Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-02-20

fairer provision could be made than the
one here proposed, namely, that the one
should buy the other out. That is the only
way to bring peace in this State. The interests
cannot be reconciled, because the doctrine that
the waters must run in their natural channels
is destructive of the doctrine of irrigation. No
halfway measures will do There cannot be
any compromise. The waters must either flow
in the rivers or they must go out and water the
thirsty soil. The doctrine of the English com
mon law respecting the rights of owners of land
along the banks of rivers and streams is not
consistent with the best interests of this section
of the country, which mCst be conceded on all
sides; therefore, if that has been the law of this
State it must now be wiped out. or the other in
terest must go TO the wall; so let us understand
that, and, as understand it, that is the ques-
ton which is presented by this section.
CoX-The gentleman says we can get our
rights by adjudication. l would like to ask how
he can explain that to me.
Reddy-They have the right to go into Court
and have it determined whether they have that
right or not, and whether they have been de-
prived of that right The Courts are open for
the very purpose OF determining that question
and if they have right to the water and to in
sist that it shall remain in the streams the
Courts will so determine, and no one will inter
fere with them.
Cox said he understood the answer perfectly.
The method would be that the Board of Super
visors to be appointed will have an arbitrary
power to conduct these irrigation suits They
would reside in Fresno Where he is interested
is some 100 miles off, and he would be under
come by his property in that district honestly,
and he not ashamed to stand up and de-
fend it. Much had been said against the owners
of these lands. 1t was said it was a fight be-
Carr. He did not care what they said he
was in the Senate as a Senator to do
his duty and he intended to do il. and
defend his rights He described upon A man
the lands owned by himself and associates.
which were owned by them since 1868. They
had built Il levee and weirs to catch the spring
waters, to rrigate the land, and cut it up and
sell it. Since 1877 they had had no water.
These gentlemen had bought a canal out and
diverted the water out into the desert country,
where they had bought land at twenty-five
cents an acre, and had made partial success of
about $4,000 acres, while they had destroyed
1916 900 acres. He was placed i'll antagonism TO
such men as Haggin and Carr, who Sitting in
their office. by their management, their money
and their sagacity and their education could
overcome such little mortas as himself He
had sat in the Assembly and listened last night
TO the action on the question: and finally
thought the best place for him was to go home
TO his family, and as he went he asked himself,
what had they left if this bill passed? He was
not afraid of the legislative act. but he would
be ruined by the law suits which would follow.
Reddy-I desire to call attention to the amend
ment The amendment recognizes riparian
rights in this State, and then undertakes to say
that we shall give away a considerable portion
of that riparian right. The very principle con
tended for is here violated. The amendment
says: g The right of riparian proprietors to the
use of water in running streams for actual fami-
ly and domestic use shall not be impaired by the
provisions of this Act" That re cognizes riparian
rights. The very purpose of this section is to
destroy the riparian doctrine for the future.
:" And the appropriation, diversion and use of
the water of such streams except the use by said
riparian owners before stated. shall be subject to
appropriation and diversion and use for manC-
featuring, mining and irrigating purposes" Ger
tainly this amendment presupposes the riparian
right 1t is founded on the theory OF the ri
nal being =
where do we get the right TO limit the supply Of
water How could we interfere with it?
How could we say that Il man who owns
all the water in stream shall only
| have so much of it as shall be neces-
sary for his domestic wants? That is an
| incorrect principle. If the English common law
prevails these rights are vested in him, aad it
Is impossible for this Legislature to give away
one drop of the water to anybody else. 1t would
be unconstitutional Of course the other ques-
ton Will come up and be discussed, viz: whether
the interest of the irrigatOr or the riparian pro-
prietor represents the greater public use. That
is for this body to determine; but l apprebend
| that is already determined by every man on this
| floor. Everyone knows that without the waters
OF these streams the State cannot progress at all
1t will so backward because the water has to go
back into the stream III all Kindness to Sen
| ator Cox. let me call attention to one or two
points. First, it is said that Henry Miller is a
| good man, which is not disputed. join with
| the Senator in that I also wish to add that he
is one OF the largest irrigators in the State,
4
necessity of abandoning the riparian
| doctrine and turning the water out on the land.
Ii it is good for him, then it ought to be good for
the State, and the principle is thus established
| that the men who claim these lands seek to turn
them out and irrgate this land. l understand
| all the water required by Mr. Miller has been
taken out or he Is preparing to take II out, and
take ii out rs rapidly as possible Senator Cox
says the water described in the map exhibited
to this Senate flows through portion of his
land, and goes clear through it, and | under
stand the Senator pointed 10 whole lot OF land
which he wants to use the water on. What for?
He says he wanted that water to Irrigate those
lands, thus showing by his own case the neces-
sty OF doing away with that doctrine which
holds within the banks the streams of this
State the lfe-blood of the State. He
shows by his own argument the neces-
sty Of doing away with that doctrine, and
turning these streams out to irrigate the lands.
What stronger proof do we need ofthe necessity
of the abandonment of that ancient doctrine
established III . country wholly different from
ours, and where the great aim was TO get rid of
the water except where twas used for motive
power? Why do those who claim the waters III
the streams in the northern portion Of the State.
where they are used for irrigating chiefly, make
that claim? Is 1t simply because they want it
10 run in its own channel? No, but because
they want it. either ut the present time or some
time in the future, for the purpose of irrigating
lands which they own, or to sell it to somebody
else who will buy it from them. So that the
very argument advanced is the one which
shows the necessity of the abandonment of this
old riparian doctrine and the establishment of
a law which will tend to develop the resources
of the State and build up the agricultural inter
estS and not one which means not only to
retard us. But speaking about injunctions and,
litigation the whole country south is fuli of in
functions and law suits, and they will be end
less; because where we have one riparian
owner now to contend with we will have
twenty in the future. We do not want them to
multiply and the doctrine should be settled that
it is not properfor an individual to control an
entire river, which might otherwise support and
furnish employment to thousands.
De Long said his idea was the Legislature
should recognize the right of the riparian owners
to the extent that they shall not be deprived Of
the actual necessary water for domestic pur-
poses.
Reddy-The amendment was unconstitutional
and paradOXical. take II that the Legislature
OF this State has the right to pass laws fixing
property rights for the future. The laws Of the
past have fixed property rights upto the present,
and ii is only with regard to the future that we
can legislate.
NcClure-I understand this to be bill to pro-
vide for repeating section 1i22 of the Civil Code
That is the last section in the chapter on water
rights. Now, this amendment, instead of Civ
ing all the water to the riparian owner, and that
it shall flow by his banks unaltered in quantity
and quality, provides that these parties appro-
priating water may take ii all except enough
for domestic purposes. Section l422 establishes
the riparian right
Reddy-Wc viii start out on the theory of the
Senator from san Francisco that Section 1422
establishes the right to in undiminiShed flow OF
the stream-that is The right OF the riparian
owner Now, if that section established it, when
did it establish it? When it was enacted of
course. DO riparian rights date from that
period? Many contend that the rights date
from this enactment. If So there are many set
tiers along the streams, and perhaps majority
OF the settlers who have acquired their Fights
under that law; now, having acquired that
under that law could they take it away under
that enactment? Now can we, by legislative
enactment take away any part of that right
vested under that law? Certainly not What
does the amendment propose to do? 1t says he
shall just have barely sufficient, and no more
for certain uses. Now, | submit to every
lawyer here, and to every Senator, for
it requires no legal or technical learning; does
not this amendment propose to do that? Then
if this comes from riparian owner, l say that
the riparian owners are trying to treat them
selves much worsc than we would treat them.
We propose not TO take one drop away from
them. If it belongs TO them they shall have it.
If it belongs to them they must have it /; the
force of the State shall protect them in it. but
when we take it away, it shall be under the
right of eminent domain.
LaDgford thought the present irrigation law
could not be improved, except by storing water
in the mountains, which might be made useful
by proper management. The irrigators proposed
to start out with a knock-down proposition, and
administer some medicine afterwards in some
other measures. If they refused to give set
tier, who had been on land forty or fifty years,
sufficient water for domestic purposes he looked
upon il as war as to who shall live.
Cross quoted the United states Statutes to
show that il WAS impossible for the Legislature
to take away the rights already vested in ripari-
an owners. He thought the amendment was a
little narrow i'll not allowing the riparian own
a-S IN irriO c.p