regard to the question of priority. Even in Massachusetts no riparian proprietor has a right unreasonably to divert the water or change the use of it, otherwise than in the above manner, to the injury of other proprietors upon the stream, unless such right has been acquired by grant or prescription; and the right which a mill-owner acquires by prior occupation, "is not so absolute," says Merrick, J., "as to give him the control of the whole stream, or to deprive other proprietors of the reasonable enjoyment of the privileges to which they are naturally entitled. They may still construct and maintain dams across the stream at any point either above or below his mill, for the purpose of raising a head of water to propel, operate, and work mills of their own, erected on the adjoining land, provided that their arrangements are so made that they will not unreasonably withhold and detain the water above, nor throw it back from below, so as to affect, impede, delay, or obstruct the movement and operation of the wheels and machinery of his previously existing mill."

§ 228. In California, Nevada, and other Pacific States and Territories, the common-law rule upon this subject is modified, owing to the peculiar condition of the settlers and

Hartzall v. Sill, 12 Penn. St. 248; Baldwin v. Calkins, 10 Wend. 167; Platt v. Johnson, 15 Johns. 213; Martin v. Bigelow, 2 Aik. (Vt.) 184; Johns v. Stevens, 3 Vt. 308; Davis v. Fuller, 12 Vt. 178; Pugh v. Wheeler, 2 Dev. & Bat. 50; Hoy v. Sterrett, 2 Watts, 327; McCalmont v. Whitaker, 3 Rawle, 84; Strickler v. Todd, 10 S. & R. 63; Whaler v. Ahl, 29 Penn. St.

1 Keeney Manuf. Co. v. Union Manuf. Co., 39 Conn. 576, 582; Parker v. Hotchkiss, 25 Conn. 321; King v. Tiffany, 9 Conn. 162; Tucker v. Jewett, 11 Conn. 324; Roath v. Driscoll, 20 Conn. 541; Tyler v. Wilkinson, 4 Mason, 397; Whipple . Cumberland Manuf. Co., 2 Story, 661; Gilman v. Tilton, 5 N. H. 231; Odiorne v. Lyford, 9 N. H. 502; Cowles v. Kidder, 24 N. H. 378; Hooksett v. Amoskeag 98. Manuf. Co., 44 N. H. 106; Snow v. Parsons, 28 Vt. 463; Dumont v. Kellogg, 29 Mich. 422; Ryerson v. Brown, 35 Mich. 333; Timm v. Bear, 29 Wis. 254; Stout v. McAdams, 2 Scam. 67; Wilcoxon r. McGee, 12 Ill. 381; Bliss v. Kennedy, 43 Ill. 67; Rudd v. Williams, 43 Ill. 385; Hendrick v. Cook, 4 Ga. 241; Pool v. Lewis, 41 Ga. 162; Beavers v. Trimmer, 25 N. J. L. 97;

2 Cowell . Thayer, 5 Met. 253, 256; Boliver Manuf. Co. v. Neponset Manuf. Co., 16 Pick, 241; Williams v. Nelson, 23 Pick. 141; Elliott v. Fitchburg Railroad Co., 10 Cush. 191.

3 Smith v. Agawam Canal Co., 2 Allen, 355, 357; Dean v. Colt, 99 Mass. 486; Gleason v. Assabet Manuf. Co., 101 Mass. 72; Thurber v. Martin, 2 Gray, 394.

miners upon the public lands; and the right to running water exists without private ownership of the soil, upon the ground of prior location upon the land or prior appropriation of the water. When there is no private ownership of the soil, the rights acquired by such priority are as perfect and absolute as if acquired by prescription or by an express grant from riparian proprietors.1 "The reasons," says Sanderson, C. J.,2 "which constitute the groundwork of the common law upon this subject remain undisturbed. The conditions to which we are called to apply them are changed, and not the rules. themselves. The maxim, sic utere tuo ut alienum non laedas, upon which they are grounded, has lost none of its governing force; on the contrary, it remains now, and in the mining regions of this State, as operative a test of the lawful use of water as at any time in the past, or in any other country. When the law declares that a riparian proprietor is entitled to have the water of a stream flow in its natural channel ubi currere solebat - without diminution or alteration, it does so because its flow imparts fertility to his land, and because water in its pure state is indispensable for domestic uses. But this rule is not applicable to miners and ditch owners,

1 Kidd v. Laird, 15 Cal. 161; Butte T. M. Co. v. Morgan, 19 Cal. 609.

2 Hill v. Smith, 27 Cal. 476, 482. In Atchison v. Peterson, 20 Wall. 507, 512, Field, J., after referring to the common-law rule by which the different riparian proprietors have an equal right to use the water of the stream, said: "This equality of right among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream. But the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common-law doctrine of riparian proprietorship with respect to the waters of those streams. The government, by its

silent acquiescence, assented to the general occupation of the public lands for mining, and, to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale, and the acquisition of title by settlement. And he who first connects his own labor with property thus situated and open to general exploration, does, in natural justice, acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public lands throughout the Pacific States and Territories by their customs, usages, and regulations everywhere recognized the inherent justice of this principle; and the principle itself was at an early period recognized by legislation and enforced by the courts in those States and Territories."

simply because the conditions upon which it is founded do not exist in their case. They seek the water for a particular purpose, which is not only compatible with its diversion from its natural channel, but more frequently necessitates such diversion, and moreover does not require the water in a pure state in order to insure its reasonable and beneficial use. Yet the maxim above mentioned, upon which the rule is founded, is equally as applicable to the ditch owner and to the miner as to the riparian proprietor, and neither can so use the water as to injure or prejudice the prior rights to a like use by the other. This maxim is one which every riparian proprietor is bound to respect, and it is no less obligatory upon those who use and divert water for mining purposes." The remainder of this chapter is devoted to the rules which are applicable in the States above referred to, and are peculiar to them.

§ 229. As between persons who claim the water of a stream flowing through the public land, merely by the prior appropriation of the water itself, or by a prior location upon the land, he has the best right who is first in time.1 The first appropriator is entitled to use and enjoy the water to the full extent of his original appropriation, even when this includes all the water of the stream, to have its quality unimpaired so as not to defeat the purpose of such appropriation, and to remove obstructions from the natural channel. He may apply it to any beneficial purpose, without any obligation to

1 Butte Canal Co. v. Vaughan, 11 Cal. 143; Ortman v. Dixon, 13 Cal. 38; McDonald v. Bear River Mining Co., 15 Cal. 145; 13 Cal. 220; Hoffman v. Stone, 7 Cal. 49; Irwin v. Phillips, 5 Cal. 140; Sims v. Smith, 7 Cal. 148; Marius v. Bicknell, 10 Cal. 217; Hill ». Newman, 5 Cal. 445; Leigh Co. v. Independent Co., 8 Cal. 323; Sullivan v. Beardsley, 55 Cal. 608; Atchison v. Peterson, 20 Wall. 507; 1 Mon. 561; Basey v. Gallagher, Id. 670; 1 Mon. 455; Stafford v. Hornbuckle, 3 Mon. 485; Lobdell v. Simpson, 2 Nev. 274;

Ophir Silver Mining Co. v. Carpenter, 4 Nev. 534; James v. Goodenough, 7 Nev. 324; Dalton v. Bowker, 8 Nev. 190; Schilling v. Rominger, 4 Col. 100; Thorp v. Woolman, 1 Mon. 168.

2 Ibid.; Lobdell r. Simpson, 2 Nev. 274; Ophir Silver Mining Co. v. Carpenter, 4 Nev. 543; Barnes v. Sabron, 10 Nev. 217; Nevada Water Co. r. Powell, 34 Cal. 109; Gale v. Tuolumne Water Co., 14 Cal. 25; Sims v. Smith, 7 Cal. 148.

return it to the stream from which it was taken, or to preserve its purity or quantity: He is equally entitled to have his right unimpaired by subsequent locators above as well as below him, and may peacefully abate an obstruction in the stream which interferes with his superior claim, even when by statute an abatement is authorized by legal remedies.3 Percolating water cannot be permanently appropriated, and the owner of land on which a spring is situated may so use his land as to cut off the water from an irrigating ditch which is supplied from the spring. Subsequent appropriators do not acquire any right to the waters of springs which have been previously appropriated, and which constitute the the source of a creek, from the fact that the means by which the waters reach the creek are subterranean and not well understood.5

§ 230. The right to thus appropriate water exists without private ownership in the soil as against all persons but the government or its grantees.6 Possession of public land which has not been surveyed or patented gives rise to no riparian rights in the streams which flow through it. If the water of a stream on the public land is appropriated and the land is afterwards patented, the patentee succeeds, in the absence of statute,8 to the right of the government, unencumbered by the previous appropriation, and as no prescription runs against the government, it is immaterial how long the water may have been appropriated and used in a particular manner prior to the issue of the patent. The first appropriator is only required to prove his priority in an action

1 Union Mill Co. v. Ferris, 2 Sawyer, 184; Hill v. Smith, 32 Cal. 166; Bear River Co. v. York Mining Co., 8 Cal. 327; Mokelumne Hill Co. v. Woodbury, 10 Cal. 185.

2 Hill v. King, 8 Cal. 336.

8 Stiles v. Davis, 5 Cal. 120; Butts T. M. Co. v. Morgan, 19 Cal. 609. 4 Hanson . McCue, 42 Cal. 304. 5 Strait v. Brown, 16 Nev. 317. * Hill v. Newman, 5 Cal. 445; Van

against one who simply denies that he is first in time.1 The defendant, if he has no patent, cannot defeat the action by proof of the paramount title of the government;2 and if a prior claim to the water exists in a third person, this fact, to be available in defence, must be pleaded specially.3

§ 231. The right of the first appropriator is fixed by his appropriation, and when others locate upon the stream or appropriate the water, he cannot enlarge his original appropriation or make any change in the channel to their injury.* Each subsequent locator or appropriator is entitled to have the water flow in the same manner as when he located, and may insist that the prior appropriators shall be confined to what was actually appropriated or necessary for the purposes for which they intended to use the water. If a portion of the water is appropriated only for certain days, others may not only appropriate the surplus in whole or in part, but may use the quantity of water first appropriated, at such times as it is not used or needed by the first appropriator.6

1 Coryell v. Cain, 16 Cal. 567. 2 Ibid.

owner. 634.

Crary v. Campbell, 24 Cal. The water flowing in a ditch

3 Humphreys v. McCall, 9 Cal. 59; owned by tenants in common cannot Bird v. Lisbros, Id. 1.

+ Lobdell v. Simpson, 2 Nev. 274; Proctor v. Jennings, 6 Nev. 83; Barnes v. Sabron, 10 Nev. 217; American Co. v. Bradford, 27 Cal. 360; Nevada Water Power Co. v. Powell, 34 Cal. 109; Higgins v. Barker, 42 Cal. 233.

5 Ibid. See post, § 236.

6 McKinney v. Smith, 21 Cal. 374; Smith v. O'Hara, 43 Cal. 371; Barnes v. Sabron, 10 Nev. 217. Where one tenant in common receives all the rents and profits from the business of a ditch or mine, his co-tenant may maintain an action at law against him to recover his share. Abel v. Love, 17 Cal. 233. If one joint owner of a flume used for mining purposes consents to the opening of a ditch above, the water from which injures the flume, damages cannot be recovered for such injury by the other joint

be partitioned, but, in case of dispute as to their respective rights, a sale and distribution of the proceeds may be ordered by the court. McGillivray v. Evans, 27 Cal. 92. Where a ditch for mining purposes is owned by several proprietors, and their relation is not otherwise defined, they are to be regarded as tenants in common of real estate, and their rights are determined by the rules of law applicable to such tenants. Bradley v. Harkness, 26 Cal. 69; Jones v. Parsons, 25 Cal. 100; Reed v. Spicer, 27 Cal. 63; Parke v. Kilham, 8 Cal. 77. Their relation has some of the incidents of a partnership. Goodenow v. Ewer, 16 Cal. 461; Jones v. Parsons, 25 Cal. 100; Duryea ». Burt, 28 Cal. 569; Dougherty v. Creary, 30 Cal. 290; Chase v. Steell, 9 Cal. 66; Bradley v. Harkness, 26 Cal. 69.

When necessary, a