Lyon County times. [volume] (Silver City, Nev.) 1874-1907, 1889-11-23
THE LAWS OF WATER.


and complicated of all the questions relating
to irrigation. The control and equitable dis
tribution of an element SO shifting and vari-
able has been the study Of some Of the ablest
statesmen and economists of the Old World
And while the sland question" is now recog-
nized as the leading social problem of the
age, that of water is of no less Importance
to a large number of the human family.
Throughout the arid belt of the United States
it may be said that custom and usage mainly
govern. Beyond general proposition that
water is public property to be used for the
public benefit, the government has no clear
cut and well.defned enactments upon this
important subject. The exception is the Act
of Congress, of 1867, which recognizes the
right Of appropriation, for mining, agricul-
ture, or other useful purposes. But the
common law of England, which has been
engrafted on the jurisprudence of the United
States, recognizes and maintains the doctrine
of s'riparian rights" and it is the law of
every State in the Union, with one exception.
Divested of legal verbiage, this doctrine vir
tually means that riparian owner is entitled
to receive from the proprietor above him, and
must transmit to his neighbor below, the
waters OF the stream upon which his land
abuts, undimnished in volume and unim-
paired in quality.
THE RIPARIAN LAW.
To put it more clearly: Suppose man
owns the land on both sides of a stream, at
its mouth, under the application of the law
Of riparian rights. he would be entitled to
receive the entire volume of water in the
stream, undiminished or unimpaired. 1t will
be readily seen that the recognition and en-
forcement of such law is destructive to ir.
rigation. 1t virtually ignores the right OF
appropriation and would prevent all cultiva-
ton by the artificial application Of water.
Such law may be entirely in harmony with
existing conditions in England and the ma
tons of Northern Europe where irrigation is
hardly known, but it is altogether inapplica-
BILE TO the rainless regions of Western Amer
lea, Southern Europe, and to large portion
of Asia, Africa and Australia; yet, is this the
law recognized by the ourts in every State,
except Colorado, and whose absurd provisions
have done so much to retard the develop
ment of the irrigable belt and caused so
r,,,b avDapc;ya 1,fiuatiou
In all lands and in all ages since the es'
tablishnent of organized society, the supreme
governing power has exercised sovereignty
over water, declaring it to be public proper
ty for the uses and benefit of the people.
This was the Roman law which was intro
duced and enforced in the conquered colonies
ofthat empire where irrigation was practced.
The Roman law distinctly recognized the
right of appropriation" for agricultural
purposes, and among the Latin nations OF
Southern Europe that right maintains to-day
LAWS OF THE OLD WORLD.
The Spanish "law of water" is an elabor
ate and exhaustive compendium The waters
of the kingdom are under administrative
control, and appropriations can only be made
after due examination by the authorities.
The Spanish law distinguishes between
waters on private and public lands, the form
er being under the control of the owner OF
the land, under certain restrictions, and the
latter the property of the kingdom. The
water is held by the Government for the use
of the people; its control and distribution is
regulated by local and general laws. No one
is permitted to appropriate more than he &C
tually requires, and no diversion can be made
from stream unless the matter is thorough
ly examined by the water commissioners
and its effect on prior appropriations clearly
shown. There is no such thing as unlicensed
diversion or appropriation OF the public
waters, and no waste or extravaganza is per-
mitted in their use. Similar laws prevail In
France, Italy and Algeria. There is com
plete and thorough administrative system In
all those countries, and man can no more
appropriate anu CONVERT ~ MS own use Aai 3
quantities of water than he can large bodies
of land. The Jurisdiction of the State ovel
the former, and the laws regulating its use
and defining its ownership, are as compre
hensive as those relating to the latter. lr
India, the entire system of waterways and
works is under control of the Government
and the laws and usages controlling its ap
preparation and distribution are as perfect az
the experience Of centuries can make them
The miners customs of the early days il
California are the foundation for almost al
the legislation on water which at present ex
lists in the arid regions of the West. ExceP
in the Pueblo settlements of New Mexico
where the communal laws of the Aztecs still
prevail, our ideas of the appropriation ant
use of water are derived from the fumes ant
bitches of the placer miner. In California
SO conflicting are the decisions OF courts ant