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works, or for obtaining water for use in developing the mine, might be considered proper uses in connection with a located lode, but this does not seem to be a generally accepted rule.3

But land cannot be entered as a millsite simply because it has timber growing thereon which is valuable for use on a located lode claim,' although the millsite locator may cut the timber growing on the millsite for the purpose of constructing his mill thereon."

The department has permitted the entry of ground for dumpage purposes in tracts of greater area than five acres," on the theory, that it was necessary for use in connection with mining, the land being more valuable for that purpose than any other; but this seems to us an unwarranted interpretation of the law. If ground on which tailings are deposited may be entered as a millsite, dumpage grounds may also be entered for like reasons. It is quite clear, that unless they may be entered under the millsite laws for this purpose, they cannot be entered at all.

The fact, that the lode claim in connection with which the millsite is used is patented, is immaterial. A millsite may be appurtenant to a patented, as well as an unpatented, claim, and patent for the millsite may subsequently be applied for separately.?

524. Millsites used for quartz mill or reduction works disconnected with lode ownership.-The right to patent a millsite under the last clause of section twentythree hundred and thirty-seven of the Revised Statutes depends upon the existence on the land of a quartz mill or reduction works.8

1 Sierra Grande M. Co. v. Crawford, 11 L. D. 338.

2 Gold Springs and Denver City Millsite, 13 L. D. 175.

3 Peru Lode and Millsite, 10 L. D. 196. See, also, Iron King Mine and Millsite, 9 L. D. 201.

'Two Sisters Lode and Millsite, 7 L. D. 557.

5 In re Page, 1 L. D. 614.

64 Copp's L. O. 102.

7 Eclipse Millsite, 22 L. D. 496.

In re Lennig, 5 L. D. 190; In re Cyprus Millsite, 6 L. D. 706; Two Sisters Lode and Millsite, 7 L. D. 557; Le Neve Millsite, 9 L. D. 460.

While the nature of the use required in case of the appropriation of a millsite as an adjunct to a located lode is not specified, and the law is satisfied so long as the purposes are reasonably associated with the lode to which it is appurtenant, in the case of sites selected under the last clause of section twenty-three hundred and thirty-seven, the character of the use is distinctly specified.

Land not improved or occupied for mining or milling purposes may not be appropriated as a millsite for the purpose of securing the use of water thereon.1

Reservoirs, dams, and plants for generating power do not fall within the designation of quartz mills and reduc tion works."

Water rights upon the public domain may not be acquired under the millsite laws.

1 In re Cyprus Millsite, 6 L. D. 706; Mint Lode and Millsite, 12 L. D. 624.

2 Le Neve Millsite, 9 L. D. 460; In re Lennig, 5 L. D. 190; Two Sisters Lode and Millsite, 7 L. D. 557.

CHAPTER VIII.

EASEMENTS.

529. Scope of the chapter.

530. Rights of way for Ditches and canals- Highways.

531. Location subject only to preexisting easements.

529. Scope of the chapter. It is not our present purpose to deal with that class of easements and privileges which are created by the acts of individuals, nor with those which are necessarily appurtenant to all land acquired and held in private ownership. The scope of this chapter is limited to a consideration of those burdens which the government permits to be imposed upon its public lands, and subject to which it subsequently conveys its title.

530. Rights of way for ditches and canals - Highways. During the early period of mining in the west, a system was established by common consent, enabling the miner, in connection with his located mining claim, to exercise certain privileges with respect to the means of working it. Water was essential; therefore, the right to appropriate it, divert it from its natural channel, and conduct it over the public lands by means of flumes and ditches to the place of intended use, became fully recognized and established. The government was not consulted, but it passively recognized these rights, as it did the larger privilege of extracting gold from the public mineral lands,' and by section nine of the act of July 26, 1866, gave legislative sanction to the exercise of these asserted rights. The section is as follows:

1 See, ante, 2 45.

"That whenever, by priority of possession, rights to the "use of water for mining, agricultural, or 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 own"ers of such vested rights shall be maintained and pro"tected in the same, and the right of way for the construc"tion of ditches and canals for the purposes aforesaid is "hereby acknowledged and confirmed; provided, 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 injured for such injury or damage."

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This section was substantially re-enacted in the Revised Statutes. There are some verbal changes, but none affecting its substance or meaning.1

It has been contended, that this act only undertook to confirm and protect rights vested prior to its passage, and that it did not necessarily sanction the future acquisition of such privileges. The opinion of the supreme court of the United States in Broder v. Natoma Water Company' would appear to support this contention, but as was said by the supreme court of California, in construing this opinion, the question was not before the court. The ditch there involved was completed in 1853, and therefore was clearly within the confirmatory clauses of the act.

The supreme court of Nevada in construing the section in question, after referring to its "turbid style," and "gram"matical solecisms," says:

"In its adoption there appear to have been three dis "tinct objects in view:

"First-The confirmation of all existing water rights; "Second-To grant the right of way over the public land "to persons desiring to construct flumes or canals for min"ing or manufacturing purposes;

1Jennison v. Kirk, 98 U. S. p. 453, 456.
2101 U. S., 274.

3 Jacob v. Lorenz, 98 Cal. 332, 336.

"Third-To authorize the recovery of damages by "settlers on such land, against persons constructing such "ditches or canals, for injuries occasioned thereby."

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The court adds:

"That this section, granting rights of way over the public land to all who may desire to construct ditches or canals for mining or agricultural purposes, is about "as clear and certain as the objects and purposes of the "acts of congress usually are."

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The supreme court of California coincides with the views of the supreme court of Nevada."

We have no intention of entering into a discussion of water rights generally, the manner of appropriating them, the purposes for which they may be acquired, or relative. rights between such appropriators and riparian proprietors. As water may be the subject of appropriation under certain conditions for many useful purposes, other than as an adjunct to mining operations, and as there is nothing peculiar in the manner of perfecting such appropriation in connection with this particular, class of ventures, we shall not undertake to deal with it to any serious extent in this treatise. The law of waters is too broad in its scope to permit its treatment in a collateral way. All that we expect to demonstrate in reference to it is, that mining locations made upon the public lands must be made subject to any easements theretofore lawfully acquired and subsisting, and held for the purposes of conducting water over them. That this is the settled law there can be no doubt.3

This is but the reannouncement of the early doctrine, that the miner who selects a piece of ground to work must take it as he finds it, subject to prior rights which have an equal equity, on account of an equal recognition from the sovereign power.1

1 Hobart v. Ford, 6 Nev. 77. See, also, Barnes v. Sabron, 10 Nev. 217.

2 Jacob v. Lorenz, 98 Cal. 332, 336; Lorenz v. Waldron, 96 Cal. 243; Jacob v. Day, 111 Cal. 571.

Jacob v. Day, 111 Cal. 571; Rockwell v. Graham, 9 Colo. 36.

Irwin v. Phillips, 5 Cal. 140; Logan v. Driscoll, 19 Cal. 623; Stone v.

Bumpus, 46 Cal. 218.

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