justice of this principle, and the principle itself was at an early period recognized by legislation, and enforced by the Courts in those States and Territories." And in Basey v. Gallagher, Id. 670, after referring to the views above quoted, the Court says: "The views there expressed and the rulings made, are equally applicable to the use of waters on the public lands for purposes of irrigation. No distinction is made in those States or Territories by the customs of miners or settlers, or by the Courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one." The statute is as follows: "The common law of England, so far as it is not repugnant to or in conflict with the Constitution and laws of the United States, or the constitution and laws of this State, shall be the rule of decision in all the Courts of this State." . . . The statute is silent upon the subject of the applicability of the common law, but we think the term "common law of England” was employed in the sense in which it is generally understood in this country, and that the intention of the Legislature was to adopt only so much of it as was applicable to our condition. An examination of the authorities will render this apparent. . . From these authorities we assume that the applicability of the commonlaw rule to the physical characteristics of the State should be considered. Its inapplicability to the Pacific States, as shown in Atchison v. Peterson, supra, applies forcibly to the State of Nevada. Here the soil is arid, and unfit for cultivation unless irrigated by the waters of running streams. The general surface of the State is table land, traversed by parallel mountain ranges. The great plains of the State afford natural advantages for conducting water, and lands otherwise waste and valueless, become productive by artificial irrigation. The condition of the country, and the necessities of the situation, impelled settlers upon the public lands to resort to the diversion and uses of waters. This fact of itself is a striking illustration, and conclusive evidence of the inapplicability of the common-law rule. The system which the necessities of the people established was recognized and confirmed by the legislation of Congress — first, by the Act of July 26, 1866, which declares, in its ninth section, "that 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 decisions of Courts, the possessors and owners of such vested rights shall be maintained and protected in the same; . . ." and, second, by the desert land Act, which encourages the appropriation and use of water upon such of the public lands as will not, without irrigation, produce an agricultural crop, by authorizing the sale of a greater amount of such land than the purchaser could otherwise acquire, upon proof of his having conducted water upon it for the purpose of irrigation. This Act applies only to the Pacific Coast States and Territories. (U.S. Stat. 1877, 377.) The legislation of the State also has encouraged the diversion of water by an Act approved March 3, 1866, the general object of which is expressed in its title as follows: "An Act to allow any person or persons to divert the waters of any river or stream and run the same through any ditch or flume, and to provide for the right of way through the lands of others." (Gen. Stat. 362-365.) And the adjudication of the Courts, with the exception mentioned, have sustained the doctrine of appropriation upon which the people acted. That the doctrine should be upheld, as well after the issuance of the patent of the government as before, we quote the views of Mr. Justice Ross, in a dissenting opinion in Lux v. Haggin, 69 Cal. 450: "The doctrine of appropriation thus established was not a temporary thing, to exist only until some one should obtain a certificate or patent for forty acres, or some other subdivision of the public land bordering on the river or other stream of water. It was, as has been said, born of the necessities of the country and its people, was the growth of years, permanent in its character, and fixed the status of water rights with respect to public lands. No valid reason exists why the government, which owned both the land and the water, could not do this. It thus became, in my judgment, as much a part of the law of the land as if it had been written in terms in the statute books, and in connection with which all grants of public land from either government should be read. In the light of the history of the State, and of the legislation and decisions with respect to the subject in que tion, is it possible that either government, State or national, ever contemplated that conveyance of forty acres of land at the lower end of the stream tha flows for miles through public lands should put an end to sub equent appropriation of the waters of the stream upon the public lands above, and entitle the grantee of the forty acres to the undiminished flow of the water in its natural channel from its source to its mouth? It seems to me entirely clear that nothing of the kind was ever intended or contemplated." The case of Coffin v. Ditch Co., 6 Colo. 443, recognizes appropriation as the law of the State of Colorado. Some of the principles announced in that case are applicable here: "It is contended by counsel for appellants," say the Court, "that the common law principles of riparian proprietorship prevailed in Colorado until 1876, and that the doctrine of priority or right to water by priority of appropriation thereof was first recognized and adopted in the Constitution. But we think the latter doctrine has existed from the date of the earliest appropriations of water within the boundaries of the State. The climate is dry, and the soil, when moistened only by the usual rainfall, is arid and unproductive. Except in a few favored sec.ions, artificial irrigation, for agriculture, is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it arises, when appropriated, to the dignity of a distinct usufructuary estate or right of property. It has always been the policy of the national, as well as the Territorial and State governments, to encourage the diversion and use of water in this country for agriculture; and vast expenditures of time and money have been made in reclaiming and fertilizing, by irrigation, portions of our unproductive territory. . . The right to water in this country, by priority of appropriation thereof, we think it is, and has always been, the duty of the national and State governments to protect. The right itself, and the obligation to protect it, existed prior to legislation on the subject of irrigation. It is entitled to protection, as well after patent to a third party of the land over which the natural stream flows, as when such land is a part of the public domain, and it is immaterial whether or not i. be mentioned in the pa ent, and expre sly excluded from the grant." Our conclusion is that the common-law doctrine of riparian rights is unsuited to the condition of our State, and that this case should have been determined by the application of the principles of prior appropriation. Judgment reversed, and cause remanded for a new trial. 248. ACTON v. BLUNDELL EXCHEQUER CHAMBER. 1843 12 M. & W. 324 THE case is stated in the opinion of the Court. TINDAL, C. J. The question raised before us on this bill of exceptions is one of equal novelty and importance. The plaintiff below, who is also the plaintiff in error, in his action on the case, declared in the first count for the disturbance of his right to the water of certain underground springs, streams, and water-courses, which, as he alleged, ought of right to run, flow and percolate into the closes of the plaintiff, for supplying certain mills with water; and in the second count for the draining off the water of a certain spring or well of water in a certain close of the plaintiff, by reason of the possession of which close, as he alleged, he ought of right to have the use, benefit, and enjoyment of the water of the said spring or well for the convenient use of his close. The defendants by their pleas traversed the rights in the manner alleged in those counts respectively. At the trial the plaintiff proved that, within twenty years before the commencement of the suit, viz., in the latter end of 1821, a former owner and occupier of certain land and a cotton-mill, now belonging to the plaintiff, had sunk and made in such land a well for raising water for the working of the mill; and that the defendants, in the year 1837, had sunk a coal-pit in the land of one of the defendants, at about threequarters of a mile from the plaintiff's well, and about three years after sunk a second, at a somewhat less distance; the consequence of which sinking was, that by the first the supply of water, was considerably diminished, and by the second was rendered altogether insufficient for the purposes of the mill. The learned judge before whom the cause was tried directed the jury that if the defendants had proceeded and acted in the usual and proper manner on the land, for the purpose of working and winning a coal-mine therein, they might lawfully do so, and that the plaintiff's evidence was not sufficient to support the allegations in his declaration as traversed by the second and third pleas. Against this direction of the judge the counsel for the plaintiff tendered the bill of exceptions which has been argued before us. And after hearing such argument, and consideration of the case, we are of opinion that the direction of the learned judge was correct in point of law. The question argued before us has been in substance this: whether the right to the enjoyment of an underground spring, or of a well supplied by such underground spring, is governed by the same rule of law as that which applies to and regulates a water-course flowing on the surface. The rule of law which governs the enjoyment of a stream flowing in its natural course over the surface of land belonging to different proprietors is well established: each proprietor of the land has a right to the advantage of the stream flowing in its natural course over his land, to use as he pleases, for any purposes of his own, not inconsistent with a similar right in the proprietors of the land above or below; so that neither can any proprietor above diminish the quantity or injure the quality of the water which would otherwise naturally descend, nor can any proprietor below throw back the water without the license or the grant of the proprietor above. The law is laid down in those precise terms by the Court of King's Bench in the case of Mason v. Hill, 5 B. & Ad. 1, 2 Nev. & M. 747, and substantially is declared by the ViceChancellor in the case of Wright v. Howard, 1 S. & S. 190, and such we consider a correct exposition of the law. And if the right to the enjoyment of underground springs, or to a well supplied thereby, is to be governed by the same law, then undoubtedly the defendants could not justify the sinking of the coal-pits, and the direction given by the learned judge would be wrong. But we think, on considering the grounds and origin of the law which is held to govern running streams, the consequences which would result if the same law is made applicable to springs beneath the surface, and, lastly, the authorities to be found in the books, so far as any inference can be drawn from them bearing, on the point now under discussion, that there is a marked and substantial difference between the two cases, and that they are not to be governed by the same rule of law. The ground and origin of the law which governs streams running in their natural course would seem to be this: that the right enjoyed by the several proprietors of the lands over which they flow is, and always has been, public and notorious; that the enjoyment has been long continued in ordinary cases, indeed, time out of mind — and uninterrupted; each man knowing what he receives and what has always been received from the higher lands, and what he transmits and what has always been transmitted to the lower. The rule, therefore, either assumes for its foundation the implied assent and agreement of the proprietors of the different lands from all ages, or perhaps it may be considered as a rule of positive law, (which would seem to be the opinion of Fleta and of Blackstone) the origin of which is lost by the progress of time; or it may not be unfitly treated, as laid down by Mr. Justice STORY, in his judgment in the case of Tyler v. Wilkinson, in the Courts of the United States (4 Mason's Am. Rep. 401) as "an incident to the land; and that whoever seeks to found an exclusive use must establish a rightful appropriation in some manner known and admitted by the law." But in the case of a well sunk by a proprietor in his own land, the water which feeds it from a neighboring soil does not flow openly in the sight of the neighboring proprietor, but through the hidden veins of the earth beneath its surface; no man can tell what changes these underground sources have undergone in the progress of time; it may well be that it is only yesterday's date that they first took the course and direction which enabled them to supply the well. Again, no proprietor knows what portion of water is taken from beneath his own soil; how much he gives originally, or how much he transmits only, or how much he receives; on the contrary, until the well is sunk, and the water collected by draining into it, there cannot properly be said, with reference to the well, to be any flow of water at all. In the case, therefore, of the well, there can be no ground for implying any mutual consent or agreement, for ages past, between the owners of the several lands beneath which the underground springs may exist, which is one of the foundations on which the law as to running streams is supposed to be built; nor, for the same reason, can any trace of a positive law be inferred from long-continued acquiescence and submission, whilst the very existence of the underground springs or of the well may be unknown to the proprietors of the soil. But the difference between the two cases with respect to the consequences, if the same law is to be applied to both, is still more apparent. In the case of the running stream, the owner of the soil merely transmits the water over its surface; he receives as much from his higher neighbor as he sends down to his neighbor below; he is neither better nor worse; the level of the water remains the same. But if the man who sinks the well in his own land can acquire by that act an absolute and indefeasible right to the water that collects in it, he has the power of preventing his neighbor from making any use of the spring in his own soil which shall interfere with the enjoyment of the well. He has the power, still further, of debarring the owner of the land in which the spring is first found, or through which it is transmitted, from draining his land for the proper cultivation of the soil; and thus, by an act which is voluntary on his part, and which may be entirely unsuspected by his neighbor, he may impose on such neighbor the necessity of bearing a heavy expense, if the latter has erected machinery for the purposes of |