driving machinery and works of various kinds contributing to the general prosperity of said town; also to water the gardens of the citizens of said town and water the stock of said citizens and that of travelers through and sojourners in said town." The decree, filed May 2, 1865, allowed the citizens one-fourth of the water of Gregory Canyon and one-half that of Kings Canyon. The balance of the flow of the two streams was decreed to defendants occupying three bodies of land originally located in 1853. All other defendants were enjoined from using water from either creek, and except under license from those to whom water has been decreed.

It is of interest to note that at this early date Judge Goodwin held that the interests of agriculture were far more important than those of mining ever could be.

James Savage vs. William Welsh.

This was simply a condemnation proceeding. By the decree (April 26, 1869,) defendant was given right to use of water flowing in common ditch from 6 a. m. Wednesday, to 6 p. m. Sunday, and plaintiff was given right for the balance of the week.

Wood vs. Yerrington and Company et al.

In complaint, July 19, 1871, plaintiff avers that defendants have permanently turned water of Gregory Canyon Creek out of its natural channel above plaintiff's land, and prays for a decree granting him one-half of the waters of said creek and an injunction perpetually restraining defendants from diverting water to his injury. In amended complaint filed April 24, 1872, plaintiff states claim as riparian owner and says that defendants pollute water by running. it in a flume with bark, chips, gravel, etc.

The decree (November 25, 1872,) apportioned the water among the plaintiff and defendants-the plaintiff and one defendant being awarded 32-100ths of the entire flow of the creek.

Mary J. Walsh vs. James Authurs et al.

On September 24, 1864, the plaintiff, a successor in interest to one decreed a water right (1-12th of Gregory Canyon Creek and 1-6th of Kings Canyon Creek) in 1865, filed a complaint against all those above her on the two streams for depriving her of her rightful use of the waters, and asked judgment for $2,000 damages and an injunction.

During the trial the plaintiff abandoned all claim to the waters. of Gregory Canyon Creek-it having been shown that such water had not been used by plaintiff since decree of May, 1865.

By the decree, entered November 17, 1885, the plaintiff was awarded one-tenth of the waters of Kings Canyon Creek, and the remainder of the waters of said creek and all of the waters of Gregory Canyon Creek were divided among the defendants. The plaintiff

was allowed costs from certain defendants on Kings Canyon Creek, but the cost bill was stricken out by a later order on the ground that no memorandum of costs was filed by plaintiff within time allowed by law. It was also ordered that certain defendants on Gregory Canyon Creek recover their costs from plaintiff.

The filings made upon these two creeks in 1889 are in accordance with the decree of this case.

The discharge of Kings Canyon Creek on August 5, 1902, was 2.10 cubic feet per second.

Mary J. Walsh vs. Joshua Robinson et al.

On complaint of Mary J. Walsh, Joshua Robinson and H. II. Anderson were found guilty of contempt of Court in violating decree and disobeying injunction of former case. Each defendant was fined one-half of the costs October 8, 1898.

P. D. Beebe vs. L. B. Defendorf et al.

The plaintiff, in complaint filed June 30, 1866, claimed to be the first appropriator (1863) of the waters of Riddle, or Rose, Canyon Creek, and asked for damages in the sum of $1,000 and a permanent injunction against defendants. The decree (July 26, 1866,) refused the injunction and ordered the plaintiff to return costs to defendant.

On a rehearing (December, 1866,) the judgment was reversed and nominal damages in the sum of one dollar, and the costs of the suit, taxed at $133.50, were allowed the plaintiff, and the defendants were forever enjoined from using the waters of the creek.

Dangberg and Schulz vs. Ross et al.

The filings made in 1889 upon Clear Creek are in accordance with the decree of the second judicial district court, filed April 24, 1872. The complaint was filed by Frederick Dangberg and Charles Schulz against twenty-three appropriators from the stream above them on June 21, 1871. The decree is responsive to the theory of appropriation only, as no distinctive claim of riparian ownership or otherwise, had been asserted.

The decree provided for the apportionment of the stream according to priority of appropriation and beneficial use. The percentages allowed are as follows:

The want of administrative authority is clearly shown on this stream. On November 12, 1898, A. J. Pedroli was found guilty of contempt of court for using more water than allowed him by the decree of 1872. He was fined the costs of the case, amounting to $100.55.

The discharge of Clear Creek on August 4, 1902, was 2.81 cubic feet per second.

LITIGATION IN DOUGLAS COUNTY,

With the exception of one case on the East Fork of the main Carson, and one in the Federal Court on the West Fork, litigation has been restricted to the small mountain streams. That this field offered occasion for strife is evident from the cases abstracted. The first suit is one so often referred to that it is given here at some length.

Peter W. Vansickle vs James W. Haines et al.

The case was tried in the District Court of Douglas County at its May term, 1871, and a judgment was rendered in favor of the plaintiff for damages and costs, and for one-fourth of the water of Daggett Creek. On appeal to the Supreme Court of Nevada, the decree of the District Court was reversed (December 2, 1871).

The following is taken from the opinion of the Supreme Court, delivered by Associate Justice Whitman:

Respondent claims damages against appellants for past diversion of the waters of Daggett Creek, and prays an injunction against further continuance of the injury alleged. The District Court found for respondent, hence this appeal.

The District Court finds that the water course in question, a small non-navigable stream, nowhere in its natural channel runs over the land of respondent, but does so run through the land of appellant Haines. It is also found that the respondent and Haines are the owners in fee of their respective lands, by patents from the government of the United States, that of Haines bearing the date of De

cember 28, 1864, that at such date, and long prior thereto, respondent had appropriated and diverted from the natural channel of the creek, for his necessary purposes, a portion of its waters, which appropriation was interfered with by appellant in December, 1867, and that since that time they have used all, or nearly all, of the waters of the creek, in a flume constructed and worked by them jointly for running wood. The Court concludes that respondent acquired such a right by his appropriation as should be protected in equity.

He acquired no right against Haines prior to the date of the latter's patent which could affect that grant, because there was no title in Haines to be affected by acts of the respondent. He could acquire no rights against the United States, for as to that government he was a trespasser, in that he diverted water from its land not sought to be pre-empted by him. No presumption of grant arises against the sovereign, and no statute of limitation runs, save in some excepted instances, of which this is not one.

The Government of the United States then had, at the date of its patent to Haines, the unencumbered fee of the soil, its instances and appurtenances; that was passed to Haines, there being no reservation in his patent, and none is suggested. He became the owner of the soil and as incident thereto, had the right to the benefit to be derived from the flow of the water therethrough; and no one could lawfully divert it against his consent. What use he made of it, so that such use did not interfere with the adjoining riparian proprietors, was for him to elect. He had precisely the same right to use it for his flume as for his household, his cattle, or his land.

*

* * *

In this case it is urged that such use is beyond riparian rights. In a recent case in New York, an objection precisely contrary was made and the reply of the Court is a complete answer to either or both "It is insisted by the defendant that equity ought not to interfere in behalf of the plaintiffs, for the reason that they do not want the waterpower afforded by the stream for use. This is a mere assumption. But if the fact claimed were clearly established, it would not protect the defendant in wrongfully withholding the stream. No man is justified in withholding property from the owner, when required to surrender it, on the ground that he does not need its use. The plaintiffs may do what they will with their own." (40 N. Y. 206). From the facts found, it follows that appellant Haines, owner of the soil, has the right to the flow of Daggett Creek in its natural channel; what use he may make of it when there is beside the question, so far as respondent is concerned. The right of Haines protects his co-appellants. The decree of the District Court is reversed, and the case remanded, with instructions to enter a decree for appellants.

In response to a petition for rehearing, a very long and scholarly opinion was delivered by Chief Justice Lewis, denying the petition. In this response numbers of authorities of England and the eastern United States were cited in support of the original decree. The burden of the opinion was to show:

1. That the Federal Government has the absolute and perfect title to the public land.

2. That running water is primarily an incident to, or part of the soil over which it naturally flows.

3. That the right of the riparian proprietor does not depend upon the appropriation of the water by him to any special purpose, but that it is a right incident to his ownership in the land to have the water flow in its natural course and condition, subject only to those changes which may be occasioned by such use by the proprietors above him, as the law permits them to make of it.

4. That the government patent conveyed to Haines not only the land but the stream naturally flowing through it.

5. That the common law is the law of this State, and must prevail in all cases where the right to water is based upon the absolute ownership of the soil.

says:

In discussing the rights of a riparian proprietor Justice Lewis

In other words, his right has a double aspect. First, the right of having the course of the stream continued through his land, which is absolute and complete, as against all the world; and, secondly, the right to make such use of the water, as it passes through his land, as will not damage those who are located on the same stream, and are entitled to equal rights with himself. * This is substantially that no man has a right to divert a stream from its natural course; for to say that water should be permitted to run as it used to is a prohibition upon all to divert it from its course, and thus the very maxim shows the proprietors have the right to claim that the stream shall be permitted to run through their land in its natural channel, independent of whether they make any material use of it or not.

In dwelling upon the operation of the common law the chief justice holds:

It (the common law) is a rule which gives the greatest right to the greatest number, authorizing each to make a reasonable use of it, providing he does no injury to the others equally entitled to it with himself; whilst the rule of prior appropriation here advocated. would authorize the first person who might choose to make use of or divert a stream, to use or even waste the whole to the utter ruin of others who might wish it.

The concurring opinion of Associate Justice Garber states the attitude of the bench so ably that it is repeated here inits entirety:

If I believed that a re-argument could throw any additional light on the question involved, I should unhesitatingly advise the granting of the petition. Because I feel sensibly that the decision we have been compelled to render, in obedience to the law as it is written, and which it is our function to declare and not to alter, may work great hardship in this particular case; and, as a general rule applicable to a certain class of patents, may disappoint expectations long, though erroneously, considered by the public as well founded. Unfortun