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in the state where the suit is brought, which prevents its flowing to his lands in the state of his residence.

3. SAME-APPROPRIATION OF WATER RIGHTS.

The complainant, a citizen and resident of Wyoming, instituted a suit in the Circuit Court of the United States for the District of Montana to enjoin the defendants, residents and citizens of that state, from diverting water from a stream rising in Montana and flowing into Wyoming. Held, that defendants could not justify their diversion of water in Montana in hostility to the rights of the complainant in Wyoming upon the ground that the laws of Montana authorize its citizens to appropriate water within the state. Held further, that the fact that the stream has its source in Montana, and from thence flows into Wyoming, does not affect the right to appropriate, but that the general doctrine of priority governs regardless of state lines.

4. SAME-DEFINITION.

An appropriation consists of the diversion of water and its application to some beneficial use. In the absence of any statute, if the work is prosecuted with reasonable diligence, the right of the appropriator relates to the beginning of the work.

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Where one appropriates under a statute, the recording of the claim is constructive notice, but such statutes do not preclude the taking of water for beneficial uses by methods other than those therein prescribed. The effect of the statutes is to preclude an appropriator from claiming, by the doctrine of relation, to the time when the work was begun as against one who does comply with the statutory requirements, and prosecutes the work to completion in accordance therewith.

6. SAME-APPROPRIATION IN WYOMING-REPEAL OF STATUTE.

Complainant, without complying with the statutes of Wyoming, diverted water from Sage creek in that state. Under the statutes then in force, one so appropriating was precluded from giving evidence in any proceeding to enforce a claim to the water thereby appropriated, but the statute was repealed prior to the institution of this suit. Held, that the effect of the statute was not to deny the right to appropriate, and that its repeal removed the only obstacle to the assertion of his rights in the courts. Held further, that the rights of complainant must be governed by the laws of Wyoming, where his appropriation was made. 7. SAME EQUITIES.

One who appropriates water is entitled to the full amount appropriated, to the exclusion of all subsequent takers, and equity will not intervene to deprive one of the rights thus acquired by distributing the water to those subsequently claiming, even though the general benefits would be thereby increased.

8. SAME RIPARIAN RIGHTS.

The defendants acquired lands in the Crow Indian Reservation in Montana subsequent to appropriations made in Wyoming, and they claim riparian ownership as successors of the Indians. Held, that the Indians never had any riparian rights, the fee always having been in the government subject to their occupancy. Held further, that appropriations could be made of waters running through the reservation which are superior to the rights of those subsequently becoming riparian owners. 9. SAME-RIPARIAN OWNER-RIGHT TO USE.

While a riparian owner has the right to reasonably use the water of a stream, he cannot deprive his co-riparian owners of like use. In the absence of any testimony as to what is a reasonable use, there can be no decree regulating the use as between such owners.

10. SAME-STATUTE OF LIMITATIONS-NATURE OF POSSESSION.

The statute of limitations does not run upon a scrambling possession. The use must be adverse, exclusive, and uninterrupted under a claim of

right, and the gradual and imperceptible encroachment by subsequent appropriators upon the rights of a prior appropriator will not permit the invoking of the statute as against the latter.

11. SAME-ABANDONMENT.

The provisions of the statute of Wyoming that failure to use water appropriated for a period of two years is to be construed as an abandonment applies to a voluntary act, and not to an enforced discontinuance. 12. SAME-ENFORCEMENT OF RIGHTS-LACHES.

One is not guilty of laches who complains of hostile diversion, and receives water when the same is turned down to him from time to time, or who is prevented from the use of water appropriated by him by gradual diminution through hostile diversions, unless such diversions continue with the acquiescence, knowledge, and consent of such appropriator.

13. SAME ESTOPPEL.

One who goes upon a stream and diverts water must take notice of all prior appropriations, whether made pursuant to statutory notice or otherwise. The volume of water in the stream and the visible supply is notice of all waters appropriated, and where one takes subsequently to another of the waters of a stream he cannot invoke the doctrine of estoppel as against a prior appropriator on the ground that such appropriator has stood by and permitted him to build up improvements on the strength of diversion of the water, for the reason that one is as much estopped as the other; the facts being within the knowledge of both.

14. SAME-DAMAGES.

Where various persons along a stream divert water in violation of the rights of a prior appropriator, without any community of action, nothing other than nominal damages can be awarded in a suit in equity to restrain the defendants from diverting the water.

(Syllabus by the Court.)

See 123 Fed. 618.

McConnell & McConnell, James R. Goss, and Fred H. Hathorn, for complainant.

McConnell & McConnell and James R. Goss, for intervener.
George W. Pierson, and O. F. Goddard, for defendants.

WHITSON, District Judge. Sage creek is a tributary of the stream designated in these proceedings as Stinking Water river, but geographically known by the euphonious name of Shoshone. This creek rises in the state of Montana, and flows into that river in the state of Wyoming. The complainant, a citizen and resident of Wyoming, is the owner of 160 acres of agricultural land situated in that state, which is riparian to Sage creek. He settled in the year 1887 under the homestead law, and in due course received a patent dated the 12th day of February, 1902. The land being arid in character, and requiring irrigation for the raising of agricultural crops, in April, 1887, complainant constructed a ditch by means of which he diverted water for the irrigation of it.

The intervener, Howell, alleges in his complaint that he is a citizen of the state of Wyoming. It is shown that he is the owner of 200 acres of agricultural land in that state of like character to that of the complainant. He constructed a ditch in August, 1890, for the irrigation of his land, and both the complainant and the intervener have used the

water diverted by them ever since their respective diversions, except when prevented by the diversions of the defendants. The intervener has made entry and holds a final receipt. As to whether his land is riparian to Sage creek does not appear from the record. The defendants are all citizens and residents of the state of Montana. They claim the waters of Sage creek and Piney creek, its tributary, by virtue of diversions made by them, and the use of the water so diverted; they deny the rights of the complainant and intervener upon grounds which will hereinafter more fully appear, but are subsequent in time to both. Complainant seeks to enjoin the defendants from the diversion of water from Sage and Piney creeks in Montana to his deprivation of the use of the waters of Sage creek in Wyoming, and the intervener seeks like relief.

The cause was referred to the master, who has reported the testimony, together with his findings of fact and conclusions of law. Those findings to which exceptions have been taken, and those tendered and not found, need only be considered in a general way, leaving a specific mention of them to subsequent proceedings to be had in accordance with this opinion. One of the pivotal points upon which the case largely turns is the finding that the complainant had not at the time of the hearing complied with the laws of the state of Wyoming relating to the appropriation of water, and the conclusion that he is not entitled to any injunctive relief for that reason. As this incidentally involves the jurisdiction of the court, and as it is challenged upon other grounds, naturally, the power to consider the case must first be inquired into. 1. Jurisdiction. The objection to jurisdiction is threefold: (a) The complainant filed no notice as a claimant to the waters of Sage creek, as required by the laws of Wyoming, and the master concluded that the filing of such notice was a prerequisite to the making of a valid appropriation. Relying upon that fact and the conclusion thus reached, it is contended that the jurisdiction fails because it cannot rest upon the citizenship of the intervener, claimed by the defendants to be the same as that of themselves, and, the complainant having failed to establish any right, it cannot rest upon his citizenship, and therefore a dismissal of the suit must follow. This involves the question whether complainant is an appropriator. It is conceded by his counsel, as the master found, that he did not comply with the statutory requirements of Wyoming. The inquiry is, could one seeking to make an appropriation at the time the complainant diverted and used water from Sage creek acquire the right to its use without complying with the statutes of that state? An appropriation of water consists in the taking or diversion of it, and its application to some beneficial purpose. "Appropriation" is a much abused word. It is often loosely spoken of as the preliminary step-such as filing a notice, making a claim to the water, or the like but in its legal significance is embodied not only the claim to the water, but the consummation of that claim by actual use. Long before the enactment of any statute in the arid states or territories, the custom of taking water had ripened into the right to use it. Jennison v. Kirk, 98 U. S. 456, 25 L. Ed. 240; Atchison v. Peterson, 20 Wall. 507, 22 L. Ed. 414; Basey et al. v. Gallagher, 20 Wall. 670, 22 L. Ed.

452; Broder v. Water Company, 101 U. S. 274, 25 L. Ed. 790. After the custom had been fully established, statutes were enacted for the purpose of protecting appropriators by furnishing a public record, thereby avoiding disputes over priorities. It cannot be said that these statutes were enacted for the purpose of enabling the appropriator to claim by relation to the date when work was begun, because that was the rule prior to any legislation upon the subject, if the work was prosecuted with reasonable diligence. Long on Irrigation, § 51; Irwin v. Strait et al. (Nev.) 4 Pac. 1215; Board of Commissioners v. Leonard (Colo. App.) 34 Pac. 583; Kelly v. Water Company, 6 Cal. 109; Nevada Ditch Company v. Bennett (Or.) 45 Pac. 478, 60 Am. St. Rep. 777; Murray v. Tingley (Mont.) 50 Pac. 725; Moyer v. Preston (Wyo.) 44 Pac. 848, 71 Am. St. Rep. 914; Cole v. Logan (Or.) 33 Pac. 569. But the rule of relation was in a measure uncertain in its application, in that what constituted reasonable diligence in the completion of the work was a matter within the sound discretion of the courts. Again, the appropriator who initiates his right by statutory notice is required to designate the amount of water claimed, the purpose for which it is to be used, if for irrigation, the land upon which it is to be applied, etc., thus affording information to other intending appropriators, and giving constructive notice as to the amount of water which has already been claimed from the common source of supply. But where one has actually diverted water, and is using it, the right to its use may, by analogy, be likened unto the doctrine. that one purchasing real estate must take notice of the rights of those in possession, notwithstanding the recording statutes. Water diverted from a stream naturally diminishes the volume. One seeking to acquire the right to the use of water must take notice of the amount available and visible, and it must be conclusively presumed that he inquires into the extent of the supply from which the water is to be drawn, and how that supply has been diminished by others whose rights are prior in time. These statutes were never intended to destroy the right of appropriation by methods other than those defined by them. Their only effect is to deny the power of an appropriator who fails to file the notice required, to claim as of the date of the beginning of his work; the penalty for such failure being to limit the right to the time when the water is actually applied and used. Long on Irrigation, § 39, expresses the principle in this language:

"The statutes did not change the rule as to what constitutes an appropriation, but their object was simply to preserve evidence of the appropriator's rights, and to regulate the doctrine of relation back. In accordance with these principles, it is held that one who fails to comply with the statutory requirements, but who actually diverts water, and applies it to a beneficial use, in the absence of any conflicting adverse claim, acquires a valid title thereto, which cannot be devested by another appropriator, who complies with the terms of the statute after the former has completed his appropriation. Where the statutory requirements have not been complied with, the rights of the appropriator, which, but for the statutes, would relate back to the commencement of the work of appropriation, relate back only to the completion of the work; this being the only change wrought in the law by the statutes."

These views are sustained by numerous authorities: Murray et al. v. Tingley, 50 Pac. 723, 20 Mont. 260; Wells v. Mantes et al. (Cal.) 34 Pac. 324; Cruse v. McCauley (C. C.) 96 Fed. 370; DeNecochea v. Curtis (Cal.) 20 Pac. 563; reaffirmed 22 Pac. 198; Burrows v. Burrows et al. (Cal.) 23 Pac. 146; Watterson v. Saldunbehere (Cal.) 35

Pac. 432.

We are now to inquire whether any law of the territory of Wyoming or custom prevailing there prevented an appropriation other than by notice duly filed; for, if not, complainant has brought himself within the general rule by which his rights must be measured. At the date he began the use of water the statute of the territory precluded the giving of evidence by one claiming to be an appropriator in any case involving his right, unless there had been a compliance with the requirement of filing notice of his claim with the officer therein designated.

The Supreme Court of Wyoming, referring to this statute in Moyer v. Preston, 44 Pac. 845, 71 Am. St. Rep. 914, said:

"The contemporary construction placed upon that statute although the question was not presented to this court, we understand to have been that the act itself provided the penalty for the failure to file the required statements, viz, that in any adjudication of water rights evidence would not be received in behalf of any person until he had filed the statements. The object of these particular provisions was obviously the establishment and preservation of a record of water rights, which had become in many instances of great value. The section requiring such statements to be filed in the offices of the county clerk and clerk of court was repealed in 1888, and another provision substituted, providing for the filing of the statements in the office only of the county clerk, who is ex officio register of deeds; and in 1890, when this requirement was abrogated, and the whole matter was transferred to the office of the state engineer, where the primary records were to be kept, the section of the statute of 1886, fixing the penalty for the failure to file the statements, was repealed. The law of 1890 required the clerks of court to transfer to the office of the state engineer all certificates of county surveyors as tomeasurements of ditches which had been provided for under another statute of 1886, afterwards repealed; but the act of 1890 made no disposition of the statements of owners which had been filed with the clerks of court."

The statute having been repealed, the complainant cannot comply with its provisions. Its repeal removed the only obstacle to the assertion of his right in court. He could, therefore, at the present time give evidence in a controversy in Wyoming relating to the subject-matter of this suit, and hence he cannot be denied a remedy in this court. which would be accorded him within the jurisdiction of the forum by whose laws his rights as an appropriator must be governed. Nor is there anything in the Constitution or laws of Wyoming which can be construed as a devesture of the right which the complainant acquired by virtue of his use of the water, or which can prevent him from the assertion of it.

Article 8, § 3, of the Constitution of Wyoming reads as follows:

"Priority of appropriation for beneficial uses shall give the better right. No appropriation shall be denied except when such denial is demanded by the public interests."

Section 895 of the Revised Statutes of that state expressly recognizes priority in the use of water.

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