Murray, C. J., delivered the opinion of the .Court—Burnett, J., concurring.
The only question involved in this case is, whether a party who locates upon and appropriates public lands belonging to the [141]*141United States, is entitled to the use of streams and water-courses naturally flowing through such lands, as against persons subsequently appropriating and using the waters of said streams. By the common law, the proprietor of lands upon the banks of a water-course owns to the middle of the stream, and the proprietor of the lands through which the stream flows is held to be the owner of the bed of the stream, and entitled to the use of the water which flows over his land.
The property in the water, by reason of riparian ownership,» is in the nature of a usufruct, and consists in general not so $ much in the fluid as in the advantage of its impetus. This, however, must depend in a great measure upon the natural as well as the artificial wants of eaóh particular country. The rule is well settled that water flows in its natural channels, and should be permitted thus to flow, so that all through whose lands it passes may enjoy the privilege of using it. A riparian proprietor, while he has the undoubted right to use the water flowing over his land, must so use it as to do the least possible harm to other riparian proprietors.
The uses to which water may be appropriated are: 1st, To supply natural wants, such as to quench thirst, to water cattle, for household or culinary purposes, and, in some countries, for the purposes of irrigation. These must be first sujjplied, before the water can be applied to the satisfaction of artificial wants, such as mills, manufactories, and the like, which are not indispensable to man’s existence. Water is regarded as an incident to the soil, the use of which passes with the ownership thereof. As a general rule, a property in water cannot be acquired by appropriation, but only by grant or prescription.
Having thus stated the fundamental principles upon which this right is founded, it is evident that the only difficulty in this case arises, first, from the fact that the defendant is not the owner in fee of the land, but that the title to it is in the government of the United States; and second, the necessity of laying down some rule consistent with our former decisions, and the policy of the State, which has been to protect mining interests and improvements as far as possible.
In Irwin v. Phillips, which is the leading case upon the subject of the appropriation of water, it was admitted that the lands upon which the mining-claims were situated, and through which the water ditch was located, were government lands, and that the mining-claims were located after the water had been appropriated.
In delivering the opinion of the Court, Mr. Justice Heydenfeldt remarks: “ It is insisted by the appellants that, in this case, the common law doctrine must be invoked, which prescribes that a water-course must be allowed to flow in its natural channel. But upon an examination of the authorities which [142]*142support that doctrine, it will be found to rest upon the fact of the individual rights of landed proprietors upon the stream, the principle being, both at the civil and common law, that the owner of lands on the banks of a water-course owns to the middle of the stream, and has the right, in virtue of his proprietorship, to the use of the water in its pure and natural condition. In this case, the lands are the property either of the State or of the United States, and it is not necessary to decide to which they belong for the purposes of this case. It is certain that, .at the common law, the diversion of water-courses could only be complained of by riparian owners, who were deprived of the use, or those claiming directly under them. Can the appellants assert their present claim as tenants-at-will ? To solve this question it must be kept in mind that their tenancy is of their own creation, their tenements of their own selection, and subsequent, in point of time, to the diversion of the stream. They had the right to mine where they pleased throughout an extensive region, and they selected the bank of a stream from which the water had been already turned for the purpose of supplying the mines at another point.”
Since this decision, a special property has been recognized in water, not in the sense in which the word property is ordinarily used; but the Courts have held, that a right to water as a usufruct, may be acquired by appropriation, as against a subsequent appropriator, who shows no title to the soil; and that by the appropriation of water, and the construction of a canal, the party acquires an easement or franchise, which he may enjoy and protect. If this is an innovation upon the old rules of law upon this subject, it is such a one as the peculiar circumstances of the country, and the immense importance of our mining interest, will justify.
In the case of Starr v. Child, 20 Wend., Judge Bronson, in speaking of the obligations of American Courts to follow the rules of common law, as laid down by the Courts of England, uses the following strong language :
“Although the ebb and flow of the tide furnishes an imperfect standard for determining what rivers are navigable, it nevertheless approximates to the truth, and may answer very well in the island of Creat Britain, for which the rule was made. But such a standard is quite wide of the mark when applied to the great fresh-water rivers of this continent, and would never have been thought of here if we had not found the rule ready made to our hands. How, I think no doctrine better settled, than that such portions of the law of England as are not adapted to our condition, form no part of the law of this State. This exception includes not only such laws as are inconsistent with the spirit of our institutions, but such as are framed with special reference to the physicial condition of a country differing widely from our [143]*143own. It is contrary to the spirit of the common law itself, to apply a rule founded on a particular reason, to a case where that reason utterly fails. Gessante ratione legis, cessat ipsa, lex.”
To proceed, however, with the case before us. If the rule laid down in Irwin v. Phillips, is correct as to the location of mining-claims and water-ditches, for mining purposes, and priority is to determine the rights of the respective parties, it is difficult to see why the rule should not apply to all other cases where land or water had been appropriated. The simple question was, that as between persons appropriating the same land, or land and water both, as the case might be, that the subsequent appropriator takes, subject to the rights of the former.
But an appropriation of land carries with it the water on the land, or a usufruct in the water, for in such cases the party does not appropriate the water, but the land covered with water. If the owners of the mining-claim, in the case of Irwin v. Phillips, had first located along the bed of the stream, they would have been entitled, as riparian proprietors, to the free and uninterrupted use of the water, without any other or direct act of appropriation of the water, as contra-distinguished from the soil. If such is the case, why would not the defendant, who has appropriated land over which a natural stream flowed, be held to have appropriated the water of such stream, as an incident to the soil, as against those who subsequently attempt to divert it from its natural channels for their own purposes.
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Murray, C. J., delivered the opinion of the .Court—Burnett, J., concurring.
The only question involved in this case is, whether a party who locates upon and appropriates public lands belonging to the [141]*141United States, is entitled to the use of streams and water-courses naturally flowing through such lands, as against persons subsequently appropriating and using the waters of said streams. By the common law, the proprietor of lands upon the banks of a water-course owns to the middle of the stream, and the proprietor of the lands through which the stream flows is held to be the owner of the bed of the stream, and entitled to the use of the water which flows over his land.
The property in the water, by reason of riparian ownership,» is in the nature of a usufruct, and consists in general not so $ much in the fluid as in the advantage of its impetus. This, however, must depend in a great measure upon the natural as well as the artificial wants of eaóh particular country. The rule is well settled that water flows in its natural channels, and should be permitted thus to flow, so that all through whose lands it passes may enjoy the privilege of using it. A riparian proprietor, while he has the undoubted right to use the water flowing over his land, must so use it as to do the least possible harm to other riparian proprietors.
The uses to which water may be appropriated are: 1st, To supply natural wants, such as to quench thirst, to water cattle, for household or culinary purposes, and, in some countries, for the purposes of irrigation. These must be first sujjplied, before the water can be applied to the satisfaction of artificial wants, such as mills, manufactories, and the like, which are not indispensable to man’s existence. Water is regarded as an incident to the soil, the use of which passes with the ownership thereof. As a general rule, a property in water cannot be acquired by appropriation, but only by grant or prescription.
Having thus stated the fundamental principles upon which this right is founded, it is evident that the only difficulty in this case arises, first, from the fact that the defendant is not the owner in fee of the land, but that the title to it is in the government of the United States; and second, the necessity of laying down some rule consistent with our former decisions, and the policy of the State, which has been to protect mining interests and improvements as far as possible.
In Irwin v. Phillips, which is the leading case upon the subject of the appropriation of water, it was admitted that the lands upon which the mining-claims were situated, and through which the water ditch was located, were government lands, and that the mining-claims were located after the water had been appropriated.
In delivering the opinion of the Court, Mr. Justice Heydenfeldt remarks: “ It is insisted by the appellants that, in this case, the common law doctrine must be invoked, which prescribes that a water-course must be allowed to flow in its natural channel. But upon an examination of the authorities which [142]*142support that doctrine, it will be found to rest upon the fact of the individual rights of landed proprietors upon the stream, the principle being, both at the civil and common law, that the owner of lands on the banks of a water-course owns to the middle of the stream, and has the right, in virtue of his proprietorship, to the use of the water in its pure and natural condition. In this case, the lands are the property either of the State or of the United States, and it is not necessary to decide to which they belong for the purposes of this case. It is certain that, .at the common law, the diversion of water-courses could only be complained of by riparian owners, who were deprived of the use, or those claiming directly under them. Can the appellants assert their present claim as tenants-at-will ? To solve this question it must be kept in mind that their tenancy is of their own creation, their tenements of their own selection, and subsequent, in point of time, to the diversion of the stream. They had the right to mine where they pleased throughout an extensive region, and they selected the bank of a stream from which the water had been already turned for the purpose of supplying the mines at another point.”
Since this decision, a special property has been recognized in water, not in the sense in which the word property is ordinarily used; but the Courts have held, that a right to water as a usufruct, may be acquired by appropriation, as against a subsequent appropriator, who shows no title to the soil; and that by the appropriation of water, and the construction of a canal, the party acquires an easement or franchise, which he may enjoy and protect. If this is an innovation upon the old rules of law upon this subject, it is such a one as the peculiar circumstances of the country, and the immense importance of our mining interest, will justify.
In the case of Starr v. Child, 20 Wend., Judge Bronson, in speaking of the obligations of American Courts to follow the rules of common law, as laid down by the Courts of England, uses the following strong language :
“Although the ebb and flow of the tide furnishes an imperfect standard for determining what rivers are navigable, it nevertheless approximates to the truth, and may answer very well in the island of Creat Britain, for which the rule was made. But such a standard is quite wide of the mark when applied to the great fresh-water rivers of this continent, and would never have been thought of here if we had not found the rule ready made to our hands. How, I think no doctrine better settled, than that such portions of the law of England as are not adapted to our condition, form no part of the law of this State. This exception includes not only such laws as are inconsistent with the spirit of our institutions, but such as are framed with special reference to the physicial condition of a country differing widely from our [143]*143own. It is contrary to the spirit of the common law itself, to apply a rule founded on a particular reason, to a case where that reason utterly fails. Gessante ratione legis, cessat ipsa, lex.”
To proceed, however, with the case before us. If the rule laid down in Irwin v. Phillips, is correct as to the location of mining-claims and water-ditches, for mining purposes, and priority is to determine the rights of the respective parties, it is difficult to see why the rule should not apply to all other cases where land or water had been appropriated. The simple question was, that as between persons appropriating the same land, or land and water both, as the case might be, that the subsequent appropriator takes, subject to the rights of the former.
But an appropriation of land carries with it the water on the land, or a usufruct in the water, for in such cases the party does not appropriate the water, but the land covered with water. If the owners of the mining-claim, in the case of Irwin v. Phillips, had first located along the bed of the stream, they would have been entitled, as riparian proprietors, to the free and uninterrupted use of the water, without any other or direct act of appropriation of the water, as contra-distinguished from the soil. If such is the case, why would not the defendant, who has appropriated land over which a natural stream flowed, be held to have appropriated the water of such stream, as an incident to the soil, as against those who subsequently attempt to divert it from its natural channels for their own purposes.
One who locates upon public lands with a view of appropriating them to his own use, becomes the absolute owner thereof as against every one but the government, and is entitled to all the privileges and incidents which appertain to the soil, subiect to the single exception of rights antecedently acquired. He may admit that he is not the owner in fee, but his possession will be sufficient to protect him as against trespassers. If he admits, however, that he is not the owner of the soil, and that the fact is established that be acquired his rights subsequent to those of others, then, asboth rest alike for their foundation upon appropriation, the subsequent locator must take subject to the rights of the former, and the rule, qui prior est in tempore, potior est injure, must apply.
Let us examine the effect of such a rule for a moment, and see if the consequences which the respondent predicts, viz.: the destruction of the use and value of ditch property in the mines, will necessarily fl.ow from it. A has located mining-claims along the bed of a stream, before any water-ditch or flume has been constructed; will any one doubt that he should have the free use of the water, as against subsequent locators of either mining-claims or canals ? Or, suppose he had located a farm, and the water passing through his land was necessary for the purposes of irrigation, is not this purpose just as legitimate as using the water for mining ? It may or may not be equally [144]*144as profitable, but irrigation for agricultural purposes is sometimes necessary to supply natural wants, while gold is not a natural, but an artificial want, or a mere stimulant to trade and commerce.
It is understood, that the location of land carries with it all the incidents belonging to the soil. Those who construct water-ditches will do so with reference to the appropriations of the public domain that have been previously' made, and the rights that have been already acquired, with a full knowledge of their own rights as against subsequent locators.
In the case before us, the plaintiffs are not the proprietors of a ditch constructed for mining purposes, (although we have endea- •" vored to show that this would make no difference.) They claim that they purchased the privilege of the water from one Woods, and conducted the same by means of pipes, etc., to the town of Grass Talley, for the use of the inhabitants. The water in dispute had its source in natural springs rising upon the ranch or farm of Woods, who located the land in 1850. In 1851, the ranch of the defendant which was contiguous to that of Woods, was located, and the water flowed by natural channels upon it. Woods sold the privilege of diverting the water to the Union Water Co., in 1852. At the time of this sale the rights of the defendants had accrued. Woods had no power of disposition over the water; he could use it for the purpose of supplying the wants of himself and his stock; and if there was sufficient, might, without interfering with the rights of those below him, have used a portion for the purposes of irrigation; but he had no right to divert it from its natural channel, or prevent it from flowing upon the lands of the defendants. Evans v. Merriweather, 3 Scam.; and Arnold v. Foot, 12 Wend.
It does not appear, from the evidence in this case, that the water would have flowed through the town of Grass Talley, or that it was the only water which could be obtained for the purpose of supplying the town; neither does it appear that the amount used by defendant for irrigation was so large as to materially diminish the quantity, or render the supply inadequate to the wants of the inhabitants of the town.
The plaintiffs declare as a company, and count upon their appropriation, and not upon their rights as riparian proprietors. This relieves the case of the question, whether granting the defendant had a right to use the water to supply his natural wants, he could use it for the purpose of irrigating his land.
It is urged by the respondent that they have acquired a right to the use of the stream in question by adverse enjoyment or prescription. To acquire a title in this manner, it is necessary that the enjoyment or prescription should have continued for a period corresponding to the time fixed by the Statutes of Limitations as a bar to an entry on land. The period fixed by our statute [145]*145is five years; the plaintiff’s possession has continued but four, so that his right has not yet become complete.
Judgment reversed, and cause remanded.