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Show 602 OTHER WATERS AT THE SURFACE protecting water rights that "have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts." Further, rights of appropriation that accrued under whatever State law was then in effect have been protected as against the claims of subsequent entrymen of the lands on which the diversions were located.186 In various instances, water was diverted on one tract of public land and conveyed to another tract for use there. The fact that the land to which the water was taken was then unsurveyed public land did not prevent the water from becoming appurtenant thereto, because the settler-appropriator was a lawful occupant, not a trespasser. The California Supreme Court stated in 1898 that "the law is settled that the water flowing from springs on public lands may be diverted to other public lands and there used for irrigation or other necessary purposes, and a right to the same acquired as against anyone who subsequently obtains title to the land on which the springs are situated."187 The appropriability of spring waters on the public domain does not appear to have depended upon their being flowing waters, or tributary to a watercourse. The Government, as owner of the public domain, possessed the power to dispose of the land and the water thereon, either together or separately.188 Having elected to dispose of the water separately from the land, the Congress, pursuant to its unquestionable authority, provided in 1877 that "the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public * * * subject to existing rights."189 The language "all * * * other sources of water supply" is broad enough to include springs that do not feed living streams but that nevertheless are capble of being put to beneficial use. The water of a tributary spring on public land, being a part of the stream into which it flows, bears the same relation to downstream appropriative rights as that of any other part of the watercouse upstream from the lands on which the appropriations are made. The result is: (1) While land on which the tributary spring is located remains in public ownership, appropriative rights in the watercourse acquired on downstream public lands attach to the waters of such upstream tributary spring, and are superior to the riparian rights of subsequent grantees of the land on which the spring rises. (2) But appropriations made on downstream private lands vest in the holder no rights as against upstream Government lands. Consequently, when title to 186Ely v. Ferguson, 91 Cal. 187,190, 27 Pac. 587 (1891); Williams v.Harter, 131 Cal. 47, 50, 53 Pac. 405 (1898). See Cohen v. La Canada Land & Water Co., 142 Cal. 437, 439-440, 76 Pac. 47 (1904). 187 Williams v. Harter, 121 Cal. 47, 50, 53 Pac. 405 (1898). 1M California Oregon Power Co. v. Beaver Portland Cement Co., 296 U.S. 142, 162 (1935). 18919 Stat. 377,43 U.S.C. § 321 et seq. (1964). |