In this case the court hold the following language: "We have held that there is no difference in respect to this use, or rather purpose to which the water is to be applied, at least, that an appropriation for the use of a mill stands on the same footing as an appropriation for the use of mines." We would be justified in the inference from this language that that court did not make any difference in the use or purpose for which water was appropriated, if the use was a beneficial one.

The courts of this Territory, and of California, have sustained the right to appropriate agricultural land for agricultural purposes upon the unsurveyed public domain. The water that flows over land is but an incident to it. There are no grounds upon which a court could sustain the right to appropriate land that would not apply to the right to appropriate the water flowing over land, an incident to the land itself. To give the one right and deny the other, would be the granting of the right to a party to appropriate every vestige of a piece of property and deny him the right to appropriate a small portion thereof. The right to appropriate water for mining or milling purposes, resting in this country before the act of congress above referred to, upon the grounds that no one owns the property, and that the appropriation is for a beneficial purpose, establishes a principle that certainly ought to allow the appropriation of water for the purposes of irrigation. In this latter case no one, it would be presumed, owned the water, and the appropriation would be for a beneficial use.

Whenever a legal rule is once established by legal decisions, it controls all cases which come within the reason of the rule. 'Adjudged cases become precedents for future cases resting upon analogous facts and brought with the same reason." 1 Kent's Com. 537.

"Ubi eadem ratio ibi idem jus" is a familiar legal maxim, one which courts of law have long acted upon in arriving at legal determinations.

Broom, in his work on Legal Maxims, page 131, shows how a decision in relation to the alteration of a deed or bond

was declared to be authority in the alteration of a bill of exchange and a promissory note, because the reason of the rule established in the former cases was applicable to the latter, and finally the decisions in these were held to be authority in the case of the alteration of a guaranty for the

same reason.

"The law consists not in particular instances and precedents, but in the reason of the law, for reason is the life of the law." Broom's Legal Maxims, 130.

The reason of the rule that allows parties to appropriate water for mining or milling purposes being such that it would fully sanction the appropriation of water for the purposes of agriculture, and there being no reason why the courts should sustain the right to appropriate land and deny the right to appropriate water, a mere incident to land, for the purposes of irrigation, I think we can safely say that the appropriation of water for that purpose has been acknowledged and recognized by the decisions of the courts. To hold otherwise, because no decision had been made in this Territory maintaining the right to appropriate water for this identical purpose, would be "sticking in the bark" and ignoring the spirit of the law, and disregarding the maxim of which our common-law jurisprudence has been so boastful, that reason is the soul of the common law.

The right to appropriate water for the purposes of irrigation having, in our opinion, been acknowledged and recognized by the customs, laws and decisions of the courts of this Territory, the law of congress comes in and says that whenever, by priority of possession, the right to the use of water for this purpose "have vested and accrued," "the possessors and owners of such vested rights shall be maintained and protected in the same."

This is in effect a grant to such parties of this right. It appears from the statement of the evidence in this case, that all of the parties to this action now own the government title to their lands. But this will not vary the rule above established in this case. Whatever rights the parties had in relation to the waters of the Prickly Pear creek, vested

before any of these parties acquired their rights to the land under the general government. This decision, it will be understood, does not go to the extent of allowing parties to appropriate and divert water so as to prevent the same from flowing over land to which a party had obtained the government title after the acquisition of this title. If no one before the pre-emption and entry of land by a party has acquired the right to divert the waters of a stream, then the patent from the general government conveys the water as an incident to the soil over which it flows. If it has been appropriated before the time when the patent takes effect, it does not.

It is claimed, however, that this act of congress was only to affect settlers upon the public domain as long as it remained unsurveyed and was not open for pre-emption and entry. There is no reservation of this kind in the act itself. And to show that this was not the intention of congress we have an amendment to that act, approved July 9, 1870. part of the seventeenth section of this amendatory act is as follows:

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"And be it further enacted, That none of the rights conferred by sections 5, 8 and 9 of the act to which this act is amendatory shall be abrogated by this act, and the same are hereby extended to all public lands affected by this act, and 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 ninth section of the act of which this is amendatory."

This part of that section clearly demonstrates that congress did not and does not intend that the rights granted by section 9 of the previous act should be confined to the unsurveyed public domain. This amendatory, or rather confirmatory, section only declares what the courts would have been compelled to hold was the legal effect of section 9 of the previous act. A grant of a right cannot be divested by a subsequent grant. The words used in section 9 were, as

we have said, in effect a grant. A grant made by law is as effectual as a grant made by deed or patent. And a subsequent grant of land would be subject to any previous grant of a water right. After a full consideration we are impelled to the conclusion that the right to appropriate water for the purposes of irrigation in this Territory stands upon as good, if not a better, footing as the right to appropriate water for mining purposes. This right has been and is subject to be regulated by law. And that the doctrine in relation to riparian proprietors has been abrogated to a considerable extent. Before the government title to land, over which water flows, has been acquired by a private person, such water may be appropriated and diverted in accordance with legal provisions. Afterward it cannot, and the doctrine of riparian proprietors would prevail as to it.

The case of Vansicle v. Haines, 7 Nevada, cited in this case, is not in point. In that case the government had parted with the title to the soil over which the water flowed before the act of congress of July 26, 1866, above referred to. The patent to Haines of the soil before the passage of that over which the water flowed carried with it the water as an incident thereto, and after the government had parted with this incident to the soil it could not grant it to any one else. I certainly agree with the opinion of the court in that case.

Having arrived at the legal rules by which we will be governed in relation to the appropriation of water for the purpose of irrigation, we come now to the consideration of whether under the issues presented in this case and the facts found by the court any rights of the plaintiff's have been infringed so as to entitle them to the injunction prayed for in their complaint.

The plaintiffs aver in their complaint that during the years 1865, 1866 and 1867 they appropriated all of the waters of Prickly Pear creek for the purposes of irrigation. That all of the waters of said creek are necessary to irrigate their lands, which they aver they located during the same years they appropriated the water, and that the said lands are upon and contiguous to the said creek. That all of the

waters of said creek are necessary to irrigate their land, and was used by them for that purpose, and without it they would be unable to produce any crop, and aver that the defendants have diverted and used the water of said creek appropriated by them, and continue and threaten to continue to do so.

The defendants deny that the plaintiffs appropriated all of the waters of Prickly Pear creek. Deny that all of the waters of said creek are necessary to irrigate the land of the plaintiffs, and deny that they have diverted more than five hundred inches of the water of said creek, and aver that their appropriation of the same was prior to any appropriation of the plaintiffs thereof. There are other issues presented in the pleadings. These are enough, however, for the purpose of determining the points presented.

The court refused to grant the injunction prayed for by plaintiffs and gave the defendants judgment for costs.

The plaintiff moved for a new trial, and as grounds therefor assigned the following list of errors:

1. The court erred in refusing to grant the plaintiffs the injunction prayed for in their complaint.

2. The court erred in ordering judgment to be in favor of defendants and against the plaintiffs.

3. The court erred in its finding of fact.

4. The court erred in its conclusions of law.

5. That the findings of both law and fact are against the evidence.

There are no other specifications of error in the record than the above. This assignment of errors is so general that, as has been frequently held by this court, they cannot be considered. This court, in this particular, has followed those of California. See Hutton v. Reed, 25 Cal. 483; Partridge v. San Francisco, 27 id. 415; Fitch v. Bunch, 30 id. 208.

The assignment of error should point out wherein the error was committed. Upon that distinct point, our practice act provides: "When the notice designates as the ground upon which the motion will be made, the insuffi