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may be divested by adverse possession under the statute
of limitations.3

1 Munroe vs. Ivie, 2 Utah 535; see Atchison vs. Peterson, 20 Wall.
507; Hill vs. Smith, 27 Cal. 483.

2 Barkly vs. Tieleke, 2 Mont. 59.

3 Union Water Co. vs. Crory, 25 Cal. 509; Woolman vs. Garringer,
1 Mont. 535, 544.

§ 55. Rights acquired by appropriation.--We have seen that the usufruct is all the right to running waters acquired by appropriation, and that so long as it serves the purpose of its appropriator, and the quantity taken remains undiminished, the original appropriator will have no reason to complain of those who may subsequently divert the water above or below on the same stream.1 But where the water has been diverted into a private ditch for particular purposes, as irrigation, watering stock, or for domestic use, the owner of the ditch has a right as against a subsequent appropriator, to have the water flow in his ditch unaffected by impurities that would render it unfit for the uses to which it was originally applied, or to which it was applied prior to thre later appropriation.2

1 Supra, § 53.

2 Crane vs. Winsor, 2 Utah, 248; Atchison vs. Peterson, 1 Mont. 561; s. c., 20 Wall. 507; Sims vs. Smith, 7 Cal. 148; Butte Canal, &c. Co. vs. Vaughn, 11 Cal. 143.

§ 56. How right established-Remedies.-The law recognizing water rights1 does not attempt to define them or control the manner of their acquisition. But when they are shown to exist, preserves them inviolate.2 Such rights may be established by proof of a local custom, by the authority of an act of the local legislature, or the decisions of courts. The union of the three conditions is unnecessary in any particular case, to the perfection of the right claimed by priority. But in case of

a conflict between claims under a local custom and a statutory regulation, the latter will control. In a proper case the infringement of a right to flowing water or other easement obtained by prior appropriation, will be restrained by injunction.4 But injunction will not issue except in a very strong case, especially where the injuries resulting therefrom will be greater than those relieved against.5 The prior appropriator of a water right may recover damages from one subsequently appropriating the waters of the same stream for injuries to his right.6 But consequential injuries resulting from the reasonable use of the right are generally damnum absque injuria.7 Where several contribute to the injury, so that the damage done by each cannot be apportioned, the injured party will not necessarily be remediless.8

1 Rev. Stat. U. S., § 2339, ante, p. 24.

2 Wixon vs. Bear River, &c. Co., 24 Cal. 367.

3 Basey vs. Gallagher, 20 Wall. 670; Thorp vs. Freed, 1 Mont. 652. 4 Ibid; Fabian vs. Collins, 3 Mont. 215; Barkly vs. Tieleke, 2 Mont. 59; Crane vs. Winsor, 2 Utah, 248; Gregory vs. Nelson, 41 Cal. 278; Rupley vs. Welch, 23 Cal. 452; Bliss vs. Kingdom, 46 Cal.


5 Atchison vs. Peterson, 1 Mont. 561.

6 Sims vs. Smith, 7 Cal. 148; Hill vs. Smith, 27 Cal. 475.

7 Edmonds vs. Chew, 15 Cal. 137.

8 Hill vs. Smith, 32 Cal. 166. Suggestions of SAWYER, J. `

§ 57. Abandonment.-Water rights acquired by appropriation may be lost by abandonment, and such abandonment is purely a question of intention.1 Merely allowing the water to flow back into the natural channel in order to conduct it elsewhere, is no abandonment of the claim to its use. But he must not retake more than his own. And the burden of proof is on him.2

1 Atchison vs. Peterson, supra, § 55; Dougherty vs. Creary, 30 Cal. 290.

2 Butte Canal, &c. Co. vs. Vaughn, 11 Cal. 143; Dougherty vs. Creary, supra.

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SECTION 58-The statute.

59-Patent of reserved lands.

60-Construction by general land office.

§ 58. The statute.-The "act to provide for the sale of the lands of the United States containing coal,"1 whether from the clearness of its provisions, or the lack of interest manifested by prospectors and capitalists in mineral deposits of this character, in the mining districts to which its provisions are peculiarly applicable, has received but meager judicial construction. Its provisions as to extent and manner of entry more nearly accord with the laws and regulations governing the exploration and purchase of placer claims, as to the quantity of land and the manner of setting it apart. But the land taken for deposits of coal must be from that portion of the public domain which has been surveyed, must be by legal subdivisions, and must not be taken so as to include deposits of gold, silver or copper.2

1 Ante, p. 26.

2 Ante, p. 28, § 6 of the act.

§ 59. Patent of reserved lands.--Mineral lands being reserved from entry and purchase for other than purposes of mining for the mineral deposits, if entered, and a patent secured as coal lands, the patent would be subject to cancellation at the suit of the United States as a patent of reserved lands.1

1 United States vs. Stone, 2 Wall. 525.

§ 60. Construction by general land office.-The general land office has found it necessary in construing

this act, to decide that public coal lands could not be entered for patent under the "Timber Culture Act," and that patents so obtained would be canceled.1 Also, that all lands of the general government, containing coal of any kind, were subject to entry, under the provisions of the statute.2

1 5 Landowner, 166, post, § 136.

2 Sickel's Min. Laws, 337. post, § 136.



62-Town sites.

§ 61. Homesteads.-In all cases public lands valuable for minerals are reserved from sale, except as otherwise expressly directed by law.1 This provision of the statute excludes such lands from homestead entry, the sections of the Revised Statutes expressly providing for the manner of appropriation and purchase of mineral lands on the public domain, to the exclusion of all others.

1 Rev. Stat. U. S. § 2318, Act of Congress July 4, 1866, Ch. 166, § 5, ante, p. 13.

§ 62. Town sites.-Title xxxii, Chapter 8, of the Revised Statutes contain the following for the reservation and sale of town sites on the public lands:

§ 2380. Town sites to be reserved.-The President is authorized to reserve from the public lands, whether surveyed or unsurveyed, town sites on the shores of harbors, at the junction of rivers, important portages, or any natural or prospective centers of population. (Act of Congress March 3, 1863, Ch. 80, § 1, v. 12, p. 754.)



§ 2381. Reservations to be surveyed into lots.-When, in
the opinion of the President, the public interests require it,
it shall be the duty of the Secretary of the Interior to
cause any of such reservations, or part thereof, to be
surveyed into urban or suburban lots of suitable size, and
to fix by appraisement of disinterested persons their
cash value, and to offer the same for sale at public outery
to the highest bidder, and thence afterward to be held
subject to sale at private entry according to such regula-
tions as the Secretary of the Interior may prescribe; but
no lot shall be disposed of at public sale or private entry
for less than the appraised value thereof. And all such
sales shall be conducted by the register and receiver of
the land office in the district in which the reservation
may be situated, in accordance with the instructions of
the commissioner of the general land office. (Act of
Congress March 3, 1863, Ch. 80, § 2, v. 12, p. 754.)

§ 2382. Town or city sites in public lands.—In any case
in which parties have already founded, or may hereafter
desire to found, a city or town on the public lands, it may
be lawful for them to cause to be filed with the recorder
for the county in which the same is situated, a plat thereof,
for not exceeding six hundred and forty acres, describing
its exterior boundaries according to the lines of the pub-
lic surveys, where such surveys have been executed; also
giving the name of such city or town, and exhibiting the
streets, squares, blocks, lots, and alleys, the size of the
same, with measurements and area of each municipal
subdivision, the lots in which shall each not exceed four
thousand two hundred square feet, with a statement of
the extent and general character of the improvements;
such map and statement to be verified under oath by the.
party acting for and in behalf of the persons proposing
to establish such city or town; and within one month
after such filing there shall be transmitted to the general
land office a verified transcript of such map and state-
ment, accompanied by the testimony of two witnesses
that such city or town has been established in good faith,
and when the premises are within the limits of an organ-
ized land district, a similar map and statement shall be
filed with the register and receiver, and at any time after
the filing of such map, statement, and testimony in the
general land office, it may be lawful for the President to

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