The herald., 1893-10-10

~
is its very life-blood. Every practica
man must know that with the dry
atmosphere and porous soil of those
sections requiring irrigation, but little
if any of the water diverted anC
used in irrigation is or can b'
returned to the stream from which
it 10 taken. To establish, therefore, at
the law of this state, that the water o
watercourse must flow on in it's natu-
raj channel. undiminished in quantity
would, in effect, be to convert the fertile
fields, gardens, orchards and vineyards
in many and great sections OF the state
| into waste and desert places. Such
rule is inapplicable to the condition o.
things existing here. The common Law
| is supposed and has been said to bt
the perfection OF human reason, but II
would De Che very reverse of this tc
hold that the waters of the streams o
! California must continue to flow in
their natural channel until they sink
into the sand or waste themselves IN
the sea, while orchards, vineyards and
growing crops of immense. If not in
cslculable value perish from thirst. In
the case of People We. Canal Appraisers,
SO N. Y. 482, the court OF appeals oi
New York quoted with approval the
language of Judge Bronson: II think
no doctrine better settled than that
such portions of the law OF England aF
are not adapted to our condition form
no part of the law OF this state. This
exception includes not only such laws
as are inconsistent with the spirit of our
own institutions, but such as were
! framed with special reference to the
physical condition of q country differ
ing widely from our own. 1t is con-
trary to the spirit of the common law
itself to apply rule founded upon q par
ticular reason to law when that reason
utterly fails; cessante ratione legis,
cessat ipsa lex"
In other words, there being no reason
on account of the physical condition of
California for the application of the
rule of riparian rights as laid down in
the English common law, that portion
OF that law utterly fails in this country,
and the contrary doctrine of appropria-
tion prevails, or should do go. This
is agreeable to the laws and court de-
cislons of the English colonies them
selves in Australia and India.
But the strange and prevailing opinion
in the Lux-Haggin case said, in refer
ence to the act OF 1850:
The act of 1850 adopts the common
law OF England; not the civil, nor the
jus commune antiquum, or Roman "law
OF nature OF some OF the civil law COM
mentators (Braly vs. Reese, 81 Cal. 564,
note) nor the Mexican law; nor any
hybrid system. And the expression
common law OF England designates
the English common law as Interpreted
as we'll in the EHglieh courts as in the
courts of such OF the states of the union
as have adopted the English COM
mon law. We cannot presume that
the members of the Legislature, even
at that day, were utterly ignorant
of the climate and soil of the country in
which they lived; and these included in
their number manv natives OF California,
who must be presumed to have repre-
sented the intelligence OF a race which
for several generations had been familiar
with the natural conditions here exist
ing. The report of the proceedings of
the legislature shows that there was q
considerable minority in favor of the
adoption of the civil law, and there are
circumstances appearing from the pro
ceedinga tending to prove that the ad-
vantages of each system as the funda-
mental law of the future were discussed
and fully considered. Under these cir.
cumstancee we must believe that if it
had been intended to exclude the COM
mon law as to the riparian right, the
intention would have been expressed.
C69 CAL, 3S4.)
Which shows that the "learned
judge" who wrote the prevailing opin-
ion was not learned in the history of his
own state. What are the facts2 In
1Sd6, at the time of the American occu-
patton, California had total population
OF about 26, 900. In 1850, when this law
was adopted, it had a population of 9z,-
600. This great and sudden increase
resulted from an ingress of people who
came to mine, not to farm. They came
from a moist to an arid region, and
while in the language of the supreme
court I'VE cannot presume that the
members of the Legislature, even at that
day, we're utterly ignorant of the climate
and soil of the country in which they
had lived" only few months. as re-
CARDS the relation of that climate and
soil to farming in the arid country in
which they we're living, and Of the nee
essary art of irrigation.
The facts are that it was many years
before the agricultural resources of
California were understood by the
American immigrants, and a much
longer period before they took the hint
from their Mexican predecessors that
irrigation was not only a benefit, but
also O necessity. And these facts are
known to all.
The "many natives of California" in
the legislature of 1850, the first, were
just two, namely, M. G. Vallejo and
2. de la Guerra, neither of whom
could talk any English, and what little
law of any kind that they knew, if they
knew any, was that of the civil law.
What alarm should these two natives
of California" in the fret legislature
have over riparian rights of the English
common law, when the subject of rpar-
ian rights was never even discussed,
and they ca " their fellow-members con-
firm the old pueblos in all their old
water rights?
PaschsPs rule OF legal Interpretation,
that laws should be construed according
to their conte emporaneous history, may
here be we'll applied.
In the first message of the first gov
ernor to the first legislature on December
81. 1649, Governor Peter HI. Burnett
said:
81 recommend the adoption OF the fol-
lowing codee:
l. contained in the common
law OF England. (Ist Cal. lep., p $780,"
A petition OF IS out of 100 lawyers in
San Francisco. presented to that legisla-
ture praying the adoption of the civil
law, was referred to the judiciary COM