territories or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: Provided, The provisions of this act shall not extend to railroad corporations. "§ 2. That it shall be the duty of the register and the receiver of any local land office, in whose district any mineral land may be situated, to ascertain, from time to time, whether any timber is being cut or used upon any such lands, except for the purpose authorized by this act, within their respective land districts; and, if so, they shall immediately notify the commissioner of the general land office of that fact; and all necessary expenses incurred in making such proper examinations shall be paid and allowed such register and receiver in making up their next quarterly accounts. "§ 3. Any person or persons who shall violate the provisions of this act, or any rules and regulations in pursuance thereof made by the Secretary of the Interior, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not exceeding five hundred dollars, and to which may be added imprisonment for any term not exceeding six months." U. S. Stat. vol. 20, p. 88. 2 Act of Congress March 2, 1831 3 Rogers vs. Loggs, 22 Cal. 444. 4 Citing in support, United States vs. Thomas McEntee, 23 Int. Rev. Rec. 368. 5 United States vs. Nelson, 5 Sawyer, 68. CHAPTER VIII. EASEMENTS-WATER RIGHTS. SECTION 50-Local law governs. 51-Water rights. 52-Statute not retroactive. 53-Previous recognition of water rights. 54-How water rights on public domain acquired. 56-How right established, Remedies. 57-Abandonment. § 50. Local law governs.-The federal statute delegates to the local legislatures or the mining districts the right to prescribe rules governing easement, drainage and other means of developing the property.1 But vested rights secured by priority of possession to the use of water for mining, agricultural, or other purposes, which rights have been previously recognized by custom or the decisions of courts, in the absence of legislation, are preserved and protected by the federal statute.2 Some of the most important easements are left untouched by the law of Congress-such as the right of way over adjacent ground; the right to use adjoining claims for dumping ground, and the privilege of drainage. But these are regulated by local laws, rules, or customs, with ample jurisdiction in the premises conferred by the sections already cited.3 1 Rev. Stat. U. S., § 2338, ante, p. 23. 2 Rev. Stat. U. S., § 2339, ante, p. 24; Rev. Stat. U. S., § 2340, ante p. 24. 3 Rev. Stat. U. S., §§ 2338 and 2339. See post, Ch. xiii., MINERS' RIGHTS AND REMEDIES, § 148 et seq. Easements. § 51. Water rights.-Owing to the peculiar emergencies arising from a congressional recognition of the right of miners to enter and purchase portions of the public domain as mining property, water rights received special attention as early as the year 1866, by the act of Congress of July 26, since incorporated into the revision. There were already many ditches, mill privileges, etc., which had been taken up and used under the sanction of local rules and customs, without any claim on the part of the owners to the land upon which such ditches were situated, or any claim of title such as would be necessary to the assertion of riparian rights commensurate to the needs of the recognized mili privileges. Subsequent purchase from the United States of the lands previously servient to the customary easement, would, under other provisions of the act of Con * * * gress of 1866, entitle the purchasers to a patent from the general government, which, without the saving sections already referred to,1 would utterly extinguish the rights previously recognized by custom. For "before the title to these lands was acquired from the government of the United States, no occupancy or appropriation of the waters, no state or territorial legislation, or rule of decision established by the state courts in controversies between occupants of the public land, without title from the government, can in any manner qualify, limit, restrict, or affect the operation of the government patent."2 The title to the public lands, being in the United States, carries with it the same proprietary or other right to the waters flowing over such lands in streams not navigable, as would belong to any other riparian proprietor, and these rights would pass to the patentee unaffected by any adverse rights, however long they may have endured without government recognition.3 It was for the purpose of saving these vested rights, or recognized privileges, from the destructive operation of the act of Congress under which the lands servient to the easement were thrown open to exploration and purchase, that this section of the statute was enacted.4 1 Supra, § 50. 2 Union M. & M. Co. vs. Ferris, 2 Sawyer, 176-9; Union M. & M. Co. vs. Danberg, 2 Sawyer, 450. 3 Ibid. Vansickle vs. Haines, 7 Nev. 249; Gibson vs. Chouteau, 13 Wall. 92. See, also, Irvine vs. Marshall, 20 How. 561; Jourdan vs. Barrett, 4 How. 185; Bagnell vs. Broderick, 13 Pet. 450; United States vs. Hughes, 11 How. 568; Gardner vs. Village of Newburgh, 2 Johns. Ch. 166; Elliott vs. Fitchburg R. Co., 10 Cush. 193; Davis vs. Fuller, 12 Vt. 190. 4 § 2339, supra, § 50. § 52. Statute not retroactive.-Under the rule of construction hereinbefore adverted to, that statutes will be construed as prospective, unless they are incapable of sen sible interpretation otherwise than as retrospective in their operation, it has been held that this act will not affect the rights of prior patentees.? It only tends to confirm rights already acquired, and no right to divert a stream could be acquired by virtue of a local statute, rule or custom. as against one owning the fee, without his consent, express or implied.3. So, when a patent was issued, in 1864, for land through which the natural channel of a stream lay, and the water had previously been diverted at a point above, it was held that the party so diverting the stream acquired no right either as against the United States or the patentee prior to the patent, for the reasons that the diversion was a trespass upon the riparian rights of the government, and the patentee succeeded by purchase to all such rights as the government had. The provision is only intended as an acquiescence by the government in such easements as may affect unpatented lands. 1 Ante, § 29. 2 Union M. & M. Co. v. Ferris, 2 Sawyer, 176–85. 8 Tyler vs. Wilkinson, 4 Mason, 379; Pope vs. Kinman, 54 Cal. 3. 4 Vansickle vs. Haines, 7 Nev. 249. 53. Previous recognition of water rights.-The rights with respect to running water which had previously grown up in the mining communities, under the sanction of the courts, were not in all respects in harmony with the doctrines of the common law, which are in substance that the riparian proprietor has such a right to have the water continue in its natural course across his land, that it may not be unreasonably appropriated or diverted by another riparian proprietor; and when diverted by one for his own use, he is under some obligation to the proprietors lower down the stream to return the water to its natural channel. In determining the conflicting rights f rival claimants to running water on the public domain, the courts seem to have left out of consideration entirely the paramount right of the general government, and for the reason that neither of the parties litigant could claim a higher right than such as could be acquired by use and occupation of public land, held that he who first appropriated the waters of a running stream to a useful purpose had a better right than any subsequent appropriator below or above, and might conduct it whithersoever he pleased, without any obligation to restore it to its natural channel, or to preserve its purity or quantity.2 But this right was only allowed to extend to the quantity already appropriated; so that the rights of a subsequent appropriator of the surplus, or residuum, became equally indefeasable, as against prior and subsequent appropriators. The former could not trench upon his privileges by extending their use of the water to his prejudice.3 And it was held that any such appropriator, having only a right to use the water, and not a title that would warrant him in appropriating it exclusively, regardless of its use, was bound to make a reasonable use of it, and could claim no more than he could reasonably use for beneficial purposes. But this does not seem to prevent a change either in the use to which the water was applied at the time of the original appropriation, or a change in the place from which it is taken.5 1 Tyler vs. Wilkinson, 4 Mason, 379; Atchison vs. Peterson, 20 Wall. 507; 3 Kent Com. 439. 2 Kidd vs. Laird, 15 Cal. 161; Weaver vs. Eureka Lake Co., 15 Cal. 271; Lobdell vs. Simpson, 2 Nev. 272; Ophir S. M. Co. vs. Carpenter, 4 Nev. 534; Dalton vs. Bowker, 8 Nev. 190; Barnes vs. Lobron, 10 Nev. 217; Irwin vs. Phillips, 5 Cal. 140; Butte Canal, &c. Co. vs. Vaughn, 11 Cal. 143; Atchison vs. Peterson, 20 Wall. 507. 3 Proctor vs. Jennings, 6 Nev. 83; Ortman vs. Dixon, 13 Cal. 33; Hill vs. Smith, 27 Cal. 483; Barnes vs. Labron, 10 Nev. 217. But a subsequent appropriator of waste or surplus water used by prior appropriators may be deprived of it at any time by diversion, pro |