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Show 36 to be the true successors of the United States with the right to oust prior. appropriators under the possessory system.148 Against the background of the foregoing facts, Congress enacted the Act of 1866 which declared mining lands free and open to preemption and included this provision in Section 9:144 That, whenever, by priority of possession, rights to the use of water for mining, agricultural, manufactur- ing, 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 aforesaid is hereby acknowledged and confirmed: Pro- vided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party in- jured for such injury or damage. Referring to Section 9 of the 1866 Act, Congress provided by the Act of 1870 that:145 All patents granted, or preemption of homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act • • \ The author of the 1866 Act deemed it a recognition of "the obligation of the government to respect private rights which 143 Act of May 20, 1862, 12 Stat. 392, see 43 U. S. C. 161 et seq.; Act of July 2, 1864, § 3, 13 Stat. 365, 367; I Wiel, Water Rights in the Western States, § 87 (3d ed. 1911). 144 R. S. § 2339, from Act of July 26, 1866, § 9,14 Stat. 251, 253, now codi- fied as part of 43 TJ. S. O. 661. 145 R. S. § 2340, from Act of July 9, 1870, § 17, 16 Stat. 217, 218, now codified as part of 43 U. S. C. 661. |