or the other of these authorities should be followed does not become material for us to determine.

It is not seriously contended that the plaintiff’s appropriation is invalid, but that it should be confined as to quantity and priority to the rights acquired by Mallett and Adams, which would accord to it an appropriation of from 260 to 500 inches, dating from August or September, 1881, and that any appropriation in excess of this quantity should be recognized only as having been made at the date of actual user for beneficial purposes. In other words, it is insisted that plaintiff’s present appropriation is a conjoined aggregate of lesser appropriations, having their inception at different dates, and that, when traced to their several sources, that only which is personal to Mallett and Adams will antedate the defendants’ appropriations, and that, if thus analyzed, the quantity of the appropriation having priority over those of the defendants will be found to be small, and not to exceed the quantity named. This brings up a question which we have found difficult of solution, and the conclusion at which we have arrived has not been reached without some misgivings. Let us first get a clear idea of the elements which enter into and go to establish a valid appropriation of the waters of a public stream to a beneficial purpose, as we shall be aided by the process, and be the better enabled by the application of analogous cases to the salient features to determine with greater satisfaction the quantity and legal status of the plaintiff’s appropriation. The rule is concisely laid down by Mr. Justice Moore, in Low v. Rizor, 25 Or. at page 557, that “to constitute a valid appropriation of water three elements must always exist: First, an intent to apply it to some beneficial use, existing at the time or contemplated in the future; second, a diversion from the natural channel by means of a ditch, canal, or other structure; and, third, an application of it within a reasonable time to some useful industry.” In elaboration of these elements, Mr. Pomeroy says of the first: “The fundamental doctrine is well settled that the appropriation must be made with a bona fide present design or intention of applying the water to some immediate useful or beneficial purpose, or in present bona fide contemplation of a future application of it to such a purpose, by the parties thus appropriating or claiming”: Black’s Pomeroy on Water Rights, § 48. Mr. Justice Lord, in Simmons v. Winters, 21 Or. at page 42 (27 Pac. 7, 28 Am. St. Rep. 727), says: “There must be some actual beneficial purpose, existing at the time or contemplated in the future, as the object for which the water is utilized.” This language was approved by Chief Justice Bean in a later case: See Hindman v. Rizor, 21 Or. at page 120 (27 Pac. 13).

It has been suggested that the intent and the application is a matter personal to the appropriator, and that whatever he purposes to do with the water must be done by himself, and in connection with his own property. From the nature of things, the intent to apply to some present or future contemplated use must rest with the appropriator. It is a mental status which may manifest itself by subsequent declarations and acts, such as posting notice, diverting the water by the building of a dam, the construction of a ditch or other means, and by applying it to the contemplated use. Ordinarily a person may declare his intentions through another, and may act through an agent, and yet the declarations and acts are as much his as if they were the result of liis personal and physical application, and unless there is some reason why an appropriator may not invoke the ordinary agencies for the purposes of perfecting his appropriation, he ought not to be denied the right of their employment for such purposes. So far as it may become necessary to construct the necessary appliances to secure the actual diversion of water, and to transport it to the place of use, and even as it concerns the physical application to the use, there can be no doubt of the right to his employment of such agencies. But the purposes of the appropriation must abide with the appropriator, it must be a design of his concoction or adoption, and the use he proposes must be a beneficial one; thus far it is perfectly manifest that the act is personal to himself. So that, taking these propositions as granted, the inquiry is narrowed to the object to which the use must be applied. Mpst the appropriator be the proprietor of or have an interest in the object in connection with which the water must be utilized, in order to perfect the appropriation, or will it serve the purpose if the water is supplied to some other person, who makes the appropriation in connection with an object in which the appropriator has no interest? To state the proposition concisely, Can A appropriate water for the purpose of running B!s mill, or irrigating his lands, or working his mines, and will such use made of it by B, granting it to be beneficial, inure to the appropriator’s benefit, in the process of perfecting his appropriation? For the present, let us consider the other two elements which go to make up a valid appropriation: As the water of a public stream, while flowing in its natural channel, is the property of the public, an individual, if he would obtain a usufructuary interest therein, must lay hold of so much of it as is required for his use; that is, make a diversion whereby he is thereafter enabled to assert absolute control over it. This needs no elucidation. The third element requires an actual user for some beneficial purpose.

4. The term “appropriation” is often loosely used by the authorities, and in general it is used with reference to a claim to the use of the water of a public stream from the time of the inception of the right, at all the intermediate stages, and down to the time when the last act is accomplished by which the right is finally and completely secured. An appropriation proper is not made until there has been an actual application of the water claimed to some beneficial purpose or some useful industry; all rights acquired prior to this time, at whatsoever step in the process, amount simply to a claim of an appropriation, but they are none the less rights and privileges which may be assex-ted and maintained against all persons not entitled to px-iority ixi rights and privileges of like natux-e. The Supreme Court of California dcfixies the word “appropriation,” in the connection which we are now considexdng it, as “the intent to take, accompanied by some open physical demonstration of the intent, and for some valuable use”: McDonald v. Bear River Min. Co., 13 Cal. 233. It is said in Thomas v. Guiraud, 6 Colo. 533: “The true test of appropriation of water is the successful application thereof to the beneficial use designed.” In Larimer County Reservoir Co. v. People, 8 Colo. 614 (9 Pac. 794), Helm, J., in speaking for the court, says: “We are of the opinion that when the individual, by some open, physical demonstration, indicates an intent to take, for a valuable or beneficial use, and through such demonstration ultimately succeeds in applying the water to the use designed, there is such an appropriation as is contemplated by our constitution and statutes.” This language was approved, and the doctrine thereby stated adopted in a late case in the same state: See Fort Morgan Land Co. v. South Platte Ditch Co., 18 Colo. 1. In Farmer’s High Line Canal Co. v. Southworth, 13 Colo. 115 (21 Pac. 1028, 4 L. R. A. 767), a complaint by which it was sought to establish an appropriation was held insufficient upon demurrer in that it did not allege the application of the water to the plaintiff’s lands. So in Peregoy v. McKissick, 79 Cal. 572 (21 Pac. 967), Thornton, J., says: “If the plaintiff has never used the water for any useful or beneficial purpose, he ivas never an appropriator,” and in Low v. Rizor, 25 Or. at page 557 (37 Pac. 82), Mr. Justice Moore says: “There having been a failure to make the application of the water to the irrigation of the land within a reasonable time, one of the elements of a valid appropriation is lacking, and hence the defendant’s claim to a prior appropriation must fail.” Mr. Kinney, in his work on Irrigation, § 167, says: “The appropriation becomes perfect only when the ditches or canals are completed, the water diverted from its natural stream or channel, and actually used for beneficial purposes.” So that actual user for a beneficial purpose is the true and only final test touching the question whether a party’s claim has ripened into a valid appropriation. There can be no constructive appropriation, nor can any step required to be taken throughout the whole project and course of water appropriations be constructively accomplished. It is the actual physical performance of every essential requisite, from the time the purpose is definitely conceived down to the ultimate user of the water in connection with the advancement of some useful and beneficial industry, that matures and finally accomplishes the “appropriation.”

5. But this understanding of what it takes to constitute an appropriation does not preclude-claimants from acquiring valuable rights and privileges prior to the time when such claims ripen into a full or completed appropriation. There are two periods of gestation, if we may be allowed the expression: One concerns the time required, measured by due and reasonable diligence, for the building and construction of such works and appliances as may be necessaiy and convenient for diverting the water and carrying it to the place of use (of this we have spoken heretofore); and the other the time needful to utilize the water by the actual application of it to the contemplated beneficial purpose. The appropriation is in every instance limited in quantity and quality by the uses for which the appropriation is made: Atchesen v. Petersen, 87 U. S. (20 Wall.) 507. In Simmons v. Winters, 21 Or. 35 (28 Am. St. Rep. 727, 27 Pac. 7), Mr. Justice Lord says “the amount of water appropriated must be restricted to the quantity needed for the purpose.” The reason of the rule is that by nature the water supply is limited in the arid regions, and habitation is dependent upon its use to make the earth yield up its precious metals and the soil to bring forth its fruits in season, hence the restriction of its use to quantities needed for beneficial purposes, as with such husbanding of the supply there is yet not sufficient to meet the increasing demands.

6. The claimant is entitled to a reasonable time after he has diverted and carried the water to the place of use in which to make the actual application to the contemplated useful purpose; the prime requirement being that he must use reasonable diligence in making the application, the attendant and surrounding circumstances being considered. We quote again from Mr. Justice Lord, in Simmons v. Winters, at page 42: “If the amount of water appropriated is within the given beneficial purpose for which it was taken, no more than is necessary to irrigate the lands contemplated to be reduced to cultivation as soon as can reasonably be done, although more than can be beneficially used for the present, it is nevertheless a valid appropriation.” See also Hindman v. Rizor, 21 Or. 112 (27 Pac. 13). In Conant v. Jones, 3 Idaho (32 Pac. 251), the court say: “A person who complies with the law as to locating and conducting the water to the point of intended use has such time as he may need or require, using ordinary diligence in getting his land into cultivation, to make application of such water to the intended use; such time, at least, as is reasonable under all the circumstances of the case.” See also Moss v. Rose, 27 Or. 598 (50 Am. St. Rep. 743, 41 Pac. 666). In this case the defendant had cleared off sagebrush, and reduced to cultivation 100 acres out of 160, during a period of seven years, and was still engaged in clearing up the balance for the purpose of agriculture, and it was held, under the circumstances surrounding the case, that he was exercising reasonable diligence. And in Cole v. Logan, 24 Or. 304 (33 Pac. 568), Mr. Justice Moore says: “As he.(defendant) adds to the area of his cultivated land, he may increase the amount of his diversion until he has acquired the quantity necessary to properly irrigate the whole tract, and any subsequent appropriator diverts the water subject to such prior claim. To entitle the defendant, however, to the benefit of such an appropriation, he should, within a reasonable time, apply the water to such beneficial use. As fast as he can reasonably put his homestead into cultivation, he is entitled to divert and use the water for that purpose.” These authorities are sufficient to show that the proposition is settled in this State.

7. Now to return to the contemplated use or the object for which the claim of appropriation is made: After a completed appropriation, the appropriator may sell and convey his lands in connection with which the appropriation was made, and the water rights acquired thereby will pass appurtenant to the land. And this is so even where possessory rights to the public lands, the title to which has not yet been acquired from the government, is transferred by delivery of possession without deed or other writing: See Hindman v. Rizor, 21 Or. 112 (27 Pac. 13), and Low v. Schaffer, 24 Or. 239 (33 Pac. 678). The ruling under the facts of the former of these cases would seem to imply that if the party who initiated the appropriation had not yet completed it when the transfer of the possessory title to which the water right was appurtenant took place, that his successor would then complete the appropriation. The point, however, was not specially made, but we think it must be conceded that such would be the case. Suppose A is the owner in fee of a tract of land, or of a possessory title thereto, under the government, and initiates a water appropriation for contemplated use for the irrigation of such tract by proper notice, and actual diversion and conveyance to and upon the land, but, before he has a reasonable time in which to apply all the water needed to the use designed, he conveys the land with his water rights thus acquired to B, surely B could complete the appropriation by reducing the remainder of the land to cultivation, and applying the water to the irrigation thereof — that is, to A’s contemplated use. In this instance, B, having acquired A’s initiative right, makes the application in his stead, but to the object in connection with which A designed the use. Take another case. Suppose A makes a diversion for a contemplated use upon White Acre, which he owns, and afterwards, and before he has completed his appropriation by actual user of all the water of his appropriation needed for the cultivation of White Acre, he purchases Black Acre, of like dimensions, and requiring a like quantity of water for its cultivation, and thereupon he abandons White Acre, and uses the water upon Black Acre; can he thus complete his appropriation? It would seem reasonable that he could, although upon this proposition we have found no adjudicated cases. If such is the case, here is a change of the object in connection with which the use was primarily designed. However, in either case, the object was primarily the property of the appropriator.

8. Afteranappropriationiscompleted,it is settled that there may be a change of the place of use: See Wimer v. Simmons, 27 Or. 1 (50 Am. St. Rep. 685, 39 Pac. 6). Even a sale or transfer of the whole or a part of the appropriation may then be made, either in connection with or separate and apart from the land, and the purchaser may use it for an entirely different and distinct purpose: Drake v. Earhart, 2 Idaho, 716 (23 Pac. 541); Strickler v. Colorado Springs, 16 Colo. 68 (26 Pac. 313, 25 Am. St. Rep. 245).

9. Mr. Pomeroy, in his work on Water Rights, § 47, as touching the methods by which an appropriation is effected, asserts the following proposition: “The very object of his (the appropriator’s) appropriation may be to conduct the water from the stream, through a ditch or . canal across the intervening public lands, to the tract which he possesses as a mining claim, a farm, or a mill, or even to sell and dispose of the water thus conducted through the canal to other parties, who use it for like purposes on their own ‘claims’ or tracts of land.” And Mr. Kinney states the proposition in very much the same language. See Kinney on Irrigation, § 156. No authorities are cited in support of the text. The language here used by the learned authors, that the very object of the appropriation may be to sell and dispose of the water to other parties, who may use it for like purposes on their own claims or tracts, is only reconcilable with the idea that the contemplated use may be for other persons not concerned in the initiation of the appropriation, as they are discussing the methods of appropriation, not of the property rights after a completed appropriation, nor of a sale or disposal of the use while the appropriation is in process of acquirement. And we have seen that there can be no appropriation without actual application to the contemplated use. Mr. Kinney, in a succeeding section (§ 171), in a summary of his chapter upon “Methods by which Appropriations of Water may be Made,” says: “At the very inception of a valid appropriation of water from a natural stream or lake, there must be a bona fide intention upon the part of the one attempting to appropriate the water to apply the same, when his appropriation is completed, to some of the beneficial or useful purposes.” Then, after stating the office of the notice and the necessity of diversion, he says: “All the water, when so diverted, must be applied to some one. of the beneficial or useful purposes.” Mr. Pomeroy is also in accord with this view, although he does not state it so clearly. In this statement of the rule we find no element which requires the appropriator to make the contemplated use in connection with lands or property of his own, and the rule thus stated is complied with when the appropriator’s contemplated use is to work the mines, run the mill or irrigate.the land of another. In Simmons v. Winters, 21 Or. 35 (28 Am. St. Rep. 727, 27 Pac. 7), Mr. Justice Lord says: ' “While a settler cannot appropriate more water from the public domain than is necessary to irrigate his land, nor any to irrigate lands which he does not intend to cultivate, nor own or hold by possessory title,” and from this language it is argued that the rule goes farther than as stated by Mr. Kinney, and requires the appropriator to possess or own the lands in connection with which the contemplated use must be wrought out by a physical application thereto of the water claimed, but the language was used with reference to the facts of that particular case. So also language of somewhat similar import was used by Hawley, C. J., in Barnes v. Sabron, 10 Nev. 243, cited in Simmons v. Winters. In each of these cases the settler was making an appropriation for use upon his own lands. The question of a contemplated use elsewhere was not made, so that these cases are not authority here.

The general purpose of an appropriation is to utilize the water in the arid regions, where the supply is limited, for the development and advancement of beneficial industries. In many localities where the water is difficult of diversion, and the expense considerable in conducting it to the place of use, if individual landholders, or even an aggregation of them, were required to make the appropriation for use upon their own possession, these general purposes would be entirely defeated simply for the reason that such holders could not bear the burden of making the appropriation. In such cases other persons possessing capital are often willing to make the diversion for the benefit of those who have use for the water, but, unless they may contemplate a use which may be applied by the landowner to his possessions, they could not even initiate the appropriation until they had possessed themselves of lands in proportion to the amount of water it is desired to appropriate; so that if the user must be the appropriator, and the appropriator the landholder, the arid regions in many places would remain arid, whereas otherwise they could be made to teem with fertility. No sufficient reason has been suggested why the contemplated use may not be for and upon the possessions of a person other than the appropriator; the authorities we have seem to support the rule that it can be, and we believe it is correct upon principle. We take it, therefore, that the bona fide intention which is required of the appropriator to apply the water to some useful purpose may comprehend a use to be made by or through another person, and upon lands and possessions other than those of the appropriator. Thus the appropriator is enabled to complete and finally establish his appropriation through the agency of the user.

In Colorado, within the meaning of her constitution, it is held that the appropriation of water consists of two acts: First, a diversion; and, second, the application thereof to a beneficial use, and the latter is declared to be the essential act; hence it is there established that canal companies which are engaged in diverting the water and carrying it to the consumer are to be “regarded as an intermediate agency existing for the purpose of aiding consumers in the exercise of their constitutional rights, as well as a private enterprise prosecuted for the benefit of its owners.” Farmers’ High Line Canal Co. v. Southworth, 13 Colo. 130 (4 L. R. A. 767, 21 Pac. 1028); Wyatt v. Larimer Irrigation Co., 18 Colo. 308 (36 Am. St. Rep. 280, 33 Pac. 144). In effect, the carrier, that is the canal company, stands in the relation of an agent to the user, who must be regarded as the principal. But where a third element is essential to a valid appropriation, consisting of an intent which, by the nature of things, is peculiarly the act of the appropriator, and which must precede all others in the process of appropriation, it would seem that he who designed the scheme and made the diversion was the principal, rather than the user, who applies the result of the former’s labor to bis beneficial purpose. But, in whatever capacity the parties to the appropriation may be considered, the result is the same, the water of a public stream is eventually applied to a beneficial use, and the general purposes of such appropriations accomplished. As to who, in general, would own the appropriation when completed, it is not necessary for us to say at this time. We are of the opinion, however, that it is the subject of contract between the person who initiates the appropriation and the user. Nor is such a rule consistent or congenial with the creation and fostering of monopolies in the use of the waters of public streams. #’The appropriator cannot withhold the water from a beneficial use. He must be diligent in making the diversion, or else he loses his inceptive right; and reasonably expeditious in making the application to a beneficial use, otherwise his appropriation will be measured by the quantity actually used; and, he must not cease to use the .waters appropriated, upon pain of suffering an abandonment. And going with all this is the primordial condition that when not using he must suffer others to use.

10. Tested by this understanding of the law, let us examine the plaintiff’s appropriation. Mallett, Adams, and Lee contemplated a use, not only to be applied by themselves, but by such others as might come in under their ditch. They had in mind some persons with whom they had arranged to join them in the new settlement, should they find a suitable locality; and they expected others to come, as they did subsequently, some of whom they brought in themselves. Indeed, the very object of the scheme was to induce immigration and settlement, which they expected to accomplish by diverting the water, and conveying it to such localities as would be convenient for use, with a purpose of developing the appropriation with the aid of such other settlers as would apply the use. They had a reasonable expectation that there would be a demand for water as soon as they could convey it to a convenient place for the intended use, and in this respect the scheme could not be said to be merely speculative, impracticable, or visionary. Their original scheme comprehended the building of the ditch as far as the Dunbar place or tap. This is shown by the fact that their survey comprehended only that portion of the ditch. They refused to build the Morfitt extension, but allowed him to construct it, and conveyed to him an interest in the main or original ditch. But it was no part of the original design to carry the water down for the use of Morfitt or other persons convenient to such extension, and the same may be said of the Danielson extension. It was incumbent upon Mallett, Adams, and Lee to begin and construct the works and appliances necessary to a diversion and conveyance of the water to the place of use with all due and reasonable diligence. This they did, and accomplished their purpose in this respect in. 1884. The fact that Lee dropped out could make no difference. Mallett and Adams carried forward the enterprise as it was conceived and had been entered upon by all the parties. It was also incumbent upon them to have at the time, or approximately with the time of completing" such works and appliances, users ready and willing with sufficient lands and possessions to absorb the appropriation by application to a beneficial use within a reasonable time thereafter. They complied in part with this condition by arranging to divide their appropriation with Blanton, Brown, and others before they had completed the diversion; and at or near the time of such completion they contracted with others for transfers of additional subdivided interests, all of whom began the use of water through the ditch at about or near the time of the completion of the works and appliances for the diversion and conveyance of the water to the place of use. *

In Irwin v. Strait (Nev.), 4 Pac. 1215, one Withington had purchased a tract of land, diverted water, and caused it to flow thereupon in April, 1867, but did not begin the proper use of it for irrigating purposes until the spring of 1868. In commenting upon this state of facts, Belknap, speaking for the court, says: “We do not think that, in exercising reasonable diligence to appropriate the water, Withington was bound to use it for irrigation during the year 1867. It may have been impracticable by reason of the season, or the difficulties incident to an unsettled country, to have applied the water to irrigation the same spring in which he made his purchase.” So it would seem, in the case before us that if parties, through the intervention of the appropriators, began the use of water as early as the irrigating season of 1885, there would have been the manifestation of sufficient diligence to prevent the appropriation from lapsing. Whatever diversions were made through the Morfitt and Danielson extensions cannot be considered as within the Mallett, Adams, and Lee appropriations, as their contemplated use did not comprehend' an application through either of these extensions; and, as far as any appropriations made by parties through these extensions are concerned, they must be considered as individual appropriations, independent of that made by Mallett, Adams, and Lee, and their inception must date from the time of actual user, or at most from the time of the commencement of use in each individual case. There was an enlargement of the ditch in 1888, and a change of the point of diversion,, and at or subsequent to that time parties began the use of water; but the evidence is too meager by which to fix the date and quantity of such appropriations, and hence they can have no place in this investigation. The Nevada Ditch Company, the plaintiff herein, has acquired various subdivided interests of parties who acquired through Mallett, Adams, and Lee, and to this extent it must be considered as the owner of their appropriation. The stockholders may or may not be entitled to the use of water, as it regards the company, in proportion to the number of shares of stock they hold therein, but the stock is in no way the measure of the appropriation. The change of the point of diversion has worked no one an injury, and hence none can complain: Cole v. Logan.

Now as to the quantity of plaintiff’s appropriation: There are 1,643 acres under cultivation, which can be traced with reasonable certainty to users who began the use of water in 1883, 1884, and 1885, and 160 acres additional, which may be traced to a commencement in 1886. In 1894 there was irrigated under the two first sections of the ditch about 1,970 acres. Parties have been diligent in reducing their lands to cultivation, and yet at the time of the commencement of this suit had not reclaimed all their holdings as intended or desired. In the opinion of the referee, the capacity of the ditch was 2,082 inches, miner’s measurement, 1886, and at that time carried water to its full limit, all which was actually utilized for beneficial purposes. While the capacity of the ditch is not the measure of the appropriation, it nevertheless becomes a potent factor in the ascertainment of the primary intention and establishment of the appropriation, where the evidence touching the use and its inception is indefinite. It requires about one inch of water to the acre for successful irrigation, and when the land is new even more; but upon an average an inch an acre will suffice for the irrigation of the lands under the first two sections of the Nevada ditch, including loss by seepage and evaporation. Thus considered, plaintiff’s appropriation would range from 1,643 to 1,970 inches, measured by actual user. Upon the whole, we think plaintiff should be allowed an appropriation of 2,000 inches of water, miner’s measurement, which has for its commencement by relation to August or September, 1881, if not to June 12 of that year, the date of posting the notice.

11. As regards the agency ditches, the Pacific Live Stock Company claims an appropriation prior to the plaintiff. It is contended that the government, having set aside the Malheur Indian Reserve, and its officers and agents having constructed the two Agency ditches, diverted the water thereby, and used it for agricultural and mechanical purposes, making an appropriation of the water for beneficial uses, with like effect as if it was a private individual; and that, having granted the lands upon which the ditches are located and the water was utilized, with their appurtenances, the grant carried with it the appropriation, all which the Pacific Live Stock Company has acquired through mesne conveyances from the government. Actual diversion and use for beneficial purposes will constitute an appropriation; but is such the effect when the government has made the diversion from a public stream, and applied the use to government property, although for beneficial purposes? Prior to September 12, 1872, the lands comprised in the Malheur Indian Reservation were a part of the public domain, but by executive orders of date September 12, 1872, May 15, 1875, and January 28, 1876, they were withdrawn from settlement, and set apart for the use and occupancy of the Snake and Piute Indians. By executive orders of date September 13, 1882, and May 21,' 1883, the whole reserve was again restored to the public domain, except 320 acres upon which the old Camp Harney military post buildings were situated. On May 23, 1883, the agency buildings, and sections 3 and 10, Tp. 19 S., R. 37 E., upon which they were situated, were ordered sold, in accordance with the provisions of sections 2122 and 2123, United States Revised Statutes. The remaining portions of the lands so restored to the public domain were thrown open to settlement. E. L. Bradley having pre-empted the lan^s in section 4 upon which the heads of both ditches are located, the government issued to him the usual patent therefor, containing the following conditions and reservations, viz.: “To have and to hold the same, together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging * * * subject to any vested and accrued water rights, for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local customs, laws, and decisions of courts, etc.” This patent was issued November 26, 1889. T. M. Overfelt purchased the agency buildings, with sections 3 and 10, and on May 9, 1885, a patent was issued to him for these buildings and premises, with like conditions and reservations in every respect as the Bradley patent, except the words “improvements, tenements,” are inserted and precede the words “rights, privileges, immunities, and appurtenances.”

It has been the policy of the general government from an early date, when the exigencies of the public service required it, for the President, through the instrumentality of executive orders, to reserve such portions and parcels of the public domain from sale and settlement as seemed expedient, and thereby set them apart for public use, and it may be conceded that the President had competent authority for so doing: Grisar v. McDowell, 73 U. S. (6 Wall.) 381. It may be predicated of the waters of non-navigable streams upon the public domain, that ,are not appropriated by the methods cognizant to law, that they are as much the property of the government as the lands through which they flow: Kinney on Irrigation, § 134. Hillyer., J., in Union Mining Co. v. Ferris, 2 Saw. 176 (Fed. Cas. No. 14, 371), says: “A stream of water is a part and parcel of the land through which it flows, inseparably annexed to the soil. * * * The government, as proprietor of the land through which a stream of water naturally flows, has the same property and right in the stream as any other owner of land has, be it usufructuary or otherwise.” See also Vansickle v. Haines, 7 Nev. 249. In the Mining Debris Case, 9 Sawy. 492 (18 Fed. 753), Sawyer, C. J., says: “As owners of the public lands, the United States, like any other owner, could sell them in large or small quantities, and convey a fee simple title to their grantees, or could lease them, or reserve them from sale, or grant a limited estate, subject to easements granted to others. * * * They could do all this with their own lands, held in the character of proprietor, merely as the public lands are held.” In short, the government can deal with its lands as other land proprietors can deal with theirs. In the Pacific Coast states congress has recognized the privilege of private citizens to acquire usufructuary interests in the waters of public streams, independent of riparian ownership. This is but one way, however, Of disposing of the public domain. A new and peculiar right is carved out of it, and settled upon private persons, either in their individual or corporate capacity. Now, if such an estate may be carved out of the public domain for an individual, it may be reserved by the general government, but the waters of non-navigable streams are part of such public domain, and hence the property of the government, which may lay hold of and use them, without taking any of the steps made necessary to obtain an usufructuary interest therein by private individuals. But if it would prevent individuals from acquiring interests by prior appropriation, it would seem that there should be a reservation made of such waters either by act of Congress or some executive order. Such has not been the case here. The most that can be predicated of the acts of the government and its officers and agents, in the diversion and use of waters in connection with the agency lands, buildings, and machinery, is that it was a reservation for a public use, not an appropriation for a beneficial use in that sense, although actually used by the government for beneficial purposes, which was also a public use. It was a use the government could employ so long as it saw fit, but it is not clear how a public use could become appurtenant to the soil so as to pass with it to a private ' individual.

12. The public use which the government employs, and the usufructuary interest acquired by the individual by appropriation, are two distinct and different things; the latter may and does pass appurtenant to the soil, but the moment the government parts with its domain to a private individual the public use is abandoned, unless a like use is by special and competent stipulations passed to him by his grant. It is not claimed that such was the case here. But when the reserve was thrown open to sale and settlement the reserved lands were thereby restored to the public domain, and the public use abandoned, and such would surely be the effect as it relates to any reservation ot the waters of such domain for a like use. This, of course, proceeds upon the assumption that the use made of the waters by the officers and agents of the government had the effect of a formal withdrawal thereof by competent authority under the government, but we do not decide that such was in reality the effect of such use. Such we think would be the effect of a restoration to the public domain, and the ordinary patent would not carry with the lands the public use made of the waters upon such lands as an appurtenant thereto.

13. But if weare mistakenin thisview of the question, there is another matter connected with the transaction which is fatal to the Pacific Live Stock Company’s claim. It derives its title through patent from the government, which is a grant “subject to any vested and accrued water rights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local customs, laws, and decisions of courts.” This is an implied recognition of such rights of prior appropriators as had at the date of the patent been established, and a direct transfer expressly subject to such rights. And the patentee, and, a priori, his successor in interest, can take no larger estate than the government has been pleased to grant: Kinney on Irrigation, § 148. So that the company is especially estopped by its muniments of title from claiming as a specific grant from the government, whether as an appurtenant or otherwise, the usufruct of the -waters of the Malheur River and its tributaries, as against any and all persons who acquired rights as prior appropriators of the waters of such streams before the issuance of the patents to Bradley and Overfelt. The addition of the words “improvements and tenements” in the Overfelt patent cannot enlarge the grant, except in so far as is quite apparent from the incidents and the patent itself that the government meant to pass the title to the agency buildings as well as to the land. In this view of the matter, the Pacific Live Stock Company must depend for its water rights upon such appropriation as was initiated by Overfelt & Co., after possession of sections 3 and 10 was surrendered to them by the government. It appears that they took possession in April, 1885, prior to the issuance of the patent, and that they at once repaired both these ditches, and began the use of water through them for useful purposes. If such was the case, the inception of the Pacific Live Stock Company’s appropriation antedates the patent to Overfelt, and was a right acquired independent of such patent, and such a right as one holding merely the possessory title to government lands might acquire. But even the inception of the right, whatever it may be, cannot take an earlier date than April, 1885, which is long subsequent to the acquirement by plaintiff of its appropriation, and hence is subordinate thereto.

As concerns the Gillerman-Froman ditch, it has been suggested that the appropriation made by means of it had its inception with the Rinehart survey in 1877 or 1878, but Rinehart did not follow up the survey with the construction of the ditch and diversion of water, nor is there any privity of interest shown between him and the Gillerman-Froman people, so it is plain there is no merit in the suggestion. In the absence of such privity the Gillerman-Froman appropriation is clearly subsequent in time to that of the plaintiff.

For the Malheur Farmers’ Irrigating Ditch Company it is claimed that its appropriation had its inception with the Osburn surveys in 1880, and the posting and recording of a notice of appropriation claiming 5,000 inches of water a mile and a half above the head of its ditch. But Osburn and Limeberger did not exercise reasonable diligence in making their diversion, and there is no relation between their attempted appropriation and the one which the company now possesses. Hence its appropriation is also subordinate to plaintiff’s.

Eastman Bros. & Ballentine acquired no rights to their appropriation earlier than 1884, nor did the Sand Hollow Ditch people prior to July, 1885. The Warm Spring Valley ditch was constructed without notice in 1888, and it is not claimed that any appropriation was made through the Harper’s Ranch ditch earlier than April, 1883. So that all these appropriations are subservient to that of the plaintiff.

These considerations lead to a modification of the decree of the court below, and a decree will be entered here establishing the plaintiffs appropriation of 2,000 inches of water, miner’s measurement, and enjoining all the defendants who are parties to the appeal from diverting any of the waters of the Malheur River until the plaintiff receives the amount of its appropriation. The case will be remanded to the court below, with directions to carry the decree into effect.

Modified.