Los Angeles herald., 1892-03-13
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. ]

Another cause Of separation Of North
-ern and Southern California, growing
out of the great difference in the cli-
mates of the respective sections, is that
of irrigation. The major portion of the
country north of Tehachepi has rain.
fall sufficient to supply all the neces.
sary moisture for the growing of cereals
and fruits, which the temperature ol
that section permits, as will be shown
presently by quotations srom authorita.
tive publications of that region. 1t is
not so in Southern California. Here
the all-important and overshadowing
question with every intelligent
farm buyer is: Has the place
enough water? Without water the
land is valuable at best only for
pasturage. Here water has sold at as
high a price as 1850 per inch. And
here, as in all other arid countries. the
appropriation, sale and use OF water
was, by the original Aryan settlers, reg
ulated by law. The Mexicans derived
their water laws from Spain, which
came down from the old civil law of the
Romans, who. in turn, undoubtedly de-
rived their ideas from the Egyptians
and Babylonians. These water laws
were in force in California at the time
of the American occupation in 1916, and
remained in force by virtue of Governor
Riley's proclamation of June 3, 1849,
wherein he said: "The existing laws
of the country must continue in force
till replaced by others made and enact
ed by competent power" lHittel's
Codes of California, p. 34.)
The constitution Of Monterey, ratified
by the people November 13, 1S49, says
tart. xii, sec. ~: "All laws in force at
the time of the adoption of this consti-
tuition, and not inconsistent Herewith.
until altered or reppealed by the legisla-
ture, shall continue as II the same had
not (?) been adopted"
This virtually and did actually con-
tinue the old Mexican water laws in
force. The first legislature, which met
at San Jose December 15, l849, went
further. Under Spanish and Mexican
rule the cities Of San Diego, Los Angeles
and Santa Barbara had acquired vested
rights in water, and these rights were
approved and confirmed by this first
American legislature.
On March q, 1850, an act to incorpor-
ate the city of San Diego was passed.
Section 23 reads: 1.-The corporation
created by this act shall succeed to all
the legal rights and claims of the pre-
sidio of San Diego, :"
On April 4, 1850, an act to incorporate
the city of Los Angeles was passed.
Section 8 reads: 1.-THE corporation cre-
ated by this act shall succeed to all the
rights, claims and powers of the pueblo
de los Angeles in regard to property. /"
On April 8, 1850, an act to incorporate
the city of Santa Barbara was passed.
Section reads: 1.-THE corporation cre-
ated by this act shall succeed to all the
rights, claims and powers of the pueblo
de Santa Barbara in regard to prop
So far so good. To each city thus by
American law was recognized their
vested rights in all water properties
which they had under the Mexican laws.
But on the 18th of April, subsequent to
the enactment of the laws OF the pueblo
water rights, the entering wedge came
in the passage of an act adopting the
common law. It reads: "The common
law of England, 80 far as it is not re-
pugnant to or inconsistent with the con-
stitution of the United States, or of the
constitution or laws of the state of Cali.
fornia, shall be the rule of decision in
all the courts OF this state" (Statutes
of California, 1850.)
Says Hamilton "But the common
law Of England, which has been en-
grated on the Jurisprudence of the
United States, recognizes and maintains
the doctrine of riparian rights and it
is Tin 1885, the law of every state in the
union, with one exception. Divested of
legal verbiage, this doctrine virtually
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. l1ndiminished in
quantity and unimpaired in quality.
s'To put it more clearly: Suppose a
man owns land on both sides of a
stream, at it's mouth; under the appli-
cation Of the law of riparian rights, he
would be entitled to receive the entire
volume of water in the stream, undi-
minished or unimpaired. It will be seen
that the recognition and enforcement
OF such law is destructive toirrigation.
1t virtually ignores the right of appro-
priation and would prevent all cultiva-
ton by the artificial application OF
water. Such law may be eutirly in
harmony with existing [physlcall con.
editions in England and the nations of
Northern Europe, where irrigation is
hardly known, but it is altogether inap-
plicable to the rainless regions of West.
ern America to Southern Europe, and
:. to large portion of Asia, Africa and
Aust' ala; yet this is the law recognized
by the courts in every state except
Colorado. and whose absurd provisions
have done much to retard the develop
ment of the irrigable belt, and caused
go much expensive litigation" (Pat
Hamilton's Irrigation, PIP. 10, 16, ed.
1867
With this clear definitionsof the Eng.
.lieh doctrine of riparian rights by the
above (now deceased) author, the re-
naming history of water laws and court
decisions in California will be OF the
most profound interest.
Az Hamilton indicates, the common
law of riparian rights may harmonize
with the conditions in England, where