Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-07-31

| cur therein" (Hamilton's Mexican Laws,
! p. ll5) Where then do Mexican grantees
ind law giving them exclusive rights as to
riparian owners, and where can the founda.
ton be laid for claim by prescription as
against the law and without the sanction Of
the King or State?
Now, leaving the Spanish and Mexican
law, let US examine the water question in O
State and Territory. once Mexican but now
American, as regulated by their Legislatures
since they became psrt of tie United
States, and it will be found that by Legislative
enactment the same principles which obtained
under the former government have been per.
petuated under ours, thus showing that the
control of water fer irrigation is not subjec.
to the will or caprice of individuals, or that
the first appropriators thereby acquire title
to it in fee over others coming after them,
whose need of it may be equally as great.
The General Laws of New Mexico, Act oi
July 20, 1851, say:
''Section l. All the inhabitants of the Ter
ritory of New Mexico shall have the right to
construct either private or common aeequias
(ditches(, and to take the water for said
acequiss, from wherever they can, with the
distinct understanding to pay the owner
through whose land said acequias have to pass
just compensation taxed for the land used.
"Section 2. No inhabitant of said Terri
tory shall have the right to construct any
property to the impediment of the irrigation
of lands or fields, such as mills or any other
property that may obstruct the course of the
water as the irrigation OF the field should
be preferable to all others" Section g. Act
of January 7, 1852: "All rivers and streams
of waters in this Territory formerly known
as public bitches (acequias) are hereby estab.
lished and declared to be public bitches. "
By reading the General Laws of New Mexico
from pages Is to % inclusive (all relating to
irrigation and placed there as the first subject
of legislation because of its importance), our
legislators may learn some lessons beneficial
to themselves and to the people of the State
if adopted in principle and practice.
Now let us turn to the General Laws of
Colorado and we will find as follows on page
515. chapter 45:
Section l. All persons who claim, own or
hold possessory right or title to any land or
parcel of land within the boundary of the
State of Colorado, as defined in the Constitu-
tion of said State, where those claims are on
the bank, margin or neghborhood of any
stream of water, creek or river, shall be en-
titled to the use of the water of said stream,
creek or river, fer the purposes of irrigation
and making said claims arabic to the full ex-
tent of the soil for agricultural purposes
" Sec. 2. When any person owning claims
area exposed to said stream to obtain suf-
fcient fall of water to irrigate his land, or
that his farm is too far removed from said
stream, or that he has no water facilities on
those lands, he shall be entitled to right Of
way through the farms or tracts of land
which lie between him and the stream, or
the farms or tracts of land which lie above
or below him on said stream, for the purposes
herein before stated
"Sec. T. Ia case the volume of water in
said stream or river shall not be sufficient to
supply the continual wants of the entire
country through which it passes then the
County Judge Of the county shall appoint
three Commissioners, as hereinafter provided,
whose duty it shall be to apportion in just
and equitable proportion a certain amount of
said water upon certain or alternate weekly
days to different localities, as they may in
their judgment think best for the interest of
all parties concerned, and with due regard to
the legal rights of all"
Nothing could be more simple and compre-
hensive in its application to the wants Of all
the people, giving to each, wherever his land
may be situated, o right to share in the use
of water in common with his neighbor more ia
vorably situated near the stream. Mine and
not thine has no place in the laws of Colo
RADIO and New Mexico in giving exclusive
right to the first appropriation of water. We
trace their laws on the subject of irrigation
to the iame common origin as our own law of
May 10, 1854, viz, to the laws Of Spain and
Mexico, and not through the common law
of England ; and none could know better the
character of the country and the wants of the
people in the southern part OF our State than
those who aided in passing the law of 1854,
which is equally comprehensive in providing
for the wants of the people for all coming
time as the laws referred to.
BY the term "riparian rights," as used 10
Colorado and New Mexico and other countries
Of Mexican origin, they mean the common
right of all the people living in the vicinity
of the river to share equally in the use Of the
water, first for satisfying their natural wants,
and after that for their artificial wants, such
as Irrigation and mill-power But no idea Of
exclusive control over or ownership in the
water as superior right or title in fee can be
found, except where the evidence is clear that
special grant Of the water, as water, and
not as an accident to the land, was obtained
from the King or sovereign power and this
cannot be shown, think, in connection with
any Of the Mexican grants in California, ex-
cept to some of the pueblos.
The substitution of the authority of the
United States in California in place of that
of Mexico, undoubtedly introduced and made
the common law" paramount before the
State was established and laws therefor were
created but by Articles and 9 of the treaty
OF Guadalupe Hidalgo. property rights Of
every kind were to bs inviolably respected" +"
ard therefore the change of governments
neither enlarged nor diminished the rights Of
grant-holders to the use of water for irriga-
ton. If, therefore, the Mexican, law did not
give persons living on the banks Of streams
any superior or special privileges as riparian
49,,
mon enjoyed with others, neither did nor
could they acquire any greater rights under
the common law" during the interim be-
tween the acquisition of the country and its
erection into State for under that law, as
already shown, no right to water for irriga.
ton was ever granted or could attach.
Therefore when we find the term riparian
rights used in any of the laws modifying the
law of 1854, which did not contain any such
expression, we have no authority for attaching
to it any greater import than it could or did
have under the Mexican law or common
law" unless some special or different mean
ing has been given to it by statute, and none
such is found in the Codes. Those who claim
superior or exclusive rights because they are
riparian proprietors must either consider
themselves fully sheltered behind the general
ignorance which prevails as to the meaning
Of the words or they must rely upon the ina
bility of their neighhors to fully test the ex.
tent OF its meaning.
Ny object in writing these articles has been
TO call attention to the necessity OF providing
some general law on the subject Of irrigation.
and to chow that no vested rights have been
acquired by individuals, by corporations or
by riparian proprietors, prohibiting the Legis-
lsture from enscting, as did the Legislatures
Of Colorado and New Mexico, a general,
practical law on the subject, suitable for the
wants Of the people in growing State and
for all time. / fully believe that whatever
doubts existed az to the authority Of the
Legislature to enact laws on this subject, en-
tablishiDg common standard tor all, that
the present Constitution has brushed away
all such obstacles, as pointed out in my first
article. This view is strengthened by the rel
cent decision Of the Supreme Court Of tbis
State in the case Of the Spring Valley Water
Works Va. the Board Of Supervisors of SAP
Francisco, wherein they define the power
conferred by the present Constitution over
the water question in all its phases
l have not aimed at pointing out what the
legislation en this subject should be, bat
merely to show that the Legislature has en-
tire control over the subject. and that its itn.
psrtance demands the serious consideration
Of the Legislature at "a early day a. posi-
bic. The particular character Of the legisla-
tion required comes especially within the
province Of the State Engineer. VIM. Ham.
Hall. and | would call particular attention
to said officers report Of 1881 70 the IIegisla.
ture. He has therein elaborately treated the
subject Of irrigation, and pointed ont what
he considers necessary to be done as prelimi.
nary to legislation. Whether CT not hiz sug-
gestions are the best that can be devised 10
meet the wants Of the State and guard against
class legislation. he has furnished valuable
information on the subject for the considera-
ton Of the Legislature and the public. We
agree as to what should be done were sll OBJ
s.acles removed, but we differ in this: He
recognizes the existence Of vested and ex-
clusiye rights to TIE uze Of water by prior
appropriation, or that whatever the present
claims may be they muss frat be ascertained
and defined by Board of Commissioners or
the Court, then be recorded and made
servitude for the specified quantity Of water
90 found for all time, before intelligent legis-
lation can be had on the question while l
hold that the right to control the water ques-