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jaceut thereto except for domestic purposes, and dedicated to the public and subjected to public uses all remaining waters. Cook v. Evans (S. D.) 185 N. W. 262.

13. Time of acquiring water rights.Where, at the time defendant became possessed of riparian rights, plaintiff was using only enough water for stock, domestic purposes, and irrigation of six acres, if plaintiff had at time of original diversion planned for additional water to irrigate newly cultivated land, and had not completed preparation thereof at time of defendant's entry on the government land, but continued thereafter with due diligence to use such additional water, the burden was upon the plaintiff to prove such facts. Haight v. Costanich (Cal.) 194 P. 26. The rule that an appropriator's right at a later date to take water in excess of that which he had diverted and put to beneficial use may relate back to the inception of his work, although he has not complied with the Code requirements, does not hold as against an intervening appropriator who has complied therewith, in view of Civ. Code, § 1419. Id.

14. Nature of water rights protected. -An appropriator from a main channel can complain of a diversion from a tributary only if and when such tributary would, if not interfered with, make a valuable contribution to the main stream. U. S. v. Haga (D. C. Idaho) 276 F. 41.

As to the federal government, prior to final completion of its reservoir, a water and power company, seeking to acquire title to the reservoir site under this section, was acting under a revocable permit or license, and cannot be heard to complain if the permit or license was withdrawn, even if a large sum of money had been expended in the enterprise in expectation of obtaining title; and the state court, in the company's suit to quiet title to such reservoir site, cannot say the Secretary of the Interior acted unjustly in making withdrawal of the site, though it may believe hardship was inflicted on the company; the Secretary's discretion being absolute in the absence of fraud. Verde Water & Power Co. v. Salt River Valley Water Users' Ass'n (Ariz.) 197 P. 227.

IV. LOCAL LAWS AND CUSTOMS

16. State laws affecting water rights. -Where appropriation of water from springs on public lands was not by the statutory mode provided in the Civil Code, in that no notice of appropriation was posted, the appropriator's right could not exceed the greatest amount of water ever actually taken by him and applied to a beneficial use, or uses prior to the time when others appropriated waters from the springs. Si2 SUPP. U.S.COMP. '23-90

mons v. Inyo Cerro Gordo Mining & Power Co. (Cal. App.) 192 P. 144.

Defendant's rights under his government patent are subject to water rights under the California law of possessory right which had vested prior to defendant's entry, since the federal statutes by this section and Rev. St. U. S. § 2340 (U. S. Comp. St. § 4648), protect such former rights upon the public domain acquired by diversion where they are recognized and acknowledged by local customs, laws and court decisions. Haight v. Costanich (Cal.) 194 P. 26.

Rights acquired by diversion prior to defendant's entry upon government land which were acquired outright under license of the federal government, and not by mere occupancy, embraced the conditional right to take an additional amount of water for future needs within the scope of the original intent within a reasonable time, which is not limited by Civ. Code, § 1411, to a period of five years from the date of original diversion, since such time may or may not be reasonable under the circumstances. Id.

Inasmuch as neither the local customs, laws, nor decisions of the California courts had ever recognized or upheld the doctrine that water rights acquired by an appropriation or diversion on private land would be superior to the riparian rights pertaining to land above the place of diversion, this section supplemented by Act July 9, 1870, § 17 (U. S. Comp. St. § 4648), protecting rights so recognized, neither created such superior right nor provided for the maintenance or protection of the same. San Joaquin & Kings River Canal & Irrigation Co. v. Worswick, 203 P. 999, 187 Cal. 674, certiorari denied 42 S. Ct. 382, 258 U. S. 625, 66 L. Ed. 797.

This section providing that whenever by priority of possession rights to the use of water have vested and accrued and are recognized by local customs, laws, and the decisions of courts, the possessors and owners thereof shall be maintained and protected therein, refers to the customs, laws, and decisions of the courts of the particular state in which the appropriation is made, and in which the land affected lies. Id.

In view of Const. art. 15, §§ 3-5, and this section, the right to use of water on vacant lands upon public domain may be initiated by procuring from state engineer a permit therefor, and when application therefor is bona fide, coupled with a present intention to apply water to a beneficial use, and such application during period limited by permit, the appropriation is then complete and valid, and relates back to date of permit, regardless of whether the holder at time of his application was connected with legal title to land on which he proposed to apply the wa

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ter. Sarret v. Hunter (Idaho) 185 P. 1072.

V. USES OF WATER CONTEMPLATED

19. Beneficial use sufficient.-An appropriator who has diverted water and devoted it to irrigation purposes is entitled to its exclusive control, so long as he is able and willing to apply it to beneficial uses, and such right extends to what is commonly known as wastage from surface run-off and deep percolation necessarily incident to practical irrigation; nor is it essential to his control that he maintain continuous

actual possession of such water, but so long as he does not abandon it or forfeit it by failure to use, and can identify it he may assert his rights. U. S. v. Haga (D. C. Idaho) 276 F. 41.

VI. RIPARIAN RIGHTS

21. Application to public lands.-Under this section, the government did not release its rights as riparian own. er in favor of one diverting water below the government's land, the act being intended simply to validate such diversions as invaded the government's rights as riparian owner. Holmes v. Nay (Cal.) 199 P. 325.

§ 4648. (R. S. § 2340.) Rights subject to vested and accrued

water-rights.

See San Joaquin & Kings River Canal & Irrigation Co. v. Worswick, 203 P. 999, 187 Cal. 674, certiorari denied 42 S. Ct. 382, 258 U. S. 625, 66 L. Ed. 797.

Construction and application in general.-Under Laws Utah 1880, c. 20, § 6, recognizing the right to appropriate water from any natural source of supply, which right was confirmed by Const. Utah, art. 17, § 1, and was assented to by Congress, so far as the public lands were concerned, by Act July 26, 1866, c. 262, § 9 (Comp. St. § 4647), by this section, and by Act March 3, 1877, c. 107 (Comp. St. § 4674), the common-law rule that the owner of land has the right to all percolating waters therein not flowing in any defined channel is not recognized, and appropriators of the waters of a stream for irrigation purposes are entitled to percolating waters discharged from a mining tunnel located after the appropriation,

where those waters

would otherwise eventually reach the stream and form an important source of its supply. Snake Creek Mining & Tunnel Co. v. Midway Irr. Co., 43 S. Ct. 215, 67 L. Ed. -.

Mere discovery of springs on public lands could not give a right to divert or use any of the water, nor could mere

development of the water, unaccompanied by any actual diversion for beneficial use, give any right; it being necessary that there be an intent to apply it to some existing or contemplated beneficial use, an actual diversion from the natural channel by some mode sufficient for the purpose, and an application of the water within a reasonable time to some beneficial use, under Rev. St. U. S. §§ 2339, 2340 (U. S. Comp. St. §§ 4647, 4648). Simons v. Inyo Cerro Gordo Mining & Power Co. (Cal. App.) 192 P. 144.

Patents subject to water rights and easements.-Defendant's rights under his government patent are subject to water rights under the California law of possessory right which had vested prior to defendant's entry, since the federal statutes protect such former rights upon the public domain acquired by diversion where they are recognized and acknowledged by local customs, laws, and court decisions. Rev. St. U. S. §§ 2339, 2340 (U. S. Comp. St. §8 4647, 4648). Costanich Haight v. (Cal.) 194 P. 26.

Cited without definite application, State of Wyoming v. State of Colorado, 42 S. Ct. 552, 259 U. S. 419, 66 L. Ed. 999.

a railroad at twice the value of lands more than that distance from a railroad, and the classification by the department through the Geological Survey, and, if the lands selected were of equal value with those relinquished under those classifications, the Secretary could not disprove the selection because of facts subsequently learned establishing a greater value. Santa Fé Pac. R. Co. v. Payne, 42 S. Ct. 466, 259 U. S. 197, 66 L. Ed. 896, reversing decrees (D. C.) 267 F. 653, 656.

§ 4659. (R. S. § 2347.) Entry of coal lands.
12. Selection of lien lands by rail-
road company.-In determining wheth-
er coal lands selected by a railroad
company in lieu of those relinquished at
the request of the Secretary of the
Interior, as authorized by Act April 28,
1904, § 1, are of equal quality with
those relinquished, which is the only
restriction on the right to select vacant
public lands, the Secretary of the In-
terior was bound to act on the situa-
tion as it existed when the selection
was made, at which time the right of
the company to lands selected became
fixed, and at which time the only rele-
vant classification of coal lands in the
statutes was that by this section, fixing
a valuation for lands within 15 miles of

18. Price and payment thereof.-This section, providing for the sale of coal lands within 15 miles of a railroad for not less than $20 an acre, does not re

quire that such land shall be sold at that price, and the Secretary of the Interior may classify and appraise the land and place a higher selling price thereon, notwithstanding the practice of the department from 1873 to 1907 to sell at such minimum price, the prior legislation (Act July 1, 1864, Act March 3, 1865, and Act March 3, 1873), and the fact that such construction puts no restraint on the Secretary of the Interior especially where no arbitrary abuse of power is claimed; as "less" and "more" are words of contrast and opposition and cannot be confounded. Friedman v. U. S., 41 S. Ct. 380, 255 U. S. 468, 65 L. Ed. 735, affirming judgment 54 Ct. Cl. 225.

21. Entry by one person for another under agreement.-An agreement whereby plaintiffs for a named consideration relinquish to defendants claim to coal land upon which plaintiffs had located and made improvements, and a mortgage executed pursuant to such agreement, and as security, held not in violation of federal Coal Act, or against public policy. Weikel v. Davis (Wash.) 186 P. 323.

28. Transfer after entry.-A coal land entryman, who conveyed the same for a valuable consideration after filing his declaratory statement, but before completing his entry, and who on receiving the patent delivered it to his grantee, is estopped to deny the validity of his conveyance, and a subsequent grantee from him with notice is equally estopped. Ketchum v. Pleasant Valley Coal Co. (C. C. A. Utah) 257 F. 274, certiorari denied 40 S. Ct. 14, 250 U. S. 668, 63 L. Ed. 1198.

A patent for coal land, issued to an entryman who has previously conveyed his right in the land, inures to the benefit of his grantee, under Comp. Laws Utah 1907, § 1979. Id.

A patent to coal land, issued to an entryman who, after filing his declaratory statement, but before making entry, conveyed the land, is not void, and

its validity can be questioned only by the government. Id.

35. Conclusiveness of decisions of department. The power of the General Land Office to approve and pass to patent an application for certain coal claims necessarily is something more than ministerial, and yet is not arbitrary, without statutory direction or regulation by settled rules and principles; the Land Office is like any other tribunal, its institution and purpose defining and measuring its power, the determining elements being those of fact and law, on which judgment necessarily must be passed. U. S. v. Lane, 40 S. Ct. 33, 250 U. S. 549, 63 L. Ed. 1135, affirming judgment 46 App. D. C. 443.

Where a local land office of the United States in Alaska, the Commissioner of the General Land Office, and the Secretary of the Interior in succession decided that Rev. St. §§ 2347-2352 (Comp. St. §§ 4659-4664), as extended to Alaska by Act Cong. June 6, 1900, amended by Act April 28, 1904 (Comp. St. §§ 5071-5074), contemplated as a basis of a valid location of coal claims the opening and developing of a producing mine of coal, and that the work to be performed upon a claim for prospecting purposes only does not fulfill the requirement, also that such was the character of the work done on the claims involved, there is no right in the company seeking to patent the claims to mandamus to require the Secretary and the Commissioner to prove and pass them to patent. Id.

Where a coal company, under authority from the state, which it believed with good reason had title.to the land, erected valuable improvements thereon and was operating its mine on such land when the title of the state thereto was held invalid, a decision by the .Secretary of the Interior that the land was not vacant land, within this section, was within his discretion and not subject to control by the courts. Payne v. U. S. (App. D. C.) 269 F. 198.

§ 4665. (Act March 3, 1909, c. 270.) Rights of entrymen under

nonmineral land laws.

When entryman entitled to patent for surface land. To entitle a homestead entryman to patent for the surface of land subsequently ascertained to be valuable for coal under this section, and Act June 22, 1910 (Comp. St. §§

§§ 4666-4669.

See Christie v. Great Northern Ry. Co. (C. C. A. Wash.) 284 F. 702.

4666-4668), his entry must have been made in good faith, without knowledge of the mineral character of the land. Christie v. Great Northern Ry. Co. (C. C. A. Wash.) 284 F. 702.

Cited without definite application, Payne v. U. S. (App. D. C.) 269 F. 198. (1427)

CHAPTER SIX A-TIMBER AND STONE LANDS

§ 4671. (Act June 3, 1878, c. 151, § 1, as amended, Act Aug. 4, 1892, c. 375, § 2.) Sale.

See U. S. v. Valley Land & Investment Co. (C. C. A. Colo.) 258 F. 93.

Sale price. This section, authorizing sale "at the minimum price of $2.50 per acre," did not preclude land office from fixing a greater price; the words "minimum price" meaning the lowest price, and not a fixed price. Brown v. Baker (Wash.) 183 P. 89.

Bona fide purchaser.-In a proceeding by the United States to cancel, a patent for land fraudulently obtained in violation of this act, as amended, defendants had the burden of proof to establish their defense of bona fide purchasers. U. S. v. Cooksey (C. C. A. Cal.) 275 F. 670.

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§ 4672. (Act June 3, 1878, c. 151, § 2.) Applications for purchase of lands; false swearing; penalty.

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to cancel patents under this act for fraud, and defendant pleaded limitations, the government had the option of abandoning the suit and suing at law, or having the pending suit transferred to the law side of the court, or of proceeding with the original case on the issues as they stood, and where it deliberately chose the latter alternative, with knowledge of the facts, its election, if not final before, then became final and irrevocable, and it could not, after judgment against it on the ground of limitations, sue at law for damages, especially where the action at law was not brought until 18 years after the transfer of the lands. Id.

CHAPTER SIX B-DESERT AND ARID LANDS, AND IRRIGATION AND RECLAMATION

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Sec.

4684m. Same; disposition of proceeds of sale of lands.

4684n. Same; coal or minerals on such lands; reservation; disposition of; entries under mining laws.

46840. Same; rules and regulations.

GRANTS OF DESERT LANDS TO STATES FOR RECLAMATION (THE CAREY ACT)

4685. Contracts with public-land States for donation of arid lands, etc. 4685a. Preference right to entrymen under state laws.

4687. Time limit for reclamation; restoration to public domain. 4688. Additional arid lands made available to Idaho for reclamation. 4689. Additional arid lands made available to Idaho and Wyoming for reclamation.

4690. Provisions for grants of arid lands to states for reclamation extended to territories of New Mexico and Arizona. 4694aaa. Extension of time of segregation in Oregon Carey Act segregation lists.

STATE IRRIGATION DISTRICTS INCLUDING PUBLIC LANDS 4695f. Patents to purchasers or assigns.

RECLAMATION OF ARID LANDS BY THE UNITED STATES 4696. Surveys in arid regions; reservations for reservoir sites; homestead entries, etc. 4700. Reclamation fund; deficiency. 4701. Surveys for and location and construction of irrigation works. 4702. Withdrawal of lands; homestead laws, etc. 4702a. Sale of land improved with ir

rigation fund and no longer needed; appraisal of land; manner of sale; payment of purchase price.

4702b. Same; patents to land sold; amount sold to one person; duties of purchasers; citizenship of purchasers. 4702c. Same; disposition of proceeds of sales.

4703. Contracts for irrigation works; public notice of lands irrigable, limit of entry, etc. 4704. Requirements; sale of water rights, etc.

4706. Acquisition of rights or property; condemnation proceedings. 4708. Execution of provisions of act and regulations therefor. 4713a. Payments of construction charges by entryman; installments. 4713e. Payment of maintenance charges; transfer to water users' association or irrigation district.

Sec.

4713f. Penalties for failure to pay charges; actions for amounts in default.

4713ff. Furnishing water to waterright applicants or entrymen in arrears for charges for operation, maintenance or construction.

4713fff. Irrigation water furnished to land owners or entrymen in arrears in payment of operation and maintenance or construction charges. 4713ffff. Extension of time for payment of construction charges; application for; interest on extended charges.

4713g. Water users' association or irrigation district as fiscal agent. 4714. When entries of lands are to be made; relinquished lands. 4715. Withdrawal from entry of townsites under irrigation projects; survey.

4718, 4719. [Notes.]

4724. Desert-land entries within exterior limits of land withdrawal or irrigation project, etc. 4727. Assignment of completed homestead entries within reclamation projects; patents to assignees. 4728. Patents to homestead entrymen within reclamation projects; final water-right certificates, etc.

4738. Contracts for excess storage or carrying capacity, with irrigation systems under Carey Act, for distribution of water to individual users, etc.

4739. Co-operation with for construction or use of reservoirs, canals, etc.

4740. Proceeds of contracts to be covered into reclamation fund. 4740a. Proceeds of leases of lands reserved or withdrawn.

4741. Use of earth, stone, and timber from public lands.

4742. Disposition of proceeds of sales of material and of moneys refunded.

4746-4748. [Notes.] 4748a. Application of reclamation laws to irrigation districts; individual water-right applications dispensed with; contracts with districts as to payments. 4748b. Same; patents and water-right certificates for lands in irrigation districts; liens; release.

4748c. Same; contracts with irrigation districts subject to Act Aug. 11, 1916, c. 319. 4749a. Lands in Oregon and California uncovered and open to agricultural development by change of levels of certain lakes; public announcement of; entry upon land under home

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