The Washington critic., 1886-07-22
THE cALIFoRSrA EXTRA SESSION.

California Legislature n good deal of
misinformation is being crowded into
small space by the newspaper rossips.
Because the Democratic Governor of
California has called together the Re.
publican Legislature at time when
the vacancy caused NV Senator NIiller's
death Is only temnororily filled and
because Il Is in the mower of the lecis.
lature TO choose n senator IN serve untiI
the 4th of nnxt March Che end of the
term for which Senator Miller was
chosen it is at once assumed that Sena.
tor Hearst is to be displaced by Re
publican. But this by no means fol.
lows.
The special session has been called to
deal with the subject Of irrigation
The Supreme Court of the State, by
majority of one vote, rendered de.
cision Few months ago. denying to
the owners OF irrigating bitches the
right TO divert me water OF unnavlga'
pie streams ana asserting 'he Engllsh
law oi riparian riShts' ny Whicn the
owners OF the lahu along 'he streams
are ehutleu 10 tne natural now Oh inc
wafer thereol through thelr natural
chahneis. inns uprooted the leglsla'
tion, Jurisprudence ana universal Gus
ION OF thirtysiN years III was based
upon provision Oh law enactea al the
nrst session OF the Legislature Oh the
H'a'e IN looo' aeclarinS the common
law Oh England 10 De the rule OF de-
cision III inc courts lhis Is similar 10
tne law III most OF the states, Dut the
courts nave Always helu that the COM
mon law OF England, thus imported,
must ylelu IN thls country as IL does IN
tne country Oh lts origin 10 the condi-
lions under which II Is administered.
Inc california decision Is the first
instance IN which the common law has
been construed as an inflexible rule to
be enforced against the forces of nature.
Thurman In Ohio, Bronson in New
York, Story of Massachusetts and other
great jurlsts have held that the com.
mon law, where 1t prevails, must al.
ways Weld to the circumstances and
conditions of the time and place. And
so 1t has been construed in California
until now. If the recent decision had
been rendered when the common law
in California, there would not have
been mining ditch In the State; and
If 1t can now be maintained. neither
mining nor irrigatinr bitches can be
supplied with water, however abuud-
ant the supply.
The desert must remain unwatered,
and mining enterprises must cease
while the surplus water runs on to the
sea in obedience to an old English law,
which was made to prevent one owner
from hindering the flow of water to the
detriment of his neighbor up stream.
That is to say, law made for coun-
try where the water is too abundant. is
to be applied to n country in which
deserts pine for irrigation. The law
intended TO protect land from injurious
inundation is to be used to enforce con.
tinued steiility.
The Governor of California, in obe.
dience to n great uprisinr of the peo-
A.. r
PIE oi thaI Otate, irrespective Oh parties,
has called the Legislature in special
sess;on IN nronose suitoble omend ments
- Ce..e.,.i,.,o -. ~ - -
w Son's.su''Vn' s W w 49, go Hn -
No'enioei neA' ioi ieii0i rum 'ne uo
StructlVe eHects ol tnis extraordinary
decision. If he had not done this the
,uoranor,, oo,,ld M. bo,,o ,oo, mo
"ioiuihen'' 'ouiu nv na'o 'oon P'o-
posed unul next winter, ana could not
be voted on until November, 1887 A
whole year is thus gained. The law
OF 1850, which for thirty six years was
never held to forbid the appropriation
of water for beneficial purposes, will be
made plain, and the Supreme Court,
which suddenly found that few peo-
pie along the streams owned monop-
oily of all the water in the State, will
be reorganized. These remedies can
only be applied by Constitutional
amendment.
Now, as to the Senatorship. The term
of Senator Hearst did not expire at the
opening day of the extra session of the
Legislature. The Constitution says:
If vacancies happen by resignation OF
9tnerwse VI during the ere recess oi tne tssisla
NAV make temporary W appointments nnti
the next meeting of the Legislature, wnict
shari 'nen M sucu Vac"nc'e''
ntie ho e,a'u'o teo'a'oai u,.r.,,.
ture Of Suv STATE. n vacancy exists in th,
representation of such State in the senate