Pacific Coast Law Journal.

VOL. 2.

DECEMBER 21, 1878.

No. 17.

Current Topics.

IN Whitney vs. First National Bank of Brattleboro, it was recently held by the Supreme Court of Vermont (18 Alb. L. J. 471), that national banks are not responsible for the safekeeping of special deposits made according to usage, for the accommodation of depositors, and with the knowledge and acquiescence of the bank directors, but without profit to the banks, the receiving of such deposits not being authorized by the National Banking Act under which such banks are organized.

THE following is an abstract of the recent decision by the Supreme Court of the United States in The Giant Powder Co. vs. The California Powder Works et al. Appeal from the United States Circuit Court for the District of California:

A reissue patent must be for the same invention as that which formed the subject of the original patent, or for a part thereof when divisional reissues are granted. It must not contain anything substantially new or different.

An original patent for a process will not support a reissued patent for a composition, unless the composition is the result of the process, and the invention of the one involves the invention of the other.

A patent granted for certain processes of exploding nitroglycerine will not support a reissue for a composition of nitro-glycerine and gunpowder or other substances, even though the original application claimed the invention of both process and compound. They are distinct inventions. The last clause of Section 53, Act of 1870 (Sec. 4916 Rev.

Stat.), relates merely to the evidence to which the commissioner may resort; but does not increase his power as to the invention for which a reissue may be granted. Whether said claim relates to any other than machine patents, not considered in this case.

When there is a demurrer to the whole bill, and also to part, and the latter only is sustained, the regular decree is to dismiss so much of the bill as seeks relief in reference to the matters adjudged bad, and to overrule the demurrer to the residue, and direct the defendant to answer thereto. The decision of the Circuit Court of California sustained as to the invalidity of the two principal patents for compounds of nitro-glycerine and gunpowder and other substances, in the case of The Giant Powder Co. vs. The California Powder Works and others.

Supreme Court of California.

NOVEMBER TERM, 1878.

[No. 6,061.]

[Filed December 2, 1878.]

OSGOOD VS. EL DORADO WATER AND DEEP GRAVEL MINING COMPANY.

1. Under and by virtue of the provisions of the Act of Congress of July 26, 1866, "granting the right of way to ditch and canal owners over the public lands," etc., one who has actually appropriated the waters of a stream on the public lands before the acquisition by another of the United States title to a tract of land on the stream below, has acquired the exclusive right to the use of the waters appropriated as against such inferior proprietor.

2. It is assumed, for the purposes of this case, that one who has posted a proper notice and pursued work with due diligence until the appropriation is complete, has (under the Act of Congress of July 26, 1866,) the exclusive right to the water, as against a person who-after the notice and before the actual appropriation was completed-acquired the Government title to a tract of land through which the stream ran in its natural course.

3. With this assumption, the plaintiff should have had a decree upon the facts of the present case.

Whether, according to the local rules and customs recognized by the courts, or

the judicial decisions of the State, work done towards appropriating the waters of one or more streams on the public lands may ever be considered and treated as work done towards appropriating another separate and independent stream. Query?

Assuming that it may, yet in order that the work done towards taking out the waters of the one or more streams shall be counted as done towards appropriating the other separate and disconnected stream, the NOTICE posted upon the last must distinctly declare the intention to appropriate the waters of all, and that the water is to be diverted from each as part of a scheme which includes the appropriation of the waters of all.

MCKINSTRY, J.

Under the rules and customs recognized by the courts and the judicial decisions of the State, and as against one attempting to appropriate the same water while the works of the first claimant are yet incomplete, a party posting a notice of intention to appropriate the water of a stream on the public domain, and proceeding with due diligence to make actual appropriation, has been deemed to have appropriated the water and to be in possession of the same and the rights appurtenant thereto, from the date of the posting of the notice.

The defendant bases its claim to the waters of Echo Lake and the outlet therefrom, or "Osgood Creek," upon the Act of Congress of July 26, 1866, (U. S. Statutes at Large, p. 253.) The ninth Section of that Act provides: "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 decisions of the 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 aforesaid is hereby acknowledged and confirmed; provided, however, that whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage 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."

There can be no doubt that the language of the foregoing

section operates, ex proprio vigore, as a grant of the rights and claims embraced within the words employed. It is a recognition by the Federal Government of the rights already recognized by the State Judiciary. We may assume, that, if from the time the predecessors of defendants posted a notice claiming the waters of Echo Lake, they pursued the work of appropriating such waters with due diligence, until the appropriation was actually accomplished, the Act of Congress operated to confirm their right to the use of the same, as of the date of the posting of the notice, even although in the period intervening between the notice and the completion of the work, the plaintiff acquired, as against the United States, the title to the land through which the stream ran in its natural course. Thus much we do not admit absolutely, but for the purposes of the case before us and as presenting the claim of defendant in its strongest light.

On the 25th of October, 1871, the plaintiff received a patent from the United States for the tract deprived of water by reason of the subsequent diversion of Echo Lake and Osgood Creek. From that date, at least, plaintiff became a riparian proprietor. If the predecessors of defendants had not acquired a right to divert the water which would have been available against a subsequent appropriator, the decree should have been for the plaintiff; for certainly the position of the plaintiff when he obtained a United States patent was as favorable as would have been that of a mere appropriator of the water.

We inquire, therefore, had the grantors of defendant acquired a right to the waters of Echo Lake, as against the Government, or the grantee of the Government, when the patent issued to plaintiff?

The first necessary step to be taken by defendant's grantors was to post a notice at or near Echo Lake, or the outlet, declaring their intent to appropriate the waters. The notice seems to have been posted at the outlet of Echo Lake in the year 1860. The witness, Kirk, being asked what were the contents of that notice, answered: "Claiming as a reservoir to keep the water back to supply this ditch which is built on

this line, located in 1860; also, claiming the waters of the lake for the purposes of supplying this present ditch." The witness had previously stated that he posted the notice "at the outlet (of Echo Lake), where the present ditch starts out," and there can be no doubt that the ditch referred to in the notice posted in 1860 was the contemplated ditch from Echo Lake, upon which, as the witness subsequently stated, work was commenced in 1872. There is evidence in the record which may, perhaps, be construed as tending to show that a survey of the line of the ditch leading from Echo Lake was made during or prior to the year 1860 (transcript p. 44-5), but it is quite certain that nothing more was done towards appropriating the waters of that lake until after a second notice was posted. The second notice was posted in February, 1867, and was in the following words and figures: "In conformity with an Act of Congress, entitled 'An Act granting the right of way to ditch and canal owners over the public lands, and for other purposes,' approved July, 1866, the undersigned hereby claim, and are by priority of possession, entitled to the use of the water of this stream for mining, manufacturing, agricultural and other purposes, and intend to dam said stream and carry the same, or a portion thereof, in a flume, ditch or canal, or by natural channels whenever found suitable, to certain mining and agricultural districts, and that the construction of said flume or ditch will not injure any settler on the public domain. J. KIRK,

"February, 1867."

F. A. BISHOP."

From the date of the second notice until the spring of the year 1872, no work was done upon the canal leading the waters from Echo Lake. As we have seen, the plaintiff's patent was issued in October, 1871.

It is quite evident from this statement that, treating the effort of defendant's grantors as an independent, separate attempt to appropriate the waters of Echo Lake and of the outlet, Osgood Creek, they had acquired no right to those waters which could be asserted against the lower riparian proprietor at the time his patent issued to plaintiff.