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Show REPORT OF THE CHIEF OF ENGINEERS. 295 may have been selected at the point most likely to control the maximum of the waters of the immediate water-shed. It has been decided that water-rights guaranteed to settlers under the law of July 2C, 1SCG, (Revised Statutes, p. 432, sec. 2339,) by a late opinion of the Supreme Court, rendered in the case of Bascy vs. Gallagher, may inure under certain conditions. (See the American Law Times and Reports, March and April, 1875, for decision of the court.) The conditions of the case in question are best shown by the following extracts from the brief of the case, viz: ** 4. In the Pacific States and Territories a right to running waters on the public lands of the United States for purposes of irrigation may be acquired by prior appropriation as against parties not having the title of the Government. The right exercised within reasonable limits, having reference to the condition of the country and the necessities of the community, is entitled to protection. This rule obtains in the Territory of Montana, and is sanctioned by its legislation. "5. By the act of Congress of July 20, 1866, which provides 'that whenever, by priority of possession, rights to the use of waterfor 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 courts, the possessors and owners of such vested rights shall be maintained and protected in the same,' the customary law with respect to the use of water, which had grown up among occupants of the public land under the peculiar necessities of their condition, is recognized as valid. That law may be shown by evidence of the local customs, or by the legislation of the State or Territory, or the decisions of the courts. The union of the three conditions in any particular case is not essential to the perfection of the right by priority ; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, will control." And portions ofthe opinion as delivered by Justice Field: "The questionon the merits in this case is whether a right to running waters on the public lands of the United States for purposes of irrigation can be acquired by prior appropriation as against parties not having the title of the Government. Neither party has any title from the United States; no question as to the rights of riparian proprietors can therefore arise. It will be time enough to consider those rights when either of the parties has obtained the patent of the Government. At present both parties stand upon the same footing; neither can allege that the other is a trespasser against the Government without at the same time invalidating his own claim." • •••••• In the case of Tartar vs. The Spring Creek Water and Mining Company, decided in 1855, the supreme court of California said: "The current of decisions of this court go to establish that the policy of this State, as derived from her legislation, is to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner. In evidence of this, acts have been passed to protect the possession of agricultural lands acquired by mere occupancy; to license miners; to pro-Tide for the recovery of mining claims; recognizing canals and ditches which were known to divert the water of streams from their natural channels for mining purposes, and others, of like character. This policy lias been extended equally to all pursuits, and no partiality for one over another has been evinced, except in the single case where the rights of the agriculturist are made to yield to those of the miner where gold is discovered in his land. The policy of the exception is obvious. |
