The herald., 1893-10-10


any one OF the United States. :.
! The constitution of the United States
swept away at once the entire political
organization as well of the common as
OF the civil law. The statute
law of each state eradicates many harsn
doctrines and abolishes many apprehen-
sive and tyrennical provisions. :.
"The question naturally presents II.
self here: What is the common law
What is the civil law? And what the
distinction between them?
'Tha common law is that system OF
jurisprudence which, deducing It's ori.
gin from the trsditionary customs and
laws OF the Normnns, enriched with the
most valuable portions Of the civil law.
modified and enlarged by the numerous
acts OF the English parliament. !.
and has come down 70 us, amended
and improved by the American legisla-
ture, and adapted to the republican
principles and energetic character OF
the American people. Inc
| commsn law fosters and encourages ag-
riculture. :.
"Your committee therefore recon-
mends that in cases not fall
ing within the constitution of the
United States, or the constitution or
statutes of this state, the courts shall
be governed in their adjudications by
ths English common law, as received
and modified in the United STATES; in
other words, by the American common
law"
The report WAS adopted, 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 men,
bers of the first California legislature,
neither when they confirmed the old
Mexican puebios in their water rights
or adopted the American" common
law, had any idea of the great contest
deed they then thought OF riparian
rights at all.
This is clear from the fact that nearly
80 years elapsed before there was any
special legislation at all, and, though
the courts were frequently called upon
to decide water suits, it was "a years be-
fore the riparian issue arose.
The act of April 13, 1854, declared
that "the act of April 4, 1850, [iDcorpor-
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 Ttownl and
ayuntamiento icity council] OF Los
Angeles, by the mayor end common
council as the ejidos or commons OF said
city, the possession whereof is hereby
declared to be in the said mayor
and common council" (Cal. Stat. '54,
p. 63.)
1t is difficult to conceive OF language
more clearly framed than the above to
declare that the Mexican pueblo OF Los
Angeles did have vested rights in the
waters of the Los Angeles river, and
that the American city of Los Angeles
succeeded to all those ancient and vested
rights.
And yet in the face of this unrepealed
law the eupreme court in 1884 was
pleased to say:
1.-The inhabitants of the former pueblo
of Los Angeles, who were using water
when the territory was transferred to
the United States, had not acquired a
vested right to any particular quantity
of water" (96 CAL, p. 320.)
Prior to the adoption of the codes in
1872 numerous laws had been enacted,
authorizing the construction of irrigat-
ing canals and the creation of irrigating
districts and defining the duties of their
officers.
The act of April 1, 1872, was "to pro-
mote irrigation" This law recognized
water rights. and the right to acquire
such by condemnation, and provided for
the formation of districts.
But that year the codes went into
effect, and section 1922 of the civil code,
the legal "straw" at which the supreme
court in Lux VS.. Haggin 80 eagerly
graeped, became law, the fret direct
legal recognition, probably. of riparian
rights in California, and that not until
irrigation rights had been recognized,
protected, enforced and promoted in the
state for % years. 1t reads:
"1422. The rights OF riparian propri-
etors are not affected by the provisions
OF this title"
1t is no longer law, having been "re-
pealed, but not affecting rights already
vested" on March 15, 1887. Whatever
vested rights there were then, were 60
vested only by the absurd decisions of
the courts in face Of all prior state legis-
lation "to promote irrigation" and
HRSlHHG INC very bpiElb Vi buo
law itself. The reason for such law
in the codes was doubtless because the
personnel of the code commission who
drew up the codes were entirely North
ern Californian, and who, while learned
in the law, knew little or cared less
of the material development of the
eoutbern and arid section OF their
state.
Title s, of division 2, of the civil
code, begins with section 14l0 and ends
with the repealed section 1922.
Section 14l0 declares that "the right
to the use of running water flowing in
a river or stream or down cafion or
ravine may be acquired by appropris-
tion."
Apparently the only obstacle now is
the decieion of the supreme court in
that cause celebre, Lux vs.. Haggin, SO
Cal. 255.
This ponderous decision covers fully
200 pages, and for bulk much resembles
the write.up given the Palace hotel by
the San Francieco Chronicle-no one is
said to have read it but the writer and
proof reader. In this case. however, l
can certify that third person has read
it entire, much for the same reason
come students of theology worry through
the book of Mormon, namely, in order
to be able to say they have read it. Ger
tainly no other decision ever made by
the supreme court of California ever
created such storm OF popular disap-
proval or caused the state go much