But the evidence is very uncertain as to which channel then carried the most water. This ditch S was cut across the west channel and dammed it up, so that from that time on for many years the water ceased to flow down the west channel, and consequently had a tendency to obliterate all the channels which formerly carried the water about respondent's southeast corner. It appears that the respondent, soon after ditch S was dug, extended it to his southeast corner, and the water ran there for years. It was afterward agreed between the respondent and Martin Robbins, who owned the land now owned by appellant, that respondent might divert a part of the water through ditch S to his southeast corner, and Martin Robbins might convey a part of the water to his barn, which was done by ditch E, he (Robbins) joining said. ditch with Simmons' at his line. This continued for some five years, when the parties quarreled about the water, each claiming a right to use it all; Coffman claiming a right to take it all to his southeast corner, and Robbins claiming the right to have it all flow through his land wherever he chose. It is claimed that if Coffman had been taking a part of the water to his southeast corner, it was by a license which was subject to be revoked by Robbins at any time. It is also claimed that if he had been taking the water by an agreement to divide the water, which had been acted on by both parties for a number of years, such agreement is by parol and not binding, being void by the Statute of Frauds. And, also, if it was binding so far as to be upheld by a court of equity, both parties having repudiated it when they quarreled, it became void by their acts.

We think that if the parties divided this water by mutual consent, and then, on pursuance of such agreement, Coffinan dug ditches to receive one half of it and dispose of it at his southeast corner, and Robbins did the like on his land, and each took and enjoyed the water for years under this agree ment, such a contract should be upheld in equity, for the agreement was a legitimate and proper one, and as the consideration (which was the digging the ditches and taking care of the water) was paid and the possession given, the agree ment could be enforced in equity; and if these equitable rights once attached they would not be destroyed by a mere

quarrel between the parties, for neither gained or lost a right by this disagreement. Such disagreement is only evidence tending to show that the agreement never existed, or had not been performed. And we think the evidence shows that the agreement was made and that the rights under it still exist, unless Thomas Robbins bought without notice. The evidence shows that when he purchased the land this water was running as divided in the ditches, and Coffman was in possession taking his half to his southeast corner, and Robbins must be presumed to have purchased knowing this fact. We think, therefore, that these parties have each a right to one half of this water, as decreed by the circuit court.

We also think that the evidence shows that both parties have been at fault in seeking to evade the agreement by which the water was divided, for it appears that the respondent claimed that he had a right to take all the water to his southeast corner and deprive Robbins of all the water, and that both parties have been injured by turning the water from the ditches and letting it flow at will. It seems to have been an unfortunate quarrel between neighbors, by which both have suffered. And we think that while the court is called on to settle the rights of the parties to the water, as neither party is without fault, and both have been injured, neither should recover damages, and the decree will be modified in this respect, and appellant will be entitled to costs in this court, and respondent in the circuit court.

1. Use of water for twenty-one years for irrigating purposes gives title by prescription at common law: Wheatley v. Chrisman, 24 Pa. St. 298; Post NUISANCE.

2. The right to divert and appropriate water for irrigation recognized and allowed: Basey v. Gallagher, 1 M. R. 683; Barnes v. Sabron, 4 M. R. 673.

3. The right to the water as affected by issue of United States Patent: Vansickle v. Haines, 7 Nev. 249; Post WATER.

4. Irrigating land, considered as evidence or notice of claim and possession: Courtney v. Turner, 12 Nev. 345.

5 Irrigating ditch protected by injunction from injury by miners: Rupley v. Welch, 4 M. R. 243. And see Derry v. Ross, 1 M. R. 1.

6. The limit of the right of an irrigating appropriator is the amount which he can use; not the amount which he turns out of its channel and wastes: Dick v. Caldwell, 14 Nev. 167.

7. The measure of capacity of a ditch: Barnes v. Sabron, 4 M. R. 673.

8. Pollution of irrigation ditches by mills: Crane v. Winsor, 2 Utah, 248; Post NUISANCE. By mines: Wheatley v. Chrisman, 24 Pa. St. 298; Post NUISANCE.

9. Claim of irrigator to allow his waste water to overflow upon lands of others below: Blaisdell v. Stephens, 7 M. R. 599.

10. Fraudulent allegation of ownership of water: Banta v. Savage, 7 M. R. 113.

11. Ditch rights as appurtenances to land: Id.; Smith v. Logan, 1 W. C. R. 391.

12. Contest between ranch and municipality as to right to water for irrigation: Feliz v. Los Angeles, 58 Cal. 73.

13. Prior appropriator may not drain an entire stream, even though he may need all the water: Learned v. Tangeman, 3 West C. R. 153.

14. The property in ditch rights considered: Tripp v. Overocker, 7 Colo. 72.

15. Upon the question of the rights of riparian proprietors as affected by the necessarily hostile doctrine of appropriation, see Farley v. Spring Val. Co. 58 Cal. 142; Lux v. Haggin, 4 W. C. R. 256; Vansickle v. Haines, 7 Nev. 249; Post WATER; Basey v. Gallagher, 1 M. R. 683; Atchison v. Peterson, 1 M. R. 583. It is impossible to sustain the doctrine of riparian rights as expressed in Union Co. v. Ferris, and Union Co. v. Dangberg, 8 M. R. 90, 113, with the cases which maintain the right of appropriation: R. S. M.

16. Mandamus allowed to compel Ditch Company to supply water: Golden Co. v. Bright, 5 West C. R. 805.

(4 Sawyer, 178.

TRAFTON V. NOUGUES.

Circuit Court, District of California, 1877.)

Transfer of causes. Under the clause "arising under the constitution and laws of the United States," found in section two, 18 Stat. 470, of the act to determine the jurisdiction of the United States courts, passed March 3, 1875, only such suits can be transferred from the State to the national courts as involve a disputed construction of the constitution and laws of the United States.

1

1 Federal jurisdiction in mining suits. In an action to recover for trespass upon a gravel gold mining claim, and seeking an injunction restraining the working of the claim by defendant, a petition was filed by the defendant for the removal of the cause to the United States court, in which it was alleged that the defendant located and held his claim under the several acts of Congress relating to the subject, but it did not appear that any question was involved other than is usual in the trial of rights to mining claims or which might not be determined by the local laws, rules and customs, without reference to, the acts of Congress: Held, that the petition did not show such a state of facts as to warrant the transfer, and the case was, on motion, remanded to the State court. Petition for transfer-What it should state. A petition for transfer should state the exact facts, and distin tly point out what the question is, and how and where it will arise, which gives jurisdiction to the court, so that the court can determine for itself, from the facts, whether the suit does really and substantially involve a controversy within its jurisdiction.

Petition alleging legal conclusion, insufficient. An allegation in a petition for removal that "the rights of the plaintiff as against defendant must be determined under the laws of Congress of the United States,' is a statement of a legal conclusion rather than a fact; it states merely the opinion of the petitioner and will not justify a transfer. Motion to remand case to the State court, whence it came, on the ground that it does not appear from the facts alleged, either in the pleadings or the petition asking a transfer, that the case is one arising under the constitution or laws of the United States, within the meaning of the act of Congress of March 3, 1875.

C. A. TUTTLE, for motion.

M. MULANY, contra.

SAWYER, Circuit Judge.

I have had no little difficulty in satisfactorily construing

1 Transfer of suit supporting adverse claim: Chambers v. Harrington, 111 U. S. 350; Frank Co. v. Larimer Co., 1 M. R. 1:0.

this act. In the broad sense claimed by some, nearly all cases relating to title to lands would be swept into the national courts; for in the new States, in every action of ejectment involving a question as to the real title, one party or the other goes back to a patent or other grant under the laws of the United States. Since the passage of the act of Congress of 1866, and subsequent acts upon the same subject, expressly declaring the public lands to be free and open to exploration and occupation for mining purposes, subject to the local laws, regulations and customs of miners, also authorizing a sale and patent to parties establishing a right under such local laws, regulations and customs, it seems to be claimed, on this broad principle, that all suits relating to disputes about mining claims may be transferred to the national courts. But, clearly, the great majority of such cases only involve a litigation of precisely the same questions as were litigated in those classes of cases for the many years since the acquisition of California prior to the passage of those acts of Congress; and they turn upon no disputed construction of the constitution or statutes of the United States. In fact, where a patent is authorized to be issued to the possessor under these acts in a contested case, the statute refers the parties to the ordinary tribunals of the country to determine, under the local laws and customs, irrespective of the acts of Congress, which party is entitled to the mining claim, and the patent issues to the party so determined to have the right: The 420 Mining Company v. The Bullion Mining Company, 3 Sawyer, 634. Thus the rights of the parties are determined by the laws, regulations and customs of the locality outside the acts of Congress, without any discussion or controversy as to the construction of those acts. Since some of this class of cases transferred to this court were retained, but with no little hesitation, the Supreme Court of the United States has decided several cases which afford a rule for the future, and which, it seems to me, exclude jurisdiction in many cases which the bar appears to have supposed could be transferred. The case of McStay v. Friedman, 92 U. S. R. 723, was a case in which one of the parties relied: 1. On the Statute of Limitations; 2. On title acquired through the city of San Francisco, under the well known Van Ness Ordinance, and the act of the leg