Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-05-23
Communicated
IRRIGATION VS.. RIPARIAN RIGHTS.

By the old California doctrine of appropri.
alton Of water, the water belonged to the
first appropriation, and as long as he held it
for use and not for speculation, the law pro.
tectel him in his right to it. This doctrine
was enforced by the Supreme Court as
applied to the numerous bitches and canals
that diverted the waters of the mountain
streams and conveyed them thence to the
same principle has been applied in all the
mining States and territories. In Colorado,
where irrigation is a necessity to agriculture,
as it is in this State series of able decisions
had recognized the right of diversion of a
water course to irrigable lands, and over.
ruled the old common law doctrine of riparian
ownership. BY the latter doctrine it is
claimed that the owner of land at the mouth
or on the lower part of a stream, however
large it may be, or however essential the use
of it's waters to the development of extensive
tracts, may hold it In full property, as he
does his land, and prevent any use of it by
others that will diminish its volume or soil
its purity, even though he does not and can
not use it himself. In case of a right by
hppTOpfldtiOu tHe parry dppIOpIidIluB ls huU-
ject to the control of the State and must put
the water to continual and beneficial USE
In the other cage the water is his absolute
property he is subject to no State control,
and may use the water or not, as he deems
best, as he may the land by which it flows
In Colorado. these conflicting systems were
litigated before the Courts; and as our Su.
preme Court did in early days in reference to
mining rights, that Court selected the sys-
tenn best adapted to the wants of the State
the system that would confer the widest ben
eits, and declared that the conditions of the
State made the English riparian doctrines
inappl1cable and injurious to public interests.
Our Legislature has tried for several years
to inausurate some system that would make
irrigation possible, but has always had before
it the forbidding specter of riparian rights.
Some Of the local Courts are now struggling
with the question, and are haunted with the
same spook. 1t seems impossible to reconcile
the conflicting interests, and it may be neces-
sary for the Legislature and Courts to cut the
Gordian knot, and deal with the question as
tie Colorado Court has done, as one requiring
a reference to first principles and the general
good.
In country like England the law of ri
parian rights is permissible. There irrig alton
is entirely unnecessary, streams are numerous
and run full to the sea at all seasons of the
year, and their principal use is to turn the
wheels of machinery. But no such system
could have grown up in land unfettered by
an inherited code, where broad lands lie
under the sunlight, needing only irrigation to
cause them to bear abundant harvests, but
perpetually sterile without it.
The colonies of Fresno depend upon the r
power to divert water from streams that do
not actually run through their lands. Kern
county has hundreds of thousands of acres
fertilizsd by irrigation that would relapse to
sterility under riparian doctrines. Los
Angeles great increase Of population ard
productiveness is due to the same cause. All
through the foothills the artificial rivulets
carry blessing to vineyard and garden. Irri,
CATION is the great need of agriculture from
the little mountain vineyard to the great
grain fields. and sure crops cannot be de-
pended on without it, while on thousands of
square miles crops are impossible without
extensive and repeated irrigation. Hence the
Legislature appropriated money for scien-
tific report on the best mode of utilizing the
waters OF the State for that purpose, and it
has been proposed to inaugurate State sys-
tenn of irrigation. While there might be
some question of the wisdom of such meas
ure, the fact that such movement has been
contemplated illustrates the great want of
the State to be some means of developing
its resources by utilizing Its water courses to
convey fel tility to its barren plains.
If the doctrine of riparian rights should
prevail, neither public nor private enterprise
in redeeming our great deserts would be pos
sible. TIE numerous canals and bitches that
have BEEN constructed will be rendered use
less, where prescription does not protect
them and further works of that kind will
be interdicted. The many thousands OF acres
redeemed by them will lapse into sterility,
and the thriving homes springing up in the
wilderness viii again become the abodes of
the owl and rattlesnake. All that will be
necessary to keep great extent of country
uuoccupied viii be for a few spectators to
secure footing at the sink of the lesser riv-
ers, or on the margin of streams, and from
that point of vantage they can have the broad
reach of valleys and hillsides for unlimited
stock ranges, with no neighbors or obtrusive
civilization to trouble them.
It is possible that the English theory of
riparian rights has become SO strongly en-
crusted on the body of our law that it must
be followed, no matter what mischief it
may do to the real interests of the State.
But there are many debatable propositions
connected with its application, and the Courts
would do well to strictly construe its claims
where they conflict with the policy and pros
psrity of the State.