delivered the opinion of the court.
We are not called upon to determine whether, if objection had been made, the cause of action set up by respondent in its cross petition could thus be litigated, for the parties consented that the issues presented by the various pleadings might be tried in the proceeding then pending.
*562The respondent’s land is a part of section 36, commonly known as “school land,” which was given to the state by the national government. The respondent, without any filing, but merely as a squatter, went upon this land in 1871. The actual work of constructing petitioner’s ditch upon this particular tract was begun in the summer of 1873, although the preliminary steps were theretofore taken. After the ditch was begun, but before its completion, the respondent, under the provisions of what is known as the “occupying claimant’s act,” filed his declaratory statement as prescribed by section 2678, General Statutes of 1883. Whatever possessory rights were thus conferred, it is clear, not only by virtue of,the provisions of section 2686 of the same act, but in the absence of such a provision, the respondent acquired no rights of 'itny¡,kind as against the-United-States, or its grantees.
From the time of his first entry, with only such rights as occupanqy and the filing of a declaratory statement gave, the respondent so remained upon the premises until April or May, 1878. About this time he entered into a contract of purchase for this tract with the state of Colorado, and upon the 24th day of May, 1878, there was delivered to him by the state a certificate of purchase therefor; and upon subsequent compliance by hinj with the terms of the purchase, the state, on June 10,1885, issued its patent for the land in controversy, which patent, without any protest, was accepted, and duly filed for record by the respondent. The grant, as expressed in the patent, was made “subject to any vested and accrued water rights for mining, agricultural, manufacturing or other purposes and rights to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local customs, laws and decisions, or as provided by law.”
The state, then, was the immediate grantor of the respondent, and the ultimate source of title was the United States: As to the foregoing facts there is no controversy, and they appear from the testimony introduced in behalf of the respondent. Unless the character of this as school land with*563draws it from the operation of the act of congress of July 26, 1866 (Rev. Stats. 1873-4, p. 432, sec. 2339), the rights of the petitioner and its grantors therein are superior to those of the respondent, aside from the effect of the exception in the patent. This' we have decided in a recent case — Tynon v. Despain, ante, p. 240.
But it is said that section 36, by the organic act of the territory of February 28, 1861, so providing (12 U. S. Stats. at Large, 176, sec. 14), was reserved for the purpose of being applied to schools in the state thereafter to be erected out of the territoiy, and that, being so reserved, it is argued that the section was thereby appropriated to such uses as that it was not subject to any subsequent legislation by congress assuming to grant or in any way affect it. The state, therefore, it is said, took this section free from the operation of the act of 1866. To this we are cited to Wilcox v. Jackson, 13 Pet. 498; Leavenworth, etc., R. R. Co. v. United States, 92 U. S. 733, and Newhall v. Sanger, 92 U. S. 761.
The doctrine of these cases is “that whenever a tract of land shall have been once legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands; and that no subsequent law, proclamation or sale would be construed to embrace or operate upon it, although no reservation were made of it.” See Leavenworth, etc., R. R. Co. v. United States, supra.
Whether the grant from the United States was one in prcesenti, under the act of 1861, to take effect upon the. formation of the state, or was made by virtue of section 7 of the enabling act of March 3, 1876 (1 Mills’ An. Stats., p. 92), we need not determine; for in Broder v. Water Company, 101 U. S. 274, it was held, in a case somewhat similar to the one at bar, that the act of 1866 referred to “ was rather a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one ; ” from which it would seem to follow that the petitioner’s easement in controversy here was *564a preexisting right, antedating the passage of the organic act of the territory, and so protected by the rule in the' Tynon Case, supra. But, as was said in the Broder Case, supra, so we say here, the petitioner is not under the necessity of relying solely, or at all, upon the statute of 1866. Whether the title of the state was acquired under the organic act or the enabling act is again immaterial, for, by examining the patent from the state (the acceptance of which by respondent bound him by its terms), we find that this patent expressly excepts from the grant all vested and accrued water and ditch rights, of which character unquestionably the rights of petitioner are.
It will be observed that respondent does not set up a claim for damages caused by the construction of this ditch to his possessions as an occupying claimant, but for damages occasioned to him by the taking of his lands for the purposes of a, right of way. The petitioner having traced'title to itself in this right of way from those constructing the ditch, the' respondent cannot recover damages for the land thus taken. As he makes no claim for damages to his possessions as an occupying claimant, and as no cause of action therefor has-been pleaded, we are relieved of the necessity of determining whether, under .the evidence, such a cause of action ever accrued, and, if so, whether it is established by the evidence, or barred by the statute of limitations.
The other errors assigned and argued by counsel require no consideration, for the rulings of the court throughout the trial, and its instructions to the jury, were based upon propositions of law at variance with the conclusion reached by us on the main question involved. In view of this conclusion, the verdict was unwarranted by the evidence, and the judgment was erroneous.
The appellee insists that, in the event of a reversal, the-costs of the appeal should be taxed to the appellant, inasmuch as the respondent in such compulsory proceeding is not only in court against his will, but that the statute itself provides that all costs shall be paid by the petitioner.. What*565ever merit would be in this contention had the reversal been necessitated because of an error of the trial court upon some .matter connected with the issues presented by the petition, when, as here, the reversible error was committed in connection with the trial of a separate and independent cause of action injected into the case by the appellee, at least the costs in this court of an appeal from the judgment reversed for such error should be taxed to the appellee.
The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with ■this-opinion.
Reversed.