Los Angeles daily herald., 1886-06-26
JUDGE msKrNsrnr,s nrmrpr Z.

what labored and confused opinion OF
Mr.. Justice McKinstry in "Lux vs.. Hag- |
gin," there is an attempt to suggest a
remedy for the destructive results which
are threatened by the conclusions to
which the Court arrives That irrigation
is absolutely necessary to agriculture in
the great San Josluin and Tulare basins,
in Southern California and in many other
parts of the State, cannot be disputed.
That the only means OF obtaining water
for irrigation is by diverting it from the
numerous rivers and streams that flow
down from the mountain ranges and out
upon the arid plains is also unquestion- |
able. That the United States as the
owner OF the public domain which com
prised nearly all OF the State at the time
II was admitted to the Union, has, from
that time to this, permitted and expressly |
sanctioned the appropriation and diver
sion OF flowing water for mining and agri-
cultural purposes, is also an undisputable |
fact. And it cannot be denied that the |
policy of the State has at all times coun-
tenanced and that its laws, in terms, do
authorize and regulate such appropriation
and diversion of water for irrigation. But
the four Justices find and say that all
such use Of water in the streams is and
must be subject to the right Of ownership
the owners of the banks of the streams at
any and every point thereon. Hence they
find, as conclusion OF law, that any per-
son who may have bought tract OF land
from the Government OF the United States
along a stream, and who has thereby be-
come riparian proprietor, is entitled to
prevent by injunction any person, not
himself riparian proprietor, from going
to the stream on the public land above
and appropriating and diverting water to
irrigate lands to which the water may be
led.
That this conclusion runs counter with
the consistent and continued policy of the
Federal Government and annuls three
Acts OF Congress is apparent to every one
except, perhaps, the four honorable and
learned Justices. And that it judicially
repeals all Of the provisions OF the Civil
Code, which give and regulate the right
| to appropriate running water has been
unanswerablv shown. Indeed the blum
dering absurdity and stupidity Of the de-
cision in favor OF riparian rights in Cali
fornia, is clearly understood by the whole
bar, the whole press and the whole peo-
pie of the State.
The four Justices, however, attempt as
we say, speaking through Judge McKin-
stry, to point out a remedy against the
evil and disastrous consequences which
they must have seen would inevitably
flow from the establishment in California
OF riparian rights as secured by the Eng
lish common law They say that flowing
water is property, the property OF the ripa-
rian owners, 'inseparably annexed to the
soil" !" passing with it rs part and parcel
of it," That "use does not create the
right, and disuse cannot suspend it."
/ Il H. l. IL ~
of bank Of a stream, at any point, has
this absolute property in the water flow
ing by his frontage, the Judges, perceiv-
ing, possibly, that this doctrine ii not
| limited might injure agriculture in the
great Arid valley and other comparatively
rainless parts of the State-possibly com
| pretending for a moment the necessity
for irrigation, proceeded to suggest their
| plan Of relief against riparian monopoly
OF water.
The use of flowing water for irrigation
in " farming neighborhood, SO the
Judges conclude, is public use. The
constitution and laws permit the taking Of
private property by process Of condemna-
tion for public use. And so "the ripa-
rian owners property in the water of
stream may (on payment Of due compen-
sation to him) be taken to supply farming
nelKnDOrnOOu5 Wltn WdIcf.
This is the scheme. Let us see how it
| would work And in examining the pro-
position we will leave out OF view the
| consideration that, notwithstanding the
opinion of Justice McKinstry and his
| three associates, the flowing waters in
Arid California are dedicated by custom
| ary law, handed down from Spanish
Mexican dominion, to the public use
that such waters are open to appropriation
and use to fructify the otherwise desert
land that the bank owners do not and
never did own the water and that it is the
height of absurdity and impudence to
propose that all who wish co use this es
sential element of nature shall buy OF
those past whose frontage it needs must
| flow in descending from the mountains to
the thirsting plains. As we say we will
leave these considerations out of view, for
| the nonce, and proceed to examine the
| plan Of the learned Justices.
Yesterday particular quarter section
Of land, through which a stream runs,
was not invested with these riparian
rights to flowing water. The lands be-
| longed to the United States. The United
States had renounced all such claims to
| the water and had expressly authorized
the people Of California to appropriate and
divert the water for irrigation and mining
purposes, not that such authorization
was necessary. But as q fact it was given
by the acts Of Congress- To-day the land
is patented by Government to citizen
according to Judge McKinstry, this pur-
chaser has now become entitled to the
riparian rights as above defined, unless
the United States reserved the water ont
Of the grant. Another legal absurdity
since it is not necessary that a grantor
should reserve out OF grant corporeal
hereditament which he does not claim,
and which is notoriously being used by
| the public. And we are told by the
Judges that from this day forward the
| patentee Of this quarter section, along the
stream, may enjoin any diversion OF
water on the public land above him; but,
| that ii the water is needed in farming
neighborhood'' above, it may be con-
demned, due compensation being made
| to the riparian owner or owners OF the
stream. Very well. Now who shall be
paid? Who shall be made defendant or
defendants in the proceedings for con-
demnation All the lower private pro-
| prietors Of course. But here are several
townships; hundreds of sections Of pub
| lie land bordering on the stream The
| United States can not be sued, and ii
they could the government lays no claim
to riparian rights. The proceedings go
on. The water is condemned. The next
day or week or month the government
sells another quarter section or more. In
the meantime the farming neighborhood
has become ENLARGED. More water is
needed But the new grantee is entitled
to have all tho water, not appropriated
before his patent, flow by him and his
riparian rights must be condemned and
80 on from month to month and year to
an interminable litigation and an endless
vcxation. Take another difficulty which |
emphasizes the ahsurlity of the scheme.
Consider the physical characteristics Of
many Of the streams that flow down from
the Sierras and out upon the dry parched
plains. Take Kern river as an example