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22 Mont. 175, 56 Pac. 108, holding chancellor may disregard jury's findings, failing to satisfy his conscience; State v. Saunders, 66 N. H. 77, 25 Atl. 590, 18 L. R. A. 651, holding defendant in action for injunction against liquor nuisance not entitled to jury trial; Nessley v. Ladd, 29 Or. 365, 45 Pac. 906, holding findings in equity suits, not binding on appellate court, under Oregon code; Kahn v. Old Tele graph Mining Co., 2 Utah, 195, holding equitable defense in ejectment, raises issue to be tried by court alone; Nephi Irrigation Co. v. Jenkins, 8 Utah, 372, 31 Pac. 987, holding it duty of court to order reference when in doubt as to facts; dissenting opinion in Burke v. McDonald, 2 Idaho, 316, 322, 13 Pac. 355, 358, majority holding action to determine rights of adverse claimants to mineral location, legal.

Distinguished in Kimberley v. Arms, 129 U. S. 523, 32 L. 768, 9 S. Ct. 359, holding findings of master, to whom case is referred by consent of all parties, binding on court.

Actions.- Under Montana statutes abolishing distinctions between legal and equitable action, both legal and equitable relief may be granted in same action, p. 680.

Followed in Ely v. New Mexico, etc., R. R., 129 U. S. 293, 32 L. 689, 9 S. Ct. 294, holding complaint praying for determination of title and injunction, good on demurrer; arguendo, in McCauley v. McKeig, 8 Mont. 395, 21 Pac. 23.

Equity. Court in equity cases may vacate findings of jury on its own motion, p. 681.

Followed in Idaho, etc., Land Co. v. Bradbury, 132 U. S. 516, 33 L 487, 10 S. Ct. 179, holding court need not formally set aside verdict before entering decree opposed thereto. Cited incidentally in Learned v. Tillotson, 97 N. Y. 6.

Waters and water-courses.- Right to running water in Pacific States and Territories may, within reasonable limits, be acquired by prior appropriator, p. 683.

Followed in Hornbuckle v. Stafford, 111 U. S. 392, 28 L. 469, 4 S. Ct. 517, affirming S. C., 3 Mont. 487, same facts and parties; Krall v. United States, 79 Fed. 243, 48 U. 8. App. 361, holding previous establishment of government reservation below point of appropriation, does not affect right. Cited and applied in Boyle v. San Diego Land Co., 46 Fed. 711, holding water rights acquirable by appropriation, may be granted by deed of appropriator; Union Mill Co. v. Danberg, 81 Fed. 96, discussing doctrine of appropriation and reviewing cases; Malad Valley Irrigating Co. v. Campbell, 2 Idaho, 381, 18 Pac. 53, holding prior appropriation of all waters of stream, gives better right to tributaries thereof; Drake v. Earhart, 2 Idaho, 722, 23 Pac. 543, holding prior appropriator of whole stream entitled thereto against patentee of land, through which it flows; Kirk ▼. Bartholomew, 2 Idaho, 1090, 29 Pac. 41, holding prior appropriator

for irrigation, entitled to necessary water as against subsequent locators; Alder Gulch Mining Co. v. Hayes, 6 Mont. 38, 9 Pac. 585, holding water appropriated for use on claim in gulch must, after use, be discharged therefrom for use of claims below; Fitzpatrick v. Montgomery, 20 Mont. 186, 63 Am. St. Rep. 624, 50 Pac. 417, holding right of appropriation must be exercised within reasonable limits, with regard to rights of others; Geddis v. Parrish, 1 Wash. 591, 21 Pac. 315, holding grantee of United States takes subject to prior appropriation of stream, crossing his land; Isaacs v. Barber, 10 Wash. 130, 45 Am. St. Rep. 776, 38 Pac. 873, 30 L. R. A. 674, and n., holding doctrine of appropriation, established by custom in eastern Washington; dissenting opinion in Krall v. United States, 79 Fed. 244, 48 U. S. App. 363, holding appropriator can acquire no rights adverse to United States, majority opinion, supra; Drake v. Earhart, 2 Idaho, 727, 730, 23 Pac. 545, 546, denying right of appropriation, where custom was not shown, majority opinion, supra. Cited without application in United States v. Krall, 174 U. S. 388, 19 S. Ct. 713, Lux v. Haggin, 69 Cal. 275, 10 Pac. 681, and Burke v. McDonald, 2 Idaho, 326, 13 Pac, 360. Cited and upheld, but not applied, in Hewitt v. Storey, 64 Fed. 515, 29 U. S. App. 155, 30 L. R. A. 270, and n., holding right lost by non-user. Cited generally in Rio Grande, etc., Ry. v. Telluride Co., 16 Utah, 137, 51 Pac. 149, to point that appropriation rights must be reasonably exercised. See valuable notes, 7 Am. Dec. 532, 43 Am. Dec. 279, and 60 Am. St. Rep. 808.

Distinguished in Druley v. Adam, 102 Ill. 202, denying ownership in waters of flowing stream, at common law; Concord Co. v. Robertson, 66 N. H. 6, 25 Atl. 720, 18 L. R. A. 683, denying right of appropriation in New Hampshire; Benton v. Johncox, 17 Wash. 285, 61 Am. St. Rep. 919, 49 Pac. 498, 39 L. R. A. 110, holding riparian owner entitled to use of water as against subsequent appropriator.

Waters and water-courses. Act of July 26, 1866, respecting public domain, recognized customary law, respecting water rights, developed among occupants of public lands, p. 684.

Cited in Broder v. Water Co. 101 U. S. 276, 25 L. 791, holding said act a voluntary recognition of pre-existing rights of possession; Howell v. Johnson, 89 Fed. 558, holding waters of non-navigable stream in public land separately grantable by government; Cave v. Crafts, 53 Cal. 138, holding act conferred and confirmed rights to water appropriated for agricultural purposes; Beaver Brook Co. v. St. Vrain Co., 6 Colo. App. 139, 40 Pac. 1069, holding act prospective, in operation; Barnes v. Sabron, 10 Nev. 232. upholding right to water appropriated for irrigation; Jones v. Adams, 19 Nev. 86, 87, 3 Am. St. Rep. 794, 6 Pac. 446, 447, holding act confirmed rights held by local customs; United States v. Rio Grande Dam Co., 9 N. Mex. 304, 51 Pac. 678, holding United States surrendered its riparian rights by said act. See 63 Am. Dec. 98, note.

Statutes. When local custom conflicts with statutory regulation latter controls, p. 684.

Waters and water-courses.- Right to water by prior appropria tion may be secured for any beneficial purpose, p. 685.

Followed in Barnes v. Sabron, 10 Nev. 231, holding water may be appropriated for irrigation; Reno Smelting Works v. Stevenson, 20 Nev. 275, 19 Am. St. Rep. 367, 21 Pac. 319, 4 L. R. A. 62, upholding appropriation of water to run machinery; Speake v. Hamilton, 21 Or. 7, 8, 26 Pac. 857, holding rights of riparian owners subject to prior appropriation for agricultural and mining; dissenting opinion in Lux v. Haggin, 69 Cal. 445, 448, holding appropriation for irrigation, good against prior riparian owner, majority contra.

VOL. VIII-24

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the following Reports and all preceding them in each State or series:

U. S.

Law. Ed.

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62

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ARGUED AND DECIDED

IN THE

SUPREME COURT

OF THE

UNITED STATES

AT

OCTOBER TERM, 1874.

Vol. 88.

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