ON REHEARING.
Per CUBIAM.— The respondent Hall has filed a petition for rehearing, which we have carefully considered. We have again examined the evidence in the transcript, and find no good reason for granting a rehearing. It is not, as said respondent would seem to believe, impossible for a settler on the public domain to acquire a water right for the irrigation ’of certain lands prior to his filing upon or entering the same. In ease of a settler who locates upon public lands, appropriates water for the reclamation thereof, and diverts such water, and by means of ditches conveys such water to and upon said lands, *290prior to their entry, his water right, after entry, dates from the actual appropriation. This disposes of the real ground of the said respondent’s contention for a rehearing, which we regard as untenable. The record shows that Fielding Ethel made pre-emption entry of one hundred and sixty acres of land on Bennett creek on the fifteenth day of April, 1874, and on October 9, 1876, made his final proof, and on November 10, 1877, received a United States patent therefor. It is also shown that Fielding Ethel, on the third day of December, 1874, entered under the timber culture laws of Congress one hundred and sixty acres of land on said Bennett creek, and that said entry was canceled on December 4, 1876, and on March 17, 1877, said Ethel entered said land as a homestead, under the homestead laws of Congress, and thereafter made final proof, and has received a United States patent therefor. It also appears that David B. Ethel entered, under the pre-emption laws of Congress, one hundred and sixty acres of land on said Bennett creek on April 15, 1874, made final'proof, and received a United States patent therefor in 1877. Thus it is made to appear that Fielding and David B. Ethel entered under the laws of the United States four hundred and eighty acres of land on Bennett creek as early as 1874, and obtained patents for the same from the United States; and it also appears that they diverted, as early as 1872, five hundred incnes of the waters of said Bennett creek for the irrigation of lands owned, or claimed, by them. It also appears from the complaint of the petitioner Adin M. Hall that he claims no water earlier than 1879, and as Ethel Bros, had received patents from the United States to three hundred and twenty acres of their said land, and had made final proof at the proper United States land office for another one hundred and sixty acre tract prior to 1879, they certainly were the owners of said four hundred and eighty acres of land prior to 1879, and bad, prior to that date, diverted and taken upon said land water sufficient to reclaim the same.
A rehearing is denied.