Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-01-01
THE IRRIGATION QUESTION.
ITS IMPORTANCE TO THE PEOPLE
OF CALIFORNIA.
A Matter-offact Consideration of a
Leading Legislative Problem
The Present Situation.


Written for the New Years REcoRD-UNIoN by
State Engineer Vim. Ham. Hall
We have a great question pending IN
California-one which has hardly rival
in local importance in any quarter, and
certainly no equal in the scope of territory
in which it is making itself felt as a home
problem of the first order, pressing for set
Element This is the irrigation question,
now becoming prominent in every State
and Territory west of those bordering i'm
medately on the Mississippi. Broadly
stated, this question is; What shall be
done for the promotion of irrigation?
There is much misapprehension abroad
rs to the answer to this question, which has
grown from the bitterness of personal
strife over one point of the many Involved
The conflict between the appropriations of
water and the riparian rights claimants has
been made so prominent, and the partisans
on either side of the struggle have so per
sistently urged their views, that the OBJ
server is led to look upon this conflict as
embodying the whole question which the
State has 10 consider Such is not the fact
however, for no matter which way this
present question of personal rights might
be settled, there would still remain great
interest, necessary to our prosperity as a
State, impossible of full development be-
cause of the absence of system to guide
such development. There must be q settled
condition of affairs. and a definite policy
established under which irrigation enter
prise may be carried forward, whether the
riparian landowner is to control the stu
alton as to the right to use water, or not.
LET Us VIEW THE SITUATION.
The territory embracing California was
purchased by the United States from
Mexico, and by that purchase all lands not
held in private ownership became part of
the public domain of the United States.
There never was a Territorial organization
of California. but the rapid influx of people
occasion6d, after the consummation of the
treaty purchase, by the discovery of gold,
created demand for local government
and, after due demand, California was adj
mitted into the Union as a State. By the
act of admission, it was stipulated that she
should not interfere with the management
Of the public lands of the United States
within her borders. and should not DO any
meree-should not deteriorate the navigable
streams.
The search for gold was the cause of peo-
pie coming to the country. In this search
IL became necessary to use the waters of
streams, i'll such large quantities as often to
lay the stream channel below the point of
diversion, entirely dry. These streams were
altogether on public lands of the United
States; their waters were otherwise useful
TO no one, and all present in the mining
regions had an interest in their diversion
and use. The only question was as to who
might divert and use them in each in
stance. The United States was the owner
of the streams banks below and raised no
objection to the diversions above The
State Courts under this condition of affairs,
when questions came before them as be-
tween different appropriations of water, re-
cogniZed the right of appropriation, and es-
tablished the rule that the first appropria-
tor should have the first right to the use of
the water This ruling was followed by
many others on collateral points, but on
the same principle, and these were sub
stantially followed and added to, in the
same general line of policy, by decisions of
the United States Courts. Thus
THE RIGHT OF APPROPRIATION
OF water on the public domain of the
United States was established, and this
right was afterwards recognized by Acts of
Congress. Soon after the admission of Cal
ifornia as State her Legislature made
law declaring that in the absence of Statu-
tory laws to the contrary the common law
should be the rule of decision i'll the Courts
of the State. Now, the common law is the
law of England, which has been gradually
evolved from the decisions of her highest
no Of tn
existed. Under this law, it is held, the
right to use the waters of a stream was at
tached to the lands which bordered it. The
owners of these riparian lands each had
right to have the stream come to his estate
in its natural volume and purity. Respect
ing this right, each owner above might do
with the stream as he chose. If this was
the rule of the common law at the time
this law was made the rule of decisions for
Californian Courts there was created here by
that act propertyship in the right to use
the waters of streams, as an appurtenance
TO the lands bordering them and, hence,
wherever these lands pass into private own
ership, the right to the use of the waters
touching them becomes private properly
subject to which all subsequent appropria-
tons must be made. This is the claim of
the riparian landowners, and is substan-
TALLY the view held by a majority of the
members of the Supreme Court, in a recent
notable decision.
THE PRESENT SITUATION.
As the case now stands, then Waters
cannot be diverted from stream for irri-
CATION without the consent of the owners
of its banks, except where the right to
divert has been already established by pre-
scription, or use for five years without OPP
position or protest. The right of opposition
is one held by each owner. Neither the
stream nor the waters are 4 property held
in common by all the owners along the
banks, and of which each may claim his
share and take it. That is not the nature
of the right. 1t is a right in each owner
along the bank, to have the stream come to
his waterfront property; so the owner
lowest down on the stream commands its
full flow.
If this is the law, then it IS perfectly evil
dent that water cannot be taken out of the
stream for irrigation so long as any one
riparian proprietor objects and his right Of
objection is not removed. Not even all the
rest of the landowners on stream, though
their holdings constitute almost the entire
water frontage, may divert any material
portion of its water if there be the one OBJ
jector below. If this be the law, then there
MUST BE SOME SYSTEM ESTABLISHED
BY legislation, whereunder the riparian
proprietors themselves may use the waters
in irrigation, or, if they do not chose to do
so fully, then, that the owners OF back lands
may take them and use them so far as con-
Sistent with public interests. and not di-
rectly to the detriment of rights or proper
ties not Unidentified for losses occasioncd
by such use. Certainly, we are not to sup
pose that, for the want OF some such sys-
ten, and because of the existence of petty
personal rights and jealousies, the great in
terest of agriculture is to remain underel-
oped in Ii larger part of our State do not
think that the most tenacious advocate of
the riparian-right view of the matter con-
templates 9ny such outcome as this The
fact Is, that those who are making the great
contest in favor of the comm cn-law ruling.
are themselves among the largest appropri-
ators of water in the State, and, being the
lower riparian proprictorS, their point is TO
get control OF the streams by virtue of their
rights as riparian proprietorS and then to
divert their waters, or so much as they
want of them, for irrigation They say:
Give US our share of the waters rs riparian
proprietors, for rs 10 use in irrigation. ="
Thus, it is perfectly clear that if the present
ruling of our Courts is 10 stand rs the law
legislation is absolutely necessary, or the
extension of irrigation must cease.
ON THE OTHER HAND.
Now, il is contended, on the other hand
that the adoption of the common law by