SEC. 2337. Where non-mineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface-ground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary requirements as to survey and notice as are applicable to veins or lodes; but no location hereafter made of such non-adjacent land shall exceed five acres, and payment for the same must be made at the same rate as fixed by this chapter for the superficies of the lode. The owner of a quartz-mill or reduction-works, not owning a mine in connection therewith, may also receive a patent for his mill-site, as provided in this section. Patents for lands, &c. non-mineral 10 May, 1872, v. 17, p. 96. See §§ 2320, 2324. c. 152, s. 15, Proof must be furnished that the land required is non-mineral, Mill sites. but in a conflict as to whether land is agricultural or mineral in character, the evidence must shew that the land is more valuable for mining than for agriculture, the burden of proof being on the miner (L. O. Feb., 1872), when however land has once been patented as non-mineral all minerals under it pass by the patent (L. O. July 10, 1873). The expenditure required by this Act need not be. on the mill site where there is a lode-claim also (L. O. July, 1872). If there is a lode on the ground applied for as a mill site, the applicant may obtain a patent to the mill site upon abandoning that part of it which contains the lode (L. O. Aug. 1874). It is also advisable, in order to have a supply of timber, that a pre-emptive claim for timber lands should be located at the same time as, and in connnection with, the mining claim, even though all the timber on the surface of the mining claim passes to the patentee by virtue of his patent. What condiof may be made tions of sale SEC. 2338. As a condition of sale, in the absence of necessary legislation by Congress, the local legislature lature. by local legis- any State or Territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent. 26 July, 1866, This section confers on State Courts concurrent jurisdiction with Congress. Vested rights to use of water way for canals. 26 July, 1866, c. 262, s. 9, Every State and Territory has exercised the permission granted by this section, and passed laws relating to the working of mines, drainage, flow of tailings, &c. The easements include rights of way for the purpose of hauling ores, &c., across claims, and rights of way for water courses, ditches, sluices, &c.; this section, in short, gives each State the power to enact the fullest laws on the subject-even a Mining Code, if necessary-and confers a concurrent jurisdiction with Congress (Yale, 371). But no question can arise under this as to the control which a State Court can exercise over a title derived from the U.S. These conditions shall be expressed as the tenure under which the title is held; for if such conditions were not expressed, doubt would arise as to the power of the State to legislate on the subject. The enactments themselves are not set out in the patent, but only the conditions of this section. SEC. 2339. 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 recognised 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; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. Previous to this, the Courts of California had refused to recog- Water rights nise these rights (Yale, 211, 380). The object of this section was to require persons who constructed ditches over another's claim, even though on a part of the public domain, to shew a necessity for such a ditch, and to pay the occupier for the damage done (Noteware v. Sterns, 1 Mont. 313). It used to be thought, in England, that a prior appropriation of in England. natural water gave a title thereto by occupancy. But it is now settled law that any appropriation which injures any other owner must be established as an easement, and may be resisted until so established. Injurious appropriation can only be established by time (Mason v. Hill, 5 B. & A. 1). The right of drawing, discharging, or conducting water from its natural bed by artificial channels over another person's land is an easement, and may be acquired by express grant, or uninterrupted user (Bainbridge on Minerals, 89). In California, the doctrine of the prior appropriation of water prevailed before the passing of the Act of Congress, and extended to other enterprises as well as mines (Yale, 309), but since 1866, Congress has recognised the title by priority of possession. [See Cal. Code, title "Water Rights," p. 64, infra.] Doctrine of prior appropriation of water in America. This right of prior appropriation, unlike the right to a lode-claim Not limited in on a prior location, is not limited in quantity, nor does it depend quantity. upon local laws, as to its acquisition or forfeiture. It may be abandoned, but it is not held upon any condition by which it may be lost. So, also, it is held independently of the purpose for which it is appropriated, provided the purpose be useful. Atchison v. Peterson (20 Wallace (Sup. Court) 508), Basey v. Gallagher (Ib. 670), and Irwin v. Phillips (5 Cal. 140), are the leading cases on the subject of prior appropriation of water. In the first of these cases it was held that the doctrines of the Common Law as to riparian ownership are inapplicable, or applicable only to a limited extent, to the necessities of mines, and inadequate to their protection; Provided only purpose useful. Common Law doctrine of riparian ownership not law in California. Ditch may be extended. Appropriation relates back to commencement of work. Patents, preemptions, and homesteads subject to vested and prior appropriation gives the better title to running waters to the extent in quantity and quality necessary for the uses to which the water is applied, and what constitutes a diminution of the quantity or deterioration in the quality of the water depends on the special circumstances of each case. See also Battle Ditch Co. v. Vaughin, 11 Cal. 143. This doctrine is based on priority of time, and admits an appropriation of water for ever, of quantity unlimited except by the use for which it is taken, and extends even to diverting the whole stream, and destroying the riparian rights of settlers along the banks (Yale, 195). But once taken, the quantity may not be increased as against a subsequent appropriator (Irvin v. Phillips, 5 Cal. 140; Lobdell v. Simpson, 2 Nev. 274). If, however, the water is discarded and becomes derelict, it may be appropriated by subsequent parties (McKinney v. Smith, 24 Cal. 274); but not so the tailings (Jones v. Jackson, 9 Cal. 237). As to what amounts to appropriation, see Kelly v. The Natoma Water Co., 6 Cal. 105; constructive appropriation is sufficient (Conger v. Weaver, 6 Cal. 548; Attwood v. Fricot, 17 Cal. 37), but the water must be taken for a useful purpose, and intended for use within a reasonable time (Weaver v. Eureka Lake Co., 15 Cal. 272); however, after the water has been once appropriated, the flume may be extended beyond its original terminus, although no useful purpose is served by the extension (Correa v. Frietas, 42 Cal. 341; Woolman v. Garringer, 1 Mont. 535). The right to the water relates back to the time of the commencement of work on the flume or ditch, provided due diligence be used in the work, but not otherwise (4 Nev. 534). If the mining claim comprise the river bed, its owner, if he be the first locator, may build a dam across the river in order to work his claim, although by so doing he floods other claims along the banks; such damage being damnum absque injuria (Stone v. Farquharson, 46 Cal. 218). SEC. 2340. All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water-rights, or rights to ditches and reservoirs used in connection with such water-rights, as may have been accrued wateracquired under or recognised by the preceding section. rights. 9 July, 1870, c. 235, s. 17, v. 16, p. 218. SEC. 2341. Wherever, upon the lands heretofore designated as mineral lands, which have been excluded from survey and sale, there have been homesteads made by citizens of the United States, or persons who have declared their intention to become citizens, which homesteads have been made, improved, and used for agricultural purposes, and upon which there have been no valuable mines of gold, silver, cinnabar, or copper discovered, and which are properly agricultural lands, the settlers or owners of such homesteads shall have a right of pre-emption thereto, and shall be entitled to purchase the same at the price of one dollar and twenty-five cents per acre, and in quantity not to exceed one hundred and sixty acres; or they may avail themselves of the provisions of chapter five of this Title, relating to "HOMESTEADS." By § 2258 of the Revised Statutes (Act of September, 1841, s. 10) "the following classes of lands, unless otherwise specially provided by law, shall not be subject to the rights of pre-emption, to wit:1. Lands included by any reservation by any treaty, law, or proclamation of the President for any purpose. 2. Lands included within the limits of any incorporated town, or selected as the site of a city or town. 3. Lands actually settled and occupied for purposes of trade and business, and not for agriculture. 4. Lands on which are situated any known salines or mines." Minerals in the Indian territory are not reserved by the U.S., and the Land Office has no control over mineral-bearing lands therein (L. O., June, 1873). Mineral lands in which no valuable mines are discovered, open to home steads. 26 July, 1866, See § 2342. Lands excepted from preemption laws Mines in Indian E |