Gillette v. Sharp.

issue, it should designate the fund on which the warrant should be drawn.

Frank Owen and John Bowman, for Petitioner.

The act leaves no discretion to the auditor; for when an account is presented to him under the provisions of the act, he is commanded absolutely to draw his warrant on the treasurer for the amount specified in the account. There being no funds in the treasury was no ground for refusing to draw a warrant as demanded. McCauley & Tevis v. Brooks, 16 Cal. 11; Humboldt County v. The County Commissioners of Churchill County, 6 Nev. 30.

George R. Williams, for Respondent.

The act of 1871 does not wholly repeal sections 9, 10, 11 and 12 of the act relating to county commissioners, but repeals them, if at all, only so far as they conflict with it. It does not conflict with the portions of those sections which prescribe the duties of the county auditor. The act does not make jurors preferred creditors; their accounts should be presented to the county commissioners and county auditor for their approval, and paid in the order of their registration, the same as other accounts against the county, and out of the general fund.

By the Court, WHITMAN, J.:

In 1871, the legislature passed the following act, amendatory of the statute of 1869:

"SECTION 1. Each juror summoned in the state, whether petit or grand juror, unless he be excused by the court from serving on the day he is summoned to attend court, shall receive three (3) dollars per day for each and every day he may be in attendance upon court, and fifteen cents per mile in traveling to and returning from court, all of which shall be paid out of the county treasury. The auditor shall draw his warrant on the treasurer for the compensation provided in this act, upon certificate of the clerk of the court showing the amount due." Stats. 1871, 56.

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The main differences between the statute of 1871 and that of 1869 are, the substitution of the clerk's certificate for any and all

Gillette v. Sharp.

other auditing or verification of the demand; and the positive requirement upon the auditor to draw his warrant, upon presentation of such certificate. In these respects it conflicts, with evident intention, with sections 9, 10, 11 and 12 of the act creating a board of county commissioners, (Stats. 1864-5, 259); and, being the subsequent expression of legislative will, must override them to the extent of creating an exception in favor of jurors to the general rules therein expressed.

As the direction to the auditor is peremptory and admits no exercise of discretion, and the agreed facts present no obstacle thereto, the mandamus asked should issue, directing respondent to draw his warrant upon the treasurer in favor of petitioner, for the amount certified by the clerk. What fund should be drawn upon, is for the auditor to ascertain in the proper exercise of his powers. Let a peremptory mandamus issue.

By GARBER, J., dissenting:

There can be no difference of opinion or controversy as to the rule of law concerning the repeal, total or partial, of statutes, by implication. Such repeals are not favored. The uniform language of the books is that, while the old statute gives place to the new one, this is to be understood only when the latter is couched in negative terms, or where its matter is so clearly repugnant that it necessarily implies a negative. But if both be merely affirmative, and the substance such that both may stand together here, the latter does not repeal the former, but they shall both have a concurrent efficacy. 1 Black. Com. 89. Hence are deduced the rules that courts are bound to uphold the prior law, if the two may subsist together, or if it be possible to reconcile the two acts together; and that there is no repeal by implication, unless it is absolutely necessary in order that the later act shall have any meaning at all. 1 Black. 470; 25 Ind. 167; 2 Beas. (N. J.) 291.

By section 10 of the statute of March, 1865, it is provided that no warrant shall be drawn by the auditor on the county treasurer on any fund, unless the money be therein at the time to pay the same, and that any warrant drawn contrary to such provision shall be absolutely void. The statute of 1869, fixing the compensation

Gillette v. Sharp.

of jurors, provides that: "The board of county commissioners shall audit and allow the compensation provided in this act, upon the certificate of the clerk of the court showing the amount due." The amendment of 1871 simply dispenses with the action of the board as a condition precedent to the drawing of the warrant by the auditor, and directs its issuance upon the clerk's certificate, in lieu of the order of the board based upon the clerk's certificate. Not only is it not impossible for the clause of section ten above quoted to subsist with this amendment, but it is clear that there is no repugnancy whatever between them. Without holding that the latter repeals the former, we can not only give to the amendment some meaning, but it can have the very meaning and operation which the legislature must have intended, for there is nothing to indicate an intention to make jurors preferred creditors. All that appears is an intention to prescribe a rule of evidence or a mode of authentication, by which the existence and amount of their claims should be established. So far as this is concerned, the former provisions of the statute are repealed, and thus far only. The auditor must now draw his warrant on presentation of the certificate, as formerly he must have drawn it on submission of the order of the board; subject however, in each case, to the auxiliary provision of section ten above quoted.

Any other construction would not only be in direct disregard of the settled law on the subject of repeals by implication, but tends necessarily to the introduction of disorder and confusion into the financial affairs and business of the counties. And I can see no reason why, once his claim is adjusted and established, a juror should be allowed a warrant for its payment on any other terms or in any other manner than the same is allowed to other persons, whose claims have been reduced to equal certainty, though by a different method. But it is enough, for the purposes of this case, to consider that there is no necessary or irreconcilable conflict or repugnancy between the said clause of section ten and the amendment; as the case states that there was no money in the treasury when the warrant was demanded. I think the petition should be denied.

Vansickle v. Haines.

PETER W. VANSICKLE, RESPONDENT, v. JAMES W. HAINES et als., APPELLANTS.

DIVERSION OF WATER ON PUBLIC LAND CONFERS NO RIGHT AGAINST GOVERNMENT. Where a person diverted and appropriated the waters of a creek on public land from its natural channel; and afterwards the land, on which its natural channel was situated, was patented to another: Held, that the former acquired no right against the government; and that the patent carried all the right of the government, which was absolute and unincumbered by any diversion or appropriation, to the patentee.

NO PRESUMPTION OF GRANT AGAINST GOVERNMENT. The diversion and appropriation of the water of a creek on the public land gives rise to no presumption of a grant as against the government; and, except in cases specially provided for, no statute of limitation runs against it.

PATENT TO LAND PASSES UNINCUMBERED FEE OF SOIL AND INCIDENTS. A patent to land from the United States passes to the patentee the unincumbered fee of the soil, with all its incidents and appurtenances, among which is the right to the benefit of all streams of water which naturally flow through it. RIGHT TO NATURAL FLOW OF WATER NOT AFFECTED BY QUESTION OF USE. The right of the owner of the soil to the natural flow of a stream of water through his land, is not affected by the question as to what use he will put it to. ABSOLUTE OWNERSHIP BY UNITED STATES OF PUBLIC LAND AND WATERPATENTS. The United States has an absolute and perfect title to, and the unqualified right of property in, the public land; and, as running water is an incident to or part of the soil over which it naturally flows, a patent carries not only the land but the stream naturally flowing, through it, and the same right to its use or to recover for a diversion of it, as the United States or any other absolute owner could have.

RIGHT OF LAND OWNER TO NATURAL FLOW OF WATER THROUGH IT. The owner of land over which a stream of water naturally flows, has a right to the benefits which the stream affords, independently of any particular use; that is, he has an absolute and complete right to the flow of the water in its natural channel, and the right to make such use of the water, when he chooses, as will not damage others located on the same stream and entitled to equal rights with himself.

EFFECT OF UTAH TERRITORIAL LEGISLATION AS TO PUBLIC LAND. Before the United States can be held bound by the acts of the territorial legislature of Utah as to the public land, must appear that such legislation was submitted to congress and not disapproved by it.

CONSTRUCTION OF GRANTS OF GOVERNMENT. Grants by the government must always be construed most favorably to the government; they pass nothing by implication.

UTAH LAWS AS TO DIVERSION OF WATER. The law of Utah Territory respect

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ing the grant of water rights, (Com. Laws Utah, 12, Sec. 38) purported to authorize the county court to grant a right to divert water, but did not purport to authorize any individual to make such diversion without the sanction of the court.

UTAH LAW AS TO INFRINGEMENT OF WATER RIGHT. The law of Utah Territory respecting infringements upon water rights, (Com. Laws Utah, 155, Sec. 7) granted no right of any kind to divert water, but simply provided a punishment for the violation of rights supposed already to exist.

UTAH TERRITORY COULD NOT CONFER RIGHTS TO WATER ON PUBLIC LAND. Under the act of congress organizing the territory of Utah, which provided that the territorial legislature should pass no law interfering with the primary disposal of the soil, no act of the legislature would have been valid that in any way attempted to confer any right to the water of the streams on the public lands.

CONGRESSIONAL LEGISLATION AS ΤΟ DIVERSION OF WATER ON PUBLIC LAND. It appears from the act of congress of July, 1866, which seems to have been adopted simply to protect those who at that time were diverting water from its natural channels on the public land, that no diversion had previously been authorized.

PREEMPTIONER ON ONE QUARTER SECTION HAS NO RIGHT TO DIVERT WATER FROM ANOTHER. A preemptioner, while occupying and improving a quarter section of the public land, has no right to enter upon another quarter section, to which he makes no claim, and divert from it a valuable stream of water for the benefit of the land which he is claiming.

RIGHT OF PATENTEE TO HAVE DIVERTED WATER RETURNED TO NATURAL CHANNEL. A patent to land from the United States, (previous to the act of congress of July, 1866) carried with it a stream naturally running through such land as an incident thereto, together with the right to have it returned to its channel, if diverted.

NATURE OF PRESUMPTION ARISING FROM ADVERSE HOLDING. The presumption arising from adverse holding or user for the period prescribed by the statute of limitations, is not a presumption of a grant against any particular person, but against the title under which he holds.

TITLE BY PATENT WIPES OUT ALL FORMER TITLES. Where a person acquires a United States patent to land, he acquires a new title, against which there is no prescription; in other words, his patent sweeps away all former titles, and confers upon him as complete a title as the United States had.

PRESUMPTION RESPECTING ADVERSE USER OF WATER SAME AS OF LAND. The

presumption respecting the adverse user of water stands upon the same footing as that respecting the adverse user of land; and the reasoning which will sustain the one will likewise uphold the other.

ADVERSE USER OF WATER ON PUBLIC LAND CANNOT BE SET UP AGAINST

PATENTEE. The time during which a person diverts water from public land previous to the issue of the patent, cannot be set up as an adverse user against the patentee.