(dissenting).

I agree that the motion to dismiss the writ of error should be overruled. I agree, too, with the views of the majority in so far as they hold that the doctrine of riparian rights, as known to the common law, is inapplicable to the conditions existing in the semiarid states and territories. I might even go so far as to say that that doctrine may perhaps be inapplicable to conditions existing in parts of Alaska, but for reasons hereinafter stated I believe that it was the intent and spirit of the act of Congress relating to Alaska that rights in and to property there situated should, generally speaking, and so far as applicable, be governed by the rule of decision laid down by the Supreme Court of Oregon.

It is evident, from the record, that the lower court proceeded upon the theory that the plaintiffs in error had no riparian rights in the Big Hurrah creek by virtue of the location of their placer mining claims, and that the defendant in error, by its declaration of a water right and construction of a ditch and diversion of water, even though all these acts were had and done subsequent to the location of the placer mining claims of plaintiffs in error, was a bona fide lawful appropriator, and as such could condemn a right of way for its ditch.

The Code of Alaska has no specific provisions with respect to the location of water rights.' In the Political Code (section IS, p. 137, Cartel’s Ann.Alaska JCases) there are provisions defining what instruments are subject to record, which include notices and declarations of water rights. But a statute making it the duty of a recording officer to record a notice or declaration of a water right is of little or no aid in determining whether the placer mine owners in the present case can claim riparian rights as against the defendant in error. We find assistance, however, in section 367, Civ.Code Alaska, which provides that: “So much of the common law as is applicable and not inconsistent with the Constitution of the United States or with any law passed or to be passed by the Congress is adopted and declared to be law within the District of Alaska.”

Here was a declaration to the effect that riparian rights, as known at common law, do exist in Alaska to the extent *469 to which the law of such rights is applicable and not inconsistent with other acts of Congress.

The question is, then: To what extent and in what nature, if at all, is the common-law doctrine of riparian rights applicable? The act of Congress, “An act providing a civil government for Alaska” (chapter 53, 23 Stat. U.S. p. 24), makes the general laws of Oregon obtain in Alaska so far as the same may be applicable and not in conflict with the provisions of the laws of the United States. No statute of Oregon is directly pertinent; but we find that the rights of riparian owners in that state have been well established by judicial interpretation which, I think, may well be adopted as applicable to Alaska, where well-known climatic conditions are not unlike those of Oregon and Washington. In Brown v. Baker, 39 Or. 66 , 65 P. 799 , the rule recognized in that state is thus declared: “The water of a nonnavigable stream is an incident to the soil through which it flows, and, as the United States is the primary proprietor of public lands, its grant of the waters thereof, in the Pacific Coast states, to the person having the" priority of its possession ( 14 Stat. 253 , c. 262), in the absence of a constitutional provision or statute declaring water to be public property, necessarily cuts off the right of a subsequent settler to divert the water under a claim of prior appropriation. Title by relation gives to the first settler upon the public land the priority of possession of the water flowing through the same (Faull v. Cooke, 19 Or. 455 , 26 P. 662 , 20 Am.St.Rep. 836 ; Larsen v. Navigation Co., 19 Or. 240 , 23 P. 974 ; Johnson v. Lumbering Co., 24 Or. 182 , 33 P. 528 ; Cole v. Logan, 24 Or. 304 , 33 P. 568 ), though he may never appropriate the water to a beneficial use. If a lower riparian proprietor had acquired a right to the waters of Willow creek prior to the plaintiff’s diversion, such right would necessarily defeat their appropriation of the water, because the stream at the time of the diversion was not flowing through public lands. The right of prior appropriation is limited to the use of water by the pioneer settler before any adverse claims of riparian proprietors attach to the stream from which the water is taken, and not to the points of diversion, which may be either within or beyond the boundaries of the tract selected by such settler. * * * The first settler upon *470 public land through which a stream of water.flows may either divert the water and use it for a beneficial purpose, or exercise the common-law right prevailing in the Pacific Coast states, where the modified rule of riparian ownership is still in force, and insist that the stream shall flow in its natural channel undiminished in quantity, except when applied to the natural use of the upper riparian proprietors, and for irrigation if the stream affords a sufficient quantity of water for the latter purpose. Low v. Schaffer, 24 Or. 239 , 33 P. 678 ; Milling Co. v. Coughanour, 34 Or. 9 , 54 P. 223 .”

The plaintiffs there contended that there was no proof of a diversion in accordance with any local custom or law, as contemplated by the act of Congress of July 26, 1866 (supra), and the court said: “The act of Congress to which reference is made provides that whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same. The water rights thus granted were limited by Congress to territory in which the local customs, laws, and decisions of the courts recognized and enforced the principle that a superior right to ;he use of water flowing through public land was secured by priority of possession.”

So, in the case under consideration, there is no proof of diversion under any local custom or law.

In North Powder Milling Co. v. Coughanour, 34 Or. 9 , 54 P., page 223, the court said: “The right of prior appropriation is incompatible' with the doctrine of riparian proprietorship (Pom.Rip.Rights, § 132; Kin.Irr. § 272), and as Tartar, plaintiff’s predecessor in interest, was the first settler upon the banks of that part of North Powder river, he had the privilege of making a prior and superi- or appropriation of its waters, or he could insist upon having the stream flow uninterruptedly in its channel through his land, subject, however, to the natural use of the water by upper riparian proprietors, and also to a reasonable use thereof by them in irrigating their lands, if the volume of the water was sufficient to supply the natural wants of *471 the different proprietors; but, having elected to divert the water, he could not thereafter stand upon his strict common-law rights as a riparian proprietor. Low v. Schaffer, 24 Or. 239 , 33 Pac. 678 .”

In Low v. Schaffer, 24 Or. 239 , 33 P. 678 , the Supreme Court also recognized the right of a riparian proprietor to the ordinary use of the water flowing past his land for the purpose of supplying his natural wants, and to the use of a reasonable quantity for irrigating his land, if there be sufficient to supply the natural wants- of the different proprietors.

I would say, however, that in my judgment the enjoyment of the right of the riparian proprietor goes no farther than for a reasonable use, always keeping in mind the rights of others, so that as many as possible may participate in the benefits of the use of the water. In applying the common-law rules to Alaska, I think it is no strain of principle to hold that a use there for mining is as reasonable as is a use for irrigation in Oregon. The principles of the common law are not prohibitive of a reasonable use for either purpose, and the courts should not attempt to make classifications of uses without cautious regard for the circumstances and physical condition of that section of the country to be affected. Weil on Water Rights, p. 370; Farnham on Waters, § 650; Union Mill & Mining Co. v. Dangberg, 81 F. 73 .

If I am right in taking the rule of the common law, as modified in interpretation by the Supreme Court of Oregon, to be the proper one to sustain as applicable to Alaska, it should follow, I think, that, the plaintiffs in error being locators of placer mining claims bordering upon a stream within the public domain before defendant in error made any appropriation of the water of the stream, defendant’s subsequent appropriation should be held to be subject to the prior rights of plaintiffs in error and to the riparian rights belonging to plaintiffs in error as locators.

I think it should also follow that inasmuch as the theory upon which the lower court proceeded was wrong in ignoring the fundamental rights of the plaintiffs in error, which, under the evidence, called for the use of all the water in the creek, the order of condemnation should be *472 set aside, and a new trial ordered, with the right accorded to' the defendant in error to amend its allegations and proof with a view to establishing rights under the laws of eminent domain.