AZ vs. CA:19 California Exhibits, Vol. XIX; Nos. 4000-4044

page III-46

water to irrigate and reclaim the land embraced in his desert entry; that he had not since that time procured by purchase or otherwise the necessary water to reclaim this land; and that he is not now, nor was he at the date of entry or making final proof, nor ever was, the owner of any water right with which he might irrigate and reclaim the land embraced in his said desert land entry, and therefore they held that said entry should be canceled. On appeal from this finding and decision, your office, on January 30, [7] 1888, found from the evidence, that one Philip E. Evans, about the year 1866 or 1867, constructed a ditch from Wisconsin creek, carrying from two hundred to two hundred and fifty inches of water; "that all the water in Wisconsin creek was appropriated before Evans constructed his said ditch, and that what water he used was by sufferance only, he never claiming an absolute right to any portion of the water;" and that Sullivan, about the year 1879, bought Evans's ranch or claim, and therewith all his interest in and to said water right. On this finding, your office affirmed the decision of the local officers, and held said entry for cancellation. Prom this decision Sullivan prosecutes his present appeal and assigns as grounds therefor, in substance, that you erred in your finding of facts and in holding his entry for cancellation; and also "In holding, that the Land Department has power and jurisdiction under the law to try and determine, as affecting the validity of the entry of the appellant, any question as to the priority of water rights." 111-46