The herald., 1893-10-10
Status of Irrigation State Law.

The status OF the irrigation laws of
the state of California appears to be very
much mixed. The condition is anoma-
lous, and loudly calls for reform. Every
effort to remodel the law on this point
and brush away the cobwebs Of supreme
court decisions, has emanated from
Southern California, and has been con-
stantly and successfully opposed to date
by Northern California. Only in the
last legislature was an attempt made by
the delegation from Southern California
TO have consistent laws enacted in re-
gard to irrigation, but the measure was
overwhelmed by northern opposition.
Apart from the sectional fight in Cal
ifornia over irrigation, the status OF the
state laws pertaining thereto should be
sifted out and clearly presented, 30 that
the people can understand through
what kind of legal mud-puddle they
are wading. 1t is strange that this ques-
tion ie not included in the programme OF
the convention, which will assemble in
this city on October 10th.
The question involves little history.
Irrigation had been practiced in Califor
mia under the civil law for about three
quarters of century prior to American
occupation.
There was memorable debate in the
first Legislature, which Assem- bled at San
Joae in December, 1S49, over the propo-
sition as to whether the civil or the
common law should be adopted as the
rule of action in this state. The COM
mon law prevailed.
The common law, indeed, recognizes
riparian rights, but one of it's funda-
mental principles ia that the law itself
ceases when the reason for it's existence
ceases. Riparian rights may be just in
in the moist climate of England, but are
unknown and unjust in the dry climates
of the Eugllsh colonies of Asia, Africa
and Australia for the reason above given.
The constitution, however, as we'll as
subsequent legislative acts, recognized
the existing water rights of tonws stu
ated on streams. and, in measure, it
might be said, admitted the force of the
civil law in regard to irrigation. Indeed,
under this principle, the great hydraulic
mining district OF Northern California
was built up.
Meanwhile, various laws were en-
acted at different times regarding irri-
cation districts, out of all which was
finally evolved the Wright law of 1887.
w nCA bAO ldWE VI tAO bbdtO W0L0
codifed in 1872, troublesome little
Joker found its way in the code of civil
procedure in the shape OF section No.
i422, which reads 'sThe rights of ri
parian proprietors are not affected by
the provisions of this title. Title VIII
on water rights"
On this section, in 1884, the supreme
court, by large majority vote, estab-
Ii oh hod tho n afrir nf rirp prio rinhtc
the law of the state, and it 80 stands
to-day. This decision has been followed
by nearly score of similar decisions
affirming the same doctrine.
In 1887 the Legislature abolished Sec
ton 1922, and left the decision of the
supreme court without foundation.
But the supreme court has paid no at
tention to this repeal, and has kept on
confirming it's first decision,
In the meantime the irrigation dis
trict laws, which had been in process of
growth for more than twenty years,
were brought quite to perfection under
the Wright act.
Now this law makes these districts
asi-public corporations and endows
them with the right of eminent domain.
In other words, after man has se-
cured and vested his riparian rights, the
irrigation district Of appropriations can
confiscate his property and rights. The
Wright act is all right for incoporators,
but it is Intellectual for non-incorporated
appropriations. What muddle!
The riparian rights proposition is the
law.
Incorporated appropriations can confs-
cate riparian rights.
Riparian rights not vested prior to
1887 are unlawful. They are lawful.
Riparian rights not vested are unaf-
fected by non-incorporated appropria-
tions.
All these conflicting positions are
clearly stated in the laws and supreme
court decisions. What. is the law?
"Where are we at?" How unjustly and
unevenly these laws bear
For many years Southern California
has endeavorcd to get plain, reason
able irrigation law enacted, one that
would be adapted to the needs of the
country. Against her wishes Northern
California has been arrayed as unit.
There 10 only one way to get remedy,
and that is to give Southern California
her own law-making power; in plain
words, divide Jhe eIaIe. linen anu not
till then will irrigation matters in
Southern California ever be ruled by
reason and common sense.