(After Stating the Pacts as Above). — We cannot vary from the settled law of Arizona on this subject. All law on the matter, however, will bear out the position of the appellees, they being the original appropriators of the water in question, but a condition that should be the law if the scene were laid in the New England states, for example, does not apply in the arid southwest, where, before the waters of a stream are claimed or usurped by anyone for purposes of- irrigation, the stream is explored, a ditch dug, a dam built, the waters diverted and applied to lands, crops are grown and marketed, and not only a means of livelihood for the appropri*365ator is created, but the means of the support of many is established, whereby a man can see with a vision, as true as nature is certain, that he may depend upon the waters of a stream as a means of rearing a family, as for more than twenty years last past we have followed the rule in the Slosser case, 7 Ariz. 376, 65 Pac. 332, that the decisions of other states are not controlling as to questions relative to the appropriation of water. But the contention of the state of Arizona is that it acquired its right to use of the waters of Post Creek by reason of the transfer of its lands from the United States government. The state also claims the water by reason of adverse user and possession and by reason of prescription.
In the case of Krell v. United States, 79 Fed. 241, 24 C. C. A. 543, cited by appellees, which is a case having to do with the facts about as presented here, the lower court was by said decision reversed, because its decision was based on the idea that the government as the sovereign power has, in respect to the waters'of non-navigable streams upon the public lands, a superior right to any which citizens can acquire; the decision of the appellate court in said case holding:
“His appropriation was, of course, subject to the prior appropriation and use of the waters of the stream made by the government officials for the purposes of the military reservation, which consisted of 640 acres of land, and was located on the stream in question below the point of the appellant’s diversion. The military reservation was established by presidential proclamation in January, 1868, subsequent not only to the time when the government, by its conduct in recognizing and encouraging the local custom of appropriating the waters of the non-havigable streams upon the public lands for agricultural and other useful purposes, had become bound to recognize and protect the right so acquired, but subsequent, also, to the passage of the act of Congress of July 26, 1866, *366making statutory recognition of that right, and confirming the holder in its continued use. The creation of the reservation for military post purposes did not destroy or in any way affect the doctrine of appropriation thus established by the government in respect to the waters of the non-navigable streams upon the public lands. They continued subject to appropriation for any useful purpose. The appropriation of a part of those waters for the uses of the military post secured it in the use of the portion so appropriated but it did not take from others the right to make such appropriation above the reservation as would not interfere with its prior appropriation.”
Under the rule that he who is first in time is first in right, the early appropriators, the appellees herein, have appropriated and beneficially used the waters since the early ’70’s. On the other hand, appellant has never used the waters except as hereinbefore referred to, and to no extent on a scale that would mean its appropriation and use for the irrigation of lands. Arizona Copper Co., Ltd., v. William Allen Gillespie, 12 Ariz. 190, 100 Pac. 465.
At the time of the appropriation by appellees herein, or their predecessors, the waters of Post Creek were unappropriated, and since dates of appropriation the said waters have been continuously used for beneficial purposes in the irrigation of the premises herein described.
The judgment of the lower court is affirmed.
ROSS, C. J., and FLANIGAN, J., concur.
MoALISTER, J., being disqualified, did not sit in case.