retained such possession until they conveyed the same to plaintiff, who, in like manner, continued the possession thereof until interfered with by the defendants.

If the conveyances to plaintiff's grantors did not in fact transfer such an interest as entitled them to all the rights of their grantors, then the right was abandoned, and the possession thereof taken by plaintiff's grantors was as much an original appropriation of the waters of Indian creek as if they had originally constructed the first ditches to divert the same. Such possession, even if it did not determine the ownership, under the act of Congress of March,' 1866, does nevertheless vest in the plaintiff such an equitable interest as to entitle him to maintain this action.

From all the facts and circumstances, we can not refrain from expressing our conviction that the defendants, when they located and constructed their ditch, did it with reference to, and with full knowledge of the prior rights of the Freeman and Cedar gulch ditches.

We are therefore of the opinion that the court below erred in refusing to decree a perpetual injunction against the defendants. The judgment of the court below is therefore reversed, with costs to be taxed against defendants.

The findings of the court below being, that the Freeman ditch conveyed 100 inches of the waters of said Indian creek, and that the said Cedar gulch ditch conveyed 150 inches of the waters of said creek, the injunction should therefore be so far made perpetual in favor of said plaintiff and against said defendants, and judgment is hereby rendered accordingly. Judgment reversed.

'BRODER V. NATOMA WATER AND MINING CO.

(50 California, 621. Supreme Court, 1875.)

Rights of ditch on public lands. The Mining Act of Congress of July 26, 1866, operated as a grant of the right of way and of the ditch, where a right to the use of water such as was "recognized and acknowledged by the local customs, laws and decisions of courts," had been acquired

1 July 26, 1866, R. S. § 2339.

2 Affirmed, U. S. Sup. Court, 5 M. R. 32.

at the date of its passage; and the subsequent grantees of the United States take subject to the easement.

U. S. grants to Pacific R. R. The Pacific railroad companies take the lands granted to them by the acts of Congress of 1862 and 1864, subject to ditch rights vested prior to the Mining Act of July 26, 1866, where, under the provisional terms of those grants, the equity of the grantee had not vested; and such equity did no vest before the certificate called for in the acts had been made by commissioners as to the completion of each section of forty miles.

Appeal from the District Court, Sixth Judicial District, County of Sacramento.

The defendant, in 1853 and 1854, constructed a ditch to convey water for mining purposes from the south fork of the American river, in the gold regions, to a point below Folsom. The ditch was about thirty miles in length, and of a capacity to carry fourteen thousand inches of water, and was excavated to carry water for sale to miners and others, and passed over public lands of the United States which were surveyed by the United States prior to 1865. The ditch passed through sections 28, 29, 32 and 33, of township ten, north of range eight east, Mount Diablo base and meridian. The plaintiff derived title to the northeast quarter of section 32 by a patent from the United States, dated November 1, 1867. He had been living on the land for many years prior to August 18, 1866, but filed his declaratory statement as a preemptor on the latter day. He derived title also to the northeast quarter of section 32 by deed from Jacob Broder, dated October 17, 1871. Jacob Broder received a patent from the United States on the 1st day of December, 1868. The United States, on the 27th day of June, 1867, issued to the Central Pacific Railroad Company, under the acts of Congress of 1862 and 1864, granting lands in aid of a railroad and telegraph line, a patent for the south half of the northwest quarter and the north half of the southwest quarter of section 33, and the northwest quarter of the southeast quarter, and the north half of the northwest quarter of section 33. The said company conveyed the land, part of it to Oswald Broder, and a part to Jacob, who then conveyed to Oswald. The lands were cultivated by the plaintiff, and he commenced this action on the

19th day of October, 1871, to abate the ditch as a nuisance. The land was within the division of the "forty consecutive miles" of the railroad which the railroad company completed in December, 1865, as stated in the opinion. The court rendered judgment for the defendant, and the plaintiff appealed.

R. C. CLARK and McKUNE & WELTY, for appellant.

C. G. W. FRENCH and C. A. TUTTLE, for respondent.
By the COURT.

The defendant having shown that prior to the act of Congress of July 26, 1866, it had acquired a right to the use of the water which was "recognized and acknowledged by the local customs, laws and decisions of courts," that act operated a grant to it of the right of way, and of the ditch through which the water was running at the date of the passage of the act. The subsequent grantees of the United States of tracts through which the ditch ran, took subject to defendant's

easement.

There is no question that the government title to a portion of the lands described in the complaint was acquired by defendant after the passage of the act above mentioned; for the remainder, the plaintiff took deeds from the Central Pacific Railroad Company, the patents of the United States to that company having also been issued subsequent to the act of Congress aforesaid.

It results from the foregoing statement that the judgment of the district court must be affirmed, unless the Central Pacific company had a "perfect equity" at the date of the enactment of the United States statute of July 26, 1866. As establishing such equity, plaintiff relies on the fifth finding of the district court, which is, that in the month of December, 1865, the railroad company completed forty consecutive miles of its road. Section 4 of the act of 1862, "to aid in the construction of a railroad and telegraph line," etc., provides that (on the completion of forty miles, etc.) the president shall appoint three commissioners to examine the same, and report to him in relation thereto; that if it shall appear to him that forty consecutive miles of said railroad and telegraph line

have been completed and equipped in all respects as required by this act, then, upon certificate of said commissioners to that effect, patents shall issue; "and patents shall in like manner issue as each forty miles of said railroad and telegraph line are completed, upon certificate of said commis

sioners."

The law places in the president or board of commissioners, or both, the power of determining whether the railroad company has performed the conditions prerequisite to the issuing of the patents. It is manifest that until the commissioners made their certificate, the company had no vested equity which can be recognized by the State courts. There is no finding that such certificate was made prior to the passage of the act of July 26, 1866.

Judgment affirmed.

BARNES, APPELLANT, V. SABRON ET AL., RESPONDENTS. (10 Nevada, 217. Supreme Court, 1875.)

Appropriation of water. Where the right to the use of running water is based upon appropriation and not upon ownership in the soil, the first appropriator has the superior right. Statutory law controls local customs. The act of Congress approved July 26, 1866, provides "that whenever, by priority of possession, rights to the use of water for mining, etc., 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." In construing this section it was held that the law with respect to the use of water may be shown by evidence of the local customs, or by the legislation of the State, or the decisions of the courts; and that the union of the three conditions is not essential to the perfection of the right by priority, but in case of conflict between a local custom and a statutory regulation, the latter must control.

State statute construed. The Nevada act of March 5, 1869, applies only to cases where persons desire to construct ditches through the lands of others, and find it necessary to condemn the land because the consent of the owner can not be obtained.

Prior and subsequent appropriation. The first appropriator of water has the right to insist that the water flowing in the stream appropriated, during the irrigating season, be subject to his reasonable use and en

joyment to the full extent of his original appropriation and beneficial use, but others have the unquestionable right to appropriate the remainder of the water running in the stream.

1 Patent subject to vested water rights. A party who receives from the State a patent for land, takes subject to the vested and accrued water rights of others under the act of Congress.

Conflicting testimony-Duty of courts. The duty of determining the

truth where testimony is conflicting, belongs almost exclusively to the nisi prius courts, but it is also the duty of all courts to ascertain whether, upon any given state of facts it can be harmonized, before rejecting any of it.

Natural water course-Sinking stream. A stream in Nevada supplied at seasons from springs, but mostly from the melting snow on the mountains, having no regularity as to quantity of water from season to season, and at certain places at certain seasons having sinks, where the water disappears beneath the surface, leaving, however, a distinct channel, with bed and banks, is a natural water course-a “flowing stream of water "; a water course as distinguished from water flowing through ravines only in times of freshet; and it need not appear that it is water flowing continuously.

Possession of cultivated land not fenced. The plaintiff was held to be entitled to the use of the water of a certain creek for the purpose of irrigating the land which he had under cultivation, though not fenced, as well as for his stock and domestic purposes. Cultivation of land is an indication of possession whether inclosed or not.

A party in possession under a contract of purchase from the State is entitled to all the incidents and protection due to ownership.

Irrigator not allowed to waste water. The first appropriator is entitled to only so much water as is necessary to irrigate his land, and is bound to make a reasonable use of it.

2 Reasonable use-Ditch not used to its full capacity. What amounts to a reasonable use depends upon the circumstances of each case, but a party who constructs ditches carrying a greater quantity should not be confined to the amount of water used by him the first and second years after his appropriation, nor his rights regulated by the number of acres he then cultivated; the object in view at the time of his diversion of the water is to be considered in connection with the actual extent of his appropriation by such ditches.

3 Limits to appropriation-Test of ditch capacity. If the capacity of his ditches is greater than is necessary to irrigate his farming land, he must be restricted to the quantity needed for the purposes of irrigation, for watering his stock, and for domestic purposes; but if the capacity of his ditches is not more than sufficient for those purposes, then, no change

1 Coffin v. 58 Cal. 142.

Left Hand Ditch Co., 6 Colo. 443; Farley v. Spring Valley Co.,

2 White v. Todd's Valley Co., 4 M. R. 536; Ellis v. Tone, 58 Cal. 291; Union Co. v. Dangberg, 2 Saw. 450; Post IRRIGATION.

3 Caruthers v. Pemberton, 4 M. R. 622.