Haines, 7 Nev. 249; 15 Mor. Min. Rep. 201. (Overruled in Jones v. Adams, 19 Nev. 78.)

22. A patentee of mining land, over which an adjoining owner had for several years, by local custom and from necessity, maintained a water ditch to carry detritus from an hydraulic mine to a river, took subject to the easement. Jacob v. Day, 44 Pac. Rep. 243 (Cal.). 23. In the absence of a local custom allowing it, one miner has no right to run a tailrace or flume over the claim of another, and the owner of such claim may fill up such race or flume by tailings deposited on his own ground. Ralston v. Plowman, 1 Idaho, 595; 5 Mor. Min. Rep. 160.

24. The riparian rights of a patentee of public land attach only on the issuance of patent and do not relate to acts previous thereto so as to cut off water rights acquired by appropriation prior to issuance of the patent. Osgood v. Eldorado Water, etc. Co., 56 Cal. 571; 5 Mor. Min. Rep. 37.

25. Though the patentee of lands bordering on a navigable stream takes only to the stream, he has the right to erect wharves subject to public uses of the river. Railway Co. v. Schurmeir, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 492.

26. Riparian rights attach if the land at date of patent is bounded by navigable water. Hardin v. Jordan, 16 Fed. Rep. 283. See 140 U.S. 371.

27. "Meander" lines of the survey of lands bordering on water do not mark the lines of a claim to such lands, but are run for the purpose of approximately fixing the area of the land. The patentee takes to the actual water line, at least. Railway Co. v. Schurmeir, 7

Wall. 272.

28. The shore and bed of a navigable river belong to the State by virtue of its sovereignty. Pollard's Lessees v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471.

29. The bed of a river in California belongs to the State. Woodruff v. North Bloomfield Co., 18 Fed. Rep. 753.

30. The right of defendants to mine in, and use therefor, a certain ravine, above the plaintiff's premises, must be exercised in such manner as not to damage the prior right of the plaintiff to inhabit and cultivate his premises, and to the use of his dam appurtenant thereto. Levaroni v. Miller, 34 Cal. 231; 12 Mor. Min. Rep. 232 (1867).

.

31. The State or Territorial legislature may provide rules for working mines surrounded by other property. Com'r to F. A. Hendricks, Dec. 2, 1878, 5 C. L. O. 146.

32. The owner of a water right may change the point of diversion and use of the water without losing his priority, provided such change does not injure others. Fuller v. Swan River Placer M. Co., 19 Pac. Rep. 836.

33. The Willamet river is a navigable river. Iron Bridge Co. v. Hatch, 19 Fed. Rep. 347. 34. The fact that land is covered by a water right held under local laws will not bar entry thereof as a mill site. Charles Lennig, 5 L. D. 190.

35. The fact that a mining claim is subject to an easement in the shape of a right of a railroad company to lay tracks and place necessary station buildings on the same, will not prevent the issuance of patent under the mineral land laws. Eugene McCarthy, 14

L. D. 105.

36. Measurement of running water in Colorado is regulated by statute. Sec. 643, Mills' Ann. Stat., ed. 1891.

37. "Miners' inch" in California is not a fixed unit of measure. Dougherty v. Haggin, 56 Cal. 522; 15 Mor. Min. Rep. 211.

38. The Land Department does not issue patents for water power rights. Com'r to G. A. Daniels, Dec. 5, 1891.

39. A ditch owner whose ditch runs over the claim of another may acquire a right to maintain his ditch, under the Statute of Limitations. McLaughlin v. Del Re, 17 Pac. Rep. 515.

40. Where water from defendant's ditch discharged into a stream just above the head of plaintiff's ditch, the fact that plaintiff used the water so escaping from defendant's ditch for a period of fourteen years without interference by defendant does not create a right to use the same by prescription, for the use under such circumstances did not constitute any invasion of the rights of defendant, it being neither exclusive, adverse, hostile, or under a claim of right. Wimer v. Simmons, 27 Oreg. 1; 39 Pac. Rep. 6.

41. A water right cannot be secured under the placer law. W. A. Chessman, 2 L. D. 774.

42. A prior locator may erect a dam reasonably necessary to the working of his claim, even if it injures a subsequent locator, if au

46 Cal. 218; 4 Mor. Min. Rep. 278.

43. A water right may be lost by the adverse possession of another; but in such cases non-user by the owner, and adverse possession by another for a period equal to that fixed by the Statute of Limitations relating to real property, are necessary to divest title. Wimer v. Simmons, 27 Oreg. 1; 39 Pac. Rep. 6.

MINERAL LANDS, IN WHICH NO

VALUABLE MINES HAVE BEEN
DISCOVERED, OPEN TO HOME-
STEADS.

(See CHARACTER OF LAND, p. 337.)

I. THE STATUTE.

Wherever, upon the lands heretofore designated as mineral lands, which have been excluded from survey and sale, there have been homesteads made by citizens of the United States, or persons who have declared their intention to become citizens, which homesteads have been made, improved, and used for agricultural purposes, and upon which there have been no valuable mines of gold, silver, cinnabar, or copper discovered, and which are properly agricultural lands, the settlers or owners of such homesteads shall have a right of pre-emption thereto, and shall be entitled to purchase the same at the price of one dollar and twenty-five cents per acre, and in quantity not to exceed one hundred and sixty acres; or they may avail themselves of the provisions of chapter five of this Title, relating to "HOMESTEADS." 14 Stat. 253; sec. 2341, U. S. Rev. Stat.

he may deem the same necessary for the public convenience in executing the provisions of this chapter. 14 Stat. 252; sec. 2343, U. S.

Rev. Stat.

GRANT.

I. THE STATUTE.
II. DECISIONS.

1. Railroad.
2. State.

3. Patent.

4. Mining Claim.

5. General.

I. THE STATUTE.

No act passed at the first session of the thirty-eighth Congress, granting lands to States or corporations to aid in the construction of roads or for other purposes, or to extend the time of grants made prior to the thirtieth day of January, eighteen hundred and sixty-five, shall be so construed as to embrace mineral lands, which in all cases are reserved exclusively to the United States, unless otherwise specially provided in the act or acts making the grant. 13 Stat. 576; 18 Stat. 476; sec. 2346, U. S. Rev. Stat.

II. DECISIONS.

1. Railroad.

1. Grants of public land shall not be construed as passing title to mineral lands, "which in all cases shall be, and are reserved to the United States, unless otherwise specifically provided," etc. Joint resolution of Jan. 30, 1865, 15 Stat. 567.

2. "The policy of Congress as expressed in its numerous grants of public lands to aid in the construction of railroads has always been to exclude the mineral lands from them, and reserve them for special disposition, as seen in the following acts among others: Acts of July 1, 1862, C. 120, 12 Stat. 489, and of July 2, 1864, C. 216, 13 Stat. 356, making grants to the Union and Central Pacific Companies; Act of July 4, 1866, C. 165, 14 Stat. 83, making a grant to the Iron Mountain Railroad Company; Act of July 13, 1866, C. 182, 14 Stat. 94, making a grant to the Placerville, etc., Railroad; Act of July 25, 1866, C. 242, 14 Stat. 239, making a grant to the California and Oregon Railroad, sections 2 and 10; Act of July 27, 1866, C. 278, 14 Stat. 292, making a grant to the Atlantic and Pacific Railroad and to the Southern Pacific Railroad; Act of March 2

1867, C. 189, 14 Stat. 548, making a grant to the Stockton and Copperopolis Railroad; Act of March 3, 1871, C. 122, 16 Stat. 573, making | a grant to the Texas Pacific Railroad." Barden v. Northern Pacific R. R. Co., 154 U. S. 288.

3. Grants of lands to States will be held to exclude mineral lands whether or not they are expressly reserved, as such has been the continued policy of the government. Ivanhoe M. Co. v. Keystone M. Co., 102 U. S. 167: Pereira v. Jacks, 15 L. D. 273. See, also, sec. 2318, U. S. Rev. Stat.

4. Lands valuable for minerals other than coal and iron are not included in the grant to the Central Pacific Railroad Company. G. D. Smith, 13 C. L. O. 28.

5. If land within the limits of the grant to the Northern Pacific Railroad Company (from which all minerals other than coal and. iron were excepted) is discovered to be mineral in character at any time before the issuance of patent therefor to the company, it is excepted from the grant. Barden v. Northern Pacific R. R. Co., 154 U. S. 288. (Citing and approving Central Pacific R. R. Co. v. Valentine, 11 L. D. 238-strong dissenting opinion.)

6. Although the grant to the railroad company is one in præsenti, and the land may have been returned as non-mineral by the United States Surveyor General prior to the grant, the fact as to whether the same is mineral or not, and is or is not excepted from the grant because of its mineral character, may be determined by the Land Department at any time prior to the issuance of patent to the railroad company, and the discovery of the mineral character of the land at any time prior to the issuance of patent therefor under a grant excepting mineral lands will exempt the land from the operation of the grant. Central Pacific R. R. Co. v. Valentine, 11 L. D. 238; North Star M. Co. v. Central Pacific R. R. Co., 12 L. D. 608; Southern Pacific R. R. Co. v. Allen G. M. Co., 13 L. D. 165; Northern Pacific R. R. Co. v. Champion Cons. M. Co., 14 L. D. 699; O'Conner v. Northern Pacific R. R. Co., 15 L. D. 247; Winscott v. Northern Pa

cific R. R. Co., 17 L. D. 274; Northern Pacific

R. R. Co. v. Marshall, 17 L D. 545. See, also, Samuel W. Spong, 5 L. D. 193.

7. The tract in question never having been patented to the railroad company, the De

partment may at any time prior thereto investigate the mineral character thereof, and the fact that the railroad company has sold the land will not alter the case; nor will the fact that upon its application on an ex parte proceeding the land had been found to be agricultural in character prevent a further hearing on this question. North Star M. Co. v. Central Pacific R. R. Co., 12 L. D. 608.

8. The exception of mineral lands from the grant to the Central Pacific Railroad Company only extends to lands known to be mineral, or apparently mineral, at the time when the grant attached, and a discovery of a gold mine in the lands after the title has vested by full performance of the conditions and filing of map of definite route does not defeat the title. Francoeur v. Newhouse, 14 Sawy. 351; 40 Fed. Rep. 618; 43 Fed. Rep. 238; Valentine v. Valentine, 47 Fed. Rep. 597; Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348; Cowell v. Lammers, 10 Sawy. 246; 21 Fed. Rep. 200; 3 West Coast Rep. 504; Northern Pacific R. R. Co. v. Barden, 46 Fed. Rep. 592. (Reversed, 154 U. S. 288.) See, also, Davis' Adm'r v. Weibbold, 139 U. S. 507.

9. If land is claimed under the mineral land laws at date of the definite location of the railroad, the land so claimed is excepted from the grant to the company, even though said claim is subsequently shown to be invalid. Northern Pacific R. R. Co. v. Sanders, 49 Fed. Rep. 129.

10. Any claim to public land under the land laws, whether rightful or not, at date of the grant to a railroad company or at date of filing its map of definite location, will except such land from the operation of the grant. Whitney v. Taylor, 157 U. S. 85; Northern Pacific R. R. Co., 26 L. D. 514; Com'r to Helena Office, April 19 and Sept. 8, 1893, In re Sanders v. Northern Pacific R. R. Co.

11. If at the date of a grant to a railroad company or at the date of the definite location of the road the land is claimed under the United States land laws or is reserved

from sale, it does not pass under the grant, and a subsequent reversion of the land to the public domain by the vacation or abandon

ment of the claim or reservation will not cause the grant to attach thereto. Kansas Pacific R. R. Co. v. Dunmeyer, 113 U. S. 629; Hastings & Dakota R. R. Co. v. Whitney, 132 U. S. 357; Sioux City, etc. Co. v. Griffey, 143