Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-07-20
IF RIGATION.
When and How Did Corporations Acquire
Any Right to Engage In Irrigation?

Chapter 2 applies to insurance companies :
chapter applies to railroads; chapter to
turnpike or plank roads chapter 3 to manu-.
featuring, mining, mechanical or chemical
purposes chapter 6 to telegraph companies :
chapter to bridge companies chapter to
religious and other associations or societies :
chapter to steam navigation companies.
No other topics were there named as subject
to the control of corporations, and you will
notice that water is not one of them; and
the necessity for controlling its use cannot
be inferred or implied in connection with
any of the topics named. except that
Of mining. 1t then becomes important and
interesting to notice the various changes
which led up to the exercise of any corporate
control over water for irrigation purposes in
connection with agriculture. You will notice
that Chapter contains only four topics But
on April H. 1858, tStat, r. 81 this chapter
was mediied by extending the exercise of cor
porate powers over two other topics, viz.
engaging in any species of trade, or Com
merce, foreign or domestic making, 30 far
six topics. Next, on April 80, 1855, lStat.,
p. 205) another modification occurred, en-
bracing two new topics, viz: wharfage and
dockage making eight topics Next. on
April o. 1858. tStat., p. 21S) corporate
powers were extended to water companies
for supplying any city and county, or any
city or towns in this State, or the inhabitants
thereof, with pure, fresh ater"-Inaking
nine topics. This last Act was the first de-
parture authorized by the Legislature inter
fering
IN CITIES AND PUEBLos
With the Mexican rule which prohibited the
exercise of individual or corporate control.
other than civic, over any aud all waters
necessary for public use in the pueblos; the
first intimstion by law that water for cities
or pueblos could be furnished by other means
than those provided by the pueblos. All
companies or corporations previously organ.
lied for or engaged in such business were
operating without the sanction of law, but
became legitimized by Section l of the Act
of April %, 1858, which extended the right
Of incorporation "to all corporations already
formed or thereafter to be formed under the
previous Acts for the purpose of supplying
any city and county, or any cities or towns
in this State, or the inhabitants thereof, with
pure, fresh water"
This, however, did not include corporations
for irrigation, irrigation being still confined
to the cooperation of the people under the
law of Nav Is, 1854. But on May II, 1862
Stat p. 540) we fiud the objects for which
corporations caA organize and operate ex-
tended to the construction of canals for
the transportation of passengers and freights,
for the purpose of irrigation, or water-p power,
or for the conveyance of water for mining or
manufacturing purposes, or for all such pur-
poses" increasing by this Act the topics to
fourteen for which corporations could be or.
ganized under the provisions of Chapter 8.
On its face this would appear to be general
law for constructing canals or for irrigation
anywhere in the State ; but on page 90, Stat
utes of 1866, its operation was prohibited
in the counties Of Nevada, Placer, Amsdor,
Sierra, klamath. Del Norte, Trinity, Butte,
Plumas md Cslaveras, and on page 605 1t
was amended so ss to prohibit its operation
in Placer county. On page 1S4, Statutes
1S67-S, it was modified SO as to be applicable
in Butte, but denied in Tuolumne and Lsssen
counties. And on page 732, Statutes 1912,
it was changed and made applicable as
amended to Tehama county. Again, no.
where in this Act is it stated or intimated
that the Act of May 10, 1854, and the Acts
modifying the same, are repealed, or that the
bars, as it were, had been let down so as to
permit corporations organized for irrigation
purposes to operate in the counties for which
the law of 1854 was provided. Nor can it be
shown that the corporation law of 1862 su-
perseded the law Of 1854 in any respect, or
was intended to operate jointly with it in
any county.
BUT IF IT WERE PERMISSIBLE
For corporations to operate under the law of
1862 jointly in any of the counties for which
the law of 1854 was provided, their applics-
ton and control could not possibly extend
beyond the construction Of the canals or
bitches, for neither in the Act of 1862 or
any of its notifications is there mode pro.
vided by which corporations can acquire or
appropriate water unless by subsection. in
70 fha r.,la
visions of the law of 1854. And when they
are brought down TO this the danger from
and the power of corporations over the water
question ceases; for under that law (Section
81, as pointed out in my previous article, the
regulation of the distribution Of water fer
irrigation is retained under the control Of the
people, through their Board of Commission
ers, and 10 private or corporate rights to
water for irrigation can, or ever has, become
vested in corporations in the coupties named
in the Act Of 1854 and Acts amendatory
thereof, while said Acts remain uurepeale1.
[ take it, then as an inClisputable conclusion
that the organization of ally corporation for
irrigation purposes before the passage of the
law OF 1862 in the counties named in the Act
of 1854 was not merely violation of that
law, but Of oil law, and that companies 80
organized could acquire no rights to the use
of water by prescription, for that implies
either the absence of all law on the subjsct
and therefore no violation of law, or else
that the user has been in accordance with OF
in subordiDation to the law provided on the
subject, and without adverse interference for
the period Of time required by law to create
the right.
AS it was found that corporations had been
organized for carrying on business under some
of the heads not specified in the corporation
oE IL Al A..
was extended so as TO cover the topics (all Of
which have already been pointed out), as well
as to modify or enlarge the scope OF their
Business, it was considered by the Legislature
necessary to pass general law by means Of
which corporations 80 situated could cure such
defects in their articles of Incorporation. Ac-
cordinely the Act Of March l, 1870 iStat.
1869-70, p. l07), was passed. But how many
of the prematurely formed corporations
availed themselves Of the privilege granted
Very few indeed, for most Of them considered
this Act of itself curative, like tho law Of
April %, 1853, in its application to water
companies organized to supply cities with
pure, fresh water-orga ganized before there waa
any law authorizing it.
The next change CT law that we find bear.
ing upon irrigation by corporations ia the Act
Of April 2, 1870 tStat. 1869-70, p. 660), which
was an effort to make general in its spplica-
ton to corporations the principles of the law
of 1862, and dsfne more specifically the mode
of proceeding for acquiring the right Of way
for canals or bitches bat it gives them no
greater facilities for acquiring the use Of wa
ter, nor does it point out by what process
they are to acquire it, or how they are to de-
termine the quantity of waters not previ-
ously appropriated"
NO FURTHER CHANCES
Occurred in the laws by which corporations