Los Angeles herald., 1892-03-20
The Doctrines of Riparian
Rights Defined.
The Legal History of Water
Rights in California.
Riparian Rights Injurious to South
ern California.
The Famous Lux-Haggin Case Discussed
in Full-Climatic Differences Be-
tween Northern and South
ern California.
by b. A. CECIL-STEPHENs.

The facts are that it was many years
before the agricultural resources of
California were understood by the
American immigrants, and a much
longer period before they took the hint
from their Mexican predecessors that
irrigation was not only a benefit, but
also necessity. And these facts are
known to all.
The many natives of California" in
the legislature of 1850, the first, were
just two, namely, M. G. Vallejo and
P. de la Guerra, neither of whom
could talk any English, and
what little law of any kind that
they knew, if they knew any, was that
of the civil law. What alarm should
these two "natives of California" in the
first legislature have over riparian
rights of the English common. law,
when the subject of riparian rights was
never even discussed. and they saw
their fellow-members confirm the old
pueblos in all their old water rights?
Paschal's rule of legal Interpretation,
that laws should be construed according
to their contemporaneous history, may
here be we'll applied.
In the first message of the first gov
ernor to the first Legislature on Decent ber
21, 1849, Governor Peter H. Burnett
said:
II recommend the adoption of the
following codes:
l. !. contained in the common
law OF England. Qst. Cal. leg. p. 500. J"
A petition of eighteen out of 100 law
yers in San Francisco, presented to
that legislature praying the adoption of
the civil law, was referred to the judici-
ary committee, which reported on Feb
ruarY 81, 1850. The report is to be found
on pages 459-48O Of the journals of the
California legislature, first session, 1850,
and was written by Burnett, Esq. It
clearly sets forth the differences between
the common and the civil law, and the
reasons why the common law
should prevail in California, but
not one reference is made there
in to riparian rights. The ques-
ton might be asked with propriety, if
riparian rights was the essential and
central idea in the adoption of the Eng
lish common law for California, why
was it never mentioned in the legisla-
tive debates? The answer is that on a
presumption it never entered their
thoughts.
Judge Burnett says in his report:
"But before entering upon the subject
in detail, we would premise that no one
for moment entertains the idea of es-
tablishing in California the whole body
of either the common or the civil law.
There are in each principles and doc
trines, civil and criminal, which are re-
pugnant to American feelings and in
consistent with American institutions.
Neither one nor the other has been, or
ever can be, unqualifedly adopted by
any one of the United States. i.
The constitution of the United States
swept away at once the entire political
organization as we'll of the common as
of the civil law. The statute
law of each state eradicates many harsh
doctrines. and abolishes many apprehen-
sive and tyrannical provisions. 4.
"The question naturally presents itself
here: What is the common law ?
What is the civil law? And what the
distinction between them? :.
The common law is that system of
jurisprudence which, deducing it's orr
gin from the traditionary customs and
laws of the Normans, enriched with the
most valuable portions of the civil law,
modified and enlarged by the numerous
acts of the English parliament, il.
and has come down to us, amended and
improved by the American legislature,
and adapted to the republican princi-
Piles and energetic character of the
American people. The COM
mon law fosters and encourages agricul-
ture.
"Your committee therefore recommend
that in cases not falling within
the constitution of the United States, or
the constitution or statutes of this state,
the courts shall be governed in their ad-
publications by the English common law,
as received and modified in the United
States; in other words, by the American
common law.
The report was accepted, and the bill
became a law. The words of Judge
Burnett will appear with great
weight when the Lux-Haggin decision
will be reviewed. The truth is that the
members of the first California legis-
lature, neither when they confirmed the
old Mexican pueblos in their water
rights, or adopted the American" COM
mon law, had any idea of the great con-
test that would subsequently arise. if
indeed they then thought of riparian
rights at all.
This is clear from the fact that nearly
thirty years elapsed before there was
any special legislation at all, and,
though the courts were frequently called
upon to decide water suits, 1t was thirty
foury ears before the riparian issue arose.
The act of April IS, 1854, declared
that "the act of April A, 1850, [incorpor-
ating Los Angeles city] shall be con-
strued to vest and to have vested in the
mayor and common council of the said
city the same power and control over
the distribution of water for the pur-
poses of irrigation or otherwise among
the vineyards, planting grounds and
lands within the limits claimed
by the ancient pueblo [townl and
ayuntamiento lefty council] of Los
Angeles, by the mayor and common
council as the ejidos or commons Of said
city, the possession whereof is hereby
declared to be in the said mayor