diminished in quantity, and below appellant's ranch could divert the same for purposes of irrigation as against him. The counsel for appeilant, in their brief, say they claim their rights by virtue of the above statute. There are many reasons for holding that this very statute recognizes or establishes the doctrine of appropriation of water for irrigation, limiting, however, the right to appropriate to persons owning land upon the banks of the stream from which the same is taken, and also limiting the quantity of water he can appropriate to what is necessary to irrigate his land. The permission given by that act to take water out of its natural channel for purposes of irrigation, where it damages landholders below the point where the water is diverted, is incompatible with the common law doctrine in the case of riparian proprietors. Section 4 of the act I do not think, in any way, militates against this view. Any tribunal, governed by the established principles of law, making an apportionment of water in accordance with what is just and equitable, would be compelled to hold that the one who first located the land, and claimed the water, was entitled to sufficient to irrigate his land; for equity declares that he who is first in time is first in right. In this case the respondent was first in time, and, giving the construction to the statute indicated above, under it he would undoubtedly be entitled to the water in dispute. For these reasons the judgment of the court below is affirmed with costs. Exceptions overruled. UNION MILL AND MINING COMPANY V. FERRIS ET AL. (2 Sawyer, 176. U. S. Circuit Court, District of Nevada, 1872.) 1 Government title to streams in public land. Before title to public lands is acquired from the government of the United States, no occupancy or appropriation of the water flowing through the same, nor State legislation, nor decision of State courts, can in any manner qualify, limit, restrict or affect the operation of the government patent. 1Basey v. Gallagher, 1 M. R. 683. The government has an unqualified right to dispose of the public land; a stream of running water is part and parcel of the land through which it flows, and the use of it as an incident to the soil passes to the patentee, who can only be deprived of it by grant, or by the existence of circumstances from which it is the policy of the law to presume a grant. The Statute of Limitations does not run against the United States. Presumptive grant of water-rights. If the owner of a tract of land for which he holds patent from the government, through which land a stream of water flows, has, by reason of the adverse possession and use of the stream by an upper proprietor, presumptively granted to the latter the use of the stream for purposes of irrigation, such grant does not affect lands on the same stream acquired by the lower proprietor after such presumptive grant had its origin. The Ditch Act construed with reference to prior patents. The act of Congress of July 26, 1866 (R. S. § 2339), is not retrospective in its operation, and does not in any manner qualify or limit rights acquned under a patent issued before the act became a law; but rights acquired by priority of possession were by that act confirmed, and are entitled to protec tion as against one claiming as riparian proprietor merely, through a patent subsequently issued, and when no right had vested in the patentee before the passage of the act. 2 Use of water, when adverse. The use of water by a riparian proprietor is not adverse unless it appears that its use causes such injury to another as would justify an action for its redress. Use of water by riparian proprietor. A riparian proprietor may make a reasonable use of the water of a stream for purposes of irr'g tion, b t before he can acquire a right to the water by adverse use or prescription, the burden is on him to show that his use has amounted to an action'able invasion of the right of another. Reasonable use-How determined. Each riparian proprietor may make a reasonable use of the stream, and what this is depends upon the circumstances of each case. It would not be permissible to take the water at some distance above, and return the surplus at some distance below the land of the proprietor using it, if thereby a considerable portion of the water is wasted to the injury of the proprietors below. Before SAWYER, Circuit Judge, and IIILLYER, District Judge. Bill in equity to restrain the diversion of water. SUNDERLAND & WOOD, WILLIAMS & BIXLER, and A. C. ELLIS, for plaintiff. R. S. MESICK and CLARKE & LYONS, for defendant. 1Compare Farley v. Spring Valley Co., 58 Cal. 142, and Lux v. Haggin, 4 West C. R. 256. 2 Union Co. v. Dangberg, 8 M. R. 113. By the Court, HILLYER, J. This is This suit was commenced on the fourth day of August, 1871, to enjoin the defendant from an alleged wrongful diversion of water from Carson river. Albert Ferris, having since the commencement of the suit acquired the interest of Peter Lightle, one of the original defendants, has been substituted as a defendant. Lightle answered separately, and the present decision involves only the questions at issue between the complainant and the defendant Albert Ferris. one among several causes instituted by the complainant against numerous residents along the Carson river, in Carson valley, and has been submitted as, in several respects, a test case. It appears that in the spring of 1861, B. F. Wheeler and others located, as a possessory claim, the land upon which the Merrimac mill is situated. In May of that year the construction of a mill was commenced, and it was completed. in September following. A dam and mill-race, for conducting the water to the mill, were made at the same time. The possessory claim to this land, with the mill and water privilege, have been conveyed to the complainant. Since its completion, the mill has been propelled by the water of the Carson river; and, saving temporary stops, has been constantly run for the purpose of reducing metalliferous ores. complainant is now owner in fee of the land upon which the mill, dam and mill-race are situated, the foundation of its title being patents emanating from the United States. Two of these, for forty acres each, are dated September 15, 1864; and the third, for one hundred and sixty acres, is dated October 10, 1866. The waters of Carson river naturally flow through each of these parcels of land. The In the year 1858, one T. F. Bowmer entered upon a portion of the public land situated about twenty miles above the point where the complainant's mill stands. This possessory claim was, after several mesne conveyances, finally conveyed to Peter Lightle, the grantor of Ferris. Lightle continued in the actual possession of the land, and on the 15th June, 1865, obtained a patent from the United States for 158 33-100 acres, and on June 26, 1869, a patent from the State of Nevada for 80 acres. This is arable farming land, and the east fork of Carson river flows naturally through both parcels. In 1860, Lightle and Bowmer, being then joint possessors of this land, diverted a portion of the water of the east fork of the river, and conducted it by means of a ditch onto this land, where it was used for irrigation. Water has been used, to some extent, continuously on this land since that year in the irrigating season. Prior to the issue of the patents therefor, the land of both parties was public, and the property of the United States. The defendant admits a diversion of water, and claims a right to do so on the grounds, firstly, of prior appropriation and use; secondly, of prescription; and thirdly of riparian proprietorship, It is also claimed that the act of Congress of July 26, 1866, confirms the right of defendant, acquired by priority of appropriation. We consider it to be entirely clear that before the title to these lands was acquired from the government of the United States, no occupancy or appropriation of the water by either party, no State or Territorial legislation or rule of decision established by the State courts in controversies between occupants of the public land, without title from the government, can in any manner qualify, limit, restrict or affect the operation of the government patent; that the government has a perfect title to the public land and an absolute and unqualified right of disposal; that a stream of running water is part and parcel of the land through which it flows, inseparably annexed to the soil, and the use of it as an incident to the soil passes to the patentee, who can be deprived of it only by grant, or by the existence of circumstances from which it is the policy of the law to presume a grant; that the government, as proprietor of the land through which a stream of water naturally flows, has the same property and right in the stream. that any other owner of land has, be it usufructuary or otherwise, and that a statute of limitations does not run against the United States. Upon the foregoing propositions it is not deemed necessary to enlarge. They seem incontestable, and we shall content ourselves with a reference to the case of Vansickle v. Haines, 7 Nev. R. 249, wherein the authorities are collected, and the law stated in the clearest and most satisfactory manner, and the case of Gibson v. Chouteau, 13 Wall. 93. In Vansickle v. Haines, the court held: That the United States is the absolute and unqualified proprietor of all the public land to which the Indian title has been extinguished; that running water is primarily an incident to the ownership of the soil over which it naturally flows; that the government patent conveys to its grantee not only the land through which a stream naturally flows, but also the stream; that neither Territorial nor State legislation can in any wise impair or modify the right of the government to the primary disposal of the soil; that statutes of limitation do not run against the State, so that no use of water while the title to the land is in the government, can avail the defendant as a foundation of title by prescription, or defeat or modify the title conveyed to the grantee by his patent. After examination we are constrained to say, in the language of Mr. Justice GARBER, in that case, that not only the weight of authority, but all the authorities support these propositions. We propose now to consider how the question of prescription would stand if the act of Congress of July 26, 1866, had not been passed; secondly, the effect of that act; and thirdly, whether there has in fact been any such adverse enjoyment as warrants the presumption of a grant. And firstly, on September 15, 1864, one David Gammel obtained a patent for what is now the upper portion of complainant's land, consisting of two forty acre tracts. On October 10, 1866, Oliver Racicot obtained a patent for the lower portion, embracing one hundred acres. The complainant's mill is on the lower premises, the dam and race on the upper. As none of the time during which the defendant used the water prior to the issue of the patents can be counted as part of his adverse possession, his prescriptive title could have had no legal commencement as against Gammel's title, before September 15, 1864, nor as against the title of Racicot, before October 10, 1866. From September 15, 1864, to the commencement of this suit, is more than five years; and from October 10, 1866, to its commencement, is less. Thus any prescriptive title to the water must have its origin after September 15, 1864, and before October 10, 1866. Admitting, for this argument, that the defendant had acquired by adverse use a right to divert the water as against the Gammel title, can that affect the title acquired from Racicot, the complainant being now the owner of both titles? A very little examination will show that it can not. What the defendant in |