Osgood

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…