Melville Fuller

“ John Smith settled on the tract of land described in March, 1877, and continued to reside thereon until he sold and conveyed it by warranty deed to Beck, the appellee. He made his homestead filing or entry March 25, 1879, and his final proof, May 10, 1883, and received a patent from the United States. The waters of False Bottom creek flowed, in its natural channel, over and across Smith's homestead; and in May, 1880, Sturr, the appellant, went upon that homestead, located a water-right thereon, and constructed a ditch which diverted the waters of the creek to his own adjacent land. ”

“ As the riparian owner has the right to have the water flow ut currere solebat, undiminished except by reasonable consumption of upper proprietors, and no subsequent attempt to take the water only can override the prior appropriation of both land and water, it would seem reasonable that lawful riparian occupancy, with intent to appropriate the land, should have the same effect. ”

“ This right amounts to an equitable interest in the land, subject to the future performance by the settler of certain conditions, in the event of which he becomes invested with full and complete ownership ”

“ This court declared that the almost uniform practice of the de artment has been to regard land upon which an entry of record, valid upon its face, has been made, as appropriated and with drawn from subsequent homestead entry. pre-emption, settlement, sale, or grant until the original entry be canceled or be declared forfeited, in which case the land reverts to the government as part of the public domain, and becomes again subject to entry under the land laws ”

“ At that time, Smith had been in possession for three years, and his homestead entry had been made over a year. A claim of the homestead settler, such as Smith's, is initiated by an entry of the land, which is effected by making an application at the proper land-office, filing the affidavit, and paying the amounts required by sections 2238 and 2290 of the Revised Statutes. Under section 2291, the final certificate was not to be given or patent issued 'until the expiration of five years from the date of such entry.' But under the third section of the act of May 14, 1880, c. ”