The herald., 1893-09-28
STATUS OF IRRIGATION STATE LAW.

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 eupreme
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
California 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 is 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 assembled at San
Jose in. December, 1S49, over the prop
osition 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 its fnnda-
mental principles is that the law itself
ceases when the reason for its existence
ceases. Riparian rights may be just
in the moist climate of England but are
unknown and unjust in the dry climates
of the English 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 towns situ-
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 industry OF Northern California
was built up.
Meanwhile, various laws were enacted
at different times regarding irrigation
districts, out OF all which was finally
evolved the Wright law of 1887.
| When the laws of the state were codi-
fed in 1872. a troublesome little joker
found its way in the code of civil pro-
cedure in the shape of section No. 1922,
which reads; "The rights of riparian
proprietors are not affected by the pro-
visions of this title. little VIII on
water rights."
On this section, in 1884, the supreme
court, by large majority vote, estab-
lished the doctrine of riparian rights as
the law of the state, and it 80 stands
today, This decision has been followed
by nearly a score of similar decisions
affirming the same doctrine.
In 1887 the legislature abolished Sec
tion 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 its first decision.
In the meantime, the irrigation dis
trict laws, which had been in process OF
| growth for more than twenty years,
we're brought quite to- perfection under
the Wright act.
Now this law makes these districts
quasi-public corporations and endows
them with the right of eminent do
main.
In other words, after a man has Sc
cured and vested his riparian rights, the
irrigation district of appropriations can
confscate his property and rights. The
Wright act lie all right for incorporators,
but it is Intellectual for non-incorporated
appropriations. What muddlel
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-
tione.
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 endsavored 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 is only one way to get remedy,
and that is to give Southern California
her own law. making power; in plain
words, divide the state. Then and not
till then will irrigation matters in
Southern California ever be ruled by
reason and common sense.