Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-02-05
RIPARIANISM.
The Views and Expressions of Leading
Irrigationists.

Upon the subject of riparian rights,
which is being so warmly discussed in con-
nection with bills pending before the Legis
lature, the following have been gathered as
the views and expressions of the leading
irrigationists:
They contend that the recent decision Of
the Supreme Court, declaring the riparian
rights doctrine of the English common
law to be the law upon the subject in this
! State, Will prove ruinOuS to the ard
portions of the State, comprising that large
part of it where irrigation is practiced, or
where it may be beneticially applied and is
necessary to promote public prosperity and
the development of the State. They say
A careful examination of the commOn-law
authorities on the subject, which appears
| to have guided the Supreme Court in the
decision referred to (Which is suspended
because of re-hearing being granted),
will show the common law of
riparian rights, as far as it applies
to or affects irrigation, fairly stated, to be
as follows: Every riparian proprietor has
the right of the free use Of the water which
passes his land, as it is accustomed to flow,
without any diminution or alteration as
TO quantity or quality; but he has
no exclusive property in the water
itself merely a simple usufruct while it
passes along; and he cannot appropriate it
to his exclusive use, or divert it from Its
natural channel, without the consent of
the adjoining proprietors, who have an
equal right to its use with himself. If he
does divert it on his own premises, he must
return it to its ordinary course. undimin-
ished in quantity and unpolluted in quail
itv, before il leaves his estate He may use
it to irrigate his lands, or to water his cattle,
and general domestic purposes, or he may
use the whole force of it in any reasonable
manner he chooses so long as such use
does not Interfere with the rights of his
neighbors But he cannot use it to the
prejudice of any adjoining proprietor, I'M
less he has q prior right to divert it, which
must have grown up through prescription
(which suppOseS a grant, thereby invest
ing him with a right to the exclusive en-
joyment of it. The only use of the water
OF which a neighboring or lower riparian
i proprietor may not find cause to complain
of is the Watering of stock and its reason
able consumption for household purposes.
1t requires but little consideration of this
statement to make clear that such law,
they say. if finally established, must be
disastrous to irrigation and all the vast in
terests that have grown up under it, and it
would seem there is good cause for the
alarm felt throughout the southern half Of
the State. where it IS Of vital importance
that a different doctrine should prevail
The irrigatOrs claim that the common
| law is flexible; that the Courts in applying
it should consider the climate, topography
and physical conditions of the country, and
the wants and necessities of the people, as
the English Courts do in all the depend
encies of the empire where the conditions
and circumstances differ from those Of the
mother country. Should they take this
view of their duty the prime use OF all the
streams in the State not nayigable, after
domestic purposes were supplied, would be
irrigation. Their diversion into a network
OF channels over the vast arid areas OF the
State would be permissible, making the
State populOus, rich, prosperous and beau
tiful, as IS eXempIitied in many limited
sections already They say that the water
of ali the streams OF the State should be
free as air to every one, so long as
he applies it to beneficial and useful
purposes, subject only TO such governmental
and other regulations between diverters
as will carry out this idea-one which,
through untold ages has been formulated
into law in those countries OF the old world
where the natural conditions are similar
to those of California This, they contend,
would work no injustice 10 riparian pro-
prietors. They would have the same rights
to the use of the water applied 10 beneficial
uses that other members OF the community
had with the advantage of situation, in
most cases. in their favor.
But the irrigatOrs, in their bills before
the Legislature, appear to have accepted,
as Il fact, that the English common law, as
stated above, is the law Of the State, and
one of those bills providing for the forma-
ton and government of water and irriga-
| IL hos fi7~ 10 "a
Trustees the power to condemn, under the
forms of existing laws and pay for all prop
| erty that may be IN the way Of the use of
water for irrigation. This points clearly to
| the payment to riparian proprictors Of the
! lust value of the right to have the water of
the streams flow past their premises undi-
unfinished i'll quantity and unimpaired in
| quality. which ought to remove every Oh
| lection To the legislation asked for, III SO far
at least as this bill is concerned, as this is
the only section which concerns any one
| but the irriEatOrs themselveS-one which
proposes to do justice to and remUncrate
those they may possibly injuTe.
Continuing, the iTrigators say But the
question naturally arises what is the right
to have the water Of a stream flow past ones
premises, undiminishcd in quantity and un-
| impaired in quality. worth, flowing as they
do in the southern part OF the State be
| tween high banks and III deep channels, 50
| that they do not. in their natural state, I'M
part fertility to the soil, and the desert eX-
| tends to the narrow, low-lying margins at
| the waters edge; and the riparian pro
prietor. if be benefits to an appreciate ex-
! tent must divert the water far up the
stream many miles above his land, unless
J he is the owner of a principally, in order
! to fertilze it and render it productive?
! The answer is seen. they suggest in the
| fact that no riparian proprictors-cXCept
| those living lowest down on the streams.
| rs in Tulare county, those owning the
| SWamps where they sink and come
to an end, to which they have acquired
| tile from the State in consideration OF
draining off the water-appear to value
their rights as riparian proprietors they
| take sides with the irrigatOrs, and make
| common cause with them Several of the
members of the Executive Committee of
the State Irrigation Convention. which
framed the measures now before the Iegis-
lature. are riparian proprictors, but their
lands arc up the streams. he last men
are the plaintiffs i'm all the suits now before
the Courts, and their claims. ii is stated, are
Just as damaging to their brother Tiparians
above as to the irrigators. Ii is claimed
that to them alone i the common law of
benefit and that the man at the end of a
stream in the southern part of the State
. would virtually own it. if the common law
is established without legislative enact
ment> in the mean time, such as are asked
for, to prevent, and would have all the vast
interests above at his mercy. Whatever
tribute he demanded would have to be
handed over, as his fiat would go forth that
the water, precious rs gold, must sink in
his swamp OF the sands above or flow into
the ocean
Il will be observed that the common law
permits the right of diversion Of water to
crow up and become established by prescrip-
ton. But Superior Courts of the southern
counties have decided that the right to
divert water cannot so grow up. They say
that the commencement of a claim OF pre-
scriptive right can only date from the time
that the riparian proprietor below fled his
complaint alleging damage.
It is certainly in the interests of the peo-
pie Of the whole State that such measures
he passed during the present session of
Legislature Is shall settle these conflicting
interests and in such manner as To DO least
injury to any, and most good to all.
Irrigation Investigation.
The Assembly Committee on Irrigation
met in the Assembly Chamber last even