owner thereof or to his assigns,' when the entry is made and he receives his certificate of the same."

The last of these methods is by the Desert Land Act 3 of March 3rd, 1877; modified by Act of March 3rd, 1891.

This Act provides that a person entitled to the right, upon payment of twenty-five cents per acre, may file a declaration under oath with the local Land Office that he intends to reclaim a tract of desert land, not exceeding one half section, by conducting water upon the same, and within a period of four years after such declaration, upon making final proof of the reclamation of the land he is entitled to a patent, upon payment of one dollar additional per acre.1 The right first attaches upon the claimant's making the proper entry in the Land Office.

§ 144. Same.-Rights Attach When.-As the term entry is of frequent occurrence in this discussion its meaning should be fully explained. As applied to the appropriation of public lands it means that act by which an individual acquires an inceptive right of record to possession of the unappropriated soil of the public domain by filing his necessary papers in the proper office. However, an equitable right, as has been seen, may attach under certain circumstances upon the mere settlement of the land and before the filing of any papers at all. And the party who takes the first step, if followed up to patent, is deemed to have acquired the better right as against all others to the premises. The patent, which is afterwards issued, relates back to the date of the initiatory act, and thus

417; Taylor vs. Meyers, 7 Wheat. 23; Jackson vs. Clark, 1 Pet. 628; M'Arthur vs. Browder, 4 Wheat. 488; Bouldin vs. Massie, 7 Wheat. 122; Watts vs. Lindsey, 7 Wheat. 158; Maxwell vs. Moore, 22 How. 185; Walker vs. Smith, 21 How. 579.

1 These warrants are made assignable by law. See U. S. Rev. Stat. Sec. 2414; Bronson vs. Kukuk, 3 Dill. 490; 5 Atty. Gen. ap. 237, 387,509.

2U. S. Rev. Stat. 2414, 2423; Gould & Tucker's Notes to Rev. Stat., p. 556; Gray vs. Jones, 14 Fed. Rep. 83; Key vs. Jennings, 66 Mo. 356; Wirth vs. Bronson, 98 U. S. 118; Stinson vs. Geer, 42 Kan. 520.

3 Of March 3rd, 1877; 19 Stat. at L. 377, modified by Act of March 3rd, 1891; 26 Stat. at L 1095.

42 Copp's Land Laws, 888, 909. 5 Chotard vs. Pope, 12 Wheat. 586.

cuts off all intervening claimants, whether that act be an actual settlement upon the land itself or filing the necessary papers in the Land Office. "Other things being equal, he who has the priority has the superior right," applies to all conflicting Congressional grants2 and to all conflicts between these grants and the claims of settlers. Homestead, pre-emption, or other claims, entered before the location of the railroad, though after the passage of the land grant Act, are not affected thereby.3

III. Jurisdiction over Public Lands and Waters.

§ 145. Jurisdiction of Appropriation of Water Upon the Public Domain.-Waters upon the public domain, or upon lands to which the United States still holds the title, are subject and open to appropriation under the authority of the laws of the United States, as set forth in the previous chapter of this work. These waters, although upon the public domain of the United States, are situated within the various States and Territories of the arid west, and must be appropriated, transferred or used, according to the laws and rules governing the same, of that State through which the stream flows, from the fact that the United States has only the rights of a proprietor over these lands and waters, and not the rights of a political sovereign. And the United States, by giving the authority and right to appropriate, divested itself of the title to these waters, and all control over the same passes to the legislature of the respective States or Territories through which they flow. The power to prescribe such rules forms a part of the law concerning real property, and belongs exclu

1 Shepley vs. Cowan, 91 U. S. 330.

2 St. Paul etc. Ry. Co. vs. Winona, etc. Ry. Co., 112 U. S. 720; Kan. Pacific Ry. Co. vs. Dunmeyer, 113 U. S. 629; Northern Pac. Ry. Co. vs. St. P. etc. Ry. Co., 26 Fed. Rep. 551.

3 Kansas Pac. Ry. Co. vs. Dunmeyer, 113 U. S. 629; affirming 29 Kan. 725.

This is so, even though such settler's claim be abandoned afterward. The principle is that no land can pass by a Congressional Act, which is not in the control of the Government at the time of the location of the road.

See also Elmslee vs. Young, 24 Kan. 732; Clements vs. Warner, 24 How. 394.

sively to the jurisdiction of the respective States, and even Territories so long as the laws of the same are not in conflict with the laws of the United States.1 By the 16th clause of the 8th Section of the 1st Article of the Constitution we find that power is given to Congress "To exercise exclusive legislation in all cases whatsoever over such district (not to exceed ten miles square) as may, by cession of particular States and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings." So within the District of Columbia, and other places purchased and used for puposes above mentioned, the municipal powers of the government of every description are united and are the sole governing powers.3 But these are the only cases within the United States in which all the powers are united in a single government. Even in cases of temporary Territorial organization a local government always exists, and the specific rules for the appropriation and use of waters, as forming a part of the law concerning real property, falls within the jurisdiction of the local laws, so long as they are not in conflict with those of the United States upon the subject. The United States is simply the proprietor of the public lands, outside of the few exceptions above noted. And whatever may be the rules adopted by the statutes or deci

1 Pollard et al. vs. Haggin, 44 U. S. 212; Goodtitle et al. vs. Kibbe, 9 How. 478; John Doe et al. vs. Beebe et al., 13 How. 26; State of Penn. vs. Wheeling & Belmont Bridge Co., 13 How. 584; Smith vs. State of Maryland, 18 How 71.

2 Hepburn et al. vs. Ellzey, 2 Cranch. 444; Longbars vs. Blake, 5 Wheat. 317; Cohens vs. Virginia, 6 Wheat. 264; Amr. Ins. Co. vs. Canter Pet. 511; Kendall vs. United States, 12 Pet. 524; United States vs. De Witt, 9 Wall. 41;

Dumphy vs. Kleinschmidt et al., II Wall. 610; Willard vs. Presbury, 14 Wall. 676; Phillips vs. Payne, 92 U. S. 130; United States vs. Fox, 94 United States 315.

Transfer of lands governed by State decisions, lex loci rei sitae. See notes Lawyers' edition to Clark vs. Graham, 19 U S. 577.

Elmendorf vs. Taylor, 23 U. S. 152; Darby vs. Mayer, 23 U. S. 465; Jackson vs. Chew, 25 U. S. 153.

3 Ibid.

sions of any particular State with reference to the rights of riparian owners and appropriators, still that doctrine, heretofore described, as originating from the local customs of miners and sustained by the legislation of Congress, is confined in its operation to the public domain of the United States, and all extension of this doctrine to other lands and other proprietors, and all additional rules, must necessarily proceed from the States themselves.1

§ 146. Lex Loci Sitae after Title has passed from the Government.-The title to land or water having once passed from the United States, can be acquired or lost only in the manner prescribed by the law of the State where such land or water is situated, and the Federal Courts are bound to apply the laws and rules of the State in which the property is situated, and to decide the controversy as the State Court would. And the United States Government has no power to lay down any rules of law that would be binding upon its grantees after they have acquired their title from the government concerning the use to which the lands or water must be put. All such laws come clearly within the jurisdiction of the States. Before title has passed from the government the United States has a perfect title to the public lands and an absolute and unqualified right of disposal. All the lands and waters of the government not appropriated by competent authority before they were acquired by the government are in the first instance the exclusive property of the United States, to be disposed of to such persons at such times, in such manner and by such titles as the government may deem most advantageous to the public. This right of the Govern

1 See Pomeroy Rip. Rights, Sec. 30.

2 Walker vs. State Com's; 17 Wall. 648; Supervisors vs. United States, 18 Wall. 71; State vs. Swallow, I Bond. 189; Coolidge vs. Curtis, 1 Bond. 222; Simms vs. Irvine, 3 Dall. 425; Waring vs. Jackson, I Pet. 570; Davis vs. Mason, I Pet. 503; Hinde vs. Vattier, 5 Pet. 398;

Clark vs. Smith, 13 Pet. 195; Wilcox vs. Jackson, 13 Pet. 498; Amis vs. Smith, 16 Pet. 303; Fisher vs. Haldeman, 20 How. 186; Miles vs. Caldwell, 2 Wall, 35; Suydam vs. Williamson, 24 How. 427; Chicago vs. Robbins, 2 Black 418; Ross vs. Duval, 13 Pet. 45; Orvis vs. Powell, 8 Otto 176.

ment has been uniformly reserved by solemn compact upon the admission of new States into the Union, and has always been recognized and respected by the various States within which large portions of the public lands of the United States have been located, and within which much of these lands are still remaining. The legislatures of the various States in which the public lands are situated have no power to interfere and to dictate to the United States, to whom, or in what manner, or by what title, the public lands shall be conveyed in the first instance. But after the title has once passed the law of the State wherein the land is situated alone prevails. 1 And as to what laws shall determine this question the rule is laid down in Wilcox vs. Jackson,2 to be, "We hold the true principle to be this, that whenever the question in any Court, State or Federal, is, whether the title to land, which had been once the property of the United States has passed, that question must be resolved by the laws of the United States but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the State, is subject to State legislation, so far as that legislation is consistent with the admission that the title passed according to the laws of the United States."3 But it must be borne in mind, that from the moment that tracts of land which were once public, and which border upon a stream, and are situated within a State or Territory, have come into private ownership of patentees or grantees of the Government, all controversies as to their rights upon the subject as to whether their owners are riparian proprietors or otherwise must be determined and regulated wholly by the laws of the State or Territory in which the land is located, as Congress, after the title has once passed from the Government, has no power to legislate concerning the title of lands and the incidents thereto situated within a State.

§ 147. Grantee Takes Subject to Conditions Annexed to Grants. The United States as the proprietor of the public

1 Irwin vs. Marshall, 20 How. 561; Vansickle vs. Haines, 7 Nev. 249; Union M. & M. Co. vs. Ferris, 2 Saw. 176.

213 Peters 498.

3 Irvine vs. Marshall, 20 How. 558.