A., a water and mining company, constructed in 1853, over public
land in California, a canal, and its right, which it has ever since
exercised, to use the water for mining, agricultural, and other
purposes has been uniformly recognized by the local customs, laws,
and the decisions of the courts of that State. B. is now the owner
of lands through which the canal runs. He acquired title to one
portion of them by a preemption settlement made after the passage
of the act of July 28, 1886, 14 Stat. 251, and to another portion
under the grant made to the Central Pacific Railroad Company, by
the amended Pacific Rail road Act of July 2, 1864. 13 Stat. 358. In
his suit against A., B. seeks the recovery of damages, and also
prays that the canal may be declared a nuisance, and as such
abated.
Held:
1. That B.'s title under the preemption laws is subject to A.'s
right of way under said act of 1888.
2. That said act expressly confirmed to the owners of such
canals a preexisting right, which the government had by its policy
theretofore recognized. A. had, therefore, within the meaning of
said act of 1864, a "lawful claim" to the continued use of the
water, which was not defeated or impaired by the grant of the lands
to said railroad company.
The facts of the case and the legislation bearing upon them are
set out in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
The Natoma Water and Mining Company owns a canal for conducting
water and distributing the same for mining, agricultural, and other
uses, which is some fifteen miles long. It was completed in the
year 1853, and since then has been in constant and successful
operation under the control and in the possession of the company.
Its cost was about $200,000. The court of the first instance on the
trial of this cause found also as a fact that the canal and
branches have, ever since their construction, been uniformly
acknowledged and recognized by the local customs, laws, and the
decisions of the courts of the State of California, in which they
lie, and that the land covered by them is indispensable to their
use. At the time they were finished, and for many years after, in
fact up to the passage of the Pacific Railroad Acts of 1862 and
1864, the land
Page 101 U. S. 275
through which they ran was the public property of the United
States. A portion of it is included in the grant made by that act
to what has since, by change of name and consolidation of corporate
franchises, become the Central Pacific Railroad Company, and the
plaintiff in error, by proper conveyance from said company, has
become the owner of it. A small part of it is traversed by the
canal, and he brought this action in the proper court of that state
against said water and mining company, to have the canal declared a
nuisance and abated, and to recover $12,000 damages on account of
its maintenance on his land.
The case was submitted to the court, which found the facts we
have stated, and others that will be referred to.
The inception of the title of plaintiff to the land described in
his petition, other than that derived from the railroad company,
was a declaratory statement for preemption, filed Aug. 6, 1866, by
himself for one tract, and a similar statement filed Sept. 14,
1866, by his brother, Jacob Broder, for another. But prior to
either of these dates, to-wit, on the 26th of July of the same
year, Congress enacted a law, the purpose of which was to deal with
the rights of miners who had theretofore, without objection, and
with the tacit encouragement of the United states, discovered,
developed, and mined the public lands. 14 Stat. 251. The ninth
section of that act contains this declaration:
"That wherever, 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."
P. 253.
As to the canal of the defendant, so far as it ran at that date
through the land of the United states, this act was an unequivocal
grant of the right of way, if it was no more. As the plaintiff's
right to the lands patented to him and his brother commenced
subsequently to this statute, he took the title subject to this
right of way, and cannot now disturb it.
In reference to his lands held under conveyance from the
railroad company, it might be a question of some difficulty
Page 101 U. S. 276
whether the right was so far vested in that company before the
passage of this act of 1866, that the latter would be ineffectual
as regards these lands. But we do not think that the defendant is
under the necessity of relying on that statute.
It is the established doctrine of this Court 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
the 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. We are of
opinion that the section of the act which we have quoted was rather
a voluntary recognition of a preexisting right of possession,
constituting a valid claim to its continued use, than the
establishment of a new one. This subject has so recently received
our attention, and the grounds on which this construction rests are
so well set forth in the following cases, that they will be relied
on without further argument:
Atchison v.
Peterson, 20 Wall. 507;
Basey v.
Gallagher, id., 670;
Forbes v. Gracey,
94 U. S. 762;
Jennison v. Kirk, 98 U. S. 453.
We turn now to the Act of July 2, 1864, 13 Stat. 356, which
makes the final grant to the Pacific railroad companies, the
acceptance of which by the companies bound them to its terms, and
we find in sect. 4, which enlarges the grant of lands made by the
act of 1862, this clause of reservation from the general terms of
the grant:
"Any lands granted by this act, or the act to which this is an
amendment, shall not defeat or impair any preemption, homestead,
swamp land, or other lawful claim, nor include any government
reservation or mineral lands, or the improvements of any
bona
fide settler on any lands returned or denominated as mineral
lands, and the timber necessary to support his said improvements as
a miner or agriculturist."
P. 358.
We have had occasion to construe a very common clause of
reservation in grants to other railroad companies, and in aid of
other works of internal improvements, and in all of them we have
done so in the light of the general principle that Congress, in the
act of making these donations, could not be supposed to
Page 101 U. S. 277
exercise its liberality at the expense of preexisting rights,
which, though imperfect, were still meritorious, and had just
claims to legislative protection.
See
Wolcott v. Des Moines
Company, 5 Wall. 681;
Williams
v. Baker, 17 Wall. 144;
Leavenworth, Lawrence,
& Galveston Railroad Co. v. United states, 92 U. S.
733.
In construing the grant to the Pacific railroad companies this
principle is eminently applicable. The lands were vastly greater in
extent than those embraced in any previous grant, and surrounded by
much more varied circumstances. The number and diversified
character of the interests which might be affected largely exceeded
any with which Congress had theretofore dealt.
Hence we have in the clause of reservation a much more liberal
and extended protection of preexisting rights than in the
reservation clause which had become a formula in previous
grants.
Not only are prior reservations made by the government, and
rights of preemption excepted, but the improvements of bona fide
settlers on land returned or denominated mineral lands, and the
timber necessary to support the miners' improvements, and any other
lawful claim, are unaffected by the grant. Of course, this means
any honest claim evidence by improvements or other acts of
possession.
The defendant had been in possession of the claim in question
for twelve years when this act was passed, and had expended
$200,000 upon it. It was of great utility, nay necessity, to a
large agricultural and mining interest, and we cannot doubt that it
was of the class which this section declared should not be defeated
by the grant which Congress was then making.
As the judgment of the Supreme Court of California was based on
this principle, it is
Affirmed.