the diversion complained of—that is, the diversion which occurred after they became owners as alleged-was part of their original case. The plaintiffs were fully informed by the answer that defendant relied upon a right to appropriate water acquired from the state prior to the dates of the patents. But that was an affirmative plea, the averments of which it was for the defendant to establish. If when the plaintiffs rested they had proved title by patent, the existence of a water-course running through the lands, and diversion by defendant subsequent to the patents, they had proved their case, not merely prima facie, but conclusively, in the absence of proof of the affirmative matter set forth in the answer. They were not bound to disprove in advance the appropriation pleaded. Having made out, or attempted to make out, their case in the first instance, the plaintiffs would not have been entitled, in contradiction of evidence given on the part of the defendant, under the denials of the answer that the plaintiffs were not the owners at the time of the alleged diversion, to produce further evidence in support of their title. But, after the defendant rested, the plaintiffs were authorized to meet the evidence in support of the plea that the water was appropriated by evidence that the waters were never legally appropriated, by the defendant. If the waters could be appropriated, as against the lands described in the complaint, only while they remained the lands of the state, then evidence that, when the appropriation was made, the lands were not the lands of the state was admissible, and none the less admissible because it also proved that the plaintiffs or their assignors were then the owners. Such evidence was not evidence in reply to new matter proved under the denials of the answer, but was evidence relating to an issue made by the plea of the defendant, an issue as to which the defendant had the affirmative. It was evidence which, by every interpretation of the rule, the plaintiffs had a right to reserve until after the defendant had closed.

It has been suggested that the plaintiffs gave some evidence in chief tending to prove their possession prior to the appropriation. We are not aware that the English rule, which at one time prohibited a plaintiff, in case he gave any evidence tending to negative an affirmative defense in the first instance, from giving further like evidence in reply, was ever enforced in this country or in equity. Moreover, the mere prior occupation of lands of the state can constitute no reason for preventing the diversion of water flowing through them by one expressly authorized by the state to divert the water from the occupant.

In opposition to these views, and as adjudications that the certificates of purchase, and possession under them, gave the plaintiffs no riparian rights, and that the certificates, as against the defendant, were not evidence even prima facie of the payment of any portion of the purchase money, the counsel for respondent cite Smith v. Logan, 1 Pac. Rep. 678; Covington v. Becker, 5 Nev. 281; Lake v. Tolles,

8 Nev. 285; Brewer v. Hall, 36 Ark. 351; Lansdale v. Daniels, 100 U. S. 118; Megerle v. Ashe, 33 Cal. 84; Smith v. Athern, 34 Cal. 506; Daniels v. Lansdale, 43 Cal. 41; Osgood v. Water Co., 56 Cal. 574.

It is suggested that the certificates were not even prima facie evidence of the receipt of ar y money by the state as against the defendant, alleged to be a stranger to the contract. But if, by reason of the fact of the payment of one-fifth of the purchase money by the assignors of plaintiffs, the issuance of the certificates, and the entry thereunder, the assignors of plaintiffs acquired riparian rights, the defendant is not a grantee of the legal title of the waters from the state. Even if it should be conceded that, in a suit for specific performance by a vendee against the grantee of his vendor's title, the vendor's receipt for part of the purchase money from his vendee would not be evidence against the grantee, the analogy is not perfect. Here there is no specific grant to the defendant to divert the water. It claims to have acquired the right to take it by taking it. The laws of the state are to be read together. Statutes provide for the sale of the lands, and the mode by which the title can be acquired by individuals. They are to pay 20 per cent. of the purchase price, and then a certificate issues. On the payment of the balance, within a certain time, the purchaser receives a patent. As against the state the certificate is evidence of the receipt of certain moneys; it is also evidence of the right of possession. The state has done no act indicating a purpose to transfer to another its right to the balance of the purchase money, or its duty, upon the receipt thereof, to convey the legal title. If a certificate is obtained without the previous payment of the 20 per cent. it is for the state by proper proceeding to annul the certificate. While the contract of purchase is recognized by the state authorities as alive, the water of a stream flowing through the land cannot be diverted by a mere appropriator, because it is the intent of the statutes that the water shall not be so appropriated. The rights of appropriators are all subject and subordinate to those of persons with whom the officers of the state may have previously dealt as purchasers of lands, and recognized as such by delivery of certificates of purchase. All lands thus contracted for are reserved from the effect and operation of any appropriation of water until failure of the purchaser to complete his payments, the completion whereof can be proved by patent issued within the time limited by law. It remains with the state to determine whether the purchaser of the land has complied with his contract, and whatever is recognized as sufficient evidence of such compliance by the state is sufficient evidence against one attempting to appropriate water after the purchaser of the land has been let into possession, as shown by a certificate of purchase.

In this view the cases cited have little bearing on the question we are considering. This is not merely a case of two persons claiming to derive by patent from the same source, between whom the prior

equity prevails. The defendant had an absolute right to divert the water when it appropriated the flow, or it had no right. The plaintiffs would have had no equity after paying for the land in full (had patents been refused) on which they could follow the legal title to the flow of the waters into the hands of the defendant, and have a trust decreed. They would have no right, legal or equitable, arising out of their ownership of the lands to divert the waters outside of their own lands, or to demand from another a conveyance of such right. The effect of holding that a valid diversion of water from the lands could be made after part payment therefor, and certificate, would be to deprive them of the moneys paid, or of the benefit of the water, which may have been a principal inducement to the purchase.

It may be said that the purchaser knows that he is liable to have the water diverted by a subsequent appropriator when he makes his payment. But the matter of notice cannot determine the right or be conclusive of the proper interpretation of the statutes. If construing the statutes one way, the purchaser has notice when he makes the first payment that the water may subsequently be diverted, it is also true, construing the statutes the other way, the appropriator has notice that the land has been contracted and partly paid for. In the one case, however, the purchaser has already parted with value; in the other, the appropriator has expended nothing prior to the purchase and part payment by the purchaser. Assuming, as has been assumed thus far, that the statutes do not authorize the diversion of water from lands which shall have passed into the absolute ownership of private persons, it is equally clear their purpose is to protect the flow of water to lands contracted for and partly paid for under the laws of the state.

In Smith v. Logan, supra, cited by respondent's counsel, it seems to have been held that one in possession of land, under an unexecuted contract for the sale thereof, cannot assert the rights of a riparian proprietor in an adjoining stream. In that case it appeared that the land was owned in fee by another private person, who had contracted to sell it to a defendant in the suit. The supreme court of Nevada said: "The contract is unexecuted, and the conveyance depends on the performance by Logan of the obligations imposed upon him. Since he has not acquired the fee, it is obvious that the doctrine of riparian proprietorship cannot be invoked in his behalf." When water is diverted from land an injury is done to the possession, and ordinarily it is sufficient if the plaintiff shows he has the possession as against a mere wrong-doer. Gould, Waters, 476. But inasmuch as it here appears that the fee was in the state when the diversion commenced, the mere possession of state lands would not be sufficient to establish a right to the water in plaintiffs, as against one authorized by the state to appropriate. It became necessary, therefore, for the plaintiffs to establish that they had acquired the right to the possession from the state. Did the contracts of their assignors with the

state, and their entry and possession, show this? The plaintiff in such cases is not bound to prove the same rule as he alleges, "for the disturbance is the gist of the action, and the title is only the inducement." Gould, Waters, 478, and cases cited in note. He need not prove the precise title to the land was alleged, but must prove that he is entitled to the water. If he has acquired the right to the possession of the land from the state, even although he may hold it subject to the right of the state to deprive him of the possession if he shall not satisfy a deferred payment, it would seem that he is entitled to the enjoyment of the flow of the stream as an incident to his possession. One subsequently diverting water from the land cannot defend his acts by proving that the plaintiff is not the owner in fee, although entitled to the possession as against the legal owner and third parties. But if this were doubtful when the legal title is in another private person, here, as we have seen, it is the evident intent of the statutes that those placed in possession of lands under contracts made with the state shall not be deprived of flow of the water by mere appropriators while the right to the possession shall continue in the purchaser as against the state.

It would seem to have been held in McDonald v. Bear River Co., 13 Cal. 220, that a contract of purchase and possession under it constitute an equitable estate, with the present right to the enjoyment of all its incidents. There the whole purchase price had been paid. Of the other Nevada cases cited by counsel for respondent, Covington v. Becker holds that, upon public lands of the United States, the prior appropriator of water has the better right as against a subsequent appropriator of the same stream. In Lake v. Tolles the plaintiff was a riparian proprietor, holding under a United States patent. The defendant had a bare possession of unsurveyed public lands higher up on the stream. It was decided that the defendant had no riparian rights, and could not dispute the plaintiff's right to the water. In the Arkansas case it was held that a mere certificate of the swamp-land commissioners of that state that the applicant "has this day applied to purchase" a designated tract imported in itself no contract. Megerle v. Ashe that, as against a prior patent from the state of lands as school lands, (500,000-acre grant,) a subsequent patentee from the state may introduce evidence that he had acquired a prior pre-emption right; but, to overcome the state patent, must prove that he filed his declaration after the plat of the survey had been filed in the office of the United States register. In Smith v. Athern the established rule is repeated:

At common law, and under our mode of procedure, in case of conflicting patents to land from one paramount source, the court, in actions of ejectment, will look behind the patents, and ascertain which party had the prior equity; and when ascertained, it will attach itself to the legal title, which, by relation, takes effect at the time the equity accrued; and thus a junior patent, founded on a prior equity, will prevail over an elder patent founded on a junior equity."

Lansdale v. Daniels asserts the principles laid down in Smith v. Athern, that the prior equity must prevail, and applies it in a case where, in an action to recover the possession of lands, the defendant filed a cross-complaint alleging prior equities. Upon the facts of that case, however, it was held that the plaintiff had both the prior patent and the prior equity. Lansdale v. Daniels merely adjudges that the filing of a pre-emption declaration before the surveyor general has filed his plat of survey is premature, and a nullity. 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.

It is not necessary here to inquire whether the section of the amendatory act of 1870, referred to in Osgood v. Water Co., should be read distributively, so as to mean that all patents thereafter issued, or pre-emptions thereafter "allowed," (or proved up and paid for,) should be subject to water-rights previously acquired under, or recognized by, the act of 1866. The right of appropriation, which is the basis of defendant's claim, so far as it may affect land of the state or its grantees, is to be derived from some law of the state. Osgood v. Water Co. construes statutes of the United States; and no one of the decisions cited by counsel interprets the statutes of the state bearing upon the question of water-rights, or determines the relative rights of those deriving title to lands from the state and appropriators of water. It is contended by defendant, however, that from the time the title of the Civil Code relating to water-rights went into operation, no grantee of state lands has any "riparian rights;" that title went into operation on the first day of May, 1872. St. 1871-72, p. 622. If this be so, the certificates hereinbefore mentioned as having been issued subsequently to that date were properly rejected.

The bill of exceptions shows that plaintiffs also offered in evidence certificates of purchase issued prior to 1872; but if the proposition of defendant's counsel be correct, the certificates last mentioned were not admissible in reply, because they would have tended to make out an entirely new case. The plaintiffs were obliged to prove, in the first instance, that they were entitled to the relief prayed for; that they were the owners or entitled to the exclusive possession, by right derived from the state, of the lands through which the stream flowed; and that defendant had diverted water from their lands. If, by their evidence in chief, they entirely failed to prove that they were entitled to have the water flow to their lands-and they did so entirely fail if their patents, issued after the provisions of the Code took effect, gave them no right to the water,-they could assert no claim to prove facts on which their whole case depended, after the defendant had rested. It was necessary to inquire, therefore, whether the provisions