The herald., 1893-09-29
STATE DIVISION THE ONLY REMEDY


laws Of California. The fact is the matter
has never been fully considered in all OF
it's different aspects. No better oppor-
tunity has ever been afforded to thor
oughly discuss the question than at the
irrigation congress, which will assemble
in this city on October 10th.
The frat legislature which met at San
Jose in December, 1S49, unfortunately
for Southern California, adopted the
common law. Far better would 1t have
been for us if the civil law had been adop-
ted as the rule of action in this state, as
long as Southern California was forcibly
incorporated into, and in the same man.
ner kept under Northern California rule.
The principal reason which led to the
adoption of the common law was that
all the argonautic lawyers were already
familiar with it's principals. and that if
the civil law were adopted they would
have to unlearn their practice and begin
again with unfamiliar foIm5.
There were many good, strong and
clear reasons why preference should
have been given the civil law. No one
who will read the debates of the first
legislature can doubt the truth of this
proposition. The civil law is codified,
and comes down as the experience OF
the highest civilized nation which ever
existed and whose government at one
period ruled the whole known world.
1t ia the result OF the highest civilized
intelligence. Il is the mental product
after all processes have been arranged,
classified. anaIyzed and digested. 1t is
the most perfect system of law ever de-
,signed, eclipsing in it's justice and mercy
the famed Mosaic ethics OF an alleged
greater antiquity.
On the other hand the common law is
kind of go-as-you.please proposition.
1t claims to be the perfection of human
reason, and lays down the principle that
the law ceases when the reason for its
existence exists no longer.
The common law mainly consists of a
lot of English parliamentary enactnents
and court decisions bound nearly to
death with red tape and other forms.
1t rests upon no written constitution. 1t
is ill-arranged, unclaseified. almost in
capable of analysis and nearly 80 of di-
gestion. 1t is very creditable legal
system, considering the barbaric people
from which it sprung.
Louisiana is one of the few, ii not the
only one, of the states in which the civil
law prevails. All the older states were
burdened with the common law, and
common law it is when compared with
the civil.
Che common law recognizes riparian
(that is, bank rights. Patrick Hamil-
ton, author of book on irrigation.
says:
Suppose a man owns land on both
sides of stream at its mouth. Under
the application of the law of ri parian
(bank) rights he would be entitled to
receive the entire volume OF water in
the stream, undiminished in quantity
and unimpaired in quality"
Such law, OF course, shuts out all
irrigation by thoee above the man who
lives at the mouth of the stream. Not
so with the civil law. Written and cod
ified by those old nations of the great
arid belts of the world, it recognizes and
provides for irrigation rights. Under
the civil law grew up some OF the grand
est civilizations of the old world. Irri-
CATION was the foundation of their
polity.
But the state constitution, which had
been ratified in November, 1849, said
that oil laws then in force consistent
with itself should remain binding until
repealed by the legislature. Although
that body adopted the common law in
several instances. it adopted the civil
law. Thus the city of Los Angeles was
invested with the same power and con-
troll over the distribution of water for
the purposes of irrigation as was pos
aeesed by the old pueblo. Here COM
menced mixture of these two great
legal systems.
In 1872 the Legislature passed an act
to promote irrigation. The same year
the statutes were codified on the civil
law plan, and in went section 1422 of the
code of civil procedure: ''The rights of
riparian [bankl proprietors are not
affected by this title. Title VIII on
water rightsI."
Then came the illogical supreme court
decision in 1854 sustaining riparian
rights. Then the legislature repealed
section 1922. and left 14lO, which reads ::
"The right to the use of running water
in a river or stream or down cafion or
ravine may be acquired by sppropria-
tion." Then came the Wright irriga-
tion districts with power of eminent
domain to destroy riparian right. The
Wright law is only sop. California has
certainly been cursed with a lot Of
asiuine Legislators and judges.
The pitiful decision of the supreme
court for riparian rights was founded on
the now repealed section 1922. They
further alleged there must be riparian
or bank rights on Kern river because it
had no pueblo!
In 1880 Lieutenant Governor John
Mansfield endeavored to get law passed
dividing the state into two districts,
namely, Northern and Southern Califor-
mia. The bill provided that on irriga-
tion matters Northern California should
L. l.