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


governmental conditions which have long
ceased to exist, and to which no parallel
could ever be found in this country. Ri
parian rights as settled under the English
law belong to that feudal system under
which popular claims may be said to have
been ignored. The land and its appurte-
nances were held in fee by chiefs, whose
convenience alone was considered. There
were then no commercial requirements to
be thought of, and the landlord claimed
the water which flowed through or past
his holding, without any regard to the
rights of those who lived above or below
him. Custom has rendered this arbitrary
and crude system familiar to the English
people, and they have gradually adapted
themselves to il, but we do not think it
can be argued that it was in any true sense
the result of an attempt to meet popular
requirements, or that it has ever been
specially suited to the needs of England.
The Colorado Courts, as our correspond
ent points out, have taken the rational
method of substituting system adapted
to the wants of the Colorado people, for
the English law. The principle underiy-
ing this course is one which California leg
islators and Judges may do well to accept,
but it does not follow that the Colorado
method is necessarily the best for this
State. In fact the adoption of the Colorado
principle requires no more than that what
ever system is adopted shall be in harmony
with the environment; and it is clear that
this principle could not be faithfully car
ried out by scheme which forced upon
State having diverse needs, cast-lron
plan of any kind. The one trustworthy
method of procedure in revising our laws
relating to the use of water is to apply to
every district such regulations as best tit
its necessities. We have here region in
which irrigation is needed, and another
region in which mining is the paramount
industry. We cannot afford to adopt
system of riparian rights which, in order
to secure freedom to cultivators by lrrlga-
ton. requires the farmers of the northern
part of the State to submit to ruin by the
precipitation of mining detritus upon their
lands. Neither can we afford, for the
sake of stopping this evil, to deprive the
southern irrigators of the facilities which
are indispensable to them.
We cannot, in fact, suit the circum-
stances to the law we must take the
opposite method, and adjust the law to
the circumstances. The end to be sought
by all legislation is the securing of the great
est good to the greatest number. 1t can
never be regarded as wise legislation to
sacrifice the rights of any citizens to any
other citizens when such sacrifice is by
any possibility avoidable. Experience has
shown that it is impracticable to frame
riparian system which will by one set OF
regulations satisfy the requirements of the
whole community. We should, therefore,
cease to strive for such uniformity, and
content ourselves with so elastic scheme
that it may be applied with equal justice
and benefit to as many differences of condi-
ton as are to be dealt with. There are
regions in California where the Colorado
plan is best adapted to the popular needs.
There are other regions where that plan
would prove disastrous to important inter
ests It should be clear from these facts
that the main requirement is not cast
iron scheme Of any kind, but the securing
of equal protection for all manner of rights
and necessities.
The English riparian rights law is one
which, in our judgment, ought to be dis
carded altogether in this country. The
idea that it is necessary for the protection
of popular rights is fallacious, since those
rights can be guarded without resort to any
such clumsy and artificial theory. The
maxim SIC atere tho ut atieRum non
lcydds, constitutes an independent and
comprehensive tasis for protective and
remedial legislation, and does not need to
be fortified by resort to feudal theories
which have no raisOn d'etre in an Ameri-
can State. The prediction for the English
common law has been productive of far
too much obstruction and mischief already,
and we should be glad to welcome ten
dency to discard that model. Adapta
ton Of the law to the actual requirements
of the situation is the one great touch
stone of its soundness and applicability,
and whatever doctrines fail under this test
ought to be rejected without hesitation.
If our lawyers could shake free from the
numbing clutch of the English common
law in many things they would find their
advantage in it, and progress would be
smoother as well as more rapid if this par
alyzing influence of the dead hand were
once overcome.