The herald., 1893-12-07
pueblo was founded BY few ismilies

| pueblo was founded by asfew familiea
brought here for that purpose. Ewou,d
| be folly to suppose that tba Spanierds
who founded this town did not coptem-
plate that there would bs more of q
population than when iuaugura.ed. In
their widest dresms they may not have
contemplated such city as we see here
today, but they evidently contemplated
that it would grow and foster and con-
seauently increase in population and
that the demand for the use of the water
would correspondingly increase. The
right, therefore to the use of the water
in the river was co-extensive with the
wants of the prospective town Or city.
In other words, the wants of the town
then and theresfter were considered fret
and paramount as far as the water of the
river was concerned.
And what do we understand by the
waters OF the river? After we have ar
rived at the conclusion that the town,
and its successor the city, possesses the
right to the use of the waters of the
river paramount to others, what then lie
meant by waters of the river? A
great deal has been said here in refer
ence to percolatIng waters, and great
deal OF law has been submitted in refer
ence to percolating water. This ques-
tion was before this department OF the
court not long since in another case.
had occasion then to consider the mat
ter pretty thoroughly and arrived at q
conclusion that | see no occasion to
change. The circumstances under
which we find the rivers in Southern
California, in fact, it may be said the
same in reference to all the arid regions
<f ho Iv,,< Gkak - n \
ferent from the rivers east of the Mis-
sissippi river and in Europe. where they
are generally streams flowing in we'll
defined channels and supported by q
bed or bottom that will hold water, so
the earth within the banks of the river.
In the arid portions OF California and
the territories the rivers have their
feeders in the high mountains, and in
time of storms which are semi-tropic in
their character, the water for short pc
riods tears down the sides OF the noun
tains, grinding and pulverizing even the
granite into gravel and sand whica, car
ried down with the water, makes beds
for these streams, in some instances 80
and 100 feet in depth, so that after
the violence of the storm subsidies,
in many cases the rivers and
streams, or the waters in them, disap-
pear from the surface and are carried
beneath through this sediment OF sand
and gravel. Now, is this water which
flows beneath the surface in these chan
nels filed up with this debris any less
the waters of the river? 1t seems to me
they are not. Our rivers in that respect
might be likened to large fume with
depressions and rises in it bottom, cor
responding to the inequalities as to sand
and bedrock bottom over which these
natural rivers flow. Suppose then we
take that fiume and fill it with gravel or
sand and put through the flume only
sufficient to fill that body OF sand and
gravel; it rams down within the hume
through that sand and gravel and in
the hollows or depressions OF the tiume
it sinks deeper and then rises to pass
over the ridges or rifles in the bottom
OF the fume, bringing it up nearer the
surface, the same as we witness in many
of our streams. Yet. in both cases, it is
the came body of water flowing down
through the sand or above the sand.
NoV, is it not diversion OF the river to
take the water from that sand in the
bed OF the river, although it may not be
taken from the flow on the surface? MY
op nion is thst it is, and l 30 held in the
case alre ady referred tc-that the water