The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-07-13
HOW RIVER WATER RUNS,
If 1t Leaves Its Own Course
No Man ShaITChange 1t
Back.
An important Point In Riparian
Rights Decided in a Siskiyou
Case.

A decision of much Importance has been
rendered by the Supreme Court 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 CLOVER
riparian owners, from whose land the
streams have been 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 Whaley
was Flower" riparian owner and Leona
]. Caldwell and other defendants were
"upper" riparian owners. The stream
which has caused the trouble ran down
through the Caldwell land and about a
mile above Whaley's land forked into two
branches, the north and south forks.
Further up the stream another water
course broke away to the north, and par
alleling 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 a sufficient quantity filtered
through into the upper channel to supply
it with running water. From these two
WdCeTCOurSeS w naley laUu was irrigated.
In the winter of go and through the
spring of 81, the main stream was swollen
with freshet, such as the Oldest inhabi-
tants had never heard of, and when the
summer came it was found that the water
had with driftwood, logs and sand, effec-
tually damned up the north fork, and had
left it perfectly dry. The upper channel,
too, robbed of the chance to feed from the
north fork, was also dry, and where before
lIUInu streams had thrnnuh
Whaley's place, there were left but two
sandy 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 fork, 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 adjudicated the rights
of all parties, allowing Whaley to take
from what was then the main stream, at q
convenient point, as much water as had
originally run to him. This judgment the
Supreme Court has reversed.
The point Of the opinion is contained in
these words of the Supreme Court:
Does the right of the riparian proprietor to
have the water enter his land by its accus-
toned channels stand superior to changes
wrought in the flow of the stream by the act of
Providence? Has such a proprietor para
mount right over the forces of nature as well
as the acts of man, to insist that water which
has once flowed upon his land shall always
flow upon it?
somewhat extended examination leads to
the conclusion that such q right is new to
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 con-
sidered.
The rights thus draw their support from the
laws of nature, but they do not rise superior to
those laws. When by their operation the flow
is lost the rights lost with it. The new chan
mel itself becomes the natural channel Other
wise riprian proprietor would hold all the
lands above him in extraordinary and perpet-
ual servitude. If by the force of nature the
stream should change its course at point
miles above him he would still be empowered
to subject any and all of the intermediate ter
ritory to operations requisite to enable him TO
turn the water back upon his own premises,
and this power would be his to the very foun-
tainhead of the stream. Such q doctrine
would not be tolerated.