Opinion of the Court. an entry, so long as it remained a subsisting entry of record, whose legality had been passed upon by the land authorities and their action remained unreversed, it was such an appropriation of the tract as segregated it from the public domain, and, therefore, precluded it from subsequent grant; and that this entry on behalf of Turner "attached to the land" in question, within the meaning of the act of Congress making the grant, 14 Stat. 87, c. 168, and could not be included within it. And as to mere settlement with the intention of obtaining title under the preëmption laws, while it has been held that no vested right in the land as against the United States is acquired until all the prerequisites for the acquisition of title have been complied with, yet rights in parties as against each other were fully recognized as existing, based upon priority in the initiatory steps, when followed up to a patent. "The patent which is afterwards issued relates back to the date of the initiatory act, and cuts off all intervening claimants." Shepley v. Cowan, 91 U. S. 330, 337. Section 2339 of the Revised Statutes, which is in substance the ninth section of the act of Congress of July 26, 1866, 14 Stat. 253, c. 262, 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 the decisions of 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 herein specified is acknowledged and confirmed." This section, said Mr. Justice Miller, in Broder v. Water Co., 101 U. S. 274, 276, "was rather a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one." By section 17 of the act of July 9, 1870, amendatory of the act of July 26, 1866, it was provided, among other things, that "all patents granted, or preëmption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such Opinion of the Court. water rights, as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory." 16 Stat. 218, c: 235, § 17. And this was carried forward into section 2340 of the Revised Statutes, and Smith's patent was subject to that reservation. The 9th section of the act 1866 is referred to by Mr. Justice Field in Atchison v. Peterson, 20 Wall. 507, 512, and in the opinion it is said that "the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common law doctrine of riparian proprietorship with respect to the waters of those streams." When, however, the government ceases to be the sole proprietor, the right of the riparian owner attaches, and cannot be subsequently invaded. As the riparian owner has the right to have the water flow ut currere solebat, undiminished except by reasonable consumption of upper proprietors, and no subsequent attempt to take the water only can override the prior appropriation of both land and water, it would seem reasonable that lawful riparian occupancy with intent to appropriate the land should have the same effect. The Dakota Civil Code contains this section: "SEC. 255. The owner of the land owns water standing thereon, or flowing over or under its surface, but not forming a definite stream. Water running in a definite stream, formed by nature over or under the surface, may be used by him as long as it remains there; but he may not prevent the natural flow of the stream, or of the natural spring from which it commences its definite course, nor pursue nor pollute the same." Levisee's Dakota Codes, 2d ed. 781. By section 527, which is section 1 of an act relating to water rights, passed in February, 1881, Sess. Law, 1881, c. 142, § 1, it is provided: "That any person or persons, corporation or company, who may have or hold a title or possessory right or title to any mineral or agricultural lands within the limits of this Territory, shall be entitled to the usual enjoyment of the waters of the streams or creeks in said Territory for mining, milling, agricultural or domestic purposes: Provided, That Opinion of the Court. the right to such use shall not interfere with any prior right or claim to such waters when the law has been complied with in doing the necessary work." Levisee's Codes, 861. Section 650 of the Code of Civil Procedure is as follows: "Any person settled upon the public lands belonging to the United States, on which settlement is not expressly prohibited by Congress, or some department of the general government, may maintain an action for any injuries done the same; also an action to recover the possession thereof, in the same manner as if he possessed a fee simple title to said lands." Levisee's Codes, 171. The local custom is set forth in the findings to have consisted in the recognition and acknowledgment of "the right to locate water rights, and to divert, appropriate and use the waters of flowing streams for purposes of irrigation when such location, diversion and use does not conflict or interfere with rights vested and accrued prior thereto." Thus, under the laws of Congress and the Territory, and under the applicable custom, priority of possession gave priority of right. The question is not as to the extent of Smith's interest in the homestead as against the government, but whether as against Sturr his lawful occupancy under settlement and entry was not a prior appropriation which Sturr could not displace. We have no doubt it was, and agree with the brief and comprehensive opinion of the Supreme Court to that effect. The judgment is affirmed. MR. JUSTICE BREWER was not a member of the court when this case was submitted, and took no part in its decision. Statement of the Case. SEARL v. SCHOOL DISTRICT NO. 2 IN LAKE COUNTY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. No. 1104. Submitted January 10, 1890. — Decided March 3, 1890. A tract of land in Leadville, Colorado, was deemed by the municipal authorities to be the most convenient and proper situation for the erection of a school-house, which had become a necessity in that part of the town. The person in possession claimed under what was known as a squatter title. Another person laid claim to it under a placer patent from the United States. Both claims of title were known to the authorities, and were submitted by them in good faith to counsel for advice. The counsel advised them that the squatter title was good, and on the faith of that advice they purchased the lot from the person in possession, and built a school-house upon it, at a cost of $40,000. The claimant under the placer title brought an action of ejectment to recover possession. The municipal authorities, being satisfied that he must prevail, filed their bill in equity to enjoin him from proceeding to judgment in his action at law, and commenced proceedings under a statute of the state for condemnation of the tract for public use. The plaintiff in the ejectment suit appeared in the condemnation proceedings, and claimed to recover from the municipality the value of the improvements as well as the value of the land as it was when acquired by the municipality; and, being a citizen of Kansas, had the cause removed, on the ground of diverse citizenship, into the Circuit Court of the United States. It was there agreed that the value of the property, without the improvements, was $3000; and the court instructed the jury that they should find “that the value of said property at this date is $3000;" Held, that this instruction was correct. No vested right is impaired by giving to an occupant of land, claiming title and believing himself to be the owner, the value of improvements made by him under that belief, when ousted by the legal owner under an adverse title. In exercising the right of eminent domain for the acquisition of private property for public use, the compensation to be awarded must not only be just to the owner, but also just to the public which is to pay for it. SCHOOL DISTRICT No. 2, in the county of Lake and State of Colorado, filed its petition in the county court of that county against R. S. Searl, stating that long prior to the first day of July, 1881, it had been and then was, a school district duly Statement of the Case. and regularly organized; that on July 1, 1881, one Frances M. Watson was in the actual possession and occupancy, under a deed of conveyance to her, of certain lots in a certain block of an addition to the city of Leadville; that on the same, day one Schlessinger was in the actual possession and occupancy under deed of conveyance to him of certain other lots; that said Watson and Schlessinger then were, and they and their grantors had for a long time prior thereto been, in the actual possession and occupancy of said lots, claiming the ownership thereof; that on that day the board of directors of the school district, having been duly authorized and directed so to do, purchased the lots from Watson and Schlessinger and they were conveyed to the district, the said lots being contiguous and together constituting but one tract or lot, not exceeding one acre; that the lots were situated within the boundaries of the school district, and were purchased for the purpose of a school lot upon which to locate and construct a school-house for the benefit of the school district and the people resident therein; that the school district entered into possession and occupation of the land on July 1, 1881, and proceeded to and did construct thereon a large, costly and valuable school-house, and ever since that time had been and then was in the possession and occupancy of said land, using the same for the purposes of a school; that since the purchase and entry into possession by the school district, the defendant, Searl, had acquired the legal title to the lots composing the school lot, the full title to the same having become vested in him on the second day of February, 1884; "that he is now the owner of said property, and that the title thereto acquired by your petitioner as aforesaid has wholly failed; that your petitioner made the purchases, entered into the possession, and constructed the school-house aforesaid in good faith, believing that it had good right so to do; that said school-house is located with reference to the wants and necessities of the people of each portion of said district, and was at the time of said purchases and is now necessary for the school purposes of said district, and that said. land and school lot contain no more than is necessary for the location and construction of the school-house aforesaid and the |