Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-03-03

ihsve examined the question. and very few hav'
| studied the law as preparation. | know law
| yerS are very badly abused sometimes for up
holding the law but many man has had reasoi
! to congratulate the law and the Court wnel
they sustained the principles of justice and right
think. the common law of Englant
! with reference to the riparian right i
substantially the law in California. Tit
! bill here says that the provisions of the com
| mon law of England with reference 10 ripanai
I rights are hereby declared TO be repugnant 4
and inconsistent with the climate, topography
| physical condition and necessities of the peopl,
of this State" That question has been litigated
! 1t has gone TO the Supreme Court of the State
! The Supreme Court of this State, sitting
Court in its majesty. and under their oaths, ant
under their consciences, have declared that tina
| law is the law of the State. | understand tina
that case is still pending before that Court, anC
| that they have granted rehearing in that ease
in order that this great question might be full!
! argued, and it has been extensively argued
Bet while that body is considering this grea
| question, right ia the midst of it, we ar,
asked here not only TO set aside their decree
but absolutely to criticize their Judgment. II We
have no confidence in our Courts know no
where to look for the protection of the citizens
l. for one believe that the decision il that cast
is III harmony with every decision in this State
and very nearly every decision in the CniteC
States on this and kindred questions. l am not
ready to say that that portion of the common
law of England which relates to riparian rights
is hereby declared repugnant to and incousist
ent with the climate, topography, physical con
State. There are people i'll this State, and ma
jority of them, unfortunately, that are in favor
of it, but there are some who are not. In fact,
the interests of this State are SO diversified
and the climate is so different, that it is
| impossible to lay down any one rule that Will
subserve them all alike. The climate in this
State varies very much. IN shasta, for instance.
it rains to such an eXtent-I heard it asserted
that gentleman who kept rain-guage up
there gave the result of one season S experience,
and when he tod it they doubted his veracity,
and in fact it ruined his reputation for veracity
ever after In other portions it rains less and
in others q little more or a little less and | am
informed by the State Engineer that the rain
fall in this State IS diversified to great extent.
Therefore, irrigation in q great portion OF the
State is not required at all. But we are sought
here to make a system of laws to irrigate lands
by taking the water from one man to irrigate
the land ofanother. ] believe the common law
of England is practically the law of this state.
That is founded on Il statute passed in l7T6 by
Congress, in which ii said that & man who
owned land ON two sides of Il stream should
have substantiallythe rights of riparian owners.
Therefore, We are not lett entirely to the decis-
ions in England, and the common law OF
England, to define the property rights of the
people of California. 1t is by an Act of Con-
gTeSS. AID this State has no power under the
Constitution to abrogate it, and it has been de-
cided since, if ! recollect the case, by the SUI
preme Court of the United States under
that very statute, that those rights were
vested and could not be interiered with.
L
trine. so to speak, for the purpose if we
can TO give water to those who desire 10 irri-
gate and which would renew the wealth of the
State. ! am willing 10 infringe to some extent,
but let us stop and see what we are sought to
do. | am a riparian owner. 1t is sought TO con-
denim the water which flows in the stream by
my house. and by my farm. TO lrrgate Senator
TaylorS farm for instance. | say that the Leg
iSlature has no power to condemn my water for
that use. ! say 1t cannot be done. For no use
on the earth can it ever be condemned except
for public use. What is Il public use? Why,
the very word itself is significant. 1t means eX-
acty what it says. \ public use as contra-dis-
tinguished from a private use. For this Legis-
Iure TO say that you can condemn water that is
vested in the owner of the soil, oran incident to
it-!or il is tantamount to that-simply to irri-
gate this or that mans land. would be to in
fringe all the laws that ever haze been en-
acted in any country iii the world. Why? Let
lis see. Let Us take the laws which are in per
feet harmony in this state. " Eminent do
main is the right OF what? 1t IS the right of
the people or Government to take private prop
erty for public use. This right may be eXer-
cised in the manner provided for by law. That
is Section 1857 of the Code of Civil Procedure OF
this State. Upon no other theory can any mans
property ever be taken. No man should ever
be compelled to litigate the rights to his prop
crty. The man has no right 10 be driven into
Court to litigatc that which is wrong TO be
compelled to lttigate an attempt TO take his
property for purpose which is not manliestly
public use. Is a single l7diyidual the people
Is a single individual the Government? No.
The necessities Of the Government; the neceS-
sity OF keeping Governmental agencies; the
necessity of giving light TO Il municipality and
to the community and TO appropriate property
for public use, was the origin of the sovereign
power 10 condemn property for that use. Let
us see when it is condemned who it belongs to.
There are Il great many gentlemen in this Sen
ate who will remember that some time ago we
had some discussion, III what is known as the
late extraordinary session, as to what was
public use. The Civil Code says a
acquire private property for any use specified
in Section 123S of the Code of Civil Procedure.
When use the words 1.-The people" | mean
they are the Government, and they may eXer-
else this right. When | asked the question, g Is
one individual the Government | meant
what | said. but did not mean it literally. l
mean that man may manage some Institution
that is deyoted to a public use, and that person
Tor his private use condemn that property.
When railroad company condemns land or
any other corporation, II their charter is for
ieltcd, that use remains in the public, and re
mains in the State. Talk to me about taking
one mans property to make another one rich
II cannot be done under the Constitution, and
it cannot be done with the sanction of law.
Now let us see what is public use. | read from
Mills Oh Eminent Domain, Section II. Reads.
Now have case which illustrates what
was saying a little while ago. The senate viii
understand that this doctrine here laid down is
the doctrine that | contend fcr-that it must be
public USE, and the explanation given here i
the best explanation in the world. What is u
public use! 1t is the enjoyment of use which
affects the public The franchise Tor a road, for
instance. gives the public the right in common
with me to use it, though may collect the tolls
for that use. \ city can condemn water for the
purpose of supplying a municipality. Why?
because every man in the city can buy the
water. Can any. man say that because he
owns 100 acres OF land that he can
condemn water for his farm? No. Why
not Because the very moment ! go there Oh
his farm 1 am Il trespasser If | can condemn
land or water to irrigate my land, the State
should go further. and say that any man can
have any portion OF that land that own by
paying me for it, and thea, by cultVatiug it III
common with me, the use becomes public. But
the very fact that on that land no man dGrcs put
his f0ot-it IS my home and castle, and is pro-
tcctcd by the law rs the most sacred right that
man can conceive Of That The Legislature has
power to condemn one mans property for the
purpose of ifrigating another mans property
IN my opinion cannot he supported by reason or
logic. undertake 10 say there is not case III
the civilized world that can be found to support
it.
The Senator then quoted from the case of An
dcrsCn vs.. the Kern Drainage Company, Indiana
Reports Vol. XIV, at considerable length, on
the question OF what constitutes pubic
use.