By the Court: The defendant having shown that prior to the act of Congress of July 26, 1866, it had acquired a right to the use of the water which was “recognized and acknowledged by the local customs, laws and decisions of courts,” that act operated a grant to it of the right of way, and of the ditch through which the water was running at the date of the passage of the act. The subsequent grantees of the United States of tracts through which the ditch ran, took subject to defendant’s easement.

There is no question that the government title to a portion of the lands described in the complaint was acquired by defendant after the passage of the act above mentioned; for the remainder, the plaintiff took deeds from the Central Pacific Bailroad Company, the patents of the United States to that company having also been issued subsequent to the act of Congress aforesaid. It results from the foregoing statement that the judgment of the District Court must be affirmed, unless the Central Pacific Company had a “ perfect equity” at the date of the enactment of the United States statute of July 26, 1866.

As establishing such equity, plaintiff relies on the fifth finding of the District Court, which is, that in the month of December, 1865, the railroad company completed forty consecutive miles of its road.

Section 4 of the act of 1862, “ to aid in the construction of a railroad and telegraph line,” etc., provides that (on the completion of forty miles, etc.) the President shall appoint three commissioners to examine the same, and report to him in relation thereto; that if it shall appear to him that forty consecutive miles of said railroad and telegraph line have been completed and equipped in all respects as required by this act, then, upon certificate of said commissioners to that effect, patents shall issue; “and patents shall in like manner issue as each forty miles of said railroad and telegraph line are completed, upon certificate of said commissioners. ” The law places in the President or Board of Commissioners, or both, the power of determining whether the railroad company has performed the conditions prerequisite to the issuing of the patents.

It is manifest, that until the commissioners made their certificate, the company had no vested equity which can be recognized by the State courts. There is no finding that such certificate was made prior to the passage of the act of July 26, 1866. Judgment affirmed.