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Show 668 INTERSTATE ADJUDICATIONS tories, the party who first subjected the water to use, or took the neces- sary steps for that purpose, was regarded, except as against the government, as the source of title in all controversies respecting it; that the doctrines of the common law declaratory of the rights of ripar- ian proprietors were inapplicable, or applicable only to a limited extent, to the necessities of miners, and were inadequate to their pro- tection ; that the equality of right recognized by that law among all the proprietors upon the same stream, would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream; that the government by its silent acquiescence had assented to and encouraged the occupation of the public lands for mining; and that he who first connected his labor with property thus situated and open to general exploration, did in natural justice ac- quire a better right to its use and enjoyment than others who had not given such labor; that the miners on the public lands throughout the Pacific States and Territories, by their customs, usages, and regula- tions, had recognized the inherent justice of this principle, and the principle itself was at an early period recognized by legislation and enforced by the courts in those States and Territories, and was finally approved by the legislation of Congress in 1866. The views there expressed and the rulings made are equally applicable to the use of water on the public lands for purposes of irrigation. No distinction is made in those States and Territories by the custom of miners or settlers, or by the courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one." And on the same subject, it was further said, in Broder v. Water Co. ,101 U.S. 274,276: "It is the established doctrine of this court that rights of miners, who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irriga- tion, in the region where such artificial use of the water was an abso- lute necessity, are rights which the government had, by its conduct, recognized and encouraged and was bound to protect, before the pas- sage of the act of 1866. We are of opinion that the section of the act which we have quoted was rather a voluntary recognition of a pre- existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one." The Act of July 9,1870, c. 235, § 17, 16 Stat. 217, provided that "all patents granted, or preemption or homesteads allowed, shall be sub- ject to any vested and accrued water rights" acquired under or recog- nized by the provision of 1866. These provisions are now §§ 2339 and 2340 of the Revised Statutes. The Act of March 3,1877, c. 107, § 1,19 Stat. 377, providing for the sale of desert lands in tracts of one section each to persons undertaking and effecting their reclamation, contained a proviso declaring that "the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall de- pend upon dona fide prior appropriation: and such right shall not ex- ceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use, together with the |