Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-07-10
IRRIGATION,
What has the Legislature Of Caufornla
Done in the Matter of Irrigation?

speaking OF tne subject Vi IIiSduob, SAN 49,
response to the question, What has the
Legislature of California done in this mat
ter" furnishes the following for the RECORD
UNION:
The Legislature of California has legislated
on four different methods of irrigation.
First, for the control Of the water courses,
the building of canals or bitches. and the
distribution of the water for the people in
the counties where irrigation was considered
necessary, This law was passed May 10,
1854, and can be found on page 70 of the
statutes of that year, and was applied to the
counties of San Diego, San Bsrnardino,
Santa Barbara, Napa, Los Angeles, Solano,
Contra Costa, Colusa and Tulare, the present
county of Kern being then included in Los
Angeles and Tulare. and governed as to irrl-
CATION by the same law.
This lay, as to Los Angeles county, was
never modified or repealed until March III,
1874, (Stat, p. 312); and as to Tulare county,
for one line of canal a special Board OF Com
missieners was created March ID, 1864,
(Stat., p. 1917, independent of the Board
created by the Act of 1854. but for the county
generally on April 4, 1864. (Stat, p, SGD,
a law modelled after the law Of 1854, though
modifying it somewhat, was passed. Again
on the Doth OF March, 1866, (Stat., p. 313l,
Thus the law of April 4, 1864, as amended,
applying to Tulare county, and the law OF
May 10, 1854, applying to Los Angeles
county, pointed out the only mode OF irriga-
ton applicable to the territory ont OF which
Kern county was created on the I'd OF
April, 1866, (Stat., p. 777).
So careful was the Legislature, or rather
the Representatives of Tulsre county, to
guard against the introduction or recognition
Ct any other mode of irrigation in the county
that Section II of the Act of April 4, 1864,
provided that "all Acts of a general charac-
| ter conflicting with the provisions OF this, 30
| far as applicable to the county OF Tulare, are
hereby repealed" thus guarding etfectually
against allowing corporations to operate in
| the county under the assumption that they
had authority given them under the Act OF
May IA, 1862 (Stat., p. 540), which was the
second law providing for irrigation.
Again, so careful were the Representative
Of Kern that when the law of April l, 1872
| (Stat., p. 945)-the third law providing for
| irrigation-was passed, allowing districts sus-
csptible of one mode of irrigation to be
created, Kern, as well as Fresno, Tulare and
Yolo counties, were excepted from its opera
ton. (5ee Section 20, Stat, p. 94S).
| Again, when the fourth mode providing
for irrigation was created by the adoption of
the codes (see Civil Code. Sections 1410 to
1422), Section 10 of the Political Code ex-
pressly said that nothing in either of the
! four codes affects any of the provisions of the
following statutes" viz. subdivision 81: "All
Acts creating or regulating Boards of Water
| Commissioners and Overseers IN the several
townships or counties of the State"
This brings us up to the last law passed on
the subject Of irrigation for Kern county,
viz: the Act of March 90. I1S76 (5tat., p. 547),
which does not differ materially from the
previous Acts, except that it changes the or
ganization controlling the water courses from
board specially elected for that purpose to
the Board of Supervisors, who have general
charge of all county matters. This shows
that the county did not intend to lose con-
troll of its water rights, the prevention of
waste and the economical and equitable dis
tribution Of the water for the general good
of its people.
Following this the next Legislature me-
morislized Congress BY joint resolution,
parsed March 6, 1873 (Stat., p. 1,01O) "to
reserve from sale, or grant no exclusive OWL
ership," all streams of sufficient magnitude
to supply more than one family, SO that the
water might be free, and "for the common
use of all the inhabitants, for the natural
purposes of drinking and washing, for man
and domestic beasts, for irrigating the soil,
and for mining purposes"
or what use would memorial like this
have been if the State had already allowed
private appropriation to ssiza or absorb under
corporate control the waters of this State ca
pable of being utilized for irrigation? II
clearly shows that the people of the State.
expressing their will through the Legislature,
did not consider that they had granted away
their right to control the waters of the State
for the general good, and that corporate in.
terests had become paramount in controlling
the water courses. Following up this lie Of
action, the Constitutional Convention. by
Article Ii, Section 1, declared 1.-THE use Ct
ell water now appropriated or that may here
after be appropriated, for sale, rental or dis
tribution, is hereby declared to be a puJliC
| use and subject to tie regulation and control Of
the State in the mannerto be prescribed by ldle
This emphatic declaration, that the use of all
the water of the State is a public use, was
ratified by the people; and the manner
of its use is not left to laws of the past,
but in the language of the Constitution,
is to be prescribed By lac. Where, then, sra
rested rights over the control of water and
rights by presumption 30 loudly asserted by
corporations? And as though either prin.
ciple could prevail against the sovereign 1.-THE
State when the very Act granting them an
existence (stat. 1850. p $50, sec. 30) declares
that 1.-THE Legislature may, at any time,
amend or appeal this Act and dissolve al
! cUTlOTdIlOES CIcAlCu uuOcl liz SichtioH
is not above the creator, and the commonly
expressed fear of corporations or other or
CARNATIONS in controlling the waters of the
State to the detriment Of the people, only
argues the imbecility of the people in moi
regulating the matter through the Legisla
ture to suit themselves, or in not forcing tht
Supervisors, or Boards of Water Commission
ers in counties where such organizations arr
provided for regulating the distribution o
waters, to discharge their duties according t
the present laws.
But not to speculate upon what Legis
latures may or can do in the flu
ture, so that the greatest benefit from
the use of water may be extended to tn
greatest number, the question naturall,
arises, how many Of the present organization
in Kern county, or in the other counties il
which similar laws exist. have been formed
under either or any of the laws referred t.
for the distribution of water in such counties
or are operating in accordance with the pro
visions Of these laws? If they are not so or
ganized, by what right do they claim tbs us
of water as against other users For this j
not a case in which the principle Of " first II
, time first in right prevails, but where frs
in time, in compliance with the law provide
for the subject-matter in that county, pre-
walls.
The confusion and misunderstanding of tn
principles which, in my opinion, govern tn
! distribution of water for irrigation purpose
in those counties named in the Act of Ma
Is, 1854, and kindred laws, arises from tn
superstition that any man could take waite
wherever he might find it, for any purpose
provided he did not interfere with his neigh
Dor. This was the common rule in the mines
, aud when the miners left the mountains t
| make homes for themselves and families i
the valleys, they naturally adopted the sam
4 rules they had learned in the mines, nc
I knowing that different laws had been prt
vided for regulating the use Of water i
; the valleys, where irrigation was an
will become more and more essential a
our population increases. The two modes
regulating the use of water are necessaril
d different, and Mexico, from whom we 81
q cured this territory, has long been using bot
modes, one for tine mines and the other f
: agriculture, but never allowed the law fC
0 regulating water ia the mines to operat
. where its use was necessary for farming
: Hence, we notice that our legislators as earl
as 1854, by adopting the Mexican rules f
= irrigation. prohibited the customs OF tt
mines, in using the water.courses, from gan
5 ing any foothold in the agricultural countie
n But as the principal business in early daI
j in this State was mining, all the decisions
: our Courts related to the use of water in Il
mines, and rot one can be found which TAX
: up and discusses the use and regulation
r water for irrigation purposes in the agricul
3 ural counties under the Act of 1854, ar
/ kindred laws specially provided therefor
a the counties named.
2 Precedent is so powerful principle wi
Z our Courts, that instead of recognizing Il
: fact that it is as impossible for the custom
:, and laws of miners, concerning the use
e water, to operate harmoniously with the irl
{, CATION law of 1854, in the came county, as
is for oil and water TO unite they are CO
stantly trying to find some analogous primo
pie in them governed by these o
:. decisions that viii permit corporation
;. or individuals, as first appropriation
/. to control the water.courses Of the Stat
without recognizing the fact that this is
. growing State, and that the laws and the d
!. cisions must keep pace to some extent wi
I the increasing wants of the people.
The sooner this water question is settled
legislation and legal construction on bro;