Henry Billings Brown

“ But in order to establish any rights under the statute it was incumbent upon the defendants to prove their priority of possession, or at least to disprove priority on the part of the plaintiff. The question, Who had acquired this priority of possession? was not a Federal question, but a pure question of fact, upon which the decision of the state court was conclusive. No construction was put upon the statute; no question arose under it; but a preliminary question was to be decided before the statute became material, and that was whether defendants were first in possession of the land. ”

“ From this resume of the proceedings, it is evident that there was no denial to the defendants of any right they may have possessed by virtue of a priority of possession. The statute (Rev. Stat. § 2339) provides that 'whenever, by priority of possession, rights to the use of water' for certain purposes 'have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions,' the owners of such vested rights 'shall be maintained and protected in the same,' and their right of way for the construction of ditches and canals acknowledged and confirmed. ”

“ The transcript, upon which the case was heard in the supreme court, was stipulated by the attorneys for the respective parties to be 'a full, correct, true, and complete transcript of the proceedings in said cause on appeal, and of all the pleadings in said cause, of all orders on demurrer, of the findings of the court and conclusions therefrom, and of the judgment, and of notice of intention to move for a new trial, and of the notice of appeal, and of the bill of exceptions and statement of motion for new trial.' In short, this supplemental transcript is a mere excrescence. ”