Arizona republican., 1902-09-07

of congress as it is expressed, or neces- sarily implied in its legislation.
 Originally. it must be conceded. the national government owned as a pro- prietor, all the lands. and consequently all the waters within our territorial limits. Certain possible exceptions relative to Spanish and Mexican grants do not affect the question:
 No individual could acquire any right whatever. even that of simple occupa- ton. to enter these lands or take the waters. without the consent of the pro prietor (the governmenO.- Congress is the only agency of the proprietor to authorize the disposition of either the land or the water. Until 1866 congress had not expressed itself on the subject of the appropriation of water, and then it only merely recognized what had be- fore only been tolerated-the acquisi- ton of such rights by custom. But these customs do not concern us. and need no further notice. for they never prevailed in this valley as rule of property, no matter what the practice may have been. because before 1866 and before the earliest settlement of the valley. and before the establishment of Arizona as a territory. we had express local legislation on the subject. Gus tom cannot prevail against the unques- tioned policy of the government. nor can it prevail against expressed legis- lation, even though the power of legis- lation were merely a delegated oney if the delegated power was exercised within the terms of it's grant, expressed or implied.
 The earliest legislation in this terri tory recognized the right of appropri- ation of water from the streams, lakes, etc. for among other things, the culti- vation of it's soil, and recognized that appropriators were entitled to priority of use of the water appropriated, in the order of the times or their appropri- ation, and. I think, by necessary in- ference, the fact of the right being appurtenant to the land, for which it was appropriated, as the right was linn ited expressly to the owners or occu- pants of the lands.
 In 1877 congress recognizing the arid conditions in a number of the states and territories and wishing to promote the settlement of those states and ter ritories. offered additional inducements to settlers by the enactment of what was commonly known as the "desert land law" Pursuing the long settled policy of having actual tiller5 of the soil as the owners of it's dom9 in con gress provided by that law that the entryman could acquire title by paying a nominal sum per acre and for the reclamation and cultivation of the nat urally desert land, authorized him to appropriate water from the public sources of supply and gave priority of right to such appropriators, in the order of the times of the appropriation and upon proof of such reclamation and the permanent right to the use of water the government transmitted its title by the same deed of both land and water to the entryman.
 The judicial expression in this terri | tory has never been otherwise thar | that rights to the use of water are prioi as the appropriations were made ir point of time, and that they are appur-
 tenant to the land for which the ap-
 propriat tions were made. This is fail
 interpretation of the legislation and 1: