The case of National Co. v. Minnesota Co. discusses the rights of adjoining deep mines working the same vein, with barriers between to protect against water.-57 Mich. 83; 58 Am. R. 333.

One mine has no right to collect surface water and let it into a mine below.-Horner v. Watson, 14 M. R. 1.

DITCHES AND WATER.

Congressional Recognition of Easements.-R. S. 2339.-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 shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.-Sec. 9 A. C. July 26, 1866.

Excepted in Patent.-R. S. 2 2340.-All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water-rights, or rights to ditches and reservoirs used in connection with such water-rights as may have been acquired under or recognized by the preceding section. -Sec. 17 A. C. July 9, 1870.

Claims Subject to Ditches, Flumes and Trails - Parol License.-M. A. S. 2 3158.-All mining claims now located or which may be hereafter located, shall be subject to the right of way of any ditch or flume for mining purposes, or of any tramway or pack trail, whether now in use or which may be hereafter laid out across any such location; Provided, always, That such right of way shall not be exercised against any location duly made and recorded, and not abandoned prior to the establishment of the ditch, flume, tramway or pack trail, without consent of the owner, except by condemnation, as in case of land taken for public highways. Parol consent to the location of any such easement accompanied by the completion of the same over the claim shall be sufficient without writings; And Provided further, That such ditch or flume shall be so constructed that the water from such ditch or flume shall not injure vested rights by flooding or otherwise.-Feb. 13, 1874.

The Right of the Miner to Divert Water from Its Natural Stream, in opposition to the common law, has been not only granted under the Act of Congress of 1866, but that Act has been construed by several decisions of the Supreme Court of the United States. -Atchison v. Peterson, 1 M. R. 583; Basey v. Gallagher, Id. 683; Jennison v. Kirk, 4 M. R. 504.

These decisions further recognize the right of "appropriation," as it is called, as a necessity in placer mining districts. The party who first appropriates the water for mining purposes, obtains the right both as to parties who attempt to take it by tapping the stream above, or who need it in the stream below. A homestead or other entry is subject to the rights of a prior appropriation of water.-South Yuba Co. v. Rosa, 22 Pac. 222; Tynon v. Despain, 22 Colo. 240.

Incidents of Water Appropriation.-A ditch is an easement over the land which it crosses.-Quinlan v. Noble, 75 Cal. 250. A party cannot locate a ditch in such a manner as to prevent the practical mining by hydraulic power, or otherwise, of claims which it crosses; nor so as to cut off the water used by the hydraulic. When ditch crosses ditch, the latter claimant must adjust the crossings so as not to interfere with the full use of the prior ditch.--Jennison v. Kirk, 4 M. R. 506.

Appropriation by Placer Location.-It has been lately held that a placer location is of itself an appropriation of all the water flowing across it to the extent needed for working it.-Schwab v. Beam, 86 Fed. 41. This is an extreme holding on what seems to us a very doubtful position.

The Change of Locality where the water is used does not forfeit the right.-Maeris v. Bicknell, 1 M. R. 601. He may change either the point of diversion or the place of use.-Strickler v. Colo. Springs, 26 Pac. 314. If he has prior right to the water he may take it by a new and different ditch.-Jacob v. Lorenz, 33 Pac. 120; Greer v. Heiser, 16 Colo. 306.

Where a party has appropriated water for the purpose of working particular mining claims, after he has worked out the same he may extend his ditch and work other claims, or use the water for a different purpose, without losing his priority of right, even against a party who had dug a ditch and appropriated water from the same stream before the first claims were washed out.-Davis v. Gale, 4 M. R. 604.

Using Gulch or Creek for Channel.-A party may use the bed of a natural stream as his means of conducting water added to it by a ditch, without being considered as abandoning the water by mingling it with the original waters of the stream.-Butte Co. v. Vaughn, 4 M. R. 552; Oppenlander v. Left Hand Co. 18 Colo. 142.

Location of Ditch Right.-At the point where water is taken from the stream, post notice as follows:

DITCH NOTICE.

Midland Ditch.-I claim 50 inches of the water of this stream, to be taken by ditch from this point to claims on Wightman's Gulch, in Summit Mining District, Rio Grande County, for mining purposes.

May 17, 1900.

ALEXANDER G. COCHRAN.

Posting this notice, at least when accompanied by collateral acts showing intention to follow up, gives a reasonable time to begin the ditch.-Dyke v. Caldwell, 18 Pac. 276.

LOCATION CERTIFICATE OF DITCH AND WATER RIGHT.

TO ALL WHOM THESE PRESENTS MAY CONCERN:-Know Ye that I, James J. Cone, of Canon City, in the County of Fremont, in the State of Colorado, do hereby declare and publish as a legal notice to all the world that I have a valid right to the occupation, possession and enjoyment of all and singular, that tract or parcel of land lying and being in Summit Mining District, in the County of Rio Grande, in the State of Colorado, for ditch and mining purposes, bounded and described as follows, to-wit:The Midland Ditch: Head of ditch tapping the waters of the Alamosa River at a point indicated by notice there posted on the right bank about one mile above Summitville, 100 yards southwest from cabin occupied by Jacob Ellison, and 110 feet northeast from tree blazed with letters "M. D."; course of ditch thence, etc., etc. I also claim 50 inches of the waters of said river, to be conveyed by said ditch, with the exclusive right of way for said

ditch; together with all and singular, the hereditaments and appurtenances thereunto belonging or in anywise appertaining. Witness my hand and seal this 17th day of January, in the year nineteen hundred. JAMES J. CONE. [SEAL.]

STATE OF COLORADO,
County of Fremont.

SS.

Before me the subscriber, a Notary Public in and for said County, personally appeared James J. Cone, to me personally known to be the same person described in, and who executed the within Declaration of Occupation, and acknowledged that he signed, sealed and published the same as his free and voluntary act and deed for the uses and purposes therein set forth.

Witness my hand and Notarial Seal, this 17th day of January, A. D. 1900..

[SEAL.]

Geo. W. Clelland,
Notary Public.

The above is a form prescribed by statute in Colorado (M. A. S. & 3610), but would be valid anywhere as a location certificate of ditch rights unless the local statute should prescribe something more than the names, date, description and declaration of intention which such form contains.

The ditch should be staked and work commenced and prosecuted with reasonable diligence. If the notice and record be not followed up within a reasonable time by actual work in carrying out the intended appropriation, they amount to absolutely nothing.

Unless required by district rule or statute the existence of such record could not be insisted on as a condition of title, where the ditch is actually constructed and continuously used. But such record is customary, always advisable, and when made becomes the initial point in the chain of recorded title.

The staking of a ditch means merely the survey and marking of its line preliminary to excavation. The stakes are not a part of its location as they are of a mining claim.

How Conveyed.-Right to water appropriated may be transferred like other property. A ditch is real estate and is conveyed by deed.-Smith v. O'Hara, 1 M. R. 671; Bradley v. Harkness, 11 M. R. 389; Burnham v. Freeman, 11 Colo. 601; Colorado Act, 1893, p. 298.

Do Not Go as Appurtenances.-In the sale of a mine the water and ditches do not pass as an "appurtenance" to the claim.-Quirk v. Falk, 2 M. R. 19; Ginocchio v. Amador Co. 67 Cal. 493. But see Arnett v. Linhart, 21 Colo. 188; Gelwicks v. Todd, 24 Colo. 494.

A patent does not divest ditch rights.-Dodge v. Marden, 1 M. R. 63. The right granted under the A. C. 1866 was not confined to ditches then in existence.Jacob v. Lorenz, 33 Pac. 119.

Abandonment.-A ditch may be abandoned without necessarily abandoning the water which it carried. -New Co. v. Armstrong, 21 Colo. 357. Non-user of ditch does not necessarily amount to abandonment.— Welch v. Garrett, 51 Pac. 405.

Buyer Must Take Notice Of.—A ditch is a physical and visible monument, and doubtless the grantee of land crossed by a ditch buys with presumptive notice of its existence.-Oregon Co. v. Trullenger, 4 M. R. 247; Lampman v. Milks, 21 N. Y. 505.

Relation. When a ditch is made for the appropriation of water, the right relates back to the commencement of the work on the ditch, if the same be completed within a reasonable time.—Maeris v. Bicknell, 1 M. R. 601; Irwin v. Strait, 18 Nev. 436.

But if the ditch be not completed with due diligence, the right only accrues from the time the water is actually appropriated.-Ophir Co. v. Carpenter, 4 M. R. 640.

Surplus Water.-Ditch owner must return surplus. -Stanford v. Felt, 71 Cal. 249 After user by placer miner it must be let go to claims below.-Alder Gulch Co. v. Hayes, 9 Pac. 581. Waste water defined.-Byrne v. Crafts, 73 Cal. 641.

Parol License to Construct.-Where a mining ditch is constructed on government land or over the land of the owner, or of persons who give their consent, no condemnation proceedings are necessary; the ditch once constructed becomes a lawful easement; or the consent may be treated as giving title by estoppel.Yunker v. Nichols, 8 M. R. 64.