provisions must depend upon the adverse possession by the party or his grantors who claims the benefits of such time.3 Where the statute is pleaded by one tenant in common against his co-tenant, the rule that the possession of one of several tenants in common is the possession of all, applies, and in order to render the statute available it must appear not only that possession by one was for the statutory time, but that it was claimed adversely to the co-tenant for the entire period.5 The intent to h ld adversely must be indicated by acts calculated to exclude the co-tenant.6 Adverse possession, which is only constructive possession under color of title, cannot be shown where the deed was made in pursuance of an involuntary sale under a void judgment.7 The doctrine has elsewhere been noticed that mere adverse possession for the statutory period, of unpatented lands, will not avail as against a patent regularly issued.8 To take advantage of the statute, it must be pleaded. In the absence of such plea, an instruction based upon the hypothesis of adverse possession is unwarranted.9 1 Post, Ch. XV. 2 Infra, § 153. 3 lbid. 4 Two Years in Nevada. 5 Mining Co. vs. Taylor, 100 U. S. 37; 420 M. Co. vs. Bullion M. Co., 3 Sawyer, 634; s. c., 9 Nev. 240. 6 Coleman vs. Clements, 23 Cal. 245; Adams vs. Burke, 3 Sawyer, 415. 7 King vs. Randlett, 33 Cal. 318. 8 Ante, § 67. See also Weeks on Mineral Lands, § 82, and cases cited. 9 Maine Boys T. Co. vs. Boston T. Co., 37 Cal. 40. § 148. Easements and Drainage.—The local jurisdiction, delegated by acts of Congress to the states and territories, over the subject of easements1 and water rights has been noticed elsewhere, and the law gov erning water rights on the public domain given as fully as practicable.4 An easement is defined to be " a liberty, privilege, or advantage which one man may have in the lands of another without profit. It may arise by deed or prescription."5 Confining the definition to rights such as arise "by deed or prescription," those here considered could not be characterized as easements, but as statutory reservations, so far as they arise from conditions imposed prior to patent. When they are reserved in the patent they answer the description of easements reserved in the deed. Except as respects water rights, the only provision made in the act of Congress authorizing easements is that they shall be reserved in patents to mines as a condition of sale of such mines. But local legislatures have imposed certain conditions, favorable to the development of mines, upon the possession and enjoyment of public lands for other purposes. As in California, upon those occupying public lands for agricultural or grazing purposes, that it should be so occupied subject to the rights of miners to enter for mining purposes.6 This gave the miner the right to extract mineral from lands so occupied, in the most practicable manner, with the least injury to the rights of the prior occupant.7 But this statute was somewhat strictly construed, for the reason that it authorized what otherwise would be a trespass. It was therefore held that its application could not be extended by implication to lands occupied for other than grazing or agricultural purposes.8 The appropriation of public land was held to give the occupant a private right, to infringe which was to deprive him of private property.9 When, therefore, a miner entered land in the possession of another, he was required, in order to justify such entry, to show affirmatively (1) that was public land; (2) that it contained minerals; (3) it he entered bona fide for the purpose of mining.10 It was so held, notwithstanding prior decisions, that the lands in a mineral region were to be presumed public until the contrary was shown.11 This right to enter upon public land in possession of another was also guarded by provisions requiring the miner to give bonds to the prior appropriators against the injury of crops, etc., by the mining operations carried on.12 But an offer of sufficient bonds, which were captiously refused by the prior agricultural occupant was held to entitle the miner to proceed, but did not release him from the obligation to pay all damages to crops which might be the proximate result of his mining.13 The miner is not authorized to interfere with the right of the agricultural occupant to irrigate because it injures adjoining mining claims.14 1 Rev. Stat. U. S., § 2338, ante, pp. 23-4. 2 Rev. Stat. U. S., § 2339, ante, p. 24. 3 Ante, Ch. VIII. 4 Ante, § 51 et seq. 5 Bouvier's Law Dict. 6 Act of April 25, 1855. 7 McClintock vs. Bryden, 5 Cal. 97; Clark vs. Duval, 15 Cal. 85. 8 Fitzgerald vs. Urton, 5 Cal. 308; Burdge vs. Underwood, 6 Cal. 45; Weimer vs. Lowery, 11 Cal. 104. 9 Tartar vs. Spring Creek, &c. Co., 5 Cal. 396; Stokes vs. Barrett, 5 Cal. 36. 10 Lentz vs. Victor, 17 Cal. 271. 11 Smith vs. Doe, 15 Cal. 100; Burdge vs. Smith, 14 Cal. 380. 12 Ser. Local Stat., Ch. XV. 13 Rupley vs. Welch, 23 Cal. 452; Wixon vs. Bear River &c. Co., 24 Cal. 367. 14 Gibson vs. Puchto, 33 Cal. 310. § 149. Same-Town Lots.-Where a lot in a mining camp was occupied for a hotel, or for a dwelling house or corral, these uses were held not inconsistent with the policy of the state, in encouraging the development of mines, and therefore their possessory rights would be protected against miners sluicing, etc., within their in closures. But such protection would not be suffered to operate as a cover beneath which a large tract of twelve acres could be taken up in a mining camp and held so as to prevent mining, where it did not obstruct the comfortable use of the lot as a residence, or for mechanical or commercial business.2 1 Fitzgerald vs. Urton, 5 Cal. 308; Burdge vs. Underwood, 6 Cal. 45. 2 Martin vs. Browner, 11 Cal. 12. § 150. Same-Drainage-Ditches-Right of wayDumps-Tailings.-The most prominent subjects upon which local legislatures have made laws for the working of mines, involving such rights as are here classed under the head of easements, are those of drainage, ditches, rights of way, dumps, and tailings. Some of these statutes are of such doubtful constitutionality as never to have come into actual operation, so as to meet the test of a judicial decision.1 Others have been held unconstitutional. The subject of drainage and ditches is protected by the provisions of the federal statute,3 in so far as it recognizes acquired rights of way for ditches, etc., for mining purposes. But the laws regarding drainage are local. Except where it is authorized by statute, the locator of a mining claim has no right to build flumes or other structures on a subsequent location.5 Nor has he, without such statutory reservation, any right by virtue of the priority of his location to use a subsequent claim as a dump for his waste, or a place of deposit for his tailings.6 Nor have the prior locators any right to allow tailings to run free in the gulch and render valueless the claims of subsequent locators who may be situated below. And a custom of "free tailings," which allowed the destruction of junior claims in this manner, was held an unreasonable custom.7 But the owner of a prior claim may erect a dam when it is necessary to the prosecution of his work, in the manner which he elects as the best, although as a consequence a subsequent claim is flooded. The California statute of 1870,9 providing for the condemnation of a right of way over other mining claims, has been held only cumulative to a right already existing under local customs which it did not abrogate, and that injunction would lie to prevent interference with such right.10 The provisions of the federal statute are not construed so as to grant any new rights or easements, but only to confirm such as were in existence prior to the passage of the act.11 In construing the fifth subdivision of Section 1238 of the California code,12 which section provides for the condemnation and taking of private property for enumerated public uses, among others, "tunnels, ditches, flumes, pipes, and dumping places for working mines; also, outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from the mines," it was held that notwithstanding the legislative declaration of the public character of the use for which the appropriation was authorized, such declaration would not be conclusive upon the courts, where it was clear that the object sought was the appropriation of private property to the private use of any one other than the owner. In this case the plaintiffs sought to procure, by condemnation, certain lands belonging to the defendants to serve as a site for a bed-rock flume to carry the dirt and gravel from its mining claims, and also as a place of deposit for the tailings and refuse matter from its claims. The court held that there was an entire absence of any public interest in the purposes for which the land was sought to be condemned, and held the subdivision unconstitutional.13 It has been held under district rules that a miner might appropriate a place of deposit for pay dirt and tailings; that these were property, and |