2. Under First Clause of Section 2337, Statutes. Sierra Grande M. Co. v. Crawford, United States Revised Statutes. 28. Any number of tracts not exceeding five acres in the aggregate, used and occupied for mining and milling purposes, may be taken appurtenant to a lode claim, under the first clause of section 2337, United States Revised Statutes. J. B. Haggin, 2 L. D. 755. 29. To be enterable under the first clause of section 2337, United States Revised Statutes, a mill site must be: (1) Non-mineral; (2) Non-contiguous to the lode; and (3) Used or occupied by the owner of the lode for mining or milling purposes. Gold Springs & Denver City Mill Site, 13 L. D. 175. 30. At date of application for patent for a mill site there must be shown actual use or Occupation thereof for the purpose of mining or milling. Mere intention or purpose on a certain contingency of performing acts of use or occupation thereon will not satisfy the Ontario S. M. Co., 13 C. L. O. 159. law. 31. Mere use of a tract as an appurtenant to an adjacent mining claim gives the possessor no right to the land. (If non-mineral land it should be located as a mill site.) Waterloo M. Co. v. Doe, 56 Fed. Rep. 685. 32. To be enterable under the first clause of section 2337, United States Revised Statutes, a mill site must be actually used, as a present fact, for mining or milling purposes, in direct connection with the lode claim to which it is claimed to be appurtenant, and with which it is applied for. Peru Lode and Mill Site, 10 L. D. 196. 33. A mineral application for a mill site on which there is no mill, and which is not used or occupied in connection with a lode which has been applied for, is invalid. Hamburg M. Co. v. Stephenson, 17 Nev. 449; 30 Pac. Rep. 1088. 34. An entry of a mill site as appurtenant to a lode claim will be canceled on its being shown that the mill site is not so used, but is entered for the benefit of another to be used for other than mining purposes. Syndicate Mill Site, 11 L. D. 561. 35. Use of land as a site for pumping works for supplying water to a mining claim is such a use as will allow entry of the land as an adjunct to a lode claim, under the first clause of section 2337, United States Revised 11 L. D. 338. 36. Use of a mill site for storage of water necessary to the operation of the mine is a sufficient use and occupancy for mining purposes. Gold Springs & Denver City Mill Site, 13 L. D. 175. 37. The mere use of water from springs on the land in connection with the working of a lode claim is not such a use and occupancy of the land as will render it subject to entry as a mill site. Charles Lennig, 5 L. D. 190; Cyprus Mill Site, 6 L. D. 706; Iron King Mine and Mill Site, 9 L. D. 201; Mint Lode and Mill Site, 12 L. D. 624. 38. An ore-house and a tool-house on a mill site is good use and occupancy. Hartman v. Smith, 7 Mont. 19; 14 Pac. Rep. 648. 39. The use, in a mine, of timber growing upon land is not such a use of the land as will warrant entry thereof as a mill site appurtenant to the mine, under the first clause of section 2337, United States Revised Statutes. Two Sisters Lode and Mill Site, 7 L D. 557. 40. Land is used for mining or milling purposes when the claimant has a quartz mill, reduction works, shops, houses for his workmen thereon, or when it is used for depositing tailings or storing ores. Lennig, 5 L. D. 190. Charles 41. The erection and use on a mill site of dwelling-houses for the use of miners working on the lode claim, applied for in connection therewith, is such a use and occupancy as will justify entry of the land, under the first clause of section 2337, United States Revised Statutes. Satisfaction Extension Mill Site, 14 L. D. 173. 42. A tract on which are situate a house used as an office and residence of the superintendent of the mine, a stable, a railroad sidetrack and a store-house, all used in connection with a patented lode claim, is so used and occupied as to be enterable as a mill site under the first clause of section 2337, United States Revised Statutes. Eclipse Mill Site, 22 L. D. 496. 43. Where a lode claim and a mill site appurtenant thereto are embraced in one survey and in one application for patent, the survey of the mill site need not be connected with a corner of the public surveys or a United States mineral monument, if con nected with the survey of the lode claim, and | Cyprus Mill Site, 6 L. D. 706; Two Sisters Lode in such a case it is not incumbent upon the and Mill Site, 7 L. D. 557; Le Neve Mill Site, claimant to show an expenditure of $500 upon 9 L. D. 460; Hecla Cons. M. Co., 12 L. D. 75. the mill site, its use or occupancy for mining or milling purposes in connection with the lode claim being sufficient to entitle claimant to ask for a patent therefor. Alta Mill Site, 8 L. D. 195. 44. A tract of land claimed and used for mining and milling purposes in connection with a patented lode claim may be entered under the first clause of section 2337, United States Revised Statutes, viz., the mill site need not be applied for and entered with the lode claim. Eclipse Mill Site, 22 L. D. 496; Departmental decision of May 23, 1896, In re Idaho Mill Site; Com'r to Prescott Office, Sept. 12, 1895, In re Genung Spring and Mill Site. Contra, Com'r to Prescott Office, May 6, 1893. 45. Notice of application for patent should be posted on both a lode and a mill site covered by the same application, but failure to post on the mill site may be waived where such failure was caused by inadvertence and extensive improvements have been placed thereon. Bailey and Grand View M. & Sm. Co., 3 L. D. 386. 46. An entry of a lode and mill site defective in that notice of application for patent was not posted upon the mill site may be referred to the Board of Equitable Adjudication. New York Lode and Mill Site, 5 L. D. 513. (Overruling Bailey and Grand View M. & Sm. Co., 3 L. D. 386.) 50. The right to make entry of a mill site under section 2337 (second clause), United States Revised Statutes, depends upon the existence on the land of a quartz mill or reduction works. There is no provision of law by which a mill site can be acquired as additional to, or in connection with, an existing mill site. Hecla Cons. M. Co., 12 L. D. 75. 51. A mill site taken under the second clause of section 2337, United States Revised Statutes, must have on it a mill or reduction works. A part interest in a mill upon another mill site cannot be considered as entitling the claimant to a patent. Com'r to Hailey Office, July 3, 1896, In re Grouse Creek No. 2 Mill Site. 52. A mineral application will not be received for a mill site under the second clause of section 2337, United States Revised Statutes, unless it appears that there is situate upon the tract applied for a quartz mill or reduction works capable of being used independently of works on an adjoining mill site; i. e., two mill sites may not be applied for by placing one mill or reduction works upon the line between them. Hecla Cons. M. Co., 14 L. D. 11. 53. Annual expenditures of $100 are required upon mill site claims held under the second clause of section 2337, United States Revised Statutes, as well as upon mining claims. 47. An applicant for patent to a mill site Francisco, Cal., Feb. 9, 1892; Com'r to C. M. Com'r to Surveyor General, San under the first clause of section 2337, United States Revised Statutes, must show title to the lode claim in connection with which it is claimed. Com'r to Hailey Office, July 3, 1896, In re Grouse Creek No. 2 Mill Site. Foster, May 7, 1892. 54. A mill site taken under the second clause of section 2337, United States Revised Statutes, should be connected, in the survey thereof, with a United States mineral monuapment, or a corner of the public surveys, and if not so connected an amended survey will be ordered. Senator Mill Site, 7 L. D. 475. 48. A mill site may be located prior to plication for patent for the lode claim in connection with which it is to be used. Hargrove v. Robertson, 15 L. D. 499. 3. Under Second Clause of Section 2337, United States Revised Statutes. 49. The right to make entry of a mill site under the second clause of section 2337, United States Revised Statutes, depends upon the existence thereon of a quartz mill or re-duction works. Charles Lennig, 5 L. D. 190; Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, 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 herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. 14 Stat. 253; sec. 2339, U. S. Rev. Stat. All patents granted, or pre-emption or 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 preceding section. 16 Stat. 218; sec. 2340, U. S. Rev. Stat. II. DECISIONS. rian proprietor confers no exclusive right to the use of it as against another riparian proprietor unless the latter's rights are impaired by grant or license, or the prior appropriation has continued adversely for more than twenty years, has been modified by local usage and statutory enactment (Palmer v. Mulligan, 3 Caines, 307; Platt v. Johnson, 15 Johns. 213; Martin v. Bigelow, 2 Aikens, 184; S. C., 16 Am. Dec. 696; Hoy v. Sterrett, 2 Watts, 327; S. C., 27 Am. Dec. 313; Stout v. McAdams, 2 Scam. 67; S. C., 33 Am. Dec. 441; Davis v. Fuller, 12 Vt. 178; S. C., 36 Am. Dec.. 334; Evans v. Merriweather, 3 Scam. 492; S. C., 38 Am. Dec. 107; Hartzall v. Sill, 12 Pa. St. 248; Bliss v. Kennedy, 43 Ill. 67; Rudd v. Williams, 43 Ill. 385; Gilman v. Tilton, 5 N. H. 231; Cowles v. Kidder, 24 N. H. 378; Stillman v. W. R. etc. Co., 3 Wood. & M. 550; Parker v. Hotchkiss, 25 Conn. 321; Keeney, etc. Mfg. Co. v. Union Mfg. Co., 39 Conn. 576; Tyler v. Wilkinson, 4 Mason, 397; Pugh v. Wheeler, 2 Dev. & B. 55; Blanchard v. Baker, 3 Greenl. 504; S. C., 23 Am. Dec. 504; Wadsworth v. Tillitson, 15 Conn. 356; S. C., 39 Am. Dec. 391), and does not prevail in California and some other of the mining States and Territories. In those States property in a stream of water on the public lands may be acquired by mere appropriation for mining or other useful purposes, as for irrigation or for the operation of mills, and the first appropriator is, to the extent of his appropriation, the owner as against the world, except the government (Lobdell v. Simpson, 2 Nev. 274; Ophir S. M. Co. v. Carpenter, 4 Nev. 534; Barnes v. Sabron, 10 Nev. 217; 4 Mor. Min. Rep. 673; Strait v. Brown, 16 Nev. 317; Strait v. Brown, 40 Am. Rep. 497; Hill v. Newman, 5 Cal. 445; Kelley v. Natoma Water Co., 6 Cal. 107; Hoffman v. Stone, 7 Cal. 46; Hill v. King, 8 Cal. 336; Bear River, etc. Co. v. New York Mining Co., 8 Cal. 327; McDonald v. Bear River, etc. Co., 13 Cal. 220; Ortman v. Dixon, 13 Cal. 33; Kidd v. Laird, 15 Cal. 161; Phoenix Water Co. v. Fletcher, 23 Cal. 481; Wixon v. Bear River, etc. Co., 24 Cal. 367; Hill v. Smith, 24 Cal. 480; Parks Canal, etc. Co. v. Hoyt, 57 Cal. 44; Crane v. Winsor, 2 Utah, 248; Schillinger v. Rominger, 4 Colo. 100); and such rights have been confirmed by Congress. (Note to Castillero v. United States, 2 Black, 1.) Act of July 26, 1866 (14 Stat. 253). 1. The common-law doctrine, that prior 2. The prior appropriator of a water right appropriation of water of a stream by a ripa- Ì on the public domain has the superior title tended by implication to a class of cases not specially provided for. Accordingly, ditchesthus constructed over lands thus held, without the consent of the occupant, though de thereto. Atchison v. Peterson, 20 Wall. 507; | have been a trespass, and could not be exBasey v. Gallagher, 20 Wall. 670; Thorp v. Freed, 1 Mont. 652; Irwin v. Phillips, 5 Cal. 332; Butte, etc. Co. v. Vaughn, 11 Cal. 152; Bear River Co. v. New York M. Co., 8 Cal. 332; McDonald v. Bear River Co., 13 Cal. 220; Phoe-signed to convey water to mining localities nix Water Co. v. Fletcher, 23 Cal. 482; Hill v. Smith, 27 Cal. 476; Smith v. O'Hara, 43 Cal. 371; Lobdell v. Simpson, 2 Nev. 274; Ophir M. Co. v. Carpenter, 4 Nev. 534; Hobart v. Ford, 6 Nev. 80; Dalton v. Bowker, 8 Nev. 201; Barnes v. Sabron, 10 Nev. 217; 4 Mor. Min. Rep. 673. 3. An owner of a mining claim and the owner of a water right in California hold their respective properties from the dates of their appropriation, the first in time being the first in right; but where both rights can be enjoyed without interference with or material impairment of each other, the enjoy ment of both is allowed. Jennison v. Kirk, 98 U. S. 453. (NOTE.— Justice Field, in a note appended to the opinion as published, states "that the customary law of miners is not applicable in California to controversies arising between them or ditch owners, and occupants of the public lands for agricultural or grazing purposes. It has been the general policy of the State '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.' Tartar v. Spring Creek Co., 5 Cal. 398. But at an early day an exception was made to this policy in cases where the interests of agriculturalists and of miners conflicted. By an act passed April 20, 1852, a right of action was given to anyone settled upon the public lands for the purpose of cultivating or grazing against parties interfering with his premises, or injuring his lands where the same were designated by distinct boundaries, and did not exceed one hundred and sixty acres in extent: with a proviso, however, that if the lands contained mines of precious metals the claim of the occupant should not preclude any persons desiring to do so from working the mines as fully and unreservedly as they might or could do had no possession or claim been made for grazing or agricultural purposes. Stat. at L., 1852, p. 158. Under this Act the Supreme Court of the State held that miners, for the purpose simply of mining, could enter upon the land thus occupied, but that the act legalized what would otherwise for the purpose of mining, were held to be nuisances, and upon the complaint of the occupant were ordered to be abated. Stokes v. Barrett, 5 Cal. 37; McClintock v. Bryden, 5 Cal. 97; Fitzgerald v. Urton, 5 Cal. 308; Burdge v. Underwood, 6 Cal. 46; Weimer v. Lowery, 11 Cal. 104. Section 9 of an Act for the sale of the lands of the United States in the territory northwest of the Ohio river and above the mouth of Kentucky river, approved May 18, 1796 (1 Stat. 464-468), provides: 'That all navigable rivers within the territory to be disposed of by virtue of this act shall be deemed to be and remain public highways; and that in all cases where the opposite banks of any stream, not navigable, shall belong to different persons, the stream and the bed thereof shall become common to both."") 4. The subject of water rights upon the public lands is governed by the provisions of the act of July 26, 1866 (14 Stat. 253), re-enacted by the act of May 10, 1872 (17 Stat. 91), and now embodied in section 2339, United States Revised Statutes. 5. "It is the established doctrine of this court that the rights of miners and rights of per sons who had constructed canals and ditches to be used in mining operations and irrigation, are rights which the government had, by its conduct, recognized and encouraged and was bound to protect before the passage of the act of 1866." Said act, section 2339, United States Revised Statutes, is simply declaratory of then existing rights. Broder v. Natoma Water & M. Co., 101 U. S. 274; 50 Cal. 621; 4 Mor. Min. Rep. 670; 5 Mor. Min. Rep. 33. 6. The act of 1866 (14 Stat. 253, sec. 2339, U. S. Rev. Stat.) conferred no additional rights upon owners of ditches thereafter constructed, said act being merely a congressional sanction of pre-existing rights under local rules, customs and decisions. Jennison v. Kirk, 98 U. S. 453; 4 Mor. Min. Rep. 504. (Affirming Titcomb v. Kirk, 51 Cal. 288; 5 Mor. Min. Rep. 10.) 7. The act of 1866, section 2339, United States Revised Statutes, introduced no new system of law concerning water rights, but | ing purposes. 3. Grant of right to occupants of public lands to sue for damages caused by construction of such flumes or canals. Hobart v. Ford, 6 Nev. 77; 15 Mor. Min. Rep. 236. recognized and sanctioned the existing common law of the Western States. Jones v. Adams, 19 Nev. 78. (Overruling Van Sickle v. Haines, 7 Nev. 249; 15 Mor. Min. Rep. 201.) 8. Section 9 of the act of 1866 is not re14a. Controversies arising under section troactive in its effect, and patents theretofore 2339, United States Revised Statutes, involvgranted are not affected thereby. Said acting rights to the use of water for mining, agmerely recognized and confirmed rights held under local customs, laws and decisions. Union Mtn. M. Co. v. Ferris, 2 Sawy. 176; 8 Mor. Min. Rep. 90. 9. Section 2339, United States Revised Statutes (Act of July 26, 1866, sec. 9, 14 Stat. 253), is a grant of a right of way over the public domain for certain enumerated purposes. Hobart v. Ford, 6 Nev. 77; 15 Mor. Min. Rep. 236. 10. The doctrine as to water rights, etc., under the act of July 26, 1866, applies only to public lands. No rights can be acquired there under where the title to the lands upon which the stream is situated has passed from the government; but the owner of the land is the owner of the stream, and the common-law rule prevails. Union Mtn. M. Co. v. Ferris, 2 Sawy. 176; 8 Mor. Min. Rep. 90; Van Sickle v. Haines, 7 Nev. 249; 15 Mor. Min. Rep. 201. (Overruled in Jones v. Adams, 19 Nev. 78.) Crandall v. Woods, 8 Cal. 136; Leigh v. Independent Ditch Co., 8 Cal. 323. 11. Where the right to water under the act of July 26, 1866, by appropriation, is once vested, a subsequent grantee from the government takes subject to it. Broder v. Natoma Water, etc. Co., 101 U. S. 274; 50 Cal. 621; 4 Mor. Min. Rep. 670; 5 Mor. Min. Rep. 33; Barnes v. Sabron, 10 Nev. 217; 4 Mor. Min. Rep. 673; Osgood v. Eldorado, etc. Co., 56 Cal. 571; 5 Mor. Min. Rep. 37. 12. The right to the use of water, acquired by appropriation thereof on the public domain, has been recognized in the Western States. Atchison v. Peterson, 20 Wall. 507. 13. Under the act of July 26, 1866 (14 Stat. 251, sec. 2339, U. S. Rev. Stat.), no title is acquired to a right of way for a ditch until actual possession is taken. Bybee v. Oregon & California R. R. Co., 139 U. S. 663. 14. The act of 1866 (sec. 2339, U. S. Rev. Stat.) had three objects: 1. Confirmation of existing water rights. 2. Grant of right of way over public lands for construction of flumes or canals for mining or manufactur ricultural, manufacturing or other purposes, and the right of way for the construction of ditches and canals, etc., are matters lying exclusively within the jurisdiction of the courts for decision. Com'r to A. V. Howard, Aug. 3, 1891. 15. An easement of a water right (or a right of way for a flume) is not a proper basis of an adverse claim under section 2326, United States Revised Statutes, but is protected by sections 2339, 2340, United States Revised Statutes. Rockwell v. Graham, 9 Colo. 36; 10 Pac. Rep. 284; 15 Mor. Min. Rep. 299. 16. Grants by the United States of its public lands bounded by streams or other waters made without reservation relative thereto are to be construed, as to riparian rights, according to the law of the State in which the land is situate. Hardin v. Jordan, 140 U. S. 371. 17. The right to mine confers the right to divert streams from natural channels, and when these rights conflict the question to be decided is one of priority. Irwin v. Phillips, 5 Cal. 140 (1855). 18. A prior locator of a mining claim on the banks of a stream has the right to use the bed for working his claim, and any subsequent embankment or dam which interferes with his use is an encroachment upon his rights, and he is entitled to recover. Sims v. Smith, 7 Cal. 148 (1857). 19. A water right is a right to take only necessary water without unduly injuring other rights. Atchison v. Peterson, 20 Wall. 507; Butte Co. v. Vaughn, 11 Cal. 143; Ortman v. Dixon, 13 Cal. 33; Lobdell v. Simpson, 2 Nev. 274. 20. A United States patent for public land carries with it riparian rights. Van Sickle v. Haines, 7 Nev. 249; 15 Mor. Min. Rep. 201. (Overruled in Jones v. Adams, 19 Nev. 78.) 21. Mere appropriation of water confers no right against a subsequent patentee of the land whence the water comes. Van Sickle v. |