appropriate the waters of the streams flowing over the public lands for the purposes of mining, agriculture and other beneficial uses; that this custom, which is wholly at variance with the accepted principles of the common law, has been from its very beginning acquiesced in by the state government, has been, as said by this court in 1855, in the case of Irwin v. Phillips, "heartily encouraged by the expressed legislative policy of the state," and has all along been recognized, sanctioned and confirmed by the highest judicial tribunal of the state. Not only this: but the federal government, first by its silent acquiescence and afterwards by express statutory enactment, assented to this departure from the principles of the common law with respect to the waters upon the public lands in California. And it did so for the same reasons and in much the same way that the state of California assented to it. Allusion has has already been made to the case of Atchison v. Peterson, in which the supreme court of the United States said that as respects the use of water for mining purposes in California, "the doctrines of the common law declaratory of the rights of riparian owners were, at an early day, after the discovery of gold, found to be inapplicable or applicable only in a very limited extent to the necessities of miners, and inadequate to their protection;" and also to the subsequent case of Basey v. Gallagher, in which the same learned court declared that the views expressed and the rulings made in Atchison v. Peterson are equally applicable to the use of water on the public lands for purposes of irrigation." In Broder v. Water Company, 11 Otto, 276, which is also a California case, the supreme court of the United States said: "It is the established doctrine of this court that rights of miners, who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged, and was bound to protect, before the act of 1866"-referring to the act of congress of July 26, 1866, the ninth section of which contains this declaration: "That wherever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals, for the purposes aforesaid, is hereby acknowledged and confirmed." And the court added: "We are of opinion that the section of the act which we have quoted (the ninth) was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one. The court accordingly, in the Broder case, without regard to the act of 1866, protected the right of defendant to divert the water there in question from its natural channel, upon

the ground that the government had, by its conduct, recognized and encouraged and was bound to protect such diversions. It seems to me, therefore, that this court, in the late case of Osgood v. Water and Mining Company, reported in 56 Cal., 571, was entirely justified in saying, as it did, that "the principle of prior appropriation of water on the public lands in California, where its artificial use for argicultural, mining and other like purposes, is absolutely essential, which has all along been recognized and sanctioned by the local customs, laws and decisions,. was thus expressly recognized and sanctioned by the supreme court of the United States, and also by the act of congress of 1866." It was this principle, and nothing else, that secured the defendant in the case of Broder v. The Water Company, in the continued enjoyment of the water it had appropriated as against a grant from the government ante-dating the act of 1866; for the court in terms declares: "We do not think that the defendant is under the necessity of relying on that statute." The defendant had acquired the right to divert the water from its natural channel and appropriate it to a useful purpose, because the government by its conduct, through a long series of years, in view of the necessities of the country, which were widely different from those of the country from which the common law was taken, had recognized and encouraged such diversions and use of the waters upon the public lands. The government permitted the principle of appropriation of such waters to grow up and become a part of the law in relation to the public lands, and therefore in construing the grant from the government the court considered it with reference to the principle of appropriation, and protected the rights of the defendant which arose under and by virtue of that principle. The common law doctrine of riparian rights being wholly inconsistent with, and antagonistic to, that of appropriation, it necessarily follows that when the federal and state governments assented to, recognized and confirmed, with respect to the waters upon the public lands, the doctrine of appropriation, they in effect declared that that of riparian rights did not apply. The doctrine of appropriation thus established was not a temporary thing, to exist only until some one should obtain a certificate or patent for forty acres or some other subdivision of the public land bordering on the river or other stream of water. It was, as has been seen, born of the necessities of the country and its people, was the growth of years, permanent in its character and fixed the status of water rights with respect to public lands. No valid reason exists why the government which owned both the land and the water could not do this. It thus became, in my judgment, as much a part of the law of the land as if it had been written in terms in the statute books, and in connection with which all grants of public land from either government should be read. In the light of the history of the state and of the legislation and decisions with respect to the subject in question, is it possible that either government, state or national, ever contemplated that a conveyance of forty acres of land at the lower end of a stream that

flows for miles through public lands should put an end to subsequent appropriation of the waters of the stream upon the public lands above and entitle the grantee of the forty acres to the undiminished flow of the water in its natural channel from its source to its mouth? It seems to me entirely clear that nothing of the kind was ever intended or contemplated. Of course, the doctrine of appropriation as contradistinguished to that of riparian rights, was not intended to, and, indeed, could not, affect the rights of those persons holding under grants from the Spanish or Mexican governments-first, because the doctrine is expressly limited to the waters upon what are known as the public lands, and, secondly, because the rights of such grantees are protected by the treaty with Mexico and the good faith of the government. It is the rights of such riparian proprietors as those that are unaffected by the doctrine of appropriation and those are the riparian rights that are excepted from the operation of the provisions of the civil code in relation to "water rights" by section 1,422 of that code, which reads: "The rights of riparian proprietors are not affected by the provisions of this title." That code, as well as the other codes of California, went into effect the first of January, 1873. The appellants contend, and the prevailing opinion holds, that by the section of the civil code just quoted, the legislature of the state declared that the common law doctrine of riparian rights should apply to all the streams of the state. It seems very clear to me that this is not so for many reasons. Leaving out of consideration the question whether it lay in the power of the state to nullify the doctrine of appropriation established by the United States with respect to the waters flowing over their lands-established, too, in pursuance of the policy the state itself had previously adopted, and for the advancement of the interests of the people of the state-I find nothing in the civil code, or in any of the other codes, to indicate any intention on the part of the legislature of the state to return to the doctrine of riparian rights with respect to the waters upon the public lands. On the contrary, the code enacts in statutory form, in language as clear as language can be made, the theretofore prevailing law of appropriation. Title VIII of the civil code is headed "Water Rights." The first section of that title-section 1,410 of the code-declares: "The right to the use of running water flowing in a river or stream, or down a cañon or ravine, may be acquired by appopriation.'

Can anything be clearer? By the common law, the water flowing in a river or stream, or down a cañon or ravine, could not be acquired by appropriation, and must continue to flow in its natural channel undiminished in quantity and unaffected in quality. Could there be any clearer declaration of the fact that the common law doctrine of riparian rights should not apply to the streams of this state than is found in this declaration of the statute that the waters of such streams may be acquired by uppropriation? The statute proceeds:

No. 45.-4.

"Section 1,411. The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose, the right ceases.'

"Section 1,412. The person entitled to the use may change the place of diversion, if others are not injured by such change, and may extend the ditch, flumes, pipe or acqueduct by which the diversion is made to places beyond that where the first use was made.'

"Section 1,413. The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed, but in reclaiming it the water already appropriated by another must not be diminished."

"Section 1,414. As between appropriators, the one first in time is the first in right." Next follow sections providing the manner in which appropriations shall be made. Section 1,420 provides that persons who have heretofore claimed the right to water, and who have not constructed works in which to divert it, and who have not diverted nor applied it to some useful purpose, must, after this title takes effect, and within twenty days thereafter, proceed as in this title provided, or their right ceases;" and the last section of the title-1,422-is the one already quoted, and reads: "The rights of riparian proprietors are not affected by the provisions of this title." The construction claimed by appellants, and in the prevailing opinion given of this last section, in effect wipes out all of the provisions of the title to which it is but a saving clause. This is reversing the established rule of construction as I understand it. To my mind nothing is clearer than that by the provisions of the code referred to, the legislature continued in existence the pre-existing law with respect to the appropriation of waters upon the public lands; and as both the federal and state governments, in the exerercise of a policy eminently wise and just, substituted the doctrine of appropriation for the riparian doctrine, so far as the public lands and the waters pertaining thereto are concerned, the only riparian proprietors to which the saving clause can apply, are such as hold under grants from the Spanish or Mexican governments. In other words, that in adopting the provisions of the civil code in question, the legislature did not codify the pre-existing law upon the subject. From the views I entertain upon the main proposition in the case, the other questions discussed by counsel and in the prevailing opinion become unimportant. In my opinion the order appealed from should be affirmed, and I therefore dissent from the judgment given here.

MYRICK, J., DISSENTING. I concur in the foregoing dissenting opinion.

I concur in the views expressed by

MORRISON, C. J., DISSENTING.
Mr. Justice Ross and in his dissenting opinion.

No. 8,588.

LUX ET AL. v. HAGGIN ET AL.

In Bank. Filed October 27, 1884.

Judgment REVERSED on the authority of Lux v. Haggin, ante.

APPEAL from a judgment of the superior court of Kern county, entered in favor of the defendant. The facts were the same as in Lux v. Haggin, ante.

Stetson & Houghton, and McAllister & Bergin, for the appellants. Louis T. Haggin, Garber, Thornton & Bishop, and Flournoy & Mhoon, for the respondent.

THE COURT. Ross, J., MYRICK, J., and MORRISON, J., dissenting. On the authority of Lux v. Haggin, No. 8,587, ante, judgment reversed and cause remanded.

No. 9,722.

BROWN V. DEXTER.

Department Two. Filed October 27, 1884.

CITIZENSHIP OF THE UNITED STATES-RENUNCIATION OF.-A person born in the United States, and a citizen thereof, has a right to expatriate himself, to renounce his allegiance to the country of his birth, and to become a citizen of another state or kingdom.

THE SAME-CHILD BORN IN FOREIGN COUNTRY OF EXPATRIATED FATHER. A child born in a foreign country of a father who had previously renounced his citizenship of the United States and assumed allegiance to another power, is not a citizen of the United States.

MANDAMUS. The opinion states the facts.

R. M. F. Soto, for the petitioner.

John A. Wright and T. E. K. Cormac, for the respondent.

THORNTON, J. This is an application to compel the respondent to enter the name of petitioner on the great register of the county of Monterey as a voter.

The grand-parents of petitioner were native born citizens of the state of New York, and removed therefrom to Canada, in 1835, taking with them their child, then eleven years of age, which child subsequently became the father of petitioner. The said father of petitioner after attaining majority, took the oath of allegiance to the queen of Great Britain, voted and held office. This oath was taken in January, 1858, before the birth of petitioner, which occurred in March, 1858. The petitioner and his father continued residents of Canada until their removal to this state, which occurred as follows: The petitioner in September, 1883, became and has continued to be a resident of Monterey county, and the father about February, 1884, became a resident of the same county.