courage their free and unlimited use for that purpose, reserved such lands as were mineral from sale and the acquisition of title by settlement. And he who first connects his own labor with property thus situated and open to general exploration, does, in natural justice, acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public lands throughout the Pacific states and territories, by their customs, usages and regulations, everywhere recognized the inherent justice of this principle; and the principle itself was at an early period recognized by legislation and enforced by the courts in those states and territories.

Which is, in effect, saying that the government, being the owner of all the land through which a stream of water ran, had a right to permit the diversion and use of it by any one who chose to divert and use it for mining, agricultural or other purposes. There is not only no occasion for the application of the doctrine of riparian proprietorship to such a case, but it is one to which the doctrine could not be applied.

The provisions of the civil code in respect to the appropriation of water must be limited to that which flows over lands owned by this state or by the United States. It cannot affect the rights of riparian proprietors (1) because it is expressly declared that it shall not; and (2) because an owner of land cannot be divested of any interest which he has acquired in it except for a public use, and not then until just compensation has been made for it. Grants from the state and from the United States have always been construed like other grants, and a simple grant of land by either conveys the same interest as the grant of a private owner would. We think a grant of swamp or overflowed land conveys all the corporeal rights or hereditaments that a grant of any other land conveys. Property rights are essentially the same and quite as secure here as elsewhere. The right to acquire and possess property is as fully protected by the constitution of this state as it is by that of any other state. No one can be deprived of it except by due process of law. Private property cannot be taken or damaged except for one purpose, and then only on condition that just compensation is first made.

But whoever purchases land from the United States, or this state, after the whole or some part of the water of a natural watercourse, running through such land, has been appropriated by some one else under the act of congress of July 26, 1866, or under the provisions of title VIII, of the civil code of this state, takes subject to the rights acquired by such prior appropriator.

We do not doubt the power of the state to authorize the appropriation of water running through its own lands, and we think that such an appropriation would vest in the appropriator a right in the water thus appropriated superior to that of a subsequent purchaser from the state of the lands through which such water had previously

run.

It therefore follows from our point of view that the material issue in this case is whether the defendant has diverted from the land of the plaintiffs, since the title of the state thereto vested in them or their grantors, the water of a stream which otherwise would naturally have flowed over such land.

The plaintiffs allege that they are the owners of land situated along and bordering on Buena Vista slough," which is, and as they are informed and believe, "from time immemorial has been, a part of the natural stream or watercourse known as the Kern river, and through it the waters of said Kern river flow and always have flowed, on their way to Tulare lake." This is denied by the defendant. The issue is a vital one; and the finding on it is in favor of the defendant. If the finding is justified by the evidence, the order denying the plaintiffs' motion for a new trial cannot be disturbed, unless some material error was committed during the trial.

To maintain this issue on their part, the plaintiffs introduced evidence which tended to prove the substance of said allegation. First-They introduced patents, for the lands described in their complaint, from the state to them, and to their grantors. Second-They introduced evidence tending to prove that said lands bordered on Buena Vista slough, and that said slough formed a part of a natural watercourse, known as the Kern river, and that the waters of said river flowed through said slough to Tulare lake.

The defendant not only denied the material allegations of the complaint, but pleaded a prior appropriation, under the laws of this state, of a certain specified part of the water of said Kern river, and introduced evidence which tended to prove that said appropriation ante-dated any of the patents which the plaintiffs had introduced in evidence. After the defendant had rested, the plaintiffs, sought to introduce certificates of the purchase of said lands, by them and their grantors from the state prior to the date of defendant's said appropriation. To the introduction of said evidence, an objection was made made by the defendant, and sustained by the court. The grounds of the objection were that the evidence was "irrelevant, immaterial, incompetent, and not proper testimony in rebuttal." The materiality of it is apparent. If the appropriation was made while the state was the owner of said lands, the defendant's rights, as to the water appropriated, according to the provisions of the civil code, would be superior to those of subsequent purchasers of said lands: C. C. 1,410-1,422. But a diversion of water flowing in a natural stream over the plaintiffs' lands, could not be justified on the ground that it was diverted by virtue of an appropriation made subsequent to the plaintiffs' purchase of said lands from the state. Unless previously appropriated, water so flowing over said lands at the date of the plaintiffs' purchase, could not afterwards be diverted without affecting their rights, as riparian proprietors. And the rights of riparian proprietors are not affected by the provisions of the code: Id., 1,422. The right to have the water which flowed over their lands, at the date of their purchase, continue to flow

currere solebut, was a corporeal hereditament, of which the plaintiffs could not be deprived, except in the mode, and for the purpose prescribed by the constitution. The evidence was clearly admissible, and it was error to exclude it: Homestead Association v. Willard, 48 Cal., 614.

The defendant also introduced evidence tending to prove that by reason of natural obstructions, at certain points in Buena Vista slough, above plaintiffs' lands, the water of said slough did not flow over any of said lands. After the defendant had rested, the plaintiffs called witnesses to prove that there were no such obstructions at those points. To the introduction of such evidence an objection was made and sustained. This ruling was erroneous.

The court found that neither of the parties was a riparian proprietor. If that be the fact, there is no occasion for considering what their respective rights would be were the fact otherwise. If the plaintiffs were not riparian proprietors, they have no cause of action. If they are, and the defendant is not, it has no right to interfere in any way with the natural flow of a stream of water over the plaintiffs' land. A riparian proprietor has a right to the reasonable use of water flowing in a natural stream over his land. What may be a reasonable use in any given case depends upon the facts and circumstances of that case. But it is only as between riparian proprietors that the question can ever arise. According to the findings of the court, the question of riparian rights is in no way involved in the case.

The plaintiffs must prove by a preponderance of evidence, that there is a natural watercourse running through their land, from which the defendant has diverted or obstructed the natural flow of the water, before they will be entitled to any relief; and even then they will not be entitled to any, if the defendant proves by a preponderance of evidence that the water so diverted was duly appropriated, in accordance with the law of this state, while said land was owned by the state or the United States: Osgood v. E. D. W. Co., 56 Cal., 571; 11 Otto., 277.

The only difficulty that need be experienced is in arriving at the facts. The law is plain enough: Ferrea v. Knipe, 28 Cal., 341; Wixon v. Bear River Co., 24 Id., 367; Hill v. Smith, 27 Id., 476; Pope v. Kinman, 54 Id., 3; Creighton v. Evans, 53 Id., 55; Leigh Co. v. Independent Ditch Co., 8 Id., 323; Crandall v. Woods, 8 Id., 136; Ellis v. Tone, 58 Id., 289; Lytle Creek Water Co. v. Perdew, 1 West Coast Rep., p. 866; Learned v. Tangeman, 3 Id., 153; Osgood v. El Dorado Water Co., 56 Cal., 571; Broder v. Natoma W. Co., 11 Otto., 277.

Unless the plaintiffs were estopped, and the court does not find that they were, by reason of their acts and conduct while the defendant was constructing its works for the diversion of the water of Kern river, from complaining of such diversion, the findings that the plaintiffs knew of the intention of the defendant to divert said water before any was diverted, and of the construction of works by de

fendant for that purpose, but made no objection to the operations of defendant before the commencement of this action, are irrelevant. The facts found do not, in our opinion, constitute an estoppel, and if not, the plaintiffs had the full statutory period within which to commence their action.

The evidence as well as the findings, should be confined to the material issues in the case; and the court should find the ultimate and not the probative facts.

Order reversed.

MCKINSTRY, J., and THORNTON, J. concurred.

MCKEE, J., CONCURRING. In the examination of every case before a court of justice, the first important inquiry is, what are the inherent facts of the case? And the second, what is the law applicable to the facts? Law, announced without reference to the facts, is the source of much error.

The plaintiffs in the action in hand claimed to be, and the court found they were, at the commencement of the action, owners in fee, seized and in possession of an extensive tract of country, described in their complaint, the title to which they acquired, by letters patent from the state of California, issued to them in the years 1876. and 1877, and under a statute of the state entitled: "An act to provide for determining the rights of parties in certain swamp and overflowed lands in Fresno and Kern counties," approved March 20, 1878. The lands, it is alleged, are situate along and bordering on a natural watercourse, known as Buena Vista slough, and along and bordering on Buena Vista lake and Kern lake, and a natural channel which connects the two lakes. Buena Vista slough is claimed to be the lower portion of a natural watercourse known as Kern river—a river, which rising in the Sierra Nevada, debouches from the mountains into the plains about ten miles from the town of Bakersfield in Kern county, whence it flows naturally to and through the Buena Vista slough northward into Tulare lake, and part of its waters through the natural channel, connecting Buena Vista lake and Kern lake, into the said lakes.

The facts as found by the court are: That the plaintiffs' lands are situated in and form part of the body of the swamp and overflowed lands known as Buena Vista swamps; that a portion of them borders on that part of Buena Vista slough south of where the present lower portion of Kern river, known as New river, empties into the slough; and the water of the river in its natural course flows into and through the slough, and also to and into Kern and Buena Vista Lakes. To the extent that the plaintiffs' lands are situate upon these natural water-courses, the plaintffs are riparian proprietors. As such, they claim the right to the natural flow of the water of Kern river through the slough, and the natural channel which connects the lakes, and to the use of the same for domestic purposes and irrigation.

Unquestionably, the plaintiffs, as owners of lands upon which, or between which, there is a natural water-course, are entitled to the natural flow of the water in the channel of the water-course, and to its use for domestic purposes, for watering live-stock, and for irrigation. Such a right is a natural right, existing in the soil over which the water flows; and if it did, in fact, exist in the soil at the time of the acquisition of title to the soil, it was as much a part of the estate, acquired by the title, as was the soil itself, to which the title attached; and the owner could no more be divested of it, against his consent, by the subsequent act of another, than he could be of the soil itself. Water flowing in a natural water-course, upon or between a man's lands is, therefore, property in the highest sense of the term. The absolute owner of real property is entitled in law to every right appertaining to it in the condition in which it was at the time of the acquisition of his title to it, and to be protected by law in its enjoyment. In that regard, the source of his title makes no difference. A grantee, or patentee, of land from the state of California, or from the United States, is certainly entitled to equal rights in his lands, and to the protection of the law, in the enjoyment of those rights, as a grantee from the Spanish or Mexican governments.

But the great contention is, that the right to the natural flow of the water of Kern river, through the natural channels already mentioned, down to and through the lands of the plaintiffs, did not exist when the plaintiffs acquired their titles to these lands; and, as it did not exist, it did not pass to the plaintiffs from the state, nor under the statute referred to; because the defendant had, under the authority and sanction of law, while the lands belonged to the state of California, acquired the right to divert the water of Kern river from its natural channel, at a point above the lands of the plaintiffs, and to appropriate it for beneficial uses.

As a fact, the court finds that on the fourth of May, 1875, the grantors of the defendant did acquire the right to appropriate seventy-four thousand inches of the water of Kern river, measured under a four-inch pressure; and that, under that right, they, and their successors in interest, actually diverted, and have continued to divert, at a point in the river, above the lands of the plaintiff, that amount of water from the natural channel of the river, by means of a main ditch or canal, and its distributing ditches, for the purpose of irrigating lands along the route of the canal and its ditches, and supplying the owners and occupants of such lands with water.

Assuming the acquisition of such a right, on the fourth of May, 1875 (while the lands, which might be affected by it, belonged to the state), as a valid existing right, which has passed to, and vested in, and has been exercised and enjoyed by the defendant, it is a right superior to that asserted by the plaintiffs; for, as I understand it, it is settled law, so far as this state is concerned, that property in the water of a stream upon the public lands may be acquired by mere appropriation for mining or other beneficial purposes; and that the