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what such state or states may be entitled to by virtue of compacts to be made on their admission into the Union.

5 Stat. 454.

§ 434. Not Less than One Hundred and Fifty Thousand Dollars to be Appropriated Annually for Surveys.-There shall be annually appropriated for completing the surveys of said lands, a sum not less than one hundred and fifty thousand dollars; and the minimum price at which the public lands are now sold at private sale shall not be increased, unless congress shall think proper to grant alternate sections along the line of any canal or other internal improvement, and at the same time to increase the minimum price of the sections reserved; and in case the same shall be increased by law, except as aforesaid, at any time during the operation of this act, then so much of this act as provides that the net proceeds of the sales of the public lands shall be distributed among the several states shall, from and after the increase of the minimum price thereof, cease and become utterly null and of no effect, anything in this act to the contrary notwithstanding; provided, that if, at any time during the existence of this act, there shall be an imposition of duties on imports inconsistent with the provisions of the act of March 2, 1833, entitled "An act to modify the act of the fourteenth of July, 1832, and all other acts imposing duties on imports," and beyond the rate of duty fixed by that act, to wit, twenty per cent. on the value of such imports, or any of them, then the distribution provided in this act shall be suspended, and shall so continue until this cause of its suspension shall be removed, and when removed, if not prevented by other provisions of this act, such distribution shall be resumed.

5 Stat. 454.

§ 435. Amount Due on State Stocks Held by United States in Trust, to be Withheld from States in Case of Default of Principal or Interest. Whenever any state shall have been or may be in default for the payment of interest or principal on investments in its stocks or bonds, held by the United States in trust, it shall be the duty of the secretary of the treasury to retain the whole, or so much thereof as may be necessary, of the percentage to which such state may be entitled of the proceeds of the sales of the public lands within its limits, and apply the same to the payment of said interest or principal, or to the reimbursment of any sums of money expended by the United States for that purpose.

5 Stat. 801.

§ 436. All moneys derived from the sale of lands for the benefit of agriculture and the mechanic arts, under the act of July 2, 1862, and for the sale of land scrip by the states to which such lands are apportioned, shall be invested in stock of the United States, or of the states, or some other safe stocks; or the same may be invested by the states having no state stocks in any other manner, after the legislatures of such states have assented thereto, and engaged that such fund shall yield not less than five per centum upon the amount so invested, and that the principal thereof shall forever remain unimpaired; provided, that the moneys so invested shall constitute a perpetual fund, the capital of which shall forever remain undiminished (except so far as provided in section 5 of said act), and the interest of which shall be inviolably appropriated by each state which may take and claim the benefit of said act, to the endowment, support, and maintenance of at least one college where the leading object shall be, without excluding other scientific and classical studies, and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislatures of the states may respectively prescribe, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions of life.

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§ 437. Inseparably Annexed to the Soil.-The government of the United States has a perfect title to the public land, and an absolute and unqualified right of disposal; and a running stream of water is part and parcel of the land through which it flows, inseparably annexed to the soil, and the use of it, as an incident to the soil, passes to the patentee of the land. A riparian proprietor may lawfully divert the water of a stream, for the purpose of irrigating his land, to a reasonable extent. But in no case may he do this so as to destroy or render useless or materially affect the application of the water by other riparian proprietors. Every proprietor of land through which a stream of water naturally flows may make a reasonable use of the water for any useful purpose.

Union M. & M. Co. v. Ferres et als., 2 Saw. 176.

The right to running waters on the public lands for purposes of irrigation may be acquired by prior appropriation as against parties not holding the fee-simple title.

Basey v. Gallagher, 20 Wall. 670.

§ 438. Appropriation.—The common-law doctrine in relation to riparian rights has very little if any application in the mineral regions of the United States; prior appropriation in these regions giving the better right to running waters. What will constitute an invasion of the rights of the first appropriator depends upon circumstances and whether the same is irremediable in its nature, whether the parties are able to respond in damages, etc.

Atchison v. Peterson, 20 Wall. 507.

§ 439. Beds of Rivers-Riparian Rights.-The rule of the common law that only those rivers are considered navigable where the tides ebb and flow is not applicable to this country, because many rivers in the United States are navigable for hundreds of miles above the highest point where the tide ebbs and flows.

Cates v. Wadlington, 10 Am. Dec. 699; People v. Canal Appraisers, 33 N. Y. 461.

There has been much controversy over this subject, and a list of the authorities on each side is given in a note at the end of the opinion in the case of Arnold v. Mundy, 10 Am. Dec. 385. The question is elaborately discussed in the case of Barney v. Keokuk, 92 U. S. 324, in which the court evidently indorses the rule above expressed, and this case would seem also to indicate that the court will hold when called upon that the beds of navigable rivers above tide-water as well as below belong to the state in which they lie, and that the title of riparian proprietors extends only to ordinary high-water mark.

§ 440. Standing Water-Flowing Water.-In a recent case in England it was decided that "water flowing in a well-established channel is not the subject of property. It is the subject only of usufruct. Standing water, on the other hand, is the subject of property. Therefore, he who sinks a well or a shaft or a pit on his own land is entitled to collect into that pit from all pores of the land, and from the small runlets and channels with which the soil is interspersed, such water as will naturally flow to that pit. That water he may make his own; it is immaterial whence it flows. A person who is injured by the sinking of the pit, though he can show that injury has resulted to him, has no right of action against the person who sunk the pit. The water which before ran in unknown channels has now been collected into an ascertained reservoir or receptacle, and has become the property of him who so collected it. By making it his property, the person who sinks the pit takes with

it, and incurs all the liability which attaches to that property, and he can not, after having so appropriated the water, cast it upon his neighbor and excuse himself by saying, "It would have flowed to you if I had not appropriated it."

West Cumberland Iron and Steel Co. v. Kenyon, L. R., 6 Ch. Div., 773. This case was afterwards reversed on appeal, on the following grounds:

1. A party has a right to use his own land in the natural way, and taking out mineral is a natural use of mining property, and no adjoining proprietor can complain of the result of careful and proper mining operations.

2. That the defendant never intended to and never did store the water so as to appropriate it.

3. That no damage resulted to plaintiff, because the water found its way to plaintiff's land in the same course, in exactly the same place, in the same way, and to exactly the same extent that it did before the alleged injury.

Three separate concurring opinions were rendered by Lords Justices Brett, James, and Cotton, and the judgment of reversal seems to have been based almost entirely upon the ground that the facts did not show that the defendant ever stored the water so as to appropriate it, and upon the third ground above mentioned.

West Cumberland Iron and Steel Co. v. Kenyon, L. R., 11 Ch. Div. 782; see sec. 451.

§ 441.

Characteristics as Real Estate.-The right to water must be treated in this state as a right running with the land, and as a corporeal privilege bestowed upon the occupier or appropriator of the soil, and as such has none of the characteristics of mere personalty.

Hill v. Newman, 5 Cal. 445.

From the policy of our laws, it has been held in this state to exist, without private ownership of the soil, upon the ground of prior location upon the land or prior appropriation and use of the water.

Hill v. Newman, 5 Cal. 445.

Justices of the peace have no jurisdiction to try a cause where there is an alleged injury arising out of a diversion of water from the natural or artificial channel in which it is conducted. Hill v. Newman, 5 Cal. 445.

Natural Wants.-Possession of public land gives the right to the use of water flowing through it for natural wants, but does

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