being unpatented articles of commerce which could be used upon the mechanical feed device machine or exported to foreign countries, or concededly for repair of machines sold by respondent, petitioner could legally sell the same. A detailed comment on this contention or of the cases cited to support it we need not make. The facts of the case exclude petitioner from the situation which is the foundation of the contention. The injunction did not forbid the use of the records, except in violation of claims 5 and 35 of respondent's patent. The judgment for contempt was based upon the facts which we have detailed and they show a sale of the records for use in the Victor machine, "an entirely voluntary and intentional" (to use the language of Judge Lacombe) contributory infringement.

We have seen that the Circuit Court of Appeals assumed, for the purposes of this cause, that the feed device machine was not an infringement of the machine of the patent. We may assume the same, and we are relieved from reviewing the very long and complex affidavits submitted by the petitioner to explain the same, petitioner's relation to it or its position in the art of sound reproduction. Petitioner was found guilty of selling records which constituted an element in the combination of the patent in suit, and for that petitioner was punished. Upon whatever questions or contentions may arise from the use of the feed device machine we reserve opinion.

We have not reviewed or commented upon the other cases cited respectively by petitioner and respondents in support of their contentions, deeming those we have considered and the principles we have announced sufficient for our decision.

Judgment affirmed.

VOL. CCXIII-22

Opinion of the Court

213 U.S.

VAN GIESON v. MAILE.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

HAWAII.

No. 121. Submitted April 6, 1909.-Decided April 19, 1909.

However vexatious the conduct of a litigant may be his property should not be sacrificed by reason of the court's action; and it appearing, in this case, that the existence of an order in regard to a sale of property under execution made the sale disastrous, it was proper, whether the order was valid or not, to set the sale aside and order a reconveyance on payment into court of the amount of the judgment.

THE facts are stated in the opinion.

Mr Henry Van Gieson, appellant pro se.

There was no brief for appellee.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill in equity brought by the appellee to set aside a sale on execution to Van Gieson. The bill alleges the bringing of an action for taxes by a collector, recovery of a judgment on default, and the issue of execution thereupon. It sets up various supposed technical defects in the summons and subsequent proceedings, but these do not need to be stated. It is enough to say that on the ground of such supposed defects motions were made, in the District Court where the judgment was rendered, that the execution be recalled, that the service of summons be set aside and quashed, and that the High Sheriff be ordered not to sell under the execution until further order of the court. This order was made and a time was fixed for the

hearing of the motion at an early day. Nevertheless the sheriff proceeded with the sale as it had been advertised, on the day before that fixed for the hearing, and sold three lots of land, at a very inadequate price, to Van Gieson, an assistant of his. He gave notice pending the sale that at the fall of the hammer he should require a deposit of fifty per cent of the purchase money for each parcel then unsold, a condition not contained in the notice of sale and not enforced against Van Gieson. The bill is founded on the alleged defects in the proceedings before execution as well as in the sale and prays to have the judgment declared void, and, as we have said, the sale set aside. The Supreme Court of the Territory set aside the sale and upon the plaintiff paying into court the amount of the judgment ordered a reconveyance, whereupon Van Gieson appealed to this court.

The ground on which the Supreme Court went was the single short point that the existence of the order, whether valid or not, was what made the sale disastrous. We see no reason for not accepting this conclusion. However vexatious the conduct of the appellee may have been, his property should not be sacrificed by reason of the act of a court.

Decree affirmed.

BOQUILLAS LAND AND CATTLE COMPANY v. CURTIS.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

ARIZONA.

No. 133. Argued April 7, 1909.—Decided April 19, 1909.

Under § 3198, Rev. Stat. of Arizona of 1887, the common-law doctrine of riparian rights does not now obtain in that Territory, and, as held by the Supreme Court of the Territory, the doctrine of appropriation was recognized and to some extent in force prior to and since 1833 in the State of Sonora now a part of that Territory.

Argument for Appellant.

213 U.S.

Confirmation of an estate does not enlarge it, and where the original Mexican title did not carry riparian rights the mere confirmation thereof by the United States does not give such rights to the confirmee. The legislative act of Arizona, Howell's Code of 1864, c. 61, § 7, adopting the common law of England was merely the adoption of a general system of law in place of the Spanish Mexican general system which was simultaneously repealed, and the regulation of and rights to water were by the same act made subject to the natural and physical condition of the Territory and the necessities of its people; and this court sustains the Supreme Court of the Territory in its interpretations of the qualifications imposed on the general adoption of the common law in respect to the use of water.

The right to use water is not confined under the customary law of Arizona to the riparian proprietors. Where the riparian proprietor is entitled under a general statute to have the damages to his land taken for withdrawal of water by appropriators assessed, the decree below will not be disturbed because no provision was made for compensation, it appearing in this case that the objection was technical and the point was not discussed below

89 Pac. Rep. 504, affirmed.

THE facts are stated in the opinion.

Mr. Eugene S. Ives for appellant:

Riparian rights once vested are property rights and cannot be taken away except by the exercise of the right of eminent domain. Long on Irrigation, § 12; Black's Pomeroy on Water Rights, § 9; Lux v. Haggin, 69 California, 255; Sturr v. Beck, 133 U. S. 541; 1 Farnham on Water Rights, 282; Benton v. Johncox, 17 Washington, 277; S. C., 39 L. R. A. 107; 61 Am. St. Rep. 912; Clark v. Cambridge &c. Co., 45 Nebraska, 798; S. C., 64 N. W. Rep. 239; Yates v. Milwaukee, 10 Wall. 497; Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U. S. 672; Delaplaine v. Railway Co., 42 Wisconsin, 214; Belle v. Gough, 23 N. J. Law, 624; Water Co. v. Raff, 36 N. J. Law, 635; Crawford Co. v. Hathaway, 67 Nebraska, 325; Bigelow v. Draper, 6 N. Dak. 152; S. C., 69 N. W. Rep. 570.

Appellant's ownership within the Mexican grant having been

213 U.S.

Argument for Appellant.

continucus since the date of the grant the patent operated as a consummation of such title, and also as a quit-claim of whatever interest the United States acquired by the cession. Beard v. Federy, 3 Wall. 478; Knight v. Land Association, 142 U. S. 161; Herrick v. Boquillas Land Co., 200 U. S. 96; Sturr v. Beck, 133 U. S. 541; Shepley v. Cowan, 91 U. S. 330.

The patent issued by the United States conveyed to the appellant all rights which the United States may have had in the waters of the San Pedro River. Revised Statutes U. S., §§ 2339, 2340.

The effect of these statutes has been definitely settled by this court, and the conclusion reached is that the provisions quoted were a voluntary recognition of a preëxisting right of possession, constituting a valid claim to the continued use and not the establishment of a new one. Broder v. Water Co., 101 U. S. 274; Atchison v. Peterson, 20 Wall. 507; Basey v. Gallagher, 20 Wall. 670.

The common law doctrine of riparian rights was adopted by the first legislature of Arizona in the code of laws known as the Howell Code. Article 22, Bill of Rights, Howell's Code; Howell's Code, Chapter 55, §§ 1, 2, 3, 4, 5, 7, 17, 25.

The provisions of the Howell Code are not inconsistent with or repugnant to the rights of the riparian proprietor at common law. Crawford Co. v. Hathaway, 67 Nebraska, 325; S. C., 93 N. W. Rep. 781; Thorpe v. Tenem Ditch Co., 1 Washington, 566; Ellis v. Pomeroy Improv. Co., 1 Washington, 572; Geddis v. Parrish, 1 Washington, 587; Crook v. Hewitt, 4 Washington, 749; Rigney v. Tacoma Light & W. Co., 9 Washington, 576; Isaacs v. Barber, 10 Washington, 124; Benton v. Johncox, 17 Washington, 277; Lone Tree Ditch Co. v. Cyclone Ditch Co., 15 S. D. 519.

Under the Mexican law the right of a riparian owner to the use of water was superior to that of a subsequent appropriator. Such right was preserved and guaranteed by the treaty of cession and could not afterwards be affected by territorial legislation. Kinney on Irrigation, § 292.