appertain to the soil, subject to the single exception of rights antecedently acquired.'" The conclusion heretofore reached, that the rights of a prior grantee or purchaser from the United States, as against subsequent appropriators of water, must be regarded as complete and perfect, at the latest, from the time when he has fully performed all of the statutory requirements, including payment, which entitle him to a patent, and not from the time of his receiving a patent, may appear, perhaps, to conflict with the recent decision in Osgood v. El Dorado, etc., Co.;' but a careful examination of that case shows that no such conflict was intended, and none could legitimately arise upon the facts. The plaintiff relied upon the doctrine of relation, in order to carry his right back to his first proceedings, which were earlier than those of the defendants, and the court simply held that on the facts the doctrine of relation did not apply. The plaintiff's first step was taken while the lands were unsurveyed; and his earliest legitimate proceeding was subsequent to the date at which defendants' rights of appropriation accrued. 156 Cal. 571, 578. My reference to this decision on a previous page (ante, § 26) does not describe it with perfect accuracy, and needs some correction. It is true that the reporter's head-note represents the court as laying down the following general rule: “In a question of priority of right between an appropriator of water on the public lands and a pre-emptor, the rights of the latter date from the issuance of his patent.' It is also true that Mr. Justice Ross says, in his opinion: "The plaintiff's rights must therefore be held to have attached on the twenty-fifth of October, 1871, the date of the issu ance of his patent." But this language cannot have been intended to lay down a general rule applicable to all pre-emptors; it must have referred entirely to the particular facts of that case. This plainly appears from the sentence immediately preceding, and from the cases which he cites in support of his conclusion,- these very cases recognizing the rule that a grantee's right may relate back to a date before that of his patent. He says: "The plaintiff seeks to invoke the doctrine of relation; but for obvious reasons no case was made for the application of that doctrine." The plaintiff took In Farley v. Spring Valley Min., etc., Co.' the plaintiff, a pre-emptor, had settled on public lands of the United States, and filed his declaratory statement on February 27, 1871; he had proved up and paid the purchase price in 1877; and he received his patent on January 23, 1879. The defendants made an appropriation of water after 1871, but before 1877. The court held that the plaintiff's rights as a private proprietor only accrued in 1877, when he had proved up and paid the price; and he was therefore a subsequent purchaser as against a prior appropriation of the defendants. This case clearly recognizes the doctrine that the rights of a grantee or purchaser from the United States, as against another party claiming under the government, do not accrue from the time of executing and delivering his patent alone; but are complete when his equitable estate is perfected by his performing all of the requisites which entitle him to receive a patent. The rights of the prior owner of a tract bordering on a stream, as against a subsequent appropriator of its waters upon the public domain, are impliedly, even if not expressly, recognized by possession of his land several years before it was surveyed. It was surveyed in 1865. In June. 1868, he filed his first declaration as a pre-emptor; in 1870 he had paid up; and in 1871 he received his patent. But the defendants had taken their first step, from which their rights of appropriation arose, in March, 1867. It thus appears that, even if the plaintiff's title did relate back to the date of his declaration in 1868, it was still subsequent to defendants' right of appropriation, which accrued in 1867. The remark that plaintiff's title attached at the date of his patent was not, therefore, essential to the decision actually made on the facts. [But a recent authority speaks of this case in the following language: "Osgood V. Water Co. presented a question of priority between an appropriator of water on lands of the United States and a pre-emptioner. It was there held that, by reason of the express language of the seventeenth section of the act of congress of July 9, 1870, amending the act of July 26,1866, the rights of the pre-emption claimant, as against an appropriator, date only from his patent or certificate of purchase. Lux v. Haggin, (Cal.) 10 Pac. Rep. 782.] 158 Cal. 142. other decisions. In Gibson v. Puchta1 the court held that when the title of two parties to public mineral lands is based on possession alone, the older possession gives the better title as between the two, even though the elder possessor uses his ⚫ land for agriculture and the younger for mining. In such a case, their rights, as against each other, depend upon the common-law doctrines applicable to adjoining land-owners. The agricultural occupant has a right to use the water for the purpose of irrigating his own land in a proper and reasonable manner, and no cause of action can arise against him for such use, even though the mining occupant may sustain some injury therefrom; he would only be liable for a negligent or willful injury done to the other occupant by means of his irrigation. What is thus true of an occupant whose title to a riparian tract of the public lands rests wholly upon a prior possession, must certainly be true of an owner whose title to such a tract rests upon a prior patent, conveyance, or other grant from the United States. § 37. Riparian rights protected. In Wixon v. Bear River, etc., Co.2 the court held that if a tract of land on the bark of a stream in the mineral regions is inclosed and appropriated for the purposes of a garden or orchard, and the water of the same stream is afterwards appropriated by another person for mining purposes, at a point above the tract, the water subsequently appropriated must be used so as not to injure the garden, orchard, or fruit trees; that one who 133 Cal. 310. 224 Cal. 367; and see Rupley v. Welch, 23 Cal. 453; Hill v. Smith, 27 Cal. 476. The right of the prior occupant was here merely possessory as against the United States. An early statute of California seems to have given miners a right to enter upon the lands of prior occupants used solely for farming purposes, when situated in the mineral regions; the interest of such occupants being only possessory. incloses a tract of public land in the mineral regions, and plants it with fruit trees, acquires a vested right therein, and a subsequent appropriator must use the water for mining purposes so as not to disturb such vested right, or destroy or injure the garden or orchard. The rights of a private owner who has obtained a full title to a tract of land bordering upon a stream have been stated by quite recent decisions of the California supreme court. "As being owners of the land, the plaintiffs have an interest in the living stream of water flowing over the land; their interest is called the riparian right.' Under settled principles, both of the civil and the common law, the riparian proprietor has a usufruct in the stream as it passes over his land."1 In Creighton v. Evans2 the same court held that the right of a riparian private owner to have the water of the stream run through his land is a vested right, and any interference with it by another person gives him a cause of action for appropriate relief; that a diversion of the water by one who is not a riparian proprietor on the same stream is a legal wrong to the person who is such a riparian owner; that a person who is not a riparian proprietor has no right to take any water from the stream, even if enough is left for the uses of the riparian owner, even if the latter has sustained no actual damage from the diversion. § 38. Doctrine of relation applied to patentees. It having been shown that the rights of a patentee from the United States, as a prior purchaser or owner, relate back at least to the time when he has duly performed all the acts, including payment, which entitle him to a patent, the question still remains whether his rights do not in fact relate back to the date of his first or initiative step in the course of proceedings pre 1 Pope v. Kingman, 54 Cal. 3, 5. 253 Cal. 55. scribed by congress,-as in case of a pre-emptor, to the filing of his declaratory statement. § 39. Grounds for the application of this doctrine. - This question arises in the construction and application of general statutes of congress, which were intended to encourage actual settlers and occupants of the public lands, by providing a means for such actual settlers to acquire the private ownership of tracts of land, and for such actual occupants to acquire the right to divert and use the waters of streams. The same policy plainly underlies the whole system of legislation. When any conflict arises between parties seeking to avail themselves of these different statutes, between parties seeking to acquire tracts of land under one set of statutes and parties seeking to acquire water-rights under another,—it would seem to be just and reasonable that the same principle or method of construction and interpretation should be extended to all these statutes in determining the rights of such conflicting claimants. In respect to the appropriator of water on the public lands, when he has duly posted and given the notices of his appropriation, and has followed up this initiative by proceeding to construct his ditches, dams, and other works with reasonable diligence, and without unreasonable delay, his right of appropriation, when his works are thus completed, relates back to the date of his first or preliminary act.' This rule seems to be fully settled. In cases of conflict as to priority of right between such appropriator of water and a patentee of land from the United States, it would seem to be just and reasonable that the same rule of interpretation should be extended to the other similar legislation of congress by which private persons are authorized to acquire title to portions of the public domain as pre-emptors, homestead occupants, and the like. Congress has given no in 1 See Osgood v. El Dorado, etc., Co., 56 Cal. 571. |