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when all the waters of Lytle creek were appropriated, any of the lands by or through which the creek flows had passed into private ownership.' The court here expressly recognizes the distinction between the right of appropriating a stream flowing through the public lands, and the right to the use of its waters after any of the lands by or through which it flows have been acquired by private owners.

In the recent case of Ellis v. Tone,” the private proprietor of lands bordering on a stream maintained an action and recovered damages for a diversion of the water from the stream made by the defendant in 1877. The decision recognizes and is based upon the existence of some riparian rights held by the plaintiff as a riparian proprietor on the stream. The opinion, it is true, does not discuss the general doctrine; but is confined to an examination of certain instructions given to the jury at the trial, and the entire charge of the trial judge is not reported. The case, however, is a direct authority for the existence of “ riparian rights” under the common-law doctrines, at least to some extent. The decision in Pope v. Kingman" is unambiguous and express. A stream called Lytle creek rises on public lands, and then flows through private lands, including those of the plaintiff and of the defendants. The plaintiff received the patent to his tract in 1872. The title, or at least the possession of the defendants, was earlier. The defendants had diverted and used all the water of the creek, and claimed the exclusive right to do so. The plaintiff brought this action in 1877 to quiet his title to the use of the water as a riparian owner, and to restrain the defendants' diversion. The court, after holding that the plaintiff's action was not barred by the statute of limitations, says:

The principal question is, whether it is competent for the defendants, by the mere diversion of the waters of Lytle creek, which is an unnavigable stream flowing across the lands of the plaintiff, to deprive the plaintiff of all interest or right of any nature in the waters of that creek. As being owner of the land, the plaintiff has an interest in the living stream of water flowing over the land; his interest is that called the riparian right.' It is not necessary in this case to define in detail the precise extent of the riparian rights as existing in this country; it is enough to say that under settled principles, both of the civil and the common law, the riparian proprietor has a usufruct in the stream as it passes over his land. The judgment of the court below deprived the plaintiff of that usufruct, and declares in terms that plaintiff has no right, title, nor interest in said waters or any portion of them. The judgment of the court below is therefore modified so as to read as follows: (1) That defendants have nothing as against the plaintiff, except only such rights as any of them may have of like character with that of the plaintiff, as being riparian

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23 Lytle Creek W. Co. v. Perdrew, 1 West Coast Rep. 866.

24 58 Cal. 289. 25 54 Cal. 3.

proprietors of land bordering on said stream, and (2) that none of defendants have any right, title nor interest in or to the waters of said creek except as riparian proprietors as aforesaid." The rights of a “riparian proprietor

riparian proprietor” were also admitted and protected in the case of Creighton v. Evans.26 The court said: “It is admitted that the waters of Elk bayou flowed in its natural channel through plaintiff's land, and that defendant diverted a portion of the water to his own land for purpose of irrigation, and other purposes. It is not averred that he is a riparian owner, and as such entitled to use any portion of said water. The court properly instructed the jury that plaintiff was entitled to recover at least nominal damages, even though he had suffered no actual damages. But the court further instructed the jury that if defendant diverted a portion of the water for a useful purpose, and that enough water was left in the stream for the use of the plaintiff for watering his stock and for domestic purposes, and if the plaintiff was not damaged by the diversion, the verdict should be for the defendant. This was not only contradictory to the first instruction, but was erroneous as matter of law. So far as appears on the record, defendant was not entitled to divert the water for any purpose, and plaintiff was entitled to at least nominal damages.” This case was decided in 1878, but the report does not show when the cause of action arose. Several cases concerning the interference with or use of subterranean water, whether percolating through the soil or flowing in defined streams, also recognize and are decided in accordance with the settled common-law rules on that subject.”


26 53 Cal. 55.

27See Hale v. McLea, 53 Cal. 578; Huston v. Leach, 53 Id. 262; Hanson v. McCue, 42

Id. 303; Mosier v. Caldwell, 7 Nev, 363;
Strait v. Brown, 16 Id. 317.



MR. SAMUEL T. SPEAR, a writer of reputation upon the law of extradition and other branches of the law, in an elaborate article published in the Albany Law Journal, reviews the recent decision of the United States circuit court for the ninth circuit, in the extradition case, In re Robb, 1 West Coast Rep. 439, and arrives at a different conclusion from that reached by the court. Having been counsel in the case of Robb, and believing the action of the court to be in strict conformity with the constitution and laws of the United States, I desire to make some observations upon the criticisms of the learned reviewer, and to point out wherein I think his views are untenable. Mr. Spear says:

“There can be no doubt that the governor of a state in issuing his warrant for the arrest and delivery of a fugitive criminal, upon the demand of the governor of another state, is acting under the authority or color of the authority of the United States, and consequently, that the arrest and detention are under color of the same authority. The arrest and detention purport to be under the authority of the United States; and the supreme court of the United States, in Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539, declared the law of congress giving to state governors this authority to be constitutional. It is on ground that the federal courts have claimed and exercised jurisdiction in extradition cases: Ex parte Smith, 3 McLean, 121; Matter of Titus, 8 Ben. 411; Matter of John Leary, 10 Id. 197; In re Doo Woon, 18 Fed. Rep. 898. An arrest for extradition is, in this respect, essentially parallel to the cases cited by Judge Sawyer:” 29 Alb. Law Jour. 207.

It seems to me that in this passage the whole case is surrendered. It is conceded that the parties baving Bayley in custody were acting in the execution of the constitution and laws of the United States, through instrumentalities or agencies appointed by virtue of the authority conferred by the laws of the United States, and were exercising powers derived from the United States, without which they could not lawfully have acted at all in the manner they did. The writer makes an acute, technical criticism upon the term 's officer," as the term is supposed to be used in the constitution of the United States; and it is insisted that the governor, and others acting in a case of extradition in pursuance of the authority conferred by the constitution and laws of the United States, can not be officers of the United States in the sense suggested; that if they are, their appointment by an act of congress would be unconstitutional, and consequently void. Conceding these views to be correct, then, these officers had no other authority whatever to act, and the question as to the authority must still be determined by the constitution and laws of the United States. But his argument would apply with equal force to a large number of other statutes of the United States, many of them nearly as old as the government itself, which have been recognized and acted upon without objection, remonstrance, or successful attack. Whether the persons acting are officers of the United States or not, in the limited sense indicated by the writer, is a matter that can not affect the question at issue. _They are instrumentalities or agencies, appointed and employed by the United States within their constitutional powers, in carrying into effect the constitution and laws of the United States. This was so held in the Prigg case, as is admitted, and whether the state officers can be compelled to execute the powers conferred is also wholly outside the question at issue. If they do accept the trust, and act, they act solely by virtue of the laws of the United States. The supreme court does not limit its language to officers in the restricted sense of that term in which Mr. Spear insists it must be used. The language in the Booth case is: “Or other authorized officer or agent of the United States:" 21 How. 523. The Prigg case and the Booth cases grew out of the provision of the act of 1793 respecting fugitive slaves, the same act providing for the extradition of fugitives from justice, and being the one under which Bayley was arrested and afterward held in custody by Robb.

In the Prigg case it was held, that under this act and the constitution of the United States, the owner of a slave, or his attorney or agent, was an agent under the law clothed with entire authority in every state in the Union, without warrant or other authority than the statute itself, to seize and recapture his slave. For this purpose he was the agent of the law. The owner, or his agent or attorney, having seized his slave, was authorized by the third section of the act “to take him or her before any judge of the circuit or district court of the United States, residing or being within the state, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such judge or magistrate," receive a certificate authorizing him to remove the slave from the state. The state magistrates by this act were put upon precisely the same footing as the judges of the United States courts. Now, by what authority did the owner or his agent and these state judges and magistrates act? In executing the laws of the United States, of what sovereignty were they the officers, instrumentalities, or agents ? Certainly not of the state, even in the cases where the state magistrate acted. Not a scintilla of the authority exercised was derived from the states, whose magistrates in other respects and for other purposes under the state laws they were. But their authority to act in the matter of the return of fugitive slaves was derived from another section of the same act of congress as that under which Robb was acting—the latter having been carried into the revised statutes. If these magistrates, for the purposes of this act, were state officers, so must the United States judges, acting under the same statute, have been state officers. Both classes derived all their authority from the same sovereignty. Numerous other acts of congress in like manner confer extensive powers, judicial and executive, upon state officers, in respect to matters in which the respective states have no concern whatever. As examples, section 1014, revised statutes, authorizes “avy justice or judge of the United States,” or “any commissioner of the circuit court of the United States,” or “any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate of any state where he may be found," to arrest, imprison, and hold to bail for trial before the court having cognizance of the case any party committing “any crime or offense against the United States."

Section 4606 of the revised statutes makes it an offense to go aboard & vessel under certain circumstances, “punishable by a fine of not more than two hundred dollars and by imprisonment for not more than six months, and the master of any such vessel may take any such person so going on board into custody, and deliver him forth with to any constable or police officer, to be by him taken before any justice of the peace to be dealt with according to the provisions of this act;" that is to say, to be convicted and punished. Section 4522 authorizes certain penalties of defaulting seamen to be recovered " before any justice of any slate, city, town, or county of the United States, wbich by the laws thereof have cognizance of debts of equal value." Section 3833 authorizes all causes of action arising under the postal laws to be prosecuted “before the justices of the peace, magistrates, or other judicial courts of the several states" having jurisdiction under the state laws of equal amounts or over similar punishments; "and such justices, magistrates, or judiciary shall take cognizance thereof, proceed to judgment and execution as in other cases.” Section 4546 gives jurisdiction in certain cases of seamen's wages to “any judge or justice of the peace, or any commissioner of a circuit court." Section 3066 authorizes “any justice of the peace" to issue search-warrants on the application of certain designated officers of the United States. Section 5280 authorizes "any court, judge, commissioner of any circuit court, justice, or other magistrale” to issue warrants of arrest, examine and remand to the ship seamen deserting from foreign ships. See also sections 4556–4559, 2181, 1758, 1778, 1750. No oath administered by any notary public or other state officer has any validity in a United States court or executive departments of the general government, unless such officer be expressly authorized to administer oaths by the statutes of the United States. His authority under the state laws is wholly insufficient. Here, then, are judicial and other functions and powers of the highest nature, in which the state has no interest whatever, conferred by the laws of the United States upon certain state officers-powers and functions which no one of them could exercise under the state laws or as state officers, or in their character of state officers.

Under section 1014 of the revised statutes, the judges, justices of the peace, and other state officers, as committing magistrates in case of crimes against the United States, exercise the same powers, and by virtue of the same authority, and no other, as does the chief justice and justices of the supreme court of the United States, and other United States judges and commissioners. Under this statute, with reference to the jurisdiction conferred, they stand upon an equality with the highest judicial officers of the United States: United States v. Schuman, 7 Saw. 440; Giant Powder Co. v. Cal. V. P. Co., 6 Id. 532; Robinson v. Satterlee, 3 Id. 140. So in some of the other sections cited, jurisdiction is conferred upon the designated state officers, not merely to hold preliminary examinations, but to try cases, civil and criminal in their nature, and render and enforce final judgments without appeal. Thus, under the laws of the United States, they are authorized to exercise judicial functions and powers of the highest character, in relation to matters in which the state has no concern whatever, and over which the state could give them no possible authority. They take part in the administration of the laws of the United States. They act by virtue of the authority of the United States, and no other. The fact that, with

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