Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1895-07-26
NATURES COURSE.
WATERWAYS OUTLINED BY d.
VINE POWER.

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VINE POWER.
II a Watercourse Leaves Its Course
No mau Shall Change II Back
An Important Point In Riparian
Rights Decided In a California
Case.
A decision of great importance to
people living on streams has just been
rendered by the supreme court OF Cali
fornia, as it decides a new point,
whether when a stream changes its
course, 1t is right to put it back in
its old channel. The decision was
rendered in the case of Whaley against
Caldwell ct al, suit growing out OF
the riparian rights of the parties. 1t
deals with the rights of GLOVER"
riparian owners, from whose land the
streams have turned through no act
OF man. 1t decides that they have no
rights whatever except to the barren
bed where once ran the water.
In the case at bar the parties owned
land in Siskiyou county. James Wha-
ley was lower" riparian owner and
Leona J. Caldwell and other defendants
were upper" riparian owners. The
stream which has caused the trouble
ran down through the Caldwell land
and about mile above Whaley's land
forked into two branches, the north
and south forks. Further up the
stream another wstercourse broke
away to the north, and paralleling the
north fork, ran through Whaley's
property. This upper fork was dry, so
far as it took from the main stream,
but while the north fork, which diverted
two thirds OF the stream, was running
sufficient quantity filtered through
into the upper channel to supply it
with running water. From these two
watercourses Whaley's land was irri-
gated.
In the winter OF 80 and through the
spring OF '9l, the main stream was
swollen with freshet, such as the
oldest inhabitants had never heard of,
and when the summer came it was
found that the water had, with drift
wood, logs and sand, effectually
damned up the north fork, and had
left it perfectly dry. The upper chan.
mel, too, robbed of the chance to feed
from the north fork, was also dry, and
where before two living streams had
rnn through Whaley's place, there
were left but two riffs.
Whaley sued to be allowed to enter
the land above him and remove the
natural dam which the freshet had
thrown up, and thus allow the water,
which was then all running down
through the south, to run again in
its accustomed way. He also asked
for an injunction restraining the
owners of the land from interfering
with him in his work. The lower
court refused the injunction, but ad-
Indicated the rights OF all parties,
allowing Whaley to take from what
was then the main stream, and at a
convenient point, as much water as
had originally run to him. This judg-
ment the supreme court has reversed.
The point OF the opinion is con.
tanned in these words of the supreme
court:
"Does the right OF the riparian pro-
prietor to have the water enter his
land by its accustomed channels
stand superior to changes wrought in
the flow OF the stream by the act OF
Providence? Has such q proprietor a
paramount right over the forces OF
nature as we'll as the acts OF man. to
insist that water which has once
flowed upon his land shall always flow
upon it?
"A somewhat extended examina-
ton leads to the conclusion that such
a right is new to the jurisprudence.
The right finds no recognition from
the commentators of either the civil
or the common law, and no case has
come under our observation in which
the question is considered.
"The rights thus draw their sup
port from the laws of nature, but they
do not rise superior to those laws.
When by their operation the flow is
lost the right is lost with it. The new
channel itself becomes the natural
channel. Otherwise a riparian pro-
prietor would hold all the lands above
him in extraordinary and perpetual
servitude. If by the force of nature
the stream should change its course at
o point miles above him he would still
be empowered to subject any and all
of the intermediate territory to opera
tions requisite to enable him to turn
the water back upon his own prem
ises, and this power would be his to
the very fountainhead OF the stream.
Such doctrine would not be tolerated
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