The avant courier. (Bozeman, Mont.) 1871-1872, 1872-01-04

the oeeupiers are mere tenants at will, is not
applicable and falls to the ground. Conced-
ing the fact that the Government retains the
sriglltto the 6nal disposition Of the soil, and
the waters flowing over the same, and this
result must inevitably follow, and each pur-
chaser from, the Government lands along the
stream acquires all the title Of the grantor,
and this title carries with it property in
the soi and the waters naturally flowing over
the same. Il If this is not the case the prior
appropriation takes title TO the water as
against the Government.
We therefore conclrde that the doctrine
that he who first appropriates the waters Of
a stream can hold the same as against subse-
quent riparian owners, for the purposes of
irrigation and agriculture, is inapplicable
TO lands situate along the banks OF stream
where the titlelto such lands has passed from
the Government to the riparian owners. for the
very act Oh transferring the tislescarries with
it tile freehold, and this includes a title to the
water that flows over Or along the
boundary OF the lands hnstransferrea.
Is there anything i'll the, statutes of the
United States or of the Territory TO conflict
with this view?
The Organic Act, sec. s. in defining the
powers OF the Territorial Legislature, de-
clares that mo laws shall be passed inter-
fering with the primary disposal OF the soil,a
and therefore any laWof the Legislature
that in any manner depreciates the value or
worth of the sod and the property of the
United States therein. is such an interference
With its disposal as would render any such
law llugatofy and void. Aud ii the doctrine
Of prior appropriation, aud the rights incl
dent thereto causes the lends of the Govern
nlent TO become utterly worthless, making it
Impossible to dispose of the same, where be-
fore the application OF such doctrine or the
aeerueitg of suchsrights the lands were valll-
able, such legislation or such customs would
bein conflict with the rights of the United
States and a violation OF the Organic Act.
Does the Act Of Congress July 26, 1866
come in conflict with the position we have
takelx? #l*
That ;ct provides as follows Whenever,
by priority Of possession. rights to the use
of W ter. for mining, ag icuitural, nianutac-
turing. or other purposes, have vested and
accrued, ana the same are recognized and
acknowledged by the local laws, customs
and decisions of courts, the possessors aud
owners ot such vested rights shall be MAIN
tained and protected in the same; and the
right of way for the construction OF bitches
and canals tor the purposes aforesaid is here
by Acknowledged and confirmed. Provided,
however, That whenever after the passage of
this act any person or persons shall, iii the
construction of any ditch or canal, injure or
damage the possession of any settler on the
public domain, the party committing suchin-
jury or damage shall be liable to the party
Injured Tor such injury or damage" 2s
A careful perusal of this section will estab-
lish the fact that the law applies only to the
public domain where the title is sill retained
by the Government and the occupiers thereof
and the settlers thereon are mere tenants at
will. The act declares that if the pos
session of any settler on the. public domain
is injured By any ditch he shall receive COM
pensation for such injury. It is evidently
speaking of the public lands in which the
Government has the title, and having given
the righ4 to enter upon such lands, this law
was designated simply to protect the posses
sorry rights of the tenant at will or the occu-
pier, and does not and cannot apply to lands
in which the Government has alenated its
has conferred upon its grantee all
the title Of the grantor, for the reason that,
after tll.. lands have become the absolute
property Of the private individual or owner,
the Unitod States has no control over them
and cannot legislate this private property in
to or out of such owner S possession or in any
manner disturb him IN his rights,
What are the customs, laws. and decisions
OF the courts in this Territory upon the sub
ject OF priority of possession and water rights
for irrigation and agricultural purposes?
That there is no uniform custom on this
subject, Dis suit and others now pending
can abundantly testify. The first law on the
subject by the Territorial Legislature was
that of Januaryl2. 1861. and this act utterly
the doctrine of prior appropria-
tions, and divides the waters equally between
the riparian owners. This act remained up
on the statute book and in force, and was
called into requisition in 1869, as the proof
herein shows, to define the rights of the
parties tt, this suit and others to the waters
Of Prieklg Pear creek, and although subse-a
auently declared void for some defect by the
Court. and repealed by the Legisla-
t,re of 1870, it subseryes the purpose of show
ing that there was no statute Of the Terri
tory giving priority to the appropriator of
water before or at the time the rights of
.lle parties to this slit became fixed. And
t is further believed that there is no decision
If orr Supreme Court, rs there isnone Of
he Supreme Court Of California. which es-
.ablishes the doctrine Of prior appropriation,
ind the rights thereby aeerueing as applica-
ole to the agricultural districts Of the Terri
,ory.
Hence we say that the law Of Congress of
lss6 does not subvert Or change the view of
his case lis herein expressed.
B. Should this case have been submitted to
jury? iss
III our view Of the case the rights OF the
parties are already fixed by law. and the case
.eeolves itself into All action in the natureo
III actionto prevent waste or an injury to.the
and is purely an actionin equity |
nd rigIltfully tried before the court sitting /
IS chancellor.