Los Angeles herald., 1892-03-13

irrigation is hardly known; but where
irrigation is necessary for the very ex-
istence Of the farming communities,
such law is their death. Said justice
f. M. Ross, in his dissenting opinion in
the celebrated case of Lux vs. Haggin
$50 Cal. 443-4):
The doctrine that the water of a
stream must continue to flow in its
natural course, undiminished in guam
tity, has been go far modified in states
with the climatic conditions of Massa-
chusetts and Illinois as to permit the
diversion of water for the purposes of
irrigation, where the quantity of the
stream is necessarily diminished by at
least the quantity absorbed in the irri-
CATION of the land upon which it is put.
Especially should this be 30 in Califor-
MIA, where. in great part OF the state,
water is its very life-blood. Every
practical man must know that with the
dry atmosphere and porous soils of
those sections requiring irrigation, but
little, if any OF the water diverted and
used in irrigation is or can be
returned to the stream from which
it is taken. To establish, there
fore, as the law of this state, that the
water of a watercourse must flow on in
it's natural channel undiminished in
quantity would, in effect, be to convert
the fertile fields, gardens, orchards and
vineyards in many and great sections of
the state into waste and desert places.
Such a rule is inapplicable to the condi-
ton OF things existing here. The COM
mon law is supposed and has been said
to be the perfection of human reason,
but it would be the very reverse of this
to hold that the waters of the. streams
of California must continue to flow in
their natural channels until they sink
into the sand or waste themselves in
the sea, while orchards, vineyards and
growing crops of immense, If not incal-
culable value perish from thirst. In the
case of People vs. Canal Appraisers, 33 N.
Y. 4S2, the court of appeals of New York,
quoted with approval the language of
Judge Bronson: II think no doctrine
better settled than that such portions of
the law of England as are not adapted
to our condition form no part of the
law of this state. This exception in
cludes not only such laws as are incon-
sistent with the spirit of our own insti-
tutions, but such as were framed with
special reference to the physical condi-
ton of country differing widely from
our own. 1t is contrary to the spirit of
the common law itself to apply rule
founded upon a particular reason to a
law when that reason utterly fails; ces-
sante rati0ne legis, cessat ipsa ler."
In other words, there being no reason
on account of the physical condition of
California, for the application of the
rule of riparian rights, as laid down in
the English common law, that portion
of that law utterly fails in this country.
and the contrary doctrine of appropria-
tion prevails, or should do 90. This is
agreeable to the laws and court decis-
ions of the English colonies themselves
in Australia and India.
But the strange and prevailing opin-
ion in the x-Haggin case said, in ref
erence to the act of 1850:
The act of 1850 adopts the common law
of England; not the civil. nor the jus
commune antiquum, Or Roman claw of
nature" of some of the civil law COM
mentators (Braly vs. Reese, 81 Cal. 564,
note) nor the Mexican law; nor any
hybrid system. And the expression
Common law Of England" designates
the English common law as interpreted
as we'll in the English courts as in
the courts of such OF the states of the
union as have adopted the Eng
lish common law. We cannot presume
that the members of the legislature.
even at that day, we're utterly ignorant
of the climate and soil of the country in
which they lived; and these included in
their number many natives OF Califor-
MIA, who must be presumed to have rep
resented the intelligence Of a race which
for several generations had been familiar
with the natural conditions here exist
ing. The report of the proceed
ings of the legislature shows that
there was a considerable miEori-
ty in favor of the adoption of
the civil law; and there are circum
stances appearing from the proceedings
tending to prove that the advantages OF
each system as the fundamental law of
the future were discussed and fully con-
sidered. Under these circumstances we
must believe that if it had been intended
to exclude the common law as to the
riparian right, the intention would have
been expressed. (69 CAL, 384.)
Which shows that the Learned Judge"
who wrote the prevailing opinion
was not learned in the history
of his own state. What are
the facts? In 1916, at the time of the
American occupation, California had a
total population of about $4,000. In
1850, when this law was adopted, it had
a population OF $4,000. This great and
sudden increase resulted from an in
gress of people who came to mine, not
to farm. They came from a moist to
an arid region, and while, in the
language Of the supreme court, 1--WE
cannot presume that the members
of the legislature, even at that day.
were utterly ignorant Of the climate and
soil of the country in which they lived"
we can and do presume that they "were
utterly ignorant of the climate and soil
of the country in which they had
lived' only few months, as regards
the relation of that climate and soil to
farming in the arid country in which
they were living, and of the necessary
art OF irrigation.
FRO BE Continued
1T DOES NOT GRIPPE.