Opinion of the Court-Bryan, District Judge.

years before, while these were public lands, the defendant entered thereon and constructed the ditch complained of, and has ever since continuously held exclusive possession and ownership of the lands used for the purposes of the ditch, adversely to the plaintiff and all other persons, for the purpose of supplying water to miners and others; and that this entry, possession and ownership were taken, acquired and held according to the local law of California and under the license of the United States confirmed by the act of Congress of July 26, 1866. The court in deciding the case used the following lucid and terse language:

"As to the canal of the defendant: So far as it ran through the land of the United States, at the date of this act it was an unequivocal grant of the right of way, if it was no more. As the plaintiff's right commenced subsequent to this statute, as to the lands patented to him and his brother, he took the title subject to this right of way and cannot now disturb it..

"We are of opinion that 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, and that the section of the act which we have quoted was rather a voluntary recognition of a pre-existing 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. (U. S.) 507, 22 L. ed. 414; Basey v. Gallagher, 20 Wall. 670, 22 L. ed. 452; Forbes v. Gracey, 94 U. S. 762, 24 L. ed. 313; Jennison v. Kirk, 98 U. S. 453, 25 L. ed. 240."

Opinion of the Court-Bryan, District Judge.

We think the above-mentioned cases embody the law applicable to the case at bar and are conclusive of this controversy.

Upon the argument of this cause, counsel for respondent relied almost entirely upon the authority of the case of Boise City v. Boise City Rapid Transit Co., decided by this court in the year 1899 and reported in 6 Idaho, at page 779, 59 Pac. 716. An examination of the record in that case discloses the fact that counsel on both sides presented the case upon a theory not covered by the pleadings and which was not an issue in the case. It will be observed that this last-mentioned case was tried out in this court upon the question as to whether the canal, over which there was a bridge in a dangerous and unsafe condition, thereby became a public nuisance to the extent that the company was legally bound to rebuild the bridge. As stated above, this question was not raised by the pleadings, and for these reasons the said case cannot be considered an authority in the cause now before us. However, we think that the said case, in so far as the same may conflict with the views herein expressed, should be and the same is hereby overruled.

It follows that the judgment of the district court must be reversed, with costs to the appellant. The case is remanded, with direction to take such further action as may be necessary and in harmony with the views herein expressed.

Ailshie, Presiding J., and Sullivan, J., concur.

Points Decided.

(April 20, 1911.)

JAMES R. NIELSON, Respondent, v. RALPH PARKER and FRANK PARKER, Appellants.

[115 Pac. 488.]

WATER AND WATER RIGHTS-APPROPRIATION-DIVERSION AND USEPERMIT FROM STATE ENGINEER.

(Syllabus by the court.)

1. Both the constitution and statutes of this state recognize the right of a prior appropriator in and to the public waters of this state, and the statute, sec. 3245, declares that the "first in time is the first in right."

2. Where one actually diverts the water of a stream and applies the same to a beneficial use in the irrigation of his growing crops, although he has never applied to the state engineer for a permit to do so, and has never procured either a permit or a license from the state engineer, still his right is superior and paramount to any right that a subsequent appropriator can procure, even though the latter secures a permit from the state engineer to appropriate and divert the water of the stream.

3. The state engineer has no right, power, or authority to interfere with vested rights or to grant a permit for the appropriation and diversion of the water of a stream where the same has already been diverted and applied to a beneficial use.

4. Under the laws of this state a water right is real property, and one who has actually diverted the water of a stream and applied the same to a beneficial use is in the actual possession of such real property, and this possession constitutes actual notice to any subsequent appropriator of the water of the same stream, or to any person who subsequently applies to the state engineer for a permit to appropriate and divert the water of the same stream.

APPEAL from the District Court of the Fifth Judicial District, in and for the County of Oneida. Hon. Alfred Budge, Judge.

Action to establish the respective rights and priorities of claimants to the use of the waters of Wood Canyon in Oneida

Opinion of the Court-Ailshie, Presiding J.

county. Judgment for the plaintiff and defendants appealed. Affirmed.

D. C. McDougall and T. D. Jones, for Appellants.

It was undoubtedly the intention of the legislature that the method prescribed by the 1903 law was the exclusive method thereafter to be followed in the appropriation of the public waters of this state. (Idaho Power etc. Co. v. Stephenson, 16 Ida. 418, 101 Pac. 821; Speer v. Stephenson, 16 Ida. 707, 102 Pac. 365.)

E. G. Davis and S. D. Davis, for Respondent.

Under our law as it exists to-day we have two separate and distinct methods of acquiring a right to the unappropriated waters of the state; the first by actual diversion and use, and the second by obtaining a permit from the state engineer and complying with the conditions of the law as to the completion of the work necessary to divert the water upon the land and the application of the waters to a beneficial use. In the first case the right to the use of the water dates from its actual application to a beneficial use, and, in the second, the necessary work being completed, the right would relate back to the date of the permit. (Lockwood v. Freeman, 15 Ida. 398, 98 Pac. 295; Sand Point Water & Light Co. v. Panhandle Development Co., 11 Ida. 405, 83 Pac. 347; Pyke v. Burnside, 8 Ida. 490, 69 Pac. 477; Hard v. Boise City Inv. & Land Co., 9 Ida. 589, 76 Pac. 331, 65 L. R. A. 407; Wiel's Water Rights in the Western States, secs. 140-142; Morris v. Bean, 146 Fed. 426.)

AILSHIE, Presiding J.-In 1901 the respondent herein filed a notice of appropriation of the waters of Wood Canyon. in Oneida county. Commencing with the year 1901 and during subsequent years up to and including 1907 it appears that the respondent did certain work in cleaning out the natural channel of the stream for the purpose of carrying water down the stream to his land. This stream was fed by springs

Opinion of the Court-Ailshie, Presiding J.

several miles up the canyon above his lands, and it appears that quite early in the irrigation season the water became so low that it did not flow as far down the canyon as to the lands of respondent. In 1907 respondent made a desert entry on lands some four miles up the canyon above his homestead, and thus much nearer the source of supply of this stream. In both 1908 and 1909 he cultivated a small tract on his desert entry and irrigated the same by water taken from Wood Canyon.

In August, 1908, appellants made application to the state. engineer for a permit to appropriate the waters of Wood Canyon for the purpose of irrigating certain lands owned by appellants and lying along this stream. A second application was made in December of the same year, and a third application in June, 1909. Appellants, however, did not use the waters from this stream until June, 1909. This action was instituted to determine the respective rights of the parties and their priorities to the waters of this stream.

The trial court found, first, that respondent's appropriation was entitled to date from 1901, and that he had since that time applied the water to the irrigation of his homestead. In the second place, the court found, as a conclusion of law, that the respondent, having actually diverted and applied the waters of the stream to the irrigation of his lands and particularly his desert entry-prior to the time that appellants applied to the state engineer for their permit to appropriate the waters of the stream, the respondent consequently acquired a prior and superior right to appellants' and was entitled to the waters of the stream, even though he had never applied any of the waters of the stream to his homestead. It is contended by appellants that the evidence is not sufficient to support the court's finding on the first proposition, namely, that the respondent had applied the water to a beneficial use, in that he had used it in irrigating his homestead since 1901. On this question there is a conflict in the evidence. While there is apparently some evidence to support the respondent's contention, there is much evidence against him. As we view the case, our conclusion on the second ques