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stream which receives it are entitled to the increase according to priority. The same is true when water is discharged into a stream as matter of convenience and without intention to reserve it.2 In controversies of this character, the person who mingles the water belonging to him with that appropriated by others has the burden of proof to establish his right and the absence of intent to abandon. When the water and tailings passing away from a mining claim are abandoned, others may appropriate them, but cannot insist that the abandonment shall be continued for their benefit on the ground that they have incurred expense to secure the same.1 Tailings which are permitted to flow upon another's land belong to him, but a stranger is not entitled to take tailings merely because they flow in a mixed mass from different mining grounds.5

§ 240. Riparian proprietors who own the soil have the rights which attach to riparian ownership at common law, and each is entitled, as against his neighbors upon the stream, to the use of the water for the supply of natural wants, and to its reasonable enjoyment for manufacturing and other purposes. The United States, as proprietor of the public lands, has the same rights and property in the streams flowing through such lands that would be possessed by any riparian proprietor; and, in the absence of legislation by Congress limiting the effect of the grant, patents for public lands from the general government pass, together with the fee of the soil, and, as incident thereto, the benefit of all natural streams which flow through them. The patentee of land cannot acquire a prescriptive right to flow land

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1 Davis v. Gale, 32 Cal. 26; Eddy Cooney, 7 Nev. 213. See Wood v. v. Simpson, 3 Cal. 249.

2 McKinney v. Smith, 21 Cal. 374. 3 Butte Canal Co. v. Vaughn, 11 Cal. 143.

Dougherty v. Creary, 30 Cal. 290; Woolman v. Garringer, 1 Mon. 535. A possessory title to land may be acquired for the purpose of taking tailings deposited thereon. Rogers v.

Richardson, 35 Cal. 149.

5 Jones v. Jackson, 9 Cal. 237.

Union Mill Co. v. Ferris, 2 Sawyer, 176; Los Angelos v. Baldwin, 53 Cal. 469; Pope v. Kinman, 54 Cal. 3; Ferrea v. Knipe, 28 Cal. 340; ante, c. 6. 7 Ibid.; Vansickle v. Haines, 7 Nev.

249.

8 Ibid.

above belonging to the United States, and the purchaser of the flooded land may sue for the injury at any time within the statutory period after the conveyance from the United States without regard to the length of time that the flowage may have continued while the land was owned by the government.1 The priority secured by the ninth section of the important Act of Congress of July 26, 1866,2 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 prevails over it in case of conflict. 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 18705 and of 1872,6 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.7 The local customs mentioned

1 Matthews. Ferrea, 45 Cal. 51; Ogburn v. Connor, 46 Cal. 347; Wilkins . McClue, 46 Cal. 656. 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.

2 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 shail 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 in

See

jury or damage shall be liable to the
party injured for such injury or dam-
age." 14 Stat. at Large, 253; U.S. Rev.
Stats. § 2339; Basey v. Gallagher, 20
Wall. 670; Atchison v. Peterson, Id.
507; Jennison v. Kirk, 98 U. S. 453;
Mining Co. v. Tarbet, Id. 463; Thorp
v. Freed, 1 Mon. 651; Gold Hill Min-
ing Co. r. Ish, 5 Oregon, 104.
Acts of Congress of July 9, 1870 (16
Stat. at Large, 217) and of May 10,
1872 (17 Stats. at Large, 91). This
section is a voluntary recognition of
a pre-existing right of possession, con-
stituting a valid claim to its continued
use, rather than the establishment of
a new one. Miller, J., in Broder v.
Water Co., 101 U. S. 276; 50 Cal.
621; Sparrow v. Strong, 3 Wall. 97,
777.

3 Basey v. Gallagher, 20 Wall. 670 ;
Barnes r. Sabron, 10 Nev. 217.
4 Ibid.

5 16 Stats. at Large, 217.
617 Stats. at Large, 91.

7 Territory v. Lee, 2 Mon. 124; Orr v. Haskell, Id. 225; English v.. Johnson, 17 Cal. 107.

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.1 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 between occupants of the public land having no title to the soil,2 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, 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.5 It does not give rights 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.6 The water rights sustained by this statute are rights belonging to real estate, and are not lost by a nonuser, which does not amount to an abandonment and is short of the statutory period for the recovery of real property.7

1 Lewis v. McClure, 8 Oregon, 273; Esmond v. Chew, 15 Cal. 137, 143. 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 customs. Bliss v. Kingdom, 46 Cal. 651.

2 Ante, § 231.

3 Union Mill Co. v. Ferris, 2 Sawyer, 176, 185; Vansickle v. Haines, 7 Nev. 249; Hobart v. Ford, 6 Nev. 77;

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. Eldorado Water Co., 56 Cal. 571.

4 Union Mill Co. v. Ferris, 2 Sawyer, 176.

6 Ibid.; Union Mill Co. v. Dangberg, 2 Sawyer, 450.

6 Jennison v. Kirk, 98 U. S. 453; Noteware v. Sterns, 1 Mon. 311; Robertson v. Smith, Id. 410.

7 Dodge v. Marden, 7 Oregon, 456.

CHAPTER VIII.

EMINENT DOMAIN.

SECTION.

241, 242. The extent and limitation of this right as applied to rights in waters.

243. What constitutes a taking for public use.

244. Compensation necessary, and when to be made.

245. Taking of water for the supply of cities, for canals, etc.

246. Rights of riparian owners when public waters are taken.

247. Levees and assessments therefor.

248-249. Consequential injuries.

250. Damages how obtained for authorized injuries resulting from works

of public utility.

251, 252. Damages obtainable and how estimated.

253. Validity of mill acts.

254. Public mills established by statute.

255. Change in the public use and additional burdens.

256, 257. Duty of those maintaining roads or bridges across streams to pro

vide suitable passage-ways for the water.

258. Liability for injuries does not arise in the absence of negligence. 259. Continuing trespasses and effect of judgments.

260-262. Liability of municipal corporations for flowage.

§ 241. The sovereign power of the government to affect private rights of property, as the interests of the public may require, 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,1 ferry,2 or aqueduct companies. For such purposes the legislature may, in its discretion, appropriate the fee of lands; but its enactments will, if possible, be construed to create a servitude only, when that is sufficient to answer the public wants.5 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; of booms and dams constructed for floating lumber; the reclamation of tracts of land; the drainage of land in order to protect the public

1 Varick v. Smith, 5 Paige, 137; Spring v. Russell, 7 Maine, 273; Chesapeake Canal Co. v. Key, 3 Cranch C. C. 599; Willyard v. Hamil ton, 7 Ohio, pt. 2, p. 111; Wabash Canal v. Spears, 16 Ind. 440; 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. r. Archer, 9 Gill & J. 479. As to canals in Pennsylvania, see Craig v. Allegheny, 53 Penn. St. 477; Wyoming Coal Co. v. Price, 81 Penn. St. 156; Robinson v. West Pennsylvania Railroad Co., 72 Penn. St. 316; Pennsylvania Canal Co. v. Billings, 94 Penn. St. 40.

2 Day v. Stetson, 8 Maine, 365; Barrington v. Neuse River Ferry Co., 69 N. C. 165.

3 Lumbard v. Stearns, 4 Cush. 60; Lowell v. Boston, 111 Mass. 464; Talbot v. Hudson, 24 Law Rep. 228; 16 Gray, 417; Heyneman v. Blake, 19 Cal. 579..

4 Malone v. Toledo, 34 Ohio St. 541; Waterworks Co. v. Burkhart, 41 Ind. 364; Nelson v. Fleming, 56 Ind. 310; Cromie v. Trustees, 71 Ind. 208; Harlow v. Rogers, 12 Cush. 291; Dingley v. Boston, 100 Mass. 559; People v. Haines, 49 N. Y. 587; Baker v. Johnson, 2 Hill, 342.

5 Edgerton v. Huff, 26 Ind. 35; Harback v. Boston, 10 Cush. 295.

6 Wayland v. Middlesex, 4 Gray, 500; Gilmer v. Lime Point, 18 Cal. 229; Reddall v. Bryan, 14 Md. 444; Kane v. Baltimore, 15 Md. 240; Graff r. Baltimore, 10 Md. 544; Boston Water Power Co. v. Boston Railroad, 16 Pick. 512; Badger v. South Yorkshire Railway Co., 5 Jur. N. s. 459; Price . Riverside Co., 56 Cal. 431; Natoma Water Co. v. Clarkin, 14 Cal. 544; Attorney General r. Eau Claire, 37 Wis. 400; Spencer Creek Water Co. v. Vallejo, 48 Cal. 70; San Francisco v. Spring Valley Waterworks, 48 Cal. 492; Thorn v. Sweeney, 12 Nev. 251; Burden v. Stein, 27 Ala. 104; 24 Ala. 130; Memphis v. Memphis Water Co., 5 Heisk. 495; Matter of Middletown, 82 N. Y. 196. Under 10 & 11 Vic. c. 17, §§ 37, 43, a supply of water for a workhouse is not for public purposes, the guardians being owners of the house and the inmates one family. Liskeard Union v. Liskeard Water Co., 7 Q. B. D. 505.

7 Lawler v. Baring Boom Co., 56 Maine, 443; Lancaster v. Kennebeck Co., 62 Maine, 272; Cohn v. Wausau Boom Co., 47 Wis. 314; Cotton v. Mississippi Boom Co., 22 Minn. 372; Finney v. Somerville, 80 Penn. St. 59; Patterson v. Boom Co., 3 Dillon, 465. 8 Tide Water Co. v. Coster, 18 N. J. Eq. 518; Avery v. Police Jury, 12 La. Ann. 554.

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