Broder v. Water Company

Decision Date01 October 1879
Citation25 L.Ed. 790,101 U.S. 274
CourtU.S. Supreme Court

ERROR to the Supreme Court of the State of California.

The facts of the case and the legislation bearing upon them are set out in the opinion of the court.

Mr. John H. McKune for the plaintiff in error.

Mr. A. P. Catlin, Mr. S. Shellabarger, and Mr. J. M. Wilson, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

The Natoma Water and Mining Company owns a canal for conducting water and distributing the same for mining, agricultural, and other uses, which is some fifteen miles long. It was completed in the year 1853, and since then has been in constant and successful operation under the control and in the possession of the company. Its cost was about $200,000. The court of the first instance on the trial of this cause found also as a fact that the canal and branches have, ever since their construction, been uniformly acknowledged and recognized by the local customs, laws, and the decisions of the courts of the State of California, in which they lie, and that the land covered by them is indispensable to their use. At the time they were finished, and for many years after, in fact up to the passage of the Pacific Railroad Acts of 1862 and 1864, the land through which they ran was the public property of the United States. A portion of it is included in the grant made by that act to what has since, by change of name and consolidation of corporate franchises, become the Central Pacific Railroad Company, and the plaintiff in error, by proper conveyance from said company, has become the owner of it. A small part of it is traversed by the canal, and he brought this action in the proper court of that State against said water and mining company, to have the canal declared a nuisance and abated, and to recover $12,000 damages on account of its maintenance on his land.

The case was submitted to the court, which found the facts we have stated, and others that will be referred to.

The inception of the title of plaintiff to the land described in his petition, other than that derived from the railroad company, was a declaratory statement for pre-emption, filed Aug. 6, 1866, by himself for one tract, and a similar statement filed Sept. 14, 1866, by his brother, Jacob Broder, for another. But prior to either of these dates, to wit, on the 26th of July of the same year, Congress enacted a law, the purpose of which was to deal with the rights of miners who had theretofore, without objection, and with the tacit encouragement of the United States, discovered, developed, and mined the public lands. 14 Stat. 251. The ninth section of that act contains this declaration: 'That wherever, 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 aforesaid, is hereby acknowledged and confirmed.' p. 253.

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

In reference to his lands held under conveyance from the railroad company, it might be a question of some difficulty whether the right was so far vested in that company before the passage of this act of 1866, that the latter would be ineffectual as regards these lands. But we do not think that the defendant is under the necessity of relying on that s...

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    ...Atchison v. Peterson, 1874, 20 Wall 507, 22 L.Ed. 414; Jennison v. Kirk, 1878, 98 U.S. 453, 25 L.Ed. 240; Broder v. Natoma Water & Mining Company, 1879, 101 U.S. 274, 25 L.Ed. 790; State of Nebraska v. State of Wyoming, 1935, 295 U.S. 40, 55 S.Ct. 568, 79 L.Ed. 1289; California-Oregon Power......
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