the important Act of Congress of July 26, 1866,1 is a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, rather than the establishment of a new one, and the priority secured thereby exists, although the three conditions named therein may not all be present in the particular case. A statute upon this subject, like others, is of higher authority than a custom, and kins v. McClue, 46 Cal. 656; Hutton v. Frisbie, 37 Cal. 474. Lands claimed are public lands of the United States until the claimant proves up his claim and pays for the land. Farley v. Spring Valley Mining Co., 58 Cal. 142. A mere entry upon such lands gives no vested rights against the government until final proof. Ellis v. Pomeroy Impr. Co.. 1 Wash. 572. 1 This section 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 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: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage." 14 Stat. at Large, 253; 29 id. 120; U. S. Rev. Stats. § 2339, 2340; Basey v. Gallagher, 20 Wall. 670; Atchison v. Peterson, id. 507; Jennison v. Kirk, 98 U. S. 453, 462, note; Mining Co. v. Tarbet, id. 463; Bear Lake Ir. Co. v. Garland, 164 U. S. 1; Thorp v. Freed, 1 Mont. 651; Gold Hill M. Co. v. Ish, 5 Oregon, 104; Jacob v. Day, 111 Cal. 571; Smith v. Hawkins, 110 Cal. 122; Tynon v. Despain, 22 Col. 240; Carson v. Gentner, 33 Oregon, 512; Rio Grande W. Ry. Co. v. Telluride P. & T. Co., 16 Utah, 125. See Acts of Congress of July 9, 1870 (16 Stats. at Large, 217), and of May 10, 1872 (17 Stats. at Large, 91); and of March 3, 1891; Nippel v. Forker, 9 Col. App. 106. Miller, J., in Broder v. Water Co., 101 U. S. 276; 50 Cal. 621; Sparrow v. Strong, 3 Wall. 97, 777; Basey v. Gallagher, 20 Wall. 670; Ison v. Nelson M. Co., 47 Fed. Rep. 199; Silver Peak Mines v. Valcalda, 79 id. 886; 86 id. 90; Isaacs v. Barber, 10 Wash. 124; McGuire v. Brown, 106 Cal. 660; Scott v. Toomey, 8 S. Dak. 639; Barnes v. Sabron, 10 Nev. 217. Water and ditch rights which accrued and vested after, as well as those accruing and vesting before, the act of July 26, 1866, are protected by the statutes. Jacob v. Lorenz, 98 Cal. 332. See Sturr v. Beck, 133 U. S. 541; Drake v. Earhart, 2 Idaho, 716; Scott v. Toomey, 8 S. Dak. 639; Jarvis v. State Bank, 22 Col. 309; Speake v. Hamilton, 21 Oregon, 3, 5, 8. The water rights thus protected do not give rise to a Federal question under the Removal Acts. In re Helena Co., 48 Fed. Rep. 609. The States cannot so authorize the appropriation of the sources of a river flowing through different States as to seriously impair its navigability. United States v. Rio Grande Dam & Ir. Co., 174 U. S. 690. prevails over it in case of conflict.1 Congress alone can control and dispose of the public lands in a Territory, but under the above act of Congress, and the amendatory acts of 18702 and of 1872, the legislative assembly of a Territory, or miners, may establish laws or rules defining the extent of mining claims, and regulate the modes of developing and working them. The local customs mentioned in the above act are not judicially noticed by the courts, so far as they create rights differing from those possessed by riparian proprietors at common law, but it is incumbent upon the party relying upon such a custom to allege and prove it. They cease to be operative upon falling into disuse; but upon proof that they have been in force, they are presumed to continue in force until the contrary is proved. Prior to the statute, rights acquired by appropriation, and supported by the customs, laws, or decisions of the State in which the land was situated, were enforced 1 Ibid.; Woodruff v. No. Bloomfield G. M. Co., 8 Sawyer, 628; 9 id. 441; Original Co. v. Winthrop M. Co., 60 Cal. 631. 216 Stats. at Large, 217. 317 Stats. at Large, 91. As to the rights of an alien under this statute, see North Noonday Mining Co. v. Orient Mining Co., 1 Fed. Rep. 522. 4 Territory v. Lee, 2 Mont. 124; Orr v. Haskell, id. 225; English v. Johnson, 17 Cal. 107; Morton v. Solambo Copper M. Co., 26 Cal. 527; Jackson v. Roby, 109 U. S. 440; Tenem Ditch Co. v. Thorpe (Wash.), 20 Pac. Rep. 588. A mining custom cannot be proved by parol, if there are written regulations in force on the subject. Ralston v. Plowman, 1 Idaho, N. S. 595. 5 Lewis v. McClure, 8 Oregon, 273; Esmond v. Chew, 15 Cal. 137, 143; case in 1 Fed. Rep. 522 (cited supra, note 3). The statute of California, enacted April 1, 1870, providing for the condemnation of a right of way over or through a mining claim for the ditches, tunnels, etc., of another mining claim, is cumulative, and does not prevent the construction of ditches, etc., authorized by local cus toms. Bliss v. Kingdom, 46 Cal. 651. Under section 17 of the act of 1870, the rights of a pre-emptioner, as against appropriators, date only from his patent or certificate of purchase. Osgood v. Eldorado Water Co., 56 Cal. 571; Lux v. Haggin, 69 Cal. 255. A patent from the United States does not conclusively limit all a prior appropriator's right, since he may still carry his ditch through the patentee's land to a point higher up the stream when necessary to give him the full supply to which he is entitled. Ware v. Walker, 70 Cal 591; Judkins v. Elliott (Cal.), 12 Pac. Rep. 116; Lytle Creek Water Co. v. Perdew, 65 Cal. 447; Kaler v. Campbell, 13 Oregon, 596. The filing of a homestead entry of land through which a natural stream flows, with no prior right to divert, confers a right to have the stream run in its channel without diversion. Sturr v. Beck, 133 U. S. 541; Faull v. Cooke, 19 Oregon, 455. 6 Jupiter Mining Co. v. Bodie Cons. Co., 11 Fed. Rep. 666; Harvey v. Ryan, 42 Cal. 626; Williams v. Harter, 121 Cal. 47. only between occupants of the public land having no title to the soil, and the effect of the statute is to preserve this priority against those who have received patents to the land since its enactment. The statute is prospective in its operation, and does not affect a patent issued before its passage,3 or a patent subsequently issued to a person who had paid for the land prior to the act, entered thereon and received a certificate of purchase, since the patent when issued relates to the date of the entry. It does not give right of way not recognized by the customary law of the State or Territory, and the proviso to the ninth section conferred no additional rights upon the owners of ditches subsequently constructed, but simply rendered them liable to persons on the public domain whose possessions might be injured by such construction. The water rights sustained by this statute are rights belonging to real estate, and are not lost by a non-user, which does not amount to an abandonment and is short of the statutory period for the recovery of real property." 1 Ante, § 231. 2 Union Mill Co. v. Ferris, 2 Sawyer, 176, 185; Howell v. Johnson, 89 Fed. Rep. 556; Cruse v. McCauley, 96 id. 369; Vansickle v. Haines, 7 Nev. 249; Hobart v. Ford, 6 Nev. 77; Shoemaker v. Hatch, 13 Nev. 262; Rivers v. Burbank, id. 398; Jones v. Adams, 19 Nev. 78; Hobart v. Wicks, 15 Nev. 418; Broder v. Natoma Water Co., 50 Cal. 621; 101 U. S. 274; Titcomb v. Kirk, 51 Cal. 288; Cave v. Crafts, 53 Cal. 135; Osgood v. El Dorado Water Co., 56 Cal. 571; Himes v. Johnson, 59 Cal. 259; 61 Cal. 259; Coffin v. Left Hand Ditch Co., 6 Col. 443; De Necochea v. Curtis, 80 Cal. 397; South Yuba W. Co. v. Rosa, id. 333; Geddis v. Parrish, 1 Wash. St. 587; Lansdale v. Daniels, 100 U. S. 118; Daniels v. Lansdale, 43 Cal. 41; Megerle v. Ashe, 33 Cal. 74; Smith v. Athern, 34 Cal. 507. 3 Union Mill Co. v. Ferris, 2 Sawyer, 176; Bybee v. Oregon, etc. R. Co., 139 U. S. 663. 4 Ibid.; Union Mill Co. v. Dangberg, 2 Sawyer, 450. 5 Jennison v. Kirk, 98 U. S. 453; Noteware v. Sterns, 1 Mon. 311; Robertson v. Smith, id. 410; Alta L. & W. Co. v. Hancock, 85 Cal. 219. 6 Dodge v. Marden, 7 Oregon, 456; Wood v. Etiwanda W. Co., 122 Cal. 152. 241, 242. The extent of this right as applied to rights in waters 244. Compensation necessary, and when to be made. 245. Taking of water for the supply of cities, for canals, etc. 248, 249. Consequential injuries. 250. Damages how obtained for authorized injuries. 251, 252. Damages obtainable and how estimated. 253. Validity of mill acts. 254. Public mills. 255. Change in the public use and additional burdens. 256, 257. Roads or bridges across streams to be provided with passage-ways for the water. 258. No liability for injuries in the absence of negligence. 259. Continuing trespasses and effect of judgments. 260-262. Liability of municipal corporations for flowage. 241. Extent of this right.-The power of the government to affect private rights of property, as the interests of the public may require, which is an incident of sovereignty requiring no constitutional recognition,' is frequently so exercised as to materially modify natural or acquired rights in water, and in the lands over which the water flows or is conducted in artificial channels. Private property may be thus appropriated in favor of private persons, either individuals or corporations, when the public service is the object of the grant, as in the case of private canal, ferry,' water or 1 United States v. Jones, 109 U. S. 513, As to the power of an English colony to cause waters to be diverted, see Remfry v. Surveyor General of Natal, [1896] A. C. 558. 2 Varick v. Smith, 5 Paige, 137; Spring v. Russell, 7 Maine, 273; Briggs v. Cape Cod Ship Canal, 137 Mass. 71; Dalles L. Co. v. Urquhart, 16 Oregon, 67; Chesapeake Canal Co. v. Key, 3 Cranch C. C. 599; Hayden v. State, 132 N. Y. 533; Willyard v. Hamilton, 7 Ohio, pt. 2, p. 111; Wabash Canal v. Spears, 16 Ind. 440; 3 Day v. Stetson, 8 Maine, 365; Barrington v. Neuse River Ferry Co., 69 N. C. 165. aqueduct1 companies. For such purposes the legislature may, in its discretion, appropriate the fee of lands; but its enactments will, if possible, be construed and limited to create a servitude only, when that is sufficient to answer the public wants. The use is public when it promotes the interests of a considerable portion of the community, although it may not benefit the community at large or particular individuals in the locality; as in the case of a water supply and land condemned to furnish water-works for a particular city or town, or for an Rubottom v. McClure, 4 Blackf. 505; Chesapeake Canal Co. v. Young, 3 Md. 480; Black v. Delaware Canal Co., 22 N. J. Eq. 130; Tide Water Canal Co. v. Archer, 9 Gill & J. 479. As to canals in Pennsylvania, see Craig v. Allegheny, 53 Penn. St. 477; Wyoming Coal Co. v. Price, 81 id. 156; Robinson v. West Pennsylvania R. Co., 72 id. 316; Pennsylvania Canal Co. v. Billings, 94 id. 40. In New York, see Woodman v. People, 127 N. Y. 397; Waterloo W. M. Co. v. Shanahan, 128 N. Y. 345; Sweet v. Syracuse, 129 N. Y. 316, 643. 1 Lumbard v. Stearns, 4 Cush. 60; Lowell v. Boston, 111 Mass. 464; Burnett v. Com., 169 Mass. 417; Talbot v. Hudson, 24 Law Rep. 228; 16 Gray, 417; Long Island W. S. Co. v. Brooklyn, 166 U. S. 685; Pocantino W. W. Co. v. Bird, 130 N. Y. 249; In re Brooklyn, 143 N. Y. 596; Lynch v. Forbes, 161 Mass. 302; Stevens v. Danbury, 53 Conn. 9; State v. Atlantic City W. Co., 55 N. J. L. 235; Now Rochelle W. Co. v. Brush, 19 N. Y. S. 954; Syracuse v. Glenside W. Mills, 73 Hun, 421; Syracuse v. Stacey, 86 Hun, 441; Wetzel v. United States, 25 Ct. Cl. 277; Miller v. Windsor W. Co., 148 Penn. St. 429; Wisconsin W. Co. v. Winans, 85 Wis. 26; San Diego W. Co. v. San Diego Flume Co., 108 Cal. 549; Nalle v. Austin (Tex. Civ. App.), 21 S. W. Rep. 375; Heyneman v. Blake, 19 Cal. 579; Spring Valley W. Works v. Drinkhouse, 92 Cal. 528. 2 Malone v. Toledo, 34 Ohio St. 541; Indianapolis Waterworks Co. v. Burk hart, 41 Ind. 364; Nelson v. Fleming, 56 Ind. 310; Cromie v. Trustees, 71 Ind. 208; Harlow v. Rogers, 12 Cush. 291; Logansport v. Shirk, 88 Ind. 563; Western Penn. R. Co.'s Appeal, 99 Penn. St. 155, 163; Frank v. Evansville R. Co., 111 Ind. 132; Blair v. Kiger, id. 193; Pickman v. Peabody, 145 Mass. 480; Woodbury v. Marblehead Water Co., id. 509; Page v. O'Toole, 144 Mass. 303; Dingley v. Boston, 100 id. 559; Titus v. Boston, 161 id. 309; Burnett v. Com., 169 id. 417; Burnett v. Boston, 174 id. 173; People v. Haines, 49 N. Y. 587; Baker v. Johnson, 2 Hill, 342. But see Brewster v. J. & J. Rogers Co., 59 N. Y. S. 32. 3 Farmer v. Waterloo & City R. Co., [1895] 2 Ch. 527; Holywell Union v. Halkyn D. Co., [1895] A. C. 117; 69 L. T. 705; Doncaster Union v. Manchester, S. & L. Ry. Co., 71 L. T. 585; Bevan v. London P. C. Co., 67 id. 615; Waller v. State, 144 N. Y. 579; Edgerton v. Huff, 26 Ind. 35; Harback v. Boston, 10 Cush. 295; Conklin v. Old Colony R. Co., 154 Mass. 155; ante, § 101; McCombs v. Stewart, 40 Ohio St. 647; Weisenberger v. Miller, 7 Ohio Cir. Ct. 173; Pittsburgh R. Co. v. Bruce, 102 Penn. St. 23; Holman v. Green, 2 Hazard & W. (Pr. Edw. Island) 320. In such case, if an aqueduct is built beneath the surface, evidence of the value of the fee is inadmissible. Re Thompson, 12 N. Y. S. 182. 4 Wayland v. Middlesex, 4 Gray, 500; Boston W. P. Co. v. Boston Rail |