Daily Los Angeles herald., 1881-11-16
RIPARIAN RIGHTS.
The Great Kern County Water Suit.

| we nave ALREADY referred TO Tie
fact that Judge Brundage Of the
Kern county Superior Court, has
decided the case Of Lux ct al. We.
HaggiH ct al. in favor OF the latter.
We have since received the opin.
ion, and the principles decided ap-
pear to be az follows:
The plaintiffs based their claims
to the waters of Kern river upon
the ground that they were riparian
proprietors, holding title under
patents issued by the State to two
parcels OF land situate in Buens
Vista Swamp, Kern County.
Kern river empties into Buena
Vista and Kern lakes, and in times
of freshet the lakes overflow and
the surplus passes into the swamp
where the Lux & Miller land is
situated. At point some fifty
miles above the PLAINTIFF lower
tract the defendants, in 1875, (be.
fore the State patents had issued to
the plaintiffs) diverted a portion
of the waters of Kern river through
the Galloway canal, and by this
means irrigated o very large area
of country previously barren, rem
dering 1t wonderfully productive.
The point of diversion used by the
defendants is located on land be-
longing to the United States and
the ditch passes over government
lands for some distance before
reaching the place where its wa
tiers are utilized.
Judge Brundage divides his opin-
ion into ten parts
The first point treats of the
PLAINTIFF contention that thecom-
mon law being in force in Califor-
mia, the law of riparian rights. as
understood in England, must con.
troll.
In considering this question the
Court refers to the fact that the
common law is made up of usages
and customs growing out Of the
wants and necessities of the public
and that 1t can only be applied
where adapted to the condition OF
the people, and the Judge inclines
to the view that the ancient law of
England recognized title by appro-
priation, and that the more re.
stricted doctrine Is of modern
growth.
In the second place it ia held
that whatever may DO or may have
been the law Of England that the
riparian principle has no applica-
ton to lands OF this State
or of the United States. In
support of this view the many
decisions of our Supreme Court
and those of the Supreme Court Of
the United States recognizing the
superior rights of the first appro-
priator on the public domain of
waters for mining, mechanical and
agricultural purposes are cited at
length. The late San Bernardino
case-Pope vs.. Kinman-is alluded
to and nothing is there found to
initiate against the previously de-
clared rules. Says the Court, "at
most all that this case can be eaid
to decide 10 that party claiming
vested rights under Mexican
grant ante-dating the inception of
any customary law could not be
said not to have acquired under
the civil law some riparian rights.
What those rights were the court
expressly refused to decide."
The third point passed on is that
there Is nothing in the Code, Sec
tions l4l0 to 1922, changing the
doctrine already announced or
recognizing the paramount char
acter of the riparian right.
A fourth reason assigned ia tina.
II the riparian law prevails to its
fullest extent, yet even then the
defendants would have right to a
reasonable use of the waters Of the
river. Irrigation in arid climates
is reasonable use and the quanti-
ty appropriated by defendants and
the mode adopted by them to con-
summate the appropriation are
held to be in conformity with the
demands of the law upon that SUBJ
ject.
The fifth proposition discussed
pertains to the question as to
whether the plaintiffs have any
right to resort to O court of equity
for an injunction without having
first established their title at law.
On this branch the Court also
seems to view the matter adverse
ly to Lux & Miller.
The sixth reason given why the
plaintiffs should not prevail is that
they have been guilty of laches-
have slept on their rights. If they
intended to interfere with the de-
PENDANTS appropriation they should
not have permitted the latter to
spend large sums Of money in con-
structing their canal and improv-
ing the surrounding country with
out objection or protest.
The seventh point upon which
Judge Brundage gives his opinion
is that after all the plaintiffs are
net riparian proprietors. They are
located in tract of country some.
times overlooked az before men,
toned, but their lands do not bor-
der upon or touch any channel
through which the water usually
flows, and they are not in O posi-.
tiOn to acquire privileges by virtue
of riparian proprietorship.
In the next place reference is
made to the fact that the plaintiffs
claim territory granted as swamp
and overlooked land, and In this
case they are seeking to enforce u
supposed right to have water flow
down upon and inundate their
swamp!
As they own the swamp itself.
and not the land bordering upon 1t,
they cannot, even If their lands
were portion of the bed OF Kern
river, claim as riparian owners.
The ninth point relied on is
merely incident to the Others. At.
tsntion is directed to the conse.
quenees which would follow the
enforcement of suoh a remote