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" were also admitted and protected in the case of Creighton v. Evans. 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." J. N. P. 26 53 Cal. 55. [TO BE CONTINUED.] 27 See Hale v. McLea, 53 Cal. 578; Huston v. Leach, 53 Id. 262; Hanson v. McCue, 42 Id. 303; Mosier v. Caldwell, 7 Nev. 363; INTERSTATE EXTRADITION. IN RE ROBB. 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 this 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 having 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 "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 "auy 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, jus tice 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." 66 Section 4606 of the revised statutes makes it an offense to go aboard a 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 forthwith 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 state, city, town, or county of the United States, which 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 magistrate" 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 reference to matters of the state government, they also perform other duties under the state laws, can not affect the character of the acts performed solely by virtue of the laws of the United States. They act in a double capacity: in the one case, they act as officers or instrumentalities or agents for the administration of the laws of the United States; and in the other, of the state. And the fact that the state is interested in the act to be performed, can not affect the character in which the officer or instrumentality performing it acts. There is no necessary connection, and, indeed, no connection in fact or in law, between the duties performed in the two distinct capacities in which they act. Congress might just as well confer the powers referred to upon any other persons as upon those named. The office is simply used instead of the name of the incumbent as a description of the persons upon whom jurisdiction and power are conferred. The jurisdiction and power to be exercised is derived solely from the act of congress, and not from their character as state officers. It was doubtless supposed that men occupying analogous positions under the state government would be competent to perform the services indicated, and that it would be more convenient and economical, in view of the small amount of services of the kind likely to be required to confer the jurisdiction on them, than to maintain a separate set of officers. Whatever the reason, congress has seen fit, for certain purposes, to constitute certain state magistrates and certain state executive officers a part of the judiciary and executive force of the United States government; but while executing the laws of the United States by virtue of their powers thus conferred, their official acts are as separate and distinct from their official acts as state magistrates and state executive officers as if they held no state office whatever. If the acts under the laws of congress are not official acts with respect to the United States, they certainly are not official acts with respect to the state. True, congress has not attempted to provide for compelling the governor to act under the extradition laws, either by mandamus or punishment criminally; and he may decline to act with impunity. Neither has it made any provision whereby the assumption and exercise of the judicial functions mentioned in the numerous sections cited can be compelled, and the several state officers designated might, doubtless, decline with impunity to assume the jurisdiction. But where they do assume to exercise the powers and functions designated, whether governor, judges, justices of the peace, or otherwise, they act solely by virtue and in execution of the laws of the United States; and no matter by what name we designate them, are instrumentalities or agencies employed in the administration of the laws of the United States, and are, within the language of the supreme court quoted, "any authorized officer or agent of the United States." Whether congress has power to compel by coercive means the assumption by the governor or other officers of the state mentioned, and the exercise of the power conferred on them, is a question not pertinent to the present discussion, as no such legislation as to any of them has been attempted. But having assumed the functions and exercised the powers, there can be no doubt that their acts within the jurisdiction conferred by the laws of the United States, if valid, are acts of the sovereignty of the United States, and not of the state sovereignty, of which they are also officers. If not valid, they of course can not be acts of the state or any other sovereignty. The naturalization laws, |