Vansickle v. Haines.

ADOPTION OF THE COMMON LAW. The territorial statute adopting the common law of England (Stats. 1861, 1) was adopted by the state constitution (Con. Schedule, Sec. 2).

RIGHTS OF RIPARIAN PROPRIETORS ON NON-NAVIGABLE STREAMS. The common law rule as to running water allows all riparian proprietors to use it in any manner not incompatible with the rights of others; so that no one can absolutely divert all the water of a stream, but must use it in such a manner as not to injure those below him.

"PRIOR APPROPRIATION " OF WATER NOT

AVAILABLE AGAINST TITLE TO SOIL. The early decisions of this state and those of California, holding that priority of appropriation gave a right to the use of water, were made in cases where there was no title to the soil, and have no bearing in cases where absoluet title has been acquired.

APPEAL from the District Court of the Second Judicial District, Douglas County.

It appears that in 1857, the plaintiff Vansickle diverted, by a ditch for irrigating and domestic purposes, one-fourth of the water of Daggett creek, a small tributary of the Carson river in Douglas County. He made the diversion at a point then on the public land, but which in 1864 was patented by the United States to the defendant Haines. In 1865, Vansickle obtained a patent for his own land where he used the water. In the fall of 1867, Haines and his codefendants, William F. Leet and Charles Vangordor, constructed a wood flume on Haines' land, and turned into it all the water of the stream, thereby depriving the plaintiff of that part of it which he had been using. In November, 1870, plaintiff commenced this action, asking for $1,500 damages and an injunction to restrain further diversion of that portion of Daggett creek claimed to have been appropriated by him. There was a decree for plaintiff substantially as prayed for, from which defendants took this appeal.

R. S. Mesick, for Appellants.

I. Prior to the patent to Haines, the land at the point of diversion of Daggett creek was a part of the public domain, and belonged to the United States government. It cannot be claimed that the government lost any part of its estate under any statute of limitation, for as against the United States the statute of limitations was inoperative. Angell on Lim., Sec. 39; Washb. on Real Prop.,

Vansickle v. Haines.

Book III, Chap. II, Sec. 7, §§ 38, 42; 6 Pet. 666; 20 Geo. 467. Nor could any prescriptive right as against the government be inferred, for the reason that no inference of a grant can be indulged in such case.

II. Prior to 1866, there was no law of the United States by which an easement in such land, separate from the land itself, could be carved out of the estate of the government and granted. Therefore, no presumption of a grant of any such easement, separate from the land, can be indulged.

III. The title conveyed by the patent to Haines was a full and absolute title to the land and to the water flowing over it, and it was sufficient to exclude all private persons from the land and from diverting water from it. The owner in fee of land has the title to and control over water naturally flowing over it, to the same extent and in the same sense as he has to and over the soil itself. 1 Coke upon Litt. 4 a; Cooley's Black. Com., Book II, Chap. II, and note 4; Elliott v. Fitchburg R. R. Co., 10 Cush. 193; Angell on Water-courses, Sec. 5, and authorities cited in note 3, Secs. 10, 12, 132; Washb. on Real Prop., Book II, Chap. I, Sec. 3, § 40; Washb. on Easements, 270, 274, 281; 1 Brightly's Dig. 500, Sec. 232.

IV. The right which is awarded to the plaintiff by the judgment is plainly an easement in the real estate of Haines, lying wholly in grant and not at all in livery. Washb. on Real Prop., Book II, Chap. I, Sec. 3, §§ 1-5.

V. Had the patent to plaintiff been made while the land of Haines was public land, no easement in such land in favor of plaintiff would have passed by the grant; and much less can such right be held to have passed to him by the grant of the government That such right would

made subsequent to the patent of Haines. not have passed to plaintiff under the grant to him, had the land of Haines at the time been public land, is well settled. Wilcoxon v. McGhee, 12 Ill. 381; Tabor v. Bradley, 18 N. Y. 109.

VI. The plaintiff was in the attitude of a trespasser when the grant was made to Haines, and the government cannot be presumed

Vansickle v. Haines.

to have intended to burthen the estate of a purchaser for the benefit of a trespasser. Nor can it be presumed even that the government was aware that the Haines tract was in any way tributary to the Vansickle tract at the time of the grant to Haines.

Robert M. Clarke, for Respondent.

I. The rights of Haines as a riparian proprietor do not constitute a property in the corpus of the water, but a right to the use of it for his natural wants as it flows in the bed of the stream. Mason v. Hill, 5 Barn. & Ad. 1; Pugh v. Wheeler, 2 Dev. & B. 50; Howell v. Mc Coy, 3 Rawle, 256; Thomas v. Bruckney, 17 Barb. 654; 1 Sim. & S. 190; 4 Mason, 397; 50 Me. 604; 2 Allen, 287; 35 N. Y. 524.

II. Whatever may have been the abstract rights of Haines as a riparian proprietor, they are distinct from those of Haines, Leet, and Vangordor, as appropriators. Though Haines, as riparian proprietor, might have the right to use so much of the water as was necessary or proper to satisfy his natural wants, including the irrigation of his land, still it follows, both upon principle and authority, (there being no property in the water and no estate except in its use, and this use being fully supplied) that Vansickle could lawfully appropriate the surplus after Haines' natural wants were supplied, and that such appropriation, even if not of right, is, as to Haines, damnum absque injuria, and as to Haines, Leet, and Vangordor, as appropriators, first in time and therefore superior in right. Tyler v. Wilkinson, 4 Mason, 397; Elliott v. Fitchburg R. R. Co., 10 Cush. 191; Cary v. Daniels, 5 Met. 239; 11 Met. 281; 8 Penn. 22.

III. By all the authorities, ancient as well as modern, the only estate or interest that can be acquired in flowing water is in its use-a usufruct. There can be no property in, or title to, the corpus. of the water. 2 Black. Com. 18; Liggins v. Inge, 7 Bing. 692; Tyler v. Wilkinson, 4 Mason, 397; Embrey v. Owen, 6 Exch. 333; 3 Kent, 439; Kidd v. Laird, 15 Cal. 161; Mayor v. Commissioners of Spring Garden, 7 Penn. State, (Burr) 363.

IV. As the complaint is for abstracting a part only of the water

Vansickle v. Haines.

customarily flowing in the stream, and as there is left sufficient to answer the purposes and satisfy the wants of the riparian owner, no right is violated nor injury sustained; no wrong is done which will support an action, either at law or in equity. Washburne on Easements, 295; Elliott v. Fitchburg R. R. Co., 10 Cushing, 191; Howell v. McCoy, 3 Rawle, 256; Shreve v. Voorhees, 2 Green Ch. 25; Thompson v. Crocker, 9 Pick. 59; 5 Ohio, 320; 17 Conn. 288; 6 Exch. 353; Wadsworth v. Tillotson, 15 Conn. 366; 51 Maine, 290; 10 Barb. 518.

Unless the doctrine herein maintained be correct, there is necessarily an end to the appropriation of water, or to the use of it for irrigation, or indeed for any purpose whereby the flow is impeded or the quantity diminished; for each riparian proprietor could insist upon the uninterrupted and undiminished flow in the bed of the stream, and by this means prevent any valuable use.

V. A usufruct in running water may be acquired by appropriation or occupancy, and our legislature gives powerful support to the doctrine. Stats. 1861, 87, Sec. 146; Stats. 1862, 107; Stats. 1864-5, 348; Stats. 1866, 202; Stats. 1869, 129. This legislation is a full recognition of the rights of appropriation by diversion, and is wholly inconsistent with the theory of a property in running water distinct from its use.

VI. The land under the water of Daggett creek passes by patent, just as does the land under the Ohio river; but the water flowing over the surface is in no manner affected by the patent, no more than the air passing over, or light illuminating the surface. This is publici juris, res communis, the property of no one, free to all; and not being property, constituting no part of the land, no right to or estate in it. It cannot be claimed that the government has a property in the water of an unnavigable stream, or that such property passes by patent in such manner as to vest, not only the stream in its then condition, but also to cut off, by relation, rights previously acquired by actual appropriation and use.

VII. The Mexican Mill company, as long ago as 1861, at an expense of hundreds of thousands of dollars, put a dam into the Carson river, constructed a canal four miles in length, and erected a mill, the machinery of which is propelled by the power of the

Vansickle v. Haines.

stream. Can it be possible no rights have resulted from this appropriation and use that may not be overthrown by Jones, who, since the diversion, and only yesterday, acquired patent to the hundred and sixty acres contiguous to the river and immediately below the dam, and this without respect to his necessities as a riparian owner? May he, without requiring the water, or even by erecting a mill and thus creating a necessity for the use, defeat the appropriation and destroy the use acquired by the Mexican company? Unless consequences like these are to be sanctioned; unless all rights of appropriation are to be overthrown; unless the basis upon which rest the most extensive and. valuable property interests in this state is to be razed, the rights of the plaintiff must be sanctioned and the pretenses of defendants denied.

VIII. But Haines is cut off from making the defense interposed by the statute of limitations and by adverse possession for more than five years, and the presumption of grant resulting from such adverse possession. Stats. 1867, 185, Sec. 3; Arrington v. Liscom, 34 Cal. 365; Grattan v. Wiggins, 23 Cal. 36; 1 Burr, 119; 2 Black, 605; 31 Maine, 384; Washburne on Easements, 101-105; Angell on Water-courses, Sec. 204.

R. S. Mesick, for Appellants, in reply.

I. No prescriptive right or implications of grant in plaintiff's favor from Haines can arise, because plaintiff could not have enjoyed the right for the period of five years from the date of the grant by the United States to Haines.

II. A riparian owner is entitled to have a stream flow in its natural channel through his land, whether he has any use for the water or not. This right is an incident of his estate in the land. Corning v. Troy Iron and Nail Factory, 40 N. Y. 191.

By the Court, WHITMAN, J.:

Respondent claims damages against appellants for past diversion of the waters of Daggett creek, and prays an injunction against further continuance of the injury alleged. The district court found for respondent; hence this appeal. Many questions are argued in