No judgment or decree of the highest court of a territory can be
reviewed in this Court in matter of fact, but only in matter of
law.
The filing of a homestead entry of a tract across which a stream
of water runs in its natural channel with no right or claim of
right to divert it therefrom, confers a right to have the stream
continue to run in that channel, without diversion, which right,
when completed by full compliance
Page 133 U. S. 542
with the requirements of the statutes on the part of the settler
and the issue of a patent, relates back to the date of the filing
and cuts off intervening adverse claims to the water.
The legislation of Congress upon this subject reviewed.
This suit was commenced by Daniel Sturr against Charles W. Beck
by a complaint filed in a district court of the Territory of
Dakota, seeking an injunction against the defendant from
interfering with an alleged water right and ditch of the
complainant and the use of the water of a certain creek through the
same, and for damages alleged to have been sustained by
interference which had already taken place. The allegations of the
complaint were denied in the answer of the defendant so far as
inconsistent with its statements, and the facts in regard to the
matters set up in the complaint were averred by the defendant as he
claimed them to be, with a prayer for an injunction against the
complainant from trespassing upon his land and diverting the water
of the creek and from keeping and maintaining the ditch on his
land, and for damages and costs. The cause was tried by the court
upon an agreed statement of facts, it being stipulated that the
court might make its findings of fact and conclusions of law on
such agreed statement with the same effect as if the facts therein
contained had been proven in court. The court thereupon proceeded
to make its findings of fact and conclusions of law as follows:
"
Findings of Fact"
"1st. That the plaintiff, Daniel Sturr, made a homestead filing
or entry of the S.E. 1/4, N.W. 1/4, E. 1/2, S.E. 1/4, and S.W. 1/4,
S.E. 1/4, of section 35, township 7 N., of range 3 E., B.H.M., on
the 15th day of May, 1880, and thereafter at the United States land
office at Deadwood, D.T., made final proof or entry thereof on the
10th day of May, 1883, having settled thereon in June, 1877, and he
has resided thereon continuously ever since, cultivating at least
seventy acres thereof, and has received a patent for said land from
the United States."
"2d. That one John Smith made a homestead filing or entry of the
W. 1/2, S.E. 1/4, S.W. 1/4, N.E. 1/4, and lot 2 of section 2,
Page 133 U. S. 543
township 6 N., of range 3 E., B.H.M., on the 25th day of March,
1879, and thereafter at the United States land office at D.T., made
final proof or entry thereof on the 10th day of May, 1883, having
settled thereon in March, 1877, and resided thereon until he sold
the same to defendant, Beck, in May, 1884, and has received a
patent for said land from the United States."
"3d. That on or about the 15th day of May, 1880, the plaintiff,
Daniel Sturr, without any grant from John Smith, the occupant and
claimant, as above stated, went upon the homestead claim of John
Smith, above described, and located a water right on said Smith's
homestead, claiming the right to divert 500 inches, miner's
measurement, of the waters of False Bottom Creek, then, and long
prior thereto, flowing over and across said land in its natural
channel, and to carry the same by means of a ditch to and upon his
own homestead claim, immediately adjacent."
"4th. That said plaintiff posted a written notice at the point
of said proposed diversion, claiming the right to divert said
water, and caused a copy of the same to be filed in the office of
the Register of Deeds in and for Lawrence County, Dakota, on the
9th day of May, 1881, and the same was recorded in Book 14, p. 468,
of the records of said county."
"5th. That immediately thereafter, the plaintiff constructed a
ditch from the point of such diversion across the John Smith
Homestead, and diverted and conveyed not less than 300 inches of
the waters of said False Bottom Creek to and upon his said land
adjacent, and there used the same for irrigating his crops growing
thereon whenever the same was necessary until interfered with by
the defendant in the summer of 1886."
"6th. That on May 1, 1884, John Smith conveyed his said
homestead to the defendant, Charles W. Beck, by warranty deed,
purporting to convey the fee without any reservation, whereupon the
plaintiff entered into the possession thereof and has so remained
ever since."
"7th. That in the spring of 1886, the defendant, Beck, notified
the plaintiff, Sturr, to cease diverting the waters of False Bottom
Creek from their natural channel upon defendant's
Page 133 U. S. 544
said land, and forbade him maintaining his said ditch upon
defendant's said land for that purpose."
"8th. That the custom existing, and which has existed in
Lawrence County ever since its settlement, recognizes and
acknowledges the right to locate water rights and to divert,
appropriate, and use the waters of flowing streams for purposes or
irrigation when such location, diversion, and use do not conflict
or interfere with rights vested and accrued prior thereto."
"9th. That neither John Smith nor the defendant Beck ever made
any water right location claiming the waters of False Bottom Creek,
and had not, prior to the said location thereof by the plaintiff,
Daniel Sturr, ever diverted the said waters from their natural
channel, where they had been accustomed to flow."
"10th. That said John Smith, on the second day of February,
1882, recited, in the written contract of that date made with the
plaintiff, Daniel Sturr, that the latter was the owner of the Elm
Tree water right, which was the said water right located as
aforesaid by said Sturr on the 15th day of May, 1880."
"11th. That the use of said water for irrigation is beneficial
and valuable to the person or persons owning or possessing the
same."
"
Conclusions of Law"
"1st. That at the time of the location of the water right made
upon John Smith's homestead by the plaintiff, Daniel Sturr in May,
1880, a prior right to have the waters of said False Bottom Creek
flow in the regular channel of said creek over and across said land
had vested in John Smith by virtue of his homestead filing or entry
made on the 25th day of March, 1879, he having made final proof or
entry thereafter."
"2d. That said vested right, so acquired by said John Smith, was
conveyed to the defendant, Charles W. Beck, by warranty deed, on
May 1, 1884."
"3d. That the plaintiff, Daniel Sturr, by his location and
diversion of the waters of False Bottom Creek, so made by him upon
the homestead of said John Smith on the 15th day
Page 133 U. S. 545
of May, 1880, acquired no right, as against the defendant Beck,
to divert said waters, or to maintain a ditch upon defendant's land
for that purpose."
"4th. That the patent issued to John Smith for the premises
mentioned related back to the date of his making his homestead
filing or entry of said premises on the 25th day of March,
1879."
"5th. That the plaintiff can take nothing by this action."
Judgment in favor of the defendant was entered dismissing the
complaint upon the merits and awarding costs.
To the tenth finding of fact and to conclusions of law Nos. 1,
2, 3, and 4 plaintiff duly excepted, and also to the judgment and
decree, and filed his motion to set aside certain of the findings
of fact and conclusions of law, and to adopt others named in their
places, and also for a new trial, which motions were severally
overruled, and he excepted. Plaintiff thereupon prosecuted an
appeal to the supreme court of the territory, and assigned as error
that the court erred "in its finding of fact No. 10, and in not
correcting the same as requested by plaintiff in his motion to
correct said finding;" in the conclusions of law Nos. 1, 2, 3, and
4, respectively; in denying the motion for a new trial, and
"because the decision of the court is against law." The judgment of
the district court was affirmed by the supreme court, which
rendered the following opinion:
"The judgment of the lower court is affirmed. The court holds
that the homesteader was the prior appropriator of the water right,
and the plaintiff has no right to enter upon the prior possession
of the defendant, under his H. E., for the purpose of appropriating
any portion of the running streams and creeks thereon."
An appeal was then taken to this Court.
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
Page 133 U. S. 546
With the notice of appeal and appeal bond, appellant filed his
own affidavit, and that of another, that the ditch and water right
in controversy were reasonably worth $7,500. After the record was
filed here, a motion was made by appellee to dismiss, accompanied
by several affidavits to the effect that such value was far less
than $5,000, and upon this motion counter-affidavits have been
presented. We have carefully examined all these papers, and
conclude that the motion should be overruled.
No judgment or decree of the highest court of a territory can be
reviewed by this Court in matter of fact, but only in matter of
law, and we are confined, in this case, to determining whether the
court's findings of fact support the judgment.
Idaho &
Oregon Land Co. v. Bradbury, 132 U. S. 509; 18
Stat. 27, 28.
John Smith settled on the tract of land described in March,
1877, and continued to reside thereon until he sold and conveyed it
by warranty deed to Beck, the appellee. He made his homestead
filing or entry March 25, 1879, and his final proof, May 10, 1883,
and received a patent from the United States. The waters of False
Bottom Creek flowed, in its natural channel, over and across
Smith's homestead, and in May, 1880, Sturr, the appellant, went
upon that homestead, located a water right thereon, and constructed
a ditch which diverted the waters of the creek to his own adjacent
land. Beck went into possession under the deed from Smith, and in
1886 notified Sturr to cease diverting the water and maintaining
the ditch, and this suit thereupon followed.
It is not contended on behalf of Sturr that he is entitled to
maintain the ditch because he constructed and used it, or that
Smith's acquiescence amounted to anything more than a revocable
license. There was no grant, nor an adverse enjoyment, so long
continued as to raise a legal presumption of a grant. But it is
insisted that the doctrine of prior appropriation of water on the
public land, and its beneficial use, protects him from
interference, because neither Smith nor Beck made any water right
location, claiming the waters of False Bottom Creek, and had never
diverted those waters prior to Sturr's location.
Page 133 U. S. 547
If, however, Smith obtained a vested right to have the creek
flow in its natural channel by virtue of his homestead entry of
March 25, 1879, and possession thereunder, or if his patent took
effect, as against Sturr, by relation, as of that date, then it is
conceded that Sturr cannot prevail, and the judgment must be
affirmed.
That the right of a riparian proprietor of land bordering upon a
running stream to the benefit to be derived from the flow of its
waters is a natural incident to, or one of the elements of, his
estate, and that it cannot be lawfully diverted against his
consent, is not denied; nor does the controversy relate to the just
and reasonable use as between riparian proprietors. The question
raised is whether Smith occupied the position of a riparian
proprietor, or a prior appropriator, as between himself and Sturr,
when the latter undertook to locate his alleged water right. At
that time, Smith had been in possession for three years, and his
homestead entry had been made over a year.
A claim of the homestead settler, such as Smith's, is initiated
by an entry of the land, which is effected by making an application
at the proper land office, filing the affidavit, and paying the
amounts required by sections 2238 and 2290 of the Revised Statutes.
Under section 2291, the final certificate was not to be given or
patent issued "until the expiration of five years from the date of
such entry." But under the third section of the Act of May 14,
1880, c. 89, 21 Stat. 141, providing that
"Any settler who has settled, or who shall hereafter settle, on
any of the public lands of the United States, whether surveyed or
unsurveyed, with the intention of claiming the same under the
homestead laws, shall be allowed the same time to file his
homestead application, and perfect his original entry in the United
States land office, as is now allowed to settlers under the
preemption laws to put their claims on record, and his right shall
relate back to the date of settlement the same as if he settled
under the preemption laws,"
the ruling of the Land Department has been that if the homestead
settler shall fully comply with the law as to continuous residence
and cultivation, the settlement defeats all
Page 133 U. S. 548
claims intervening between its date and the date of filing his
homestead entry, and in making final proof, his five years of
residence and cultivation will commence from the date of actual
settlement. Under section 2297 of the Revised Statutes, it is
provided that upon change of residence or abandonment, as therein
mentioned, before the expiration of the five years, "then and in
that event the land so entered shall revert to the government." It
was held by Attorney General McVeagh, in an opinion to the
Secretary of War, July 15, 1881, that
"where a homestead entry of public lands has been made by a
settler the land so entered cannot, whilst such entry stands, be
set apart by the President for a military reservation, even prior
to the completion of full title in the settler;"
that
"upon the entry, a right in favor of the settler would seem to
attach to the land which is liable to be defeated only by failure
on his part to comply with the requirements of the homestead law in
regard to settlement and cultivation. This right amounts to an
equitable interest in the land, subject to the future performance
by the settler of certain conditions, in the event of which he
becomes invested with full and complete ownership; and, until
forfeited by failure to perform the conditions, it must, I think,
prevail, not only against individuals, but against the
government."
1 L.D. 59, 60. And many rulings of the Interior Department
sustain this view. These official utterances are entitled to great
respect at the hands of this Court, as remarked by MR. JUSTICE
LAMAR in
Hastings & Dakota Railroad Co. v. Whitney,
132 U. S. 357,
132 U. S.
366.
In
Witherspoon v.
Duncan, 4 Wall. 210,
71 U. S. 218,
it is said by Mr. Justice Davis, speaking for the Court, that
"in no just sense can lands be said to be public lands after
they have been entered at the land office, and a certificate of
entry obtained. If public lands before the entry, after it, they
are private property. . . . The contract of purchase is complete
when the certificate of entry is executed and delivered, and
thereafter the land ceases to be a part of the public domain. The
government agrees to make proper conveyance as soon as it can, and
in the meantime holds the naked legal fee in trust for the
Page 133 U. S. 549
purchaser, who has the equitable title."
It may be said that this language refers to the certificate
issued on final proofs; but if the word "entry," as applied to
appropriations of land, "means that act by which an individual
acquires an inceptive right to a portion of the unappropriated soil
of the country, by filing his claim,"
Chotard v.
Pope, 12 Wheat. 586,
25 U. S. 588,
the principle has a wider scope.
In
Hastings & Dakota Railroad Co. v. Whitney, ubi
supra, an affidavit for the purpose of entering land as a
homestead was filed on behalf of one Turner in a local land office
in Minnesota on May 8, 1865, Turner claiming to act under section 1
of the Act of March 21, 1864, 13 Stat. 35, now section 2293 of the
Revised Statutes of the United States. As a matter of fact, Turner
was never on the land, and no member of his family was then
residing or ever did reside on it, and no improvements whatever had
ever been made thereon by anyone. Upon being paid their fees, the
register and receiver of the land office allowed the entry, and the
same stood upon the records of the local land office, and upon the
records of the General Land Office uncancelled until September 30,
1872. Between May, 1865, and September, 1872, Congress made a grant
to the State of Minnesota, for the purpose of aiding in the
construction of a railroad from Hastings through certain counties
to a point on the western boundary of the state, which grant was
accepted by the Legislature of the State of Minnesota, and
transferred to the Hastings and Dakota Railroad Company, which
shortly thereafter definitely located its line of road by filing
its map in the office of the Commissioner of the General Land
Office. All these proceedings occurred prior to the 30th of
September, 1872. This Court declared that the almost uniform
practice of the department has been to regard land upon which an
entry of record, valid upon its face, has been made, as
appropriated and with drawn from subsequent homestead entry,
preemption, settlement, sale, or grant until the original entry be
cancelled or be declared forfeited, in which case the land reverts
to the government as part of the public domain and becomes again
subject to entry under the land laws, and it was held that whatever
defects there might be in
Page 133 U. S. 550
an entry, so long as it remained a subsisting entry of record
whose legality had been passed upon by the land authorities and
their action remained unreversed, it was such an appropriation of
the tract as segregated it from the public domain, and therefore
precluded it from subsequent grant, and that this entry on behalf
of Turner "attached to the land" in question within the meaning of
the act of Congress making the grant, 14 Stat. 87, c. 168, and
could not be included within it. And, as to mere settlement with
the intention of obtaining title under the preemption laws, while
it has been held that no vested right in the land as against the
United States is acquired until all the prerequisites for the
acquisition of title have been complied with, yet rights in parties
as against each other were fully recognized as existing, based upon
priority in the initiatory steps, when followed up to a patent.
"The patent which is afterwards issued relates back to the date of
the initiatory act, and cuts off all intervening claimants."
Shepley v. Cowan, 91 U. S. 330,
91 U. S.
337.
Section 2339 of the Revised Statutes, which is in substance the
ninth section of the Act of Congress of July 26, 1866, 14 Stat.
253, provides:
"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 herein specified is
acknowledged and confirmed."
This section, said MR. JUSTICE MILLER in
Broder v. Water
Co., 101 U. S. 274,
101 U. S. 276,
"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."
By section 17 of the Act of July 9, 1870, amendatory of the Act
of July 26, 1866, it was provided, among other things, that
"All patents granted, or preemption or homesteads allowed, shall
be subject to any vested and accrued water rights, or rights to
ditches and reservoirs used in connection with such
Page 133 U. S. 551
water rights, as may have been acquired under or recognized by
the ninth section of the act of which this act is amendatory."
16 Stat. 218, c. 235, ยง 17. And this was carried forward into
section 2340 of the Revised Statutes, and Smith's patent was
subject to that reservation.
The 9th section of the act of 1866 is referred to by MR. JUSTICE
FIELD in
Atchison v.
Peterson, 20 Wall. 507,
87 U. S. 512,
and in the opinion it is said that,
"the government being the sole proprietor of all the public
lands, whether bordering on streams or otherwise, there was no
occasion for the application of the common law doctrine of riparian
proprietorship with respect to the waters of those streams."
When, however, the government ceases to be the sole proprietor,
the right of the riparian owner attaches, and cannot be
subsequently invaded. As the riparian owner has the right to have
the water flow
ut currere solebat, undiminished except by
reasonable consumption of upper proprietors, and no subsequent
attempt to take the water only can override the prior appropriation
of both land and water, it would seem reasonable that lawful
riparian occupancy, with intent to appropriate the land, should
have the same effect.
The Dakota Civil Code contains this section:
"SEC. 255. The owner of the land owns water standing thereon, or
flowing over or under its surface but not forming a definite
stream. Water running in a definite stream, formed by nature over
or under the surface may be used by him as long as it remains
there, but he may not prevent the natural flow of the stream, or of
the natural spring from which it commences its definite course, nor
pursue nor pollute the same."
Levisee's Dakota Codes, 2d ed. 781.
By section 527, which is section 1 of an act relating to water
rights, passed in February, 1881, it is provided:
"Any person or persons, corporation or company who may have or
hold a title or possessory right or title to any mineral or
agricultural lands within the limits of this territory shall be
entitled to the usual enjoyment of the waters of the streams or
creeks in said territory for mining, milling, agricultural, or
domestic purposes,
provided that
Page 133 U. S. 552
the right to such use shall not interfere with any prior right
or claim to such waters when the law has been complied with in
doing the necessary work."
Levisee's Codes 861.
Section 650, Code Civil Procedure is as follows:
"Any person settled upon the public lands belonging to the
United States on which settlement is not expressly prohibited by
Congress or some department of the general government may maintain
an action for any injuries done the same, also an action to recover
the possession thereof, in the same manner as if he possessed a fee
simple title to said lands."
Levisee's Codes 171.
The local custom is set forth in the findings to have consisted
in the recognition and acknowledgment of
"the right to locate water rights, and to divert, appropriate,
and use the waters of flowing streams for purposes of irrigation
when such location, diversion, and use do not conflict or interfere
with rights vested and accrued prior thereto."
Thus, under the laws of Congress and the territory and under the
applicable custom, priority of possession gave priority of right.
The question is not as to the extent of Smith's interest in the
homestead as against the government, but whether, as against Sturr,
his lawful occupancy under settlement and entry was not a prior
appropriation which Sturr could not displace. We have no doubt it
was, and agree with the brief and comprehensive opinion of the
supreme court to that effect.
The judgment is affirmed.
MR. JUSTICE BREWER was not a member of the Court when this case
was submitted, and took no part in its decision.