Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-07-31
THE WATER QUESTION.
IRRIGATION as AFFECTED BY and AP-
PECTIEG RIPARIAN RIGHTS.
The Final Paper on this Important
Subject by Surveyor. General
James W. shanklin.


and even Judges say that they dislike to have
anything to DO with suits involving questions
of State or United States land laws, because
the practice is specially. and no one can
predict with any degree of certainty what the
result will be. 1t cannot be reduced to the
certainty of mathematical demonstration.
However true this may be concerning land
laws in California there is even more uncer.
tainty as to results when they undertake to
unravel the mysteries of the laws of sri.
parian rights )" not as applied to the rights
Of owners to use and retain control over the
land along the bank or banks of the stream
for as to that there is no dispute, but as to the
nature or extent of their right to use and d.
vert the water which is accustomed to flow in
tt streams
The opinions of people in general en- any
given subject conform usually as to what was
regarded as the law where they came from,
and are therefore as different or diversified as
the climatic and Typographical condition of
the country for these variations determine in
a great degree the necessities Of the people,
and the laws resulting therefrom must vary to
meet their demands. Uniformity Of laws
cannot be expected in States or localities
where the natural conditions are totally diff
ferept. If uniformity of climate and to-
Biography could exist all over the land, its
division into different States and Territories
would not be matter of necessity but of
mere convenience; multiplicity of Legis-
latures would be useless; one only would be
required to enact laws common for all the
people, applicable alike to all parts of the
country.
The term "ripsian rights" is one that is
in common use all over the world where the
"civil law governs or where the common
law prevails. Its primary signiicatlon is
fright to the river" and we find rivers or
streams everywhere, and, generally, people
living on their banks, reducing the land to
private ownership and making use of the
rivers-using one or both to supply the wants
of nature. From this general uss has arisen
the expression riparian rights, denoting
claim or right to use the rivers In their
whole length by the people who need them.
The first rule which obtained concerning
the use of rivers was that, in order to supply
tie common want OF water for man and beast,
they must be allowed to run from source to
outlet as they exist or are accustomed to run,
with no more or less interruption than nature
has produced. This rule was soon infripged
upon, for it was found that natures wants
extended beyond the use of water for drink
utilized, or harnessed as 1t were, and made
an auxiliary in supplying man 3 wants without
detriment to any one. Hence we find in very
early times that in England, France, Ger
many and other northern countries, the use
of the rivers for mill power was permitted
and became recognized as "ripa-
rian right yet SO restricted as not
to allow damage to be done by
such use to the owners Of land above or be-
low on the same stream, or to interfere with
their use of the water. But in arid countries
we find the use of water extended still fur
ther as in India, Egypt, southern Europe
and the Spanish colonies in North and South
America. Wherever there is q scarcity of rain
for irrigation, there the use of water for irri-
CATION is not only permitted, but encouraged
by laws which deny to the proprietors of
land on the banks OF the rivers the exclusive
ownership of the water accustomed to flow
over or through their land. The laws of
these countries step in and take into consid-
Grafton the general necessities Of the whole
people, making their interest paramount to
that of the riparian owner or of any special
class.
California was one of these Spanish colo
MES, and it is through this channel, rather
than through the English common-law," ;"
that we should look for the necessary GUS
toms, rules and laws applicable to the wants
of people settling in O country where for
six or seven months in the year there is
scarcely mora than passing shower. When
we investigate this subject rs to the older
States of the Union whose origin was Eng
lish, we find close adherence to the English
common-law" of riparian rights and
marked absence Of all statutory laws for the
guidance Of the people or the Courts yet, in
examining the decisions, we occasionally find
gradual yielding from the strictness Of the
coDmon-law principle towards permitting
the use OF water Of streams not naviga-
bic, for more than supplying the natural
wants and mill power. In Maine, Con-
necticut aid Massachusetts,, though not
in Nav York, its rise for watering meadows
was sustained by the Courts, hut not allowed
for general cultivation. So, too, in Illinois
its use for such purpose was permitted on
condition that quantity of water necessary
for supplying the natural wants of the people
below on the same stream was left unim-
paired. But even in that case the Cours
held that "whera all have a right to partici
pate in common benefit none can have an
exclusive enjoyment no rale, from the very
nature of the case, can be laid down as to
how much each one may use without infring-
ing upon the rights of others"
BY the Roman law, running water, light
and sir were put in the same category as
property, res dHL COdlu
not be reduced to private ownership. The
only deviation from this principle in England.
under the common law" is the use of the
stream for mill power IN connection with the
grinding Of grain, or in manufactures. and 0
similar departure extended to all the English
colonies in America. But even in the use Of
the stream fer mill power, the claimant Of
such right is bound to so use it as not to in
terfere with similar use by others above or
below him, because each owner OF land along
the stream is entitled to an equal use thereof
without dimi1ution in volume or velocity, as
these two factors determine its availability
for mill power, and they are his to the full
extent Of his frontage boundary, but no far
ther.
If this is q correct statement Of the "com-
mon law as to the extent to which riparian
proprietor can use stream passing over or
through his land, than it is evident that the
right to uss the water Of a stream for irriga-
ton is not an outgrowth of the 4" common
law" But the common law is the law Of
the United States except where the Consti
tuition and statutory laws of the United States
or of the State have superseded or modified
it. Irrigation, therefore, as practiced in
California, cannot be riparian right or an
oatgrowth Of the "commOn law" nor does it
receive any countenance from it whatever.
Where then do we hnd any sanction for ir-
rigation in California az riparian right
We must look either to the laws and customs
Of the country from which our State was OBJ
tanned, or else to the statutory laws OF Cali
fornia passed since it became State. 1t is
true that Congress passed law on July 2G,
1866, general in its application to all terri
tory or land owned By the United States, de-
clariug that whenever by priority of pos
session, rights to the use of water for mining,
aor;culfura1 manufacturing nr ofhpr MIR
poses, have vested and accrued, and the same
are recognized and acknowledged by the To-
cal customs, laws and decisions OF Courts, the
possessors and owners of such vested rights
shall be maintained and protected in the
same" But this law gives no protection or
rights to those who ignore State laws al
ready provided for irrigation az early as 1884.
nor can it extend over other than United
States lands. It's provisions are all in SUBJ
ordination to the laws provided or the cus-
toms sanctioned by the State; and it is a
complete recognition Of the right OF the State
to regulate by law, as to 1t may seem best,
the use of water for any of the purposes
named II il legislative action, setting aside
by the United States Of the common-law"
principles governing the use OF water:
California before it came into the Union as
State was not without Law, as il well set
forth by Brevst Brigadier.General y. Riley,
Governor OF GaliforDla, IN DIS pfoclamabtOu
Of June 3, 18l9, calling for a convention to
form Constitution for the State. He there
says: 1.-THE lava Of California, not incon-
sistent with the lava, Constitutiona and treaties
Of the United States, are still in force and
must continue in force till changed by COM
petent authority" 1t then becomes import
ant to ascertain what were the laws in Cali
fornia on the subject Of irrigation when it
came into the Union as State, as well as
the notifications which they have undergone
since.
BY the laws Of Spain. water, lands and
mines belonged to the King as part Of his
pasrirnony, and to the Prince belongs the
right of distribution Of wa.er-that being his
right, and reserved to bin, it ia a legitimate
inference that no one can take public waters
upon his private grounds for irrigation with
out royal permission, more particularly in
chat is peculiar TO New Spain" And
bv the decrse of October 10 l75f all the