Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-01-01


establishment of the right of appropriation
as against that of riparian rights. Let US
assume that this right of diversion and use
exists, and then see what system we have
for the promotion of irrigation.
OUR PRESENT SYSTEM.
In 1854 the State passed law providing
for the appointment of Water Commas
sioners in the several counties and the
issuing of water-rights or privileges for
irrigation. Other laws for the several irri-
CATION counties, drawn upon the same
general plan, have from time to time been
passed. In 1872 the Civil Code was adopted
as the law of the State. Title of this
Code provides for the requirement of right
to use water by appropriation. 1t is i'll
pursuance of privileges extended by these
laws that the appropriations of water and
the irrigators are now advancing in the de-
velopment of irrigation enterprise. AL
though there is law called one to promote
irrigation, in the statute books, it is dead
letter, and in no way awaited of. This is
all the legislation there is bearing On the
main question.
These are the laws authorizing or
recognizing the right of appropriation and
use of water in irrigation, and there the
legislation ends, and the irrigation system
set up by the State ends. Although the
right of appropriation is recognized, there
is no provision whatever for the registra-
ton or recording of rights perfected under
the law, such as it is.
THE RECORDING REQUIRED
Is mere preliminary declaration of inten-
| ton TO appropriate water. The fact OF ap-
preparation and use, UPON which alone
under the law itself, all subsequent right is
| based, is not required to be recorded at all
| No knowledge is had in any irrigation
county in the State of the extent of actual
| APPROXIMATIONS and the good faith that has
| been used in following out the law. All
these matters, except where some facts
| have been brought out in the trial of indi-
! yidual cases, remain unrecorded and I'M
| known to the public. Even the records of
intention are unintelligible for the most
part i'll the individual recordings, and often
| these are almost impossible of identified
| ton and application to any particular exist
| ing work of diversion. The water-right
claimants may know which are their
claims in each case; but no stranger, no
matter how intelligent or well versed III
such matters, can go into any irrigation
county in the State and tell how much
water is claimed on any stream, from the
records, much less tell what claims have
been made good and what is the actual
state of water-right matters. This is a
point of the gravest character. Under
| such a condition of affairs the irrigation
interest cannot prosper, whether the ripa-
| rian-right doctrine is applicable here or
not. There must be some definition and
recordation of the extent and dating of
each claim to water, just as there is to each
ownership of land, else litigation over
| water rights will reign supreme in this
what it is necessary to prevent in order to
promote irrigation Assuming that rights
to water by appropriation exist and are to
continue to be acquired, there must be
some other law for their protection from
each other than we now have, and some
system whereby the public generally may
know their extent and dating at any period
of time.
GOING A STEP IN ADVANCE.
Going step further, let us suppose that
all existing rights by appropriation were
properly of record. What system have we
for the protection of the interests of future
appropriations, of the interests of the people
at large, as against the appropriations Are
we to go on, as now, with the waters of the
country gradually passing into private
hands, without provision for any regula-
ton of or accounting for their use? with
out PROVISION lOT lHc pTOttctlOu Vi lldNISd
ton and other interests which the desired
modification of the riparian right cannot
sweep away? Let it be known that it is
only the existence of this struggle. made
on the riparian right standing ground,
against appropriation, which has held back
very many enterprises for the diversion of
waters from the streams, and which has
prevented appearance in the foreground of
other contentious quite as alarming to APP
perpetrators and to the public generally as
is that which now occupies attention.
The fact is that California has pursued
the very worst policy imaginable with re-
spect to her streams and waters, at least in
so far as their use by irrigation is con-
cerned. She has tried to apply make
shift policy, adopted to meet the require
ments of mining population in an un
settled country, to the necessities OF a great
and widespread interest striving 10 grow
up in a settled land. There is no precedent
for our water-right laws. The unrestricted
right of appropriation does not and never
has existed in any irrigation country.
Neither Italy, France Spain nor Mexico,
much less Egypt or India have ever adj
mitted such principle. Waters in these
countries may be used in irrigation, and,
with few exceptions, riparian claimants
cannot prevent such use. But the right to
use is in every case acquired only under
definite permit issued by some government
authority, except in the case of diver
sions insignificant in amount made from
non-navigable streams and torrents in
Spain and Mexico. We have frequently
heard it asserted that the laws of Spain
and Mexico recognize the right of appro-
priation rs we have established or sought
to establish it here in California This is
not the case. There is positively no prece-
dent for our system.
THE METHOD IN FRANCE.
In all other countries there is Il govern.
ment of the streams by administrative of
ficers, and the diversion and use of water is
the subject of special grant and general
regulation. In France the riparian right
exists on streams neither navigable nor
iloatable for RATS or timber, and none save
riparian propretors can acquire the right of
diversion until all such claims by riparian
proprietors are satisfied. But even these
proprietors cannot divert waters from their
bordering streams until their project has
been sanctioned by Government author
tiles, after due examination of the whole
case for the stream and waters sufficient
| for domestic purposes must at times be suf-
fered to pass on down the channel. The
fiOatable and navigable streams are public
property. Rights to use their waters are
subjects of special grants to such grants
are attached conditions governing the di-
version and use Of water under them and
they are all subject to general regulations
| and executive rulings concerning the
streams, as administered by authorities
specially charged with such duty.
RIPARIAN RIGHTS IN ITALY.
In Italy there is no such thing as riparian
| rights on any streams, except on insigniti-
cantly small rills and streams rising wholly
on private lands Yet there exists no right
of appropriation on the part of anyone
, The system is substantially that outlined
above for France, only more strict in the
matter of conditions and regulations.
THE LAW IN SPAIN.
In Spain riparian right exists on
streams rising on private property; and
riparian proprietors on such streams have
Ethe right of usefuily employing the waters
III irrigation, commencing with the one
whose land IS highest up on the stream !;
that is to say, the privilege Of acquiring q
right to use, by diversion and use, is accord
cd to the upper riparian proprietor first,
and thence on down in the order of stu
alton on the stream; with this exception,
however namely: that the owner of both
banks of such stream (Of an estate which is
crossed by the waterS) has the privilege in
precedence of the owners of only one bank,
0