Los Angeles daily herald., 1886-06-26

! OF 1ffiBhtlOn IL db IuuCu coHIuDn INV us
| is the English doctrine Of riparian rights.
| There is no PHEcfPLE in common law,
! therefore no consistency. It is full of
contradictions. Custom in Yorkshire is
essentially antagonistic 20 custom in
Kent, yet both usages in England are
common law, because they are undisputed
customs Of the respective localities.
Common law is the creature Of habit.
II grows with the development of usages.
| This is its sole title TO recognition.
Judges unable TO perceive these distinc-
tions have no business on the bench OF
the Supreme Court. They ought TO re-
sign. They are untitled and ineompe-
tent for the places they keep from wiser
and better men. They may be honest,
but It is the honesty OF ignorance and
stupidity.-lDaily Examiner, June 8.
When the Executive Committee OF the
State Irrigation Convention called on
Mayor Bartlett, 10 suggest certain action
endorsing this great movement, its Chair
man, Mr.. Shorb, put the case to the
Mayor with that rare antithesis Of which
he is 80 capable. He said II was left to
the business people of San Francisco TO
determine in which place they prefer
that grass shall grow, in the streets Of
this city or on the plains OF the San Joa-
qun and Sacramento valleys. SO far as
this city is concerned, that statement
tells the whole story. III the law now
| laid down shall remain unchanged and
undisturbed the plains will lay idle, the
oases already blooming in the desert will
surrender 10 its thirsty invasion, and San
Francisco will suffer by having cut open
the goose instead Of building her nest
10 fiji with golden eggs
There are many who lose sight OF the
main question OF irrigation by getting in
volved in tho details OF its application,
which must unfold one at time. In like
manner courts sometimes lose sight Of
the great interests Of thousands who are
actually involved, and consider only the
| immediate parties TO a case. When
| the railway system OF the MEDITERRANEAN
States was being developed, its inconven-
fence required that it should span mean
dered streams with bridges. The first Of
these great structures thrown across the
| Mississippi was at Davenport, to accom-
odate the Chicago, Rock Island and
| Pacific line. 1t was drawbridge. 1t
was located at the foot Of the Rock Island
Rapids, where the river was angry and
swift. A steamboat company libelled 1t
as an obstruction to navigation. The
suit was between the corporation which
owned the river packets and the corpora
ton which owned the railroad and the
bridge. g4e Federal Courts were ap-
pealed to. >rhe evidence showed that
passage Of the draw was an unquestioned
check to the speed of a steamboat, and
compelled q pilot to keep awake, but the
| interests involved. The river was a trans
portation facility, but it served only
narrow strip Of country on either bank.
Beyond that, the great products of the
country had to be hauled to ii on wagons,
at great cost, over primitiye roads.
On the other hand, the railroad pene-
trated the prairies where the produce was
raised. II shortened the wagon haul. II
reduced the total transportation cost of
putting produce into the final market. II
permitted quicker return to the pro-
ducer and the commission merchant
The river ran only to the market on its
banks. The railroad permitted by its
connections a choice of many markets.
II was superior, both as gatherer and a
distributor of the produce OF the country.
1t was, therefore, the greater facility.
The steam was u utility, but lesser
utility, and il had to yield to the greater.
After that nothing was left the steamboat
men but to burn the bridge, which they
tried, and somebody came near getting
into the peniteniary for the attempt, and
then the war ceased, and tho river came
10 be spanned by Q bridge wherever
railroad crossed it. This decision had in
it the germ Of the Pacific railroads. 1t
removed one obstruction to their con-
struction.
Now, in considering the case of Ripar-
L.. D,..lto xra Iyriuat ion In Culifpruin n
| the immediate parties to the suit that
| has been decided had minor interests.
The major interests were those of the
| thousands whose homes and farms now
depend upon irrigation, and Of the mil
lions who will seek settlement and build
homes here as soon as irrigation is a set
tied policy OF the State. II was the minor
against the major utility, and he is a
siiort-sighted man who believes that the
major utility will stay beaten.
AS we have said, men will run off into
details. The riparian owners have rights.
1 Shall they be condemned by the exercise
| of the right OF eminent domain2 If it be
| tho riparian law that water goes with the
abutting land? Yes. But how, then,
can it be settled7 Suppose that those
| who wish to appropriate water proceed
to adjust tho riparian rights on stream
| by condemnation under the riparian
| theory, and then, as constantly happens
on many OF our streams, the channel
changes or divides, up comes another
series of new riparian rights to be ad-
justedl This change or division of chan
mel has already taken place in the San
Gabriel river, and 1t is imminent in the
Los Angeles. The tendency is one OF the
physical characteristics in California
st...,.,a x..l,scb an, IN ci1 TIM ptprpn
inadaptation OF English riparian law to
our natural conditions. Let us consider
another theory for the protection OF
vested rights and their subjection g.
greater utilities, by determination and
payment of damages. The owner of the
land abutting the stream has right to
all of the water that is necessary for his
use, whether to boil his eggs or quench
the thirst of his bull. The measure OF his
interest is tho value of that use. His
right rests upon the beneficial use to
which he puts the water, just as the Fed
eral Courts decided in the case of the
miners. He doesn't own the water, but
he does own it's use. The value OF that
use is perfectly measurable value. 1t
is easily determined, and as easily con-
dcmned and paid for. Going with this
use is his obligation to so practice it rs
not to harm another, and this principle
will also effect the measure of damages.
So it will be seen that treating the
abutting owner as an appropriation, his
rights never get beyond the reach of legal
protection, and water is held subject
always to the greater utility, without
merciless extinguishment OF the interests
of the minor utility.
Such determination of the issue would
have been in line with the theory upon
which the Federal Courts permitted the
bridging of meandered streams and so
conferred upon the whole country the
benefits Of general access to system OF
cheap and rapid transportation, and that
decision was reached by the Court look
ing beyond the parties to suit, who
were merely fgureheads, to multitude OF
multiplying interests that we're at stake.