Krall v. United States

ROSS, Circuit Judge. The decision of the court below was in large measure based upon tbe idea that the government, as the sovereign power, has, in respect to the waters of nonnavigable streams upon the public lands, a superior right to any which citizens can acquire. “Save such Indian title to the public lands [242] as it chooses to recognize,” said the court below in its opinion, “it has such absolute title to them and the waters therein that it may do with them as it will, including their withdrawal from all claim or appropriation by the citizen, when not already granted or conveyed.” That the government, in the exercise of its sovereign power, may condemn for its uses the private property of the citizen, no one will deny; but we cannot at all agree that it can withdraw or take, without compensation, any right to the waters of a stream upon the public lands acquired by the citizen under its laws or by its sanction. By the ninth section of the act of July 26, 1866, congress provided that: “Whenever by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed.” 14 Stat. 253. . But prior to the enactment of thiá statute it was the established doctrine of the supreme court of the United States— “That rights of miners who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged, and was bound to protect, before the passage of the act of 1866.” It was so expressly held in the case of Broder v. Water Co., 101 U. S. 274, 276. And it was in that case further held that the act of July' 26, 1866, was “rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.” That doctrine of prior appropriation in respect to the waters upon the public lands was in full force when, according to the record in the case at bar, the plaintiff in error went upon the public lands and appropriated, for the purpose of irrigating his own land, a certain amount of the water of Cottonwood creek, there flowing. His appropriation was, of course, subject to the prior appropriation and use of the waters of the stream made by the government officials for the purposes of the military post reservation, which consisted of 640 acres of land, and was located on the stream in question below the point of the appellant’s diversion. The military reservation was established by presidential proclamation in January, 1868,—subsequent not only to the time when the government, by its conduct in recognizing and encouraging the local custom of appropriating the waters of the nonnavigable streams upon the public lands for agricultural and other useful purposes, had become bound to recognize and protect a right so acquired, but subsequent, also, to the passage of the act of congress of July 26,1866, making statutory recognition of that right, and confirming the holder in its continued use. The creation of the reservation for military post purposes did not destroy or in any way affect the doctrine of appropriation thus established by the government in respect to the water’s of the nonnavigable streams [243] upon the public lands. They continued subject to appropriation for any useful purpose. The appropriation of a part of those waters for the uses of the military post secured it in the use of the portion so appropriated, but it did not take from others the right to make such appropriation above the reservation as would not interfere with its prior appropriation. In Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. 350, relied on by the court below, the appropriator entered upon the land which the grantor of the plaintiff in that suit had previously entered in the land office, and to which he had acquired a vested right, and took the water there flowing, which the court held was part and parcel of the entryman’s laud, and which the appropriator could not lake. We do not think the supreme court by that case intended to do away with the doctrine of prior appropriation as previously recognized by its decisions and by the statute of July 26, 1866; for in its opinion in Sturr v. Beck it express! y referred to that statute and to the cases of Atchison v. Peterson, 20 Wall. 507, 512, and Broder v. Water Co., 101 U. S. 274, 276, the doctrine of which cases and of Basey v. Gallagher, 20 Wall. 682, in our opinion, requires a reversal of the judgment of the court below. If by the decision in Sturr v. Beck the court had intended to overrule its former decisions, it does not seem to us it would have cited them without disapproval. The judgment is reversed, and the cause remanded for further proceedings in accordance with the views here expressed.