riparian proprietor. On appeal, the judgment was reversed by the supreme court, and a decree was ordered for the defendant dismissing the suit. The court held, among other points, that, since there can be no title acquired by adverse user against the United States, the time during which a person diverts water from a stream wholly on the public land previous to the issue of a patent to a private riparian proprietor, cannot be set up as an adverse user against such patentee. The same has been held by California decisions. The plaintiff presented a petition for a rehearing, and thereupon a second most able and exhaustive opinion by Lewis, C. J., was delivered, from which I shall quote several passages that seem to bear upon the general questions under discussion. This opinion opens with some preliminary observations which are peculiarly appropriate and instructive (pp. 257-258): "We are unable to understand from the petition what exact condition is assigned to running water in the catalogue of rights or property; or what the nature of the title which may be acquired to it, if any. Much thereof is devoted to showing that there can be no property in running water; that it is, and must of necessity remain common to all; that it is a thing 'the property of which belongs to no person, but the use to all;' and in the same sentence it is said that it is publici juris, res communis and bonum vacans.' This abandon in the use of legal expressions is evidently the result of a radical misunderstanding of the signification which is given to them in the books of law. True, it is often said that water is publici juris, or belongs to those things which are res communes; but how can it be either publici juris or res communis and also bonum vacans is a problem not yet solved in the science of the law. If common property, or, as argued by counsel, something in which no one has an absolute property, but every one has the use, the right to the use must then certainly be in the community; but bonum vacans is a thing without an owner of any kind, and which belongs absolutely to the person who may first find or appropriate it, and he has the complete right of property in it as against the world. It is a flat contradiction in terms, to say that running water is at the same time common property and bonum vacans. But we have the word of Lord Denman in Mason v. Hill," and of Baron Parke in Embry v. Owen's ex'ors, 20 that it was never considered bonum vacans. Nor are these contradictions confined simply to legal terms. The argument proceeds upon the assumption that running water belongs to the community generally, and authorities are cited which are supposed to sustain that doctrine, as the quotation from Blackstone who says, 'water flowing is publici juris. By the Roman law, water, light and air were res communes and which were defined things, the property of which belong to no per

18 Pope v. Kingman, 54 Cal. 3.

19 95 B. & Adol. 22.

20 6 Exch. 353.

son, but the use to all.' Yet, after arguing to show that water is common property, it is also claimed that a stream may be absolutely appropriated by the first person who may wish to use it. In other words, that water, instead of being something which belongs to all in common, as is argued at first, is a thing which belongs absolutely to him who first appropriated it, to the extent even that, if it be necessary for the purpose for which the appropriation is made, it may be completely consumed. Surely, the two propositions are as irreconcilably contradictory as any that can be named. As an illustration, it is argued that running water is like the air, to which certainly all have an equal right, and with which no one has the right to interfere to the injury of another. But in this case the right is claimed by Van Sickle to deprive the appellant of the stream, which in the ordinary course of things he would be enabled to enjoy and to appropriate it exclusively to himself. If running water be like the air, then surely no one has the right to interfere with it in its natural state to the prejudice of others. When positions so utterly contradictory are assumed, the real questions in the case are likely to be involved and obscured, rather than elucidated." The following observations concerning the influence which the "public interests" should have upon the dicisions of cases involving private rights, are of weighty importance in this community as well as in Nevada and every other state. While courts most certainly have a legislative function, since the great body of common law and of equity has been built up by courts, it should never be forgotten that courts do not rightfully possess the power of legislating from motives of mere policy or expediency. The duty of courts is to declare and protect private rights of suitors by applying or extending some established principle or doctrine to new conditions of facts. The court say (p. 259): "Before proceeding to an investigation of the legal questions really involved in the case, we may state, once for all, that the fact that the case is of great interest to the public, whose rights, it is claimed, ‘are seriously disturbed by the decision,' is a consideration which, in very doubtful cases, may, and perhaps should have some weight with judicial tribunals. But that the interests of the public should receive a more favorable consideration than those of any individual, or that the legal rights of the humblest person in the state should be sacrificed to the weal of the many, is a doctrine which, it is to be hoped, will never receive sanction from the tribunals of this country. The public is in nothing more interested than in scrupulously protecting each individual citizen in every right guaranteed to him by the law, and in sacrificing none, not even the most trivial, to further its own interests. Every individual has the right, equally with the public at large, to claim a fair, impartial consideration of his case; for the rights of the public are no

more sacred or entitled to greater protection in law than those of the individual; and, therefore, in actions between individuals, the consideration of public interest has weight only when there is grave doubt as to where the right lies. This doctrine, which would justify the courts in depriving a person of a civil right to-day for the public good, might tomorrow force them to sacrifice his life to the clamor of a mob, which would deprive Haines of his property at one time, might operate against Van Sickle at another. As in this case we have no doubt whatever as to what should be our conclusion; the fact that it may injuriously affect the public can have no weight in its consideration. Happily, however, we do not think the decision, if properly understood, will produce the general disastrous results apprehended by counsel." Coming to the merits of the case, the learned chief justice states the material questions to be considered and determined (p. 260). "As the appellant claims the water of Daggett creek as an incident to the land patented to him by the United States, and as it is admitted that he could get only such title and right as was vested in the United States itself, it becomes necessary to ascertain what is the nature of the rights of the federal government to the public land, and we purpose to show: 1st, that the United States has the absolute and perfect title; 2d, that running water is primarily an incident to, or part of the soil over which it naturally flows; 3d, 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; 4th, that the government patent conveyed to Haines not only the land but the stream naturally flowing through it; 5th, 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." The chief justice follows this statement by an elaborate argument and citation of authorities showing that the United States has the absolute title in fee simple in all the public lands, to the same extent and in like manner as any private owner has; and that this title includes all the incidents and power of absolute private ownership (pp. 261–264). As the correctness of these conclusions is undoubted, it is unnecessary to quote this portion of the opinion. He then proceeds to consider the right to water as an incident of ownership (p. 264): "Being absolute owner of the soil, the source of all title thereto, and entitled to all the remedies for its protection and preservation which are given to any individual owner, it certainly cannot be maintained that the United States is not equally entitled to everything which is naturally such an inseparable incident to the land, that it is frequently spoken of as a part of the

soil itself.

Such an incident is a natural water course. It passes by deed of the soil without any mention, and forms as marked a feature of the land through which it passes as the trees upon it or the vegetation which it nourishes. Nothing more readily recommends itself to the understanding than that an element which the laws of nature have connected with the freehold, and which, without any effort on the part of man, clothes it with refreshing verdure-when without it there must be only forbidden nakedness-creating fertility and productiveness where otherwise there would be only sterility; at once administering pleasure and affording profit-is necessarily a part of or incident to his land. This is the natural effect of running water, independent of any use which may be made of it in administering to the immediate wants of man and beast. How frequent is it that small streams of water are found to add immeasurably to the value of estates, even where no particular use is made or intended to be made of them. It is very seldom indeed that they do not to some extent enhance the value of real property, and they are frequently esteemed invaluable. How can it be said, then, that a water course is not essentially a part of the freehold itself.

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[ TO BE CONTINUED.]

J. N. P.

CIRCUIT COURT, DISTRICT OF CALIFORNIA.

MACNAUGHTON v. SOUTH PACIFIC COAST R. R. Co.

March 24, 1884.

REMOVAL OF CAUSES-CITIZENSHIP OF PARTIES.-The petition for the removal of an action on the ground that the parties are citizens of different states must show that such ground of removal existed both at the time of the commencement of the action and at the time of the application for removal. A petition which only alleges that the defendant is, and always has been, a citizen of California, and that the plaintiff is a citizen of Missouri is insufficient. THE SAME AMENDMENT OF PETITION.-The citizenship of the parties, under such circumstances, are jurisdictional facts, and must be alleged in the petition. If such allegations are not made, whether the petition may be amended in the circuit court so as to show them quere. If the power to allow such amendments be conceded, it is not a matter which the party removing can demand as a legal right, but only a matter for the exercise of a sound discretion by the court. Such an amendment should not be allowed where, after an amendment of the petition in the circuit court, the record in each court, would show upon its face jurisdiction which would authorize it to proceed to final judgment.

THE SAME-APPLICATION WHEN SHOULD BE MADE.-This action was commenced in the fourth district court, of the state of California, on August 1, 1879; defendant demurred August 22, 1879. The demurrer was overruled. It answered September 12, 1879. Plaintiff demurred to that part of the answer, setting up new matter as a defense, October 2, 1879. The new constitution of California of 1879 having in the mean time taken effect, the case was transferred into the superior court as the successor of the district court, and on January 23, 1880, was assigned to department No. 7 of the superior court. On March 22, 1880, the demurrer to the answer was sustained. An amended answer was filed April 1, 1880, which put the case at issue. The constitution of 1879, and the statutes passed in pursuance thereof provide that "the superior courts shall always be open (legal holidays and non-judicial days excepted) and they shall hold regular sessions commencing on the first Mondays of January, April, July and October, and special sessions at such other times as may be prescribed by the judge or judges thereof." On January 21, 1884, the defendant filed a petition to remove the case to the United States circuit court, on the ground that the parties were citizens of different states. Held, that under the act of congress of 1875, providing that the application for removal must be made "before or at the term at which said cause could be first tried," the application in this case came too late; that the four general sessions of the superior court required to be held are "terms" within the meaning of the act.

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Motion to remand. The opinion states the facts.

H. N. Clement, for the plaintiff.

Gordon Blanding, for the defendant.

SAWYER, CIRCUIT JUDGE. This action was commenced in the fourth district court of the state of California, on August 1, 1879. Defendant demurred August 22d, 1879, and the demurrer was overruled. Defendant having answered, plaintiff demurred to that part of the answer, setting up new matter as a defense, October 2d, 1879. The new constitution of California of 1879, having in the meantime taken effect, the case went into the superior court, as successor to the state district court, and on January 23, 1880, was assigned to department No. 7 of the superiorcourt. On March 22, 1880, the demurrer to the answer was sustained, with leave to amend. An amended answer was filed April 1, 1880, which, under the code of civil procedure, put the case at issue, and it was ready for trial.

On January 21, 1884, the defendant filed a petition to remove the case to the United States circuit court, on the ground that the plaintiff is a citizen of Missouri, and the defendant a citizen of California. The petition alleges that "there is in this action a controversy between citizens of different states, to wit: a cotroversy between your petitioner, the defendant herein, which said defendant was at the time of the commencement of this action, ever since has been,