The herald., 1893-10-10
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 Fuil-Climatic Differences Be-
tween Northern and South
ern California.


mates OF the respective sections, is thai
of irrigation. The major portion OF the
country north of Tehachepi has rainfall
sufficient to supply all the necessary
moisture for the growing of cereals and
fruits, which the temperature OF that
section permits, as will be shown pres
emily by quotations from authoritative
publications of that region. 1t is not &c
in Southern California. Here the oil
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 pssturage. Here water has sold at
as high price as $3.50 per inch. And
here. as In all other arid countries, the
appropriation, sale and use of water was,
by the original Aryan settlers, regulated
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
derived their ideas from the Egyptians
and Babylonians. These water laws
were in force in California at the time
of the American occupation in 1846, and
remained in force by virtue of Governor
Rilev's proclamation of June 3, 1S49,
wherein he said: 1.-The existing laws
of the country must continue in force till
replaced by others made and enacted
by compent power" (HittePs codes OF
California, p. 34.) i,
the constitution Of Monterey, ratified
bv the people November IS, 1S49, says
Cart. xii, sec. ~: ''All laws in force at
the time of the adoption of this consti-
tuition, and not inconsistent Herewith,
until altered or repealed by the legisla-
ture, shall continue as if 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 Is. 1S49, 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, 81, 1850, an act to incor-
porate the city of San Diego was passed.
created by this act shall succeed to all
the legal rights and claims of the pre-
sidio of San Diego, :"
porate the city of Los Angeles was
passed. Section reads: 1.-The corpora
ton created 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 thisact shall succeed to all the
rights, powers and Claims ofTthe pueblo
de Santa Barbara in regard to prop
erty. ~ a6T 5aUcT6f .Enls
So far SO good. To eachocity thus by
American law was recognized their
vested rights in all water properties
which they had under the Mexican laws.
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. 1t reads: 1.-The common
law of England, go far is it is not repug-
nant to or inconsistent with the consti-
tuition 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 the state" (Statutes
of California. 1S50.)
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 lin 1866 the law of every state in the
union, With one exception. Divested
OF legal verbiage, this document virtu-
ally means that riparian owner is err
titled to receive from the proprietor
above him, and must transmit to his
IN h hpl for nfi iha
etream upon which his land abuts, un-
diminished in quantity and unimpaired
IN quality.
40 put it more clearly: Suppose a
man owns laud on both sides of stream,
at its mouth. Under the application of
the law OF riparian rights he would be
entitled to receive the entire volume CT
the water In the stream, undiminished
and unimpaired. 1t will be seen that
the recognition and enforcement OF such
o law is destructive TO irrigation. 1t
virtually ignores the right of appropria-
tion, and would prevent all cultiva-
ton by the artificial application of
water Such law may be entirely in
harmony with existing physical con-
ditions 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 Aus
tralIa; yet this is the law recognized by
the courts in every state except Colorado,
and whose absurd provisions have done
mach to retard the development of the
irrigable belt, and caused so much expen-
Give litigation" (Pat Hamilton's Irri-
CATION, PIP. Is, l6. ed. 1886
With this clear definition of the
English doctrine of riparian rights by
the above (now decessed) author, the
remaining history of water laws and
court decisions in California will be of
the most profound interest.
AS Hamilton indicates, the common
law of riparian rights may harmonic
with the conditions in England, where
irrigation ia hardly known; but where
irrigation is necessary for the very ex-
stence OF the farming communities,
such law is their death. Said Justice
f. d. Ross, in his dissenting opinion in
the celebrated case of Lux vs. Haggin
(C0 Cal. 443-4):
1.-The doctrine that the water of a
stream must continue to flow in it's nat
urai course, undiminished in quantity,
has been 60 far modified in states with
the climatic conditions OF Massachusetts,
and Illinois as to permit the diversion
OF water for the purposes OF irrigation,
where the quantity CT the stream is ne
cessarily diminished BY at least the
he 4