Osgood v. El Dorado Water & Deep Gravel Mining Co.

California Supreme Court Dec 2, 1878 No. No. 6061Published

Before: McKinstry

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Holding. A party claiming water rights on public land must provide notice that explicitly declares an intent to appropriate specific waters as part of a unified scheme; absent such notice and diligent prosecution of work, no priority is established against a subsequent patent holder.

Issues

Whether work performed on one stream can be attributed to the appropriation of a separate, disconnected stream to establish priority.
Whether a notice of appropriation must explicitly declare an intent to include multiple streams in a single scheme to maintain priority against a subsequent land patent holder.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The notice of itself gives no title, but points one subsequently desiring to acquire rights in the water to work done with reference to the design indicated by the notice.”

Synopsis

Waters—Notice of Intent to Appropriate—Belation of Title.— One who posts notice of intention to appropriate the waters of a stream on the public domain, and proceeds with due diligence to actual appropriation, will be deemed to have appropriated the water and been in possession of the same, and the rights appurtenant thereto, from the date of posting the notice.

Waters—Notice of Intent to Appropriate—Conflicting Bights. Where one, from the time of posting notice claiming certain waters, pursues the work of appropriation with due diligence until it is accomplished, the act of Congress of 1866 operates to confirm his claim as of the date of posting the notice, although in the period intervening between the notice and the completion of the work, another person acquires, as against the United States, the title to land through which the stream ran in its natural course.

Waters—Appropriation of Several Streams as Part of System.— In order that work done in appropriating the waters of one stream may be counted toward appropriating the waters of another disconnected stream, the posted notice must declare in terms that the purpose is to acquire the right to the waters of both streams.

McKINSTRY, J. 1 Under and by virtue of the provisions of the act of Congress of July 26, 1866, “granting the right of way to ditch and canal owners over public land,” etc., one who has actually appropriated the waters of a stream on the public lands before the acquisition by another of the United States title to a tract of land on the stream below has acquired the exclusive right to the use of the waters appropriated as against such inferior proprietor.

2. It is assumed for the purposes of this case that one who has posted a proper notice and pursued work with due diligence until the appropriation is complete has, under the act of Congress of July 26, 1866, the exclusive right to the water, as against a person who, after the notice and before the actual appropriation was completed, acquired the government title to a tract of land through which the stream ran in its natural course.

3. With this assumption the plaintiff should have had a decree upon the facts of the present case.

4. Whether, according to the local rules and customs recognized by the courts or the judicial decisions of this state, work done toward appropriating the waters of one or more streams on the public lands may ever be considered and treated as work done toward appropriating another separate and independent stream, query.

5. Assuming that it may, yet in order that the work done toward taking out the waters of the one or more streams shall be counted as done toward appropriating the other separate and disconnected stream, the notice posted upon the last must distinctly declare the intention to appropriate the waters of all, and that the water is to be diverted from each as part of a scheme which includes the appropriation of the waters of all.

Under the rules and customs recognized by the courts and the judicial decisions of the state, and as against one attempting to appropriate the same water while the works of the first claimant are yet incomplete, a party posting a notice of intention to appropriate the water of a stream on the public do[49]main, and proceeding with due diligence to make actual appropriation, has been deemed to have appropriated the water and to be in possession of the same and the rights appurtenant thereto from the date of the posting of the notice.

The defendant bases its claim to the waters of Echo lake and the outlet therefrom, or “Osgood creek,” upon the act of Congress of July 26, 1866 (U. S. Stats, at Large, p. 253). The ninth section of that act 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 decisions of the 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,- provided, however, that whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage 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.”

Osgood v. El Dorado Water & Deep Gravel Mining Co.

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