I'r^ j^i/G Z?^'-' OJnrnf U Ham ^rljnnl ICibraty Cornell University Library KF 646.P78 1893 A treatise on the law of water rights as 3 1924 018 800 445 i>^, i^AMA' ^ ATTORl^EY-AT-UW. ^^9tnr^^V^/^^ Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018800445 A TREATISE THE LAW OF WATER RIGHTS AS THE SAME IS FORMULATED AND APPLIED IN THEi PACIFIC STATES, INCLUDING THE DOCTRINE OF ' APPROPRIATION AND THE STATUTES AND DECISIONS RELATING TO IRRIGATION By JOHN NORTON ^EROY, LL D. Author of works on Constitutional and International Law, Equity Juris prudence, etc. BEING A REVISED AND ENLARGED EDITION OF "POMEROY" ON RIPARIAN RIGHTS, " WITH SEVERAL ADDITIONAL CHAPTERS By HENRY CAMPBELL BLACK, M. A. Author of "Black's Law Dictionary," and of treatises on Judgments, Tax Titles, Intoxicating Liquors, Constitutional Prohibitions, etc. St. Paul, Minn. WEST PUBLISHING CO. 1893 COPYKIGHT, 1887 BY WEST PUBLISHING COMPANY COPTKIGHT, 1893 BY WEST PUBLISHING COMPANY PREFACE TO THE PRESENT EDITION, During the six years which have elapsed since the publi- cation of the first edition of this work, numerous important decisions have been rendered by the courts in the several Pacific states on the subject of "Water Eights" or some of its branches. Further, most of these communities have recently adopted statutory measures looking to the pro- motion and regulation of irrigation, — now the most vital question with which they have to deal, — which are as de- tailed in their provisions as they are novel in the history of legislation. In view of these facts, it seemed desirable to subject this book to a thorough revision, at the same time enlarging its scope to a degree corresponding with the recent developments of the subject, with the idea of making it a complete and exhaustive treatise on the gen- eral topic of "Water Rights," for use in the Pacific, north- western, and southwestern states. To this end, the editor has carefully revised the work page by page, incorporating the results of the later decisions, together with some few cases not previously referred to. He has also added five supplementary chapters. These chapters deal with the sub- jects of "Irrigation and ditch companies," "Irrigation dis- tricts," "State supervision of distribution and use of water," "Riparian rights on navigable streams," and "Littoral rights." They will be found to contain full synopses of the statutes, as well as a detailed examination of the applica- ble authorities; and it is hoped that the inclusion of them will add considerably to the practical usefulness of the book. As the title "Riparian Rights" would no longer be accurately descriptive of the work in its enlarged form, it has been discarded, and the title "Water Rights" substi- tuted. H. C. B. Washington, D. C, June 1, 1893. LAW w. E. (iii)* EDITOR'S PREFACE. The late Professor Pomeroy, during his editorship of the West Coast Eeporter, published in that journal a series of articles on water rights and riparian privileges in the Pacific states, which attracted much attention from the legal profession in those com- munities, and elicited high commendation by reason of their learning, candor, and comprehensive grasp of the subject. In consequence of the peculiarities of the law of riparian rights ob- taining in California, Nevada, and the adjacent states and terri- tories, the limited applicability of the common-law rules, the prevalence of that unique system known as the doctrine of ap- propriation, and the novelty and importance of the questions presented to the courts, the appearance of these articles was timely and significant, and they formed a valuable addition to the literature of the subject. The plates and copyrights of the West Coast Reporter having come into the ownership of the pub- lishers of the present work, it was decided to reprint the ar- ticles in question in the form of a text-book; and they constitute the basis of the monograph now offered to the profession. It is to be regretted, for several reasons, that this undertaking could not have had the benefit of the author's own superintendence and revision; and especially because the doctrines and results of the later cases cannot, perhaps, be so harmoniously blended into the original work by a stranger's hand. But the editor has endeavored to perform this office to the best of his op- portunities. Apart from the breaking of the work into chap- ters, and the introduction of section numbers and appropriate LAWW.R. (v) VI EDITOR'S PREFACE. head-lines, he has been scrupulous to preserve intact both the language and the arrangement of Professor Pomeroy, making only such slight changes in phraseology as were rendered neces- sary by the altered form of publication. All the later author- ities have been carefully collated, and their views and results — as also a considerable number of cases not cited by the author — have been incorporated in the work in one form or another. The general plan has been to make these interpolations in the way of additional foot-notes. But it was found that several topics of great importance were first broached by the later cases, and that points which were but imperfectly developed when the original articles were prepared had been clarified or enlarged upon. It then became necessary for the editor to write new sections; and these, being inserted in their proper connection, have added considerably to the bulk of the work. But in every instance of a new foot-note or a new section, the editor's mate- rial is to be distinguished from that of the author by the fact that it is inclosed in brackets. With a view to further facility in the use of the book, an index and a table of cases are added. H. C. B. TABLE OF CONTENTS. CHAPTER I. INTRODUCTION". § 1. Importance of the subject— Need of legislation. 2. Object of tUe present work. 3. The problem stated. CHAPTER II. THE COMMON-LAW DOCTRINE. j 4. Priority of appropriation gives no superior right. 5. Statement of leading cases. 6. Inland lakes and navigable streams. 7. Specific rules stated. 8. Riparian owner's right to natural flow of stream. 9. This right is parcel of the realty. 10. Diversion, when permissible. 11. Exceptions to common-law rule against appropriation. CHAPTER in. APPROPRIATION OF WATERS FLOWING THROUGH THE PUBLIC DOMAIN. I. Oeiqin and Basis op the Right to Appbopkiatb. § 12. Scope of the present chapter. 13. Early importance of mining interests. li. Mining customs. LAW w. E. (vii) Vm CONTENTS. g 15. Doctrine of appropriation. 16. Appropriation not at first availing as against the government. 17. The act of congress of 1866. 18. Limits of the doctrine of appropriation — The early cases. 19. Views of the United States supreme court. 20. Grounds of these decisions. 21. Doctrine of appropriation unknown to the common law. 22. Basis of right to appropriate water. 23. Grounds for presumption of license. 24. Efflcacy of miners' customs. II. Appbopkiation as against the Sdbseqttent Grantee of the Government. 25. Title of subsequent grantee is subject to prior appropriation. 26. California decisions on this point. 27. Views of United States supreme court. 28. The act of 1870 is declaratory only. 29. , Public lands of the state. III. The Right Eestbictbd to the Public Domain. 30. Appropriation confined to public lands. 31. Jurisdiction of state and United States distinguished. 32. Power of government to annex conditions to grants. IV. Conflicting Claims between Sbttlebs and Appeopriatoks. 33. Converse of doctrine of appropriation. 34. When title from United States is perfected. 35. When patentee's riparian rights vest. 36. Review of the authorities on this point. 37. Riparian rights protected. 38. Doctrine of relation applied to patentees. 39. Grounds for the application of this doctrine. 40. California decisions. 41. Review of the cases. 42. Loiter decisions establishing doctrine of relation. 43. Riparian rights under Mexican grants. 44. Summary of conclusions. CHAPTER IV. HOW AN APPROPRIATION IS EFFECTED. § 45. Successive appropriations. 46. Doctrines which control the appropriation. CONTENTS. IX § 47. The methods by which an appropriation is effected. 48. Intent to apply water to beneficial use. 49. There must be actual diversion. 50. There must be actual use of water. 51. Physical acts constituting appropriation. 53. Notice of intent to appropriate. 53. Reasonable diligence in completion of works. 54. When appropriation is complete. 55. Appropriation relates back to first step. 56. Effect of failure to comply with statutory rules. CHAPTER V. NATURE AND EXTENT OP THE RIGHT ACQUIRED BY APPROPRIATION. I. Nature of the Right Acquired. § 57. Appropriator's right begins at head of his ditch. 58. Nature and extent of right depends on purpose of appropriation. 59. Property in ditches and canals. 60. Sale of ditches and water rights. 61. Same; conveyance of water rights. 63. Water rights as appurtenant to land. 63. Tenancy in common. 64. Right to natural flow of water at head of ditch. 65. What are streams subject to appropriation. 66. Definition and characteristics of a water-course. 67. Percolating and subterraneous waters. 68. Right to exclusive use of water. 69. Appropriaior may change place or manner of use. 70. Remedies for interference with these rights. 71. Injuries to ditches. 78. Remedies for unlawful diversion. 73. Same; action for unlawful diversion. 74. Same; action to quiet title. 75. Equitable jurisdiction. 76. Deterioration of quality of water. II. Liability for Damages Caused by Ditches. 77. Various kinds of injuries. 78. Damages caused by breaking or overflow. 79. Proper measure of care required. 81 83. 83, 84 CONTENTS. Injuries from iatentional trespasses. Damages from mode of construction or operation of works. Discharge of mining debris. Effects of hydraulic mining a public nuisance. Impounding dams. III. Extent of the Right Acquibed. 85. Amount of water which the appropriator is entitled to use. 86. Carrying capacity of ditch. 87. True capacity of ditch the proper measure. 88. Measurement of water. IV. Successive Apphopeiatoks. 89. Rights of subsequent appropriator. 90. Successive appropriations. 91. Periodical appropriations. 92. Conditions under which subsequent appropriation may be ef- fected. 93. Division of increase in stream. 94. Wrongful diversion of springs. 95. Right to tributaries of stream. V. Abandonment op Right. 96. General doctrine of abandonment. 97. Methods of abandonment. 98. Abandonment by adverse user. VI. Review of the System. 99. This system as a whole. 100. Defects of the system. 101. Presumption that stream was on public land. CHAPTER VI. LEGISLATION ON WATER RIGHTS. I. Legislation on the Subject. 102. Distinction between appropriator and riparian owner. 103. Application of the common law. 104 Summary of statutory legislation — California. 105. Nevada. CONTENTS. XI \ 106. Montana. 107. Colorado. 108. Idaho. 109. North Dakota. 110. South Dakota. 111. New Mexico. 113. Arizona. 113. Wyoming. 114. Utah. 115. Oregon. 116. Washington. 117. Texas. 118. Nebraska. 119. Federal legislation. II. The Effect of This Leuislation. 120. Riparian rights abolished. 131. Two distinct systems. CHAPTER VII. RIPARIAN RIGHTS ON PRIVATE STREAMS. I. Nature and Extent of These Ri&hts. ) 133. Ambiguity of California statutes on water rights. 133. Review of the authorities. 124. Common-law doctrine of riparian rights obtains in California. 135. Construction of section 1433. 136. Riparian rights excepted. 127. Interpretation of section 1423 — Lux v. Haggin. 138. Mexican law — Effect on riparian rights. 129. Riparian rights in Kern district. 130. Common law of England. 181. Who are riparian owners. 132. Prescriptive water rights. 133. Loss of riparian rights by adverse user and estoppel. II. Uses to Which the Water mat be Put. 184. General statement of riparian rights— Van Sickle v. Haines. 135. Modifications on doctrine of Van Sickle v. Haines. 136. Legitimate riparian uses. 137. California decisions. xii CONTENTS. § 138. Natural uses. 139. Secondary uses. 140. Eeasonable riparian use. 141. Reasonable use for manufactures. 143. Manner of use must be reasonable. CHAPTER VIII. USE OF "WATERS FOR IRRIGATION. 143. Irrigation of riparian lands— Ellis v. Tone. 144. Limited authority of foregoing decision. 145. Tendency of decision in Ellis v. Tone. 146. The question as to irrigation stated. 147. No right to irrigate nonripariaa lands. 148. Prior appropriation gives no exclusive right. 149. Relative equality of riparian owners. 150. Size of stream. 151. Reasonable use for irrigation. 153. Easements and adverse user. 153. Relation of irrigation to the natural wants. 154. Summary of principles. 155. Irrigation — The English authorities. 156. French law.' 157. Review of the American authorities. 158. Review of authorities continued — The Pacific cases. 159. Surplus water must be restored. CHAPTER IX. SUGGESTIONS FOR LEGISLATION ON RIPARIAN RIGHTS. i 160. Need of statutory regulation. 161. Irrigation — Common-law rules inadequate. 163. Contents of proposed statute. 163. Essential nature of projected law. 164. System of aceguias impracticable. 165. Colorado system criticised. 166. Legislation must respect natural laws and natural rights. 167. Natural rights and advantages of riparian owners. CONTENTS. Xlll g 168. Legislation should recognize these rights. 169. Jurisdiction of equity. 170. Legislation to the same end. 171. Provision for non-riparian lands. 172. Condemnation of stream for public use. 173. Whether irrigation is a public use. 174. Eminent domain. 175. Summary of suggestions concerning legislation. 176. Concluding observations. CHAPTER X. IRRIGATION AND DITCH COMPANIES. I. Legislation Authorizing and Regulating Such Companies. g 177. Systems of statutory regulation. 178. Statute of Oregon. 179. Statute of California. 180. Statute of Washington. 181. Statutes in Wyoming. 182. Statutes in Colorado. 183. Statutes in North Dakota and Montana. 184. Statute of Nebraska. 185. Statute of Texas. 186. Statute of New Me.xioo. 187. Statute of South Dakota. 188. Act of congress granting right of way. II. CONSTEUCTION AND APPLICATION OP ThBSE STATUTES. 189. Acquisition of water rights. 190. Right to use ditch constructed by another. 191. Bridging highways and crossings. 192. Tolls and charges for water. 193. Contracts with consumers. 194. Duty of company to furnish water. 195. Compelling company to deliver water. 196. Rights of stockholders. 197. Duty to keep ditch in repair; liability for injuries. 198. Liability for failure of water-supply. XIV CONTENTS. CHAPTER XI. IRRIGATION DISTRICTS. § 199. Statute of California; the "Wright Act. " 200. Statutes of Washington and Nevada. 301. Statute of South Daliota. 202. Statute of Utah. 203. Constitutionality of these statutes. 204. Irrigation districts are public, but not municipal, corporations. 205. Organization of district. 206. Including and excluding territory. 207. Levy of assessments. 208. Proceedings for confirmation of bonds. CHAPTER XII. STATE SUPERVISION OP DISTRIBUTION AND USE OP WATER. g 209. Characteristics of this system. 210. Statute of Wyoming. 211. Statute of Colorado. 213. Statute of Nevada. 313. Statute of Idaho. 214. Statute of Arizona. 315. Powers of water commissioners. CHAPTER XIII. RIPARIAN RIGHTS ON NAVIGABLE STREAMS. i 216. What streams are navigable. S17. Navigable waters of the United States. 218. Floatable streams. 319. Paramount control of congress. 320. Title of state to bed of stream. 221. Limit of riparian owner's estate. 232. Incidents of state's ownership of bed of stream. CONTENTS. XV i 228. Rivera as boundaries between states. 224. Navigable stream as boundary. 225. Public right of navigation. 236. Right of state to improve navigation. 227. Public right of floating logs. 228. Public use of banks of stream. 229. Rights of riparian owner in general. 230. Right to build wharves and landings. 231. Right to reclaim submerged lands. 232. Preferential right to purchase. CHAPTER XIV. LITTORAL RIGHTS. 233. "Tide-lands" defined. 284. Meaning of the terms "shore" and "beach. " 285. High and low water mark. 286. Seashore as a boundary. 237. Title of United States to tide-lands of territory. 288. State's ownership of shore and flats. 239. Nature of state's title. 240. Grant by state of tide-lands to private owner. 241. Preferential right of littoral owner to purchase. 242. Location of scrip on tide-lands. 243. Public right of navigation. 244. Rights of littoral ownerin general. 245. Right of access to water. 246. Same; cases denying right of access. 247. Same; cases affirming right of access. 248. Same; cases in the Pacific states. 249. Samet conclusions from the authorities. 250. Right to build wharves and landings. 251. Establishment of harbor lines. 252. Right to accretions. 253. Rights of fishing. 254. Severance of riparian rights. 255. Determination of boundaries as between adjoining owners. TABLE OF CASES CITED. [the numbers refer to sections.] A. Abendrotli v. Railroad Co 248 Abom V. Smith 231 Acquackanonk Water Co. v. Watson. 140 Acton V. Blimdell 6T Adams y. Barney T Agawam Canal Co. v. Edwards 140 AUiambra Addition Water Co. v. Mayberry 61 V. Richardson 90 Aliso Water Co. v. Baker . . . ; 174 Alta L. & W. Co. V. Hancock 133 American Co. v. Bradford 90 American River Water Co. v. Amsden 216, 218 Anaheim Water Co. t. Semitropic Water Co 132, 151 Andrus v. Knott 233 Anonymous [1 Camp. 517] 22S Anthony v. Lapham 157, 150 Armstrong v. Larimer Co. Ditch Co 92 Arnold v. Foot 8, 134, 15T V. Mundy 288, 253 Ashley v. Wolcott 66 Atchison v. Peterson 15, 17, 19, 68, 85, 9T Atchison, T. & S. F. E. Co. t. Long. 75 Atlee V. Packet Co 230 Attorney General v. Delaware & Bound Brook K. Co 216, 220 V. Erart Booming Co 250 V. Stevens 220, 240 V. Woods 21& Austin V. Rutland R. Co 231 B. "B. & C," The 21T Babson v. Tainter 236 Baer v. Moran Bros. Co 24^ LAW w. E. — b (xvii) XVlll CASES CITED. Bainbridge v. Sherlock 228, 230 Baker v. Brown .- 140, 153 BaU V. Herbert 228 .V. Kehl 133 V. Slack 221 Baltimore v. Appold 8, 140 V. Warren Manuf . Co 172 Banks v. Ogden 236, 252 Barkley v. Tieleke 44, 96, 97 Barnes v. Marshall 81, 229 V. Sabron 15, 26, 44, 64, 65, 68, 85, 86, 90, 91, 158 Barney v. Keokuk 220, 221, 247 Barre v. Flemings 221 Barrett t. Parsons 140 Barrows v. Pox 75, 85, 90 Basey v. Gallagher 17, 19 Batavia Manuf. Co. v. Newton Wagon Co 140 Bealey r. Shaw 8, 134 Bear River Co. v. New York Min. Co 15, 18, 68, 76, 86 Bedlow V. New York Dry Dock Co 241 Bell V. Gough 174, 240 Bickel v. Polk 253 Black River Imp. Co. v. La Crosse Boom Co 226 Blackslee Manuf. Co. v. Blaokslee Iron Works 232 BlaisdeU v. Stephens 81 Blanchard v. Baker 134, 157, 159 V. Porter 223 BUss V. Kennedy 4, 7, 141 Blodgett & Davis Lumber Co. v. Peters 255 Bloom V. West 62 Blundell v. Catterall 222 Board of Directors Middle Kittitas Irr. Dist. v. Peterson 204 Board of Directors Modesto Irr. Dist. v. Tregea 199, 206, 208 Bodflsh V. Bodfish 133 Boggs V. Merced Min. Co 23, 80 Bond V. Wool 230, 232, 247, 250 Bonds of Madera Irr. Dist., In re 203, 204, 205, 208 Boston V. Richardson 238 Boston Rolling Mills v. Cambridge 83 Bowlby V. Shively 248, 250 Bowman v. Wathen 229, 247 Boynton v. Longley 81, 132 Bradley v. Harkness 63 Bradshaw v. Duluth Imperial Mill Co 254 Brennan r. Lammers 225 Bright V. Farmers' High Line Canal Co 195 Bi-isbine v. St. Paul & S. C. R. Co 231, 247 CASES CITED. XIX BroadAax v. Baker 216 Broder v. Natoma Water Co ". 16, 17, 27, 40, 90 Bro\\^n , v. Ashley 67, 72 V, Cbadboume 216, 218 Brown OU Co. v. Caldwell 221 Browne v. Kennedy 220 Buccleuch v. Metro. Board of Works 246, 247 Buckiogliam v. Smith 134 Buddlngton v. Bradley 7, 8 Buffum v. Harris 66 Bumes, In re 242 Burnham r. Freeman .• 60, 62 Burrows v. Burrows 56 V. Gallup 210 Burwell v. Hobson 142 Butte Canal Co. v. Vaughn 49, 90, 97 Butte T. M. Co. V. Morgan 68, 69, 72 Bybee y. Oregon & O. R. Co 33 C. Campbell v. Bear River Co 78 V. Shivers 63 v. Smith 134 €anal Com'rs v. People 134, 220 OarU V. StiUwater Street Ry. Co 231, 247 Carlisle v. State 223 Carpenter v. Gold 75 Carpentier v. Webster 63 Carron v. Wood 72, 87 Carter v. Thurston 218 Garuthers v. Pemberton 44, 87 Gary v. Daniels 9, 11, 140 Case V. HofCman 66 V. Toftus 237, 247, 250 V. Weber 8 Catlin Land Co. v. Best 197 Gave V. Crafts 60 Central Irr. Dist. v. De Lappe 203, 204 Chandler y. Howland 140 Chandos v. Mack ._ 224 Chapman v. Kimball '. , 221, 222 V. Oshkosh & Miss. Riv. R. Co 247 Ghasemore v. Richards , , 8, 67 Ghauvet y. HiU 94, 133 Chiatovich v. Davis , 60 Chicago v. Laflin , 230 XJC CASES CITED. Chicago, K. & W. R. Co. v. Morrow 66 Chidester v. Consolidated Ditcli Co IS" Chotard v. Pope 41 CliurcliiU V. Baumann 75 V. Lauer ^3■ City of Denver v. Mullen 191 City of Santa Cruz v. Enright 30 City of SpringviUe v. Fullmer 7S Clark V. Peckham 247 V. Penna. R. Co 73 V. WUlett 68, 71 Clifford V. Larrien. 75 Clinton v. Myers 8, 140 Clougli V. Wing 24, 90, 120, 148 Cobum y. Ames 248, 250 Coffin V. Left Hand Ditcli Co 50 Coffman v.. Robbins 8 Cohn V. Wausau Boom Co 230 Cole Silver Min. Co. v. Virginia Water Co 67 Collins V. Howard 21S Columbia M. Co. v. Holter 51 Combs v. Agricultural Ditch Co 50, 51, 189, 194, 195 V. Slayton 63 Comm. V. Alger 238 V. Roxbury. 240 Commissioners v. Kempshall 134 V. Withers 174 Oonant v. Jones 50 Concord Manuf. Co. v. Robertson 216 Conger v. Weaver 23 Conkling v. Pacific Imp. Co 61, 73, 75 Conn Co. v. Little Suamico Lumber Co 227 Connecticut River Lumber Co. v. Olcott Falls Co 229- Cook V. Hull ; 159 Coonradt v. Hill 62, 98 Cooper V. Williams 8, 172 Coming V. Troy Iron Factory 134 Cortelyou v. Van Brundt 253 Countess of Rutland v. Bowler 9 Coventon v. Seufert 62 Covington v. Becker 44 Cowles v. Kidder 4, 8 Crall V. Poso Irr. Dist 208 Cramer v. Randall 44, 48, 76 CrandaU v. Woods 15, 33, 30, 37, 46, 123, 124 Crane v. Winsor 15 Creighton v. Evans 9, 37, 123-125, 138 CASES CITED. XXI Creighton v. Kaweha Canal Co 75 Crisman t. Heiderer 120 Crook V. Hewitt 73 Crooker v. Benton 62 V. Bragg 134 Cross V. Kitts 67 Curtis V. lia Grande Water Co 30, 133 D. Dailey v. Cox 215 Dalton V. Bowker 49 V. Rentaria 133 Dana v. Jackson Street Wharf Co 248, 250, 252 Daniel BaU, The 216, 217 Daniels v. Lansdale 26 Dartmouth College v. Woodward 204 Davies v. Ijos Angeles 203 Davis V. Fuller 134 V. Gale 48, 51, 68, 69, 85, 90, 93, 96, 97 V. Getchell 8, 134, 141 Dean v. Davis 203 De Baun v. Bean 142 Deerfield v. Arms 255 De Force v. Welch 241 Deliichaise v. Maginnis 252 De Lancy v. Piepsras 236 Delaplaine v. Chicago & N. W. R. Co 229, 247, 250 De Necochea v. Curtis 56 Denver v. Mullen 191 De Witt V. Harvey 61 Dick V. Bird 48 V. Caldwell , 44, 48 Dickinson v. Grand Junction Canal Co 67 V. Worcester 66 Diedrich v. Northwestern R. Co 216, 230 DiUing V. Murray 8, 140 Doane v. Willoutt 234 Dodge V. Marden 98 Dority v. Dunning 132 Dorr V. Hammond 98 Dorris v. Sullivan 61 Dougherty v. Haggia 87 Dow V. Edes 85 Downing v. More 190 Doyle V. San Diego Land Co 61 Drake v. Curtis 238 XXll CASES CITED, Drake y. Earhart 26, 85, 88 Druley v. Adam 8 Dubose V. Levee Com'rs 226 Duke of Buccleuch v. Metro. Board of Works 246, 247 Duluth V. RaUroad Co 254 Duluth. Lumber Co. v. St. Louis Boom Co 217 Dumont v. Kellogg 4, 11, 140 Dunham v. Townshend 240 Dutton V. Strong 247, 250 Dyke v. OaldweU 53 E. Earl V. De Hart 66 Earl of Sandwich v. Great N. Ry 155 East Haven v. Hemingway 230 Eddy V, Simpson 97 Edgar v. Stevenson 91 Eisenbach v. Hatfield 241, 246, 248, 250, 251 Elder v. Burrus 216 Eldrldge v. Cowell 231 Elliott V. Fitchburg R. Co 134, 140, 157 V. Stewart. 233 V. Whitmore 26 Ellis V. Pomeroy Imp. Co 42 V. Tone 123, 125, 143, 145, 146, 149 Ellison V. Jackson Water Co 49 Ely V. Ferguson 33, 66 Embrey v. Owen 8, 134, 140, 155 Engs V. Pediham 231 Ensminger v. People 216, 220, 228, 230 Escanaba Co. v. CMcago 217, 219 Eulrich v. Riohter 66 Eureka Lake Co. v. Superior Court S3 Evans v. Merriweather 4, 8, 140, 153, 157 V. Ross 75, 98 Bx parte Jennings 134 F. Fabian v. Collins 44 Farisb. v. Coon 242 Farley v. Spring Valley M. & I. Co 15, 3G, 40, 41 Farmers' High. Line Canal Co. v. Southworth 50 V. White 193 Farrell v. Richards 140, 157 Parson, In re 242 CASES CITED. XXIH Faull V. Cooke 42, 133 Felger v. Robinson 218 Feliz V. Los Angeles 86 Ferrea v. Knipe 9, 123, 124, 138, 142, 144 Ferris v. Wellborn 66 Field V. Apple River Co 227 Fleming v. Davis 140, 153, loS Floyd V. Boulder Flume Co 52 Foreman v. Boyle 73 Fort Morgan Land Co. v. South Platte Ditch Co 50 Fraler v. Sears Co 78 FranMin v. PoUard Mill Co 75 Freary v. Cooke 253 Frederick v. Dickey 98 Fresno Co. v. Fowler Switch Canal Co 191 Frey v. Lowden 63 Frisbie v. Whitney 40, 41 Fry V. Campbell's Creek Coal Co 230 Fuller V. CMcopee Manuf. Co 11 V. Swan Riv. Min. Co : CI, 69 Furman v. Mayor 246 G. Gage v. Tuolumne Water Co 73 Galveston v. Menard 234, 235, 240 Gannon v. Hargadon 66 Gardner v. Newburgh 134 Garwood v. Railroad Co 73, 141 Gaston v. Mace 216 Geddis v. Parrish 26, 60 Genesee Chief, The 216, 217 Gterhard v. Oomm'rs 231 Gerrish v. New Market Co 134, 140 V. Proprietors 235, 243 Gibbs V. WilUams 66 Gibson v. Puchta 36, 48 Gilbert v. Eldridge 236, 254 GiUett V. Johnson 66, 157 Gilman v. Philadelphia 219 V. Tilton 4 Gilmore v. Hentig 203 Gilzinger v. Saugerties Water Co 72 Golden Canal Co. v. Bright 194, 195 Gough v. Be-U -. 238 Gould V. Boston Duck Co 11 v. Hudson Eiv. R. Co 246, 247 XXIV CASES CITED. Gonld V. Stafford 61, 73, 147, 158, 159 Grant v. Davenport 230 Gray v. Bartlett 250 Greeley Irr. Co. v. House 197 Green v. Carrotto 66 T. Swift 220 Greer v. Heiser 69, 97 Gregory v. Nelson 68, 71 Grigsby v. Clear Lake W. Co 81 Guy v. Hermance 231 H. Hagar v. Reclamation Dist 43, 203 Haines v. Hall 216, 218, 227 V. Welch 218, 228 Haldeman v. Bruckhart 67 Hale V. McLea 9, 67, 123 Hammond y. Rose 148 Handly t. Anthony 223 Hanford v. St. Paul & D. R. Co 229, 231, 254 Hanson v. McCue 9, 66, 123 Hardin v. Jordan 224, 237, 244 Hardt v. Liberty HUl Min. Co 84 Harrington v. Edwaiiis 227 Harris v. Harrison 74, 158 HartzaU v. SUl 4 Harvey y. Ryan 24 Hayden v. Long 115, 121, 140 Hayes v. Waldron 141 Hazeltine v. Case 140 Heath v. WiUiams 4, 5, 134 Hebron Gravel Road Co. v. Harvey 67 Heilbron v. Fowler Switch Canal Co 73 V. Kings River & F. C. Co 73, 133 V. Seventy-Six L. & W. Co 147 Henderson v. Nicholas 60 Hendrick v. Cook 8 Hendricks v. Johnson 8 Henshaw v. Clark 80, 81 Herman v. Beef Slough Manuf. Co 218 Hesperia L. & W. Co. v. Rogers 133 Hetfleld v. Baun 222 Hettrick V. Page 253 Hewitt v. Story 97 Hickok v. Hine 216 Higgins v. Barker 85, 87, 90 CASES CITED. XXV HiU V. King 15, 72 V. Denormand 26 V. Newmau 9, 15, 18 V. Smitli 15, 37, 68, 76, 90, 123 V. United States 219 Hillman v. Hardwick 108 y. Newington 83 Himes v. Johnson 15, 68 Hindman v. Eizor 60, 97 Hiuman v. Wai-ren 237 Hobart v. Ford 44 Hoboken v. Penna. R. Co 240, 247 Hodge V. Boothby 234 Hoffman t. Stone 15, 18, 49, 72 V. Tuolumne Co 78, 79 Holden v. Lalce Co 140 V. Robinson Manuf . Co 218 Hollingsworth v. Parish of Tensas 229 HolUster v. Union Co 226 Holman v. Pleasant Grove City 92 Holsman v. Boiling Springs Co 8 Holton V. Milwaukee 247 Holyoke Water-Power Co. v. Conn. Riv. Co 226 Hooper t. Hobson 228 Homer v. Pleasants 231 Howard v. IngersoU 66, 223, 235 Hoy V. Sterrett 8 Hulsman v. Todd 73 Humphreys v. McCall 44 Hurd V. Curtis 61 Huston V. Bybee 133 V. Leach 123 Hutton V. Frisble 40, 41 I. Illinois Cent. R. Co. v. Illinois 238, 239, 240 Ingraham v. Hutchinson 134 In re Bonds of Madera Irr. Dist 203, 204, 205, 208 Irwin V. Phillips 15, 24 V. Strait 55 Ison V. Nelson Min. Co 16 .T. Jackson MUling Co. v. Chandos 88 James v. Williams 86 XXVI CASES CITED. JanesvUle Cotton Mills v. Ford 88 Jatimn v. O'Brien 97 Jennings, Ex parte 134 Jennison v. Kirk 13, 40 Johnson v. Jordan 9, 133, 134 V. Knott 221 V. Superior Court 75 Jones V. Adams 17, 15& V. Wabash R. Co 66 Judkins v. Elliott 26 Junkans v. Bergin 69 K. Kaler v. Campbell 26 Kane v. Metropolitan El. Ry. Co 247 Kasson, In re 242 Keator Lumber Co. v. St. Croix Boom Co 223 Keeney v. Carillo 49' Keeney Manuf. Co. v. Union Manuf. Co 4, 11 Kelly V. Dunning 66 V. Natoma Water Co 15, 18, 51, 9a Kenyon v. Knipe 244 Kidd V. Laird 15, 49, 57, 61, 64, 68, 69, 85 Kimball v. Gearhart 51, 52, 53, 55, 68 Kimberley v. Hewitt 75 King r. Edwards 24 V. TitEany 8, 134 Kirk V. Bartholomew 26, 85, 108 Kirman v. Hunnewill 97 Knoth V. Barclay 107 Knowles v. Clear Cteek Ditch Co 196- L. Lahr v. Railroad Co 248 Lake v. ToUes 131 Lakeside Ditch Co. v. Crane 73, 88, 92: Lake Superior Land Co. v. Emerson 254 Lambert v. Alcorn 66 Lamprey v. Metcalf 216, 220- Langdon v. Mayor of New York 250 Lansdale v. Daniels 26 Lansing v. Smith 240- Larimer Co. Reservoir Co. v. People 107 Larsen v. Navigation Co 42 Last Chance Min. Co. v. Bunker Hill & S. Min. Co 69 Last Chance AVater Co. v. Heilbron 87, 133- CASES CITED. XXVll Learned v. Tangeman 153 Ledu V. Jim Yet Wa 98 Ledyard v. Ten Eyck 216, 228 Lehi In-. Co. v. Moyle 85, 114 Leigh Co. v. Independent Ditch Co 33, 36, 123 Leonard v. Shatzer 94 Levaronl v. Miller 82 Lewis V. McClure 24 Lick V. Madden 134 Lincoln v. Chadboume 11 Lobdell V. Hall 44, 60 T. Simpson 15, 44, 85, 90 Locke V. Motley 238 Lockwood Co. v. Lawrence 82 Logan V. DriscoU 82 Long Beach L. & W. Co. v. Richardson 238 Lord V. Meadville Water Co. 189 Lorenz v. Jacobs 63 Los Angeles y. Baldwin 57 Lowden y. Frey 97 Lowell y. Boston 11 Lower Kings River W. Co. v. Kings River Co 57, 64 Luther v. Wlnnisimmet Co 66 Lux v. Haggin 8, 9, 16, 21, 22, 24, 26, 28, 29, S6, 00, 75, 127, 128, 129, 130, 140, 155, 157, 158, 174, 1S9 Lyon v. Fishmongers' Co 247 Ly tie V. Arkansas 41 Lytle Creek Water Co. v. Perdew 26, 44, 63, 91, 101, 123, 125 M. Mack V. Jackson 75 Macomber v. Godfrey 66 Madera Irr. Dist., Bonds of. In re 203, 204, 205, 208 Maeris v. Bicknell 15, 48, 55, 69 MagnoUa, The, v. Marshall 216, 224, 228, 243 Mahan v. Brown 67 Malad Yal. Irr. Co. y. Campbell 95 Martin y. Bigelow 8 V. O'Brien 240 v. Wadd&l! 31 Mason v. Cotton 75 v. HiU 8, 128, 134, 140 Mather v. Chapman 244, 247, 250, 252 Mayor of Baltimore v. Appold 8, 140 Mayor of Mobile v. Eslava 237 McOaim v. Oregon Ry. Co 248 XXVlll CASES CITED. McCarty v. Boise City Canal Co SI, 197 McCauley v. McKeig 97 McCrary v. feeaudry 194, 195 McCready v. Yirginia 240, 247 McDonald v. Askew 48, 57, 58, 64, 68, 93 V. Bear River Co 15, 48, 60, 69, 72 T. Wmtehurst 224 McElroy v. Goble 140 McFall V. Comm 223 McGliee Irr. Ditch Co. v. Hudson 117, 189 McGiUivray v. Evans 63 McKinney v. Smith 48, 85, 90 McManus v. Carmichael 216, 222 Meagher v. Hardenbrook 63 Megerle v. Ashe 26 Merrifleld v. Lombard 8 Merritt v. Brinkerhoff 140 Messinger's Appeal 132, 151 Meyers v. St. Louis 247 Middleton v. Pritchard 216, 220 MiUer v. Mayor of New York 217, 219 v. Mendenhall 221, 231, 247, 250, 251 V. MUler 153 V. Troost 11 V. Windsor Water Co 72 Mills V. Hall 83 V. United States 226 Miner v. Gilmour 140, 155 Miners' Ditch Co. v. Zellenbach 204 Minto V. Delaney 224 Mitchell V. Parks 8 Modesto Irr. Dist. v. Tregea 199, 206, 208 MofEett T. Brewer 134 Monongahela Bridge Co. v. Kirk 216 Montello, The 216 Moore v. Clear Lake Water Works 75 V. Sanboume 218 V. Willamette Transp. Co 221 Morgan v. King .:27 Morrill v. St. Anthony Falls Water Power Co 229 Morris v. Beardsley 255 Morrison v. Coleman 218 Morton v. Solambo C. M. Co 24 Mosier v. Caldwell 67, 123 Mott V. Ewing 75 Moulton V. Libbey 253 Mud Creek Irr. Co. v. Vivian 133, 158, 189 CASES CITED. XXIX Mtmroe v. Ivie 44, 48, 174, 189 MurcMe v. Gates 132 N. Natoma Water Co. v. Hancock 90 V. McCoy 64, 68, 72 Nevada, etc., Co. v. Kldd 15, 36, 54, 57 V. PoweU 69, 85, 90, 94 Newhall v. Ireson 157 V. Sanger 242 New Haven Steamboat Co. v. Sargent 254 New Jersey Zinc Co. v. Morris Canal Co 231, 235 New York Cent. R. Go. v. Aldridse 232 New York Rubber Co. v. Rothery 73 Niles V. Patch 234 Norbtiry v. Kitchin 155 Norfolk V. Cooke 231 Northern Pine Land Co. v. Bigelow 255 Norton v. Volentine 10 Norway Plains Co. v. Bradley 140 Nuttall v. Bracewell J40 Nutter V. GaUagher 210, 218 O. Cakes v. De Lancy 236 O'Connor v. North Truckee Ditch Co. 198 Olive V. State 216 Omelvany v. Jaggers 8 O'NeiU V. Annett 228 Oneto V. Restano 98 Ophir Silver Min. Co. v. Carpenter 15, 44, 52, 53, 55, 68, 86 Oppenlander v. Left Hand Ditch Co 62, 120, 196 Organ v. Memphis & L. R. R. Co 247 Orr Ewing v. Colquhoun 8 Ortman v. Dixon 15, 48, 57, 58, 60, 68, 85, 90 Osgood v. El Dorado Water Co 26, 36, 39, 51, 52, 53, 55 P. Packer v. Bird 224, 229 Paige V. Rocky Ford Canal Co 124 Painter v. Pasadena Land Co 62 Palmer v. WaddeU 66 Parke v. KUham 52, 53, 55, 72 Parker v. Hotchkiss 4, 11, 134 XXX CASES CITED. Parker v. Larsen 78 V. Rosers 254 V. Taylor 250, 254 V. West Coast Packing Co 229, 248, 250, 254 Parks T. Newburyport 66 Parks Canal Co. v. Hoyt 15, 49, 57, 64 Paul V. Hazleton 240 Pearson v. Rolf e 227 Pennsylvania R. Co. v. Miller 140 People V. Canal Appraisers 21, 134, 220 V. Comin'rs of Land Office 231 V. Cunningham 83 V. Davidson 233, 248, 250 V. Gold Run Ditcli Co 83 V. Morrill 238, 242 V. N. Y. & Staten Island Ferry Co 240 V. Smith 203 V. Stratton 83 V. Tibbetts 216, 246 Peregoy v. McICissick 50 V. Sellick 74 Perkins v. Dow 157 Pettibone v. Smith 10 Pettis V. Johnson 83 Phoenix W. Co. v. Fletcher 15, 64, 68, 72 Pico V. Collmas 215 Pierce v. Kennedy 23S PElsbury v. Moore 7, 8 Pitkin v. Olmstead 220, 253 Pitts V. Lancaster Mills 140 Platte Water Co. v. Northern Colo. Irr. Co 97 Plumleigh v. Dawson 8, 134, 140 Pollard V. Hagan 31, 220, 237 V. Kibbe 237 Pope V. Kingman 9, 37, 123, 124, 125, 134, 138 Potier V. Burden 8 Potomac Steamboat Co. v. Tipper Pot. S. Co 229, 247, 250 Pratt V. Lamson 8, 11 Price V. Riverside Land Co 195 Prior V. Swartz 247, 250 Proctor V. Jennings 79, 90 Providence Steam Engine Co. v. Providence & S. Steamship Co., 234. 239, 244, 247, 250 Pugh V. Wheeler 4, 5, 134 Pursell V. Stover 228 Pyle T. Richards 66 CASES CITED, XXXI Q. Qulgley V. Birdseye 85, 97 Quirk T. Falk 59 R. Bailroad Co. t. Oarr 81 v. Soliurmeir 230, 247, 250 Kamelli v. Irish 20, 69 Kandle v. Del. Canal Co 204 Eavenswood v. Flemings 246 Raymond v. Wlmsette 64, 75 Razzo V. Varnl 66 Red River Roller MiUs y. WrigM 82 Reed v. Splcer 59 Reno Smelting Works v. Stevenson 105, 120, 121, 123, 134 Reynolds v. Hosmer 64, 68, 87, 94 Rhodes v. Whitehead 8, 140, 153 Rice V. Ruddiman 221 Richardson v. Kler 49, 78, 81 Riverside Water Co. v. Gage 49, 75 Roberts v. Arthur 75 Robinson v. Black Diamond Co 82 V. Imperial S. M. Co .44, 51 V. Shanks 66 RockweU V. Highland Ditch Co 103 Rogers v. Jones 134, 240 Romlnger v. Squires 92 RondeU v. Fay 233 Budd V. Williams 8 Rumsey v. New York & N. E. R. Co 232, 247 Rupley V. Welch 37, 68 St. Louis, I. M. & S. R. Co. v. Ramsey 220, 221 Byan v. Brown 230 Sacramento v. Cent. Pac R. Co 83 Saddler v. Lee 07 Saint V. Guerrerio 72, 73 St. Anthony Falls Water Power Co. v. Minneapolis 62 St. Helena Water Co. v. Forbes 172 St. Louis V. Myers 229 V. Rutz 223, 247, 250 St. Lcuiii, I. M. & S. R. Co. v. Ramsey _>J0, 2:>1 Salazar v. Smart 56, 73 XXXll CASES CITED. Sclina Creek Irr. Co. v. Salina Stock Co 95 Sampson v. Hoddlnott 9, 134, 140, 155 Sand Creek Irr. Co. v. Davis 190 San Diego Flume Co. v. Cliase 61 Santa Cruz v. Enright 30 ScliUling V. Rominger 15, 120 Scliulz V. Sweeny 97 Scurry v. Jones 23T Shamleffer v. Council Grove Mill Co S Shaw V. Oswego Iron Co 216, 218 Sherlock v. Bainbridge 225 Shields v. Amdt 66 Shirley v. Bishop 248, 250 Shively v. Hume 66 V. Welch 23T Shoemaker v. Hatch 44, 224 Shook V. Colohan 138 Shury v. Piggot 9 Sieher v. Frink 50, 55, 69, 98 Simmons v. Winters 48, 66, 92 Simons v. French 247, 250, 254 Simpson v. Williams 85 Sims v. Smith 75 Skinner v. Hettrick 253 Slack V. Marsh : 138, 140 Smith V. Adams 67 V. Agawam Canal Co 11 V. Athem 26 V. Gould 172 T. Levlnus 246 V. Loean OS, 131 V. Maryland 239, 253 V. O'Hara 60, 90, 91, 97 T. Rochester 6, 21 Snow v. Mt. Desert Real Estate Co 236 V. Parsons 134, 140 Solliday v. Johnson 222 South Boulder Ditch Co. v. MarfeU 193, 195 South Carolina v. Georgia 219 Southern Pac. E. Co. v. Dulour 67, 94 South Yuba Water Co. v. Rosa 26 Spargur v. Heard 75, 133 Sparlin v. Gotcher 75 Speake v. Hamilton 26 Springfield v. Harris 8, 141 Spring Valley Water Works v. Bryant 192 SpringTiUe t. Fullmer 73 CASES CITED. XXXlll Stalling T. Ferrin -. 97 Stanford v. Felt 158 State V. Black River Phosphate Co 220 V. Illinois Cent. R. Co 247, 250, 251 V. Medbury 240 V. Milk 6 V. Pottmeyer 140 V. Prosser 238, 24«l, 251 Steamboat MagnoUa v. Marshall 216, 224, 228, 24.3 Steers v. Brooklyn 252 Stein V. Burden 138, 140 Stein Canal Co. v. Kern Island Co 68, 87, 90 Stevens v. Paterson & N. R. Co 240, 246 Stevens Point Boom Co. v. RelUy 225, 230 Stillman v. White Rock Co 4 Storer v. Freeman 234, 238 Story's Case .247, 248 Stover V. Jack 216, 221, 23.5. Stowell V. Johnson 85, 120, 148 Strait V. Brown 15, 44, 67, 68, 94, 123 Strickler v. Colorado Springs 61, 95 Sturr V. Beck 42 Sullivan v. Spotswood J16 Swanson v. Miss. & R. R. Boom Co 2^25 Sv?eeney v. Shakespeare 228. Sweetland v. Olsen ^ 73 Swift v. Goodrich 75, 140, 158 Swindon Water Works v. Wilts Canal Co 15a Talbott V. Grace 228 Tappan v. Boston Water Power Co 221, 255 Tartar v. Spring Valley Min. Co 19 Taylor v. Underbill 242 V. Welch 8, 67 Tenem Ditch Co. v. Thorpe 42 Ten Eyck v. Delaware Canal Co ; 8 Tenney v. Miners' Ditch Co 78 Teschemacher v. Thompson 235 Thomas v. Guiraud 48, 50, 51 Thompson t. Improvement Co 218 v. Lee 51 Thorp V. Woolman 1';; 5 Thurber v. Martin 140 Tibbitts V. Ah Tong 97 TUlotson V. Smith 8, 184, 140 LAW W. E. — C XXXIV CASES CITED. Timm v. Bear 140 Tinicum Fishing Co. v. Carter 221, 230. 247 Titcomb v. Kirk 80 Todd V. Cochell T8 ToUe V. Corretli 153, 158 Tomlin v. Dubuque, B. & M. R. Co 240 Tourtellot v. Phelps 140 Townsend v. Fulton Irr. Ditch Co 195 T. McDonald 7 Trambley v. Lutermau 132 Transportation Co. v. Parkersburg 210, 247 Tregea v. Owens 207 Trenton Water Co. v. Raff 174 Trustees v. Haven 134 Tuck V. Olds 247, 250 Tucker v. Jones 97 T. Salem Flouring Mills 132 Tuolumne W. Co. v. Chapman 72 Turlock Irr. Dist. v. Williams 203 Turner v. People's Ferry Co 24'J V. Tuolumne Co 80 Twiss V. Baldwin 140 Tyler v. Wilkinson 4, 5, 8, 9, 134, 140, 227 II Ulbricht v. Eufaula Water Co 157 Umatilla Irr. Co. v. Bamhart 189 Union Depot Co. v. Brunswick 247, 250 Union Mill Co. v. Dangberg 33, 36 V. Ferris 32, 33, 36, 140, 153 Union Pac. R. Co. v. Dyehe 06 Union Water Co. v. Crary 98 United States v. Burlington Ferry Co 217 V. Lawrence 84 V. North Bloomfield Min. Co 84 Valentine, In re 242 Van Bibber v. Hilton 140 Van Dolsen v. Mayor of New York 247 Van Sickle r. Haines 16, 33, 36, 44, 123, 184, 135, 137, 146, 150 Vemum v. Wheeler 81 Vliet V. Sherwood 8 CASES CITED. XXXV w. Wadsworth t. Smith 218 V. TUlotson 8, 9, 134, 140 Walker v. AUen 216 V. Marks 233 V. State Harbor Comm'rs 233 Wall V. Pittsburgh Harbor Co 228 Wallamet Iron Bridge Co. v. Hatch 217 Ware v. Walker 26, 69 Watkins v. Holmah 131 Watson V. Home 252 WatUer v. Miller 132 Wayzata v. Great Northern Ry 224 Weaver v. Conger 54 V. Eureka Lake Co 4S, 51, 52, 53, 72 Webb V. Portland Manuf. Co 134, 140 Weber v. Harbor Comm'rs 237, 247 Weidekind v. Tuolumne W. Co 79 Weill V. Baldwin 131 Weise v. Smith 216, 228 Weiss V. Oregon Iron Co 75, 141, 224, 229 West v. Taylor 66 Western Pac. R. Co. v. Tevis 40, 41 Westfall V. Van Anker 253 Weston V. Alden 157 Wheatley v. Baugh 67 V. Grismaii 140 Wheeler v. Northern Colo. Irr. Co 189, 195 V. Spinola 216 Whetstone v. Bowser 67 White V. Todds VaUey W. Co 87 Whitehead v. Jessup 225 Whitney v. Wheeler Cotton MUls 133 Whittier v. Cocheco Manuf. Co 69 Wilcox V. Hausch 85 Willamette Iron Bridge Co. v. Hatch 219 WilUams v. Wadsworth 131 Williamson v. Canal Co 140 Willson V. Blackbird Creek Marsh Co 219 Wilson V. Welch 239, 248 Wintermute v. Tacoma Water Co 75 Wisconsin v. Duluth 219 Wixon V. Bear River Co 15, 37, 82 Wolf V. St. Louis, etc., Co 78 Wood V. Edes 140 V. Waud 8, 140 XXXVl CASES CITED. Woodrufie V. North Bloomfleld G. M. Co 24, 32, 43, S2, 83 Woolman v. Garringer 47, 48, 52, 55, 69, 85, 97 Wright V. Howard S, 134 V. Moore 83 V. Seymour 224 Wull V. Manuel 97 Wyatt V. Larimer & Weld Irr. Co 48, 189, 198 Y. Yankee Jim's Union Water Co. v. Crary 72 Yard v. Ocean Beach Asso 236 Yates V. Milwaukee 229, 247, 250 Yesler v. Board of Harbor Line Comm'rs 248 Yolo Co. V. Sacramento 83 Yunker v. Nichols 62, 120 + LAW OF WATER RIGHTS. CHAPTER I. INTRODUCTION. § 1. Importance of the subject — Need of legislation. ?. Object of tUe present worls. 3. The problem stated. § 1. Importance of the subject — Need of legislation. No special branch of the law of California, Nevada, and other commonwealths of the Pacific coast, is more practically impor- tant, and none is more uncertain, unsettled, and contradictory, than that which deals with the right to appropriate or use the waters of lakes and running streams, navigable or unnavigable, and with the conflicting rights of riparian proprietors to the same waters. The whole subject imperatively demands the most careful and complete legislation, which shall define the rights of all interested parties, and establish a code of rules reg- ulating them upon a comprehensive and just basis, entirely in- dependent, it may be, of the common-law doctrines. The great danger is — and the danger is very great — lest such legislation should be enacted wholly in favor of some one interest, to the exclusion of other interests equally real, but, perhaps, not so strongly pressed upon the legislature. To prevent such un- just discrimination, which would inevitably retard, if not com- pletely stop, the development of the most valuable and perma- nent natural resources of these states, the following preliminary LAW w. E. — 1 § 2 LAW OF WATER EIGHTS. [Ch. 1 conditions are essential: (1) The common-law rules concerning water rights should be accurately apprehended, in order that it may be seen how far, and in what particulars, they are unfitted for the industrial pursuits, the mining, agricultural, grazing, manufacturing, and municipal interests of these Pacific com- munities. (2) The existing law of these states and territories, as founded upon statutory legislation, Spanish-Mexican laws, customs, and judicial decisions, should be carefully examined and formulated, as faras possible, so that its imperfections, omissions, advantages, and defects would be clearly disclosed and understood. With the knowledge obtained from such an investigation only, can the legislature construct a system of statutory rules which shall represent, harmonize, and protect all conflicting interests, as far as it is possible to provide for and protect all by a compromise in which each must make some surrender, must submit to some curtailment. Common justice requires some partial surrender by each in order that all may be benefited; and the chief difficulty lies in making an equitable apportionment of such burdens among all classes of proprietors. Statutes which recognized the rights of riparian owners alone, by simply enacting the common-law rules, would destroy the main usefulness of our streams, and stop the development of the great agricultural resources, by rendering any extensive system of irrigation practically impossible. On the other hand, statutes which should wholly ignore the interests of riparian proprietors would invade vested rights, and produce evils equally grave and far-reaching. § 2. Object of the present work. As well for the purpose of furnishing a slight contribution to- wards such amendatory legislation, as ."or the purpose of dis- cussing a subject of great importance to the legal profession, I intend, in the following pages, to examine the existing law con- C2) €h. 1] INTRODUCTION. § 3 •cerning Water Rights and the Rights of Riparian Owners, as it prevails in the southern states and territories of the Pacific slope; lo ascertain, as far as practicable, the rules which have been es- tablished by statute or by judicial decision; to point out the omissions, imperfections, contradictions, or questions left un- settled; and to compare these results generally with the common- law and the Spanish-Mexican systems. I may, in conclusion, suggest some amendments which might properly be made by the legislature. § 3. The problem stated. In these Pacific states and territories, water is the one essen- tial element of all productiveness and consequent prosperity. Its use for mining operations first attracted attention, and was the subject of some partial legislation. Its use for agricultural purposes of every kind has become far more important and ben- «ficial, and more closely connected with the permanent welfare of these communities. Regions which are apparently most desert and sterile, can, with a sufficient supply of water, be turned into gardens, and made to "blossom as the rose." Nature has arranged abundant means and facilities for such an artificial supply. For example, in the great San Joaquin valley east of the San Joaquin river — which at times seems to be an expanse of dry sand — there is hardly an acre which cannot be reached by a well-constructed system of irrigation utilizing the water of the streams which rise in the high derras, cross the valley at nearly equal intervals, and empty into the San Joaquin. With such irrigation, the whole valley would be, perhaps, the most fertile district in the world. I may remark in passing that never before did I so fully appreciate this wonderful transform- ing power of water, as after riding, some years ago, a whole day over the foot-hills, parched and browned and barren, I drove the few miles from the ferry at Merced Falls to the village of t3) § 3 LAW OF WATER EIGHTS. [Ch. 1 Snelling, through what was in fact a rural paradise, — through green fields, roads overarched with rows of magnificent trees, and door-yards filled with flowers, — all the effect of irrigation obtained from the Merced. Similar illustrations may be seen in all parts of this state. But these uses of water for mining, for irrigation, for municipal purposes, necessarily diminish, to a very considerable extent, the natural and normal supply of the lakes and streams from which it is taken, and therefore conflict with the common-law rights of the riparian owners, and violate the settled doctrines of the common law. It is simply impossi- ble to utilize water for any of these purposes, and then to re- turn it, substantially unchanged, in amount and condition, to its original channels. The problem is to reconcile, or rather to adjust, these necessary uses, and the common-law rights and in- terests of all other and riparian proprietors. It will be expedient to state by way of preface, for purposes of comparison and illus- tration, the general doctrines of the common law j and this will be attempted in the following chapter. (4) Ch. 2] THE COMMON-LAW DOCTRINE. § 4 CHAPTER n. THE COMMOiSr-LAW DOCTRINE. § 4. Priority of appropriation gives no superior righit. 5. Statement of leading cases. 6. Inland lakes and navigable streams. 7. Specific rules stated. 8. Riparian owner's right to natural flow of stream. 9. This right is parcel of the realty. 10. Diversion, when permissible. 11. Exceptions to common-law rule against appropriation. § 4. Priority of appropriation gives no superior right. The common-law doctrine, in its most general form, is that the water of permanent running streams and of inland lakes is sacred to the common use alike of all the riparian proprietors upon their borders. This doctrine extends both to navigable and unnavigable streams and lakes which are wholly inland and territorial. Each proprietor may use the water for all reasona- ble purposes as it passes through or by his land, provided that he does not interfere with the public easement of navigation in all navigable lakes and streams; but he must, after its use, re- turn it without substantial diminution in quantity or change in quality to its natural bed or channel, before it leaves his own land, so that it will reach his adjacent proprietor in its full, original, and natural condition. No priority of use or appro- priation by any one proprietor can give him any higher or more extensive rights than these, as against other proprietors either higher up or lower down on the stream, or abutting on either side of him upon the shores of the lake. More extensive or ex- clusive rights than these against other riparian proprietors can only be acquired by grant from them, or by prescription which (5) § 5 LAW OF WATER RIGHTS. [Ch. 2 presupposes a former grant.^ Even the state, by its power of eminent domain, cannot give any more extensive or exclusive rights to one proprietor, under color of a public use, without making provision for compensation to all other proprietors whose natural rights would thus be invaded. This general doctrine, and all the detail of subordinate rules to which it leads, are fully sustained by the almost unanimous consensus of modern decisions; although there may be some partial deviations from, its consequences in certain particulars in a few of the states. § 6. Statement of leading cases. In the well-considered case of Heath v. Williams, 25 Me> 209, Mr. Justice Shepley briefly but accurately stated the gen- eral doctrine: "The cases decide that priority of appropriation, of the water of a stream confers no exclusive right to the use of it. A riparian proprietor, who owns both banks of a stream, has a right to have the water flow in its natural current, with- out any obstruction injurious to him, over the whole extent of his land, unless his rights have been impaired by grant, license, or an adverse appropriation for more than twenty years." In Tyler v. Wilkinson, 4 Mason, 397, Judge Story said: "Of a thing common by nature there may be an appropriation by I [In the United States it is well Scam. 493; Oilman v. Tilton, 5 N. settled that mere prior occupancy H. 231; Cowles v. Kidder, 34 N. H. or appropriation of the water of a 378; Parker v. Hotchkiss, 35 Conn, running stream by a riparian own- 331 ; Keeney Manuf 'g Co. v. Union er, unless continued for such a Manuf'g Co., 39 Conn. 576; Hart- length of time as to raise a prt- zall v. Sill, 13 Pa. St. 348; Pugh t. sumption of a grant, can give no Wheeler, 3 Dev. & B. 55; Bliss v. exclusive right thereto as against Kennedy, 48 111. 67; Dumont v. other owners above or below him Kellogg, 39 Mich. 430; Stillman v. on the same stream, except where White Eock Co., 3 Woodb. & M. the common law has been modified 550; Tyler v. Wilkinson, 4 Mason, by local usage or by statutory en- 397; Ang. Water- Courses, §§ 134, actment. Heath v. Williams, 25 350.] Me. 209; Evans v. Merriweather, 3 (6) Clj. 2] THE COMMON-LAW DOCTRINE. § 5 general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no ex- clusive right. It is not like the case of mere occupancy, where the first occupant takes by force of his priority of occupancy. That supposes no ownership already existing, and no right to the use already acquired. But our law annexes to the riparian proprietorship the right to the use in common, as an incident to the land; and whosoever seeks to found an exclusive use, must establish a rightful appropriation in some manner known and admitted by the law. Now, this may be either by a grant from all the proprietors whose interest is affected by the partic- ular appropriation, or by a long, exclusive enjoyment without interruption, which affords a just presumption of right." In Pugh V. Wheeler, 2 Dev. & B. 55, Ruffin, C. J., stated the gen- eral doctrine in the following somewhat fuller manner: "If one build a mill on a stream, and a person above divert the water, the owner of the mill may recover for the injury to the mill, al- though before he built he could only recover for the natural uses of the water, as needed for his family, his cattle, and irri- gation; but, if instead of building a mill he had diverted the stream itself, he cannot justify it against a proprietor below, upon the ground that he had thus made an artificial use of the water before the other had made any such application of it. The truth is that every owner of land on a stream necessarily and at all times is using water running through it, if in no other manner, in the fertility it imparts to his land, and the increase in the value of it. There is therefore no prior or posterior in the use, for the land of each enjoyed it alike from the origin of the stream, and the priority of a particular new application or artificial use of the water does not, therefore, create the right to that use; but the existence or non-existence of that applica- tion at a particular time measures the damages of a wrongful act of another in derogation of the general right to the use of C7) §' 6 LAW OF WATER EIGHTS. [Ch. 2 the water as it passes to, through, or from the land of the party complaining. The right is not founded in user, but is inherent in the ownership of the soil, and, when a title by use is set up against another proprietor, there must be an enjoyment for such length of time as will be evidence of a grant, and thus consti- tute a title under the proprietor of the land. * * * The use to which one is entitled is not that which he happens to get before another, but it is that which, by reason of his ownership of land on the stream, he can enjoy on his land, and as an ap- purtenant to it."' § 6. Inland lakes and navigable streams. The same doctrine concerning the particular uses and appro- priation of water by riparian owners is extended to inland lakes and streams which are navigable.^ This subject was recently considered by the New York court of appeals in the case of Smith V. City of Kochester, 92 N. Y. 463. In a very elabo- rate and learned opinion, that court decided (in June, 1883) that "riparian owners of land, adjoining fresh- water non-naviga- ble streams, as an incident of their ownership acquire the right to the usufructuary enjoyment of the undiminished and undis- turbed flow of said stream. This is also true of the fresh-water navigable streams and small lakes within the state where the tide does not ebb and flow; save that the public has an ease- ment in such waters for the purpose of travel, as on a public highway, which easement, as it pertains to the sovereignty of ^See also the elaborate editorial discussed in a subsequent chapter, note to Heath v. Williams, 43 It has been held that while a gen- Amer. Dec. 369-279, in which nu- eral grant of land on a non-navig- merous cases, English and Ameri- able river or stream extends the can, are collected, and the special line of the grantee to the middle rules established by them are for- or thread of the current, a grant on mulated. a natural lake or pond extends only 2 [The subject of riparian rights to the water's edge. State v. Milk, on navigable streams will be fully 11 Fed. Rep. 389.] (8) Ch. 2] THE COMMON-LAW DOCTRINE § 6 the state, "is inalienable, and gives to the state the right to use, regulate, and control the waters for the purposes of navigation. This public easement gives the state no right to convert the wa- ters, or to authorize their conversion, to any other uses than those for which the easement exists; that is, for the purposes of navigation. The right to divert the water for other uses, al- though public in their nature, can only be acquired under and by virtue of the sovereign right of eminent domain, and upon making just compensation. This doctrine concerning the rights of riparian owners does not, however, apply to the vast fresh- water lakes or inland seas between the United States and Can- ada, nor to streams forming the boundary lines of states. The rights of riparian owners on the Hudson and Mohawk rivers, in New York, are derived from the rules of the civil law as it pre- vailed in the Netherlands during the colonial period." The facts of this case well illustrate the workings of the common-law rules. Hemlock lake is a small lake in the interior of New York, about seven miles long and one and a half wide. It is to a cer- tain extent navigable, and has been navigated with small craft by the residents on its borders. The decision, it will be seen, treats it as navigable. Its surplus waters form a stream which is unnavigable. On this stream, near the outlet of the lake, the plaintiff has a mill, and the water of the stream was suffi- cient to keep the mill in operation throughout the entire year. In 1873, under authority conferred by the legislature of the state, the city of Rochester constructed a conduit or aqueduct from this lake to the city, for the purpose of furnishing a sup- ply of water to its inhabitants. By this aqueduct over 4,000,- 000 gallons daily were drawn from the lake, and the flow of surplus water through the natural outlet was so diminished that the operations of the plaintiff's mill were seriously interfered with, and in some parts of the year entirely stopped. No com- (9) § 7 LAW OF WATER EIGHTS. [Ch. 2 pensation was paid or offered by the city to the plaintiff. On these facts the court held, in pursuance of the doctrines above quoted, that the plaintiff was entitled to relief against the city. § 7. Specific rules stated. From this general doctrine, the following more specific rules necessarily follow. A riparian proprietor need not have actu- ally appropriated the water of a stream, in order that he may be entitled to complain of a diversion by another proprietor; actual damages are not necessary, for damage is conclusively presumed from any such diversion.^ A riparian proprietor can- not consume the entire stream for any purpose. He may ap- propriate the water for his own necessary uses, but this right must be reasonably exercised, and there must be no substantial diminution or waste. ^ The editorial note cited below, sums up the common-law doctrine, as the result of the American and English cases, as follows: "The general principle is that every owner of land through which a natural stream of water flows (or abutting on a natural inland lake) has a usufruct in the stream as it passes along, and has an equal right with those above and below him to the natural flow of the water in its ac- customed channel, without unreasonable detention or substan- tial diminution in quantity or quality, and none can make any use of it prejudicial to the other owners, unless he has acquired a right to do so by license, grant, or prescription." 1 Adams v. Barney, 25 Vt. 835. diminution or alteration. Bud- Nor ia it any defense to an action dington v. Bradley, 10 Conn. 313. for diverting water from a riparian ^See Adams v. Barney, 25 Vt. proprietor to show that no injury 225; Townsend v. McDonald, 12 would have accrued to him if he N. Y. 381; Pillsbury v. Moore, 44 had not changed the manner or ex- Me. 154; Bliss v. Kennedy, 43 111. tent of his use, because, independ- 67; and other cases cited in the ent of any particular use of or for editorial note in 48 Amer. Dec. 274, it, he has the right to the flow of 275. the water on his own land without (10) Ch. 2] THE COMMON-LAW DOCTRINE. §8 § 8. Biparian owner's risht to natural flow^ of stream. [It is a familiar and uniform rule of the common law — recog- nized and enforced by the courts both in this country and in England — that every riparian proprietor, as an incident to his estate, is entitled to the natural flow of the water of running streams through his land, in their accustomed channels, un- diminished in quantity and unimpaired in quality ; that no one can lawfully divert the water from his premises; and that none of the riparian owners can use the water to the material injury of those above or below him, although all have a right to the reasonable use of it for the ordinary purposes of life.^ In this connection, the following language of Chancellor Kent is fre- quently cited, as embodying a terse and accurate statement of the rule: "Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in lEmbrey V. Owen, 6 Exch. 353; Wood V Waud, 3 Exch. 748; Bea- ley V. Shaw, 6 East, 208; Mason v. Hill, 3 Barn. & Adol. 304; Wright V. Howard, 1 Sim. & S. 190; Orr Ewing V. Colquhoun, L. R. 2 App. Cas. 839; Chasemore v. Richards, 7 H. L. Cas. 349; Tyler v. Wilkin- son, 4 Mason, 397; Pillsbury v. Moore, 44 Me. 154; Cowles v. Kid- der, 24 N. H. 364; Tillotsou v. Smith, 32 N. H.90; Martin v. Bige- low, 2 Aiken, 184; Merrifleld v. Lombard, 13 Allen, 16; Pratt v. Lamson, 2 Allen, 275; Springfield v. Harris, 4 Allen, 494; King v. Tiffa- ny, 9 Conn. 162; Buddington v. Bradley, 10 Conn. 318; Wads worth V. Tillotson, 15 Conn. 366; Clinton V. Myers, 46 N. Y. 511.;.Axnold -v. Poot, 12 Wend. 330; Hoy v. Ster- rett, 2 Watts, 337; Holsman v. Boiling Springs Co., 14 N. J. Eq. 835; Ten Eyck v. Delaware Canal Co., 18 N. J. Law, 200; Mayor of Baltimore v. Appold, 42 Md. 443; Omelvany v. Jaggers, 2 Hill, (S. C.) 634; Hendrick v. Cook, 4 Ga. 241; Hendricks v. Johnson, 6 Port. (Ala.) 472; Potierv. Burden, 38 Ala. 651; Rhodes V. Whitehead, 27 Tex. 304; ShamleflEer v. Council Grove Mill Co., 18 Kan. 24; Cooper v. Williams, 4 Ohio, 353; Case v. Weber, 3 Ind. 108; Dilling v. Mur- ray, 6 Ind. 334; Mitchell v. Parks, 36 Ind. 354; Evans v. Merriweather, 3 Scam. 493; Plumleigh v. Dawson, 1 Oilman, 544; Rudd v. Williams, 48 III. 885; Druley v. Adam, 103 111. 177; Davis v. Getchell, 50 Me. 604; Vliet v. Sherwood, 35 Wis. 229; Lux v. Haggin, 69 Cal. 255, 10 Tac. Rep. 753; Taylor v. Welch, 6 Or. 198; Coffman v. Robbins, 8 Or. 278; 8 Kent, Coram. *439; Ang. Water-Courses, § 95; Gould, Wa- ters, g 304. (11) § 9 LAW OF WATER RIGHTS. [Gh. 2 the stream adjacent to his lands as it was wont to run, (currere solebat,) without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors, above or below him, unless he has a prior right to divert, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere, is the language of the law. Though he may use the water while it runs over his land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate."* § 9. This right is parcel of the realty. Although, as above stated, the riparian owner has no prop- erty in the water itself, but only a usufructuary enjoyment of it as it passes through or along his lands, yet it is not to be in- ferred that his right to have the stream flow in its natural chan- nel, without diminution or alteration, is merely appurtenant to the estate, or conditioned upon his actual application of it to some beneficial use. "By the common law," say the court in California, "the right of the riparian proprietor to the flow of the stream is inseparably annexed to the soil, and passes with it, not as an easement or appurtenance, but as part and parcel of it. Use does not create the right, and disuse cannot destroy or suspend it. The right in each extends to the natural and usual flow of all the water, unless where the quantity has been diminished as a consequence of the reasonable application of it by other riparian owners for purposes hereafter to be men- tioned.'"' A right to the flow of water, then, is a corporeal right or here- ditament which passes by grant of the land over which it runs. 13 Kent, Comm. *439. Courses, § 93; Shury v. Piggot, 2 Lux V. Haggin, 69 Cal. 355, 10 Bulst. 389; Countess of Rutland Pac. Rep. 753; citing Ang. Water- v. Bowler, Palmer, 290; Waahb. (12j Ch. 2] THE COMMON-LAW DOCTRINE. § 11 It may be conveyed absolutely, or lost or acquired, either wholly or in part, by an adverse user, sufficiently long, exclusive, and notorious to furnish adequate grounds for presumption of a grant.' § 10. Diversion, -when permissible. It is also a right of the riparian owner, at common law, to have the stream flow in its natural channel without diversion. But this right extends no further than the boundaries of his own estate. He cannot complain of the mere fact of a diversion of the water-course, either above or below him, if, within the lim- its of his own property, it is allowed to follow its accustomed channel. Hence it is not unlawful to change the course of a stream within the limits of one's own land, if the stream is re- turned to its natural channel before leaving the land, and its flow is not materially diminished.^ § 11. Exceptions to common-la-w rule against ap- propriation. There are some cases, even at common law, where a prior appropriation wiU give the occupant superior privileges over the other proprietors on the same stream. Thus, in a Massachu- setts decision, it is held that the riparian proprietor, who first erects his dam for reasonable mill purposes, has a right to main- tain it as against proprietors above and below, although by so doing the others are prevented from placing dams and miUs on their land. In such case, prior occupancy gives a prior right Easem. 319; Gould, Waters, § 204; 28 Cal. 340; Hale v. McLea, 53 Cai. Johnson v. Jordan, 2 Mete. 239; 578; Hanson v. McCue, 42 Oal. 308. Gary v. Daniels, 5 Mete. 238; Tyler See, also, Wadsworth v. Tillotson, V. Wilkinson, 4 Mason, 397; Samp- 15 Conn. 366. Bonv.Hoddinott.lC. B.{N.S.)590; iLux v. Haggin, (Cal.) 4 Pac. Hill V. Newman, 5 Cal. 445; Pope Eep. 919. V. Kinman, 54 Cal. 8; Creighton v. 2 Pettibone v. Smith, 37 Mich.579; Evans, 53 Cal. 55; Ferrea v. Knipe. Norton v. Volentine, 14 Vt. 239. (15) § 11 LAW OF WATER RIGHTS. [Ch. 2 to such use. In the case referred to, Shaw, C. J., said: "The usefulness of water for mill purposes depends as well on its fall as its volume. But the fall depends upon the grade of the land over which it runs. The descent may be rapid, in which case there may be fall enough for mill-sites at short distances; or the descent may be so gradual as only to admit of mills at consid- erable distances. In the latter case, the erection of a mill on one proprietor's land may raise and set the water back to such a distance as to prevent the proprietor above from having suffi- cient fall to erect a mill on his land. It seems to follow, as a necessarj"^ consequence from these principles, that in such case the proprietor who first erects his dam for such a purpose has a right to maintain it as against the proprietors above and below; and to this extent prior occupancy gives a prior title to such use. It is a profitable, beneficial, and reasonable use, and therefore one which he has a right to make. If it necessarily occupj' so much of the fall as to prevent the proprietor above from placing a dam and mill on his land, it is damnum absque injuria. For the same reason the proprietor below cannot erect a dam in such a manner as to raise the water and obstruct the wheels of the first occupant. He had an equal right with the proprietor below to an equal use of the stream; he had made only a reasonable use of it; his appropriation to that extent, be- ing justifiable and prior in time, necessarily prevents the pro- prietor below from raising the water, without interfering with a rightful use already made; and it is therefore not an injury to him. Such appears to be the nature and extent of the prior and exclusive right which one proprietor acquires by a prior reasonable appropriation of the use of the water in its fall; and it results, not from any originally superior legal right, but from a legitimate exercise of his own common right, the effect of which is, de facto, to supersede and prevent a like use by other proprietors originally having the same common right. It is, in (14) Ch. 2] THE COMMON-LAW DOCTEINE. § -11 this respect, like the right in common, which any individual has, to use a highway. While one is reasonably exercising his own right, by a temporary occupation of a particular part of a street with his carriage or team, another cannot occupy the same place at the same time."' It is to be remarked, however, that the appropriation here sanctioned was not of the stream itself, — at least, not to its whole extent, — but only of its power to drive machinery. The other riparian owners would continue in the enjoyment of the water for all the purposes to which it could ordinarily be put, except this one. Hence this apparent departure from the doctrine of the common law could not be in- voked in aid of one who should entirely divert the water-course, or appropriate its whole volume to his private uses. And it is proper to add that this rule has been repudiated in certain other states, or else conditioned upon a continuance of the appropria- tion for such a period of time as would be requisite to establish rights by prescription.^] iCary v. Daniels, 8 Mete. 466, s. Ill Mass. 465; Lincoln v. Chad- c. 41 Amer. Dec. 532. And see bourne, 56 Me. 197; Miller v. Troost, Gould V. Boston Duck Co., 13 Gray, 14 Minn. 363, (Gil. 383.) 451; Fuller v. Chicopee Manuf'g ^See Parker v. Hotchkiss, 35 Co., 16 Gray, 44; Smith v. Agawam Conn. 331; Keeney Manuf'g Co. v. Canal Co., 3 Allen, 357; Pratt v. Union Manuf'g Co., 39 Conn. 576; Lamson, Id. 288; Lowell v. Boston, Dumont v. Kellogg, 39 Mich. 420. Cl5) § 12 LAW OF WATER EIGHTS. [Ch- 3 CHAPTER m. APPROPRIATION OF "WATERS FLOWING THROUGH THE PUBLIC DOMAIN. I. Origin and Basis of the Right to Appsopeiatb. § 12. Scope of the present chapter. 13. Early importance of mining interests. 14. Mining customs. 15. Doctrine of appropriation. 16. Appropriation not at first availing as against the govern ment. 17. The act of congress of 1866. 18. Limits of the doctrine of appropriation — The early cases. 19. Views of the United States supreme court. 20. Grounds of these decisions. 21. Doctrine of appropriation uhknown to the common law. 22. Basis of right to appropriate water. 23. Grounds for presumption of license. 24. Efficacy of miners' customs. II. Appropriation as against the Subsequent Grantee of the Government. § 25. Title of subsequent grantee is subject to prior appropri- ation. 26. California decisions on this point. 27. Views of United States supreme court. 28. The act of 1870 is declaratory only. 29. Public lands of the state. III. The Right Restricted to the Public Domain. g 80. Appropriation confined to public lands. 31. Jurisdiction of state and United States distinguished. 3B. Power of government to annex conditions to grants. IV. Conflicting Claims between Settlers and Appropriatoss. § 33. Converse of doctrine of appropriation. 34. When title from United States is perfected. 85. When patentee's riparian rights vest. 86. Review of the authorities on this point. 37. Riparian rights protected. 38. Doctrine of relation applied to patentees. 89. Grounds for the application of this doctrine. 40. California decisions. 41. Review of the cases. (16) Ch. 3] APPROPRIATION OF WATERS. § 13 § 43. Later decisions establishing doctrine of relation. 43. Riparian rights under Mexican grants. 44. Summary of conclusions. I. Origin and Basis of the Right to Appropriate. § 12. Scope of the present chapter. Having stated the fundamental doctrines of the common law concerning the use of running streams and small inland lakes, and the rights of riparian owners, as established by the general consensus of English and American decisions, I shall proceed to examine, with more of detail, the variations from these doc- trines which have been made by the courts or recognized by the legislation of the Pacific commonwealths. In this division of the subject it will be expedient to notice, in the first place, certain matters, connected with various conditions of fact, which may be regarded as settled, and subsequently to discuss those questions which are still open, and which admit of conflicting opinions, or involve, perhaps, a conflict of decision. § 13. Early importance of mining interests. From the time of the discovery of gold in California the min- ing interests became, and for many years continued to be in that state, and still are in other Pacific states and territories, of paramount importance, to which agriculture, manufacturing, and all other industries were subordinated. The lands contain- ing the minerals belonged almost entirely to the public domain of the United States. Vast numbers of immigrants poured over these mineral regions, settled down in every direction, appro- priated parcels of the territory to their own use, and were pros- pecting and mining in every mode rendered possible by their own resources., under no municipal law, and with no restraint except that of superior physical force. "The world has proba- bly never seen a similar spectacle, — that of extensive gold fields, law w. r. — 2 (,17j § 14 LAW OF WATEK RIGHTS. [Ch. 3 suddenly peopled by masses of men from all states and coun- tries, restrained by no law, and not agreed as to whence the laws ought to emanate by which they would consent to be bound." ^ § 14. Mining customs. In this condition of affairs, the miners themselves adopted certain "mining customs" to which they yielded a voluntary obedience, and which were afterwards recognized and sanctioned by the legislation of the state and of congress. Scattered over the territory at "camps," "bars," and "diggings," the miners held meetings in each district or locality, and enacted regula- tions by which they agreed to be governed. The rules once adopted were enforced with rigor upon all settlers in the particu- lar camp. The legislature of California, at the session of 1851, gave to these voluntary regulations a legal and compulsive effi- cacy by the following brief but admirably comprehensive statute: " In actions concerning mining claims, proof shall be admitted of the customs, usages, or regulations established or in force at the bar or diggings embracing said claims, and such customs, usages, or regulations, when not in conflict with the constitution and laws of this state, shall govern the decision of the action." These "mining customs'' or rules were simple, and related to the ac- quisition of "claims" to mineral lands and to water for the pur- poses of mining, and prescribed the acts necessary to constitute such an appropriation of a parcel of mineral land or portion of a stream as should give the claimant a prior right against all others, the amount of work which would entitle him to a con- tinued possession and enjoyment, what would constitute an aban- donment, and similar matters.^ In this proceeding we find the origin of the peculiar doctrines concerning water rights as set- ' As to the early history of gold ate water, etc., see remarks of mining on the Pacific coast, the Field, J., in Jennison v. Kirk, 98 customs adopted by the miners, U. 8. 453. the origin of the right to appropri- 'See infra, § 24. (18) Ch. 3] APPROPRIATION OF WATERS. § 15 tied in the Pacific communities. Water was an indispensable requisite for carrying on mining operations; a permanent right to use certain amounts of water was as essential as the perma- nent right to occupy a certain parcel of mineral land. • The streams and lakes were all on the public domain. For their ad- vantageous employment it was often necessary to divert water from its natural bed, and to carry it through artificial channels, — "ditches" or "flumes," — sometimes of great length and con- structed at an enormous cost. There were no riparian owners or occupants except the miners, and the streams could be put to no beneficial use except for purposes of mining. From all these circumstances, and from the very necessities of the situ- ation, it universally became one of the mining customs or reg- ulations that the right to use a definite quantity of water, and to divert it if necessary from these streams and lakes, could be acquired by prior appropriation. § 16. Doctrine of appropriation. The custom thus originating was soon approved by the courts, and the doctrine became and still is settled in California and other Pacific states and territories, in opposition to the common law, that a permanent right of property in the water of streams or inland lakes, which wholly ran through or were situate upon the public lands of the United States, may be acquired for min- ing purposes by mere prior appropriation; that a prior appro- priator may thus acquire the right to divert, use, and consume a quantity of water from the natural flow or condition of such streams or lakes, which may be necessary for the purposes of his mining operations; and that he becomes, so far as he has thus made an actual prior appropriation, the owner of the water as against all the world, except the United States government. This doctrine, applied at first to the operations of mining, has been extended to all other beneficial purposes for which water may be (19) § 16 LAW OF WATER EIGHTS. [Ch. S essential, — to milling, manufacturing, agricultural, irrigating^ and municipal purposes. "^ § 16. Appropriation not at first availing as against the government. [It is very important to be noted that the right of property in running waters by appropriation, thus recognized by the courts and sanctioned by legislation, had as yet acquired no va- lidity whatever as against the federal government or its grantee. In this respect, however clear might be the superior rights of a prior apjjropriator as against another person not the owner of the soil, they acquired no sanction as against the United States, or its patentee, until the act of congress of 1866. Hence it has. never been held by the supreme court of the United Slates, or by the state courts, that an appropriation of water on the pub- lic domain, made after the act of congress of 1866, (or that of 1870,) gave to the appropriator the right to the water appro- priated as against a grantee of riparian lands under a grant made or issued prior to the act of 1866, except in a case where- the water so subsequently appropriated was reserved by the ^California. Parks Canal, etc., Co., 58 Cal. 143; Himes v. John- Co. V. Hoyt, 57 Cal. 44; Hill v. son, 61 Cal. 259. Nevada. Strait v. Smith, 27 Cal. 480; Wixon v. Bear Brown, 16 Nev. 317; Barnes v. Sa- River, etc., Co., 24 Cal. 367; Phoe- bron, 10 Nev. 217; Ophir Silver M. nix W. Co. V. Fletcher, 23 Cal. 481; Co. v. Carpenter, 4 Nev. 534; Lob- Kidd V. Laird, 15 Cal. 162; Ortman dell v. Simpson, 3 Nev. 274. Col- V. Dixon, 13 Cal. 33; McDonald v. orado. Schilling v. Rominger, 4 Bear River, etc., Co., Id. 220; Bear Colo. 100. Utah. Crane v. Wins'or, River, etc., Co. v. NewYorliMin. 2 Utah, 248. Montana. Atchison Co., 8 Cal. 327; Crandall V.Woods, v. Peterson, 1 Mont. 561. For pur- Id. 136; Hill V.King, Id. 336; HofE- poses of irrigation, etc. Barnes v. man v. Stone, 7 Cal. 46; Kelly v. Sabron, 10 Nev. 217; Lobdell v. NatomaW. Co., 6Cal. 107; Hill V. Simpson, 2 Nev. 274. Ofmanufact- Nevpman, 5 Cal. 445; Irwin v. Phil- uring or milling. McDonald v. Bear- lips, Id. 140; and see, also, Maeris River, etc., Co., 13 Cal. 220; Ort- V. Bicknell, 7 Cal. 261, 263; Neva- man v. Dixon, Id. 33; and see nota da, etc., Co. v. Kidd, 87 Cal. 282, in 43 Amer. Dec. 379, 280. 313; Farley v. Spring Valley M. (20) Ch. 3] AEPEOPUIATION OF WATERS. § 16 terms of such grant.' This principle is asserted — and is clearly deduced from the authorities — in a recent decision of the su- preme court of California;^ from which we quote as follows: " In the case of Vansickle v. Haines, 7 Nev. 249, the plaintiff had diverted one-fourth of the water of Daggett creek in the year 1857. He made the diversion at a point then on the public land, but which, in 1864, was patented by the United States to the defendant Haines. In 1865, Vansickle obtained a pat- ent for his own land, where he used the water. In 1867, Haines constructed a wood flume on his land, and turned into it all the water of the stream, thereby depriving the plaintiff of that part of it which he had been using. The supreme court of Nevada held that the plaintiff, by his appropriation of water prior to the date of defendant's patent, acquired no right which could affect that grant; and that while the act of congress of July, 1866, protected those who at that time were diverting water from its natural channels on the public lands; and while aU patents issued or titles acquired from the United States since that date are obtained subject to the rights of water by appro- priation existing at that time, yet, with respect to patents for riparian lands issued before the act of congress, the patentee had already acquired the right to the flow of the .water, with which congress could not interfere." The court continued: "Broder v. Water Co., 101 U. S. 274, may appear to be in conflict with Vansickle v. Haines. But is there any real conflict? It wiU be observed that the Broder Case turned (so far as the plain- tiff's title from the railroad company was concerned) on the res- ervation clause in the act constituting the grant to the company, and the court held that 'a lawful claim,' within the meaning of the reservation in the act of 1864, was 'any honest claim ev- idenced by improvements and other acts of possession.' The iLux V. Haggin, 69 Cal. 255, 10 Nelson Min. Co., 47 Fed. Rep. 199. Pac. Rep. 734. See, also, Ison v. ^Lux v. Haggin, supra. (21) § 17 LAW OF WATER RIGHTS. [Ch. 3 construction given to the language of the reservation, of course, implies that those who appropriated lands or waters on the pub- lic lands, prior to the acts of 1864 or 1866, had not been treated by the government in those acts as mere trespassers, but as there by license. It does not imply that they had acquired any title which could be asserted against the United States or its grantees, except so far as their occupations of land or water were pro- tected and reserved to them by acts of congress."] § 17. The act of congress of 1866. The right of property thus settled by state courts availed against all persons except the United States government. Thi& limitation was soon removed. The United States government recognized the right to water on the public domain, thus ac- quired by prior appropriation, as a substantial and valid right which the government was bound to acknowledge and protect; and it repeatedly approved and adopted the doctrine which had sprung from the mining customs and been settled by the state and territorial decisions.' This view was expressly confirmed by a statute of congress passed July 26, 1866:^ "Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and respected in the same; and the right of way for the construction of ditches and canals, for the purposes herein specified, is acknowledged and confirmed.'' This statute, it is held by the United States supreme court, does not create the right; but it is "rather a voluntary recognition of a pre-existing right of possession, con- ^Broder v. Natoma Water Co., 20 .Wall. 670; Atchison v. Peterson, 101 U. S. 274; Basey v. Gallagher, Id. 507. "Rev. St. U. S. § 2339. C22) Ch. 3] APPROPRIATION OF WATERS. § 18 stituting a valid claim to its continued use, than the establish- ment of a new one."* § 18. Limits of the doctrine of appropriation — The early cases. It will aid in the subsequent examination of the open ques- tions to fix the exact extent and limits of the doctrine thus for- mulated, and to ascertain the grounds upon which it was rested by the courts. A very few of the earliest cases enter into no discussion, and seem to speak as though the rule were univer- sal, applicable to all waters under all circumstances." But most of these early decisions state the reasons for the doctrine in the most express manner, and thus indicate its grounds, extent, and limits. One or two illustrations will suffice. In Hoffman v. Stone, ^ Murray, C. J., said: "The former decisions of this court, in cases involving the right of parties to appropriate waters for mining and other purposes, have been based upon the wants of the conimunily, and the peculiar condition of things in this state, (for which there is no precedent,) rather than any absolute rule of law governing such cases. The absence of legislation on this subject has devolved on the courts the necessity of framing rules for the protection of this great interest, and in determining thesa questions we have conformed, as nearly as possible, to the an- alogies of the common law. The fact early manifested itself, that the mines could not be successfully worked without a pro- prietorship in waters, and it was recognized and maintained. To protect those who, by their energy, industry, and capital, had constructed canals and races carrying water for miles into ^Broder v. Natoma "Water Co., the courts. Jones v. Adams, 19 101 U S. 274. The act of congress Nev. 78, 6 Pac. Rep. 443. of 1866 merely confirms to land- ^gge, for example, Hill v. New- owners the rights and privileges man, 5 Cal. 445; Kelly v. Natoma they had formerly enjoyed by lo- W. Co., 6 Cal. 107. cal customs and the decisions of '7 Cal. 47, 48, (1875.) (23) § 18 LAW OF WATER EIGHTS. [Ch. 3 parts of the country which must have otherwise remained un- fruitful and undeveloped, it was held that the first appropriator acquired a special property in the waters thus appropriated; and, as a necessary consequence of such property, might invoke all legal remedies for its enjoyment or defense. A party appro- priating water has the sole and exclusive right to use the same for the purposes for which it was appropriated, and, so long as he is not obstructed in the use thereof, he has no ground of ac- tion." It should be observed that the waters referred to in this opin- ion were all upon public lands. In the case of Bear River Min. Co. v. New York Min. Co.* the reasons for the doctrine were stated by Mr. Justice Burnett more fully: "It may be said with truth that the judiciary of this state has had thrown upon it responsibilities not incurred by the courts of any other state in the Union. We have had a large class of cases unknown in the jurisprudence of our sister states. The mining interest of the state has grown up under the force of new and extraordinary circumstances, and in the absence of any specific and certain legislation to guide us. Left without any direct precedent, as well as without specific legislation, we have been compelled to apply to this anomalous state of things the analogies of the com- mon law and the more expanded principles of equitable justice. There being no known system existing at the beginning, parties were left without any certain guide, and for that reason have placed themselves in such conflicting positions that it is impos- sible to render any decision which will not produce great injury, not or.ly to the parties immediately connected with the suit, bnt to large bodies of men, who, though not formal parties to the record, must be deeply affected by the decision. No class of cases can arise more difficult of a just solution, or more dis- 18 Cal. 327, 333, (1875.) C24) Ch. 3] APPKOPEIATION OF WATERS. § 18 tressing in practical result. The business of gold mining was not only new to our people, and the cases arising from it new to our courts, and without judicial or legislative precedent, either in our own country or in that from which we have bor- rowed our jurisprudence, but there are intrinsic difficulties in the subject itself which it is almost impossible to settle satisfac- torily, even by the application to them of the abstract principles of justice. Yet we are compelled to decide these cases, because they must be settled in some way, whether we can say, after it is done, that we have given a just decision or not. The uses of water for domestic purposes, and for the watering of stock, are preferred uses, because essential to sustain life. Other uses must be subordinate to these. In such cases the element is en- tirely consumed. Next to these may properly be placed the use of water for irrigation in dry and arid countries. In such cases the element is almost entirely consumed. Under a proper system of irrigation, only so much water is taken from the stream as may be needed, and the whole is absorbed or evapo- rated. Entire absorption is the contemplated result of irriga- tion. Where properly used as a motive power for propelling machinery, the element is not injured, because the slight evap- oration occasioned by the use is unavoidable, and is not esteemed by the law a substantial injury. Considering the different uses to which water is applied in countries governed by the common law, it is not so difficult to understand the principles which regulate the relative rights of the different riparian proprietors. As to the preferred uses, each proprietor had the right to con- sume what was necessarj^, and after doing this he was bound to let the remaining portion flow, without material interruption or •deterioration, in the natural channel of the stream to others be- low him. If the volume of water was not sufficient for all, then those highest up the stream were supplied in preference to those below. [The correctness of the proposition contained in this (25) § 18 LAW OF WATER RIGHTS. [Ch. 3- sentence, as a common-law rule, may be questioned.] So far as the preferred uses were concerned, no one was allowed to de- teriorate the quality of the water; and, for the purposes of a. motive power, there was no use of the element which could im- pair its quality. But in our mineral region we have a novel use of water, that cannot be classed with the preferred uses, but still a use which deteriorates the quality of the element itself, when wanted a second time for the same purposes. In cases hereto- fore known, either the element was entirely consumed, or else its use did not impair its quality when wanted again for the same purpose. This fact constitutes the great difficulty in this and other like cases. If the use of water for mining purposes did not deteriorate the quality of the element itself, then the only injury that could be complained of would be the diminu- tion in the quantity and the interruption in the flow. In re- peated decisions of this court, it has been uniformly held that the miners were in the possession of the mineral lands under a, license from both the state and the federal governments. This being conceded, the superior proprietor must have had some leading object in view when granting this license; and that ob- ject must have been the working of these mineral lands to the best advantage. The intention was to distribute the bounty of the government among the greatest number of persons, so as most rapidly to develop the hidden resources of this region; while at the same time the prior substantial rights of individu- als should be preserved. In the working of these mines water is an essential element; therefore that system which will make the most of its use, without violating the rights of individuals, will be most in harmony with the end contemplated by the su- perior proprietor." The conclusion was reached in this and other cases that the right of the first appropriator of water from a stream on the public domain is equally protected, so far as the quantity is con- (26) Ch. 3] APPROPRIATION OF WATERS. § 1'^ cerned, from damage occasioned by subsequent locators above him, as well as below him. But as to the deterioration in the quality alone of the water, by reason of its being used by others for mining purposes before it reaches the ditch of the prior ap- propriator, this must be deemed damnum absque injuria. Any other rule, it was said, would involve an absolute prohibition of the use of all the water of a stream above any prior appropri- ator, in order to preserve the quality of a small portion taken by him from the stream. § 19. Vie-ws of the TJnited States supreme court. It may be instructive to compare these early views of the California court with the recent judgments pronounced by the supreme court of the United States. In Atchison v. Peterson,' which came up from Montana, Mr. Justice Field said: "By the custom which has obtained among miners in the Pacific states and territories, where mining for the precious metals is had on the public lands of the United States, the first appropriator of mines, whether in placers, veins, or lodes, or of waters in the streams on such lands for mining purposes, is held to have a better right than others to work the mines or to use the waters. The first appropriator who subjects the property lo use, or takes the necessary steps for that purpose, is regarded, except as against the government, as the source of title in all controver- sies relating to the property. As respects the use of water for mining purposes, the doctrines of the common law declaratory of the rights of riparian owners were, at an early day, after the discovery of gold, found to be inapplicable, or applicable only in a very limited extent, to the necessities of the miners, and inadequate to their protection. By the common law the ripa- rian owner on a stream not navigable takes the land to the center 130 Wall. 507, (1874.) (27) § 19 i.uv oi- \v...;:;i higiits. [Ch. 3 of the stream, and such owner has the right to the use of the water flowing over the land as an incident to his estate." The judge gives a summary of the common-law doctrines as they are stated in the preceding chapter, and then proceeds as follows: "This equality of right [at the common law] among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its convenience for mining purposes to points from which it could not be restored to the stream. But the government being the sole proprietor of all the public lands, whether bor- dering on streams or otherwise, there was no occasion for the application of the common-law doctrines of riparian proprietor- ship with respect to the waters of these streams. The govern- ment, by its silent acquiescence, assented to the general occupa- tion of the public lands for mining, and to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale and the acquisition of title by settlement. And he who first connects his own labor with property thus sit- uated, and open to general exploration, does in natural justice acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public land throughout the Pacific states and territories, by their customs, usages, and regulations, everywhere recognized the inherent jus- tice of this principle; and the principle itself was at an early period recognized by legislation and enforced by the courts in those states and territories." He quotes from some of the early California decisions hereinbefore cited, and further says; "This doctrine of right by prior appropriation was recognized by the legislation of congress in 1866, [quoting the statute of congress.] The right to water by prior appropriation, thus recognized and established as the law of miners on the mineral lands of the public domain, is limited in every case, in quantity and qual- ity, by the uses for which the appropriation is made." Hav- (28) Ch. 3] APPROPRIATION OF WATERS. § 19 ing thus explained the origin of the doctrine, the opinion goes on to state more particularly the extent and limits of the right thus acquired, the relations of the appropriator with other oc- cupants, and the like. This portion of the opinion will be quoted in Connection with subsequent discussions. In the case of Basey v. Gallagher,' the same doctrine was applied by the United States supreme court to all other beneficial purposes for which water is essential, as well as to mining. Mr. Justice Field, after quoting the decision in Atchison v. Peterson, said: " The views there expressed and the rulings made are equally applicable to the use of water on the public lands for purposes of irrigation. No distinction is made in the states aiid terri- tories of the Pacific coast by the customs of miners or settlers, or by the courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one." He quotes an early California decision to this effect,^ and proceeds: "Ever since that decision it has been held generally throughout the Pacific states and territories that the right to water by prior appropriation for any beneficial purpose is entitled to protec- tion. Water is diverted to propel machinery in flour-mills and saw-mills, and to irrigate land for cultivation, as well as to en- able miners to work their mining claims; and in all such cases the right of the first appropriator, exercised within reasonable limits, is respected and enforced. We say within reasonable limits, for this right to water, like the right by prior occupancy to mining or agricultural land, is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use, and vest an abso- lute monopoly in a single individual. The act of congress of 1866 recognizes the right to water by prior appropriation for 120 Wall. 671, (1874.) 2 Tartar v. Spring V. M. Co. , 5 Cal. 397, (1855.) (29) ■§ 20 LAW OF WATEE EIGHTS. [Ch. 3 agricultural and manufacturing purposes, as well as for mining. * * * It is evident that congress intended, although the language used is not happy, to recognize as valid the customary law with respect to the use of water, which had grown up among the occupants of the public land under the peculiar ne- cessities of their condition; and that law may be shown by evi- dence of the local customs, or bj^ the legislation of the state or territory, or by the decisions of the court. The union of the three conditions, in any particular case, is not essential to the perfection of the right by priority; and, in case of conflict be- tween a local custom and a statutory regulation, the latter, as of superior authority, must necessarily control." These extracts have been given for a definite purpose, and they have a most important bearing "non.the future discussion of other questions. § 20. Grounds of these decisions. It is essential, to any accuracy in such discussions, that we should ascertain at the outset the exact grounds of the peculiar doctrine which lies at the foundation of the entire law concern- ing water rights in the Pacific communities. The question will afterwards rise whether this doctrine determines all the special rules which may apply to all circumstances and to all conditions of ownership; or whether, on the other hand, this doctrine only partially displaces the common law, leaving it applicable un- der different circumstances and conditions. It is plain, upon the most superficial examination, that the opinions which have been quoted — and the same is true of other cases — do not pro- fess to derive their conclusions from the common law. On the ■contrary, they openly avow that these conclusions are directly opposed to the common law. They base their reasoning and its results upon the peculiar social and industrial needs of the early settlers, especially the miners; upon the condition of the (30) Ch. 3] APPROPRIATION OP VVATEES. § 21 public domain in which the mining was carried on; upon the evident intention of the federal government in throwing open the mineral wealth of the public lands to all comers, so that its advantages might be enjoyed equally by all persons; and upon the fact that the common-law rules would defeat this intention, and retard, if not whoUy destroy, the development of the mineral resources. Although this departure from the common law was, at the very first, made with reference solely to the use of water for mining, it was soon necessarily extended to all other beneficial uses. There are undoubtedly some dicta to be found in a few of the California cases which seem to assume or to suppose that the conclusions reached by the court were in agree- ment with the common-law doctrines. These dicta difier widely from the general course of reasoning pursued by the state judges, and especially from that adopted by the United States supreme court; and they -are, as it seems to me, utterly irreconcilable with many subsequent decisions, establishing more special rules, made by the state and the federal courts. § 21. Doctrine of appropriation unknown to the common law^. It has been urged, although the position has never, I believe, been sustained by any authoritative decision in the Pacific states or territories, that the common law, in its early and original form, recognized and permitted a prior appropriation of the waters of running streams; that the contrary rules, as laid down by Story and Kent, and as they are briefly formulated in our second chapter, are a modern departure from the primitive com- mon law, first made by some comparatively recent English de- cisions; and that, as a necessary consequence, these original common-law doctrines, denying what are ordinarily called "ri- parian rights," and not the modern innovations acknowledging such rights, are binding upon and should be followed by the C31) § 22 LAW OP WATER RIGHTS. [Ch. 3 courts of the Pacific commonwealths. In alleged support of this view, reference has been made, among others, to some New York decisions.^ IntO' the discussion of this question I shall not at present enter. In the very recent case decided by the New York court of appeals,^ described in our second chapter, the same position was urged by counsel. As a consequence, the common-law doctrine was examined by the court with much learning and ability, the early authorities were copiously cited, and the conclusions reached were in complete accordance with the common-law rules as they are universally understood at the present time by the courts of England and of the United States. The cases of People v. Canal Appraisers, and others like it, which seem to be antagonistic, it is shown are confined to the Mohawk and the Hudson rivers, the rights of riparian owners on these two streams being derived, not from the common law, but from the civil law, as it prevailed in the Netherlands during the colonial periods. § 22. Basis of right to appropriate water. [Prior to the act of congress already referred to, there was no legislation emanating from the federal government which di- rectly authorized the exclusive appropriation of water-courses on the public domain. The right of a miner to go upon the pub% lie lands of the United States, and there appropriate to his own use the water of a running stream, and to hold the same against any person who should subsequently attempt to divert it from him, could be based upon no grant, statute, or express permis- Bion. This right, if it was to receive legal recognition at all, 'For example, to People V. Canal nia remarked: "In examining the Appraisers, 33 N. Y. 461. numerous cases which establish 2 Smith V. City of Rochester, 93 that the doctrine of appropriation N. Y. 463. In the case of Lux v. is not the doctrine of the common Haggin, 69 Cal. 855, 10 Pac. Rep. law, we meet an embarrassment 753, the supreme court of Calif or- of abundance. " (32) Ch. 3] APPROPRIATION OF WATERS. § 23 must be made to rest upon some other foundation than that ot positive law. Hence the courts — in order to protect the vast interests which had grown up under the mining systems, and to give legal sanction to the rights thus acquired — invoked the common-law doctrine of presumption, and implied, from all- the circumstances, a license from the United States to the appropri- ator of water, commensurate with any rights which he could justly claim. Thus it is said: "From a veryi early day the courts of this state have considered the United States govern- ment as the owner of running waters. on the public lands of the United States, and of their beds. Recognizing the United States as the owner of the lands and waters, and as therefore author- ized to permit the occupation or diversion of the waters as dis- trict from the lands, the state courts have treated the prior ap- propriator of water on the public lands of the United States as having a better right than a subsequent appropriator, on the theory that the appropriation was allowed or licensed by the United States. "^ § 23. Grounds for presumption of license. If we inquire as to the grounds on which this presumption of a license from the government is built, we shall find the question satisfactorily answered in an early decision of the Cal- ifornia supreme court. It was observed by a learned judge: "One of the favorite and much-indulged doctrines of the com- mon law is the doctrine of presumption. Thus, for the purpose of settling men's differences, a presumption is often indulged where the fact presumed cannot have existed. In support of this proposition I will refer to a few eminent authorities. * * * In these cases presumptions were indulged against the truth, — presumptions of acts of parliament and grants from »Lux V. Haggin, 69 Cal. 255, 10 Pao. Rep. 731. LAW W. E. — 3 (33) § 23 LAW OF WATEK HIGH IS. [Ch. 3 the crown. It is true the basis of the presumption was length of time, but the reason of it was to settle disputes,.and to quiet the possession. If, then, lapse of time requires a court to raise presumptions, other circumstances which are equally potent and persuasive must have the like effect for the purposes of the desired eiid; for lapse of time is but a circumstance or fact which calls out the principle, and is not the principle itself. Every judge is bound to know the history, and the leading traits which enter into the history, of the country where he pre- sides. This we have held before, and it is also an admitted doctrine of the common law. We must therefore know that -this state has a large territory; that upon its acquisition by the -United States, from the sparseness of its population, but a small comparative proportion of its land had been granted to private individuals; that the great bulk of it was land of the govern- ment; that but little as yet has been acquired by individuals by purchase; that our citizens have gone upon the public lands continuously from a period anterior to the organization of the state government to the present time. Upon these lands they have dug for gold; excavated mineral rock; constructed ditches, flumes, and canals for conducting water; built mills for sawing lumber and grinding corn; established farms for cultivating the earth; made settlements for the grazing of cattle; laid off towns and villages; felled trees; diverted water-courses; and, indeed, have done, in the various enterprises of life, all that is useful and necessary in the high condition of civilized development. All of these are open and notorious facts, charging with notice of them not only the courts who have to apply the law in refer- ence to them, but also the government of the United States, which claims to be the proprietor of these lands, and the gov- ernment of the state within whose sovereign jurisdiction they exist. In the face of these notorious facts the government of the United States has not attempted to assert any right of owu- (34) Ch, 3] APPEOPEIATION OF WATERS. § 24 firship to any of the large body of lands within the mineral re- gion of the state. The state government has not only looked oh .quiescently upon this universal appropriation of the public do- main for all of these purposes, but has studiously encouraged them, in some instances, and recognized them in all. Now, -can it be said, with any propriety of reason or common sense, that the parties to these acts have acquired no rights? If they have acquired rights, these rights rest upon the presumption of a grant of right, arising either from the tacit assent of the sov- ereign, or from expressions of her will in the course of her gen- eral legislation, and, indeed, from both. Possession gives title only by presumption. Then, when the possession is shown to be of public land, why may not any one oust the possessor? Why can the latter protect his possession ? Only upon the doc- trine of presumj)tion, for a license to occupy from the owner will be presumed."^ At the same time it must be remembered that there was never ^ny license, in fact, from the government to the miners on the Pacific coast to work the mines. Congress had adopted no spe- cific action on the subject. The supposed license consisted in •the forbearance of the government; any other license would rest in mere assertion, and would be untrue in fact and unwarranted in law.' § 84. Efficacy of miners' customs. It may not be inappropriate to add a few words to the ac- count given by our author of the origin and nature of "mining customs. "* It is said by the court in California : "It has always been held that local regulations, etc., accepted by the miners of a particular district, are binding only as to possessory rights 'Conger v. Weaver, 8 Cal. 556, ^Boggs v. Merced Min. Co., 14 557. CaUSaS. s^upra, §14. (35) § 24 LAW OF WATER EIGHTS. [Ch. 3 within the district, and that they must be proved as a fact. When they have been proved, the courts have considered them only for the purpose of ascertaining the extent and boundaries of the alleged possessions of the respective parties, and the pri- ority of possessory right as between them, or for the purpose of ascertaining whether the right of action has been lost or aban- doned by failure to work and occupy in the manner prescribed. When the priority, limits, and continuation of a possession have thus been ascertained, the courts have proceeded to apply the presumption of a grant from the paramount source, — a presump- tion, we repeat, sustainable on common-law principles."' The principal efficacy of the mining customs, then, is this: that, where any local mining custom exists, controversies affecting a mining right must be solved and determined by the rules and usages of the bar or diggings embracing the claim to which such right is asserted or denied, whether such customs or usages are written or unwritten. Legislation, it is added, could not en- tirely supplant the force of these customs. They are of a differ- ent character from common-law customs; for the latter must be of innnemorial tradition.^ But a custom or usage is void when- ever it falls into disuse, or is generally disregarded.' The ex- istence of mining rules and customs is a question of fact; and it is further required that they should be reasonable.* In Oregon, it is held that where a plaintiff alleges a right to appropriate water under a local custom, and such allegation is denied, he must prove the custom and a compliance therewith. The courts will not take judicial notice of local customs con- cerning water rights. Hence, to claim and hold water appro- priated under a local custom, such as is recognized by the act 1 Lux V. Haggin, 69 Cal. 255, 10 'Harvey v. Ryan, 43 Cal. 626. Pac. Kep. 748. ■"King v. Edwards, 1 Moat. 235. 2 Morton V. Solambo Copper M. And see Irwin v. Phillips, 5 Cal. Co., 26 Cal. 537. 140, s. c. 63 Amer. De& 113. (36) Ch. 3] APPROPEIATION OF WATERS. § 24 of congress of 1866, the claimant must allege and prove a cus- tom such as is named in that act.' In Arizona, on the other hand, the courts take judicial notice, without proof, of the "local customs, laws, and decisions of courts" relating to water rights, as these terms are used in the federal statute referred to.=^ It remains to be added that the mining customs are recognized as valid and binding only when they are not in conflict with any constitutional or statutory provision, either of the state or the United States.' Thus, no custom of miners could legalize those effects of the system of hydraulic mining which have come to be regarded by the courts as a public nuisance. On this point it is said: "A custom or usage attempted to be established, whereby mining debris might be sent down to the valleys, dev- astating the lands of private owners, holding titles in fee from the Mexican government, as old as the title of the United States, without first acquiring the right to do so by purchase or other lawful means, upon compensation paid, would be in direct vio- lation both of the laws and constitution of the state and of the constitution of the United States. Instead of being authorized by the statute, it would be in direct violation of the statute. It would also be in direct violation of the express provisions of the statutes defining nuisances."*] iLewis V. McClure, 8 Oreg. 373. St. 1851, p. 149, § 631. See, also, 2 Clough V. Wing, (Ariz.) 17 Pac. Rev. St. U. S. §§ 3319, 3334. Eep. 458. * Woodruff v. North Bloomfleld « Code Civil Proc. Cal. § 748, and 6. M. Co., 9 Sawy. 441, s. c. 18 Fed. Eep. 801. (37) § 25. LAW OF WATEB EIGHTS. COh- 3, II. Appropriation as against the Subsequent Grantee of THE Government. § 25. Title of subsequent grantee is subject to prior appropriation. Where a stream or lake was throughout its entire extent on the public land, the prior appropriator obtained a right, we have "seen, good against all the world except the federal gov- ernment. The government might have denied this right and, treated it as non-existing. On the contrary, congress formally acknowledged it, and by the declaratory statute of 1866 made the national ownership of the public domain bordering on the stream or lake subject to the claims and uses of the prior ap- propriator. Wherever the title of the United States to any por- tion of the public domain was thus burdened, the same burden would, on general principles, accompany the title if transferred to any subsequent or private owner; whoever succeeded to the title of the United States, through any mode of acquisition or conveyance, would acquire and hold it subject to the same serv- itude which before existed in favor of the prior appropriator. This consequence would naturally follow from the operation of well-settled principles, independently of any express enactment; but it has not been thus left as a matter of inference. By an act of July 9, 1870, amending the statute of 1866, congress has provided "that all patents granted, or pre-emptions or home- steads allowed, shall be subject to any Vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this is amendatory;" i. e., act of July 26, 1866. (38) Ch. 3] APPROPRIATION OF WATERS. § 26 § 26. California decisions on this point. In the recent case of Osgood v. El Dorado Water Co.,' it ap- peared that the plaintiff, Osgood, first went upon a certain tract of public land bordering on a stream, in 1863, and had resided there ever since. The land at the time was uusurveyed. The land was surveyed by the government surveyor in 1865. The plaintiff filed his declaratory statement as a pre-emptor in June, 1868; in June, 1870, he had completed his payments; and on October 25, 1871, he received his patent from the United States. In March, 1867, the predecessors of the defendant had posted a notice of their appropriation of the waters of the same stream which ran through the plaintiff's tract. From that date they had been engaged in constructing a ditch or canal, and were in active prosecution of the work at the time plaintiff obtained his patent, although they did notfinallj'' complete it until sometime after that date. The action was brought to restrain the defendant from diverting the water, based upon the plaintiff's asserted rights as a riparian owner. The court held that the plaintiff's rights accrued only from the date of his patent, and did not relate back to the time of his first settlement, or of his filing a declaration of pre-emption.^ The defendant was thus in the position of a prior appropriator. In determining the rights of such an appropriator against a subsequent grantee from the United States, the court entered into no discussion of the question upon principle. It rested the decision wholly upon the statute of congress. Mr. Justice Ross said: "The principle of prior appropriation of water on the public lands in California, where its artificial use for agricultural, mining, and other like purposes is absolutely essential, which has all along been recognized and sanctioned 156 Cal. 571, (1880.) iela v. Lansdale, 43 Gal. 41; Smith 2 In support of this conclusion v. Athern, 34 Cal. 507; Lansdale vi the following cases were cited: Daniels, 100 U. S. 118. Megerle v. Ashe, 33 Cal. 74; Dan- (39) § 26 LAW OF WATER EIGHTS. [Oh. 3 by the local customs, laws, and decisions, was thus expressly recognized and sanctioned by the supreme court of the United States, and also by the act of congress of 1866." The same policy, he continues, led to the further act of 1870, previously quoted. "The defendant's grantors, therefore, had the right to appropriate the water in controversy, and, if they acquired a vested right therein prior to the issuance of the plaintiff's pat- ent, the plaintiff's rights, by express statutory enactment, are subject to the rights of the defendant." [This doctrine is now conclusively established upon the authorities. It is held that an appropriation of the use of water for mining or agricultural purposes, under estab- lished customs in the arid regions, and under the acts of congress, confers a vested right, and all subsequently ac- quired rights or titles are subject thereto. And it is said that "whoever purchases land from the United States or this state, after the whole or some part of the water of a natural water-course running through such land has been appropriated by some one else under the act of congress of July 26, 1866, or under the provisions of title 8 of the Civil Code of this state, takes subject to the rights acquired by such prior appropriator."i And when one obtains gov- ernment land, he has a right to appropriate, for the pur- pose of irrigation and stock-raising, the waters of any stream flowing thi-ough government land which have not been previously appropriated by another, and in waters thus converted to his use he acquires a vested right which cannot be affected by those who purchase above or below ^Lux V. Haggin, 69 Cal. 255,4 31 Pac. Rep. 41; Barnes v. Sabron, Pac. Rep. 924; Lytle Creek Water 10 Nev. 317; Speake v. Hamilton, Co. V. Perdew, 65 Cal. 447, 3 Pac. 31 Oreg. 3, 26 Pac. Rep. 855; Hill Rep. 733; Judkins v. Elliott, (Cal.) v. Lenormand, (Ariz.) 16 Pac. Rep. 13 Pac. Rep. 116; South Yuba Wa- 266; Drake v. Earhart, (Idaho,) 23 ter Co. v. Rosa, 80 Cal. 333, 23 Pac. Pac. Rep. 541; Kirk v. Bartholo- Rep. 323; Ramelli v. Irish, (Cal.) mew, (Idaho,) 39 Pac. Rep. 40. (40) Ch. 3] APPEOPEIATION OF WATERS. § 27 liim.i And where an appropriator of water leads his ditch through the public lands, he, by the construction of his ditch and the appropriation and use of the water, acquires, as against a subsequent purchaser from the United States, as complete and perfect a right to maintain his ditch as though such easement had vested in him by grant.^ And such subsequent purchaser will not be permitted, by ob- structions on his own land, to divert the water from the ditch of the prior appropriator.* Where a person settles on unsurveyed public land, with the intention of acquiring title as soon as he can under the law, and appropriates water for its cultivation, such appropriation is effective from its date, though that may be several years before he succeeds in perfecting his title.*] § S7. Vie-ws of United States supreme court. In the case of Broder v. Natoma Water Co.,° the supreme court seems to have held, or at least to have intimated by the course of its reasoning, that the subsequent grantee, from the government would take subject to the rights of the prior appro- priator, even in the absence of the express declaration contained in the act of 1870. A person had made a prior appropriation from the water of a stream running through a portion of the public domain included in a tract of the public land, which was afterwards, and before the statute of 1870, granted by con- gress to a raih'oad company. As between this appropriator and a subsequent purchaser from the railroad company of another parcel on the same stream, it was held that such purchaser took his title subject to the prior appropriation, because the congres- iKaler v. Campbell, 13 Oreg. 'Geddis v. Parrish, 1 Wash. St. 596, 11 Pac. Rep. 301. 587, 21 Pac. Rep. 314. 2"Warev. Walker, 70 Cal. 591, 13 < Elliott v. Whitmore, (Utah,) Pac. Rep. 475. 24 Pac. Rep. 673. 6 101 U. 8. 274. (41) § 28 LAW OF WATEE BIGHTS. [Ch. 3 sional grant to the railroad company was expressly declared to be subject to all "lawful claims." Although this provision in the grant to the railroad was similar in its import to the more comprehensive statute of 1870, yet the reasoning of the court is largely based upon the rights of the appropriator of water ac- quired through the operation of local customs, and recognized and protected by the earlier legislation of 1866. The established doctrine of the court was said to be that the "rights of miners who had taken possession of mines, and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of ag- ricultural irrigation, in the region where such artificial use of water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged, and was bound to protect, before the passage of the act of 1866." § S8. The act of 1870 is declaratory only. Where a private person can thus acquire a right of property in the water of a public stream, or, if not an absolute right of 'properly, at least a right in the nature of an easement or servi- tude to use the water, which is good against the United States, as proprietor of the remaining tract of land through which the stream flows, it would seem to follow, as a necessary result of the common-law doctrines concerning the devolution of title, that the same right would remain good and attached to the stream , as against any and all subsequent proprietors who may acquire title from and under the government to all or to any part of the public lands bordering upon, adjacent to, or situ- ated near the same stream. In other words, it would seem that the statute of 1870 should be construed as simply declaratory of a familiar legal doctrine, and not as circumscribing or re- stricting such doctrine. If th^ language of such statute be found to be too narrow or incomplete to afiford, of itself, a sufficient (42) Ch. 3] APPROPRIATION OF WATERS. § 29 protection to the claims of prior appropriators against subse- quent owners, then the courts may fall back, if necessary, upon the broader principles of the common law. In this connection, it will be important to determine who are grantees or owners ac- quiring title from and under the United States. While the stat- ute should be liberally construed in favor of the prior appropri- ators, it should also be fairly and equitably interpreted in as- certaining who are the grantees and owners holding title to the public domain under the government. The discussion of this question belongs, however, to a subsequent portion of our es- say .^ § 29. Public lauds of the state. The rules thus far considered are avowedly confined in their operation to the public lands of the United States. The first contemplates an appropriation from the water of a stream or lake while it lies wholly in the public domain, before any titles of tracts adjacent to it have been acquired by other persons. The second renders a prior appropriation, thus made, valid and ef- 1 [At the same time it must be re- subjacent soils, grants of its lands membered tliat a grant of public must be held to carry with them land of the United States carries the appropriate common-law use with it the common-law rights to of the waters of the innavigable an innavigable stream thereon, streams thereon, except where the unless the waters are expressly or flowing waters have been reserved impliedly reserved by the terms of from the grant. To hold other- the patent, or of the statute grant- wise would be to hold, not only ing the land, or unless they are re- that the lands of the United States served by the congressional legis- are not taxable, and that the pri- lation authorizing the patent or jnary disposal of them is beyond other muniment of title. To this state interference, but that the poi"t the supreme court of Cali- United States, as a riparian owner forni a speaks as follows- "And if within the state, has other and dif- the United States since the date of f erent rights than other riparian the admission of th,e state has been owners, including its own grant- the owner of the innavigable ees. " Lux v. Haggin, 69 Cal. 255, streams on its lands, and of the ioPac. Rep. TSSi] (43) § 29 LAW OF WATER EIGHTS. [Ch. 3 fectual as against private persons who subsequently acquire, from the general government, titles to portions of the public land bordering on the 'same lake or stream. The question is at once presented whether the same rules apply to the public lands of the state, as well as to those of the United States. The United States has, through congressional legislation, donated to indi- vidual states — to California, for example — large tracts of the orig- inal public domain, under the name of "tide- water," "swamp," and "overflowed" lands. Over such lands the state has, of course, both the proprietary rights of an owner, and the govern- mental rights of a political sovereign; while over its public lands within the territory of a state the United States has only the rights of a proprietor. If a stream was wholly situated on such public lands of California, and an appropriation should be made of its waters for irrigating, agricultural, or manufacturing pur- poses, before any other private persons had acquired title to tracts bordering upon its banks, would this prior appropriation be valid against the state, and also against other riparian pro- prietors holding titles subsequently obtained from the state? This is an important question, but its discussion will be more appropriate in connection with subsequent topics. It is enough now to say that the considerations which led to the adoption of the rules previously laid down concerning the public lands of the United States would seem to apply, with at least an equal force, to the lands owned by the state. The federal government, through its congress and its courts, has avowedly carried out a policy which was inaugurated by the legislative and judicial de- cisions of the state. As the doctrine of prior appropriation on the public lands of the United States originated from a policy recognized, favored, and promoted by state authority, and as similar needs exist and similar reasons apply in connection with the public lands of the state, it seems to be a natural, even if (44) Ch. 3J APPROPRIATION OP WATERS. § 30 not an inevitable, consequence, that the same doctrine should be extended to those lands, as against the state itself and its subsequent grantees.* III. The Right Restricted to the Public Domain. § 30. Appropriation confined to public lands. Wliatever rules may be adopted by the statutes or the decis- ions of a particular state, with reference to the rights of riparian proprietors who have acquired titles to all the lands on the bor- ders of a stream, before any appropriation of its waters had been made while these were public lands, — even though the state might by its statutes or decisions expressly extend the same doc- trines to all such proprietors, — still the two doctrines, hereto- fore described as originating from the local customs of miners '[The position taken in the text is strongly supported by a very im- portant decision lately rendered by the supreme court of California. In Lux V. Haggin, 69 Cal. 355, 10 Pac. Rep. 775, it is said: "The citi- zens of the state have never been prohibited from entering upon the public lands of the state. The courts have always recognized a right in the prior possessor of lands of the state as against those subsequently intruding upon such possession. The same principle would protect a prior appropriator of water against a subsequent ap- propriator from the same stream. It is not important here to inquire whether, as against a subsequent appropriation of water, a prior ap- propriator of land, through which the stream may run, would have the better right. It is enough to say that, as between two per- sons, both mere occupants of land or water on the state lands, the courts have determined controver- sies. The implied permission by the general government to private persons to enter upon its lands has been assumed to have been given by the state with reference to the lands of the state; and the state, for the maintenance of peace and good order, has pro- tected the citizen in the acquisi- tion and enjoyment on its lands of certain property rights ob- tained through possession, — per- haps the mode by which all prop- erty was originally acquired. In view of these facts, we feel justi- fied in saying that it was the legis- lative intent to exclude as well the state as the United States from the protection which is extended to riparian proprietors by section 1423 of the Civil Code. "] (45) § 31 LAW OF WATER RIGHTS. [Ch. 3 and sanctioned by the legislation of the state and of congress, are confined in their operation to the public domain of the United States. All extension of these doctrines to other lands and other proprietors, and all additional rules, must necessarily proceed from the states themselves. [It is accordingly held that the federal statute, heretofore referred to, applies only to govern- ment lands, and does not give the right to appropriate water on lands already held in private ownership.' And in favot of one's claim of right in the waters of a stream by appropriation there is no presumption that, at the time of the appropriation, the lands were public lands.^] § 31. Jurisdiction of state and United States dis- tinguished. It should be observed, in this connection, that the United States government has no power whatever to prescribe for its grantees any general rules of law concerning the useof their lands, or of the lakes and streams to which, they are adjacent, binding upon its grantees of portions of the public domain situated within a state, and becoming operative after they have acquired their titles from the federal government. The power to prescribe such rules, forming a part of the law concerning real property, belongs exclusively to the jurisdiction of the states. Over its public lands situate within a state, the United States has only the rights of a proprietor, and not the legislative and govern- mental rights of a political sovereign. Even with respect to the navigable streams within a state, the powers of the iederal gov- ernment are limited, and a fortiori that is so with respect to streams which are innavigable. In the great case of Pollard's Lessee v. Hagan,^ the authority of the United States over its 1 Curtis V. La Grande Water Co., ^cjty of ganta Cruz v. Enright, 20 Oreg. 34, 33 Pac. Rep. 808. 95 Cal. 105, 30 Pac. Rep. 197. 8 3 How. 323. C46) Ch. 3] APPROPBIATION OF WATERS. § 31 public lands within a state was thus defined by the supreme court: "When Alabama was admitted into the Union, she suc- ceeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the date of the cession, ex- cept so far as this right was diminished by the public lands re- maining in the possession and under the control of the United States. Nothing remained in the United States, according to the terms of the agreement, but the public lands. And, if an express stipulation had been inserted in the agreement granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inop- erative, because the United States have no constitutional capac- ity to exercise municipal jurisdiction, sovereignty, or eminent domain within the limits of a state, except in cases in which it is expressly granted. * *■ * In the case of Martin v. Wad- dell,^ the present chief justice, in delivering the opinion of the court, said; 'When the revolution took place, the people of each state became themselves sovereign, and in that charac- ter hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution.' To Ala- bama, then, belong the navigable waters, and soils under them, in controversy in this case, subject to the rights surrendered by the constitution to the United States." Eecognizing the power of the United States over such navigable streams for the pur- pose of regulating commerce, the court adds: "The right of em- inent domain over the shores and the soils under the navigable waters, belongs exclusively to the states within their respective territorial jurisdictions, and they, and they only, have the con- stitutional power to exercise it. * * *" Summing up its conclusions, the court said: "First, the shores of navigable wa- ne Pet. 410. C47) § 32 LAW OF WATEE EIGHTS. [Cb. 3 ters, and the soils under them, were not granted by the constitu- tion to the United States, but were reserved to the states respect- ively; secondly, the new states have the same rights, sovereignty, and jurisdiction over this subject as the original states; thirdly, the right of the United States to the public lands, and the power of congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plain- tiffs the land in controversy in this case." § 32. Fo-wer of government to annex conditions to grants. Over the public domain within a state, and the innavigable streams and lakes situated thereon, the United States has there- fore only the rights of a proprietor. Undoubtedly, as held in the case of Union Mill & Min. Co. v. Ferris,^ by virtue of its proprietorship, the United States has a perfect title to the pub- lic domain, and an absolute and unqualified right of disposal; and neither a state nor a territorial legislature can modify or af- fect, in any manner, the right of the federal government to the primary disposal of the public land. Also an innavigable stream or lake, lying within the public domain, is a part and parcel of the land itself, inseparably annexed to the soil, and the use of it is an incident to the soil, and as such passes to the patentee of the soil from the United States. As the federal gov- ernment, in conveying any particular portion of its public do- main within a state to a particular grantee, may as proprietor annex any conditions to the conveyance, so that the title will be taken and held subject thereto, so it may, by congressional leg- islation, adopt any general regulations imyjosing any conditions or limitations upon the use of the public domain by all persons, or upon all persons who acquire title to portions of the public domain from the government, and the titles so acquired will be ^2 Sawy. 176, tefore Sawyer and Hilly er, JJ. (48) Ch. 3] APPROPRIATION OP WATERS. § 32" held by the grantees thereof subject to such conditions and lim- itations. Thus, congress may provide, by general statute, for a right of way over the public lands unsold, for the ditches and. canals of those who have made a prior appropriation of water,, and that all grantees who subsequently acquire portions of this land shall take and hold their titles subject to such existing rights of way; or that all grantees of the public lands bordering upon a stream shall take and hold their titles subject to any previously existing appropriation of its water; or that all grant- ees of the public lands shall take their titles subject to the local customs or laws of the state within which the lands are situated, concerning the uses of water for mining, irrigating, agriculture, and other purposes. Congress has, in fact, adopted such legis- lation, prescribing rules concerning the disposition of public lands, and imposing conditions or limitations upon the titles obtained by purchasers. By one section of the act of 1866, al- ready mentioned, it is enacted:' "As a condition of sale, in the absence of necessary legislation by congress, the local legislature of an}' state or territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and those conditions shall he fully ex- pressed in the patent. " The patent here spoken of is clearly that issued by the United States to the purchasers and other grant- ees of the public domain, and such grantees take their titles sub- ject to easements and other similar rights held by other persons under the customs and laws of the state. ^ This power of the United States to impose conditions and limitations upon the use of the lands within a state, which were originally public, is con- fined to their primary disposal to its immediate grantees. If, therefore, the public land bordering upon a stream, and situate iRev. St. U. S. § 2338. field G. M. Co., 9 Sawy. 441, s. c- 2 See the observations of Sawyer, 18 Fed. Kep. 801. J., in Woodruff v. North Bloom- LAW W. E. — 4 (49) § 33 LAW OF WATER EIGHTS. [Ch. 3 within a state, should all be conveyed to private persons, free from any conditions or limitations, congress would have no power to control such persons in the use of their lands or in the use of the stream upon which their lands border. The power to legislate and to prescribe rules under these circumstances be- longs exclusively to the state, as a part of its supreme munici- pal authority over persons and property within its jurisdiction. IV. Conflicting Claims between Settlers and Appeopei- ATOES. § 33. Converse of doctrine of appropriation. It has already been shown that the prior appropriation of water wholly upon the public lands of the United States is good against subsequent grantees or patentees of tracts upon the same stream or lake deriving their titles from the federal government.' It follows, by necessary implication from this statute, as well as on general principle, that if a person has acquired title from the United States to a tract bordering upon a stream or lake ly- ing within the public domain, before an appropriation has been made of its waters, any subsequent appropriation of its waters, made bj"^ another person, in pursuance of the local customs or laws recognized by the legislation of the state and of congress, must be subject to such prior title, and to the riparian rights belonging to the holder thereof.^ [And it is held that a right- ful occupant of public land can acquire a water right which will become appurtenant thereto, although the land was unsurveyed, and he had no legal title, when the right was acquired.' So also, one who acquires his right to a water ditch and water right through public land, under the act of congress of 1866, iSee ante, g§ 35-38; Act Cong. Haines, 7 Nev. 249; and see Cran- July 9, 1870. dall v. Woods, 8 Cal. 136; Leigh Co. 2 Union Mill & M. Co. v. Ferris, v. Independent Ditch Co., Id. 323. 2 Sawy. 176; Union Mill & M. Co. sgly v. Ferguson, 91 Cal. 187, V. Dangberg, Id. 450; Vansickle v. 27 Pac. Rep. 587. (50) Ch. 3] APPROPEIATION OF WATERS. § 34 but after the grant of a right of way to a railroad company, takes subject to the prior right of the railroad and cannot re- cover the damages that may be necessarily occasioned to him by its entry on its right o*" way.'] § 34. When title from United States is perfected. When does a person thus acquire a title from the United States, within the meaning of this rule, so that any subsequent appropriation of water shall be subject thereto? The legisla- tion of congress provides for various modes of acquiring title to public lands by different classes of persons, — by ordinary actual purchasers, by pre-emptors, by homestead settlers, and the like. In all these instances the claimant is required to do certain pre- liminary acts, — to file a declaration or notice, to make a loca- tion, to pay the purchase price, and the like; and after all these acts have been duly performed by him, including the payment of the price, if necessar}', he is entitled to receive a patent from the government, which is executed and delivered to him by the proper officer, usually after some lapse of time. In all cases these steps must be taken in respect to land which has been sur- veyed by the government, or else the whole proceeding is nu- gatory. Wherever a patent is required by the legislation, no legal title passes to and vests in the purchaser, occupant, or other grantee until the patent is executed and delivered; the patent alone is the final conveyance of the legal estate. If, however, the settler, pre-emptor, or purchaser has duly complied with all the requirements of the statute, including, if necessary, the pay- ment of the purchase price, so that nothing is left to be done by him in order to entitle him to a patent, he certainly acquires an equitable estate in the tract of land, — an equitable estate which the courts will and do protect. When a person has thus iBybee v. Oregon & C. R. Co., 139 U. S. 663, 11 Sup. Ct. Eep. 641. (51) § 36 LAW OP WATER EIGHTS. [Ch. 3 done all that he is required to do, and all that he can do to per- fect his title, and must await the convenience or leisure of the proper governmental official in obtaining the conveyance which clothes him with a complete legal estate, it would be in the high- est degree unjust and inequitable if his rights, as a prior pur- chaser or grantee from the government, could be postponed, or endangered, or in any way prejudiced or affected, by a delay in the actual execution and delivery of the patent to him. § 35. When patentee's riparian rights vest. We thus reach a conclusion which is in accordance with the plainest principles of equity, that the rights of a prior purchaser or grantee of public land from the government, as against any subsequent appropriator of water, become vested and perfect, at least from the time when he has duly performed all the stat- utory requirements, including, if necessary, the payment of the purchase price, which entitle him to a patent or other final con- veyance or evidence of his legal title, and not merely from the time when he actually receives his patent or other final convey- ance. Whether his rights are not even more extensive; whether, after he has duly performed all the statutory requirements, and has perfected his title by obtaining a patent, his rights as a prior grantee, purchaser, or owner do not relate back to the date of the first or initiative act in the whole continuous proceeding, — is another question which will be separately examined. § 36. Revievsr of the authorities on this point. The above proposition, that the prior rights of the grantee, purchaser, or private owner under the government are at least vested and complete, as against any subsequent appropriator of water, by the due performance of all the preliminary steps, including payment, which entitle him to a patent, and do not originate solely from the patent nor attach only from the date (52) • Ch. 3] APPEOPEIATION OF WATERS. § 36 of its delivery, seems to be fully settled by the decisions. In Union Mill & Min. Co. v. Dangberg/ the court held that one who has entered a tract of the public lands, under the provisions of the statutes of congress, and has fully paid for it, and has re- ceived the certificate of purchase from the governmental official, becomes vested with the equitable title, and as such equitable owner is entitled to all the water rights of a riparian proprietor, even though he has not yet received a patent. Also that one who has duly entered a tract of land in conformity with the requirements of the homestead act, and continues to reside thereon, becomes entitled to the water rights held by any ripa- rian owners. And, in general, a person who entered and paid for a tract of the public lands before the act of 1866, holds his land unaffected by that act, since his patent will relate back to the date of his entry, — the inception of his title. In the very important case of Vansickle v. Haines,'' the su- preme court of Nevada decided the following general proposi- tions: As the United States has an absolute and perfect title to, and unqualified property in, the public lands; and as running water is an incident to or part of the soil over which it natu- rally flows, — a patent given to a private person — in the absence of any special limitations or exceptions or easements contained in the instrument itself, or created by statute — carries not only the unincumbered, fee of the soil , but the stream naturally flow- ing through it, and the same rights to its use, or to recover for a diversion of it, as the United States or any other absolute owner could have. An owner of land over which a stream nat- urally flows has a right to the benefits which the stream affords, independently of any particular use; that is, he has an absolute and complete right to the flow of the water in its natural chan- nel, and the right to make such use of the water, when he chooses, 1 2 Sawy. 450; and see Union Mill & M. Co. v. Ferris, 2 Sawy. 176. 2 7Nev. 249. (53) § 36 LAW OP WATER EIGHTS. [Ch. 3 as will not damage others located on the same stream and en- titled to equal rights with himself. A patent to land from the United States, in the absence of any statutory or other limita- tions, carries with it a natural stream running through the land as an incident thereto, together with the right to have it re- turned to its channel if diverted. It follows, therefore, in the absence of special legislation to the contrary, that a pre- emptioner, while occupying and improving one quarter section of the public land, has no right to enter upon another quarter section, to which he makes no claim, and divert from it a val- uable stream of water for the benefit of the land which he is claiming. In regard to the general doctrine of riparian rights among the various proprietors of private lands on the borders of a stream, the court holds that the territorial statute, adopting the common law of England, was ratified and embraced by the state constitution; that the common-law doctrine as to run- ning water allows all riparian proprietors to use it in any man- ner not incompatible with the rights of others, so that no one can absolutely divert all the water of a stream, but must use it in such a manner as not to injure those below him; that the early decisions of Nevada, and those of California, holding that priority of appropriation gave a right to the use of water, were made in cases where there was no title to the soil, and have no bearing in cases where absolute tide has been acquired. In Ijeigh v. Independent Ditch Co.^ the complaint alleged that the plaintiffs were owners and in possession of a certain tract of mining land through which a natural stream flowed, and that defendants had diverted the waters thereof to their injury, and prayed relief. Defendants demurred to this com- plaint, on the ground that it did not allege any appropriation or use of the waters by the plaintiff's. The court said: "The 18 Cal. 323, (1857.) (54) Ch. 3] APPROPRIATION OF WATERS. § 36 demurrer was properly overruled. The allegation that the plain- tiffs were the owners and in the possession of the mining claims [the tract of land] was sufficient. And the ownership and pos- session of the ' claims ' draw to them the right to the use of the water flowing in the natural channel of the stream. The diver- sion of the water was therefore an injury to the plaintiffs, for which they could sue. The principle involved in this case was expressly decided by this court in the case of Crandall v. Woods.' In that case it was said: ' One who locates upon public lands, with the view of appropriating them to his own use, becomes the absolute owner thereof, as against every one but the govern- ment, and is entitled to all the privileges and incidents which appertain to the soil, subject to the single exception of rights antecedently acquired.'" The conclusion heretofore reached, that the rights of a prior grantee or purchaser from the United States, as against subse- quent appropriators of water, must be regarded as complete and perfect, at the latest, from the time when he has fully performed all of the statutory requirements, including payment, which en- title him to a patent, and not from the time of his receiving a patent, may appear, perhaps, to conflict with the recent decis- is Cal. 136, (1857.) The point the waters thereof perfect, or at actually decided in this case is, of least do not entitle him to any re- course, authoritatively settled by lief against a diversion of such wa- the later utterance of the same ters by another person; that even court made in the subsequent case, the prior owner of the land must as quoted above in the text. A have made some actual appropria- perusal of the opinion in Crandall tion of the water to his own uses, V. Woods would leave it doubtful, before he can maintain an action to say the least, in the absence against the diversion by another of the subsequent interpretation, person whose claim is subsequent whether such a point was decided. to his own. In other words, that Some portions of the opinion seem mere prior ownership of riparian to intimate — even if they do not lands does not confer full and per expressly hold — that the mere feet riparian rights to the water, prior ownership and possession of a See, also, to the same effect, Ne- tract of land upon a stream do not vada Co. & Sac. Canal Co. v. Kidd, render the proprietor's rights to 37 Oal. 283. (55) § 36 LAW OF WATER EIGHTS. [Ch. 3 ion in Osgood v. El Dorado, etc., Co.;^ but a careful examina- tion of that case shows that no such conflict was intended, and none could legitimately arise upon the facts. The plaintiff re- lied upon the doctrine of relation, in order to carry his right back to his first proceedings, which were earlier than those of the defendants, and the court simply held that on the facts the doctrine of relation did not apply. The plaintiff 's ^ret step was taken while the lands were unsurveyed; and his earliest legiti- 156 Cal. 571, 578. My reference to this decision on a previous page [ante, § 26) does not describe it with perfect accuracy, and needs some correction. It is true that the reporter's head-note represents the court as laying down the fol- lowing general rule,; "In a ques- tion of priority of right between an appropriator of water on the public lands and apre-emptor, the rights of the latter date from the issuance of his patent. " It is also true that Mr. Justice Ross says, in hisopinion: "The plaintiff's rights must therefore be held to have at- tached on the twenty-fifth of Oc- tober, 1871, the date of the issu- ance of his patent. " But this lan- guage cannot have been intended to lay down a general rule appli- cable to all pre-emptors; it must have referred entirely to the par- ticular facts of that case. "This plainly appears from the sentence immediately preceding, and from the cases which he cites in support of his conclusion, — these very cases recognizing the rule that a grantee's right may relate back to a date before that of his patent. He says; "The plaintiff seeks to invoke the doctrine of relation; but for obvious reasons no case was made for the application of that doctrine. " The plaintiff took (56) possession of his land several years before it was surveyed. It was surveyed in 1865. In June, 1868, he filed his first declaration as a pre-emptor; in 1870 he had paid up; and in 1871 he received his patent. But the defendants had taken their first step, from which their rights of appropriation arose, in March, 1867. It thus ap- pears that, even if the plaintiff's title did relate back to the date of his declaration in 1868, it was still subsequent to defendants' right of appropriation, which accrued in 1867. The remark that plain- tiff's title attached at the date of his patent was not, therefore, es- sential to the decision actually raade on the facts. [But a recent authority speaks of this case in the following language; "Osgood 7. Water Co. presented a question of priority between an appropri- ator of water on lands of the Unit- ed States and a pre-emptioner. It was there held that, by reason of the express language of the seven- teenth section of the act of con- gress of July 9, 1870, amending the act of July 36,1866, the rights of the pre-emption claimant, as against an appropriator, date only from his patent or certificate of pur- chase." Lux V. Haggin, 69 Cal. 355, 10 Pac. Rep. 783.] Ch. 3] APPROPRIATION OF WATERS. § 36 mate proceeding was subsequent to the date at which defend- ants' rights of appropriation accrued. In Farley v. Spring Valley Min., etc., Co.' the plaintiff, a pre-emptor, had settled on public lands of the United States, and filed his declaratory statement on February 27, 1871; he had proved up and paid the purchase price in 1877; and he received his patent on January 23, 1879. The defendants made an appropriation of water after 1871, but before 1877. The court held that the plaintiff's rights as a private propri- etor only accrued in 1877, when he had proved up and paid the price; and he was therefore a subsequent purchaser as against a prior appropriation of the defendants. This case clearly recognizes the doctrine that the rights of a grantee or purchaser from the United States, as against another party claiming under the government, do not accrue from the time of executing and delivering his patent "alone; but are complete when his equitable estate is perfected by his performing all of the requisites which entitle him to receive a patent. The rights of the prior owner of a tract bordering on a stream, as against a subsequent appropriator of its waters upon the pub- lic domain, are impliedly, even if not expressly, recognized by other decisions. In Gibson v. Puchta,^ the court held that when the title of two parties to public mineral lands is based on possession alone, the older possession gives the better title as between the two, even though the elder possessor uses his land for agriculture and the younger for mining. In such a case, their rights, as against each other, depend upon the com- mon-law doctrines applicable to adjoining land-owners. The agricultural occupant has a right to use the water for the pur- pose of irrigating his own land in a proper and reasonable man- ner, and no cause of action can arise against him for such use, i58Cal. 143. 2 33 Cal. 310. (57) § 37 LAW OF WATER EIGHTS. [Ch. 3 even though the mining occupant may sustain some injury therefrom; he would only be liable for a negligent or willful injury done to the other occupant by means of his irrigation. What is thus true of an occupant whose title to a riparian tract of the public lands rests wholly upon a prior possession, must certainly be true of an owher whose title to such a tract rests upon a prior patent, conveyance, or other grant from the United States. § 37. Kiparian rights protected. In Wixon v. Bear River, etc., Co.,^ the court held that if a tract of land on the bank of a stream in the mineral regions is inclosed and appropriated for the purposes of a garden or orchard, and the water of the same stream is afterwards appropriated by another person for mining purposes, at a point above the tract, the water subsequently appropriated must be used so as not to injure the garden, orchard, or fruit trees; that one who incloses a tract of public land in the mineral regions, and plants it with fruit trees, acquires a vested right therein, and a subse- quent appropriator must use the water for mining purposes so as not to disturb such vested right, or destroy or injure the gar- den or orchard. The rights of a private owner who has obtained a full title to a tract of land bordering upon a stream have been stated by quite recent decisions of the California supreme court. "As be- ing owners of the land, the plaintiffs have an interest in the liv- ing stream of water flowing over the land; their interest is called 124 Cal. 367; and see Rupley v. to enter upon the lands of prior oc- Welch, 23 Cal. 453; Hill v. Smith, cupants used solely for farming- 27Cal.476. The right of the prior purposes, when situated in thfr occupant was here merely posses- mineral regions; the interest of Bory as against the United States, such occupants being only poa- An early statute of California sessory. seems to have given miners a right ^58) Ch. 3] APPROPRIATION OF WATERS. § 39 the 'riparian right.' Under settled principles, both of the civil and the common law, the riparian proprietor has a usufruct in the stream as it passes over his land."' In Creighton v. Evans^ the same court held that the right of a riparian private owner to have the water of the stream run through his land is a vested right, and any interference with it by another person gives him a cause of action for appropriate relief; that a diversion of the water by one who is not a riparian proprietor on the same stream is a legal wrong to the person who is such a riparian owner; that a person who is not a riparian proprietor has no right to take any water from the stream, even if enough is left for the uses of the riparian owner, — even if the latter has sustained no actual damage from the diversion. § 38. Doctrine of relation applied to patentees. It having been shown that the rights of a patentee from the United States, as a prior purchaser or owner, relate back at least to the time when he has duly performed all the acts, including payment, which entitle him to a patent, the question still re- mains whether his rights do not in fact relate back to the date of his first or initiative step in the course of proceedings pre- scribed by congress, — as in case of a pre-emptor, to the filing of his declaratory statement. § 39. Grounds for the application of this doctrine. This question arises in the construction and application of general statutes of congress, which were intended to encourage actual settlers and occupants of the public lands, by providing a means for such actual settlers to acquire the private ownership of tracts of land, and for such actual occupants to acquire the right to divert and use the waters of streams. The same policy plainly underlies the whole system of legislation. When any iPope V. Kingman, 54 Cal. 3, 5. =53 Cal. 55. (59) § 40 LAW OF WATER RIGHTS. [Ch. 3 conflict arises between parties seeking to avail themselves of these different statutes, — between parties seeking to acquire tracts of land under one set of statutes and parties seeking to acquire water rights under another, — it would seem to be just and reasonable that the same principle or method of construc- tion and interpretation should be extended to all these statutes in determining the rights of such conflicting claimants. In re^ spect to the appropriator of water on the public lands, when he has duly posted and given the notices of his appropriation, and has followed up this initiative by proceeding to construct his ditches, dams, and other works with reasonable diligence, and without unreasonable delay, his right of appropriation, when his works are thus completed, relates back to the date of his first or preliminary act.^ This rule seems to be fully settled. In cases of conflict as to priority of right between such appro- priator of water and a patentee of land from the United States, it would seem to be just and reasonable that the same rule of interpretation should be extended to the other similar legisla- tion of congress by which private persons are authorized to ac- <]uire title to portions of the public domain as pre-eraptors, homestead occupants, and the like. Congress has given no in- timation of a policy more favorable to the use of water on the public domain than to the use of the public lands for all other beneficial purposes. In the absence of decisions, it would nat- urally be supposed that the same rule should be applied to all persons who acquire rights under this system of legislation, iu determining any conflict which may arise between them. § 40. California decisions. The decisions dealing or appearing to deal directly with this question are very few. In California the rule is settled against the claims of a pre-emptor who has received his patent from the "See Ossood v. El Dorado, etc., Co., 56 Cal, 571. (60) Ch. 3] APPROPRIATION OP WATERS. § 41 Unitea States, so far as it can be put at rest by one decision. In Farley v. Spring Valley M. & I. Co./the plaintiff, a pre- emptor, settled on government land; filed his declaratory state- ment February 27, 1871; proved up and paid in 1877; and obtained his patent January 23, 1879. The defendants made an appropriation of water which began after 1871, but before 1877. The plaintiff's right was held to have begun only in 1877, when be had "proved up and paid," and he was there- fore a subsequent purchaser to the defendant. This decision was rested upon the following grounds: The public land be- longed to the United States until the plaintiff had proved up and paid in 1877. Until that time congress had full power to withdraw the land from sale, and to sell or grant it to another. Certain cases were cited as expressly sustaining these conclu- sions.^ § 41. Review of the cases. With great respect for the able court which rendered this de- cision, and deference to its learning and ability in all questions connected with governmental land titles, I think that the matters actually decided in Frisbie v. Whitney, Hutton v. Frisbie, and Western Pac. K. R. v. Tevis do not sustain the conclusion which they reached in Farley v. Spring Valley M. & I. Co. ; that a care- ful examination of these prior cases will show that they dealt with an entirely different state of facts, and an entirelj' different kind of legislation; and that the opinions in these cases avowedly •'58Cal. 14a. and saved in the patent issued to ^Namely, Frisbie v. Whitney, 9 the plaintiff; citing Jennison v. Wall. 187; Hutton v. Frisbie, 37 Kirk, 98 U. S. 460; Broder v. Na- Cal. 475; Western Pac. E.R. V. Te- toma, etc., Co., 50 Cal. 631. Of vis, 41 Cal. 489. The court also held course the real question was that under the acts of congress, whether the defendants had any July 36, 1866, and July 9, 1870, such "existing rights" at the time the defendants obtained "existing when the right of the plaintiff first rights" to construct and use their accrued and became vested as reservoir, which were excepted against the defendants. (61; § 41 LAW OF WATER RIGHTS. [Ch. 3 and careful]y except and exclude from their operation such ques- tions as that of priority of right between a pre-emptor and an appropriator of water, arising under the general statutes of con- gress concerning the disposition of the public lands among pri- vate proprietors or occupants. In order to understand the ex- act points decided by the United States supreme court in Fvis- bie V. Whitney, and the character of the legislation to which it relates, a brief statement of the material facts is necessary. A certain person, whom I will designate as A., held a Mexican grant to a large tract of land in California. This grant was for j'ears supposed to be perfectly valid, and A.'s title as perfectly good. He had from time to time sold and conveyed portions of it to divers purchasers, who had for years held possession of their farms, inclosed them, built on them, planted orchards, and otherwise improved them, under the supposition that the titles obtained from A. were valid. At length the supreme court of the United States decided that the grant to A. was null and void, and the land included in such grant was therefore the public do- main of the United States, subject to all of the general statutes of congress concerning the public domain. Immediately upon the rendition of this decision, a great number of persons rushed onto the tract, and, disregarding the rights of the prior occupants, proceeded to locate claims as pre-emptors upon it, upon the improved and cultivated and occupied portions, to file their de- claratory statements, and to take the other steps necessary, un- der the general statutes, in order to secure their titles as pre- emptors of the public lands. This proceeding was a palpable wrong to the bona fide and innocent occupants who were thus dis- possessed. In this condition of facts, congress interfered, after the pre-emptors had filed their declaratory statements, but before they had paid the price so as to be entitled to patents, and by a special statute, applicable to the lands included in A.'s grant, withdrew those lands, or at least such portions of them as had (62) Ch. 3] APPROPRIATION OP WATERS. § 41 been sold to &ona_^de purchasers, from sale or pre-emption under the general statutes, and confirmed and established the rights and titles of such prior ftona^de purchasers holding under A.'s grant, as against the claims of the pre-emptors who had located tracts and filed declarations, but had not yet proved up and paid. A controversy arose concerning the ownership of a certain tract- be- tween a pre-emptor and a prior purchaser and occupant under A.'s grant, which the supreme court of the United States finally decided in the case of Frisbie v. Whitney.' As the reporter's head-note accurately describes the questions passed upon by the court, it will be sufficient to quote it, without giving more elab- orate extracts from the opinion. It will be seen that all the equities were strongly in favor of the prior occupants and against the pre-emptors. The head-note is as follows: "Occupation and improvement on the public lands, with a view to pre-emp- tion, do not confer a vested right in the land so occupied, [i. e., as the rest of the case plainly shows, a vested right against the United States.] It does confer a preference over others in the purchase of such land by the bona fide settler, which will enable him to protect his possession against other individuals, and which the land-ofRcers are bound to respect. This inchoate right may be protected by the courts against the claims of other persons who have not an equal or superior right, but it is not valid against the United States. The power of congress over the public lands, as conferred by the constitution, can only be restrained by the courts, in cases where the land has ceased to be government property by reason of a right vested in some person or corpora- tion. Such a vested right, under the pre-emption laws, is only obtained when the purchase money has been paid, and the re- ceipt of the proper land-officer given to the purchaser. Until this is done, it is within the legal and constitutional competency 19 Wall. 187. (63) § 41 LAW OF WATER EIGHTS. [Ch. 3 of congress to vnthdraw the land from entry or sale, though this may defeat the imperfect right of the settler." The case of Hutton v. Frisbie^ was an exactly similar controversy, growing out of the very same transaction, involving exactly the same questions, which the supreme court of California decided in the same man- ner. In Western Pac. R. R. v. Tevis^ the court held, for the same reasons, that congress has power, by a special statute giv- ing the right of way over the public lands of the United States to a railroad company, to include within such statutory grant, and thus convey to the railroad, portions of the public lands which pre-emptors had previously entered, located, and claimed, under the pre-emption laws, but for which they had not yet paid and received certificates of purchase. It is plain that the courts do not intend, in these three cases, to touch upon the question, to what period or stage of his pre- liminary proceedings does the right of a pre-emptor, (or other purchaser,) after he has received his patent, relate back, in a con- test as to priority with another person claiming title under the general legislation of congress? These cases simply hold that a pre-emptor who has merely located a tract of the public land, occupied it, and filed the preliminary declaration, but has not yet paid the price, obtains no vested right therein against the United States; and that congress may, therefore, by some spe- cial statute exercise its continuing rights of ownership over such tract, withdraw it from entry, location, settlement, or sale un- der the operation of the general legislation, and may sell or do- nate or grant such tract to another person, without regard to the inchoate and imperfect right to it of the pre-emptor. The con- flicting rights of two persons claiming under different provis- ions of the general statutes of congress concerning the acquisition of private titles or interests in the public lands, — ^general stat- i37Cal. 475. Ul Cal. 489. C64) Ch. 3] APPEOPRIATION OP WATERS. § 41 utes which were dictated by and carry out the same liberal policy, — prefeent, in my opinion, another question, which, I would most reSj^ectfully but earnestly submit, is not embraced within nor passed upon by the three decisions above described^ and which were cited and relied upon in Farley v. Spring Valley- M. & I. Co.* Those cases deal with the interest of a pre-emp- tor before he obtains a patent, and before he has paid the price, not with his interest by relation after the patent is delivered. Even that inchoate interest is not a mere nullity. While it is not, in its imperfect condition, a perfect and vested right to the- land as against the United States, the supreme court pronounces it to be an existing right which the courts will protect against third persons who have no superior or equal claims. When are the claims of third persons, derived from other portions of the general system of legislation concerning the acquisition of private ownership in the public lands, superior or equal to the inchoate right of the pre-emptor? It seems to me that this ques- tion is carefully distinguished by the decisions above quoted, and excepted from their operation; that those decisions are con- fined to a special act of congress directly withdrawing specific portions of the public lands from the operation of such general legislation as the pre-emption laws, and do not touch upon the effect of the genei-al statutes dealing with the public lands, and prescribing the modes by which private titles or interests therein may be acquired. In Hutton v. Frisbie, a case which arose on the same facta. Chief Justice Sawyer, delivering the opinion of the court, said:* "Nor do we question the rule adopted in Chotard v. Pope^ and Lytle V. State, ^ to the effect that when a party is authorized by an act of congress generally to enter 'in any land-office,' etc., 'a quantity of land not exceeding,' etc., he must be limited in his- 1 58 Cal. 148. s 12 Wheat. 587. 237 Cal. 475, 485, 486. *i How. 333. LAW W. B. — 5 (65) § 41 LAW OP WATER BIGHTS. [Ch. 3 selection to lands subject to selection, and cannot take lands al- ready sold, or reserved from sale, or upon which a pre-emption, or some other right, has attached under a law which is still in force, and which covers and protects it. The rule is obviously sound. It cannot for a moment be supposed that congress, by such general acts, contemplated that the party should be author- ized to take land upon which other parties had already entered and taken steps to acquire it, and were diligently pursuing their rights under acts still in force with reference to that land, or that it intended in this general way to repeal such acts. The two acts in such j^ases are not necessarily inconsistent, and can be so construed in the mode adopted by the court as to stand to- gether; and in such cases it is obviously the duty of the court so to construe them. But such is not the case with the act we are now considering." Again: "The policy of the pre-emption laws was undoubtedly beneficent. They were intended to give those who were pioneers in the unsettled wilds of the public do- main the first right to purchase the unoccupied lands which they have had the courage and hardihood to settle, and it will always be oxir pleam'.re as well as duty to extend to all such the utmost protection justified by the laws of the land. But this beneficent pol- icy has no element in harmony with the principle that impelled men to rush in upon the improved possessions, and avail them- selves of the labor of their neighbors, under the condition of things connected with the Suscol rancho, [i. e., the grant to A.] The equities which lay at the foundation of the pre-emption pol- icy were, in this particular instance, not with those who entered upon the possessions of such of their neighbors as were honest purchasers; but they were all, and even equities of a much higher obligation, with the purchasers in good faith, who were not merely pioneers, but also parties who had paid for their lands, and long occupied and improved them, under the belief that they had a good title; and congress hastened to recognize (66) Ch. 3] APPROPBIATION OF WATERS. § 41 and give effect to those equities by passing the act in question." Again, the same able judge says: "The difference between this case and those of Chotard v. Pope and Lj'tle v. State, where the parties were entitled to select lands from a much larger portion of the public domain, is so obvious that argument can scarcely make it appear more plain. Where an act author- izes a part)' to enter any thousand acres of land he may select within specified exterior boundaries containing one hundred thousand acres, or in a whole state, and it happens that the government has already sold a given tract within said bounda- ries, or 'a pre-emption right in favor of another party has already attached to said particular tract under some prior law, it is not for a moment to be supposed that it was intended to permit an entry of the tract of land so sold, w upon which such prior right had already attached. But if he is authorized in express terms to enter the very same specific tract, and no other, before sold or upon which the pre-emption right had attached, there can be no doubt as to the intent to allow the entry of that specific tract, whether it was in the power of congress to give effect to that intent or not. And that is just the difference between the cases cited and the one under consideration." The opinion of Mr. Justice Clifford in Frisbie v. Whitney' contains explanatory and limiting language to the same general effect. It would seem that language could not be more plain and pointed than that of the foregoing extracts, to show that the decisions in Hutton v. Frisbie and Frisbie v. Whitney were confined to the operation of special legislation dealing with specified portions of the public domain, and had no reference whatever to the effect of the general statutes of congress forming parts of the same general system, nor to the conflicting rights of priority between two parties claiming under the different and 19 Wall. 187. (67) § 41 LAW OP WATER EIGHTS. [Ch. '6 co-existing provisions of these general statutes. The decision in the case of Western Pac. R. R. v. Tevis' was also based upon special legislation of exactly the same character. Where A. duly locates and settles upon a surveyed tract of the public land bordering upon a stream, and files his declara- tory statement in (say) 1874, duly completes the requirements of the statute and pays the price in 1877, and receives his pat- ent from the government in 1879; and B. duly posts and serves the notices of his appropriation of the water of the same stream in 1875, and proceeds with reasonable diligence to construct his dams, ditches, and other necessary works, which are not completed, however, so that he can begin the actual use of the water until 1880, — the appropriation of water by B., it is held, relates back to the time of his preliminary act of posting and giving notice in 1875, so that he is legally in the same posi- tion as though his actual use of the water had begun at that time; while it is said that the right of A. as a patentee shall only relate back to the time when he had paid up, in 1877. And thus, although A.'s initial step was made before any act whatever done by B., and his legal title was perfected by pat- ent before B.'s works were completed, and the actual use of the water began, yet A.'s rights as a riparian owner on the stream are said to be subsequent to those of B. to appropriate perhaps the entire waters of the stream. In my opinion, there is noth- ing in the decisions of the United States supreme court, nor in those of the California supreme court, prior to the case of Farley v. Spring Valley M. & I. Co., which necessarily establishes or tends to establish for the pre-emptor, or other grantee of the United States, a rule so different from that which governs the appropriator of water; and there is nothing in the general stat- utes of congress, nor in the policy which underlies the system, 141 Cal. 489. (68) Ch. 3] APPHOPRIATION OF WATERS. § 42 which requires such a discrimination between the two classes of claimants. The notices posted and given bj' the appropria- tor of water clearly do not confer on him any higher equity as a bona fide purchaser; since the actual and continuous posses- sion required of the pre-emptor is a notice of his prior claim, — a notice of the very highest character. I have dwelt upon this particular topic at such length because the subject seemed to be one of practical importance; the discrimination against the pre- emptor or other private grantee of the United States seemed to be inequitable; the decisions bearing upon it are very few; and possibly the court may be called upon to re-examine the ques- tion in some subsequent case. § 42. Later decisions estaljlishing doctrine of re- lation. [It does not appear that the supreme court of California has yet been called upon to reconsider its decision that the doctrine of relation cannot be applied to carry the rights of a pre-emp- tioner or homesteader back to the date of his original entry or settlement, as against an intervening appropriator of a water- course flowing through or along the land. And so far as re- gards the judicial doctrine of that particular state, the question must be regarded as standing in the same condition as when our learned author wrote the preceding sections. In the state of Washington, also, the courts, following the lead of the Cali- fornia tribunals, have held that the right to appropriate waters on the public domain continues until the United States has made primary disposal of the soil; that the government cannot be said to have disposed of land under the pre-emption laws until final proof and payment, and not under the homestead law until final proof of the homesteader which entitles him to a patent; and hence that the doctrine of relation cannot carry the rights of the pre-emptioner or homesteader back to the time (69) § 42 LAW OF WATER RIGHTS. [Ch. 3 of his first filing or settlement, so as to cut out the rights of an intervening appropriator of the water.' But these decisions can no longer be regarded as of force. For the supreme court of the United States has now fully and fairly decided the question, and in a directly contrary manner, and its judgment must of course be accepted as authoritative and conclusive. That court now holds that the filing of a home- stead entry of a tract of land across which a stream of water runs in its natural channel, with no prior or existing right or claim of right to divert it therefrom, confers a right to have the stream continue to run in that channel without diversion; and this right, when completed by full compliance with the require- ments of the statutes on the part of the settler, and the issue of a patent to him, relates hack to the date of the filing, and cuts off intervening adverse claims to the water.^ This decision has been followed and applied in Oregon.^ And indeed, in that state, it had already been held, in accordance with what was stated to be the ruling of the United States land department, that a settlement made by a homestead claimant upon the pub- lic lands of the United States, and compliance with the act of congress on the subject, segregated the same from the public lands and cut off intervening claims.* Although the decisions to which we have here referred are confined, on the particular facts, to the rights of claimants un- der the homestead law, there are even stronger reasons for ap- plying the doctrine of relation to the rights of pre-emption claimants. That it is the policy and intention of the general government to assimilate the rights acquired under these two iTenem Ditch Co. v. Thorpe, 1 Sup. Ct. Rep. 850, affirming s. c. 6 Wash. St. 566, 30 Pac. Rep. 588; Dak. 71, 50 N. W. Rep. -186. Ellis V. Pomeroy Imp. Co., 1 Wash. 'Faull v. Cooke, 19 Oreg. 455, St. 573, 21 Pac. Rep. 37. 26 Pac. Rep. 662. 2 Sturr V. Beck, 133 U. S. 541, 10 ^ Larsen v. Navigation Co., 19 Oreg. 240, 23 Pac. Rep. 974. (70; Ch. 3] APPHOPBIATION OP WATEKS. § 43 eysteras of laws is fully demonstrated by the act of congress which provides that the right of a settler claiming under the homestead law ''shall relate back to the date of settlement, the same as if he settled under the pre-emption laws."'] § 43. Kipariau rights under Mexican grants. What are the rights of a private riparian proprietor, who ob- tains his title by a grant from the Mexican government, guaran- tied and protected by the treaty between the United States and Mexico, and finally confirmed to him in the proceedings author- ized by congress for the purpose of carrying into effect the stip- ulations of that treaty? We see no reason why the riparian rights of such a riparian proprietor should differ in any respect from those held by any other riparian proprietor who derives his title immediately or mediately from the United States by patent or otherwise. All the doctrines and rules of the law which define and regulate the water rights of private riparian proprietors upon iv.navigable streams at least, even if not upon navigable streams, belong entirely and exclusively to the jurisdic- tion and domain of state legislation. Congress has no power to interfere directly or indirectly with matters of this kind; any at- tempt of congress to control them by legislation would be wholly nugatory. The stipulations of the treaty with Mexico simply referred to, operated upon, and protected the titles of those pri- vate proprietors who held tracts of land, within the territory ceded to the United States, under grants from the Mexican gov- ernment. These stipulations say in substance that such actual and bona fide grantees shall continue to be owners of their re- spective tracts, although the territory has passed into the domain of the United States; and that their right of ownership shall be respected by the United States government. 1 Act of March 14, 1880, o. 89, § 3; 21 U. S. St. at L. 141. (71) § 43 LAW OF WATER RIGHTS. [Ch. 3 The legislation of congress, and the judicial proceedings in- stituted under it, were intended to carry into effect these treaty stipulations, and they operate solely upon the titles, by declar- ing, confirming, and establishing the private ownership of the grantees as derived from the Mexican government, the original sovereign proprietor. The treaty, and the legislation of congress which carries it into effect, are of course binding, not only upon the federal government, but also upon the governments of all the states which have been established within the ceded terri- tory, and within whose boundaries the granted lands are situ- ated. The treaty with Mexico, while thus securing to the pri- vate proprietors the title and ownership of the tracts of land which had been granted to them by Mexico, did not attempt to pro- vide that this ownership should be governed and controlled by the rules of the Mexican law, nor by any other rules of law dif- ferent from those which would govern and control all private ownership of land within the territorial jurisdiction of the United States, or within the jurisdiction of any particular states. Even if the treaty with Mexico had expressly stipulated, not only that the titles of private persons holding under Mexican grants should be protected and should continue to be valid and perfect, but also that the ownership of such lands, when situated on the banks of streams, should be governed and regulated by the rules of the Mexican law concerning water and other riparian rights, such a stipulation would be completely inoperative and void as soon as the territory embracing these granted lands was organ- ized into a state; the whole subject-matter would belong exclu- sively to the jurisdiction of the state; the rules concerning ripa- rian rights would fall exclusively within the domain of the state municipal law, — whether that law adopted the common-law doc- trines, or promulgated other rules in the form of statutes.* It 1 This principle, and the author!- by Sawyer, J., in Woodruff v. ties which support it, are discussed North Bloomfleld, etc., Co., 9 (72) Ch. 3] APPROPRIATION OF -WATERS. § 44 seems plain, therefore, that the riparian rights of a private pro- prietor holding by a Mexican grant duly confirmed are exactly the same, governed by the same rules, as those held and enjoyed by any other private riparian proprietor within the state. The source of his title can make no difference as to the rights of prop- erty which accompany and flow from his ownership. The ques- tion of priority between such a grantee and a person who has appropriated the waters of the stream before his grant was con- firmed by the United States authorities, must depend, we ap- prehend, upon the legal effect. given to the confirmation. Does the confirmation relate back to the date of the treaty, so that the grantee is regarded as deriving his title directly and holding it continuously from the Mexican government; or does the con- firmation operate only from its own date, so that the grantee is regarded as deriving and holding his title immediately and di- rectly from the United States, in pursuance of an executory agreement made with Mexico? This question we shall not ex- amine. § 44. Summary of conclusions. The conclusions from the foregoing discussion may be briefly summed up as follows: While a natural stream or lake is situ- ated on the public lands of the United States, within the limits of a state, a person may, under the customs and laws of a state, and the legislation of congress, acquire by prior appropriation the right to use the waters thereof for mining, agricultural, and other beneficial purposes, and to construct and maintain ditches and reservoirs over and upon the public land; which right, al- though merely possessory, is good against all other private per- ■Sawy. 441, s. c. 18 Fed. Bep. 801. Hagar v. Reclamation Diat. No. The same principle is discussed by 108, 111 U. S. 701, s. c. 4 Sup. Ct. Mr. Justice Field in delivering the Kep. 663. •opinion of the court in the case of (73) § 44 LAW OF WATER EIGHTS. [Ch. S' sons, and is made by statute good as against the United Statea and its subsequent grantees. When such a right has been acquired in this manner by prior appropriation, subsequent grantees of tracts of the public do- main bordering on the same stream or lake — pre-emptors, home- stead settlers, and all other purchasers — take and hold their- titles subject thereto, and the patents issued to them by the United States government must expressly except or reserve all such "existing rights" so acquired by other persons in pursuance of the customs and laws of the state. The right thus excepted or reserved in a patent must, of course, be an "existing right" al- ready acquired by some other person. When a grantee of the United States obtains title to a tract of the public land border- ing upon a stream, the waters of which have not hitherto been appropriated, his patent is not subject to any possible appropri- ation which may be subsequently made by another party. ^ These rules, founded upon local customs and laws, and rati- fied by congressional legislation, are confined in their operation to the public domain of the United States.^ If tracts of public- land bordering on a stream, and situated within a state, have come- into the private ownership of purchasers or grantees from the 1 [When there is nothing in the 2 gee Lobdell v. Simpson, 2 ISTev. record to show the contrary, it 274; Lobdell v. Hall, 3 Nev. 507;. must be presumed that the lands Ophir Silver M. Co. v. Carpenter, through which the stream flowed 4 Nev. 534; Robinson v. Imperial were public lands, and had not Silver M. Co., 5 Nev. 44; Covington! passed into private ownership at v. Becker, Id. 281; Hobart v. Ford, the time of the appropriation. Ly- 6 Nev. 77; Vansickle v. Haines, 7' tie Creek Water Co. v. Perdew, Nev. 249; Barnes v. Sabron, 10' (Cal.) 2 Pac. Rep. 732. Parties be- Nev. 217; Shoemaker v. Hatch, 13 Ing in the actual possession and ' Nev. 261; Dick v. Caldwell, 14- use of a water privilege have a Nev. 167; Strait v. Bro-wn, 16 Nev. good prima facie right to it; but, 317; Cramer v. Randall, 2 Utah, when other parties prove a prior 248; Munro v. Ivie, Id. 535; Fabian- possession and use, they overcome v. Collins, 3 Mont. 215; Burkley v. this prma/act« case. Humphreys Tieleke, 2 Mont. 59; Caruthers v. V. McCall, 9 Cal. 59.] Pemberton, 1 Mont. Ill; and other cases previously cited. (74) Ch. 3] APPROPRIATION OF WATERS. § 44 United States before any appropriation has been made of the water, their rights as riparian proprietors must be determined and regulated wholly by the municipal law of the state concern- ing that subject-matter, over which congress has no power what- ever to legislate. Whenever a private person, as pre-emptor, homestead settler, or other purchaser or grantee, has acquired title from the United States to a tract of the public land bordering upon a stream or lake within a state, any subsequent appropriation of the waters thereof by another party is subject to his prior rights as a ripa- rian proprietor, whatever those rights may be under the mu- nicipal law of the state; and, as against such subsequent appro- priator, his rights as riparian proprietor are complete, at least from the time when he has duly performed all of the statutory requirements, including payment of the purchase price, if nec- essary, so as to entitle him to a patent, and not merely from the time of issuing a patent; even if his rights do not relate back to the initiative act of the continuous proceeding by which his title is finally perfected. (75) § 46 LAW OF WATER RIGHTS. [Ch. 4 CHAPTER IV. HOW AN APPBOPRIATION IS EFFECTED. § 45. Successive appropriations. 46. Doctrines whioli control the appropriation. 47. The methods by whicli an appropriation is effected. 48. Intent to apply water to beneficial use. 49. There must be actual diversion. 50. There must be actual use of water. 51. Physical acts constituting appropriation. 52. Notice of intent to appropriate. 53. Reasonable diligence in completion of works. 54. When appropriation is complete. 55. Appropriation relates back to first step. 56. Effect of failure to comply with statutory rules. § 45. Successive appropriations. Having thus described the appropriation of waters from nat- ural streams and lakes on the public domain of the United States, I shall proceed to consider the special doctrines which regulate such appropriation, and define the rights of appropri- ators. It may be stated as a general proposition, in this con- nection, that, when there have been several successive appro- priations of water from the same stream, each appropriator stands in the position and has the rights of a jjrior appropriator towards all others whose rights have been acquired subsequently to his own. The term "prior appropriator" does not, therefore, al- ways mean the person who is absolutely the first to obtain an exclusive right to the water of a particular stream. § 46. Doctrines which control the appropriation. The most important practical doctrines embraced under this head may be regarded as having been definitely settled by nu- merous decisions; and they are substantially the same in all the Pacific states and territories where this theory of a prior exclu- (76) Ch. 4J HOW AN APPEOPRIATION IS EFFECTED. § 47 sive appropriation of water prevails. The various topics to which these doctrines relate, and which require any discussion, are the following: The methods by which an appropriation is effected; the time from which the rights under an appropria- tion become vested; the property and other rights in general of the prior appropriator; the amount of water embraced in an ap- propriation, or the extent of the appropriation; subsequent appropriation, and the relations between successive appropria- tors of the same stream; abandonment of a prior appropriation. I purpose to treat of these matters in the order here given. § 47. The methods by which an appropriation is effected. It should be carefully observed that the water right now un- der discussion may be, in its essential nature, merely a possess- ory right. Its acquisition and maintenance are not essential incidents of, and do not necessarily depend upon, a legal title to any portion of the public lands held by the appropriator un- der a patent or other conveyance from the government.' Nor is it necessary that the appropriator should have located or taken possession of any tract or parcel of the public domain bordering upon the stream or lake from which the appropriation is made. The tract or claim which he possesses, and on or at which the water is actually used, may be at a distance from such stream or • ["One who locates upon public him as against trespassers. If he lands with a view of appropriating admits, however, that he is not the them to his own use becomes the owner of the soil, and the fact is absolute owner thereof as against established that he acquired his every one but the government, and rights subsequent to those of oth- is entitled to all the privileges and era, then, as both rest for their incidents which appertain to the foundation upon appropriation, soil, subject to the single excep- the subsequent locator must take tion of rights antecedently ac- subject to the rights of the former, quired. He may admit that he is tindthe rale, qui prior est in tempore not the owner in fee, but his pos- potior eat in jure, must apply. " gessicn will be suiBcient to protect Crandall v. Woods, 8 Cal. 143.] (77) § 48 LAW OF WATER EIGHTS. [Ch. 4 lake, and the very object of his appropriation may be to conduct the water from the stream , through a ditch or canal across the in- tervening public lands, to the tract which he possesses as a mining claim, a farm, or a mill; or even to sell and dispose of the water, thus conducted through the canal, to other parties, who use it for like purposes on their own "claims'' or tracts of land. The true "riparian rights" belonging to "riparian proprietors," by virttie of their actual ownership of lands bordering upon a stream , will be considered hereafter; they are foreign to the present dis- § 48. Intent to apply -water to beneficial use. In order to make a valid appropriation of waters upon the public domain, and to obtain an exclusive right to the water thereby, the fundamental doctrine is well settled that the ap- propriation must be made with a bona fide present design or in- tention of applying the water to some irrimediate useful or ben- eficial purpose, or in present 6onaj?de contemplation of a future application of it to such a purpose, by the parties thus appro- priating or claiming. The purpose may be mining, milling, manufacturing, irrigating, agricultural, horticultural, domestic, or otherwise; but there must be some such actual, •positive, ben- eficial purpose, existing at the time, or contemplated in the fut- ure, as the object for which the water is to be utilized; other- wise no prior and exclusive right to the water can be acquired, no matter how elaborate and complete may be the physical structures by which the attempted appropriation is effected.^ 1 Weaver v. Eureka Lake Co., 15 Gibson v. Puchta, 33 Cal. 310; Dick Cal. 271; Maeris v. Bicknell, 7 Cal. v. Caldwell, 14 Nev. 167; Dick v. 261; Davis v. Gale, 33 Cal. 26; Mc- Bird, Id. 161; Cramer v. Eandall, Kinney v. Smith, 31 Cal. 374; Ort- 3 Utah, 348; Munro v. Ivie, Id. 535- man v. Dixon, 13 Cal. 33; McDon- Woolman v. Garringer, 1 Mont, aid V. Bear River, etc., Co., Id. 820; 535; Simmons v. Winters, 31 Oreg. McDonald v. Askew, 29 Cal. 300; 85, 27 Pac. Rep. 7. (78) Ch. 4] HOW AN APPROPRIATION IS EFFECTED. § 49 Under this rule, an appropriation for mere purposes of spec- ulation is nugatory.i [But a' canal company, diverting the waters of a natural stream to a beneficial use, becomes the proprietor thereof, and, as such, may sell and deliver it for irrigating purposes, and that right can be defeated only by a failure of application of the water to a beneficial use. Wyatt t. Larimer & Weld Irrigation Co., 1 Colo. App. 480, 29 Pac. Rep. 906.] And a diversion of water solely for the object of drainage, without any bona fide intention of its present or future use for other beneficial purposes, does not constitute a valid appropriation.^ Thus, in the first of the cases cited below, the grantors of the plaintiffs had constructed a ditch for the purpose of drain- age alone, with no intention of appropriating lue water to any other use, and the defendants had subsequently made a ditch leading from the same stream wi th the intent of ufiing the water thus diverted for a beneficial object. The court held that the defeiulanLs, although later in (iiiie, had gained a priority of appropriation over the plaintiffs' grantors, and over all persons holding under them. § 49. There must be actual diversion. Again, since no exclusive property is or can be acquired in the water while still remaining or flowing in its natural condition, distinct and separate from the property in the land over which it runs,' it follows, as a second indispensable requisite of the appropriation under consideration, that there must be an actual diversion of the water from its natural channel or bed, by means of a ditch, canal, reservoir, or other structure.* For this pur- 1 Weaver v. Eureka Lake Co., 57 Cal. 44; Kidd v. Laird, 15 Cal. 15 Cal. 271. 162. 2Maerig v. Bicknell, 7 Cal. 261; iDalton v. Bowker, 8 Nev. 190; McKinney v. Smith, 21 Cal. 374; Riverside Water Co. v. Gage, 89 Thomas v. Guiraud, 6 Colo. 530. Cal. 410, 26 PaC. Rep. 889. s Parks Canal & M. Co. v. Hoyt, (79) § 50 LAW OF WATER BIGHTS. [Cll. 4 pose, however, a dry ravine or gulch may be used as a part of a ditch, with the same effect as though the structure were wholly artificial;' and a "flume'' is in all legal respects the same as a ditch or canal. ^ Not only may the appropriator use another natural ravine as a part of his ditch for conducting the water which has been diverted; he may even use a lower portion of the same natural channel from which the water was taken, for a like purpose. If, after diverting and using the water, the ap- propriator returns it into its original natural channel, without any intent to "recapture" it, then, as will be shown hereafter, he abandons it. But after duly diverting the water at some point, he may turn it back into the natural channel of the stream at a lower point, with the design of using a certain por- tion of such channel as a ditch, and of "recapturing" the water, and may then divert the same quantity originally appropriated at a point still lower down the stream.^ § 50. There must be actual use of ■water. [One of the essential elements of a valid appropriation of wa- ter is the actual application of it to some useful industry. This must follow and consummate the intention. To acquire a right to water from the diversion thereof, one must, within a reason- able time, employ the same in the business for which the ap- propriation is made. What shall constitute such reasonable time is a question of fact, (as will appear more fully hereafter,) depending upon the circumstances connected with each partic- » Hoffman v. Stone, 7 Cal. 46. dug other ditches cutting off the [Where plaintiff built a ditch upon supply. Keeney v. Carillo, 3 K. public and unoccupied land, which M. 480.] conducted water to a point in a ^jjujaon v. Jackson Water Co., canyon, where it disappeared un- 13 Cal. 543. der ground, coming to the surface ^ Richardson v. Kier, 37 Cal. 363. again at the mouth of the canyon, Butte Canal, etc., Co. v. Vaughn, 7i,eld, that he was entitled to be pro- U Cal. 143. tected as against defendant, who (80) Ch. 4] HOW AN APPROPEIATION IS EFFECTED. § 50 ular case.i It has recently been ruled by the supreme court of Idaho, (Conant v. Jones, 32 Pac. Rep. 250,) that appropriators of water for irrigation purposes, after con- ducting water to the point of intended use, have a reasonable- time in which to apply it to the use intended. They may- add to the acreage of cultivated land from year to year^ and make application of water thereto for irrigation as their necessities demand, or as their abilities may permit, until they have put to a beneficial use the entire amount, of water at first diverted by them; provided that that amount is needed for the reasonable irrigation of the land. But a priority of right to the use of the water of a natural stream for the purpose of irrigation cannot be acquired merely by diversion of the water, but there must also be am application of the same to the soil; and priorities of rights, are not to be determined from the capacities of the ditches, even though promises are made to apply all the diverted water to the soil within a reasonable time.^ And in accord- ance with this principle it is held that a complaint for an unlawful interference with plaintiff's water rights, which alleges priority of appropriation, but without alleging facts showing a diversion and an application to a beneficial use, states merely a legal conclusion and is demurrable.* And 1 Sieber v. Frink, 7 Colo. 148, s. C. construction which would vary- 2 Pac. Rep. 901. [In Colorado, the this rule. Coffin v. Left-Hand first appropriator of water from a Ditch Co., 6 Colo. 443; Thomas v. natural stream for a beneficial pur- Guiraud, Id. 530.] pose has a right to the extent of ^port Morgan Land Co. v. South his appropriation, (subject only to Platte Ditch Co., (Colo.) 30 Pac. the qualifications contained in the Rep. 1082; Combs v. Agricultural Colorado constitution,) paramount Ditch Co., (Colo.)28 Pac. Rep. 966. to the right acquired by a subse- 'Farmers' High Line Canal Co. quent patentee of the land. This v. Southworth, 13 Colo. Ill, 21 right is not dependent upon the Pac. Rep. 1028. See, also, Pere- locus of the application of the wa- goy v. McKissick, 79 Cal. 573, 21. ter to the beneficial use. Nothing Pac. Rep. 967. in the statutes is susceptible of a LAW W. B. — 6 (81) § 51 LAW OF WATER RIGHTS. [Ch. 4 it is also held that an excessive diversion of water cannot be regarded as a diversion of it to a beneficial use.^ § 51. Physical acts constituting appropriation. The fundamental doctrine is well settled that, in order to con- stitute a valid appropriation of the kind under consideration, two distinct elements are absolutely essential, — the intent to appropriate water from a particular stream, and physical acts by which this intent is carried into effect, without abandon- ment, until the appropriation is completed. Either without the other is insufficient. How this intent may be signified, and what physical acts may be sufficient to carry it into opera- tion, must depend somewhat upon the natural condition and situation of the locality, and other circumstances of the case. "In appropriating unclaimed water on the public land, only such acts are necessary, and such evidence of the appropriation required, as the nature of the case and the face of the country will admit, and are under the circumstances and at the time practicable. For example, surveys, notices, blazing of trees, followed by actual work and labor, without abandonment, will in every case, where the work is completed, give title to the water against subsequent claimants."^ It follows, therefore, that a notice alone of an intent to divert or to use the water of iComba v. Agricultural Ditch water to the beneficial use; the Co., (Colo.) 38 Pac. Rep. 966. method employed is immaterial. ^Kimball v. Gearhart, 12 Cal. 37; Thomas v. Guiraud, 6 Colo. 530. Osgood V. El Dorado, etc., Co., 56 The erection of a dam across anat- Cal. 571; Thompson v. Lee, 8 Cal. ural water-course is an actual ap- ■275; Kelly v. Natoma W. Co., 6 propriation of the water at that ■Cal. 107; Weaver v. Eureka Lake point, but not below it, although Co., 15 Cal. 271; Davis v. Gale, 33 the water flowing over the dam is Oal. 36; Robinson v. Imperial Sil- brought back into the water-course ver M. Co., 5 Nev. 44; Columbia by means of canals made by the M. Co. v. Holter, 1 Mont. 396. owners of the dam. Kelly v. Na- [The true test of appropriatibn is toma "Water Co., 6 Cal. 105.] the successful application of the (82) Ch. 4] HOW AN APPBOPEIATION IS EFFECTED. § 52 a specified stream will not of itself constitute an appropriation thereof;' nor, on the other hand, will the mere act of com- mencing or digging a ditch, even with the intent to appropri- ate, be sufficient of itself to give an exclusive right to the water of a stream, without some notice or publication of the intent.^ "Public land is appropriated by one character of act; water, by another. The digging of a ditch on public land is not an ap- propriation of land sufficient for a mill-site, nor is the mere ap- propriation of a mill-site an appropriation of water for purposes of milling."^ § 52. Notice of intent to appropriate. While a notice of the intent to appropriate is essential, the mode of giving it depends upon the circumstances of the case, the nature and situation of the stream, and of the adjacent ■country. The usual mode seems to be by posting written or printed notices on or near the margin of the stream or lake at the point where the diversion is to be made, and perhaps at other points along the projected line of the canal.* No particu- lar form of notice is prescribed. All that is required is that its terms shall be sufficient to put a reasonably prudent man upon inquiry ;° and to this end its language must be liberally ■construed.* If an appropriator, after duly posting a notice, 1 Thompson v. Lee, 8 Cal. 375: Mont. 43.5, 28 Pac. Rep. 450, it was Robinson V. Imperial Silver M. Co., held that a notice that plaintiffs 5 Nev. 44; Columbia M. Co. v. Hoi- have a legal right to the use of, and ter, 1 Mont. 296. that they claim, 2500 inches of the 2 Kimball v. Gearhart, 13 Cal. 37. waters of Boulder and Lowland ^Robinson v. Imperial Silver M. creeks for irrigating and other Co., 5 Nev. 44. purposes, and that the special pur- 4 See Osgood v. El Dorado, etc., pose for which the "water is to be ■Co., 56 Cal. 571. used and the place of intended use 6 Kimball V. Gearhart, 12 Cal. 27. is the fluming of wood, milling, * Osgood V. El Dorado, etc., Co., and other useful purposes," and 56 Cal. 571, 579. [In the case of that the water is diverted from Floyd V. Boulder Flume Co., 11 these streams by means of a ditch (83) § 53 LAW OF WATER EIGHTS. [Ch. 4 and while prosecuting his work with diligence, posts a second -notice of appropriation of the same water, he does not thereby abandon his claim under the former notice.' After a notice of the intention to appropriate the water is given, the works by which the appropriation is to be effected must be actually com- menced, and must then be prosecuted with reasonable diligence unto completion, in order to perfect the exclusive right to the use of the water which is obtained through a valid appropria- tion.^ § 53. Beasonable diligence in completion of "works. Whether the work has been begun and prosecuted with due and reasonable .diligence is a question of fact for the jury, and their verdict will, in general, be conclusive.^ The due and reasonable diligence in constructing the works wiU depend mainly upon the physical circumstances of the locality, upon the nature and condition of the region through which the ditch runs, its accessibility, the length of the season in which work is practicable, the difficulty of procuring adequate supply of labor, the extent and magnitude of the works themselves, and the like, and not upon the personal circumstances — especially the pecun- iary circumstances — of the parties themselves.* In Ophir Sil- ver M. Co. V. Carpenter it was held that "diligence in the pros- and flume which carry 2500 inches Co., 15 Cal. 371; Ophir Silver M. ot water from the streams, and Co. v. Carpenter, 4 Nev. 534; Wool- that the water was appropriated man v. Garringer, 1 Mont. 535. on a date specified, sufficiently ^ Osgood v. El Dorado, etc., Co., shows by what means the waters 56 Cal. 571, 581; Weaver v. Eureka of Boulder creek were appropri- Lake Co., 15 Cal. 271. ated, the quantity and purpose of * Ophir Silver M. Co. v. Carpen- such diversion, and the date of the ter, 4 Nev. 534; Weaver v. Eureka appropriation thereof.] Lake Co., 15 Cal. 271; Parke v. 1 Osgood V. El Dorado, etc., Co., Kilham, 8 Cal. 77; Kimball v. Gear- 56 Cal. 571. 579. hart, 13 Cal. 37; Osgood v. El Do- 2 Osgood V. El Dorado, etc., Co., rado. etc., Co., 56 Cal. 571. See, 56 Cal. 571, 581; Parke v. Kilham, also. Dyke v. Caldwell, (Ariz.) 18 8 Cal. 77; Kimball v. Gearhart, 13 Pac. Rep. 376. Cal. 37; Weaver v. Eureka Lake (84) Ch. 4] HOW AN APPROPRIATION IS EFFECTED. § 53 ecution of work, such as the appropriation of running water by constructing a ditch for its use, does not require unusual or ex- traordinary efforts, but only such constancy and steadiness of purpose or of labor as is usual with men engaged in like enter- prises, who desire a speedy accomplishment of their designs, — such assiduity in its prosecution as will manifest a bona fide in- tention to complete it within a reasonable time. In the con- sideration whether reasonable diligence has been exercised in the construction of a ditch necessary to the appropriation of water, requiring the outlay of much capital and the labor of many men, the illness of the appropriator and his want of pe- cuniary means to prosecute the work, being matters incident to the person and not to the enterprise, are not such circumstances as will excuse great delay in the work.'" In Kimball v. Gearhart the court held: "On the question of due and reasonable dili- gence in constructing the works, the jury may take into consid- eration the circumstances surrounding the parties at the date of the appropriation, such as the nature and climate of the country, and the difficulty of procuring labor and materials. * * * When parties begin the construction of a ditch, who have not at the time the pecuniary means to complete it in a reasonable time, and they project the work and claim the water with full knowledge of their own lack of means, they cannot rely on such want of means as an excuse for delay, or for not prosecuting the work to completion with due diligence." In Parke v. Kilham, 8 Cal. 77, it was also held that "when A. stands by and sees B. constructing a ditch at great expense, for the purpose of appro- priating certain water to his own use, and does not inforni B. ' [In this case it was held that priation of running water, was not the doing of five or six days' work such diligence in prosecuting the durjng.a period of sixteen months, worli as would give the person do- and only three months' labor dur- ing it a superior right to the use of ing a period of two anfJa.half the water. Ophir Silver M. Co, v. years, in order to obtain an appro- Carpenter, 4 Nev. 534.] (85) § 54 LAW OF WATER EIGHTS. [Ch. 4 of his own prior claim to such water, A. and his vendees are thereby estopped from afterwards setting up or asserting such claim, even though it was originally the prior one." § 54. When appropriation is complete. The appropriation does not become perfect and final until the works are completed, so that the actual use of the water has be- gun, or, at least, so that its actual use can be commenced. Al- though, as will be shown hereafter, if the works are constructed with due diligence, the appropriation relates back to the date of the initial step, during the process of their construction, in the interval between their commencement and their completion, the appropriator acquires no vested, exclusive right to the wa- ter of the stream, and can maintain no action against other per- sons for their use or diversion of the water. ^ Such right of ac- tion only arises when the works and the appropriation are com- pleted; although, on the question of priority between the ap- propriator and other claimants, his appropriation then relates back to the time of his giving notice. In Nevada Co. , etc. , Co. v. Kidd^ these conclusions were fully established: "A court of equity will not restrain the diversion of water until the plain- tiff is in a condition to use it. While the plaintiff's dam and ditch are in the process of construction, but are not yet ready to actually appropriate or use the water, the use of the water by other persons causes no injury to the plaintiff, and gives to him no cause of action for relief, either equitable or legal. When a party claiming water is constructing a dam and ditch, until he is in a position to use the water, his right to it does not exist ^ [One who has by appropriation as is necessary to preserve the the prior right to the waters of a flume from injury during construc- stream, by actually commencing tion. Weaver v. Conger, 10 Cal. and prosecuting the construction 233.] of a ditch and flume, has certainly ^37 Cal. 283. a right to the use of so much water (86) Ch. 4] HOW AN APPROPRIATION IS EFFECTED. § 55 in such a sense as to enable him to maintain an action against another person, either to recover the water itself, or to recover damages for its diversion." The scope and effect of this decis- ion should not be misapprehended. The case arose from an at- tempted or inchoate appropriation of the water of a stream on the public domain, — an appropriation of the kind sanctioned by congress and now under consideration. Although the lan- guage in some portions of the opinion is quite general, yet it should, of course, be confined to and limited by the facts of the case before the court. The rule adopted by the court is plainly confined to appropriators of water on the public lands of the United States, under the customs and laws of the state as recog- nized by the congressional legislation; and it has no reference whatever to private owners who have obtained titles to lands on the banks of streams, nor to the "riparian rights" of such pro- prietors. The court clearly had no intention of holding that owners of lands bordering on a stream can maintain no action against other persons for an infringement of their "riparian rights," unless they have made an actual appropriation or use of the water bj' means of a completed dam, ditch, or other structure. Such a ruling would be in direct conflict with nu- merous dicta and decisions by the same court. § 55. Appropriation relates back to first step. It has been shown that an appropriation does not become final and perfect until the works, by which the water is diverted so as to be actually used, are completed. When, however, the right has thus been perfected, the doctrine of relation may oper- ate and determine the question of priority between the appro- priator and other opposing claimants to the waters of the same stream. If a notice of the intention to appropriate was prop- erly given, and the work of constructing the dam, ditch, reser- voir, or other necessary instrumentalities of the diversion was (87) § 55 LAW OP WATER EIGHTS. [Ch. 4 begun within a reasonable time, and was prosecuted with due and reasonable diligence until their completion, then the exclu- sive right thus acquired by the perfected appropriation will re- late back at least to the time of commencing the work, even if not to the time of giving the notice. If, however, the work was not prosecuted to completion with due and reasonable dili- gence, — in other words, if there was unreasonable delay in its prosecution, — the right of appropriation accrues and dates only from the time when the works were finally completed, and the diversion of the water actually began.' Both branches of the rule are concisely and clearly stated in the case of Ophir Silver M. Co. V. Carpenter: "In the appropriation of running water for the purpose of acquiring a right thereto, if any work is nec- essary to be done to complete the appropriation, the law gives a reasonable time within which to do such work; and protects the rights during such time by relation to the time when the first step zoas taken. Where the work necessary to complete an appropria- tion of running water is not prosecuted with diligence, the right to the use of the water does not relate back to the time when the first step was taken to secure it, but dates from the time when the work is completed or the appropriation is fully perfected." ^Osgood V. El Dorado, etc., Co., tice. The notice is the essential, 56 Cal. 571; Maeris v. Bicknell, 7 initial step in one entire continu- €al. 261; Parke v. Kilham, 8 Cal. ous proceeding, and the due dili- 77; Kimball v. Gearhart, 13 Cal. gence must be used from the date ■27; Ophir Silver M. Co. V. Carpen- of giving the notice. Is it possible ter, 4 Nev. 534; Woolman v. Gar- that the rights of another claimant ringer, 1 Mont. 535; Sieber v. could intervene between the date Prink, 7 Colo. 148, s. c. 3 Pac. of the first appropriator's notice Kep. 901; Irwin v. Strait, 18 Nev. and the time when his work is act- -436, s. c. 4 Pac. Rep. 1215. Al- ually begun, no matter how short though the cases generally say the interval? Yet this result must that the right relates back to the be possible if the right of appropri- time of commencing the work, there ation relates back only to the time would seem to be no reason why of actually beginning the work, the relation should not extend The supreme court uses the Ian- back to the time of giving the no- guage, "the first step was taken." (88) Ch. 4] HOW AN APPROPRIATION IS EFFECTED. § 56 What constitutes due diligence in constructing the works was discussed under the preceding head. This doctrine of rela- tion is practically important in determining the priority of the appropriation as against subsequent appropriators and claimants of water from the same stream, and as against subsequent gl0.nt- ees or purchasers of lands on its banks.* § 56. EflFect of failure to comply with statutory rules. [In some of the states, the method of appropriating water on the public lands, and of securing the benefit of such ap- propriation, is regulated by a complete system of statutory rules. Compliance with such regulations is of course essential to the perfection of the appropriator's rights, and it is only by a due observance of them that he can ac- quire exclusive rights to the water such as will be recog- nized and protected by the courts. But still, as these stat- utes are commonly framed, the appropriator, even if he omits in some particulars to follow the course which the law lays down for him, may become invested with rights which cannot be annulled by the act of any mere intruder, but will only yield to the claim of a person who, by a strict compliance with the law on his own account, has put him- self in a superior position. In California, for example, sec- tion 1415 of the Civil Code requires a person desiring to appropriate water to post a notice thereof, and section 1416 ^ [In Irwin v. Strait, 18 Nev. 436, or other appliance by means of s. 0. 4 Pac. Eep. 1215, It is said: which the appropriation is ef- "In determining the question of fected, provided the enterprise is the time when a right to water by prosecuted with reasonable dili- appropriation commences, the law gence. " This language would •does not restrict the appropriator seem to exclude the theory that to the date of his use of the water; the doctrine of relation would l)ut, applying the doctrine of rela- carry the appropriation back to tion, fixes it as of the time when he the time of giving notice.] begins the dam or ditch or flume, (89) § 56 LAW OF WATER BIGHTS. [Ch. 4 requires work to be commenced within sixty days after the notice is posted, and to be prosecuted diligently and unin- terruptedly to completion. Section 1418 provides that "by a compliance with the above rules, the claimant's right to the use of the water relates back to the time the notice was posted." Section 1419 is as follows: "A failure to comply with such rules deprives the claimant of the right to the use of the water as against a subsequent claimant who complies therewith." In view of these provisions,, the courts have decided that if a person makes an actual appropriation of the water, and diverts it to his land and applies it to a beneficial purpose, though without comply- ing with the statutory rules, he acquires a right to its use as against any subsequent claimant who does not show a compliEmce on his part with the provisions of the Code.* In other words, a failure to give the required notice, or oth- erwise to follow the statutory direction, will not invalidate the rights of the appropriator except as against one who- makes an appropriation on his own account and does com- ply with the statute in respect to the notice and the com- mencement and prosecution of his works. And this rule holds not only as between prior and subsequent appropri- ators of the water, but also as between an appropriator and a subsequent pre-emption claimant of the land through which the water flows. That is, the mere acquisition of title to such land will not of itself enable the owner to de- feat a claim of prior appropriation which was informally or defectively made. But to accomplish this result the owner must himself proceed, formally and regularly, tO' make an appropriation of the water which he desires tO' claim.* 1 De Necochea Y. Curtis, 80 Cal. 198; Burrows v. Burrows, 82 Cal. 897. 20 Pac. Rep. 563, 22 Pac. Rep. 564, 23 Pac. Rep. 146. 'De Necochea v. Curtis, supra,. C90) Ch. 4] HOW AN APPROPRIATION IS EFFECTED. § 5& A somewhat similar question arose in Montana, under the provisions of an act passed in 1885/ which enacted that persons who had theretofore acquired rights to use the water of any stream for irrigation should, within six months after the publication of the act, file, in the office of the recorder of the county in which the water right was situated, a declaration in writing stating the number of inches claimed, the purpose and place of intended use, the means of diversion, the date of appropriation, and the name of the appropriator, with a proviso that a failure to comply with these requirements should "in no wise work a forfeiture of such heretofore acquired rights, nor prevent any such claimant from establishing such rights in the courts." In a suit to enjoin the diversion of the water of a stream, where it was shown that the plaintiff actually appropriated the water in 1880 for irrigating his land, and had continuously used it for that purpose, it was held that his right was superior to that of defendant, whose appro- priation was made in 1889, although it was not until 1891 that plaintiff recorded his notice of appropriation.^] 1 Comp. St. Mont. § 1258. sSalazar v. Smart, (Mont.) 30 Pac. Rep. 676. (91) §"^7 LAW OF WATER BIGHTS. £Ch. 5 CHAPTER V. NATUEE AND EXTENT OE THE BIGHT ACQUIKED BY APPEOPBIATION. I. Natuhe of the Right Acquiked. § 57. Appropriator's right begins at head of his ditch. 58. Nature and extent of right depends on purpose of ap- propriation. 59. Property in ditches and canals. 60. Sale ot ditches and water rights. 61. Same; conveyance of water rights. 62. Water rights as appurtenant to land. 63. Tenancy in common. 64. Right to natural flow of water at head of ditch. 65. What are streams subject to appropriation. 66. Definition and characteristics of a water-course. 67. Percolating and subterraneous waters. 68. Right to exclusive use of water. 69. Appropriator may change place or manner of use. 70. Remedies for interference with these rights. 71. Injuries to ditches. 73. Remedies for unlawful diversion. 73. Same; action for unlawful diversion. 74. Same; action to quiet title. 75. Equitable jurisdiction. 76. Deterioration of quality of water. II. Liability fob Damages Caused by Ditches. § 77. Various kinds of injuries. 78. Damages caused by breaking or overflow. 79. Proper measure of care required. 80. Injuries from intentional trespasses. 81. Damages from mode of construction or operation of works. 82. Discharge of mining debris. 83. Eftects of hydraulic mining a public nuisance. 84. Impounding dams. III. Extent of the Right Acquired. g 85. Amount of water which the appropriator is entitled to use. 86. Carrying capacity of ditch. (92) Ch. 5] NATURE AND EXTENT OF EIGHT. § 57 III. Extent op the Right Acquiked— Continued. § 87. True capacitj' of ditch the proper measure. 88. Measurement of water. IV. Successive Appkopuiators. § 89. Rights of subsequent appropriator. 90. Successive appropriations. 91. Periodical appropriations. 92. Conditions under which subsequent appropriation may be effected. 93. Division of increase in stream. 94 Wrongful diversion of springs. 95. Right to tributaries of stream. V. Abandonment of Right. § 96. General doctrine of abandonment. 97. Methods of abandonment. 98. Abandonment by adverse user. VI. Review of the System. § 99. This system as a whole. 100. Defects of the system. 101. Presumption that stream was on public land I. Nature of the Right Acquired. § 57. Appropriator's right begins at head of his ditch. The doctrine is settled by repeated decisions that an appro- priator who has constructed a ditch, and is thereby diverting the water of a stream, or any portion of it, for some beneficial purpose, obtains and has no property whatever in the water of such stream while it is flowing in its natural channel or bed, and before it reaches the "head" or commencement of the ditch where the diversion begins. It has even been questioned whether his right to the water after diversion, and while flowing through the ditch, is really a "property," or only an exclusive right of use; but it is settled beyond all question that he has no prop- erty in the water of a natural stream, flowing in its natural cur- rent and channel, before the diversion into his ditch or other structure takes place. He can maintain no actions based upon (93) § 57 LAW OF WATER EIGHTS. [Ch. 5 such property. In fact, private property in the running waters of a natural stream, flowing in its natural channel, cannot be acquired, separate and distinct from a property in the land through and over which the stream runs.^ In Parks Canal & M. Co. V. Hoyt^ it was held that the water flowing in the stream above the head of the appropriator's ditch is realty, a part of the land, and does not become in any sense his property until it passes into his control in his ditch or other works. He can- not, therefore, maintain an action upon an implied contract, as for the price of personal property sold, against a person who has wrongfully diverted the water from the stream above the head of his ditch. His legal remedy for such an injury is by an ac- tion on the case to recover damages for the tort. In Los An- geles v. Baldwin,' although it appeared that the city had, by prescription or otherwise, acquired the right to appropriate and use the entire water of the Los Angeles river, yet it was held that the city did not own the corpus of the water while flowing in the river. In Kidd v. Laird* the general doctrine was laid down that running water, while flowing in its natural manner in the natural channel of a stream, cannot be made the subject of private ownership. A right may be acquired to the vise of the water in such a condition, which will be protected as though it were a right of property; but this right is not a special prop- erty in the water itself, — in the corpus of the flowing water. 1 Lower Kings Eiver W. Co. v. Donald v. Askew, 29 Cal. 200; Kidd Kings River, etc., Co., 60 Cal. 408; v. Laird, 15 Cal. 161; Ortman v. Parks Canal & M. Co. v. Hoyt, Dixon, 13 Cal. 33. 57 Cal. 44; City of Los Angeles v. 2 57 Cal. 44. Baldwin, 53 Cal. 469; Nevada Co., 853 Cal. 469. etc., Co. V. Kidd, 37 Cal. 282; Mo- *15 Cal. 161. (94) Ch. 5] NATURE AND EXTENT OF EIGHT. § 53 § 58. Nature and extent of right depends on pur- pose of appropriation. The nature and extent of the right acquired in the water after its diversion, while under the control of the appropriator, in his ditch, canal, reservoir, or other structure, must depend, I think, upon the purpose for which the appropriation is made. Where the appropriation ia made for purposes of irrigation, or agriculture, or municipal uses, or mining, or for sale to others to be used by them in any of these modes, where the use wholly or largely consists in the consumption, it would seem that the ap- propriator acquired a higher right, a right more nearly equiva- lent to absolute property or ownership, than in cases where the appropriation is made simply for the purpose of milling, or of propelling machinery of any kind. In the latter case the use is not a consumption, and the water may be returned to its nat- ural channel, after the use, without substantial diminution in quantity. Decisions concerning milling do not, therefore, in my opinion, furnish a necessary rule for other kinds and pur- poses of afppropriation. In Ortman v. Dixon* the court said, concerning one who had appropriated water for a mill : " Whether A., by erecting a mill and dam, becomes entitled to the water in specie, or whether he is entitled to anything more than the use of the water as a motive power; whether there may not be an appropriation of the mere use, as well as an appropriation of the water itself, the corpus of the water, for sale, — are ques- tions which need not be and are not now decided." In the later case of McDonald v. Askew* the court laid down a more defi- nite rule on this particular matter: "One who locates ona stream, and appropriates the water for a mill or other machinery, does not obtain a property in the water as such, but only a right to the US Cal. Sa «39 Cal. 200. (95) § 60 LAW OF WATER RIGHTS. [Ch. 5 momentum of its fall at that place, and to the flow of the water in its natural channel." § 59. Property in ditclies and canals. There is, of course, a plain distinction between the appropri- ator's right to the water which he diverts, and his right to the canal, ditch, reservoir, or other structure through which the water is conveyed. A ditch or canal itself, used for conveying the water to a mine or elsewhere, is not a mere easement or incor- poreal hereditament; it is land.^ If, therefore, a ditch runs from a stream to a mining "claim," and belongs to the owner of the mine, who uses a portion of its water in working his mining claim, it does not follow that the ditch is an appurtenance of the mining claim. And if the owner of a mining claim purchases a water ditch, "and the water rights thereto appertaining," this purchase does not of itself constitute the ditch and water rights appurtenances of the mining claim.* § 60. Sale of ditches and water rights. The exclusive right to divert and use the water of a stream acquired by appropriation, as well as the ditch or other struct- ure through which the diversion is effected, may be transferred and conveyed like other property or rights analogous to prop- erty. If a person having a possessory right to a parcel of land on a stream has erected a mill thereon, and has acquired a right to the water of the stream for his mill, a valid sale and convey- ance of such real property transfers the water right also to the vendee.' While a ditch or other similar structure for appropri- ating and diverting water may be sold, the sale and conveyance must be by a written instrument, — a deed, — as in the case of other real estate. A mere verbal sale or transfer would be nu- iReed v. Spicer, 27 Cal. 61. ^McDonald v. Bear River, etc., * Quirk v. Falk, 47 Cal. 453. Co., 13 Cal. 230. (96) Ch. 5] NATURE AND EXTENT OF BIGHT. § 60 gatory.* A person who enters into possession of such a ditch, under a mere verbal sale to himself, does not succeed to any rights of priority held by the vendor, so as to obtain the benefit of the vendor's prior appropriation; he must date his own ap- propriation, as against all other opposing claimants, from the time when he enters into possession.^ [But the supreme court of Oregon, in a recent decisioii, without denying the doctrine laid down in Smith v. O'Hara, holds that where one holding a possessory right to public land appropriates water for the purpose of irrigating it, the water right be- comes a part of the improvements, and may be sold ver- bally and transferred with the possessory right.^ It is there- fore necessary, as we understand this decision, to distin- guish between a sale of a ditch or canal as a distinct article of corporeal property and a sale of the same ditch, as an improvement on. land, and in connection with the possess- ory right to the land to which it belongs. In the latter case, the transfer of the ditch or the water right does not require any higher species of conveyance or assurance than that which wiU pass the vendor's interest in the land to which the ditch and water right are incidents. The Ore- gon court, in the case to which we refer, holds that when a settler appropriates water for the necessary irrigation of the land occupied by him, it becomes as much a part of his improvements as Ms buildings or fences, and can be sold and transferred with his possessory right in the same 'Smith V. O'Hara. 43 Cal. 371; a water right, acquired by appro- Lobdell V. Hall, 3 Nev. 507; Burn- priation, can convey his own in- ham V. Freeman, 11 Colo. 601, 19 terest, but cannot convey so as to Pac. Rep. 761. [A water right can injuriously affect his co-tenant's be couveyed by a bill of sale not right. Henderson v. Nicholas, 67 under seal. It certainly passes the Cal. 152, s. c. 7 Pac. Rep. 413.] equitable title, and that is sufE- ^gmith v. O'Hara, 43 Cal. 371. cient, under our law, when for- sjjjndman v. Rizor, 31 Oreg> tifled by possession. Ortman v. 113, 37 Pac. Rep. 13. Dixon, 13 Cal. 33. A co-owner of LAW W. E. — 7 (97) § 60 LAW OF WATER EIGHTS. [Ch. 5 way. "The principal subject-matter of such a sale and purchase," says the learned court, "is the possessory right to the land, and the consequent preference over others in the purchase of such land from the government; and such a sale, followed by possession taken thereunder, vests the possessory right in the purchaser, except as against the government, and he succeeds to the rights of the settler to the possession of the land and improvements. The wa- ter right being a necessary incident to the complete en- joyment of the land, the same principle which sustains a verbal sale of the possessory right to the land will also sup- port a verbal sale of the water right in connection there- with, so as to enable a purchaser to maintain a suit against a stranger for interfering with the same. The water, when appropriated and used for irrigation, becomes an incident to the land, and a transfer of the possessory rights thereto carries with it the water, unless expressly reserved. The general rule is that, where a party grants a thing as it is then used and enjoyed, he, by implication, grants aU those easements which the grantor can convey which are neces- sary to the reasonable enjoyment of the granted property, and have been and are at the time of the grant used by the owner for the benefit of the granted premises; and, if the grantor wishes to reserve any right over the easement, he must reserve it expressly. Gould, "Waters, § 354; Cave v. Crafts, 53 Cal. 135. This rule, we think, is as applicable to the transfer of possessory rights to public land as to any other species of property. ... In fact, counsel for de- fendant did not claim that there was evidence indicating an intent to abandon, but he claimed that the verbal sale and transfer oi" this water right operated, ipso facto, as an abandonment thereof, and in support of his position cited and relied on Smith v. O'Hara, 43 Cal. 371; Pom. Rip. nights, § 89; Gould, Waters, § 234. The statements by (98) Ch. 5] NATUEK AND EXTENT OP EIGHT. § 60 Pomeroy and Gould are based upon the doctrine announced in Smith v. O'Hara. In that case the plaintiff claimed as purchaser from the prior appropriator of a ditch used for conveying water for mining purposes, and undertook to prove the sale by oral testimony. The court held that a ditch, being an interest in real estate and lying in grant, could only be conveyed by deed, but that doctrine has no application to the case before us. In this case there was no attempt to convey the ditch separate from the possess- ory right to the land, but only as an incident thereto, and as part of the improvements thereon. It was an appur- tenant to the principal thing sold, and passed as an inci- dent thereto. We do not at this time undertake to ques- tion the doctrine that a ditch or canal itself, used for con- veying the water to a mine or elsewhere, is an interest in land that can only be transferred and conveyed as in the case of other real estate, but we deny its applicability to the facts in this case."] In a recent decision by the supreme court of Nevada, this same rule was declared in the most general form: "Where, in a contest concerning priority, a party claiming a right to water by appropriation fails to connect himself in interest with those who first appropriated and used the waters of a stream, his own appropriation of the water must be treated as the inception of his right;" or, in other words, his right of appropriation must be dated from the time when he himself began to use the waters; he cannot link his own use onto that of the former occupants, and thus claim to be a successor to their prior rights. Their prior appropriation is virtually abandoned.^ iChiatovich v. Davis, 17 Nev. 133, 38 Pac. Rep. 239. (99) § 61 LAW OF WATER EIGHTS. [Ch. 5 § 61. Same; conveyance of -wrater rights. [The right of a riparian proprietor to the flow of a stream of water over his land may be severed from the land by grant, and where such right has been conveyed without reservation the grantor cannot maintain an action to enjoin a diversion of water from the stream.^ It is also held — and this is more to our present purpose — that the right acquired by a prior appropriation, to use the water of a stream for irrigation, is not inseparably connected with the land for the benefit of which the appropriation was made, but the right may be sold separate and apart from the land; for instance, it may be sold to a city for the use of its inhabitants." In the case cited, the court in Col- orado derived this doctrine from the principle (now well settled by the judicial decisions in that and other states) that one who has acquired the right, by prior appropriation, to divert the waters of a stream may change the place of diversion and also the place of use, according to his neces- sity or interest, provided only that such change involves no injurious consequences to the rights of others.* And this rule, it was said, would dispose of the theory that the water was only appropriated for a particular tract of land, and that the appropriation would not hold for any other. And, as the court further observed, "no reason is perceived why, if the place of use may be changed to a tract adjoin- ing the one in connection with which the priority came into existence, it may not as well be changed to a piece of land at a greater distance. The principle permitting the first change to be made betag established, the exercise 1 Gould V. Stafford, 91 Cal. 146, » citing Fuller v. Swau River 27 Pac. Rep. 543. Min. Co., 13 Colo. 12, 19 Pac. Rep. '^ Strickler v. City of Colorado 836. And see, infra, § 65. Springs, 16 Colo. 61, 26 Pac. Rep. 313. (100) Ch. 5] NATURE AND EXTENT OF EIGHT. of the right cannot be made to depend upon the focus of the use, provided the rights of others are not injuriously affected by the change. The authority for changing the place of use from one part of a quarter section of land to another place upon the same quarter section will permit the purchase of land elsewhere, and utilizing the water in its cultivation." These principles being taten as estab- lished, it follows, as a logical necessity, that the right to the use of the water for irrigation is a right not so insep- arably connected with the land that it may not be sepa- rated therefrom. The right has been treated and held as a property right in numerous cases.i "The authorities seem to concur in the conclusion that the priority to the use of water is a property right. To limit its transfer, as con- tended by appellee, woul,d in many instances destroy much of its value. It may happen that the soil for which the original appropriation was made has been washed away and lost to the owner, as the result of a freshet or other- wise. To say, under such circumstances, that he could not sell the water right to be used upon other land would be to deprive him of all benefit from such right. We grant that the water itself is the property of the public. Its use, however, is subject to appropriation, and in this case it is conceded that the owner has the paramount right to such use. In our opinion this right may be transferred by sale so long as the rights of others, as in this case, are not inju- riously affected thereby. If the priority to the use of water for agricultural purposes is a right of property, then the right to sell it is as essential and sacred as the right to possess and use. What difference can it make to others whether the owner of the priority in this case uses it upon his own land, or sells it to others to be used upon other ^ The court here quotes from on Waters, § 234, and from § 58 of Kidd V. Laird, 15 Cal. 162, Gould this boolj. (101) § 61 LAW OF WATER EIGHTS. [Clj. 5 lands? There is no claim of waste occurring between the present points of diversion and the place where the city is to take the water. Where a material waste results from the change, a new feature is introduced which need not be considered here. At common law water rights were declared to be the subject of sale, and although with us such rights are acquired by appropriation rather than by grant or prescription, as at common law, this certainly cannot affect the right of alienation.^ . . . There is no controversy in the present case in reference to the mode and manner in which the right to the water may be con- veyed, the contention extending further back; the claim being that the right cannot be conveyed at all, except with the land. The claim is not well founded. As we have seen, the right is the subject of property, and may be trans- ferred accordingly; the sole limitation being that the rights of others shall not be injuriously affected by such transfer." It has been held, however, that a person cannot claim rights in water under a contract with the prior appropri- ator and also as a riparian owner through subsequent pur- chases along the lower part of the stream.^ And a grant of the right to divert the waters of a stream, made by a pre-emptor of public lands bordering thereon, is rendered worthless by the latter's abandonment of his claim before procuring a receiver's receipt for the land.* A deed by the owners of a stream to a corporation organ- ized for the purpose of diverting water from the stream for the purposes of irrigation, the furnishing of water for mining and manufacturing purposes, and for supplying 1 Citing Angell, WalerCourses, v. Mayberry, 88 Cal. 68, 25 Pac. c. 5; Hurd v. Curtis, 7 Mete. (Mass.) Rep. 1101. 94; De Witt v. Harvey, 4 Gray, 'Conliling v. Pacific Imp. Co., 486. 87 Cal. 296, 25 Pac. Rep. 399. ^Alhambra Addition Water Co. (102) Ch. 5] NATURE AND EXTENT OF EIGHT. § 62 water to cities, conveying to the grantee and its successors and assigns the right "to divert and appropriate all the waters flowing in said stream," is a grant of the right to divert the water thereafter flowing in the stream, as against a subsequent purchaser from the grantor of land bordering on the stream.^] § 62. Water rights as appurtenant to land. [It is an interesting question, whether a right to divert and use the waters of a stream, acquired by appropriation, is to be regarded as appurtenant to the land for the benefit of which the appropriation was made, so as to pass by a conveyance of the land without special mention or under the general designation of "appurtenances." In California, this question has of late years been settled in the affirma- tive, after a course of decisions tending more or less dis- tinctly in that direction. In the case of Coonradt v. Hill,^ which was an action to determine the title to a ditch and the right to divert through it the waters of a stream, the defendant alleged an estoppel on the part of the plain- tiff by acts and declarations by means of which defendant was induced to purchase the land in the belief that the ditch was appurtenant thereto. And it was held that evidence of the convenience and necessity of the ditch to defendant's farm was admissible, as tending to show that the water right was appurtenant to the land and passed to defendant by a grant of the land. In a later case, it appeared that a land and water company had conveyed a tract of land through which ran a ditch, reserving the ditch and a strip of land ten feet wide on each side of it, and 1 Doyle V. San Diego Land Co., Chase, 87 Cal. 561, 25 Pac. Rep. 46 Fed. Rep. 709. See, also, as 756; Dorris v. Sullivan, 90 Cal. 279, further illustrating these princi- 27 Pac. Rep. 216. pies, San Diego Flume Co. v. ^ 79 Cal. 587, 21 Pac. Rep. 1099. (103) § 62 LAW OF WATER EIGHTS. [Ch. 5 also the right to enter on the lands for the purpose of malt- ing repairs, and to tunnel or in any manner develop the waters on the lands. The reservation provided that the grantees were not to use any of the water in the ditch, nor use any water on the land, except for the purpose of irriga- tion and for domestic use. It was held that the rights reserved were appurtenant to the ditch and water rights, and passed by grant from the company to a vendee, although the reservation containied no power of assignment or words of inheritance.^ Finally, the attention of the court having been directed to the statutory provision in that state that "a thing is deemed to be incidental or appur- tenamt to land when it is by right used with the land for its benefit, as in the case of a way or water-course, or of a passage for light, air, or heat from or across the land of another,"^ it was held that where a land-owner appro- priated water, and brought it on his land, and the land could not be advantageously used without the water, the fact that the license to convey the water over the premises of another was revocable did not prevent the water right from passing as appurtenant to the land.^ In the state of Colorado, on the other hand, the courts are by no means willing to accept the doctrine now settled in California. In a late case in the former state, in which this question arose, the plaintiffs claimed the right to certain water under an appropriation made by the persons from whom they took, as grantees, the land for which the appropriation was made. They claimed that by such ap- propriation the right to the use of the water became an incident of the land, and passed to them by the deeds of conveyance under the term "appurtenances." "At common 1 Painter v. Pasadena Land Co., ' Crooker v. Benton, 93 C'al. 365, 91 Cal. 74. 27 Pac. Rep. 539. 38 Pac. Rep. 953. 2 Civil Code Cal. § 663. (101) Ch. 5] NATURE AND EXTENT OF EIGHT. § 62 law," said the court, "the riparian owner is vested with certain rights in the water of a natural stream flowing through his land, and such rights pass by a conveyance of the land to his grantee, unless specially reserved. It is seriously claimed that this familiar principle of the com- mon law in reference to natural streams applies also to artificial streams designed for purposes of irrigation. Let us see what legal basis there is for such claim. Upon examination, we find few points of analogy and many points of difference between water rights at common law and water rights under the constitution of this state." Here- upon the court proceeded to indicate the essential par- ticulars in which these differences were found to exist, and then proceeded as follows: 'Where a party has con- structed an irrigating ditch, and acquired the right to the use of water for the irrigation of his lands through such ditch, he may, undoubtedly, in connection with the sale and conveyance of the land, also sell and convey such water right without special words for that purpose inserted in the deed of conveyance. But how shall such water right be conveyed? Counsel for appellants insist that it passes to the grantee by virtue of the word 'appurtenances' in the ordinary deed, unless specially reserved. Certainly a ditch located on the land described in the conveyance would pass by an ordinary deed, not as an appurtenance, but as par- cel of the land itself. But there is a manifest distinction between an irrigating ditch, as a mere artificial water- course, and the right to the use of water from a natural stream to be carried through such ditch. In Yunker v. Nichols, 1 Colo: 551, it was held that the right to convey water over the land of another for purposes of irrigation may be conferred by verbal agreement, notwithstanding such right was, at common law, an interest in real estate, and so subject to the statute of frauds. In Burnham v. (105) § 62 LAW OF WATER RIGHTS. [Ch. 5 Freeman, 11 Colo. 606, 19 Pac. Eep. 761, it is said of a pri- vate irrigating ditch belonging to individuals, and not to an incorporated company, that 'the law recognizes but two ways of acquiring, by purchase, an ownership interest in such a ditch. One is by deed or prescription, which pre- supposes a grant, and the other is by condemnation. An interest in such a ditch is an interest in realty. It cannot pass by a mere verbal sale.' These two cases may, per- haps, be reconciled or distinguished. It is claimed that the later case is decisive of the present controversy. But we do not rest the decision of this case upon the ground that the right to the use of water in this state for irriga- tion may not, under some circumstances, be acquired by parol, nor upon the ground that such right may not pass to the grantee of land, under certain circumstances, with- out special words in the deed conveying the land, or other deed for that purpose. In the present case it is clear that appellants have never acquired a valid title to the water rights in controversy. Not even a verbal agreement there- for is established by the evidence. Such water rights did not pass to appellants as an appurtenance to the land by virtue of their several deeds of conveyance. Even if such rights could, under some circumstances, be considered ap- purtenances to the land, the evidence in this case clearly shows that Frederick Baun, as the original owner, had sev- ered such rights long before the inception of appellants'' title."i In Minnesota, it is held that a riparian owner may grant a part of his estate, not abutting on the stream, and as appurtenant thereto a right to draw water from the stream through his remaining land, and for any diversion of the lOppenlander v. Left Hand 32 Pac. Rep. 846. But see, per Ditch Co., (Colo.) 31 Pac. Rep. 854. contra, Coventon v. Seufert, See, also, Bloom v. West, (Colo.) (Oreg.) 32 Pac. Rep. 508. (106) Ch. 5] NATURE AND EXTENT OF BIGHT. § 63. natural flow of the stream disturbing such right the gran- tee may maintain an action.^] § 63. Tenancy in common. Wherever ditches or other structures for diverting and appro- priating water belong to two or more proprietors, such owners are, in the absence of special agreements to the contrary, ten- ants in common of the ditch, and of the water rights connected therewith, and their proprietary rights are governed by the rules of law regulating tenancy in common.^ [But persons claiming rights in the waters of a stream, derived from the same original proprietors, are not necessarily tenants in common; and a con- vention inter sese of the owners as to the use of all the waters ap- propriated, by or under which the water is to be used for recur- ring periods of time by each, will not make them tenants in common.' Of tenants in common, each has a right to enter upon and occupy the whole of the common property, and every part thereof, and may recover the whole thereof from a trespasser- and an arrangement as to periods for the use of the water, among the co-tenants, affects them only, and is for their con- venience, and is no defense to an action of trespass against a, third party by one of the co-tenants. In the case where this principle was laid down, Thornton, J., observed: "It is said that the waters were appropriated severally by those who did appropriate them. Concede this to be so, and we do not per- ceive that it makes any difference. If they are tenants in com- mon of the water, such tenants and each of them are tenants seized per my and not per tout, and entitled to the possession of the whole. This must be so, because no one of them can cer- 1 St. Anthony Falls Water- Pow- ^ Bradley v. Harkness, 26 Cal. 69. er Co. V. City of Minneapolis, 41 'Lytle Creek Water Co. v. Per- Minn. 270, 43 N. W. Rep. 56. dew, 65 Cal. 447, 2 Pac. Rep. 732. (107) § 63 LAW OF WATEE RIGHTS. [Ch. 5 tainly state which part of them is his own. They hold by unity of possession, though their titles be distinct. If this unity is destroyed, the tenancy no longer exists.' * * * Whether joint appropriators, holding the estate as joint tenants or tenants in common, the same is the result. Each can re- cover the whole, or take the necessary steps to protect the whole against the acts of a wrong-doer."^ Further, a court of equity has power to ascertain and deter- mine the extent of the rights of property in water flowing in a natural water-course, acquired by persons who hold and are en- titled to them, and to regulate, between or among them, the use in the flow of the water in such a way as to maintain equal- ity of rights in the enjoyment of the common property.' Hence, where one of two or more co-owners, in the use of water of a stream appropriated by them for beneficial purposes, diverts for use a greater quantity of water than of right belongs to him, so as to materially diminish the quantity to which the others are entitled, such parties are entitled to enjoin the wrong-doer from diverting the water to their injury.* But it is held tliat water flowing in a ditch and owned by tenants in common cannot be mechanically partitioned. The only partition which a court can make, which will definitely and perma- nently end disputes of tenants in common in water used for mining purposes, is to order a sale and a distribution of tbe proceeds.^ A tenancy in common in a water-ditch, arising under a deed, is not severed by claiming under a promise or parol license from a third person, where the deed and promise appear to be parts of the transaction.* A ten- 1 Citing 2 Bl. Comm. 191, 192; Eep. 654; citing Story, Eq. Jur. § Carpentier v. Webster, 27 Cal. 524. 937. See, also. Combs v. Slayton, 2Lytle Creeli Water Co. v. Per- 19 Oreg. 99, 26Pac. Rep. 661. dew ,"65 Cal. 447. 4 Pac. Eep. 426. 6 McGillivray v. Evans, 27 Cal. SFrey v. Lowden, 70 Cal. 550, 11 93. Pac. Rep. 838. « Campbell v. Shivers, 1 Ariz. ^Lorenz v. Jacobs, (Cal.) 3 Pac. 161, 23 Pac. Rep. 540. C108) Ch. 5] NATUEE AND EXTENT OF EIGHT. § 64 ant in common in certain water rights of a ditch for min- ing purposes, its use for mining having been abandoned and its flow turned into another stream, may recapture and use his proportion of the water for irrigation or other law- ful purposes.!] § 64. Right to natural flow of water at head of ditch. Although the appropriator has no property in the water of the stream flowing in its natural channel above his point of di- version, yet he acquires a most important right over or with re- spect to such water. This general right over the stream, of the party who has perfected a prior appropriation, is that the wa- ter of the stream should continue to flow In its usual manner, through the natural channel or bed of the stream, down to the head of his ditch, or to the point where his own actual domin- ion over it commences, to the extent or amount of his appropri- ation, without diversion or material interruption.^ In a recent decision the court used the following language descriptive of this right: "The plain tifi''s right to have the water flow in the river to the head of his ditch is an incorporeal hereditament appurtenant to his [artificial] water-course, [i. e.., his ditch.] Granting that the plaintiff' does not own the corpus of the water until it shall enter his ditch, yet the right to have it flow into the ditch appertains to the ditch." ^ In another case a ditch con- veying water for purpose of sale to miners, took its water from a stream near its head in the mountains, and thence ran for a 'Meagher v. Hardenbrook, 11 Cal. 300; Phoenix W Co. v. Fletch- Mont. 385, 38 Pac. Rep. 451. er, 23 Cal. 481; Natoma W. & M. 2 Lower Kings River, etc., Co. v. Co. v. McCoy, Id. 490; Kidd v. Kings River, etc., Co., 60 Cal. 408; Laird, 15 Cal. 161; Barnes v. Sa- Parks Canal & M. Co. v Hoyt, 57 bron, 10 Nev. 217. Cal. 44; Reynolds v. Hosmer, 51 ^ Lower Kings River, etc., Co. v. Cal. 205; McDonald v. Askew, 29 Kings River, etc., Co., 60 Cal. 408. (109) § 65 LAW OF WATER RIGHTS. [Ch. 5 distance of twenty-four miles, the water flowing through its en- tire length. The title to the upper half of the ditch was vested in A., and that of the lower half in B. A. was held to be en- titled to the exclusive use of the water from the stream at the head of the ditch. ^ In Phoenix Water Co. v. Fletcher^ it was held that the prior appropriator of a stream on the public lands, for mining purposes, has a right to have the water flow down the stream, above the point of his appropriation, without inter- ruption or diminution in quantity. § 65. What are streams subject to appropriation. The question here arises, what is a "stream'' which may thus be appropriated? I do not purpose to enter into any full dis- cussion of this question, which may be regarded as rather spec- ulative than practical throughout tliese Pacific communities. It is suflicient to say that there must be an actual, natural stream, with defined banks, bed, channel, and current, as contradistin- guished from a mere occasional torrent or flow of surface water from rains or melting snow, through a hollow or depression in the surface of the soil. The essential nature of a " stream " which can be appropriated was briefly but accurately described by the supreme court of Nevada in a leading case:^ "To maintain the right to a water-course, it must be made to appear that the wa- ter usaally flows therein in a certain direction, and by a regular channel with banks or sides. It need not be shown to flow con- tinually, and it may at times be dry, but it must have a well- defined and substantial existence." It would plainly be im- practicable to require, as an essential element of a "stream" in these Pacific states and territories, that the flow of water should be continuous, uninterrupted, and perennial, during the entire year, and from year to year. It is well known that some of 1 Reynolds v. Hosmer, 51 Cal. 2 33 Cal. 481. 205. 'Barnea v. Sabron, 10 Nev. 217. CIIOJ Ch. 6] NATURE AND E5CTENT OF EIGHT. § 66 the most important and well-defined streams in these regions , become dry throughout the whole or a considerable portion of their lengths during certain seasons of each year. It is, per- haps, more correct to say that their waters sink beneath their beds, and flow beneath the surface instead of in their channels on the surface. All these streams, nevertheless, have well-de- fined beds, channels, banks, and currents, and are in every re- spect natural "streams." § 66. Definition and characteristics of a ■water- course. [In order to constitute a water-course, there must be a defined channel, banks, and water usually flowing in a particular direc- tion. It need not flow constantly; it may at times be dry; but the source, it is usually said, must be natural, certain, and definite, and not dependent upon the fluctuations of the sea- sons, as the falling of rain and the melting of snow.^ But if the face of the country is such as necessarily to collect in one body so large a quantity of water, after heavy rains or melting of snows, as to require an outlet to some common reservoir, and if such water is regularly discharged through some well-defined channel, which the force of the water has made for itself, and which is the accustomed channel through which it flows and has flowed from time immemorial, such channel is a natural water-course.2 The supreme court of Oregon, in a recent 1 Hanson v. McCue, 43 Cal. 303; 4 N. J. Eq. 234; Qillett v. Johnson, Ely V. Ferguson, 91 Cal. 187, 37 30 Conn. 180; Luther v. Wiuni- Pac. Rep. 587; Geddis v. Parriah, simmet Co., 9 Cush. 173; Macom- 1 Wash. St. 587, 31 Pac. Rep. 314; ber v. Godfrey, 108 Mass. 319; Raymond v. Wimsette, (Mont.) Ashley v. Wolcott, 11 Cush. 193; 31 Pac. Rep. 537; Robinson v. Gannon v. Hargadon, 10 Allen, 106; Shanks, 118 Ind. 125, 30 N. E. Rep. Buffum v. Harris, 5 R. I. 343. 713; Case V. Hoffman, (Wis.) 54 N. 2 Earl v. De Hart, 13 N. J. Eq. W. Rep. 793; Dickinson V. Worces- 280; Palmer v. Waddell, 23 Kan. ter, 7 Allen, 19; Shields v. Arndt, 352. See, also, Union Pac. R. Co. (Ill) § 66 LAW OF WATER BIGHTS. [Ch. 5 case, upon a review of the authorities bearing on ^Ms ques- tion, remarks that "the conclusion to be dediiced from these decisions is that a water-course is a stream of water usu- ally flowing in a particular direction, with well-de£iu(^l banl(:s and channels, but that the water need not flow con- tinuously, — the channel may sometimes be dry; that the term 'water-course' does not include waler descending from the hills, down the hollows and ravinos, without any def- inite channel, only in times of rain and melting snow; but that where water, owing to the hilly or mountainous config- uration of the country, accumulates in large quantities f]"om rain and melting snow, and at regular seasons de- scends through long deep gullies or ravines upon the lands below, and in its onward flow carves out a distract and well- defined channel, which even to the casual glance bears the unmistakable impress of the frequent action of rimning water, and through which it has flowed from time imme- morial, such a stream is to be considered a water-course, and to be governed by the same rules.''^ Surface water, without a spring, when it has flowed in a cer- tain direction for such a length of time as to have naturally formed a bed and banks and well-defined stream of flowing water, even though it may sometimes be dry at the place where it has formed such banks and bed, is still a water-course at that point.^ A creek which has a natural channel three-fourths of V. Dyche, 31 Kan3. 120, 1 Pac. Rep. Lambert v. Alcorn, (111.) 33 N. E. 243; Chicago, K. & W. R. Co. v. Rep. 53. In the case of "West v. Morrow, 42 Kans. 339, 22 Pac. Rep. Taylor, 16 Oreg. 165, 13 Pac. Rep. 413. Compare, however. Parks v. 665, it appeared that A. owned Newburyport, 10 Gray, 38. lands adjoining a lake, about two 1 Simmons v. Winters, 21 Oreg. mileslongandhalf amilewide, fed 35, 87 Pac. Rep. 7. by perennial springs and a moun- 2Eulrich V. Richter, 41 Wis. 318; tain creek. Originally the main Kelly V. Dunning, 39 N. J. Eq. 482; outlet from the lake was a second Pyle V. Richards, 17 Neb. 180, s. c. creek, into which the waters flowed 23 N. W. Rep. 370. See, also, at ordinary stages. From the west- (112) Ch. 5] NATURE AND EXTENT OF RIGHT. § 66 a mile long, with a bed of varying depth and width, through which surface-water is discharged into a stream, is a water- course; and the fact that it is dry most of the time does not deprive it of that character.^ But a ditch, by means of which the waters of a natural stream are diverted, is not itself a water- course, though it is partly formed of ravines and gullies through which surface-water has occasionally flowed.^ In regard to the channel of the stream, it is required that it should have a distinct and substantial existence, with well-de- fined banks formed by the flow of the water, and presenting un- mistakable evidence to the eye of the frequent action of running water.' Thus, sloughs or swales, hollows or ravines, by which water passes over land, are not, in the technical sense, water- courses.* Upon this point we find some instructive remarks in a recent decision of the supreme court of California. It was said by McKinstry, J.: "It is not essential to a water-course that the banks shall be unchangeable, or that there shall be everywhere a visible change in the angle of ascent marking the line between bed and banks. The law cannot fix the limits of va- riation in these and other particulars. As was said, in efifect, by em part of tlie lake flowed a third their land. On this state of facts creek, which emptied into a creek it was held that the waters on that flowed into the Pacific ocean. the lands of B. and C. could not The main outlet becoming choked be considered merely as surface up with sand, the waters over- water, but constituted a water- flowed the lands of B. and C. on course, and that B. and C. had no the north of the lake, forming right to erect the dike, marshes and swales, and escaped iPerris v. Wellborn, 64 Miss. 29, into a creek flowing into a bay; 8 South. Rep. 165. and for several years this was the ^gimmong y. 'Winters, 21 Oreg. main outlet from the lake. B. and 35, 27 Pac. Rep. 7. C. erected a dike to protect their SQibbs v. Williams, 25 Kan. 214, land, which raised the water in the s. c. 37 Amer. Rep, 241; Shively v. lake, and threw it back upon A.'s Hume, 10 Oreg. 76; Razzo v. Varni, land, overflowing about one thou- 81 Cal. 289, 22 Pac. Rep. 848. sand acres. Previous to erecting basis on wMch they 'can be apportioned between th.em.i The plaintiff in an action of this character also has the privilege of joining as defendants all persons whose unlaw- ful acts contribute to the deprivation or diminution of iis water supply on which he bases his action.^ And in Colo- rado it is said that a person who, by priority of appropri- ation, acquires the better right to the use of water from a natural stream., may maintain an action jointly against all parties junior in right to himself, whenever their acts, either joint or several, substantially interfere with such better right.* The pleadings, in actions of the kind now under consid- eration, must of course be governed by the ordinary rules. Thus, for instance, it is held that the gravamen of the ac- tion is the diversion of the water, and the fact that this diversion is accomplished by several different means is not important enough to require several different counts in the complaint.'' If the plaintiff claims a superior right by ap- propriation, the complaint must set forth,- with sufScient clearness and fullness, the fact of appropriation, the pur- pose for which the appropriation was made, and the amount of water necessary to effect such purpose.^ The claim of interest in the waters which the defendant is supposed to set up should not be alleged by the plaintiff merely on in- formation and belief; but though the complaint may be imperfect in this respect, it will not be open to a general demurrer if it also alleges facts showing a wrongful diver- sion by the defendant and a threatened continuance thereof.* 1 Foreman v. Boyle, 88 Cal. 390, gravel, and other mining debris. In regard to this the court, after stating the rule concerning diminution in quantity, said: "As to deteriorations in quality by the water being used for min- ing above the plaintiff, this is damnum absque injuria. Any iMack V. Jackson, 9 Colo. 536, "Simg y. Smith, 7 Cal. 148. 13 Pac. Rep. 642. «8 Cal. 337. (138) Ch. 5] NATURE AND EXTENT OF EIGHT. § 76 other rule would prohibit any use of the whole water of a stream , so as to preserve a small quantity of it first appropriated." The conclusion reached in this decision was antagonistic to the claims of the prior appropriator, and, if final, would plainly render his rights very precarious, and liable, in fact, to com- plete destruction by such a pollution of the water as would make it wholly unfit for his purposes. In the subsequent case of Hill V. Smith^ this former decision was entirely abandoned, and a rule was established which fully protects all the rights of the prior appropriator. The court held that if parties engaged in mining operations above the head of a ditch belonging to a prior appropriator, on the same stream, injure the water by means of mud, sand, sediment, or other mining debris, they are liable therefor to the ditch-owner, and their liability is not at all a question of negligence or unskillfulness. If the ditch- owner is in fact injured, the miners are liable, even though such injury is not caused by their negligent or unskillful methods of mining. As between ditch-owners and miners using the same stream, the law does not tolerate any injury by one to the prior rights of the other. In regard to the basis of these rights, the court say that the reasons which underlie the common-law rules concerning riparian rights have not lost their force in the min- eral regions of this state. The rule thus settled cannot be re- stricted to the pollution of water by mining operations alone. It must extend to all modes of deteriorating the quality of water by which injury is done to a prior appropriator. This view is taken of it by the supreme court of Utah, which holds that when the water of a stream had been appropriated and diverted by a ditch for purposes of irrigation and for domestic uses, the pol- lution of the stream above the ditch is a private nuisance.* 137 Cal. 476; and see s. c. 32 Cal. 166. * Cramer v. Randall, 3 Utah, 348. (139) § 78 LAW OP WATER EIGHTS. [Ch. 5 II. Liability fob Damages Caused by Ditches. § 77. Various kinds of injuries. It seems proper, in this connection, to consider very briefly the liabilities of ditch-owners, miners, appropriators, and other parties using waters as before described, for injuries caused or occasioned by such use to adjoining proprietors and occupants. These injuries may be of various kinds, resulting from negli- gence, unskillfulness, design, intentional trespass, from the meth- ods in which the use of the water is ordinarily conducted, and the like. I shall examine these different species or types of in- jury separately. § 78. Damages caused by breaking or overflo-w. First, where the injury is not intentional, nor resulting from the ordinary and constant mode of using the water, but is caused by the breaking or overflow of ditches, reservoirs, dams, and other structures, lawfully erected for the purpose of appropriat- ing the water to legitimate uses. The doctrine is settled by the English courts that whenever a party lawful!}' constructs a res- ervoir, embankment, dam, or other artificial structure on his own land, for the purpose of catching, impounding, or retaining water, he thereby becomes an insurer of the safety of his adjoin- ing or neighboring proprietors and occupants against aU possi- ble injury occasioned by his structure. He is absolutely liable to a neighboring proprietor or occupant for all injury done to the latter through a bursting or overflow of his reservoir or other structure, entirely irrespective of any negligence or want of skill in it3 erection or management, and even though the accident was caused by an unusual storm, flood, or other so-called "act of God." The English decisions have not been followed in all our American states. The doctrine which they establish has (140) Ch. 5] NATURE AND EXTENT OF EIGHT. § 78 been rejected by the courts of California, and pronounced en- tirely inapplicable to the mining and water interests of the Pa- cific communities. It has been settled, by a series of well-con- sidered decisions, that ditch-owners and proprietors of similar works are only bound to use that amount of care, skill, and dili- gence in the erection, maintenance, and use of their reservoirs, ditches, canals, flumes, and the like, which an ordinarily pru- dent man uses in the management of his own affairs of the same kind and under the same circumstances. I will refer to a few of the leading cases in which this test of liability was judicially settled. In one of the earliest of these cases the action was brought to recover damages caused by the bursting of defendant's dam, whereby the plaintiff's land was overflowed and injured. The right to recover was based upon an allegation that the dam was constructed in a careless and insufficient manner. Held, that such a claim presented a good cause of action; and if the dam was thus constructed, and the bad construction was the proxi- mate cause of the bursting and overflow, the defendant was lia- ble. But the court at the trial had charged the jury as follows: "If the jury believed that the dam was improperly constructed, or that the defendant could have constructed it in a better or more sub- stantial manner, so as to prevent its breaking, then the defendant was liable." This charge was held to be erroneous. It pre- sented the defendant's duty and liability in too broad a man- ner. The question is not what the defendant could possibly have done, but what discreet and prudent men should do, or ordinarily do, in such cases, where their own interests are to be afiiected.* Wolf V. St. Louis, etc., Co.* was a similar action, to recover damages for the overflowing of plaintifi''s land through the neg- 1 Hoffman t. Tuolumne, etc., Co., 10 Cal. 413. SIO Cal. 541. (141) :§ 79 LAW OF WATEB EIGHTS. [Ch. 5 ligent construction and use of defendant's flume. On the trial the court charged that defendant was bound, in the construction and nianagement of its dam and flume, to use all the care which a very prudent owner would use under the like circumstances. This instruction was pronounced error; that the owner of a flume, ditch, reservoir, etc., is bound to use that care and cau- tion, in the construction and management of his water- works, to prevent injury to others, which ordinarily prudent men use in like instances in their own affairs; and that the question of neg- ligence in such cases must largely depend upon all the surround- ing circumstances. In a similar action to recover damages from the overflowing of plaintiff's land by the breaking of defendant's dam, the defendant was held liable for negligence in building and using the dam, whereby the water overflowed the lands of the plaintiff. The court added the further most important rule governing this class of cases, that the doctrine of contributory negligence on the part of the plaintiff could not apply to an in- jury caused by such negligence of the defendant; that a want of reasonable care on the plaintiff's part could not be set up as a defense to such an action.' § 79. Proper measure of care required. While the English doctrine is extreme in one direction, it may well be doubted, I think, whether this rule does not go too far in the other extreme, and impose an insufficient liability upon the owners of water-works. Since these structures are nec- essarily dangerous to neighboring proprietors, and since the in- jury caused by their accidental bursting or overflow is necessa- rily great, it would seem just that their owners should be re- iFraier v. Sears, etc., Co., 13 Cal. Campbell v. Bear River, etc., Co., 656. As laying down tlie same gen- 35 Cal. 679; Richardson v. Kier, 34 eral test of liability, see, also, Todd Cal. 63, 74, and 37 Cal. 263. And V. Cochell, 17 Cal. 98; Tenney v. see Parker v. Larsen, 86 Cal. 236, Miners' Ditch Co., 7 Cal. 835; 24 Pac. Rep. 989. (142) Ch. 5] NATURE AND EXTENT OF EIGHT. § 79 quired to use all reasonably possible means in their construction and management to prevent accidental injuries thereby. I would venture to suggest that the rule as laid down by the trial court in the case of Hoffman v. Tuolumne, etc., Co., above quoted, would be more reasonable and just to all the parties in- terested than the one finally adopted by the court. These dams, reservoirs, and other structures, in their essentially dangerous nature, have some analogy, at least, to railways, and the same test of liability might, under their respective circumstances, be appropriately applied to each.' It was also held by the supreme court of Nevada that a dam erected on a stream, in a manner in no wise injurious or preju- dicial at the time of its erection to a mill above, but which, by reason of circumstances that could not have been anticipated, happening subsequently, and operating in connection with it, causes the water to flow back upon the mill, is not such an ob- struction as to authorize its abatement, or to justify a recovery of damages against the person building it.^ i[Iii the recent case of Weide- for a certain purpose, it charged kind V. Tuolumne Water Co., 65 with respect to a matter of fact. Cal. 431, 4 Pac. Rep. 415, Sharp- The court might as well have stein, J., observed: "It was proper charged them that, if the dam waa to instruct the jury as to the degree not of certain dimensions or con- of care and vigilance which the law structed of a particular kind of ma- devolved on the defendant in the terial, it was insuflSciently and neg- construction and maintenance of ligently constructed. The defend- its dam, and that, if it neglected or ant had a right to have the opinion failed to exercise that degree of of the jury on those questions. care and vigilance, it would be lia- And we think the court erred in ble for such damages as any one charging that ' it was the duty of might sufEer from the dam's break- the defendant to constantly exam- ing away. But when the court ine said dam during the season of went beyond that, and Instructed freshets.' That might depend on the jury that the dam was ' insuffl- circumstances, and should have ciently and negligently construct- been left to the jury."] ed' unless it had gates suflBcient "Proctor v. Jennings, 6 Nov. 83, (143) § 80 LAW OF WATER RIGHTS. [Ch. 5 § 80. Injuries from intentional trespasses. Secondly, where the injuries are intentional trespasses. In these instances the proprietors of the water-works are, of course, liable without regard to any question of negligence or lack of skill. The law does not permit one person, under color of a right to ap- propriate, divert, or use the water of a public stream, to trespass upon the lands or invade the existing rights of another party. Thus it is expressly held that the statutes of congress of 1866 and 1870 merely confirm such rights of water on the public lands as were accorded to the owners of mining and other claims by the state customs, laws, and decisions prior to their enactment. These statutes do not grant any rights not recognized by such local customs and laws. They do not authorize A., while engaged in constructing a ditch for water, to excavate it across the mining claim of B. , which was located previously to the location of the ditch.* In another case a ditch conducted water from a stream over the adjacent country, crossing other small natural water- courses, the beds of which were dammed up by the embank- ment of the ditch, and by the fall of rain the waters of the streams became so swollen as to render it necessary to cut the embankment of the ditch in order to preserve it from injury; and the owners of the ditch cut the embankment at a point where there was no natural water-course, so that the waters were turned onto the cultivated land of the plaintiff, causing dam- age. Held, that the injury thereby sustained was not an act of God, but resulted from the voluntary act of the ditch-own- ers, and they were liable to the plaintiff for the damage. A. may not, in order to save his own property, destroy the prop- erty of B., however urgent the necessity.^ ^Titcomb v. Kirk, 51 Cal. 588; ^Tiirner v. Tuolumne, etc., Co., and see, also, Henshaw v. Clark, 85 Cal. 398. 14 Cal. 461; Boggs v. Merced M. Co., 14 Cal. 383, 379. (144) Ch. 5] NATURE AND EXTENT Of EIGHT. § 81 § 81. Damages from mode of construction or op- eration of ■works. Thirdly, where the injury is not an intentional trespass, nor merely the result of negligence, but is the natural or necessary consequence of the mode in which the Water-works are con- structed, or in which they are ordinarily operated. In some of the instances placed in this group, the wrong may approach very nearly to an intentional trespass, while in others it may involve negligence; but, on the whole, these cases constitute a separate and distinct class. The forms of such injuries are va- rious. One form consists in the discharge of the water, after its use, directly upon the lands of another person, or its discharge in such a place and manner that it naturally and necessarily flows down upon the lands of a neighboring proprietor. In the important case of Richardson v. Kier' the defendant Kier owned a ditch passing over and across Richardson's land. In regard to the general duty of the ditch-owner under these circumstances, the court said: "He [the ditch-owner] is bound so to use his ditch as not to injure the plaintiff's land, irrespective of the question as to which has the older right or title. He is bound to keep it in good repair, so that the water will not overflow or break through its banks, and destroy or damage the lands of other parties; and if, through any fault or neglect of his in not properly managing and keeping it in repair, the water does over- flow or break through the banks of the ditch, and injure the land of others, either by washing away the soil or by covering the soil with sand, the law holds him responsible." In regard to the discharge of the water after use upon the land of an ad- jacent owner, the court further held: "When Kier discharged his water from his ditch above Richardson's land, in such a place that it naturally would and did flow over and upon and 134 Cal. 63, 74 LAW w. B. — 10 (145) § 81 LAW. OF WATER RIGHTS. LCh. 5 injure R.'s land, K. is liable for the injury so done. It is no excuse that he may have sold the water to miners, by whom it was used before it reached R.'s land and did the injury. If the miners thus contributed to the injury, and are joint tort- feasors with K., this is no defense to a suit against him." The same liability has been imposed upon the owners of water-works under like circumstances, and for siiAilar injuries in other cases.' 'See Richardson v. Kier, 37 Cal. 263; Blaisdell v. Stephens, 14Nev. 17; Henshawv. Clark, 14 Cal. 461; Grigsby v. Clear Lake W. Co., 40 Cal. 396. [ Waste Water. Where a riparian owner, for the purpose of irrigation, leads water upon his land, he cann ot send down the sur- plus upon lands lying lower than his own; at least in such a manner as to injure the lower estate. The lower lands are under a natural servitude to receive the ordinary drainage, but this burden cannot be increased by the acts of the up- per proprietor. Boynton v. Long- ley, 19 Nev. 69, 6 Pac. Rep. 437. A person owning a ditch, from which water escapes upon the premises of an adjoining land-owner, can- not escape liability on the ground that such land-owner might, at a small expense, have prevented any damage by digging a ditch on his own land that would have carried off the waste water. McCarty v. Boise City Canal Co., (Idaho,) 10 Pac. Rep. 623. Changing Channel of Stream. One who changes the course of a natural stream of water, and discharges it on his neighbor's land, is liable to the latter for damages. Vernum v. Wheeler, 35 Hun, 53. A person owning land abutting on a river, through which a creek flows and empties into the (146) river, may, as against proprietors on the other side of the river, change the channel and mouth of the creek upon his own land, and for his own protection and conven- ience, if, in so doing, both in the inception and execution of the work, he exercises reasonable care and caution not to injure the rights of others. If, however, the oppo- site bank of the river is subject to inundation and overflow in case of unusual but not unprecedented floods in the river, such change in the channel and mouth of the creek cannot rightfully be made, if thereby, in the exercise of ordi- nary prudence and foresight, in- creased danger of inundation and overflow on the opposite side of the river might be anticipated. Railroad Co. v. Carr, 88 Ohio St. 448. Dams and Bulk-Heads. A ri- parian owner may protect his land from a threatened change in the channel of the stream, liable to oc- cur by reason of the washing away of his bank, and in pursu- ance thereof may build a bulk- head as high as was his original bank before it was washed away; and this will not deprive the op- posite owner of any right, nor give him legal ground for- complaint. Barnes v. Marshall, 6S Cal. 569, a. c. 10 Pac. Kep. 115.] Ch. 5] NATURE AND EXTENT OF EIGHT. § 82 ■§ 82. Discharge of mining: debris. Another form of the injury,- for -which the courts have given the remedy of compensatory damages or of injunction, consists in such a use and discharge of the water that it naturally and necessarily flows down upon the lands of adjoining proprietors, charged with mud, sand, gravel, and other mining debris; which material, being thus carried and deposited upon such adjacent lands, injures or even destroys them for all beneficial uses.^ In Wixon v. Bear River, etc., Co. an injunction was granted re- straining the defendant from allowing the water, mud, sediment, or sand collecting in its ditch or reservoir, from flowing down into the plaintiff's garden, and ruining his crops. The court said: "The instructions refused by the court at the trial are founded upon the theory that in mineral districts of this state the rights of miners and persons owning ditches constructed for mining purposes are paramount to all other rights and interests of a different character, regardless of the time or mode of their acquisition, thus annihilating the doctrine of priority in all cases where the contest is between a miner or a ditch-owner and one who claims the exercise of any other kind of right, or the own- ership of any other kind of interest. To such a doctrine we are ■unable to subscribe, nor do we think it clothed with a plausi- bility sufiScient to justify us in combating it." In Levaroni v. Miller an injunction was granted under very similar circum- stances, although the fact appeared or was found that the injury was not done by defendants maliciously or unnecessarily, but in the ordinary conduct of their business. In another type of the same injury the mud, sand, gravel, and other debris are dis- charged by the ordinary mode of use into a stream, and are carried down by the natural flow of the current, and deposited 1 Logan V. DriscoU, 19' Cal. 623; Cal. 367; Levaroni v. Miller, 34 Cal. Wixon T. Bear River, etc., Co., 24 231. (147) § 88 LAW OF WATER EIGHTS. [Ch. 5 upon the lands of proprietors adjoining the stream in its lower portions, perhaps many miles below the point of discharge.^ § 83. Effects of hydraulic mining a public nui- sance. [Within the last few years a number of cases have been de- cided on the Pacific coast, in reference to the effects of the sys- tem of hydraulic mining, which threaten to interpose an effect- ual barrier to the further prosecution of that species of indus- try. These decisions are of such immediate importance that they require a somewhat extended notice. Their position, however, may first be briefly stated as foUows: The discharge of sand, gravel, and other debris into the navigable rivers of the state, as a consequence of mining by the hydraulic process, with the effect to fill up the beds of such rivers or obstruct the course of navigation, is a public nuisance, which may be enjoined at the instance of the state on the relation of those injured; and if, as a further consequence of such operations, the sand and debris is deposited on the lands of riparian owners, it is a private in- jury, and they may also have relief by injunction. The first case of importance was that of Woodruff v. North Bloomfield Gravel Min. Co., decided in the United States circuit court for the district of California in 1884.^ The facts were stated as fol- lows: The Yuba river rises in the Sierra Nevada mountains, and, after flowing in a westerly direction about twelve miles across the plain after leaving the foot-hills, joins the Feather. At the junction, within the angle of these two rivers, is situated the city of Marysville. The Feather thence runs about thirty miles, iRobinson y. Black Diamond, rence, 77 Me. 297; Red River Roller etc., Co., 50 Cal. 461, and 57 Cal. Mills v Wright, 30 Minn. 249, 15 413, s. c. 40 Amer. Rep. 118; Wood- N. W. Rep. 167. ruff V. North Bloomfield, etc., Co., 29 ga^y. 44^^ g, {,. 18 Fed. Rep. 8 Sawy. 628, s. c. 16 Fed. Rep. 25; 753. and see Lockwood Co. t. Law- (148) Ch. 5] NATUilE AND EXTENT OF RIGHT. § 83 and empties into the Sacramento. These three rivers were orig- inally navigable for steam-boats and other vessels for more than a hundred and fifty miles from the ocean, at least as far as Marysville; the Sacramento being navigable for the largest-sized steamers. The defendants have for several years been and they are still engaged in hydraulic mining, to a very great extent, in the Sierra Nevada mountains, and have discharged and are dis- charging their mining debris, — rocks, pebbles, gravel, and sand, — to a very large amount, into the head-waters of the Yuba, whence it is carried down, by the ordinary current and by floods, into the lower portions of that stream, and into the Feather and the Sacramento. The debris thus discharged has produced the following effects: It has filled up the natural channel of the Yuba above the level of its banks, and of the surrounding coun- try, and also of the Feather below the mouth of the Yuba, to the depth of fifteen feet or more. It has buried with sand and gravel, and destroyed, all the farms of the riparian owners on either side of the Yuba, over a space two miles wide and twelve miles long. It is only restrained from working a similar de- struction to a much larger extent of farming country on both sides of these rivers, and from in like manner destroying or in- juring the city of MarysviUe, by means of a system of levees, erected at great public expense by the property owners of the county, and inhabitants of the city, which levees continually and yearly require to be enlarged and strengthened to keep pace with the increase in the mass of debris thus sent down, at a great annual cost, defrayed by means of special taxation. It has polluted the naturally clear water of these streams so as to render them wholly unfit to be used for any domestic or agri- cultural purposes by the adjacent proprietors. It has, to a large extent, filled the beds and narrowed the channels of these riv- ers, and the navigable bays into which they flow, thereby less- ening and injuring their navigability, and impeding and en- C149) § 83 LAW OF WATER EIGHTS. [Ch...5 dangering their navigation. All these effects have been con- tinually increasing during the past few years, and their still further increase is threatened by the continuance of the defend- ants' said mining operations. On this state of facts it was held that the acts complained of, unless authorized by some law, con- stituted a public and private nuisance, and might be enjoined. The defendants, first seeking the support of legislation for their acts, alleged that both congress and the legislature of Cal-- ifornia had authorized the use of the navigable waters of the Sacramento and Feather rivers for the flow and deposit of min-' ing debris; and, having so authorized their use, all the acts^ complained of were lawful, and the results of those acts could not, therefore, be a nuisance, public or otherwise. "It is not pretended," said the court, "that either congress or the legisla- ture of California has anywhere, in express terms, provided that the navigable waters of the state may be so used, but this au- thority is sought to be inferred from the legislation of both bodies, recognizing mining as a proper and lawful employment, and encouraging this industry, knowing that mining of the kind complained of could only be carried on successfully by discharg- ing the debris into, the streams in the mining regions, which must, from the necessity of the case, find its way into the nav- igable waters of the state. As to congress, it might be sufficient to say that it has no authority whatever to say what shall or what shall not constitute a nuisance within a state, except so far as it affects the public navigable waters, and interferes with foreign or interstate commerce, or obstructs the carrying of the mails. Under its authority to regulate commerce between the states, and to establish post-roads, congress may doubtless declare and punish as such the obstruction of the navigable waters of the state, as a nuisance to interstate and foreign commerce, but there its authority ends. The necessary results of the acts com- plained of clearly constitute a public and private nuisance, both (150) Ch. 5] NATURE AND EXTENT OF EIGHT. § 83 at common law and within the express language of the Civil Code of California." The court then proceeded to show that these acts were neither authorized nor justified by the act of congress of 1866, recognizing and regulating mining on the public lands of the United States; nor by the river and harbor bills of 1880 and 1882, for the improvement of the navigable rivers of California, although these acts recognize the injuries above described as existing facts; nor by the legislation of Cal- ifornia regulating mining operations, or purporting to permit the condemnation of lands for the use of miners, (Code Civil Proc. § 1238, sub. 5;) nor by the act of 1878, concerning the Sacramento and San Joaquin rivers, and recognizing the in- juries above described from the mining debris. And the court took occasion to remark that congress would have no power, even by express statute, to authorize a public nuisance destroying or materially obstructing the navigability of the streams within a state, for purposes wholly unconnected with the subjects of commerce or post-roads. Further, if there were any statute of the state of California expressly authorizing the acts of the de- fendants, and the injuries caused by them, it would be in con- flict with the fourteenth amendment of the constitution of the United States, and with similar provisions in the organic law of the state. Such legislation would either deprive the com- plainant and others of their property without due process of law, or would take or damage their property for an alleged public use without compensation. The defendants were therefore stripped of all color of statutory authority for their wrongful acts. But the defendants further claimed a right to do the acts com- plained of by prescription. The court, however, showed very conclusively from the authorities that there can be no such thing as a right to commit or continue a public nuisance, ac- quired by prescription. "It is a familiar principle that no lapse of time can confer the right to maintain a nuisance as against (151) § 8^^ LAW OF WATER EIGHTS. [Ch. 5 the state."' The last contention of the defendants was that their act* were authorized by the customs of miners, which had been recognized and confirmed by the legislation both of the state and of congress. But the court held otherwise; showing that a custom which should authorize the acts complained of, if any such existed, would be "in conflict with the laws and constitu- tion of the state," and would therefore be illegal and void. Such is an outline of this important case. The opinion — an able and exhaustive statement of the law — was delivered by Judge Sawyer. The next of the cases to which we have referred, and one of equal importance, is that of People v. Gold Run Ditch & Min. Co., in the supreme court of California, 1884.^ We give the statement of facts in the language of the court: "The record of the case shows that the Gold Run Ditch & Min. Co. has been since August, 1870, a corporation existing under the laws of the state of California, for the purpose of mining by the hydraulic process, and selling water to miners and others; and that it is now, and its predecessors have been for several years last past, in possession of five hundred acres of mineral land, situated ad- jacent to the North Fork of the American river, and of certain mines on said land, which it works by the hydraulic process. The natural surface of this land lies about one thousand feet above the river; and all the material of the mines upon the land —consisting of about twenty million cubic yards of material, composed mostly of sand, gravel, small stones, cobbles, and bowlders, mixed with small particles of gold — is capable of be- ing worked off into the river. For the purpose of mining this tract of land by the hydraulic process, the company has con- ducted to its mines, by means of ditches and iron pipes, a large quantity of water, which it uses, and will continue to use, un- 1 Citing Wood. Nuts. 790-792; Cooley, Torts, 613. 2 66 Cal. 13S, 4 Pac. Rep. 1153. (152) Ch. 5] NATURE AND EXTENT OF RIGHT. § 83 der a vertical pressure of several hundred feet, discharging wa- ter through ' Little Giants' and ' Monitors,' and dumping all the tailings from its mines into the river. In that manner it has been carrying on its mining operations upon said land for about eight years last past; and up to the time of commencing this ac- tion, and during about five months of each year of said period, has been daily discharging into the said river between four and five thousand cubic yards of solid material from its said mine, to-wit, of bowlders, cobbles, gravel, and sand, making a yearly discharge of at least six hundred thousand cubic yards, and will continue to discharge that quantity annually if the working of said mine be permitted to continue, and at such rate it will re- quire some thirty years to mine out and exhaust said mineral land. Of the material thus discharged into the river a large portion has been washed, from the place of discharge or dump, down the river, and, commingled with tailings from other hy- draulic mines, and still other material which is the product of natural erosion, has been deposited in the beds and channels of the American and Sacramento rivers and their confluents, but mostly in the American, and upon lands adjacent to both rivers. The deposits of this material upon the beds and along the chan- nels of the rivers, and through the Suisun bay, and into the San Pablo and San Francisco bays, have already filled and raised the beds of both rivers. The bed of the American has been raised from ten to twelve feet, and in some places more, and the bed of the Sacramento, to a great extent below the mouth of the American, from six to twelve feet. In consequence, the beds of the two rivers have shallowed, and their channels widened, so that the depths of the rivers have greatly lessened, and their liability to overflow has been materially increased, causing the frequent floods to extend their area, and to be more destructive than they otherwise would have been, and covering thousands of acres of good land in the Sacramento valley with mining de- Clo3) § 83 LAW OP WATER RIGHTS. [Ch. 5 bris. And as the rivers are at all times carrying in suspension the lighter earthy matter from the mines, and washing down the heavier debris, thej' are likely to fill more rapidly in the future in proportion to the quantity of hj'draulic tailings than in the past, and to cause much further and greater injury in the future to large tracts of land; probably rendering them, within a few years, unfit for cultivation and inhabitancy. Be- sides, the discharge from the mines so fouls the water of the American river at all points below as to fliake it unfit for any domestic use by the inhabitants. And, from the same cause, the navigation of the Sacramento river has been so greatly im- paired that the river, which, until the year 1862, was navigated as far as the city of Sacramento without difficulty by steamers of deep draught, to-wit, by boats drawing nine or ten feet of water, has been, since the year 1862, innavigable as far as the city of Sacramento by boats of deep draught, except during high water, instead of at all times, as formerly. And there is imminent danger, if the acts of the defendant and others en- |;aged in hydraulic mining are allowed to continue, that the beds and channels of the lower portion of the American river, and of the Sacramento river below the mouth of the American, will be so filled and choked up by tailings and other deposits that said rivers will be turned fromtheir channels, cutting new water-ways, injuring or destroying immense tracts of land, and probably will result in greatly impairing the navigability of the Sacramento river." The court held that a perpetual injunction against the hy- draulic operations of the defendant was rightly issued, inas- much as the acts complained of constituted a public nuisance. "As a navigable river," said McKee, J., "the Sacramento is a great public highway, in which the people of the state have paramount and controlling rights. These rights consist chiefly in a right of property in the soil, and a right to the use of the (154) Ch. 5] NATURE AND EXTENT OF EIGHT. § 83 Tvater flowing over it, for the purposes of transportation and commercial intercourse. The soil of a navigable river is the alveiis or bed of the river; the river itself is the water flowing in its channel. An unauthorized invasion of the rights of the public to navigate the water flowing over the soil is a public nuisance; and an unauthorized encroachment upon the soil it- self is known in law as a purpresture. * * * Great water highways belong to the same class of public rights, and are gov- erned by the same general rules applicable to highways upon land. Any contracting or narrowing of a public highway on land is a nuisance, and all unauthorized intrusions upon a water highway for purposes unconnected with the rights of nav- igation or passage are nuisances. * * * To make use of the banks of a river for dumping places, from which to cast into the river annually 600,000 cubic yards of mining debris, consist- ing of bowlders, sand, earth, and waste materials, to be carried by the velocity of the stream down its course, and into and along a navigable river, is an encroachment upon the soil of the latter, and an unauthorized invasion of the rights of the public to its navigation; and when such acts not only impair the navi- gation of a river, but at the same time aSect the rights of an en- tire community or neighborhood, or any considerable number of persons, to the free use and enjoyment of their property, they constitute, however long continued, a public nuisance. * * * But it is contended that, as the nuisance complained of, and found by the court, was the result of the aggregate of mining de&ris dumped into the stream by the defendant and other min- ing companies, acting separately and independently of each other, the acts of the defendant cannot be joined with the acts of other mining companies to create a cause of action against the defendant." But the court, upon a review of the authorities, found this last position untenable. Eeference was made to the case of (155) § 83 LAW OF WATER RIGHTS. [Ch. 5 Hillman v. Newington, 67 Cal. 62, and it was said: "This case clearly recognizes the equitable principle that, in an action to abate a public or private nuisance, all persons engaged in the commission of the wrongful acts which constitute the nuisance may be enjoined jointly or severally. It is the nuisance itself which, if destructive of public or private rights of property, may be enjoined." The court continued: "But it is also claimad that the defendant has acquired the right from custom, and by prescription and the statute of limitations, to use the American and Sacramento rivers as outlets for its mining debris; and that, in the exercise of this right, it cannot be restrained in its busi- ness of hydraulic mining, notwithstanding the consequent inju- ries to those rivers. Undoubtedly the fact must be recognized that in the mining regions of the state the custom of making use of the waters of streams as outlets for mining debris has prevailed for many years; and, as a custom, it may be conceded to have been founded in necessity, for without it hydraulic mining could not have been economically operated. In that custom the peo- ple of the state have silently acquiesced, and, upon the strength of it, mining operations, involving the investment and expendi- ture of large capital, have grown into a legitimate business, en^ titled, equally with all other business pursuits in the state, to the protection of the law. But a legitimate private business, founded upon a local custom-, may grow into a force to threaten the safety of the people, and destruction to public and private rights; and, when it develops into that condition, the custom upon which it is founded becomes unreasonable, because dan- gerous to public and private rights, and cannot be invoked to justify the continuance of the business in ah unlawful manner. Every business has its laws, and these require of those who are engaged in it to so conduct it as that it shall not violate the rights that belong to others. Accompanying the ownership of every species of property is the corresponding duty to so use it (156) Ch. 5] NATURE AND EXTENT OF KIGHT. § 84 as that it shall not abuse the rights of other recognized owners. * * * As to the claim of right derived from prescription and the statute of limitations, it is sufficient to say that the right to continue a public nuisance cannot be acquired by prescription, nor can it be legalized by lapse of time. Against it, however long continued, the state is bound to protect the people; and for that purpose the attorney general, as the law officer of the state, has the power to institute a proceeding in equity, in the name of the people, to compel the discontinuance of the acts which constitute the nuisance."' In a later case it was held that a corporation may be enjoined upon an ex parte application, without notice to it, from deposit- ing in or discharging mining dehrisvaio certain streams, or from selling water to others to be used for the purpose of washing, by the hydraulic process, any mineral lands into the channel of said streams or their tributaries, though the general, ordinary, and only business of such corporation is that of mining by the hydraulic process, or of selling water to others to be used for like purposes.^ § 84. Impounding dams. [The hydraulic mining companies, after the decisions referred to in the preceding section, began the erection of impounding dams across the streams utilized by them, for the purpose of arresting the progress of the debris into the rivers below. Some discussion has arisen in regard to the sufficiency of these dams, but the courts have not yet formulated a definite rule on the subject. Keeping in mind, however, the extent of the public I Citing Pettis v. Johnson, 56 Pac. R. R., 61 Cal. 250; People v. Ind. 139; Boston Rollins; Mills v. Stratton, 85 Cal. 242; Yolo Co. v. Cambridge, 117 Mass. 396; Wright Sacramento, 36 Cal. 193. V. Moore, 38 Ala. 593; People v. ^Eureka Lake & Yuba Canal Co. , Cunningham, 1 Denio, 524; Mills v. Superior Court, 66 Cal. 311, 5 V. Hall, 9 Wend. 815; Civil Code Pac. Rep. 490. Cal. § 3490; Sacramento t. Central (157) § 84 LAW OF WATER RIGHTS. [Ch. 5 and private interests which are jeopardized by the system of hy- draulic mining, they have held that no dam for impounding mining debris, erected in a mountain river, should be held suffi- cient to protect riparian and other proprietors below, upon any evidence not of the most unquestionable and satisfactory char- acter. "It is for the pecuniary interest of hydraulic miners," says Judge Sawyer, "to get out as much of the precious metals as possible, with the least possible expense. The interests of the moving party in this matter are simply to tide over the present, and escape injunctions until its mines can be worked out. What happens afterwards is no concern of its. As human -nature is constituted, the action of parties so situated, set in motion by an application of the coercive powers of the law, in the erection, at their own expense, and according to their own ideas, of im- pounding dams for the sole protection of the rights of those upon whom they commit trespasses, should be scrutinized with jeal- ous care by those who administer the laws, and whose impera- tive duty it is to see that each man shall so use his own as not to injure his neighbor. It may well be doubted whether any restraining dam, however constructed, across the channels of the main mountain rivers, of a torrential character, should be ac- cepted by the courts as a sufficient protection to the occupants of land in the valleys below liable to be injured. But, if any are to be accepted, they should only be those the ample sufficiency of which has been established upon testimony of the most un- questionable and satisfactory character. Nothing should be left to conjecture. This is not a matter of a single dam. A rule must be laid down applicable to the entire gold-bearing region. It will be no use to restrain one mine, if others are allowed to run. Besides, it would be unjust. AU doing injury must be stopped or restrained from contributing to further injury, or none."^] iHardt v. Liberty Hill Min. Co., 27 Fed. Rep. 788. , (158) Ch. 5] NATUBE AND EXTENT OF RIGHT. § 84 The question of the Sutiiciency of these impounding works has again come before the federal courts in certain cases to which we shall here briefly refer. In one, application was made, on behalf of the United States, for an injunction to restrain the hydraulic mining operations of the North Bloomfleld Grravel Mining Co., — the same company which had previously been enjoined. But it was satisfactorily shown to the court that the defendant had caused to be erected extensive works, by means of which it effectively impounded upon its own land, and within its own mine., all materials likely to injure the navigation of the streams. And it was held that the injunction should be denied.^ In the other case,^ however, it was shown that the dam con- structed in connection with the impounding works was of wood, standing in the bed of a torrential mountain stream, and of necessity liable to be carried away by freshets, so as to discharge aU the impounded debris into the streams, thereby causing great damage to navigation. And it was considered that the injunction should be granted. Mr. Circuit Judge Gilbert indicated the determining considera- tions in this case in the following language: "In deciding whether a mining operation conducted with this kind of an impounding device should be restrained by the court, I am moved, not so much by consideration of the question wheth- er or not the mining debris has been successfully impound; ed by the defendants heretofore, as by the probability of its escape from the impounding pool, and its consequent injury to the navigability of the lower streams in the fu- ture. The dam in question appears from the evidence to be strong and well built. It is doubtless capable of sus- taining great pressure. It is a wooden dam, however, and 1 United States v. North Bloom- ^ united States v. Lawrence, 53 field Gravel Min. Co., 53 Fed. Rep. Fed. Rep. 633. 635. (159) § 85 LAW OF WATER EIGHTS. ^Ch. 5 it stands in tlie bed of a torrential stream. It necessarily follows that it is liable to be carried away by freshets. The same forces that have broken similar dams heretofore are liable at any time to destroy this dam; and, if it should be thus destroyed, no one can doubt that all the mining debris now impounded above the dam would by the same destructive force be carried into the streams below." III. Extent of the Eight Acquired. § 85. Amount of water which, the appropriator is entitled to use. The amount of water which an appropriator is entitled to use ' — commonly designated as the extent of his appropriation — is a question of fact to be determined by a jury. The right of the prior appropriator in this respect is limited to the amount or extent of his actual appropriation, as against subsequent appro- priator? and claimants; and he cannot, after their subsequent rights have attached, by changing the place or nature of his use, or by enlarging his works, or otherwise, extend his claim, or in- crease the amount of water diverted or used, to the prejudice of such subsequent parties.' The extent of the appropriation and amount of water thereby taken may be determined hy the spe- cial purpose for which the appropriation was made; and in such a case the appropriator is entitled to so much water only as is nec- essary for that purpose; a change of the purpose which would in- crease the amount of water diverted would not be permitted as against subsequent claimants.^ Thus, in the case of Nevada » Nevada W. Co. v. Powell, 34 = Nevada W. Co. v. Powell, 34 Cal. 109; Ortman v. Dixon, 13 Cal. Cal. 109; McKinney v. Smith, 21 38; Higgins v. Barker, 43 Cal. 333; Cal. 874; Barnes v. Sabrou, 10 Nev. Davis V. Gale, 33 Cal. 36; Lobdell 317. [See, also, Stowell v. John- v. Simpson, 3 Nev. 374; Barnes v. son, (Utah) 36 Pac. Kep. 390; Sabrou, 10 Nev. 317; Atchison v. Quigley v. Birdseye, 11 Mont. 439, Peterson, 30 Wall. 514. 28 Pac. Rep. 741. In determining (160) Ch. 5] NATURE AND EXTENT OP EIGHT. § 85 W. Co. V. Powell, cited below, it was held that where the plain- tiff had appropriated a portion of the water of a stream, and had made a dam and ditch amply sufficient for his purpose, and had therebj' acquired the right to use such portion only of the water, and in such manner only, he cannot encroach upon the rights of subsequent appropriators by extending his use beyond the first appropriation. By the plaintiff's erections and use for several years, other persons had a right to suppose that he had thereby defined and determined his own rights as to amount of water, and to act accordingly by appropriating the surplus to their own uses. On the other hand, if a prior appropriation has been made of a certain amount or quantity of the water, in- dependently of any particular use or purpose, the appropriator may afterwards, as against subsequent claimants, change either the place or the nature of his use, provided such change does not increase the amount of water diverted and used.^ the amount of water appropriated for useful or beneficial purposes, the number of acres of land claimed or owned by each party, and the amount of water neces- sary to the proper irrigation of the same, Should be taiien into consideration. Kirk v. Bartholo- mew, (Idaho,) 29 Pac. Kep. 40. The sale by plaintiffs of a part of the water claimed by prior ap- propriation does not show that they attempted to appropriate more than they needed, where it appears that all the water of the strearns was not sufficient to irri- gate their land. Drake v. Ear- hart. (Idaho,) 23 Pac. Rep. 541.] » Davis V. Gale, 32 Cal. 26; Kidd V. Laird, 15 Cal. 161; Woolman v. Garringer, 1 Mont. 535. [Where a party has appropriated water for LAW W. R. — 11 the purpose of irrigation, the amount of water to which he is en- titled, as against subsequent ap- propriators, is limited to the amount actually applied to the purposes of irrigation. Simpson V. Williams, 18 Nev. 432, s. c. 4 Pac. Rep. 1213. The grantee of an undivided half of a sufficiency of water for a certain purpose takes by his grant no more than one-half of the whole quantity of water in the stream, whenever such quantity is, by natural causes, diminished below such sufficiency. Dow V. Edes, 58 N. H. 193. The diversion of water from a natural stream, on the part of one who has conducted some water to it, will be restrained at the suit of a ripa- rian proprietor, unless the former shows that he has not diverted. (161) § 86 LAW OF WATER RIGHTS. [Ch. 5 § 86. Carrying capacity of ditch. Where the prior appropriation extends to all the water flow- ing in the stream at the point of diversion, the appropriator may enlarge his ditch at pleasure, and so increase the amount actu- ally diverted, and other parties whose claims to the stream are subsequent cannot complain of such enlargement."^ Where the prior appropriation extends only to a portion of the stream, and is determined by the amount actually diverted, the measure of such appropriation and of the appropriator's right seems to be the quantity of water which could actually be carried by his ditch in the size and condition in which it was when the subse- quent appropriation above him on the stream was made. The rule under these circumstances is thus stated by the supreme court of California: "He is entitled to have the water [of the stream flowing down to his ditch] undiminished in quantity, so as to leave sufficient to fill his ditch as it existed at the time the subsequent appropriations above him were made."^ The supreme court of Nevada has formulated the rule in somewhat more precise terms: "It seems that the quantity of water appro- priated is to be measured by the capacity of the ditch or flume from it more water than he led to an open ditch or flume, as in such it. Wilcox V. Hausch, 64 Cal. 461, case the amount which reaches the B. c. 3 Pac. Rep. 108. The prior place of use is not the same as appropriator of water has the prior that diverted, and the appropri- right to its use to the extent, in ator is entitled to such an amount, amount and time, of his first ap- allowing for waste, as will yield propriation, and (it seems) to the the amount required at the place extent to which he was preparing of use, and he is not obliged to to use it. Lehi Irrigation Co. v. substitute iron pipes. Barrows v. Moyle, 4 Utah, 327, 9 Pac. Rep. Fox, (Gal.) 33 Pac. Rep. 811.] 867. A decree enjoining an appro- ^ James v. Williams, 31 Cal. 211. priator of water against diverting In Feliz v. City of Los Angeles, 58 from a stream any greater quanti- Cal. 73, it was held that the city ty of water than will flow through had acquired a right to all the wa- an iron pipe of a certain size, ter of a river, and that plaintiff's which is found to be the amount use was permissive, not adverse, required by him, is erroneous, ^Bear River, etc., Co. v. New where the water is conducted in York M. Co., 8 Cal. 327. (162) Ch. 5] NATURE AND EXTENT OF EIGHT. § 87 at its smallest point; that is, at the point where the least water can be carried through it."' § 87. True capacity of ditch the proper measure. It may well be doubted, I think, whether there is any mate- rial diflerence between these two modes of expressing the rule. But the actual physical condition of the ditch at the time the use of the water by its means began, and during some period of time alter such commencement, and the amount of water actually di- verted and carried by it at and during these times, do not always furnish an inflexible test or measure of the extent of the appro- priator's right. The ditch might be so imperfectly constructed, with irregular and improper grades, and with incomplete exca- vation, that it could not actually carry so large an amount of water as its general plan and size rendered it capable of carry- ing, and as its proprietor had intended to appropriate. Under these circumstances, unless the use of the ditch had continued so long a time as to show- an intention of the appropriator to adopt it in its existing imperfect condition, the proprietor would be entitled to perfect his ditch by removing obstructions, im- proving the grades, and the like, so that it could actually carry the amount of water indicated by its general size and character, and originally intetided to be appropriated; and the increase in the actual flow of water thus caused would not be an invasion of the rights of subsequent appropriators, although their rights ^Opliir Silver M. Co. v. Carpen- domestic uses; but if the capacity ter, 6 Nev. 393; 4 Nev. 534. Also of his ditches is not more than suf- in Barnes v. Sabron, 10 Nev. 217, flcient for those purposes, then, the court held that where the prior under the facts of this case, no appropriator of a stream has con- change having been made in the structed ditches in order to irrigate ditches since their construction, his land, if the capacity of his and no question as to the right of ditches is greater than is necessary their enlargement being involved, to irrigate his farming land, he he must be restricted to the capac- must be restricted to the quantity ity of his ditches at their smallest needed for the purposes of irriga- point, tion, of watering his stock, and of (163) § 87 LAW OF WATEH EIGHTS. [Ch. 5 accrued before the improvements were made. The case of White V. Todd's Valley W. Co.^ arose out of such circumstances. The defendants had made a ditch for mining purposes; and the plaintiff afterwards made a ditch, taking water from the same stream. The plaintiff complained because the defendants had enlarged their ditch, after the plaintiff's appropriation, and had thereby caused a diversion of a greater amount of water, to the plaintiffs injury, and prayed for an injunction. The court held that the defendants were not restricted to the amount of water actually taken by their ditch at the very beginning of its use, un- less by its general plan, size, and grade it was not capable of carrying more water than was then actually taken by it. If by reason of obstructions in the ditch, or irregularity of its grade at that time, it was not capable at first of taking so much water as its general plan and size would indicate, the defendants would have a reasonable time within which to remove such obstruc- tions or to adjust the grades, and could then divert the water to the full capacity of the ditch. But if the defendants contin- ued to take only the original quantity of water long enough to indicate an intent to divert only that amount, or if they delayed for an unreasonable time to remove the obstructions or regulate the grades, then they would be restricted to the amount thus actually taken at first, and the plaintiff would be entitled to all the residue. The rule laid down by this decision is plainly con- fined, in its scope and operation, to the very special circum- stances above described; it can hardly be regarded as furnishing any general test or measure of the amount included in a prior appropriation. [In Montana, it is ruled that the measure of the appropriator's right to water is the number of inches that Ms ditch would convey from the point of diversion without running over its banks.^ And in a later case in that court, it was considered that an instruction that the 18 Cal. 443. 2Caruthers v. Pemberton, 1 Mont. 111. (164) Oh. 5] NATURE AND EXTENT OF EIGHT. § 88 extent of the appropriation of water was determined by the capacity of plaintiff's "head-gate and ditches and the quantity of water required" by him, to be measured as the statute directs, was not erroneous in making the test the head-gate, instead of what the ditch would carry .^ In Cali- fornia, it is said that evidence of the width and depth of the appropriator's ditch is insufficient to show its carrying capacity, in the absence of any evidence as to the velocity of the water or the grade of the ditch.^] A few other cases, which deal only with questions of fact as to the amount of water appropriated, are cited in the foot-note.^ § 88. Measurement of -w^ater. [The unit for the measurement of water, established by statute in several of the Pacific states and territories and recognized and employed in all, is the "inch." By this term is meant the volume of water which would be discharged from an aperture one inch square under a given head or pressure. But the theoretical discharge from such an ori- fice is greater than the experimental discharge, the two standing in a ratio to each other of about ten to six. It follows that in any controversy involving the extent of the rights of an appropriator or ditch owner, as measured in inches of water, it will be necessary to determine whether the amount is to be understood as the actual or theoretical flow from an aperture of the given dimensions under the designated head. And this will depend upon whether or not the word "inch" has acquired a well-defined technical meaning. The judicial decisions upon this question are exceedingly few, and cannot be said, as yet, to have deter- mined the rule finally and conclusively. In an important iCarron v. Wood, 10 Mont. 500, Reynolds v. Hosmer, 51 Cal. 205; 26 Pac. Rep. 388. Dougherty v. Haggin, 61 Cal. 305; 2 Last Chance "Water Co. v. Heil- Stein Canal Co. v. Kern Island Co., bron, 86 Cal. 1, 26 Pac. Rep. 5£3. 53 Cal. 563. SHiggins v. Barker, 42 Cal. 233; (165) § 88 LAW OF WATER RIGHTS. [Ch. 5 case recently decided in Wisconsin, the court was asked to rule that the term "square inch of water" had a clear and well-defined technical meaning, and that it meant a stream of water with a cross-section area of one square inch, moving with the velocity due to a given head. But the court held that, at any rate, the term had no such tech- nical meaning in the year 1860, when the grant In question was made, and therefore that evidence was admissible of the circumstances surrounding the making of the grant, as showing the signification which the parties intended to at- tach to the term used.^ In the case at bar it appeared that the owner of a canal and water-power had granted to another person the right to draw and use "2,000 inches of water under an 11-foot head." The apertures constructed by the grantee in the flume leading to his miU, and which were used for a number of years, aggregated in superficial area 1,980 square inches. The water discharged from an aperture of 2,000 square inches would have been 62 per cent, of the theoretical discharge due to a stream having a cross- section of like area and moving at the velocity due to the stated head. The theoretical discharge would have almost equalled the capacity of the canal. It was held that the preparation of the openings with a superficial area within a few inches of the grant was a controlling circumstance in determining its construction, and the grantee had a right to as much water as would, under a head of 11 feet, flow through a simple orifice of 2,000 square inches area in the side of a flume.^ In the decisions to which we have here referred, the learned court admitted that "the testimony shows that the tendency among wheel vendors and mill men for some years has been and is to attach to the term 'inch of water' the meaning of the theoretical inch;" but 1 Janesville Cotton Mills v. Ford, (Wis.) 52 N. W. Rep. 764; Jackson Milling Co. v. Chandos, (Wis.) Id. 759. 2 Jackson Milling Co. v, Chandos, supra. (166) Ch. 5] NATURE AND EXTENT OF EIGHT. § 88 it was stated that "it does not appear that such theoret- ical arbitrary meaning has yet crystallized so as to be controlling, like the meaning of the term 'foot of lumber,' or other arbitrary terms which are known and recognized without dispute." And in another place it was said that if the question had related solely to deeds executed within the last decade, the argument in favor of attaching to the disputed term the meaning of a theoretical inch would have been much stronger. So far as regards the Pacific states, we do not find that the courts have as yet passed upon this exact question. But we understand that the general and well-recognized usage of those communities attaches to the phrase "inch of water" the meaning of the practical inch, as determined by actual measurement of the water, that is, the volume of water actually discharged from an aperture having a superficial area equal to the given number of inches, under a constant head, which latter is determined either by being specified by the parties, by local usage, or, in some states, by statutory regulation. And we apprehend that the courts will rule in accordance with this understanding and usage, when called upon to determine the question, unless, in the particular case, there should be satisfactory evidence that the parties concerned intended to use the term in a different signification.1] 'In a controversy concerning inches of water in a stream by water rights, the findings should prior appropriation, and it ap- state the quantity of water the pears that there were but 150 inch- plaintiff is entitled to have flow es therein, failure to find under past the defendant's ditch in inch- what pressure the water is meas- es or gallons, and not merely by ured is not prejudicial to defend- fixing the width, depth, and grade ant, who claims as riparian own- of the ditch. Lakeside Ditch Co. er. Drake v. Earhart, (Idaho,) 23 V. Crane, 80 Cal. 181, 23 Pac. Kep. Pac. Eep. 541. 76. Where plaintiff claims 600 (167) § 90 LAW OF WATER RIGHTS. [Ch. 5 IV. Successive Appropriatoes. § 89. Rights of subsequent appropriator. In the previous sections, which particularly describe the mode of effecting a prior appropriation, the rights of the prior appro- priator, and the amount of water included within a prior appro- priation, the relations of the subsequent appropriators, and es- pecially the limitations or restrictions upon their rights growing out of the superior claims of the prior appropriator, have neces- sarily been involved and stated. I shall not repeat the discus- sions of these previous sections, and reference must be made to them in order to obtain a full view of the relations subsisting between the prior and the subsequent appropriators, and the limitations placed upon the rights which can be acquired by the latter parties. In the present section I purpose to de- scribe the affirmative rights, which may be obtained and held by subsequent and successive appropriators, to divert and use the waters of a public stream which have already been appro- priated by the prior acts of another party. § 90. Successive appropriations. Whenever a certain person, A. , has made a prior appropria- tion at a certain point on a stream, even though of the whole amount of water, it has already been shown that another party, B., may make a subsequent appropriation at a place higher up on the stream, may divert and use the waters, and return them, undeteriorated in quality and undiminished in quantity, into the natural channel of the stream above the head of A.'s ditch, and no right of A.'s would thereby be infringed, because his use of the water would not be in any way interfered with.' This particular case is simply an instance of the following general iSee ante, g 55. (168) Ch. 5] NATURE AND EXTENT OF EIGHT. § 90 doctrine, which has been firmly settled by numerous decisions: A prior appropriation having been made on a public stream, the residue or surplus remaining of its waters, not embraced within the amount of such prior appropriation, may afterwards be appropriated, either above or below on the same stream, by other parties, if no interference with the rights of the prior ap- propriator is thereby caused. The doctrine extends to and ad- mits of a succession of such appropriators; and there is no limit to its operation, except such physical limits as arise from the size of the stream itself and the amount taken by each claimant. Among the successive appropriators, each is in the position of a prior one towards all who are subsequent to himself.^ This gen- eral doctrine has been stated in the following modes by different decisions: "In controversies between prior and subsequent ap- propriators of water, the question is, has the use and enjoyment of the water, for the purposes for which the first appropriator claims it, been impaired by acts of the subsequent claimant?"^ A Lux V. Haggin, 69 Cal. 255, 10 Pac. Rep. 705-711. (249) § 130 LAW OF WATER EIGHTS. [Ch. 7 affected by the provisions of the Civil Code. It is also held that the common law as to riparian rights was not abrogated by cer- tain statutes of the state applicable to a district of country within which is included the county of Kern, nor was the state estopped. by such statutes from asserting its right to the flow of a natural stream from that district to and over the lands granted to the- state by the act of congress of 1850.^] § 130. Common lavr of England. [The rights of riparian owners in California are to be deter- mined by the common law, because these rights are excepted from the operation of the Code, and because the common law was adopted as the rule of decision in that state by the act of April 13, 1850. This statute, it is held, adopts the common law of England, not the civil law, nor the "ancient common law" of the civilians, nor the Mexican law, nor any hybrid sys- tem. And in ascertaining the common law of England, say the court, "we may and should examine and weigh the reasoning of the decisions, not only of the English courts, but also of th& courts of the United States, and of the several states, down to the present time." "The report of the proceedings of the legis- lature shows that there was a considerable minority in favor of the adoption of the civil law; and there are circumstances ap- pearing from the proceedings tending to prove that the advan- tages of each system, as the fundamental law of the future, were discussed and fully considered. Under these circumstances, 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. Moreover, it is a well-established principle that, when the legislature of this state has enacted a statute like one previously existing in other states, the courts here may look to iLux V. Haggin, 69 Cal. 355, 10 Pac. Rep. 735. (250) Ch. 7] RIPARIAN EIGHTS. § 132 the interpretation of such statute by the courts of the other states. "H § 131. Who are riparian ow^ners. [Where a party has a contract for the purchase of lands ad- joining a river, upon conditions not yet fulfilled by him, he has not yet acquired the fee, and cannot invoke the doctrine of ri- parian rights in his favor. ^ But one who, though not a riparian owner, derives his right to the use of running water from a ri- parian proprietor, may restrain an interference with such right by an upper riparian proprietor who uses the water for purposes not riparian.* So where adjoining land-owners agree that the waters of a certain stream be taken to a reservoir on the land of one of them, and that the other shall conduct half of the water through ditches to his land, these are covenants that run with the land, and the successor of either party has no right to go to a point higher up than where the stream reaches their adjoining lands, and convey the water to his land by some diS'erent means, and claim the whole of it for his own use.^ But it is held that a mere intruder on land is limited to his actual possession, and the rights of a riparian proprietor do not attach to him.° And so also, a mere possessor of unsurveyed government land has no riparian rights to the use of a stream of water flowing through it.^] § 132. Prescriptive crater rights. [While the common law recognizes no such thing as an ex- clusive right acquired by mere priority of appropriation of wa- iLux V. Haggin, 69 Cal. 355, 10 ^-vy^eiU v. Baldwin, 64 Cal. 476, Pac. Rep. 746, 749. s. c. 3 Pac. Rep. 249. 2 Smith V. Logan, 18 Nev. 149, s. 6 Watkins v. Holman, 16 Pet. 25. c. 1 Pac. Rep. 678. 'Lake v. Tolles, 8 Nev. 285. 3 Williams t. Wadsworth, 51 Conn. 277. (251) § 132 LAW OF WATER EIGHTS. [Ch. 7 ter, it must be remembered that the riparian owner may obtain exclusive interests in the stream by grant or by prescription. In regard to the last named it is said: "The right acquired by prescription is only commensurate with the right enjoyed. The extent of the enjoyment measures the extent of the right. The right gained by prescription is always confined to the right as exercised for the full period of time required by the statute, which is, in this state, five years. A party claiming a prescrip- tive right for five years, who, within that time, enlarges the use, cannot, at the end of that time, claim the use as enlarged within that period."' The owner of a mill-dam cannot acquire a right by prescription to overflow adjoining lands while they belong to the United States or to the state.^ And so, if a party has acquired by prescription a right to divert water so that it flows into a creek running through his neighbor's land, such prescriptive right does not extend to the overflowing of the wa- ter over such land to the neighbor's injury. ^ Where a riparian owner has used the waters of a stream for the pur- pose of irrigation, and has acquired a prescriptive right thereby, a lower riparian proprietor cannot obtain an injunc- tion restraining, his so doing on the ground that the diver- sion of the water has become injurious through a gradual diminution in the natural volume of the stream.* But the right to the exclusive use of the water of a stream for irri- gating purposes cannot be acquired by adverse possession, where, during the tinie in which such prescriptive right is claimed to have accrued, there has been an abundant supply of water in the stream for all claimants.^ In Maine, it is 1 Boynton v. Longley, 19 Nev. 69, •• Messinger's Appeal, 109 Pa. St. 6 Pac. Rep. 437, Hawley, J. 385, 4 Atl. Rep. 163. 2Wattierv. Miller, 11 Or. 329, s. 6 Anaheim Water Co. v. Semi- c. 8 Pac. Rep. 354. tropic Water Co., 64 Cal. 185, 30 3 Tucker v. Salem Flouring-Mills Pac. Rep. 638. Co., 13 Or. 38, s. c. 7 Pac. Rep. 53. C2o2) Ch. 7] EIPAEIAN RIGHTS. § 133 said that a right to the artificial flow of water through a water-course may be acquired by prescription.^ And this seems also to be the doctrine of the Pacific states.^] § 133. Loss of riparian rights by adverse user and estoppel. [In the preceding section we saw that while a riparian owner, merely as such, has no right to the exclusive use of the stream, he may acquire such a right by grant or pre- scription. It now remains to be stated th^t the converse of this rule is equally of force; that is, that the rights at- taching to the estate of a riparian owner, in virtue of such ownership, may be lost or forfeited by the exclusive adverse use of the stream by another person, continued for a suffl- cient length of time, or on the grounds of equitable estoppel. Thus, an adverse, exclusive, and uninterrupted use and en- joyment by one person and those under whom he claims, of all the waters of a stream, taken therefrom by means of a ditch, and conveyed to certain mining grounds for min- ing purposes, for a period beyond that of the statute of lim- itations prescribing the time within which entry shall be made upon real property, wiU bar the owner of the land through which the stream runs of his riparian rights.^ But here it is necessary to distinguish between the ac- quisition of water rights by prescription and the statutory appropriation of such rights under the system explained in the earlier parts of this work. In those states where the JMurchie v. Gates, 78 Me. 304, 4 & F. C. Co., 76 Cal. 11, 17 Pac. Eep. Atl. Rep. 698; Dority v. Dunning, 933; Last Chance Water-Ditch Co. 78 Me. 681, 6 Atl. Rep. 6. v. Heilbron, 86 Cal. 1, 36 Pac. Rep. ^Trambley v. Luterman, (N. 523; Spargur v. Heard, 90 Cal. 221, Mex.) 27 Pac. Rep. 312. 27 Pac. Rep. 198; Chauvet v. Hill, ^Huston V. Bybee, 17 Oreg. 140, 93 Cal. 407, 38 Pac. Rep. 1066; Ball 30 Pac. Rep. 51. See, also, Faull v. Kehl, 95 Cal. 606, 30 Pac. Rep. V. Cooke, 19 Oreg. 455, 26 Pac. 780. Eep. 662; Heilbron v. Kings Riyer (253) § 133 LAW OF WATER EIGHTS. [Ch. 7 rights of riparian proprietors, as such, are recognized and protected, no appropriation can confer upon the appropri- ator any rights which would be in derogation of riparian rights on the same stream already vested. In such a case, therefore, the technical appropriation of the water is of no avail. At the same time, while it would be an unlawful act, in the sense of being actionable, still, if allowed to pass by the riparian owner, it may incidentally serve a useful purpose, viz. that of giving notice. But if the appropriator ultimately acqmres rights adverse to those of the riparian proprietor, it will not be in consequence of the appropria- tion, but in consequence of his adverse user during the statutory period. Upon this point the supreme court of California has spoken as follows: "The term ^appropria- tion,' as applied to the acquirement of the right to the use of water, has in this state a statutory technical meaning; and the simple act of appropriation under the statute will not of itself defeat or extinguish any prior right. Actual and uninterrupted user, however, with or without the stat- utory appropriation, if adverse, for a useful purpose, and under claim of right, continued for the period prescribed by the statute of limitations, gives a prescriptive right which will extinguish the rights of the riparian propi-ietor. Statutory appropriation, therefore, is not necessary to pre- scription, but it gives to one who seeks to acquire a right by prescription this advantage, that it gives to prior claim- ants notice that his user is adverse and under claim of right, and sets the statute in motion against such prior claimant."^ The adverse user, however, must be continued without interference on the part of the riparian owner. For ex- ample, repeated and long-continued incursions on the ri- parian owner's land by the appropriator, for the purpose of diverting the water into the latter's ditch, will give him no 1 Aha L. & W. Co. V. Hancock, 85 Cal. 219, 34 Pac. Rep. 645. C254) Ch. 7] EIPABIAN RIGHTS. § 133 prescriptive rights, where the riparian owner restored the water to its natural channel as often as he discovered the diversion.! Also it is necessary that the adverse use should be continuous. But it is held that the adverse user of an irrigating ditch, through the lands of another, only during the cropping season, the ditch not being needed at other times, constitutes a continuous adverse user, as the omission to use when not needed does not break the con- tinuity of the user.2 A "squatter" who enters upon, occu- pies, and cultivates part of the riparian land of another, claiming adversely in the belief that it is govermnent land, can gain no title to the use of the waters of the stream by diverting and using them for purposes of irrigating such land, since such use inures to the benefit of the true owner, and is not adverse to him; and it can make no difference that 'Last Chance Water-Ditch Co. v. Heilbron, 86 Cal. 1, 36 Pac. Rep. 523. ^HesperiaL. &W. Co. v. Rogers, 83 Cal. 10, 23 Pac. Rep. 196. In this case, the court observed: "The correct rule as to continuity of user to give a presumptive right to an easement, and what shall constitute such continuity, can be stated only with reference to the nature and character of the right claimed. The right is not abandoned to the use of a ditch to convey water for purposes of irrigation because water does not flow in it every day in the year. The party claimant does not need the ditch every day in the year, and the law does not require him to constitute continuity of use to use the water when he does not need it. If he has used the ditch at such times as he needed it, it is regarded by the law as a continu- ous use. If a right of way over another's land has been used for more than five years, it is not nec- essary to make good such use that the claimant has used it every day. He uses it every day, or once in every week, or twice a month, as his needs require. He is not re- quired to go over it when he does not need it, to make his use of the way continuous. The claimant is required to make such reasonable use of the way as his needs re- quire. So it is of the ditch. If, whenever the claimant needs it, from time to time, he makes use of it, this is a continuous use. An omission to use when not needed does not disprove a continuity of use, shown by using it when need- ed. Bodfish V. Bodfish, 105 Mass. 319. Neither such intermission nor omission breaks the continu- ity. " (255) § 133 LAW OP WATER RIGHTS. [Ch. 7 the land irrigated does not border on the stream, since such land is not segregated in title by the occupancy, but remains part of the entire riparian tract.i And no prescriptive right, as against the uses to which an upper riparian pro- prietor may employ the water of the stream, oan be acquired by the lower proprietor by merely diverting and using the water below.^ The riparian owner may also be precluded, in certain uases, on the ground of estoppel, from insisting upon his riparian rights. Thus, in a case in Oregon, it appeared that the defendant had diverted the water of a stream under a claim of title, and he believed, and had reason to believe, that the claim was well founded, and the plaintiff, the ri- parian owner, stood by without asserting or making known his claim, while the defendant was expending large sums of money and making extensive improvements under an honest and reasonable belief that he had the right to make such diversion, and without which right his expenditures would prove a total loss. And it was held that the plaintiff should not be permitted to set up his riparian interest.* But the fact that riparian owners made no objection to the use of water by an appropriator during seasons of abun- dance, when it naturally flowed down the river, gives the appropriator no prescriptive right to change the course of the flow in seasons of scarcity for the purpose of contin- uing the snpply.* And it has been held that the rights of riparian owners are not lost by mere non-user of them.^ 'Alta li. & W. Co. V. Hancock, Buckingham v. Smith, 10 Ohio, S97, (264) Ch. 7] , RIPARIAN RIGHTS. § 134 They are as much individual property as the stones scattered over the soil. ' Chancellor Kent says:' 'A right to a stream of water is as sacred as a right to the soil over which it flows. It is a part of the freehold of which no man can be disseized but by the lawful judgment of his peers, or by due process of law.' It is said in the note to Ex parte Jennings:^ 'The general dis- tinction deemed of so much excellence and importance by these learned judges, and which at this day no lawyer will hazard his reputation by controverting, is that rivers not navigable — that is, fresh-water rivers of what kind soever, do of common right be- long to the owners of the soil adjacent, to the extent of their land in length; but that rivers where the tide ebbs and flows be- long of common right to the state.' In Wadsworth v. Tillot- son,^ speaking of the rights to a water-course, the supreme court says: 'This right is not an easement or appurtenance, but is inseparably annexed to the soil, and is parcel of the land itself. " Chief Justice Shaw says:* 'The right to flowing water is now well settled to be a right incident to property in the land.' In another case the same judge says:* 'It is inseparably annexed to the soil, and passes with it, not as an easement or as an appur- tenance, but as parcel. Use does not create it, and disuse can- not destroy nor suspend it.' The supreme court of North Car- olina says:^ 'The right is not founded in user, but is inherent in the ownership of the soil, and, when a title by use is set up as against another proprietor, there must be an enjoyment for such a length of time as will be evidence of a grant.' * * * 'The common right here spoken of is not that existing in all men in respect to things puhlici juris, but that common to the proprietors of the land on the stream. And, as between them, 1 Gardner v. Village of New- < Elliot v. Fitchburg R. R., 10 ■bui-gh, 3 Johns. Cli. 166. Cush. 193. 2 6 Cow. 543. ^Johnson v. Jordan, 3 Mete. 339. = 15 Conn. 373. epugh v. Wheeler, 3 Dev. & B. 65. (265) § 134 LAW OP WATER EIGHTS. [Ch. 7 the use to which one is entitled is not that which he happens to get before another, but it is that which, by reason of his own- ership of the land on the stream, he can enjoy on his land and as appurtenant to it.' The supreme court of Vermont say:' ' The owner of land has rights to the use of a private stream run- ning over his land peculiar to hiniself as owner of the land, not derived from occupancy or appropriation, and not common to the whole community. It is the right to the natural flow of the stream. Of this right he cannot be deprived by the mere use or appropriation by another, but only by grant, or by the use or occupancy of another, for such length of time as that there- from a grant may be presumed . ' " The right to the water of run- ning streams being thus an incident of ownership by a ri])arian proprietor is held by the United States as completely as by any private owner, and necessarily passes to its grantee by the pat- ent which conveys the full legal title to the tract of land border- ing on the stream. In examining still more closely the nature of the right, and showing that it does not depend upon actual use or appropriation of the water by a riparian owner, the learned chief justice most ably proceeds as follows, (pages 268- 272:) "If a stream be an incident to the land, it can no more be diverted, simply because it cannot be presently used by the person owning tlie land, than he can be deprived of any other property for the same reason. The whole argument on this point evidently originates out of an utter misunderstanding of what is meant by the language, when it is said that the riparian proprietor 'has no property in the water itself, but simply a- usufruct while it passes along.' The reason for this expression is this : that as each proprietor has a right to the flow of the- stream through his land as it was wont to flow, as it is the com- mon property of all the owners of the soil through which it 'Davis V. Fuller, 12 Vt. 178. (266.) Ch, 7] RIPARIAN MIGHTS. § 134 passes, no one of them can have such a property in the water as will entitle him to consume or divert it all from those on the stream below him, as he might do if he had an absolute prop- erty in the water itself; hence the expression so often used. It is, however, never employed as limiting the entire right of the riparian proprietor to the mere use of the water. He has another right, and one which is universally admitted; that is, the right to have the stream continue to flow through his land, irrespect- ive of whether he may need it for any special purpose or not. He has the right to the natuial benefit which a stream affords, independent of any particular use, for the fertility which its nat- ural flow imparts to the soil. In other words, his right has a double aspect: First, the right of having the course of the stream continued through his land, which is absolute and complete, as against all the world; and, secondly, the right to make such use of the water, as it passes through his land, as will not damage those who are located on the same stream, and are entitled to equal rights with himself. If this be not the character of his right, what is to be understood by the maxim too often quoted, and which lies at the foundation of water rights, aqua currit et debet currere ut currere solehat? This is substantially that no man has the right to divert a stream from its natural course; for to say that water should be permitted to run as it used to, is a prohibition upon all to divert it from its course; and thus the very maxim shows the proprietors have the right to claim that the stream shall be permitted to run through their land in its natural channel, independent of whether they make any particular use of it or not. Suppose there be a water-fall or water-power upon a tract of land, and it may be supposed that the tract is valuable only for a mill-site, but is not presently used, will it be said that its whole value may be destroyed by the diversion of the water, or that a valuable mineral spring, which is not yet used, may be abstracted from it, and that the (267) § 134 LAW OP WATER EIGHTS. [Ch. 7 owner had no remedy, simply because he had not appropriated it to some useful purpose when the diversion or abstraction took place? Indeed, the authorities are, without exception, that the right to have the water flow in its accustomed channel does not depend upon the fact that any special use is or may be made of it by the proprietors; and no case, no dictum, and no intima- tion of opinion to the contrary, when rightly understood, can be found in the books. It is said by Mr. Phear^ 'that every ri- parian proprietor has a right, whether he uses the stream or not, to have its natural conditions within his own limits pre- served from sensible disturbances arising from acts on the part of the riparian proprietors, whether above or below, or on the opposite banks.' The court of king's bench say :^ ' The propo- sition that the first occupant of running water for a beneficial purpose has a good title to it, is perfectly true in this sense, viz., that neither the owner of the land below can pen back the wa- ter, nor the owner of the land above divert it to his prejudice. In this, as in any other case of injury to real property, posses- sion is a good title against a wrong-doer, and the owner of the land who applies the stream that runs through it to the use of a mill newly erected, or to other purposes, if the stream is di- verted or obstructed, may recover for the consequential injury to the mill. But it is a very different question whether he can take away from the owner of the land below one of its natural advantages, which is capable of being applied to profitable purposes, and generally increases the fertility of the soil even where unapplied, and deprive him of it altogether by anticipating him in its ap- plication to a useful propose. If this be so, a considerable part of the value of an estate might at any time be taken away; and by parity of reasoning a valuable mineral spring might be ab- stracted from the proprietor in whose land it rises, and converted 'Phear, Water-Courses, 31. 2 Mason v. Hill, 5 Barn. & Adol. 11. (268) Ch, 7] RIPARIAN RIGHTS. § 131: to the profit of another.' Mr. Justice Creswell says: ^ 'It ap- pears to us that all persons owning lands on the margin of a flowing stream have, by nature, certain rights to use the water of that stream, whether they exercise those rights or not.' And Lord EUenborough says:^ 'The general rule of law as applied to this subject is that, independent of any particular enjoyment used or to be had by another, every man has a right to have the advantage of a flow of water in his own land.' The supreme court of Massachusetts says:^ 'If the use which one makes of his right in the stream is not a reasonable use, or if it causes a substantial and actual damage to the proprietor below by dimin- ishing the value of his land, though at the same time he has no mill or other work to sustain present damage, still, if the party then using it has not acquired a right by grant, or by actual appropriation and enjoyment for twenty years, it is an encroach- ment on the right of the lower proprietor for which an action will lie.' The learned Chief Justice Ruffin of North Carolina says upon this point:* ' The argument of the counsel, however, assumes that the right to water can be acquired only by use, and therein we think consists its error. The dicta on which he relies had reference to the cases of prescriptive title, or where the party had only the rights of a possessor. But it is not true that the right to water is acquired only by its use, and that it cannot exist independent of any particular use of it. That doc- trine is correctly applied to the air and to the sea, or such bod- ies of water as from their immensity cannot be appropriated by individuals, or ought to be kept as common highways for the constant use of the country and the enjoyment of all men. In such case particular persons cannot acquire a right, — that is, a iSampsonv. Hoddinott, 1 C. B. ^Elliot v. Titchburg R. R., 10' (N. S.) 611. Cush. 191. «Bealey v. Shaw, 6 East. 208. § 153 LAW OP WATER EIGHTS. [Ch. 8 law on this subject is in no manner peculiar to these Pacific communities, except in the remarkably short statutory period of adverse user — five years — adopted by the Code of California. § 153. Relation of irrigation to the natural -wants. [Water for irrigation is not a natural want in the same sense that water for quenching thirst is, which a riparian proprietor may satisfy without regard to the rights and needs of proprietors below. Thus a riparian owner may lawfully divert the water of a stream, for the purpose of irrigating his land , to a reason- able extent, but in no case may he do this so as to destroy, or render useless, or materially affect, the application of the water by other riparian proprietors.^ Now, it follows from this prin- ciple, in the first place, that a riparian owner cannot divert all the water of a stream, for the purpose of irrigating his lands, without regard to the rights of other owners, even though the whole stream might be needed for the sufficient accomplishment of his purpose. This question was presented in the most di- rect and explicit manner in the recent case of Learned v. Tange- man.^ The action was brought by a private riparian proprietor against another private riparian proprietor, having lands situ- ated upon the banks of the same stream higher up than the lands of the plaintiff'. The defendant had diverted the water of the stream forthe purpose of irrigating hisown riparian lands, and the plaintiff complained that he had diverted and used more than the amount to which he was entitled, and had thereby de- prived the plaintiff of the portion of the waters of the stream to which he-was entitled for the irrigation of his own riparian land. At the trial the judge instructed the jury that, "if they believed from the evidence that the defendant was a riparian proprietor, and used the water of the stream for the purpose of irrigating 1 Union Mill Co. v. Ferris, 2 2 65 Cal. 334, s. c. 4 Pac. Kep. Sawy. 176. 191. C306) Ch. 8] IRRIGATION. § 153 his lands, and used no more than was necessary for that purpose, and returned the surplus water after such use into the channel, then they should return a verdict for the defendant." It is perfectly evident that this instruction of the trial court was given upon the assumption that the right of a riparian proprietor to use the water of a stream for the irrigation of his lands is identical and co-extensive with the natural right of a riparian proprietor to use the water for watering his cattle, for drinking, and for other strictly domestic purposes; that, in the one case as well as in the other, a riparian proprietor is entitled, by the law, to divert and consume all the amount of the stream which may be rea- sonably necessary for his purposes, even though a sufficient quantity is not left remaining to flow down the channel for sim- ilar needs of the riparian proprietors below him. If this as- sumption of the lower court had been correct, then the instruc- tion to the jury, as given in this case, would undoubtedly have stated the rule of law applicable to the facts with substantial ac- curacy. But the decision of the supreme court shows, in the clearest and most positive manner, that the assumption was in- correct, and that the right to use water for irrigation is not iden- tical or co-extensive with the right to use it for watering cattle and other like domestic purposes. The supreme court, after quoting the instruction to the jury as given above, proceed to condemn it in the following language: "This (instruction) was error, for by it the jury were in effect told that the defendant was entitled to divert and use all of the water of the stream, if necessary for the irrigation of his land, without regard to the wants or necessities of the other riparian proprietor." The judg- ment was therelbre reversed, and a new trial of the cause was ordered.' 1 [The foregoing account of the which appeared in the West Coast case of Learned v. Tangeman is in. Reporter after the close of the se- the language of Professor Pome- ries which forms the basis of the loy, and is taken from an article present work. Ed.] (307) § 163 LAW OF WATER EIGHTS. [Ch. 8 But, in the second place, we may go further than this, and lay down the rule that no one has a right to use the waters of a stream for irrigation to an extent materially impairing the right of another riparian proprietor to the reasonable use of the same for the purpose of supplying his natural wants and domestic ne- cessities unless he has gained this right in some mode known to the law, as by grant or prescription. In other words, irriga- tion is subordinate to the natural wants. "The right to irrigate,, when not indispensable, but used simply to increase the prod- ucts of the soil, would be subordinate to the right of a co-jDro- prietor to supply his natural wants, and those of his familj', tenants, and stock; as to quench thirst, and to the right to use the water for necessary domestic purposes. Hence, whether the use of the water for purposes of irrigation is reasonable and law- ful as against another would depend upon the facts of the par- ticular case. If the stream should be sufficiently large to ad- mit of necessary irrigation without unreasonably impairing the rights of other proprietors, then it would be reasonable and lawful; otherwise it would not."^ Hence, when the stream is- small, and does not furnish water more than is sufficient to sup- ply the natural wants of the different proprietors living on it, none of the proprietors can use the water for irrigation.^ It is- 1 Baker v. Brown, 55 Tex. 377. the irrigation of land, however In Rhodes v. Whitehead, 27 Tex. beneficial in some portions of the 304, it was said: "It may be ad- state, is not one of the natural mitted that the purpose of irriga- wants which will justify the own- tion is one of the natural uses, er of a head-spring in exhausting such as thirst of people and cattle, the water which flows from it, to and household purposes, which the injury of proprietors lower must absolutely be supplied. The down on the natural channel of appropriation of the water for this the stream. The maxim, sec M/ere purpose would therefore afford no iuo ut alienum non Icedas, applies, ground of complaint by the lower The case of Tolle v. Correth, 31 proprietors if it were entirely Tex. 362, is not understood to- consumed." But this decision was have decided a contrary doctrine, practically overruled by Baker v. 2 Evans v. Merriweather, 3 Scam, Brown, snpra. In Fleming v. Da- 492. vis, 37 Tex. 173, it was said that (308) Ch. 8] IRRIGATION. § 154 in this light that we must understand the language of the su- preme court of Pennsylvania, where it is said: "Whenever so much of the volume of water is obstructed as to be plainly per- ceptible in its practical uses below, — whenever the channels, which before were filled, exhibit the loss of the accustomed fluid, — an injury is committed for which an action may be sus- tained, though it may not have been actually used by the lower proprietor."'] § 154. Summary of principles. [It has thus been made to appear that there is no right to use the water for the irrigation of non-riparian lands; that a prior appropriation can give no exclusive right to the use of the wa- ters for irrigation, and no superior right as to the quantity of water that may be consumed in that manner; that the equita- ble principle of relative equality must be preserved between all the riparian owners; that it is a part of the general riparian right to use the water for irrigation, if the size of the stream is such that no injury is thereby done to any other proprietor; that irrigation is not one of the natural wants, for which the whole stream may be consumed if necessary, but is subordi- nate to these uses. We have now to inquire whether, aside from the foregoing specific principles, there is any general rule of law, applicable to all cases alike, governing the riparian right of irrigation. As a result of all the authorities, it may be stated that the only rule which admits of general application is this: The use of water for irrigation must in all cases be rea- snnable, regard being had to the rights and needs of all the other proprietors on the same stream; and reasonableness is a question of fact, to be determined upon all the circumstances of the par- ticular case. In order that this may appear more clearly, it iMiller v. Miller, 9 Pa. St. 74. (309) § 155 LAW OF WATER EIGHTS. [Ch. 8 will be necessary to review the decisions on this subject at some length.] § 155. Irrigation — The English authorities. [In regard to the right of a riparian proprietor to use the wa- ter of the stream for irrigation, the rule in England appears to be that he may do so, provided he restores the water to its chan- nel in a volume substantially undiminished.^ The most impor- tant of the cases dealing with this topic is that of Embrey v. Owen, in which Parke, B., observed: "On the one hand, it could not be permitted that the owner of a tract of many thou- saiid acres of porous soil, abutting on one part of the stream, should irrigate them continually by canals and drains, and so cause a serious diminution of the quantity of water, though there was no other loss to the natural stream than that arising from the necessary absorption and evaporation of the water em- ployed for that purpose. On the other hand, one's common sense would be shocked by supposing that a riparian owner could not dip a watering-pot into the stream in order to water his garden, or allow his family or his cattle to drink it. It is entirely a question of degree, and it is very difficult, indeed im- possible, to define precisely the limits which separate the rea- sonable and permitted use of the stream from its wrongful ap- plication; but there is often no difficulty in deciding whether a particular case falls within the permitted limits or not."^ The supreme court of California, however, has said that "a priori it would be expected that the decisions in Great Britain and Ireland would not much assist the inquiry, since, owing to the humidity of the climate of those islands, it must rarely hap- 1 Embrey v. Owen, 6 Exch. 352; son v. Hoddinott, 1 C. B. (N. 8.) Swindon Water-Works v. Wilts 590; Miner v. Gilmour, 12 Moore, Canal Co., L. R. 7 H. L. 697; Earl P. C. 156; Norbury v. Kitchin, 9 of Sandwich v. Great Northern Jur. (N. S.) 132; 1 Add. Torts, § 89. By., L. B. 10 Ch. 707, 711; Samp- 2Embrey v. Owen, 6 Exch. 352. (310) Ch. 8] IRRIGATION. • § 157 pen that any use for irrigation can be reasonable; and for any purpose the use must be reasonable."'] § 156. French law. [It may here be remarked, by way of illustration, that, by the laws of France, every proprietor of land bordering on a run- ning stream may use it for the purpose of irrigating his land, and, when his estate is intersected by such water, he may di- vert it for purposes of irrigation, on condition that he restore it at the boundary of his property to its ordinary channel. And, in all disputes respecting the right to take water from running streams, the courts are enjoined to reconcile as much as possible the interests of agriculture with the respect due to property and the rights of individuals.^ But the court of last resort in France has decided that the upper riparian proprietor on a stream of running water has no right to consume the entire stream, to the prejudice of the lower proprietor, even in cases where the entire volume of water would not be sufficient for the needs of his estate, i. e. , for the complete irrigation of his own property. And it is said that the judges must regulate the use of the water, as between the two riparian owners, and that they cannot escape from the obligation of so doing, on the pretext that the physical division of the water would destroy the rights ofboth.^] § 157. Review of the American authorities. [On examining the decisions in the eastern states, and the opinions of the text writers, we shall find, notwithstanding some diversity of language, the same thread of principle running through them all, viz., that the use must be reasonable, due re- iLux V. Haggin, 69 Cal. 355, 10 Pac. Eep. 757. 2 Code Napoleon, liv. 3, ISTos. 640-645. See 1 Add. Torts, § 89. ^Bulletin de la Cour de Cassation, vol. 63, (1861,) p. 266. (311) § 157 LAW OF WATEK EIGHTS. [Ch. 8 gard being had to the equal rights of all the riparian owners. This will sufficiently appear from the following extracts. In an early Massachusetts case it is said: "A man owning a close on an ancient brook may lawfully use the water thereof for the purposes of husbandry, as watering his cattle, or irrigating the close; and he may do this either by dipping water from the brook, and pouring it upon his land, or by making small sluices for the same purpose; and, if the owner of a close below is dam- aged thereby, it is damnum absque injuria."^ And in an early case in Connecticut it was said: "The defendant had right to use so much of said water, passing through his land, as to an- swer all necessary purposes, to supply his kitchen, and for wa- tering his cattle, etc. ; also he had right to use it for beneficial purposes, such as watering and enriching his land. But this right hath restrictions, and must be so exercised as not to injure the plaintiff, who lies next below, and who hath right to have the surplus flow into his land in the natural channel."^ Chancellor Kent is sometimes quoted as proving that water cannot be employed for irrigation, sometimes as proving that it may be. His language is as follows: "Streams of water are in- tended for the use and comfort of man. and it would be unrea- sonable, and contrary to the general sense of manldnd, to debar any riparian proprietor from the application of water for do- mestic, agricultural, or manufacturing purposes, provided the use of water be made under the limitation that he do no mate- rial injury to his neighbor below him, who has an equal right to the subsequent use of the same water."^ On this passage the supreme court of California makes the following pertinent obser- vations: "It seems to us that the foregoing (although a very dis- tinct statement of the general proposition) ought not to be taken literally, unless the words ' material injury ' be impressed with » Weston V. Alden, 8 Mass. 136. ^ Perkins v. Dow, 1 Root, 535. 33 Kent, Comm. 429. (312) Ch. S] IRRIGATION. § 157 a signification the equivalent of a substantial deprivation of ca- pacity in a lower proprietor to employ the water for useful pur- poses. The adjective is prefixed to ' injury,' and the words seem to have reference to the enjoyment of the use by the inferior owner, not to his mere abstract right to the use as against oth- ers than riparian owners, and to intimate that he cannot com- plain of a reasonable exercise of the use by another who pos- sesses the general right in common with himself. The passage, as a whole, may be fairly said to convey the idea that water may be used for agricultural or manufacturing purposes when such use does not materially deprive the lower proprietor of water, either for drinking or for agriculture."' In an early New York decision it is said: "The defendant has a right to use so much as is necessary for his family and his cattle, but he has no right to use it for irrigating his meadow, if thereby he deprives the plaintiff of the reasonable use of the water in its natural channel. The evidence shows that the de- fendant has appropriated the whole water to his own use, and he seems to suppose that he possesses that right. "^ Again, it is said that the riparian proprietor "may make a reasonable use of the water itself, for domestic purposes, for watering cattle, or even for irrigation, provided it is not unreasonably detained or essentially diminished."' Some of the earlier cases, it will be perceived, do not make a very clear distinction between the natural and artificial uses of the water, being even disposed to class irrigation among the for- mer. But the later authorities announce the rule with more dis- crimination. Thus, in Gillett v. Johnson,* Butler, J., remarks: "The right of the defendant to use the stream for purposes of irri- gation cannot be questioned. But it was a limited right, and one iLux V. Haggin, 69 Cal. 255, 10 'Blaochard v. Baker, 8 Me. 253, Pac. Rep. 756. 266. ^Arnold v. Foot, 13 Wend. 330. ^go Conn. 180. (313) § 157 LAW OP WATER RIGHTS. [Ch. 8 which could only be exercised with a reasonable regard to the right of the plaintiff to the use of the water. It was not enough that the defendant applied the water to a useful and proper purpose, and in a prudent and husband-like manner. She was also bound to apply it in such a reasonable manner and quantity as not to deprive the plaintiff of a sufficient supply for his cattle." So in a New Jersey decision it is held that the right of every ripa- rian owner to use the water flowing through his land for its proper irrigation is subject to the limitation that his use for that purpose must be such as not essentially to interfere with the natural flow of the stream , or essentially and to the material in- jury of the proprietors below to diminish the quantity of water that goes to them.' And the court in Massachusetts has given a satisfactory discussion of the subject, from which we quote as follows: "What is a just and reasonable use may often be a difficult question, depending on various circumstances. To take a quantity of water from a large running stream for agri- cultural or manufacturing purposes would cause no sensible or practicable diminution of the benefit to the prejudice of a lower proprietor; whereas, taking the same quantity from a small run- ning brook, passing through many farms, would be of great and manifest injury to those below who need it for domestic supply or watering cattle; and therefore it would be an unreasonable use of the water, and an action would lie in the latter case, and not in the former. It is therefore, to a considerable extent, a question of degree; still the rule is the same: that each propri- etor has a right to a reasonable use of it for his own benefit, for domestic use, and for manufacturing and agricultural purposes. It has sometimes been made a question whether a riparian pro- prietor can divert water from a running stream for purposes of irrigation; but this, we think, is an abstract question, which iFarrell v. Richards, 30 N. J. Eq. 511. (314) Ch. 8] lEHIOATION. § 158 cannot be answered either in the affirmative or negative, as a rule applicable to all cases. That a portion of the water of a stream may be used for the purpose of irrigating land, we think is well established as one of the rights of the proprietors of the soil along or through which it passes; yet a proprietor cannot, under color of that right, or for the actual purpose of irrigating his own land, w/ioHj/ abstract or divert the water-course, or take such an unreasonable quantity of water, or make such an un- reasonable use of it, as to deprive other proprietors of the sub- stantial benefits which they might derive from it if not diverted or used unreasonably. The point may, perhaps, be best illus- trated by extreme cases. One man, for instance, may take wa- ter from a perennial stream of moderate size, by means of buck- ets or a pump, — for the mode is not material, — to water his garden. Another may turn a similar current over a level tract of sandy soil of great extent, which in its ordinary operation will nearly or quite absorb the whole volume of the stream, al- though the relative positions of the land and stream are such that the surplus water, when there is any, is returned to the bed of the stream. The one might be regarded as a reasonable use, doing no perceptible damage to any lower proprietor, while the other wotild nearly deprive him of the whole beneficial use, and yet in both the water would be used for irrigation."*] § 158. Revie-w of authorities continued — The Pa- cific cases. [When we come to examine the later decisions of the courts on the Pacific coast, we shall find no repudiation of the rule thus deduced from the common law. On the contrary, the same "Elliot V. Fitchburg E. Co., 10 v. Merriweather, 3 Scam. 495; Ul- Cush. 193-193. See, further. An- bricht v. Eufaula Water Co., 86 tbony V. Lapham, 5Pick. 175;New- Ala. 587, 6 South. Rep. 78; Washb. hall V. Ireson, 8 Cush. 595; Evans Easem. 234; Gould, Waters, § 217. (315) ■§ 158 LAW OP WATER EIGHTS. [Ch. 8 principle has been accepted as determinative, and has been ap- plied and carried out to its legitimate conclusions; and this with so much certainty and emphasis that the question must be re- garded as definitely settled in these states until legislation shall intervene. Thus, in a recent Nevada decision. Chief Justice Hawlej' remarks: "When it is said that such use must be made ■of the water as not to affect the material rights of other proprie- tors, it is not meant that there can be no diminution or decrease of the flow of water; for, if this should be the rule, then no one oould have anj' valuable use of the water for irrigation, which must necessarily, in order to be beneficial, be so used as to ab- sorb more or less of the water diverted for this purpose. The truth is that, under the principles of the common law in rela- tion to riparian rights, if applicable to our circumstances and •condition, there must be allowed to all, of that which is com- mon, a reasonable use.'" In the important case of Lux v. Haggin,^ decided by the supreme court of California in 1886, the rule is tersely laid ■down as follows: "By our law the riparian proprietors are en- titled to a reasonable use of the waters of the stream for the pur- pose of irrigation. What is such reasonable use is a question of fact, and depends upon the circumstances appearing in each particular case." The court continued: "The question whether the use is reasonable is not so much whether the water be- low is diminished thereby, as whether the lower proprietor is materially injured by the diminution, — injured by not receiv- ing the benefit in due proportion of the enjoyment to which he and the other proprietors are entitled. It is obvious that the use of water for the purpose of irrigation always involves some ' Jones V. Adams, 19 Nev. 78, 6 Goodrich, 70 Cal. 103, 11 Pao. Rep. Pac. Rep. 448. See, also, Barnes 5G1. ■7. Sabron. 10 Nev. 217; Swift v. 2 69 Cal. 255, 10 Pac. Rep. 755- 764. (316) Ch. 8] lERIGATION. § 158- loss by evaporation and absorption, and must often result in a sensible and clearly perceptible reduction of the quantity in the chainiel. An entire diversion of a water-course by an upper ri- parian proprietor, (or a diversion of a part of it,) for irrigation, without restoring to the channel the excess of the water not actually consumed, is never allowed. Whether or not a diver- sion of water is reasonable, is a question not so much as men- tioned by any writer or judge. The very proposition assumes the right of the proprietor above to use the water for his own purposes, to the exclusion of the proprietors below, — a proposi- tion inconsistent with the doctrine universally admitted, that all proprietors have the same rights." Iii the same case, after an elaborate review of the authorities upon this question, the court sums up its conclusions as follows: "The reasonable use- fulness of a quantity of water for irrigation is always relative. It does not depend on the convenience of or profitable results to the particular proprietor, but upon the reasonable use, ref- erence being had to the needs of all the other proprietors on the stream. It depends, in other words, on all the circum- stances. We anticipate the objection that this is not an abso- lute rule at all; but, as said by the judges in the oijinions quoted from, the very nature of the common right is such that a precise rule as to what is reasonable use by any one proprietor for irrigation cannot be laid down. A stream may be so small that any use for irrigation may deprive all the others of any like use; and the same may be true of a larger stream, where the use is by several of a large number of proprietors. The effect might be that, while there might be sufficient water to supply several for irrigation, there would not be enough for all, and so- all might be deprived of the benefit. But the private interests of ail would in most cases, if not in every case, lead to an avoidance of the supposed evil. It is not to be doubted that the- riparian proprietors would settle by convention upon a plan by' C317) § 158 LAW OF WATER EIGHTS. [Ch. 8 which each could secure a reasonable use for irrigation pur- poses; as by authorizing each to stay the flow at recurring pe- riods, or otherwise distributing it for their mutual and common benefit. The right of the riparian proprietors to a reasonable use of the water of the stream for purposes of irrigation is rec- ognized in many of the California cases hereinbefore referred to."i In the case of Stanford v. Felt,^ it was ruled that the question, whether or not the use and detention of the waters made by th.e upper proprietor for domestic and other purposes is reasonable, is a question of fact to be deter- mined in the trial court. And in G-ould v. Staiford,^ it is said that while the upper riparian proprietor may use a reasonable amount of the water of a natural stream to irrigate his riparian land, he cannot use all of it for that purpose; nor can he use any of the water for the purpose of irrigating land not riparian. In one of the latest cases in California, wkere the plain- tiffs alleged that they were entitled to aU the water of the stream, and defendants denied thiat they were entitled to any of it, and the court found that plaintiffs were entitled to a portion of the water only, and tliat, to make the water available for irrigating purposes, it was necessary that tlie fuU flow of the stream be used at once, it was held that there was no error in the decree apportioning to plaintiffs the full flow of tlie water during one-half of each week, and to defendants such flow during the remaining half of eacli week.* In this case the court observed: "According to the common-law doctrine of riparian ownership, as gener- ally declared in England and in most of the American states, upon the facts in the case at bar, the plaintiffs would be entitled to have the waters of Harrison canon continue to iLux v. Haggin, 69 Cal. 255, 10 '77 Cal. 66, 18 Pac. Rep. 879. Pac. Rep. 763. < Harris v. Harrison, 93 Cal. 676, 2 71 Cal. 249, 16 Pac. Rep. 900. 29 Pac. Rep. 325. (318) Ch. 8] IRRIGATION. § 158 flow to and upon their land as they were naturally accus- tomed to flow, without any substantial deterioration in quality or diminution in quantity. But in some of the western and southwestern states ajid territories, where the year is divided into one wet and one dry season, and irriga- tion is necessary to successful cultivation of the soU, the doctrine of riparian ownership has by judicial decision been modified, or rather enlarged, so as to include the reasonable use of natural water for irrigating the riparian land, al- though such use may appreciably diminish the flow down to the lower riparian proprietor; and this must be taken to be the established rule in California, at least where irriga- tion is thus necessary. Lux v. Haggin, 69 Cal. 394, 10 Pac. Eep. 674. Of course, there will be great difficulty in many cases to determine what is such reasonable use; and 'what is such reasonable use is a question of fact, and depends upon the circumstances appearing in each par- ticular case.' Lux v. Haggin, supra. The larger the num- ber of riparian proprietors whose rights are involved, the greater wUl be the difficulty of adjustment. In such a case, the length of the stream, the volume of water in it, the ex- tent of each ownership along the banks, the character of the soil owned by each contestant, the area sought to be irri- gated by each, — ^aU these and many other considerations must enter into the solution of the problem; but one prin- ciple is surely established, namely, that no proprietor can absorb all the water of the stream, so as to allow none to flow down to his neighbor. In the case at bar only the rights of two riparian proprietors are to be considered. None other are involved. And the amount of water in the stream is so small that it is apparent that defendants could not use it for any useful irrigation without practically ab- sorbing it all, and leaving none to flow down to plaintiffs' land. There was sufficient evidence to warrant the flnding (319) § 168 LAW OF WATER EIGHTS. [Ch. 8 of the court that in order to irrigate, 'it is necessary that the full flow of the stream be used at once.' But defend- ants, as well as plaintiffs, were entitled to a reasonable use of the water for irrigation; and the rights of either could be declared or preserved by an attempted division of the flow of the water without reference to time. The only way, therefore, to preserve those rights, and to render them beneficial, was to decree to the parties the use of the full flow of the stream during alternate periods of time; and we do not see why the court could not decree a division of the use of the water according to that method, when there was no other method by which it could be done. And that the division was a just one, and not erroneously determined upon, seems clear. The evidence showed that the arable and irrigable land of each party was about equal in area; and there is no contention that the division was not equitable, provided that aU the other facts were correctly found by the court." In the state of Texas, where, at least in certain portions, the same climatic and physio graphical conditions exist as in some of the states of the Pacific slope, the pri^alege of an upper riparian proprietor, in respect to the use of the water for the purpose of irrigation, has been carried to an extent beyond that hitherto recognized in any other juris- diction. In one of the earlier cases it was held that such a proprietor may divert the stream and cause it to over- flow and irrigate his land, provided it resumes its natural channel before it enters the land of the lower owner; and he is not liable for injury to such lower owner, unless he uses the stream wantonly and maliciously and takes more water than is necessary for agricultural purposes.^ And a late decision reaffirms the rule thus stated. "It seems to be the rule of the common law," says the court, "that a riparian ^Tolle V. Correth, 31 Tex. 362, 98 Am. Dec. 5i0. C320J Ch. 8] IRRIGATION. § 159 owner has no right to use the water of the stream for irri- gating his lands, provided it interferes with, the uses of the water by those who own the lands upon the stream below. ThiSit this is a proper rule in England, ^d in those states wbere tlie rain-fall is sufficient for the ' purpose of agricultui'e, we freely concede; but we are of opinion that in those sections where irrigation is necessary to the suc- cessful pursuit of farmiag, it should not apply. What is not a necessary use in one case becomes necessary in the other. It was so beld in Tolle v. Correth, 31 Tex. 365; and though this decision was criticized in the subsequent case of Fleming v. Davis, 37 Tex. 173, we are of opinion that it recognizes a correct rule of law as applied to the present case. We think it a matter of common knowledge that th.ere are portions of our state where the business of agriculture cannot be successfully prosecuted through, suc- cessive years except by irrigation; and it is to be inferred from the allegations of th.e petition that the section where the stream in controversy is situated is of that character. We think, therefore, that the defendants had the right to divert the water which flowed in the stream along or through their lands for the purpose of irrigating them, al- though the effect of such use was to leave the plaintiff cor- poration an insufflcient supply for the same purpose. Whether they had the right to divert the whole of it, and leave an insufficient supply for the ordinary use of the lower riparian owners, we need not in this case determine. "] ' § 159. Surplus water must be restored. [Where a riparian owner diverts the water of the stream for the purpose of irrigation, witliout returning the surplus into the natural channel, whereby the owner of land below, en- iMud Creek Irr. Co. v. Vivian, 74 Tex. 170, 11 S. W. Rep. 1078. LAW W. E.— 21 (321) § 159 LAW OF WATEK EIGHTS. [Ch. 8 titled to use the water in the same manner, is deprived of his privilege, an action lies.^] lAnthon/v. Lapham, 5Pick. 175; Stafford, 77 Cal. 66, 18 Pac. Rep. Cook V. An, 3 Pick. 369; Blanch- 879. ard V. Baker, 8 Me. 353; Gould v. (322) Ch. 9] SUGGESTIONS FOE LEGISLATION. § 160 CHAPTER IX. SUGGESTIONS FOR LEGISLATION ON RIPARIAN RIGHTS. § 160. Need of statutory regulation. 161. Irrigation — Common-law rules Inadequate. 163. Contents of proposed statute. 163. Essential nature of projected law. 164. System of ucequiaa impracticable. 165. Colorado system criticised. 166. Legislation must respect natural laws and natural rights. 167. Natural^ rights and advantages of riparian owners. 168. Legislation should recognize these rights. 169. Jurisdiction of eqmty. 170. Legislation to the same end. 171. Provision for non-riparian lands. 172. Condemnation of stream for public us& 173. Whether irrigation is a public use. 174. Eminent domain. """,;" 175. Summary of suggestions concerning legislation. 176. Concluding observations. § 160. Need of st£(^utory regulation. In concluding our discussion upon water rights in the Pacific communities, we purpose to offer a few observations or sugges- tions concerning the legislation which should be enacted in the states of California and Nevada for the more complete regula- tion and protection of these rights. We have already given a full synopsis of the statutory systems adopted in all the other states and territories of the Pacific coast embraced within our general review; and, as before stated, we shall enter into no dis- cussion of these statutes. As those states and territories become more settled by an agricultural population, the practical effect of their legislative methods will become known, and some satis- factory judgment can be formed as to their efBcacy. At present any discussion of them might be regarded as speculative, al- (323) § 161 LAW OP WATER EIGHTS. [Ch. & though the results which they must inevitably produce are, in our opinion, perfectly clear. Confining ourselves, therefore, to the two states of California and Nevada, if we are correct in our con- clusions concerning the rights of private riparian proprietors upon natural streams, and especially upon their right to use the- waters thereof for purposes of irrigation, it is plain that some legislation is needed, not to define and establish the rights, but to protect and regulate their exercise within certain limits. § 161. Irrigation — Common-law^ rules inadequate. Assuming as true, what we think has been shown to be estab- lished by judicial authority, that the general common-law doc- trines on the subject applj'' to and determine the rights of pri- vate riparian proprietors, those doctrines are sufficient of them- selves to regulate the use of water, by private riparian proprie- tors, for all other ordinary purposes except that of irrigation. The common-law rules concerning the use of water for milling and manufacturing purposes, and for all those purposes termed "natural," — domestic and household consumption, and the wa- tering of stock, — are simple, plain, equitable, and just. No fault has ever been found with their practical operation; they are suited to all communities and circumstances; no legislation is needed to render them effective; any legislation interfering- with their free control would be injurious. With irrigation the case is otherwise. The use of the waters of natural streams for irrigation is, in many respects, the most important of all possi- ble uses, in these states. Without irrigation the agricultural resources of the soil cannot be developed; with a sufficient sup- ply of water for irrigation, there are hardly any accessible por- tions of these states which cannot be made profitably productive. The problem is, to benefit as large a portion of the agricultural population as possible, by affording the means of irrigating their lands, without invading and violating the private natural rights C324) Ch. 9] SUGGESTIONS FOR LEGISLATION. § 162 of any class of proprietors. The use of water for purposes of irrigation is practically unknown to the common law. While the equitable principles of the common law may, without any alteration, comprehend the use of water for purposes of irriga^ tion, yet the special rules developed by common-law courts from those principles have not dealt with irrigation. In applying these established doctrines of the common law to the use of wa- ter for irrigation, the aid of statutory legislation is clearly needed. If the rights of the private riparian proprietors upon the same .stream to use its water for irrigation were correctly stated in our last chapter, it is plain that some practical, simple, and com- prehensive method, is necessary to settle authoritatively the rel- ative rights of all. the proprietors upon any particular stream, and the relative amounts or proportionate quantities of its water which they are all entitled to take'^and consume. The general doctrine that each is only entitled to _the)excess over and above that which all the others arev entitled to take, is simply the foundation. How that excess is to be actually ascertained and apportioned to each riparian proprietor before he takes the water from the stream is the difficulty; and it is a difficulty which can only be obviated by statutory legislation. § 162. Contents of proposed statute. Adopting the equitable doctrines of the common law as its basis, the sole purpose of the legislation should be to furnish a practical mode by which these doctrines can be applied to the use of water for the irrigation of lands. To this end the provis- ions of the statute should not consist of vague generalities, merely defining some general rights, and leaving aU the practical work- ing and effects of the system to be settled by a long series of ju- dicial decisions. They should be detailed, specific, and minute. The statute should be most carefully drawn so as to provide a plain, certain, inexpensive, and practical system regulating the (325) § 163 LAW OF WATER EIGHTS. [Ch. 9 exercise by every riparian proprietor upon any stream of his right to use the waters thereof for purposes of irrigation; deter- mining the relative amounts of the water to which all of the proprietors are entitled under every condition of circumstances; the proportionate amounts when the whole flow of the stream is not sufficient to furnish a full supply to all; the times and order in which the water may be taken; and all other similar naatters. The statutory provisions should be so clear and definite that there could be no reasonable doubt as to the extent of each proprietor's right under anj' ordinary circumstances; and they should give a simple and effective means of enforcing these rights and regulating their exercise, through the interpretation of local agents or officials representing the whole body of riparian pro- prietors upon any particular stream, without the necessity of a resort to the courts, and to actions for damages or for injunc- tions, as the only means of protecting the rights or preventing their invasion. § 163. Essential nature of projected law. Without dwelling any further upon its external form, we pro- ceed at once to the most important inquiry, what should be the essential nature of this legislation? We submit, as its funda- mental conception, that such legislation should recognize, be founded on, and carry out natural laws and natural rights. Any attempt to violate natural and economic laws and rights, to con- fer a supposed benefit upon certain classes of persons by legisla- tion which invades and abrogates the natural rights, resulting from natural and economic laws, held by other persons, must be injurious to society as a whole, and can produce no real good to any portion of it. In the second place, the legislation should interfere as little as possible with existing and established pri- vate rights of property. Numerous private riparian proprietors are located upon nearly all the important streams in this state; (326) Ch. 9] SUGGESTIONS FOE LEGISLATION. § 164 the lands upon the banks of some of these streams are probably all, or nearly all, held by private owners. The rights of all these proprietors are recognized and established by the existing law of the state as incident to or a part of their property. These rights should not be disregarded. An attempt to do so would be grossly unjust, and could only produce confusion and wrong. Finally, it is a principle of universal application that new laws, and most especially new statutes, should be based upon notions and conceptions with which the people are familiar; they should reflect the customary and popular customs, habits of thought, and institutions. § 164. System of acequias impracticable. If the foregoing general principles of legislation are accepted and followed, it is plain that the public system oi"acequias" which prevails in New Mexico and Arizona would be utterly impracti- cable and impossible in California and Nevada. By that sys- tem, it will be remembered, there is not, and cannot be, any private property rights in natural streams and lakes. All such waters are public, free to the use of all occupants of land for the purpose of irrigation. No person can appropriate the water of a stream even for the purpose of milling. The irrigating canals or "acequias^' are maintained by the public, at the public ex- pense, and are controlled by the local authorities. It is enough to say of this system, which is borrowed from the Spanish-Mex- ican laws, that it is utterly foreign to the habits of thought, cus- toms, modes of legislation, and institutions of our people; and its adoption would violate all of the established rights of private riparian proprietors as recognized by the existing law of the state. It is hardly probable that any one would seriously ad- vocate the introduction of this type of legislation. (327) § 165 LAW OP WATER RIGHTS. [Ch. 9 § 165. Colorado system criticised. It has, however, been strenuously urged that the Colorado sys- tem of defining and regulating water rights, which virtually pre- vails in Montana, Idaho, and other territories, and of which a detailed account was given in a previous chapter, should be adopted by the legislation of California. We do not think that any intelligent lawyer or statesman, or careful student of politi- cal economy, who was familiar with the results of legislation, and with the enforcement of statutes creating hostile and con- flicting interests, could recommend the adoption of this Colo- rado system. In order to understand what this legislation re- ally is, the reader must consult the detailed synopsis of the statutes given in a former chapter; it will be sutficient now to state its essential and fundamental notions. It utterly disre- gards all natural laws and the natural rights arising from the posi- tion of those who own lands situated directly upon the banks of streams. It places persons owning land at any distance from a stream upon exactly the same footing of right to its water with those who own land upon its very banks. Its fundamental idea is that prior appropriation from any stream by any one, irre- spective of his location, or his prior possession or ownership, con- fers an absolute supremacy of right to use and divert its water; so that a proprietor who has for years owned land on the banks of a stream, but has not constructed a ditch by which to divert and use its water, shall be subordinate te any person who makes a prior actual appropriation for the benefit of his lands, how- ever distant from the stream. It virtually permits an unlim- ited invasion of private lands, for the purpose of constructing and maintaining ditches across them by which to carry water. As Colorado and these territories become more fully settled, especially by an agricultural population, this system of water regulation wiU inevitably give rise to an enormous amount of (328) Ch. 9] SUGGESTIONS FOR LEGISLATION. § 166 trouble, controversy, and litigation. It is impossible to con- ceive of legislation tending more than this to create strifes, con- flicts, and breaches of the peace. The right of prior appro- priation on the public streams was a most fruitful cause of liti- gation in California, as is shown by the great number of re- ported cases; but this is a feeble illustration of the litigation and controversy which must arise from the statutes of Colorado and of the various territories when they come into full operation upon an increasing population. § 166. Legislation must respect natural la^ws and natural rights. No legislation can be just or practicable, or can tend to the peace and prosperity of society, which attempts to violate and override natural laws and natural rights, — the immutable truths which exist in the regular order of nature. No matter what may be its motive, although enacted for the assumed purpose of benefiting certain classes of society, legislation which disregards natural laws, justice, and rights not only produces evil to so- ciety as a whole, but even injures the very classes it was de- signed to benefit. There is much in the general legislation of California which demonstrates the truth of this principle. A most instructive essay might be written upon this topic, which would conclusively show the injurious results of many Califor- nia statutes which violate natural laws, and economic truths and rights based upon natural justice, — results which bear most heavily upon the very classes whose interests were intended to be promoted. We cannot refrain from illustrating this most momentous principle of economic laws by a single example. The legislation of California, in dealing with the relations of debtor and creditor, leans very strongly in the supposed favor of the debtor class. This leaning is shown in a very remarkable inanner in the statute of limitations. There is probably no C329) § 166 LAW OF WATER EIGHTS. [Ch. 9 othei civilized country in the world, except perhaps some states or tenitories which have copied the California statutes, which prescribes such extremelj'- short periods of limitation within which rights of action are barred. Every lawyer of intelli- gence is familiar with the analogous statutes in England and in most of the American states, and can make the comparison with our own. These extremely short periods which seem to abridge the creditor's rights, were enacted with the supposition that the debtor class would be benefited thereby. What is the actual effect? There is no other state in the Union where the laws are practically so hard against debtors in the enforcement of claims as in California; there is no other state where the debtor's prop- erty is so constantly and necessarily sacrificed on judgments and executions. Under these statutes of limitation, and the decisions constru- ing them, a creditor, however well disposed and however will- ing to favor his debtor, cannot be lenient, cannot give terms. Any leniency on his part is simply rendered impossible by the statute which would bar and destroy his claim by a brief period of inaction. However worthy, honest, and industrious the debtor may be, or however unfortunate he may have been, his creditor cannot stay his hand except at the risk of entirely los- ing the demand. The creditor must foreclose his mortgage within the brief statutory period, no matter at how great a loss for the debtor; he must sue and obtain judgment, and must seize and sell the debtor's property on execution, no matter at how great a sacrifice. In other states a creditor can be lenient without risk to himself; he can wait for years, so that an hon- est, industrious, or unfortunate debtor may recover himself, be- cause his mortgage remains good for twenty years, his judgment continues to be an effective security for ten years, and his debt, whatever may be its form, is not barred within six years. But the legislature of California, acting in the supposed interests of (330J Ch. 9] SUGGESTIONS FOE LEGISLATION. § 167 the debtor class, has made it simply impossible for a creditor to be lenient, and has exposed the debtor to a greater risk of loss and sacrifice of property than results from the laws of any other state, except those, if any, which have copied the Cali- fornia statutes. This is only a single example, but it well illustrates a princi- ple which is universal. The truth is established, not only by the most convincing a priori reasoning, but by general experi- ence, that legislation which disregards natural laws and rights must work injury to society. The various classes of society are so connected that no large class can be injured without injury to all. § 167. Natural rights and advantages of riparian owners. The laws of nature certainly give a natural right and advan- tage, from their superiority of position, to those who own land lying on the banks of natural streams. It is an undeniable /act that such proprietors have a natural right as compared with those who own land at a distance from streams. Legislation which disregards this fact — which attempts to deprive the one class of their natural right and advantage, and to confer the same right and advantage upon the other — is necessarily im- practicable; it cannot work successfully; it is essentially unjust, and can only produce wrong. Statutes, however elaborate and detailed, which invade natural rights, and violate the sense of natural justice, must be the occasion of unlimited confusion, strife, contention, and litigation; nothing can be settled and es- tablished by them. The common-law doctrines recognize and protect this natural right and advantage of the private riparian proprietor; they regard it as a fact which cannot be denied nor overcome, and they build all of their specific rules upon it as a foundation. (331) § 169 LAW OF WATER EIGHTS. [Ch. 9 A similar natural advantage is connected with landed owner- ship in many other respects. Those who own fertile and pro- ductive lands have an enormous natural superiority over those proprietors whose lands are wholly situated in barren and un- productive soils and regions. Is this any just ground for legis- lation which would authorize the latter class to invade the pos- sessions of the former, and to deprive them of some portion of their more valuable property? Those who own land upon which there is a supply of forest trees, have a great natural advantage over those whose lands are entirely devoid of timber. Is this any just ground for statutes enabling the latter to claim and ap- propriate a portion of the timber land belonging to the former? The use of the stream, and of the water flowing through it, forms a part of the rights incident to and involved in the ownership of the lands upon its borders. This is the principle recognized by the common law, and which should be recognized by any auxiliary legislation. It is, moreover, a natural law, an inevita- ble fact, which no legislation can change. Any statute denying this fact simply attempts an impossibility. § 168. Legislation should recognize these rights. It results from the foregoing positions that any legislation, in order to be just and practicable, should primarily recognize, maintain, and protect the water rights, and especially the right to use the water, for purposes of irrigation, of all the private ri- parian proprietors owning lands abutting on either bank of any natural stream throughout its entire course. § 169. Jurisdiction of equity. We have no doubt that equity has full jurisdiction over all the private riparian proprietors upon any given stream, to de- termine their individual rights, and to furnish a perpetual means for the protection and enforcement of those rights. A very re- (332) Ch. 9] SUGGESTIONS FOR LEGISLATION. § 169 markable case, which came within our personal knowledge sev- eral years ago, furnishes a most striking illustration of the priiv- ciple which underlies this equitable jurisdiction.^ In the early settlement of the city of Rochester, on the Gen- esee river, in western New York, a gentleman named Brown owned the bed of the Genesee river immediately above the main falls, — a perpendicular fall nearly one hundred feet high within the limits of the. city, — and also a strip of land extending from these falls along the west bank of the river for a mile or more. He built a dam across the river a few rods above the falls, and constructed a mill race or canal leading from this dam about a mile down the river, on its west side, parallel to and a few hun- dred feet from the river bank, which was through this whole length a perpendicular cliff nearly one hundred feet high. One of the finest water-powers in the country was thus obtained and utilized. The space between this mill canal and the west bank of the river he divided into a large number of mill lots, perhaps one hundred in all, varying in width, each abutting at its front end on the mill canal, and at its rear end on the perpendicular bank of the river. These lots, together with the right to draw a certain amount of the water from the mill canal, were from time to time conveyed in fee to different grantees, each grantee covenanting to use only the amount of water specified in his deed of conveyance. In process of time, all the lots had thus been sold and conveyed in fee, and Brown, the original owner, retained no interest whatever in the property. A continuous- line of mills and manufactories had been built on these lots along the bank of the river; many of the lots had passed to- subsequent grantees; and there were perhaps one hundred dif- ^ The principle is the avoiding a of law and the same questions of multiplicity of suits by quieting facts. See the discussion of this, the titles of numerous parties when principle in 1 Pom. Eq. §§ 255-37o> they all depend upon the same rule (333) § 169 LAW OP WATER EIGHTS. [Ch. 9 ferent proprietors of mill lots, all holding under the original con- veyances from Brown. There was, of course, no privity of con- tract between these various grantees and lot-owners, and since Brown had conveyed each lot in fee, and had retained no re- versionary interest whatever, there was no privity of estate among the various grantees and proprietors of different mill lots. When the Genesee river was high, there was an ample supply of water for the needs of all the mills and manufactories. But during a large portion of each year, while the natural flow of the river was lessened, the supply of water through the mill canal was diminished; and in consequence of this the lot-owners on the upper part of the canal diverted and consumed more of the wa- ter than the proportionate amounts to which they were entitled. This practice of unlawful consumption was carried on to such an extent that the supply of water was largely cut off from the lots on the lower part of the canal, and a very serious loss was thereby occasioned to their owners. For all this injury there was no adequate remedy at law. In this condition the owner of a mill at the lower end of the canal brought a suit in equity, making all the other proprietors and occupants of mill lots bor- dering on the canal defendants, and setting out facts showing the titles and water rights of each sei^arate and individual lot, for the purpose of obtaining a decree establishing and quieting the title of each proprietor on the canal to divert and use the waters. Such a decree was rendered. It established the right of each proprietor to use the proportionate amount of water con- veyed by his original deed; it definitely fixed these amounts; it determined the number of feet or inches of water which could be drawn from the canal for each lot, and the size of the open- ing through which the water could flow; and it provided for constructing permanent barriers and gates for each lot, by means of which the amount drawn from the canal for the use of the lot might be controlled and regulated. In order to make the de- (334) Ch. 9] SUGGESTIONS FOB LEGISLATION. § 170 cision final and perpetual, and to secure and protect the rights of all thus determined, the decree provided for the appointment and maintenance of a perpetual commission, representing all the proprietors on the canal, who should possess the power to in- spect the water supply-gates and openings of each lot, and to preserve inviolate the water rights and water supply of each lot as they had thus been finally established by the decree of the court.' It is true the stream in this case was an artificial canal; but, as there was no privity of contract nor of estate among all the different lot-owners on the canal, their relations with each other, so far as the jurisdiction of equity is concerned, were virtu- ally the same as those which subsist between the different pri- vate riparian proprietors upon any natural stream. The prin- ciple is the same in both cases. We have no doubt that on the same principle, in a suit brought by one private riparian pro- prietor against all the other similar proprietors upon any given stream, a court of equity might establish their rights as among themselves to use the water for irrigation, the amounts which each could divert, and the order, times, and seasons of his di- version, and might appoint a perpetual commission, represent- ing all the proprietors on that stream, which should have power to carry into effect the provisions of the decree. § 170. Legislation to the same end. Granting this to be within the jurisdiction of equity, yet the same end could be more easily, simply, and inexpensively ac- complished by appropriate legislation. We have referred to the jurisdiction of equity, not for the purpose of advising a re- sort to it, but for the purpose of illustrating more plainly the I This case exemplifies in the equity to adapt their special rem- clearest manner the practically edies to special and new conditions unlimited power of courts of of fact. (335) § 170 LAW OP WATER EIGHTS. [Ch. 9 exact object sought to be obtained by means of legislation. The legislation should regard all the private riparian proprietors owning lands abutting on either bank of any given natural stream as constituting one individual community for the pur- pose of irrigation. It should primarily assert, secure, and pro- tect the equal rights of all the members of this community to use the waters of that stream for the purpose of irrigation, aa rights naturally superior to those held by all other classes of land-owners. It should declare, in the clearest manner, the fundamental principle that each riparian proprietor is only en- titled to use, for the irrigation of his own land, such portion of the stream as is the excess over and above the portions which all the other riparian proprietors upon the same stream are en- titled to use, for the like purpose, on their own lands; and the equally fundamental principle that other persons owning land, not situated on the stream, are only entitled to use, for the irri- gation of their non-riparian lands, such portion of the waters of the stream as remain in excess after the primary needs of the ri- parian proprietors have been reasonably satisfied. To protect and enforce the rights thus declared, the legislation should pro- vide for a local officer or commissioner, or small board of com- missioners, chosen in some manner by the community of riparian proprietors. It should be the duty of this commissioner or board to make and enforce specific rules or by-laws concerning the use of the water for irrigation by the individual members of the community of riparian proprietors, and also to determine the amount of the stream, if any, remaining over and above after the wants of the riparian proprietors had been reasonably supplied, and which could be appropriated, if required, to the irrigation of lands at a distance from the stream. Into the de- tail of these specific rules or by-laws which should be made by the local commissioners on each stream we shall not attempt to enter. They must necessarily vary with the size and character (336) Ch. 9] SUGGESTIONS FOR LEGISLATION. § 171 of the streams, and should be adapted to all the possible condi- tions of fact. Such rules could easily be prepared by intelligent members of each riparian community, who were familiar with the stream, and with the modes of husbandry and wants of the whole community residing on its banks. § 171. Provision for non-riparian lands. Thus far our proposed legislation has dealt alone with the rights of the actual riparian proprietor to use the waters of a streanl for the irrigation of their riparian lands; and we are now brought to the much more difficult inquiry, how far and how should the legislation provide for the diversion of water from a stream for the purpose of irrigating lands hot situated on its banks, — lands belonging to owners who are non-riparian, but which may need the aid of irrigation in order to develop their full capacity for production, or, perhaps, to render them at all productive? In many of the smaller streams throughout the state the natural flow of water is so limited and fluctuating that no diversion could be made to supply the wants of other land-owners with- out thereby infringing upon the superior rights of their riparian proprietors. This class of small streams must, it seems, be left for the exclusive use of those who possess the natural advantage of owning lands upon their banks. Unless this be so, then it should be carefully observed that there is not any limit whatever, depending upon the size of a natural stream, to the right of ap- propriation held by any third person; any third person would have the same right to interpose and appropriate the waters of a natural brook, which both rises and flows through its entire length within the boundaries of any land, which he has to ap- propriate the waters of a somewhat larger stream which runs for a few miles through or between the lands of several proprietors. This simple illustration showa the abburdity^ as well as the in- LAW w. R.— 22 (337) § 172 LAW OP WATER RIGHTS. [Ch. 9 justice, of carrying the doctrine of appropriation to its logical results. But the larger and permanent rivers of the state, the San Joa- quin, and its affluents like the Merced, the Tuolumne, the Cal- averas, and others coming down from the heights of the Sierras, and the Sacramento with its similar branches, the Bear, the Yuba, the Feather, and others, wnen not polluted by hydraulic mining, if reasonably and properly controlled and utilized, can certainly furnish an adeqiiate and constant supply of water, for the purpose of irrigation, to vast communities of land-owners in addition to the riparian proprietors upon their very banks. And irrigation is a matter of such paramount importance to the agricultural interests of California that legislation should add something to the mere common-law doctrines, for the benefit of these non-riparian cultivators of the soil. The problem is, how shall the needs of these communities of land-owners away from the large streams — these non-riparian owners — be provided for and satisfied, consistently with the natural advantage and primary right of the communities of riparian proprietors? The doctrine of unlimited prior appropriation, which obtains on purely public streams, must, as we have seen, be rejected as both unjust and impracticable in its application to these private streams, — streams bordered by private ownership. § 172. Condemnation of stream for public use. The question first arises whether, as a mode of solving this problem, the legislature should provide some general means by which any community or neighborhood of distant, non-riparian owners may appropriate and take the waters of a convenient stream, through the process of condemnation, under an exercise of the right of eminent domain, upon the payment of a just compensation to the private riparian proprietors on the banks of such stream whose prt>perty has been taken and whose pri- f338) Ch. 9] SUGGESTIONS FOB LEGISLATION. § 172 mary rights have been invaded? This method of obtaining the water of a stream by distant land-owners is recognized by the CaUfornia statute passed in 1874, quoted in a former chapter; but that statute is only local and partial in its application, and it lacks the detail and precision essential to a practical system. Is the use of water by private land-owners for the irrigation of their lands a "public use," within the settled meaning of that term, so that the legislature has power, under the constitution, to authorize the taking of water for such purpose, by the right of eminent domain, — the power to take private property for a public use upon the payment of a just compensation? The fact that a statute declares a certain use to be a public one, and authorizes the taking of private property for it, does not neces- sarily make the tise public, nor render the taking of private property for it valid. It is settled by unanimous agreement of authorities that, luhen a use is public, the decision of the legisla- ture that the public needs require the taking of private property to promote the use is final and conclusive, and cannot be in- quired into by the courts. But it is equally well settled by courts of the highest authority that the question whether a given use is or is not public is a judicial one, to be determined by the courts. If the mere declaration of the legislature that a certain use is public, and authorized the taking of private property , were final and conclusive, then the constitutional guaranty forbidding the taking of private property except for public use would be rendered wholly nugatory; it would be made a mere empty form of words. For example, if a statute of the state legisla- ture should pronounce a certain manufactory carried on at a cer- tain town to be a public use, and should purport to authorize its owners to take private property for their own purposes, the courts would not be impeded by this legislative declaration, but would hold the statute to be unconstitutional and void. The following points concerning the use of natural waters for various (339) § 172 LAW OF WATER RIGHTS. [Ch. 9 purposes have been settled by the courts: The supply of water to the inhabitants of a city, village, or town, either by the mu- nicipal authorities themselves, as in case of the Croton Water- Works for New York city, or by a corporation, as in case of the Spring Valley Water Company for San Francisco, is clearly es- tablished to be a public use. The ground upon which this con- clusion was rested is that a water supply to the members of a community is necessary to promote the general health of that community; and there is no higher or more evident public use than the public health. A supply of water for drinking, for washing and bathing, and for all other domestic purposes, and for flushing sewers, and the like, tends to promote the general pub- lic health of a city or village as much as a supply of pure air. To furnish an adequate supply for such purposes, the waters of a natural stream or lake maj' therefore be condemned upon pay- ment of just compensation to those whose private property rights are thereby invaded.' Again, it is settled that the draining of extensive districts of swampy, marshj^, or wet lands is a public use, and that private property may be taken for such drainage works, or to defray the- expense of their construction and maintenance. This decision has been wholly placed, by the courts, upon the ground of the 1 [St. Helena Water Co. v. the city would have to acquire that Forbes, 62 Cal. 182; Smith v. Gould, prescriptive right as it did the oth- 59 Wis. 631, s. 0. 18 N. W. Rep. 457. er, by purchase or condemnation. A city which has, under statutory Baltimore v. Warren Manuf g Co., authority, acquired riparian prop- 59 Md. 96. The construction and erty by purchase or condemna- maintenance of a public canal is a, tion, and erected water-works for public purpose; and water may be the purpose of supplying the in- taken for that purpose, although habitants with water, is, like any the mill-power of adjacent ripa- other riparian proprietor, entitled rian proprietors is thereby injured, to have upper proprietorsenjoined or destroyed, compensation being- from polluting the stream, unless made. Cooper v. Williams, 4 Ohio, they have acquired a right to do 253.] so by prescription, in which case "(310) Ch. 9] SUGGESTIONS TOE LEGISLATION. § 173 benefit to the general health of the local con:munity resulting from the drainage. The courts have most distinctly held, in passing upon this class of cases, that the benefit done to the in- dividual owners, the enhancement in the value of their farms, the increase in the productions of their lands, and the like, re- sulting from the system of drainage, do not of themselves make such works a public use; such benefits are nothing but a private use more or less multiplied. The public health alone is what gives the character of a public use to such measures. Again, it is settled by an overwhelming weight of authority in a great ma- jority of the states, — although a different rule prevails in a few states, the effect of local customs, — that the propelling of mills, factories, and manufactories, by water taken from natural streams, is in no sense a public use. It may be regarded, as the result of principle and authority, that anything which merely benefits an individual's own private property; which merely enhances its value, or renders it more productive or more capable of cul- tivation, — is not a public use. And what is thus essentially a private benefit does not become a "public use," simply because a large number of individuals may enjoy the same benefit with respect to their own private property. Otherwise, there is not a single trade, business, or profession that is^not a "public use" within the provision of the constitution. § 173. Whether irrigation is a public use. Is, therefore, the taking of water from natural streams for the irrigation of the lands of private owners a public use? If wa- ter should be thus taken by one person alone to irrigate his own farm, then, under the doctrines derived both from principle and from the authority of decided cases, the use would clearly seem to be private and not public, — as completely private as plowing, sowing, planting, fencing, ditching, and any other (341) § 173 LAW OF WATER EIGHTS. [Ch. 9 means by which the land is improved, its value enhanced, or its productiveness increased for the personal and immediate ben- efit of the owner. The conclusion would seem to be equally true, if water is taken in like manner by several separate and detached owners, for the benefit of each individual's land. But suppose there is a community composed of numerous — say 50 — different landed proprietors, occupying a certain well-defined tract of land, containing many thousand acres, situated at a dis- tance of several miles from a large stream, and so located topo- graphically that all the farms comprised in the tract could be irrigated by means of one main canal taking water from that stream . This supposition presents the question in the most favorable light possible, and it certainly and fairly represents the actual condition, with respect to the needs and the facilities for irriga- tion, in many parts of the state. Would the irrigation of the lands belonging to the members of this community be a public use, so that they would be authorized, for that purpose, to ap- propriate and condemn the waters of the neighboring stream, against the consent of the private riparian proprietors on such stream? The question is a very difficult one; the answer to it is far from clear. • How does the use of the water by each indi- vidual member of such community diS'er in kind or degree from the use of the water by each riparian proprietor on the stream? How does the use by the whole community differ from the use by the entire mass of riparian proprietors? How is the use by such community any more public than the use by all the ri- parian proprietors on the stream? By what justice, or under what principle of constitutional law, can such a community, simply because it occupies a tract of land at a distance from the stream, deprive the community living on the stream of their natural right to the water, when the uses by each community are exactly the (342) Ch. 9] SUGGESTIONS FOR LEGISLATION. § 173 samef For it should be lemembered that the right to appropri- ate and condemn the water of a stream by exercise of the right of eminent domain, if it exists at all, is absolutely unlimited as to extent and quantity. If the distant community may con- demn any portion of the waters of a stream, against the consent of the riparian proprietors on the stream, then it may condemn and appropriate the entire body of the water, and leave none whatever for the riparian proprietors, upon the payment of suf- ficient compensation. Again, how should the compensation be assessed and paid in any snch case of condemning partially or wholly the waters of a stream? Every riparian proprietor on the stream would be justly entitled to some compensation, for « the rights of every one would be invaded. Any fair, reason- able, and just assessment of the damages among all the riparian proprietors would be practically impossible. These are some of the difficulties which must necessarily at- tend any scheme for the condemnation of the waters of a natu- ral stream, under the right of eminent domain, for the benefit of communities located at a distance from the stream. Whatever measures of legislation are adopted, the natural rights of the riparian proprietors on the streams should, as we have already shown, be first protected and their exercise regu- lated. Only the excess of the water remaining unconsumed after their needs have been reasonably supplied should be appropri- ated to the use of distant and non-riparian owners. But in such a case there is no necessity for any resort to the right of emi- nent domain, to the condemnation of water, nor to the payment of compensation. Communities of owners at a distance from the larger streams should be entitled to reach and appropriate this excess of their waters after the wants of theriiDarian propri- etors are reasonably satisfied, without any condemnation or pay- ment of compensation, since such a use would not substantially afi'ect any rights held by the riparian proprietors on the streams. (343) § 174 AW OF WATER RIGHTS., [Ch. 9 § 174. Eminent domain. [It seems very clear, upon the authorities, that riparian own- ers have a vested right in the benefits and advantages arising from their adjoining the water, of which they cannot be de- prived without compensation.^ But that, under proper condi- tions, a water-course may be taken under the power of eminent domain, for the irrigation of the surrounding country, seems to be plainly indicated by the decision in Lux v. Haggin,^ that "the riparian owner's property in the water of a stream may (on payment of due compensation to him) be taken to supply farm- ing neighborhoods with water." "It is apparent, "said the court, "that in deciding whether a use was public the legislature was not limited by the mere number of persons to be immediately benefited, as opposed to those from whom property is to be taken. It must happen that a public use (as of a particular wagon or railroad) will rarely be directly enjoyed by all the denizens of the state, or of a county or city, and rarely that all within the smallest political subdivision can, as a fact, imme- diately enjoy every public use. Nor need the enjoyment of a public use be unconditional. A citizen of a municipality to which water has been brought by a person or corporation which, as agent of the government, has exercised the power of eminent domain, can demand water only on payment of the established rate, and on compliance with reasonable rules and regulations. And while the court will hold the use private where it appears that the government or public cannot have any interest in it, the legislature, in determining the expediency of declaring a use public, may, no doubt, properly take into the consideration all the advantages to follow from such action; as the advancement iBell V. Gough, 3 Zabr. 634; chitto River v. Withers, 29 Miss. 21. Trenton Water Co. v. Raff, 36 N. 2 eg Cal. 2,i5, 10 Pac. Rep. 697, J. Law, 385; Munroe v.Ivie, 2Utah, construing Code Civil Proc. Cal. 535. See Commissioners of Homo- 1338. (344) Ch. 9] SUGGESTIONS FOE LEGISLATION. § 174 of agriculture, the encouragement of mining and the arts, and the general, though indirect, benefits derived to the people at large from the dedication. * * * The words ' farming neigh- borhoods' are somewhat indefinite. The idea sought to be con- veyed by them is more readily conceived than put into accurate language. Of course, 'farming neighborhood' implies more than one farm; but it woiild be difficult to say that any certain number is essential to constitute such a neighborhood. The vicinage may be nearer or more distant, reference being had to the populousness or sparseness of population of the surrounding country; but the farmers must be so near to each other — rela- tively to the surrounding settlers — as to make what in popular parlance is known as a 'farming neighborhood.' A very exact definition of the word is not, however, of paramount impor- tance. The main purpose of the statutes is to provide a mode by which the state, or its agent, may conduct water to arable lands where irrigation is a necessity, on payment of due com- pensation to those from whom the water is diverted. The same agent of the state may take water to more than one farming neighborhood. It must always be borne in mind that under the Codes no man, or set of men, can take another's property for his own exclusive use. Whoever attempts to condemn the private right must be prepared to furnish (to the extent of the water he consumes and pays for) every individual of the com- munity or communities, farming neighborhood, or farming neigh- borhoods, to which he conducts it, the consumers being required to pay reasonable rates, and being subjected to reasonable regu- lations; and whether the quantity sought to be condemned is reasonably necessary to supply the public use in a neighborhood or neighborhoods must be determined by the court in which the proceedings are brought for condemnation of the private right. "*] iLux V. Haggin, 69 Cal. Zm, 10 Water Co. v. Baker, 95 Cal. 368, Pac. Rep. 700. See, also, Aliso 30 Pac. Rep. 537. (345) § 175 LAW OP WATER RIGHTS. [Ch. 9 § 175, Summary of suggestions concerning legis- lation. Without any further discussion, we shall briefly sum up our conclusions with respect to the character, form, and objects of the legislation which we suggest: First. The resort to the right of eminent domain and the con- demnation of water should be restricted mainly, even if not en- tirely, to the obtaining adequate supplies for consumption by cities, villages, and other municipalities. This being a public use of the highest nature, — the preservation of the general health, — it overrides all other uses, and takes preference of irri- gation, manufacturing, mining, watering stock, and all other ordinary purposes to which natural streams may be appropri- ated. All other uses of water must succumb to this. Second. The smaller streams throughout the state should be left substantially to the exclusive use, so far as irrigation is con- cerned, of the private riparian proprietors upon their banks. The natural right and advantage of the riparian proprietors en- title them to the first use of the waters of such streams; and, after their primary needs have been reasonably satisfied, there will not be left any substantial excess of the waters for the use of distant and non-riparian land-owners. Third. The larger and permanent streams throughout the state, the names of some of which have already been mentioned, are capable, when properly regulated and utilized, of supply- ing the needs for irrigation, not only of all the private riparian proprietors on their banks, but also of large communities who occupy lands more or less distant from them. While the ripa- rian proprietors even on these larger streams have a natural ad- vantage, and are entitled to have their wants first supplied for purposes of irrigation, yet they are not entitled to consume the entire waters of a stream. After the reasonable needs of the ri- (346) Ch. 9] SUGGESTIONS FOE LEGISLATION. § 176 parian proprietors have been fairly and reasonably ascertained and satisfied , all the excess of the waters of any such stream be- longs of right, for the purposes of irrigation, to those communi- ties of non-riparian land-owners who are so situated, geograph- ically and topographically, that they can in the best manner ap- propriate and utilize such surplus of the waters. Fourth. Legislation of the character heretofore described should carry these principles into operation. A single commis- sioner, representing the community of riparian proprietors on each of the smaller streams, could regulate their use of the wa- ter for irrigation by appropriate by-laws. On each of the larger class of streams a local board of commissioners could frame the necessary by-laws for the government of both the riparian pro- prietors on the stream, and the communities of land-owners oc- cupying tracts at a distance from it. The general powers of these commissioners, and the general nature of the rules or by- laws which they should promulgate, have already been sufifi- cientlj' indicated. The details of these special rules must largely depend upon j)articular circumstances connected with each sep- arate stream. Fifth. The title of the Civil Code concerning water rights should be wholly repealed, as being entirely inconsistent with the fundamental principles of the system here proposed. The doctrine of prior appropriation is completely at war with a sys- tem which recognizes, harmonizes, and protects the rights of all parties in the state. § 176. Concluding observations. I have now completed the design which was formed when this essay concerning "Water Rights" was commenced; in fact, the discussion has extended to a much greater length than I had originally supposed would be necessary. It is true, I have by no means exhausted the general subject of rights connected (347) ^ 176 LAW OF WATER EIGHTS. [Cll. 9 with water, of property in water, or in the soil covered by the water, under all conditions and circumstances. There are many important questions which I have left untouched; there are many questions of great doubt and difficulty, peculiar to this Pacific coast, to which I have not even alluded. The single object of this essay was to ascertain, as far as pos- sible, the law peculiar to the Pacific states and territories, con- cerning the waters of natural running streams, the rights of all persons, riparian proprietors and others, to use the waters of such streams, and especially, as being of paramount impor- tance to the agricultural interests, their right to use and con- sume these waters for the purpose of irrigation. Upon the foundation of existing law, as thus ascertained, it was my further design to suggest such measures of just and prac- ticable legislation as would render the waters of these streams available, for purposes of irrigation, to the largest communities of persons engaged in agriculture, with the least possible inter- ference with the existing and natural rights of any class. The object thus proposed has been reasonably accomplished. There seemed to be a prevailing opinion among the members of the legal profession — an opinion in which I partook when commenc- ing this essay — that the law of California and other Pacific com- monwealths concerning the water rights in natural streams, pri- vate riparian rights, the rights of private riparian proprietors, and similar topics connected with the appropriation and use of such waters, was wholly vague, unsettled, and uncertain, to be collected only from doubtful, contradictory, and conflicting de- cisions. It has been shown that there is, in reality, no founda- tion for this opinion. In the great majority of the states and territories embraced within our review, the entire field has been occupied by elaborate systems of statutory legislation. In Cal- ifornia and Nevada it has been shown, as it seems to me, be- yond the possibility of question or doubt, that the principles (348) Ch. 9] SUGGESTIONS FOE LEGISLATION. § 176- and fundamental doctrines of the common kw concerning the- waters of natural streams flowing through or by private lands, private riparian rights, and the rights of private riparian pro- prietors, have been established by the courts in an unbroken series of decisions. There are two antagonistic interests in the state, each endeav- oring to control the legislature, and to shape the legislation en- tirely in its own behalf, to the complete exclusion of the other. These are the riparian proprietors, who assert their common-law rights, and would exclude all other classes from any participa- tion in the waters of the stream, however abundant; and the- conimunities of land-owners away from the banks of streams, who deny any rights of the riparian proprietors, and claim a free, unrestricted access to and appropriation of all natural streams, limited only by the extent of their own needs. The latter class, being the most numerous, has prevailed with the- legislature, and shaped the legislation exclusively for its own benefit, in most of the Pacific states and territories, whose stat- utes I have hereinbefore quoted. The type of legislation which I have proposed, recognizes the just claims of both these classes; it provides for satisfying the- demands of each, so far as possible, without completely sacrific- ing the other; but it necessarily requires that each should sur- render some portion of its exclusive pretensions. I have the ut- most confidence that the main elements and features of legisla- tion which I have proposed, might, in the hands of intelligent men, who were familiar alike with the situation and topography of the larger rivers, and of the regions through which they run,, and with the agricultural methods, customs, and wants of the adjacent communities, be worked up into a just, practicable, and efiicient system for the regulation of irrigation throughout all parts of the state. (349) § 177 LAW OF WATER EIGHTS. [Ch. 10 CHAPTER X. IRRIGATION AND DITCH COMPANIES. [By the Editor.] L Legislation Authorizing and Regulating Such Companies. § 177. Systems of statutory regulation. 178. Statate of Oregon. 179. Statute of California. 180. Statute of Washington. 181. Statutes in Wyoming. 182. Statutes in Colorado. 183. Statutes in North Dakota and Montana. 184. Statute of Nebraska. 185. Statute of Texas. 186. Statute of New Mexico. 187. Statute of South Dakota. 188. Act of congress granting right of way. II. Construction and Application of These Statutes. 189. Acquisition of water rights. 190. Right to use ditch constructed by another. 191. Bridging highways and crossings. 192. Tolls and charges for water. 193. Contracts with consumers. 194. Dutj' of company to furnish water. 195. Compelling company to deliver water. 196. Rights of stockholders. 197. Duty to keep ditch in repair; liability for injuries. 198. Liability for failure of water-supply. I. Legislation Authobizing and Eegulating Such Com- panies. § 177. Systems of statutory regulation. Within the past few years the subject of irrigation has become one of paramount importance in certain of the western and southwestern states. And as this subject developed, it became apparent that additional legislation, (350) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 177 for the protection of the available waters, and for regulat- ing the appropriation and use of streams for this purpose, was a matter of urgent necessity. The states, therefore, addressed themselves to the task of framing statutes which should efficiently meet these requirements, and at the same time make the benefits to be derived from an economical and well-planned system of irrigation available to the greatest possible extent throughout their territories. These statutes have been enacted, for the most part, since the preceding portions of this work were originally written. But it is believed that the propriety of including in the present edition a synopsis of their terms, and a discussion of the judicial decisions in which they have been construed, is too obvious to require an apology. The statutes to which we refer, though exhibiting a great deal of variety in the detail, wiU admit of being generally divided into three classes. The system established by the laws of the first class is that of "irrigation companies" or "ditch companies." These are private corporations, author- ized by the statute and regulated by it in respect to theix powers, duties, and liabilities. Their object is to acquire exclusive rights to the water of certain streams or other sources of supply, and to convey it, by means of ditches or canals, through a region where it can be beneficially used for agricultural purposes. They are invested with the power of eminent domain for the purpose of acquiring the necessary rights of way, and also, in some states but not all, for the purpose of condemning the water rights of ap- propriators and riparian owners. They may divide the wa- ter among stockholders, or make contracts with consumers, or furnish a supply to all who apply at fixed rates. But the legislature usually reserves the right to regulate their charges, and the courts compel them to furnish water to aU persons entitled thereto. They are made liable for dam- (351) § 177 LAW OF WATER RIGHTS. [Ch. 10 ages caused by the operation of their works and by the failure to keep the same in good repair. And on the other hand, their property is protected from injury or interfer- ence by severe penal laws. The system established by the "statutes of the second class is that of "irrigation districts." These are public and quasi municipal corporations, each comprising a defined re- gion or area of land which is susceptible of one mode of ir- rigation from a common source and by the same system of works. They are organized on petition, hearing, and order of the proper local authorities, and are governed by their own officers, usually a board of directors, assessor, collector, and treasurer. The district has power to acquire, either by purchase or condemnation, all the lands, waters, and water rights needed for its purposes, and to construct the necessary canals and other works. Its indebtedness is to be bonded, and the interest on the bonds — and the princi- pal by successive instalments — is to be paid by annual taxation on the real estate within the district. The water distributed for purposes of irrigation is to be apportioned ratably among the land-owners of the district, to each ac- cording to the ratio which his last assessment for district purposes bears to the whole sum assessed upon the district. The statutes of the third class provide a system of state supervision and control of the appropriation and use of water. They contemplate a division of the state into "water districts," which, however, are not public or munici- pal corporations. In each of these districts there is a "water commissioner," who, in conjunction with the divi- sion superintendents and the state engineer, is charged with the enforcement of the law. The plan of these stat- utes is not to disturb existing appropriations or water rights, but to secure, by official supervision, the just distri- bution of the water according to the rights of all who have (352) Ch. 10] lERIGATION AND DITCH COMPANIES. § l?® claims to its rise, and in the most economical manner, and to regulate future appropriations so that the streams shall be made to serve as many claimants as possible, and to avoid conflicting and disputed interests. These several systems* will be considered in this and the succeeding chapters, the present chapter being devoted to the subject of irrigation companies. Many corporations of this character have been chartered in the different states, and particularly in Colorado, and the subject of their rights powers, and duties, is one of great interest and importance, although the statutes are as yet of too recent date to admit of the accumulation of any great body of case-law in refer- ence to their interpretation. § 178. Statute of Oregon. We shall begin our discussion of these statutes with a synopsis of the law in force in Oregon; not because this is the earliest in date of such acts, but because it is the most complete, consistent, and well-ordered. This statute was passed February 18, 1891.i Its provisions are as fol- lows: Sec. 1. "The use of the water of the lakes and running streams of the state of Oregon for general rental, sale, or distribution for purposes of irrigation and supplying water for household and domestic consumption and watering live- stock on dry lands of the state, is a public use, and the right to collect rates or compensation for such use of said water is a franchise. A use shall be deemed general, within the purview of this act, when the water appropri- ated shall be supplied to all persons whose lands lie adja- cent to or within reach of the line of the ditch or canal or 1 Laws of Oregon 1891, p. 52. LAW w. E.— 23 ('353> § 278 LAW OF WATER RIGHTS. [Ch. 10 flume in which said water is conveyed, without discrimina- tion other than priority of contract, upon payment of charges therefor, as long as there may be water to supply." Sec. 2. [Powers of corporation.] "A corporation organ- ized for the construction and maintenance of a ditch or canal or flume for general irrigation purposes, and other purposes above prescribed, may appropriate and divert water from its natural bed or channel, and condemn right of way for its ditch or canal or flume, and may condemn the rights of riparian proprietors upon the lake or stream from which such appropriation is made, upon complying with the terms of this act. Such corporation shall also have the right to condemn lands for the sites of reservoirs for storing water for future use, and for rights of way for feeders carrying water to such reservoirs, and for ditches carrying the same away, and distributing ditches, and shall have the right to take from any running stream in this state and store away any water not needed for immediate use by any person having a superior right thereto." Sec. 3. [Right of entry on lands.] "Such corporation may enter on any land for the purpose of locating a point of diversion of the water intended to be appropriated, and upon any land lying between such point and the lower ter- minus of its proposed ditch or canal or flume, for the pur- pose of examining the same and of locating and surveying the line of such ditch or canal or flume, together with the lines of necessary distributiug ditches and feeders for reser- voirs, and to locate and determine the sites for reservoirs for storing water." Sec. 4. [Posting notice.] "When a point of diversion shall have been selected, such corporation shall post in a conspicuous place thereat a notice in writing containing a statement of the name of the ditch or canal or flume and of the owner thereof, the point at which its head-gate is pro- C354) Cll. 10] IRRIGATION AND DITCH COMPANIES. § 178 posed to be constructed, a general description of the course of said ditch or canal or flume, the size of the ditch or canal or flume in width and depth, the number of cubic inches of water by miner's measurement under a six-inch pressure intended to be appropriated, and the number of reservoirs, if any." Sec. 5. [Notice and map to be filed.] Within ten days after posting the notice, a copy of the same must be filed for record, together with a map showing the general route of the ditch. These must be filed in each county wherein any part of the system lies. Within sixty days after the completion of the ditch, a map of its definite location must be filed, as above. Sec. (i. [Condemning land needed.] ''When such corpo- ration shall have acquired the right to appropriate water, in the maimer hereinbefore provided, it may proceed to con- demn lands and premises necessary for right of way for its ditch or canal or flume, and likewise for its distributing ditches and feeders and for sites for reservoirs." But the amount of land to be so condemned is limited to a strip 100 feet wide for the main ditch, and 30 feet wide for each dis- tributing ditch or feeder, and a prescribed acreage for each reservoir. Sec. 7. [Compensation.] If the corporation cannot agree with the land-owner as to the amount of compensation, or if the latter is "absent from the state, or incapable of act- ing," the corporation may bring an action in the appro- priate court to have the land appropriated to its use and to determine the amount of damages to be paid. Sec. 8. [Condemnation of riparian rights.] "Such cor- poration may also maintain an action for the condemnation and appropriation of the right to the flow of water in any stream from which it proposes to divert water below the point of diversion vested in owners of lands lying contigu- (355) § 178 LAW OF wat?:r kights. [Ch. 10 ous to such stream by virtue of their location. . . . But no person owning lands lying contiguous to any stream shall, without his consent, be deprived of water for house- hold or domestic use, or for the purpose of watering his stock, or of water necessary to irrigate crops growing upon such lands and actually used therefor." Sec. 9. [Completion of works.] The corporation must be- gin the actual construction of its ditch, etc., within six months after posting the notice, and prosecute the same to completion, without intermission, except for unavoidable causes. "And the actual capacity of said ditch or canal or flume, when completed, shall determine the extent of the appropriation, anything contained in the notice to the con- trary notwithstanding. Upon a compliance with the pro- visions of this act, the right to the use of the water appro- priated shall relate back to the date of posting said notice." Sec. 10. [Prior appropriations respected.] "All existing appropriations of water made for beneficial purposes," in accordance with federal or state law, or the decisions of the courts or local customs, "shall be respected and upheld to the extent of the amount of water actually appropriated, nor shall any existing mill be deprived of its water -power, however lawfully acquired, without the consent of its own- er; and all controversies respecting rights to water under the provisions of this act shall be determined by the date of the appropriations as respectively made thereunder by the parties." Sec. 11. [Changing place of diversion.] The corporation may change the place of its diversion of water from any natural stream, in cases where the channel shall have been so lowered, cut out, turned aside, or otherwise changed, that the ditch does not receive the proper inflow of water to which it is entitled. For this purpose the corporation may exercise the same rights of condemnation as in case of (356) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 178 the original construction of its ditch. And when, from any cause, the original line of the canal or ditch can no longer be maintained, the corporation may alter its course, and for such purpose may condemn lands for right of way as in case of original construction. Sec. 12. [Shortest route to be followed.] Whenever the corporation shall find it necessary to construct its ditch "across the improved or occupied lands of another, it shall select the shortest and most direct route practicable, hav- ing reference to cost of construction, upon which said ditch . . . can be constructed with uniform or nearly uniform grade." Sec. 13. [Only one ditch where practicable.] "No tract or parcel of improved or occupied land in this state shall, without the written consent of the owner thereof, be sub- jected to the burden of two or more ditches or canals or flumes constructed under this act for the purpose of con- veying water through said property, when the same object can be feasibly and practically attained by uniting and con- veying all the water necessary to be conveyed through such property in one ditch or canal or flume." And any corpo- ration which has constructed its ditch must allow any sim- ilar corporation to enlarge the ditch and share in the joint use of it, upon proper compensation made. Sec. 14. [Channel of stream as part of ditch.] The cor- poration may make use of natural depressions in the earth, rJong the line of its ditch, as parts thereof; "and it may conduct the water appropriated by it along the channel of any natural stream, but not so as to raise the water thereof above ordinary liigh-water mark, and may take the same out again at* any point desired without regard to the prior rights of otliers to water from said stream, but due allow- ance shall be made for evaporation and scapage." (The last word is evidently a draughtsman's error for "seepage.") (357) § 178 LAW OF WATER RIGHTS. [Ch. 10 Sec. 15. [Head-gate.] The corporation "shall be required to erect and keep in good repair a head-gate at the head of its ditch or canal or flume, which, together with the necessary embankments, shall be of sufficient height and strength to control the water at all ordinary stages." Sec. 16. [Liability for damages.] The corporation shall be liable for damages arising from leakage or overflow of water from its ditch, when caused by insufficient strength of the banks or walls or by negligence in its management. But it is not liable for damages "resulting from extraordi- nary unforeseen action of the elements, or attributed in whole or in part to the wrongful interference of another with said ditch or canal, flume, or reservoir, which may not be known to said corporation for such length of time as would enable it by the exercise of reasonable efforts to remedy the same." Sec. 17. [Bridging highways.] "Any corporation con- structing a ditch or canal or flume, under the provisions of this act, across any public highway or public travelled road, shall put a good substantial bridge not less than fourteen feet in breadth over such ditch or canal or flume where it crosses said highway or road. Travel shall not be suspended by the construction of said ditch, and such bridge shall be completed within three days from the time said highway or road is intersected." If the corporation does not obey this provision, the road supervisor is to con- struct the bridge and recover the cost in an action against the company. Sec. 18. [Embankments to be kept in repair.] Any cor- poration constructing a ditch under this act "shall care- fully keep and maintain the embankments and walls there- of, and of any reservoir constructed to be used in conjunc- tion therewith, so as to prevent the water from wasting and from flooding or damaging the premises of others; (358) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 178 and it shall not divert at any time any water for which it has no actual use or demand." Sec. 19. [Distributing ditches.] "Such corporation may acquire the right of way across lands lying contiguous to its ditch or canal or flume, for distributing ditches, in the manner hereinbefore provided, but it shall not be compelled so to do nor to construct distributing ditches upon any lands for the use of the owners thereof. But when any person shall construct a distributing ditch to the line of right of way for the ditch or canal or flume at any practicable point, and shall tender to such corporation the rates usu- ally charged consumers along the line of said ditch or canal or flume, for any amount of water said corporation may have in its ditch or canal or flume, or may have the right and ability to appropriate above the amount already sold, said corporation shall connect said distributing ditch with its ditch or canal or flume and turn therein the amount of water for which tender is made, and if it shall fail or refuse so to do, it shall be liable to such person for all loss or damage sustained by reason of the failure to pro- cure such water. Such corporation shall not be liable for any loss or damage sustained by any person by reason of the defective construction or careless operation of distrib- uting ditches not by it constructed or operated, and not occasioned in whole or in part by its wrongful or negligent act." Sec. 20. [Lien on crops.] "Any corporation acting under the provisions of this act" which shall supply water to any person for the irrigation of crops shall have a lien upon all crops raised by the use of such water for the reasonable value of the water supplied, which lien shall be a continu- ing one and shall bind such crops after as weU as before the same have been gathered, and without record shall be preferred to aU other liens or incumbrances upon said (359) § 178 LAW OF WATER RIGHTS. [Ch. 10 crops whatever. Such liens may be enforced by a suit in equity." Sec. 21. [Ditches are real estate.] "All ditches or canals and flumes, permanently affixed to the soil, constructed under the provisions of this act, are hereby declared to be real estate, and the same or any interest therein shall be transferred by deed only, duly witnessed and acknowl- edged. The vendee of the same, or any interest therein, at any stage shall succeed to all the rights of his vendor and shall be subject to the same liabilities during his own- ership." Sec. 22. [Eights lost by abandonment.] "The right to appropriate water hereby granted may be lost by abandon- ment; and if any corporation constructing a ditch or canal or flume under the provisions of this act shall fail or neglect to use the same for the period of one year at any time, it shall be taken and deemed to have abandoned its appropriation, and the water appropriated shall revert to the public and be subject to other appropriations in order of priority. But the question of abandonment shall be one of fact to be tried and determined as other questions of fact." Sec. 23. [Penalty for injury to ditches.] Heavy penal- ties are provided against any person who shall- "cut, dig, break down, or open any gate, bank, embankment, or side of any ditch, canal, flume, feeder, or reservoir," with ma- licious intent to injure the owner, or with intent to let out the water and steal the same. The person so trespassing shall also be liable in damages. Sec 24. [Parties to actions.] 'In any suit brought for the protection of water rights acquired under this act, aU persons who have diverted water from the same stream or source may be joined as defendants. And any person claiming a right on said stream or source, and interested (360) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 179 in the result of the suit, may come in as a party; and the court may require any other necessary parties to be brought in. Sec. 25. [Eight of way over state lands.] "The right of way, to the extent hereinbefore specified, for the ditches or canals, flumes, distributing ditches and feeders, of any corporation appropriating water under the provisions of this act, across any and all lands belonging to the state of Oregon and not under contract of sale, is hereby granted." Sec. 26. [Legislative control.] "This act may at any time be amended by the legislative assembly, and commissioners for the management of water rights and the use of water may be appointed, and rates for the use of water may be fixed by the legislative assembly or by such commissioners; but such rates shall not be fixed lower than will allow the net profits of any ditch or canal or flume or system thereof to equal the prevailing legal rate of interest on the amount of money actually paid in and employed in the construc- tion and operation of said ditch or canal or flume or sys- tem thereof." Sec. 27. "Inasmuch as the question of conflicting claims to the appropriation and use of the water of the streams and lakes of this state, for irrigation purposes and other purposes hereinbefore enumerated, is a vexed one and should be speedily settled, this act shall take effect and be in force from and after its approval by the Governor." § 179. Statute of California. In the state of California, a statute was passed in the year 1885, having special reference to the sale, rental, and distribution of water for beneflcial purposes.^ Its pro- visions are as follows: — Sec. 1. "The use of all water now appropriated, or that •Act of Mar. 12, 1885; St. Cal. 1S80, p. 95. (361) § 179 LAW OP WATER EIGHTS. [Ch. 10 may hereafter be appropriated, for irrigation, sale, rent- al, or distribution, is a public use, and the right to collect rates or compensation for use of such water is a franchise, and except when so furnished to any city, city and county, or town, or the inhabitants thereof, shall be I'egulated and controlled in the counties of this state by the several boards of supervisors thereof, in the manner prescribed in this act." Sees. 2-7. These sections provide for the fixing of maxi- mum rates by the several boards of supervisors, upon the petition of not less than twenty-five tax payers of the county. The hearing of the petition is to be had after publication and notice. The statute intends that the rates shall be fixed at such a figure as will allow to the corporation a net annual profit of not less than six per cent., nor more than eigliteen per cent., on the cost of its investment or value of its plant. The supervisors may establish different rates for the sale, the rent, and the distribution of water, and different rates for the several different uses for which the water may be furnished, but the rates, as to each class, shall be equal and uniform. The tariff of rates so fixed shall remain in force for at least one year, unless sooner changed or abrogated. But it may be changed, on petition as above, or on petition of the company. The tariff of rates shall be recorded and pub- lished. Sec. 8. "Any and all persons, companies, associations, or corporations, furnishing for sale, rental, or distribution, any appropriated waters to the inhabitants of any county or counties of this state (other than to the inhabitants of any city, city and county, or town therein) shall so sell, rent, or distribute such waters at rates not exceeding the established rates fixed and regulated therefor by the boards of supervisors of such counties, or as fixed and (362) Ch. 10] IBRIGATION AND DITCH COMPANIES. § 179 established by such person, company, association, or cor- poration, as provided in this act." Sec. 9. If excessive rates are charged, the person ag- grieved has an action for the recovery of the whole rate so collected, together vs^ith his actual damages, and costs. Sec. 10. "Every person, company, association, and cor- poration, having in any county in the state (other than in any city, city and county, or town therein) appropriated waters for sale, rental, or distribution, to the inhabitants of such county, upon demand therefor, and tender in money of such established water rates, shall be obliged to sell, rent, or distribute such water to such inhabitants at the established rates regulated and fixed therefor, as in this act provided, whether so fixed by the board of supervisors or otherwise, to the extent of the actual supply of such appropriated waters of such person, company, association, or corporation, for such purposes. If any person, company, association, or corporation, having water for such use, shall refuse compliance with such demand, or shall neglect, for the period of five days after such demand, to comply therewith to the extent of his or its reasonable ability to do so, [he or it] shall be liable in damages to the extent of the actual injury sustained by the person or party making such demand and tender, to be recovered, with costs." Sec. 11. Whenever such person or corporation shall have acquired the right to appropriate water in this state, he or it may proceed to condemn the lands and premises necessary for the right of way, under the general pro- visions of the statutes relating to the condemnation and talking of property for public use. Besides the foregoing statute, we find certain provisions of the Civil Code of California which are applicable to the subject in hand. These are as follows: — (363) § 180 LAW OF WATER EIGHTS. [Gh. 10 Sec. 551. "Every water or canal corporation must con- struct and lieep in good repair, at all times, for public use, across their canal, flume, or water-pipe, all of the bridges that the board of supervisors of the county in which such canal is situated may require, the bridges being on the lines of public highways and necessary for public uses in connection with such highways; and all water- works must be so laid and constructed as not to obstruct public highways." Sec. 552. "Whenever any corporation, organized under the laws of this state, furnishes water to irrigate lands which said corporation has sold, the right to the flow and use of said ^ater is and shall remain a perpetual ease- ment to the land so sold, at such rates and terms as may be established by said corporation in pursuance of law. And whenever any person who is cultivating land on the line and within the flow of any ditch owned by such cor- poration, has been furnished water by it with which to irrigate his land, such person shall be entitled to the con- tinued use of said water, upon the same terms as those who have purchased their land of the corporation." ^ 180. Statute of Washington. The laws of this state, on the subject of irrigation and water rights, are at present involved in much confusion and uncertainty, in consequence of the attempt to in- corporate in one code widely different systems of regu- lation in force in various other states. It may be seen, however, that a part of the plan of the legislators was to include a system of rules for the organization and govern- ment of irrigation companies. This system is in many respects similar to that in force in Oregon, to which, no doubt, it furnished numerous suggestions. We here give a synopsis of those provisions of the statutes which relate (364) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 180 to such companies, changing the order of the sections some- what, for the purpose of a more logical arrangement* Sec. 1718. [Surplus waters may be appropriated.] "Any person is entitled to take from any of the natural streams, or lakes in this state water for the purposes of irrigation, not heretofore appropriated or subject to rights existing at the time of the adoption of the constitution of this state, subject to the conditions and regulations imposed by law;, provided, that the use of water at all times shall be deemed a public use, and subject to condemnation as may from time to time be provided for by the legislature of this state." Sec. 1772. [Corporations may construct ditches.] "Any corporation duly organized under the laws of this state for the purpose of constructing ditches or canals to carry water for irrigating purposes, or any person or persons, or association or firm, may construct irrigating canals, ditches, or flume-ways for the purposes of carrying water- from any natural stream, reservoir, or any lake within this state, and may condemn the right of way therefor,. . . . for the purpose of furnishing water to persons upon the line of said ditch, or its lateral branches, to irrigate the lands of any person or persons, whether the same be on, any natural stream or lake, or whether or not said cor- poration, association, person, or firm owns any land upon the line of said ditch or its laterals.'' Sec. 1773. [Such corporations public carriers.] "Such corporation, person, association, or firm shall be deemed, to be a public carrier, and shall at all times be subject to the regulations prescribed for said ditch by the legis- lature from time to time." Sec. 1774. [Condemnation extends only to riparian rights.]! " The references are to 1 1782. The act was passed March^ HiU's Ann. St. Wash. §§ 1718- 4, 1890. (365) § 180 LAW OF WATER EIGHTS. [Cll. 10 "The right herein given to condemn the use of water shall not extend any further than to the riparian rights of per- sons to the natural flow of water through lands upon or abutting said streams or lakes, as the same exist at com- mon law, and is not intended in any manner to allow water to be taken from any person that is used by said person himself for irrigation, or that is needed for that purpose by any such person." Sec. 1730. A natural stream may be used as part of a ditch or water-course, and the water reclaimed, allow- ance being made for evaporation and seepage. (This is substantially the same as § 14 of the Oregon act, as quoted above.) Sec. 1734. [Division of water when supply is insuffi- cient.] "If at any time any ditch from which water is or shall be drawn for irrigation shall not be entitled to the full supply of water from the natural stream or lake which supplies the same, the water actually received into and carried by such ditch shall be divided among all the con- sumers of water from said ditch, as well as the owners, share-holders and stockholders thereof, as the parties pur- chasing water therefrom, and the parties taking water, partly under and by virtue of holding shares and partly by purchasing the same, shall each receive his share pro rata, according to the amount he (in cases in which sev- eral consume water jointly) shall then be entitled to, so that owners and purchasers shall not suffer from a de- ficiency rising from the cause aforesaid, each in propor- tion to the amount of water which he should have re- ceived in case no such deficiency of water had occurred."* Sees. 1737 and 1755. The embankments of the ditch ' We give the exact wording copied from a statute of Col- of tliis obscure and exceedingly orado. See, infra, p. 372, and ill-expressed section. It was note, p. 373. C366) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 180 must be kept in good repair. (The provision is similar to § 18 of the Oregon act, quoted above.) And further, the owner is required to "malce a tail ditch so as to return the water in such ditch with as little waste as possible into the stream or lake from which it was talten." Sec. 1738. The ditch-owner must bridge crossings of public highways. (Similar to § 17 of the Oregon act, ex- cept that the bridge is to be sixteen feet wide.) Sec. 1739. [Amount of water to be taken.] During the irrigating season it shall not be lawful for the ditch- owners to run through their ditches any greater quantity of water than is absolutely necessary for irrigating the lands supplied. Violation of this section is a misde- meanor. Sec. 1740. [Head-gate.] The owner of any irrigating ditch must erect and keep in repair a good and sufficient head-gate. (Same as § 15 of the Oregon act.) Sec. 1751. [Condemning right of way.] "All persons, associations, and corporations entitled to the use of water under the provisions of this chapter, in cases where the right of way over intervening lands is necessary to the use of such water, may condemn the right of way for any such ditch or ditches as hereinafter provided." Sees. 1752-1754. These sections provide a system of rules for such condemnation of rights of way, by proceed- ings in the superior court and the fixing of the amount of compensation by appraisers. Sec. 1756. Not more than one ditch, where practicable, to be put through any improved or occupied land. (The same as the first part of § 13 of the Oregon act.) Sec. 1757. The ditch is to follow the shortest practi- cable route. (Substantially the same as § 12 of the Ore- gon act.) Sec. 1758. In what cases head of ditch, or point of di- (367) § 180 LAW OF WATER EIGHTS. [Ch. 10 Tersion, may be changed. (The same as § 11 of the Ore- gon act.) Sec. 1759. [Map to be filed.] This section makes provi- sion for the filing of a complete and detailed map of the route of the ditch, within ninety days after its construction or enlargement. Sec. 1760. [Applies only to irrigating ditches; abandon- ment of rights.] "This chapter shall apply to and affect only ditches or canals used for carrying water for the purpose of irrigation and for no other purpose whatever; provided, that all rights shall be forfeited under the pro- visions of this chajjter unless due diligence is used in such construction or enlargement." Sec. 1761. [Condemnation of riparian rights.] "Any person, association, or corporation desiring to condemn the riparian rights of persons in any natural stream or lake in this state, may do so as follows: Such person, firm, or corporation shall file his, their, or its petition in the superior court of the county wherein said stream or lake or any part thereof is situated, from which said per- son, association, or corporation desires to take such water, setting forth the uses that the said person, association, or corporation intends to make of said water, the amount of water desired to be taken, and the extent of time that said water is intended to be used." Sees. 1762-1771. These sections contain an elaborate and detailed system for the proceedings to be taken upon the petition just mentioned. Sec. 1775. This section prescribes penalties for injuries to ditches. Its terms are very similar to those of § 23 of the Oregon act. (368) Ch. 10] lERIGATION AND DITCH COMPANIES. § 182 § 181. Statutes in Wyoming. The statutes of this state also embrace provisions regu- lating the organization and government of irrigation and ditch companies, similar to those in Oregon and Washing- ton. It is not considered necessary here to present a syn- opsis of these provisions, as enough has been said in the preceding sections to indicate the general character of laws of this kind. The laws in question -mil be found in the Eevised Statutes of this state.^ A supplementary act gives to such companies authority to issue bonds and to execute mortgages and deeds of trust on their property and franchises." And it should be noted that an act of 1890 restricts the rights of such companies to the taking of water not already appropriated, and requires them first to make application to the "Board of Control."'^ This board constitutes a very important feature of the Wyoming legislation on water rights, which will be fully described in a subsequent chapter.* § 182. Statutes in Colorado. The laws of this state contain one of the most complete and detailed systems for the regulation of irrigation com- panies. And as these regulations were adopted, in part, as early as 18G8, they must be regarded as constituting the original system, from which those in force in the other states were copied or imitated with greater or less close- ness. The provisions in question are found in various parts of the first volume of Mill's Annotated Statutes of Colorado; and those of an important and general nature may be summarized as follows: — °Rev. St. Wyom. 1887, §§ "Laws Wyom. 1890, p. 365. 532-537, 548, 1325-1330, 1343- 'Laws Wyom. 1890-91, p. 91. 1361. » See, infra, § 210. LAW w. E. — 24 (,369) § 182 LAW OF WATEE EIGHTS. [Ch. 10 Sec. 567. This section provides for the incorporation of any three or more persons who may desire to form a company "for the purpose of constructing a ditch for the purpose of conveying water to any mines, mills, or lands, to be used for mining, milling, or irrigating of lands." Their certificate shall specify the stream or streams from which the water is to be taken, the point or place on said stream at or near which the water is to be taken out, the line of the ditch, as near as may be, and the use to which the water is intended to be applied. Sec. 568. [Eight of way.] "Any ditch company formed lunder the provisions of this act shall have the right of ■way over the line named in the certificate; and shall also have the right to run the water of the stream or streams named in the certificate through their ditch. Provided, that the line proposed shall not interfere with any other ditch whose rights are prior to those acquired under this act and by virtue of said certificate, except the right to cross by flume; nor shall the water of any stream be diverted from its original channel to the detriment of any person or persons who may have priority of right.'' Sec. 569. Contains provisions for assessments on stock- holders. Sec. 570. [When compelled to furnish water.] The com- pany "shall furnish water to the class of persons using the water in the way named in the certificate, in the way the water is designated to be used, whether miners, mill-men, farmers, or for domestic use, whenever they shall have water in their ditch unsold; and shall at all times give the preference to the use of the water in said ditch to the class named in the certificate." Water-rates shall be fixed by the county commissioners. Sec. 571. The company is required to keep its ditch in good repair, so that the water may not escape therefrom (370) Ch. 10] lEEIGATION AND DITCH COMPANIES. § 182 to the injury of any mining claim, road, ditchi, or other property. Sec. 572. Provision is herein made for the consolida- tion of ditch companies. Sec. 573. The company must commence its works within ninety days, prosecute the same diligently to com- pletion, and finish the same within three years, on pain of forfeiting its rights. Sec. 574. A penalty is imposed upon any person who shall "wilfully or maliciously damage or interfere with" the ditch or other property of the company. Sees. 949-95(j. These sections embody the provisions of an act of 1874, authorizing counties to subscribe to the stock of such companies. Arapahoe county is expressly excepted. The following provisions of the statutes are applicable alike to private persons and corporations owning and con- structing ditches. They are given here as being necessary to exhibit the complete system of rules for the govern- ment of such companies. Sec. 2261. [Only one ditch where practicable.] "No tract or parcel of improved or occupied land in this state shall, without the written consent of the owner thereof, be subjected to the burden of two or more irrigating ditches, constructed for the purpose of conveying 'water through said property to lands adjoining or beyond the same, when the same object can feasibly and practicably be attained by uniting and conveying all the water neces- sary to be conveyed through such property in one ditch." Sec. 2262. [Shortest route to be followed.] "Whenever any person or persons find it necessary to convey water, for the purpose of irrigation, through the improved or oc- cupied lands of another, he or they shall select for the line of such ditch through such property the shortest and most (371) § 182 LAW OF WATER RIGHTS. [Ch. 10 direct route practicable upon which said ditch can be con- structed with uniform or nearly uniform grade, and dis- charge the water at a point where it can be conveyed to and used upon the land or lands of the person or persons constructing such ditch." Sec. 2263. [Enlarging existing ditch.] "Xo person or persons having constructed a private ditch for the purposes and in the manner hereinbefore provided, shall prohibit or prevent any other person or persons from enlarging or using any ditch by him or them constructed, in common T\dth him or them, upon payment to him or them of a reasonable proportion of the cost of construction of said ditch."9 Sec. 2264. The head of the ditch may in certain cases- be extended further up the stream. (This is substantially the same as § 11 of the Oregon act, quoted above.) Sec. 2265. [Maps and statements.] The ditch-owner is required to file a map showing the point of diversion, the line of the ditch, and of all laterals or feeders, the legal subdivisions through which it passes, the names of prop- erty owners along the line, etc., together with specifica- tions of the depth, width, and grade of the ditch, its carry- ing capacity, and the time of commencing work. Sec. 2266. The two foregoing sections apply only to such ditches as are used for irrigating purposes exclusively. Sec. 2267. [Water divided among consumers pro rata.] "If at any time any ditch or reservoir from which water is or shall be drawn for irrigation shall not be entitled to a full supply of water from the natural stream which sup- ° Tliese three sections are statutes of Oregon (§ 178, supra, found in an act of Feb. 12, 1881 sees. 12 and 13) and Washing- (Sess. Laws, p. 164; 1 Mill's St. ton (1 Hill's St. of Wash. §§. § 2261 et seq.). They have been 1756, 1757). substantially copied into the (372) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 182 plies the same, the water actually received into and carried by such ditch, or held in such jeservoir, shall be divided among all the consumers of water from such ditch or reservoir, as well as the owners, shareholders, or stock- holders thereof, as the parties purchasing water therefrom, and parties taking water partly under and by virtue of holding shares, and partly by purchasing the same, to each his share pro rata according to the amount he, she, or they (in cases in which several consume water jointly) shall be entitled to, so that all owners and purchasers shall suffer from the deficiency arising from the cause aforesaid, each in proportion to the amount of water which he, she, or they should have received in case no such deficiency of water had occurred.''^" Sec. 2269. [Waste or spring waters.] "All ditches now constructed or hereafter to be constructed for the purpose of utilizing the waste, seepage, or spring waters of the state, shall be governed by the sajue laws relating to priority of right as those ditches constructed for the purpose of utilizing the waters of running streams. Pro- vided, that the person upon whose lands the seepage or spring waters first arise shall have the prior right to such waters if capable of being used upon his lands." Sec. 2270. [Eeservoirs.] "Persons desirous to construct and maintain reservoirs, for the purpose of storing water, shall have the right to take from any of the natural streams of the state and store away any unappropriated water not needed for immediate use for domestic or irri- gating purposes; to construct and maintain ditches for carrying such' water to and from such reservoir, and to "TtLis provision was copied and errors of transcription, was into tlie statutes of Washing- rendered almost unintelligible, ton, but, by certain omissions See, supra, p. 366, and note. (373) § 182 LAW OF WATER EIGHTS. [Ch. 10 condemn lands for such reservoirs and ditches in the same manner provided by law for the condemnation of land for right of way for ditches. Provided, no reservoir with embankments or a dam exceeding ten feet in height shall be made without first submitting the plans thereof to the county commissioners of the county in which it is situated and obtaining their approval of such plans." Sec. 2271. Ditch-owners may conduct the water through the channel of a natural stream and afterguards reclaim it. This applies also to the owners of reservoirs, and is sub- stantially the same as the latter half of § 14 of the Ore- gon act, quoted above. Sec. 2272. [Owners of reservoirs liable for damages.] "The owners of the reservoir shall be liable for all damages arising from leakage or overflow of the waters therefrom or by floods caused by breaking of the embankments of such reservoirs." Sec. 2274. [Maintaining embankments; tail ditch.] "The owner or owners of any ditch for irrigation or other purposes shall carefully maintain the embankments thereof, so that the waters of such ditch may not flood or damage the premises of others, and shall make a tail ditch, so as to return the water in such ditch with as little waste as possible into the stream from which it was taken." Sees. 2276 and 2277. These sections require the owner to bridge the ditch at all points where it crosses the line of public highways or roads. The provision is substan- tially the same as that in § 17 of the Oregon act. Sees. 2278-2281. Provisions are herein made requir- ing the owner to flume or cover his ditch where it passes through a city, and lattice or slat the head thereof. Penal- ties are prescribed for neglect of this requirement. Sec. 2282. [Waste to be prevented.] "The owner of any (374) Ch. 10] IREIGATION AND DITCH COMPANIES. § 182 irrigating or mill ditch shall carefully maintain and keep the embankments thereof in good repair, and prevent the water from wasting." Sec. 2283. [Eunning excess of water forbidden.] "Dur- ing the summer season it shall not be lawful for any per- son or persons to run through his or their irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his or their said land, and for domestic and stock purposes; it being the intent and mean- ing of this section to prevent the wasting and useless dis- charge and running away of water." Sec. 2285. The ditch-owner must maintain a good and sufficient head-gate. .(The same as § 15 of the Oregon act.) Sec. 2286. Owners neglecting or refusing to comply with the foregoing section are liable for all damages re- sulting therefrom. Sec. 2287. [When water shall be kept flowing in ditch.] Between April 15 and November 1, the owners of the ditch shall keep a flow of water therein, as far as may be reason- ably practicable, for the purpose of irrigation, sufflcient for the requirements of all persons entitled to take water from the ditch. But if the source of supply is inadequate, then the ditch is to be kept as full as practicable. Sec. 2288. [Ditch to be kept in repair; outlets.] The ditch is to be kept in good repair, and ready to receive water by AprU 15, so far as can be accomplished by rea- sonable care and diligence. And the owners "shall con- struct the necessary outlets in the bafiks of the canal or ditch for a proper delivery of the water to persons having paid up shares, or who have rights to the use of water." But a multiplicity of outlets is to be avoided, and the owners have a discretion as to their location. Sec. 2289. The superintendent of the company shall (375) § 183 LAW OF WATER EIGHTS. [Ch. 10 measure the water from the canal or ditch through the outlets, to those entitled thereto, according to their pro rata shares. Sec. 2290. Wilful refusal or neglect to deliver water to those entitled is made a misdemeanor. Sees. 2295--2309. [Water-rates.] These sections embody the terms of the acts of Feb. 19, 1879, and Apr. 4, 1887, which provided an elaborate system for the jurisdiction and proceedings of the county commissioners in the exer- cise of their statutory power to regulate and fix the rates of charges for water. The proceeding provided for is in the nature of a judicial investigation and hearing of the facts. These acts also provide penalties for charging illegal or excessive rates, and for the wrongful refusal to deliver water. Sec. 2395. This section prescribes penalties for injuries to ditches. It is substantially similar in its terms to § 23 of the Oregon act. § 183. Statutes in North Dakota and Montana. The territorial laws of Dakota (now in force in the state of North Dakota) provide a system of rules for irriga- tion companies substantially similar to that found in Col- orado and elsewhere." We give the more important pro- visions, as follows: — See. 3116. The articles of incorporation of such a com- pany shall describe the stream, the point of diversion, the line of the ditch, and the use to which the water is to be put. Sec. 3117. The company shall have the right of way over the line described, and the right to run the water of the stream named through its ditch. Provided, that the line proposed shall not interfere with any other ditch " Comp. Laws Dak. § 3116 et sea. (376) Ch. 10] IRRIGATION AND DITCH COMPANIES. § ] 83 having prior rights. "Nor shall the water of any stream be diverted from its natural channel to the detriment of any miners, mill-men, or others along the line • of said stream, who may have a priority of right; and there shall be at all times left sufficient water in said stream for the use of miners and agriculturists along said stream." Sec. 3118. The company is obliged to furnish water to persons entitled. (This is substantially the same as § 570 of the Colorado act, quoted above, except the provision as to the regulation of rates by the county authorities.) Sec. 3119. The company must keep the banks of the ditch in good repair, so that water may not escape to the injury of others. Sec. 3123. The company must begin the construction of its works within ninety days, and prosecute the same diligently to completion, and finish within two years, under penalty of forfeiting the route claimed. Sec. 6880. "It shall be unlawful for any person or per- sons to divert any of the waters from any irrigation ditch in this territory, or to interfere in any manner whatever with any irrigation ditch, without first having obtained the permission of the owner of such ditch, or of the per- son or persons lawfully in charge thereof." Sec. 6881. The violation of the preceding section is de- clared a misdemeanor. The statutes of Montana also contain provisions for the organization and regulation of irrigation and ditch com- panies, which resemble, in all the important particulars, those in force in Colorado. It is not deemed necessary to summarize them here, but the reader is referred to the volume of statutes where they may be found at large.^^ " Comp. St. Mont. 1887, §§ 446-i95. (377) § 185 LAW OF WATER RIGHTS. [Ch. 10 Mention should also be made of a recent act regulating the proceedings to secure a right of way for a ditch or canal.13 § 184. Statute of Nebraska. In Nebraska, we find a statute relating to irrigation com- panies, which does not differ materially from those already quoted from other states. It gives to such companies a right of way over state lands, and provides for condemn- ing a right of way over private lands. Irrigating canals are declared to be "works of internal improvement," and subject to all laws applicable to such works. Owners of ditches are required to keep them in good repair. The vested rights of prior appropriators are saved. Provisions are made as to the method of distributing the water in times of scarcity and as to the persons entitled thereto. Penalties are prescribed for injuries to ditches.^* § 185. Statute of Texas. In this state, the statute provides for the organization and government of corporations formed for the purpose of constructing and operating irrigating canals and ditches, conducting and furnishing water, building storage reservoirs, etc. Eight of way, "not to exceed 100 feet in width," is granted to such companies over any and all public lands of the state, and it is provided that they may obtain the right of way over private lands by contract or by condemnation. The act also regulates the sale of the water and indicates the persons who shall be entitled thereto, and provides that the legislature, either directly or by delegating power to a commissioner or inspector, "Laws Mont. 1891, p. 295. "Comp. St. Neb. 1891, c. 93a, p. 847. C378) Ch. 10] IRRIGATION AND DITCH COMPANIES. § ISO may control and regulate the time, mariner, and quantity of the diversion of water by such companies, and regulate the rates charged. Such companies are further required to make bridges where their line crosses a road or high- way. It is made a misdemeanor for any person to in- jure the canal or its appurtenances, wilfuUv or through gross negligence, or to waste the water, or take the water therefrom without authority.!^ § 186. Statute of New Mexico. The statute of New Mexico relating to irrigation com- panies provides that "any five persons who may desire to form a company for the purpose of constructing and main- taining reservoirs and canals, or ditches and pipe-lines, for the purpose of supplying water for the purpose of irriga- tion, mining, manufacturing, domestic, and other public uses," may become incorporated. Their articles shall set forth, among other things, "the beginning point and ter- minus of the main line of such canals and ditches and pipe-lines, and the general course, direction, and length thereof." "If any corporation formed under this act shall not organize and commence the transaction of its business within one year from the time of filing its articles of ia- corporation, its corporate powers shall cease." The corporation shall have the following powers and rights : — 1. To enter upon the lands or waters of any person, or of the territory, for the purpose of making examinations and surveys for the line of their proposed canals. 2. To take and hold realty voluntarily granted to them. 3. To construct their canals or ditches upon or along any stream of water. " Saj'les' Addendum to Ann. St. Texas, tit. 55, "Irrigation," art. 3000a, §§ 10-16. (379) § 186 LAW OF WATER RIGHTS. [Ch. 10 4. "To take and divert from any stream, lake, or spring the surplus water, for the purpose of supplying the same to persons to be used for the objects mentioned in section first of this act; but such corporations shall have no right to interfere with the rights of, or appropriate the property of, any person, except upon the payment of the assessed value thereof, to be ascertained as in this act pro- vided; and provided, that no water shall be diverted if it will interfere with the reasonable requirements of any person or persons usiug or requiring the same, when so diverted." 5. To furnish water for the purposes mentioned at such rates as the by-laws may prescribe. "But equal rates shall be conceded to each class of consumers." 6. "To enter upon and condemn and appropriate any lands, timber, stone, gravel, or other material that may be necessary for the uses and purposes of said companies." Provision is then made for ascertaining, by appraise- ment, the compensation to be paid for "any such land, water, timber, stone, gravel, or other material" condemned and taken by the company. It is also provided that such corporation shall be authorized to construct branch, lateral, or side canals or ditches, to the extent that may be necessary; and for this purpose, the same rights, in regard to condemnation of land and other property, are conferred as have been already mentioned. The territory grants to such companies a right of way over any and aU of its lands, and the right to use any timber, stone, or other materials upon such lands needed for the construction of their works. The corporation is to construct suitable bridges wherever its line crosses any public highway or street. Finally it is provided that "no incorporation of any (380) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 187 company or companies to supply water for the purposes of irrigation and other purposes shall have any right to di- vert the usual and natural flow of water of any stream which, by the law of 1854,1^ has been declared a public acequia for any use whatever, between the 15th day of February and the 15th day of October of each year, unless it be with the unanimous consent of all and every person holding agricultural and cultivated lands under such stream or public acequia, and to be irrigated by the water furnished by said stream or public acequia, and that no incorporation of any company or companies shall interfere with the water rights of any individual or company ac- quired prior to the passage of this act."^^ § 187. Statute of South Diakota. In this state we find a recent act "to encourage the construction of artesian wells."i® It authorizes the formation of corporations for this pur- pose, and provides regulations for their government, pow- ers, rights, and liabilities; creating a system very similar to that provided for the irrigation and ditch companies in other states. It may be summarized as follows: — Soc. 1. "It shall be lawful for any person or persons,, corporation or corporations, company or companies, to construct artesian wells upon any lands owned or leased by such person, company, or corporation, for the purpose oi power and the irrigation of lands for agricultural pur- " This must mean the law of been able to find any law of Jan. 7, 1852, which, declared 1854 on this subject, that "all rivers and streams of "Act of Feb. 24, 1887; Laws water in this territory formerly New Mex. 1886-87, p. 29. known as pubhc ditches (ace- "'Act of Mar. 8, 1890; Sess. qnias), are hereby established Laws S. Dak. 1890, c. 103, p.. and declared to be public 245. ditches (acequias)." I have not (381) § 187 LAW OF WATER EIGHTS. [Ch. 10 poses, and for any and all purposes for which said water from such wells may be utilized." Sec. 2. They shall have the right of entry on private lands for the purpose of examining and surveying the^ proposed line of their ditch. Sees. 3 and 4. Improved or occupied lands shall not be crossed by more than one ditch where one can be made to serve the purpose, and in locating the ditch through such land the shortest and most direct practicable route shall be chosen. These provisions are the same as those in force in Colorado, and may be seen quoted in full in § 182, above. Sec. 5. "For the purpose of disposing of the surplus water from an artesian well, it shall be lawful for the said person, company, or corporation to construct the nec- essary waterways from said well on the routes as pro- vided in sections 2 and 4 of this act." Sec. 6. 'WTiere the ditch or waterway is taken through private land, the company shall pay to the owner the "actual damages which he or they may have sustained by reason of said waterway or ditch to be constructed through his or their lands." Sees. 7 and 8. These sections prescribe the method of ascertaining the amount of damages to be paid. Sec. 9. ^Tien it is necessary that any such waterway should cross the right of way of a railroad, the railroad company, "when notified by the owner of said well so to do," shall "make and maintain a suitable culvert." Sec. 10. All such waterways constructed within the limits of or across any public highways are under the jurisdiction of the overseer of highways, and it shall be his duty to keep the same open and free from all obstruc- tion. Sec. 11. Penalties are prescribed for interfering with (382) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 18S or injuring any head-gates, water-boxes, pipes, etc. Such injuries are declared misdemeanors. Sec. 12. A penalty is prescribed for cutting or break- ing down the ditch or its banks, and stealing water. (This is the same as ia Oregon and Colorado.) Sec. 13. A plat of the route is to be filed. ' Sec. 14. The owners must keep all ditches and water- ways in good repair. Sec. 15. Any injuries to such ditches caused by the acts of a third person, or by his animals or stock, shall be re- paired by him at Ms own expense. Sec. 16. The owner of land traversed by the ditch has the right to designate the places (not more than one to every 40 rods of said waterways) where bridges or crossings shall be constructed, and these must be buUt and main- tained by the proprietor of the well. Sec. 18. When the waterway crosses the lands of a person other than the owner of the well, such person may apply to such owner for the right to use the surplus water flowing in the ditch to irrigate his own lands, and such owner shall allow him to so use such water on payment of a just rental. The rates to be paid, and the terms and conditions under which the right may be exercised, shall be fixed by the county commissioners, with an appeal to the circuit court. Sec. 19. "Whenever waterways or ditches are located or constructed along any public highway, the water -whic^ may be flowing therein shall be for the use of the public." § 188. Act of congress granting right of way. In addition to the foregoing legislation of the several states on the subject of irrigation companies, the atten- tion of the reader should be directed to a recent act of oongress, granting to such companies a right of way over (383) § 188 LAW OF WATER BIGHTS. [Ch. 10 the public lands and reservations.! » j^g terms are as follows : — Sec. 18. "The right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irriga- tion, and duly organized under the laws of any state or territory, which shall have filed, or may hereafter file, with the Secretary of the Interior, a copy of its articles of in- corporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and fifty feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the line of the canal or ditch, material, earth, and stone neces- sary for the construction of such canal or ditch. Provided, that no such right of way shall be so located as to interfere with the proper occupation by the government of any such reservation, and all maps of location shall be subject to the approval of the department of the government hav- ing jurisdiction of such reservation. And the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective states or territories." Sec. 19. "Any canal or ditch company desiring to secure the benefits of this act shall, within twelve months after the location of ten miles of its canal, if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a map of its canal or ditch and reser- voir; and upon the approval thereof by tibie Secretary of the Interior the same shall be noted upon the plats in said "Act of Mar. 3, 1891, §§ 18- 1 Supp. to Rev. St. V. S., p. 21; 26 tJ. S. St. at Large, 1095; 946. (384) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 188 office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way. Whenever any person or corporation, in the construction of any canal, ditch, or reservoir, injures or damages the possession of any settler on the public do- main, the party committing such injury or damage shall be liable to the party injured for such injury or damage." Sec. 20. "The provisions of this act shall apply to all canals, ditches, or reservoirs, heretofore or hereafter con- structed, whether constructed by corporations, individuals, or associations of individuals, on the iiling of the certificates and maps herein provided for. If such ditcli, canal, or reservoir has been or shall be constructed by an individual or association of individuals, it shall be sufficient for such individual or association of individuals to file with the Secretary of the Interior, and with the register of the land oifice where said land is located, a map of the line of such ditch, canal, or reservoir, as in case of a corporation, with the name of the individual owner or owners thereof, together with the articles of association if any there be. Plats heretofore filed shall have the benefits of this act from the date of their filing, as though filed under it. Provided, that if any section of said canal or ditch shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any uncompleted section of said canal or ditch, or reser- voir, to the extent that the same is not completed at the date of the forfeiture." Sec. 21. "[Nothing in this act shall authorize such canal or ditch company to occupy such right of way ex- cept for the purpose of said canal or ditch, and then only so far as may be necessary for the construction, main- tenance, and care of said canal or ditch." LAW w. E.— 25 (385) § 189 LAW OF WATER EIGHTS. [Ch. 10 II. Construction and Application of These Statutes. § 189. Acquisition of water rights. The first question that arises, in the construction of the foregoing statutory provisions, is in relation to the method in which an irrigation or ditch company, organized there- under, may acquire the water rights which are necessary for its operations. It will be perceived that, in some of the states, such corporations are invested with the power of eminent domain for the purpose of condemning and taking the rights of appropriators and riparian owners. In others, they are given the right to divert and use any "surplus" or "unappropriated" waters. In others, the stat- utes are silent on this point, leaving it to be governed by existing general laws. There are therefore four possible means by which the company can procure the desired rights in the streams or lakes. These are (1) legislative grant, (2) appropriation, (3) purchase, (4) condemnation. In regard to the first method, it is to be observed that the legislature could not confer upon such a corporation powers which would enable it to destroy the vested rights of individuals without compensation. It would be beyond the legislative authority, for example, to enact laws that would permit an irrigation company to control or manage the waters of a given portion of the state, in disregard of the rights of individual claimants.^o And if it grants to such a company "the free use of the waters and streams of the state," this will be understood as applying only to streams upon the public lands of the state.^i And if the charter authorizes the company to acquire the privilege of using the water of a designated stream for i)urposes of '^ Monroe v. Ivie, 2 TJtali, 535. ian, 74 Tex. 170, 11 S. W. Uep. "^Mud Creek Irr. Co. v. Vlv- 1078. (386) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 189 irrigation, this does not, ipso facto, confer any rights to the use of the water; but such rights mus^: still be ac- quired, by purchase or condemnation, from the ripari.ui proprietors.^^ If the company proceeds to secure its water-supply by making an appropriation of water not subject to any prior rights, it will be governed, in all particulars, by the same rules which are applicable to private persons appropriating streams for their own use, as explained iu the earlier chapters of this work. The company cannot, for instance, by any provision of its by-laws, rules, or regu- lations, exempt itself or its stocldiolders from the opera- tion of the laws in respect to priority of appropriation.^^ So in Colorado, where the constitution provides that the unappropriated water of natural streams shall be public property, and subject to appropriation for the "use of the people" free of charge, it is held that a company distribut- ing water to consumers for hire, not being the proprietor of water not appropriated by it, cannot demand payment in advance for "the right to receive and use water" from its canal.^^ But on the other hand, the users of water from the canal, having themselves made no appropriation of water from a natural stream, and having asserted no right to water prior to the appropriation by the canal company, have no rights, as members of "the public," para- mount to those of the company.^s "Where the right of appropriation is locally restricted, the company must be ready to show that its operations are within the territorial limits. Thus, in Texas, the statute provides that the un- ==Id. Irr. Co., 10 Colo. 582, 17 Pac. '^ Combs V. Agricultural Ditch Rep. 487. Co., (Colo.) 28 Pac. Rep. 966. "= Wyatt v. Larimer & Weld "'Wheeler v. Nort(hem Colo. Irr. Co., 1 Colo. App. 480, 29 Pac. Rep. 906. (387) § 189 LAW OF WATEE EIGHTS. [Ch. 10 appropriated water of any river or natural stream within the arid portions of the state, "in which, by reason of the insufficient rainfall, irrigation is necessary for agricultural purposes," may be diverted from its natural channel for irri- gation. An action having been brought against an irriga- tion company to enjoin it from proceeding with the con- struction of a dam across a river, it was held that the defendant must plead and prove that the river was in an arid portion of the state, where the rainfall was insufficient and irrigation was necessary; and as it failed to do this, a restraining order was properly granted.^^ In regard to the acquisition of water rights by purchase from prior holders, nothing special need here be said. The method of transferring such rights has already been com- mented on.27 It should be observed, however, that a com- pany does not, by the mere purchase of land on which the head-spring of a stream is situated, acquire the right to divert the water of the spring or stream from its natural channel, without making compensation to lower owners; for its purchase of the land gives it merely the rights of a riparian owner.^s That it is within the constitutional power of the legis- lature to invest an irrigation company with the power of eminent domain, authorizing it to condemn and take the water rights of riparian owners or prior appropriators,. in cases where the system of irrigation established by its canals wiU be of general benefit to an entire community or district, and where it is required to furnish water tO' all persons who apply for it and offer the proper charges, and where the rates charged are subject to state or munici- *°McGhee Irrigating Ditch ™Lord v. Meadville Water Co., Co. V. Hudson, (Tex.) 21 S. W. 135 Pa. St. 122, 19 Ati. Kep. Rep. 175. 1007. ^' Supra, §§ 60-62. (388) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 190 pal regulation, does not seem to be open to reasonable doubt.^" This has not often been deemed advisable. But in Oregon the courts have sustained the constitutionality of a statute conferring upon such companies the power thus to appropriate the rights of riparian owners, but with a saving of the rights of such owners in water for household and domestic use, for watering stoclv, and such as is "neces- sary to irrigate crops growing upon such lands and actually used therefor-''^" § 190. Right to use ditch constructed by another. In Colorado and Oregon,^! the statutes provide that no improved or occupied land shah, without the owner's Avrit- ten consent, be subjected to the burden of two ()r more ir- rigating ditches, constructed for the purpose of conveying water through such property to lands adjoining or beyond it, when all the water necessary can be conveyed in one ditch; and that no person, having constructed a private ditch for such purposes and in such manner, shall pre- vent any other person from enlarging or using It. in com- mon with him, on payment of a reasonable proportion of the cost of construction of the ditch. It is held, however, that where a person has conslructed a diccb on his own land, for irrigating it, ^nd not with a view to conveying water through or beyond it, this statute gives no authority to another to enlarge the ditch, without the owner's con- sent, for the purpose of conveying water to the land of others, where there are other practicable routes, and especially where the ditch is not of a uniform grade, and "See §§ 172-174, supra. And See, supra, § 178, section 8 of see Lux v. Haggin, 69 Cal. 255, tlie act. 10 Pac. Rep. 674. "1 MiUs' St. Colo. §§ 2261- =» Umatilla Irr. Co. v. Bam- 2263; Laws Oreg. 1891, p. 52, hart, (Oreg.) 30 Pac. Rep. 37. §§ 12, 13. (389) § 190 LAW OF WATER EIGHTS. [Ch. 10 its enlargement would greatly diminisk its usefulness.^^ But the naere fact that a ditch, sought to be used by other persons than the owners, is owned by a corporation, does not exempt the ditch from the operation of the statute.^* In the same case in which this decision was made, it was also held that while the court may authorize the applicant to occupy, enlarge, improve, and use the ditch in com- mon with the original owner, it cannot require such owner to perform work or make expenditures for the purpose of '^ Downing v. More, 12 Colo. 316, 20 Pac. Kep. 766. In this case Hayt, J., observed: "Tliat tliis is the proper construction to be given to the act of 1881 we have no doubt. It was never intended to have any ap- phcation to cases like the one at bar. Here the ditch sought to be enlarged is a small one, constructed by the respondent for the irrigation of his farming lands, and not for the purpose of running water through said lands to lands adjoining or be- yond the same. The statute, in express terms, limits its apph- cation to ditches constructed for the purpose of conveying water through such property, and speaks of such ditches as a burden. The ditch of re- spondent is not a burden to his land, but an improvement up- on the same, tinder the stat- ute, two or more outside parties cannot burden the servient es- tate mth two or more ditches and two or more easements, without the owner's consent, when It is practicable to ac- complish the same object by imposing but one burden. If there was no other practicable or feasible route for the ditch, perhaps the courts might com- pel the respondent to allow C390J the enlargement of his ditch by the appellees; but this would not be by virtue of this statute, but would arise from the necessities of the case. In the case at bar, no such neces- sity is shown to exist, but on the contrary it is shown that water had been taken through this same quarter-section to and upon the lands of one of the appellees by another and different route used by him for several years, upon the verbal consent of the respondent, and that such a route would be practicable for the purpose of conveying water to the lands of both More and Hewlett. It further appears that the small ditch sought to be enlarged was not constructed upon any uni- form grade, but that it had an average grade of 68 feet to tho mile, and that by increasing its capacity as proposed by the appellees the velocity of the water would be accelerated to such an extent as to cause the ditch to wash into the soil, and destroy in a large measure the usefulness of the ditch to the appellant." ^ Sand Creek Lateral Irr. Co. V. Davis, (Colo.) 29 Pac. Rep. 742. Ch. 10] IRRIGATION AND DITCH COMPANIES. § 191 adapting the ditch to such applicant's use. And it was further held in the case cited, that, in ascertaining the amount to be awarded as compensation, the jury should determine and specify the value of petitioner's interest in defendant's right of way, which is a property right with a money value. It is also held in a late case (San Luis Land Co. V. Kenilworth Canal Co. [Colo.], 32 Pac. Rep. 860), that this statute is intended only for the benefit of the owner of the land to be crossed, and that it does not apply to a canal com- pany which is seeking to prevent the taking of land for, and the construction of, another irrigating canal by a different com- pany, through the same land occupied by the former company. Also, that the fact that a contemplated irrigating canal runs parallel for many miles with a like canal already constructed, is no reason for prohibiting the former from taking, by right of eminent domain, the necessary land for its use. § 191. Bridging highways and crossings. It will be seen from our synopsis of the statutes, given above, that many of the states require ditch companies to build and maintain suitable bridges over their ditch wher- ever the same crosses the line of a highway or public trav- elled road. If such a company neglects to comply with this requirement, it is provided, in several states, that the road supervisors or overseers of highways may construct the necessary bridge or bridges and recover the cost from the company. But where no such alternative provision is made, it is thought that mandamus is a proper remedy to compel the company to fuMU its duty in this respect.^* But in Colorado it is held that a municipal corporation which accepts the dedication of streets across which a ditch has been previously located and the right of way therefor acquired, takes the same subject to the prior rights of the owners of the ditch; and when the necessi- s-iFresEO Co. v. Fowler Switch Canal Co., 68 Cal. 359, 9 Pac. Rep. 309. (391) § 193 LAW OF WATER EIGHTS. [Cll. 10 ties of the public require that such ditch be bridged at the street crossings, it is the duty of the city, and not the ditch-owners, to construct the bridges.^s § 192. Tolls and charges for water. The power to charge tolls or rates for water sold or dis- tributed to consumers is a franchise, which is conferred on corporations formed under general laws for the organiza- tion of irrigation and ditch companies, and it can be ex- ercised by a corporation only in the manner provided for in those laws.^^ Furthermore, it wiU appear from a re- view of the statutes that the states, in almost every in- stance, have reserved the power to control and regulate the amount of such charges. Such a reservation, in view of the important interests affected by such corporations, and in view of the frequent opportunities they would otherwise have of almost unlimited extortion and oppression, as well as in view of the valuable rights and franchises conceded to them, must bo regarded as eminently just and reason- able. § 193. Contracts ■with consumers. A provision in an option contract with a ditch company to furnish a consumer with water, that, upon failure to pay the annual rental, the consumer "forfeits and relin- quishes all rights and claims whatsoever in and to the use of said water from said ditch," applies only to rights given by the contract, and does not waive the consumer's statu- tory right to obtain water from the company's ditch under an order from the county commissioners.^^ On the other »= City of Denver v. MuUen, 7 =» Spring Valley Water Works Colo. 345, 3 Pac. Rep. 693. As v. Bryant, 52 Gal. 132. to Irrigating canals along the =' South Boulder Ditch Co. v. streets of a city, and the ou-cum- Marfell, 15 Colo. 302, 25 Pac. stances under which they may Rep. 504. See a contract for amount to nuisances, see City of water construed in Rockwell Fresno v. Fresno Canal Co. (Cal.), y. Highland Ditch Co., 1 Colo. 32 Pac. Rep. 943. App. 396, 29 Pac. Rep. 285. (392) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 194 hand, a provision in such a contract, that if the company shall wilfully fail or refuse to supply the land-owner with the quantity of water agreed upon, the latter shall have the right, on payment or tender therefor, to take the water, is void, because incompatible with the right of control incident to the ownership of the ditch, and against public policy as tending to confusion and a breach of the peace.^* § 194. Duty of company to furnish -water. In order to make the benefits of the irrigation system established by a corporation of this character available to the greatest number of users of water, the statutes commonly provide that the company shall be required to furnish water to all persons making proper application therefor and tendering the proper charges, so long as it has any water to dispose of. "Under the constitution and laws of this state," says the court in Colorado, "a ditch company carrying water for general purposes of irrigation cannot arbitrarily refuse to supply water to an actual and bona fide consumer, making seasonable application and offering proper compensation therefor. A refusal to sup- ply water, by the carrier, to be justifiable, must rest upon something more substantial than the mere wiU of the carrier. The constitutional rule that 'priority of appro- priation shall give the better right as between those using the water for the same purpose' must never be overlooked, though a variety of circumstances and conditions may have to be taken into consideration in determining the claim of an applicant for water in a given case."^* In the case of Golden Canal Co. v. Bright,*'' the same court had under consideration the statute relating to such companies, with special reference to the relative rights of ditch-owners and the purchasers of water from them. And it was held "Farmers' Higli-Line Canal '"Combs v. Agricultural -.ch Co. V. White, (Colo.) 31 Pac. Co., (Colo.) 28 Pac. Rep. 966. Kep. 345. "8 Colo. 144, 6 Pac. Rep. 142. (393) § 195 LAW OF WATEH RIGHTS. [Ch. 10 that, under the law, although the prior purchaser has not made his application within the time prescribed by rule, yet if he does so afterwards, and while the ditch-owner is free from conflicting obligations, and is able to grant his request, the statutory, right is not forfeited. Also that the presumption is that the legislature intended to confer the privilege specified in the act, unlimited by any qualification as to the applicant's ability to procure water from any other source. And generally that the owner of an irrigation ditch, under the statute, is bound, provided he has water sufflcient for the purpose, to 'admit a prior purchaser to its use and enjoyment, upon his payment or tender of the proper price therefor, provided the right there- to has not been forfeited. In California, it is held that water appropriated for distri- bution and sale is ipso facto devoted to a public use, and a person who conforms to the requirements of the person so appropriating, and offers to pay the fixed rate for the water, is entitled to the aid of the courts to enforce his right to be supplied.*i § 195. Compelling company to deliver water. "When a ditch company unlawfully refuses to furnish water to a bona fide consumer, who makes due application therefor, complies with its reasonable requirements, and tenders the proper charges, the company having water which it could furnish to him without impairing any rights of others, the authorities all agree that mandamus is a proper remedy to compel the company to fulfill its duty in this respect.*^ And the right of the applicant to ob- tain this writ is not prejudiced by the fact that he has "McCrary v. Beaudry, 67 Cal. Pac. Rep. 504; Combs v. Agri- 120, 7 Pac. Rep. 264. cultural Ditcli Co., (Colo.) 28 *^ Wheeler v. Northern Colo. Pac. Rep. 966; McCrary v. Irr. Co., 10 Colo. 582, 17 Pac. Beaudry, 67 Cal. 120, 7 Pac Rep. 487; South Boulder Ditch Rep. 264. Co. T. Marfell, 15 Colo. 302, 25 (394) Ch. 10] IRRIGATION AND DITCH COMPANIES. § 196 prospectively a remedy by an. action for damages ta case his crops fail as the result of lack of irrigation.*^ But it is an imperative rule that before making an application for a writ of mandamus, an express demand or request must be made on the defendant to perform the act sought to be enforced by the writ, and the demand should be definite and specific.** Further, this is not an appropriate remedy to compel a ditch company perpetually to furnish a person with water for the purpose of irrigation. "The right of the petitioner to water from the defendant's ditch for the irrigation of his land could, at most, be only an annually recurring right, dependent, among other things, upon an annual tender of the price."*^ And if the complainant does not show a contract or prescriptive right to receive from the defendant company the number of inches of water which he claims, the most that he can lawfully claim is an adequate supply for the irrigation of his land. And it will be proper for the court to determine from the evi- dence what is such an adequate supply and to require the company, by its writ, to furnish that amount to the com- plainant and no more.*^ § 196. Rights of stockholders. Where a stockholder in a ditch company has acquired a right to a certain amount of water, he may change the point of diversion of such water from one ranch to another, notwithstanding a long user on the former, unless the rights of others are injuriously affected, or unless his right to so divert it is restricted by some valid by-law of the "'Golden Canal Co. v. Bright, Ditcli Co., (Colo.) 29 Pac. Rep. 8 Colo. 144, 6 Pac. Rep. 142. 453. " Price V. Riverside Land Co., ■'° Bright v. Farmers' High- 56 Cal. 431. Line Canal Co., (Colo.) 32 Pac. "Townsend v. Fulton Irr. Rep. 433. (395) § 197 LAW OF WATEE EKSHTS. [Cll. 10 company, or agreement; and a by-law impairing such a right would have no effect, unless authorized by the charter of the company, or assented to by the stockholder whose I'ight is affected.*^ But irrigation rights acquired by an owner of land, and represented by stock in a ditch com- pany, do not become inseparably annexed to the land in connection with which they are acquired and used; and if the owner disposes of the stock in the company, he or those to whom he afterwards conveys the land have no further claim to such rights of irrigation.** § 197. Duty to keep ditch in repair; liability for injuries. The statutes, as we have seen above, require irrigation and ditch companies to keep their canals and other works in good repair, so that the water may not escape there- from or otherwise injure the property of others. In re- gard to the degree of care required, we find an instruct- ive case in California, from the opinion in which we quote as follows: "The injury complained of occurred in a sea- son of high water caused by the melting of the snow on the mountains above. The overflow so caused is periodical, and may be and is anticipated by all persons inhabiting the region where ihe alleged damage occurred. The ob- ligation rested on defendant to keep the banks of its canal in repair. It was bound to use ordinary diligence for this purpose. The diligence required, however, must toe commensurate with the duty, and the duty is that or- dinarily employed by a prudent business man when dealing with his own affairs under the circumstances which sur- round him and call his mind and energy into action. If " Knowles v. Clear Creek *^ Oppenlander v. Left Hand Ditch Co., (Colo.) 32 Pac. Rep. Ditch Co., (Colo.) 31 Pac. Rep. 279. 854. (396) Ch. 10] IRRIGATION AND DITCH COMPANIES. §197 the accumulation of sand in the defendant's ditch was such as to render it probable that the periodical overflow would by its action wash out the sand and thus damage the land of plaintiff, it was then the duty of the defendant to use all the means which an ordinarily prudent business man would employ under the circumstances to prevent it. The sand might have been removed from the ditch and de- posited where the water would not reach it during the period of overflow referred to above. Ordinary prudence would have dictated such a course to prevent injury to the property of another. As before stated, the obligation rested upon defendant to exercise the diligence in the use and management of its ditch which a prudent man would ordinarily employ under the circumstances where his own interests were to be affected." ^^ In a case in Colorado, it appeared that defendants per- mitted the water to overflow the banks of their ditch, and flood the plaintiff's land, though they had been warned that the ditch was running too full, and that the water was in danger of escaping unless the flow was diminished.. After this warning, the superintendent, at the request of one of the trustees of the company, raised the head-gates and increased the flow. It was held that defendants were liable under the statute, and that they could not avoid the consequence of their own negligence on the plea that gophers burrowed the banks, and that therefore the over- flow was the result of unavoidable accident.^" In another case, where defendant permitted a break in his ditch to remain unrepaired for three weeks, whereby plaintiff's, land was overflowed, it was held that such conduct was . *° Chidester v. Consolidated ™ Greeley Irr. Co. v. House, Ditch. Co., 59 Caa. 197. And 14 Colo. 549, 24 Pac. Rep. 329.. see, supra, §§ 78, 79. (397) § 198 LAW OP WATER EIGHTS. [Ch. 10 negligence per se, and defendant was liable.^i Again, a person owning a ditch, from wliich water escapes upon the premises of an adjoining land-owner, cannot escape liabil- ity on the ground that such land-owner might, at a small expense, have prevented any damage by digging a ditch on his own land that would have carried off the waste water.52 § 198. Liability for failure of water supply. Where the certificate of incorporation of a ditch com- pany stated that the company was formed for maintain- ing a water ditch, keeping it in repair, and dividing the water between the several stockholders, it was held that the company was liable thereunder for injuries to a stockholder caused by the acts of other stockholders in di- verting more water to their use than they were entitled to under the terms of incorporation.^s But the liability of an irrigation company for failing to supply a certain volume of water to the holders of water rights, according to contract, cannot be determined on the theory that the company is a common carrier, where the rights in question were acquired from the company after its appropriation of the water in its canal from a public stream.^* "Oatlin Land & Canal Co. v. Ditch Co., 17 Nev. 245, 30 Pac. Best, (Colo.) 31 Pac. Rep. 391. Kep. 882. °=McCarty^v. Boise City Canal °*Wyatt v. Larimer & Weld Co., (Idaho,)* 10 Pac. Rep. 623. Irr. Co., 1 Colo. App. 480, 29 "= O'Connor v. North Truckee Pac. Rep. 906. (398) ■ Ch. 11] IBRIGATION DISTRICTS. § 199 CHAPTER XI. IRRIGATION DISTRICTS. [By the Editor.] § 199. Statute of California; the "Wright Act. " 200. Statutes of Washington and Nevada. 301. Statute of South Dakota. 202. Statute of Utah. 203. Constitutionality of these statutes. 304. Irrigation districts are public, but not municipal, corporation s 205. Organization of district. 206. Including and excluding territory. 207. Levy of assessments. 208. Proceedings for confirmation of bonds. § 199. Statute of California; the "Wright Act." Statutes authorizing the formation of public corporations called "irrigation districts" have recently been adopted in several of the Pacific states. Of these statutes, the most complete and detailed is that in force in California, and it has constituted the model for the corresponding leg- islation of several other states. For these reasons we shall here present a full synopsis of its terms. This act {familiarly called the "Wright Act") was passed in 1887,i and, during the four succeeding years, was amended and supplemented in various particulars by numerous addi- tional acts.2 These amendments we have incorporated in 'Act of Mar. 7, 1887; St. Gal. Act of Mar. 16, 1889; St. Oal. 1887, p. 29. 1889, p. 212. ' The successive amendments Act of Mar. 10, 1891; St. Gal. and supplements to the Wright 1891, p. 53. act were made by the following Act of Mar. 20, 1891; St. Cal. laws: 1891, p. 142. Act of Feb. 16, 1889; St. Gal. Act of Mar. 20, 1891; St. Cal. 1889, p. 15. 1891, p. 147. Act of Feb. 16, 1889; St. Cal. Act of Mar. 31, 1891; St. Cal. 1889, p. 18. 1891, p. 244. Act of Feb. 16, 1889; St. Gal. 1889, p. 21. (399) § 199 LAW OF WATER RIGHTS. [Ch. 11 the body of the statute, so as to exhibit the present state of the law. Sec. 1. [I'roposal for organization.] 'Whenever fifty, or a majority, of the holders of title, or evidence of title, to lands susceptible of one mode of irrigation from a common source and by the same system of works, desire to provide for the irrigation of the same, they may propose the organ- ization of an irrigation district, under the provisions of this act, and when so organized, said district shall have the powers conferred, or that may hereafter be conferred by law, upon such irrigation districts." [As amended by Act of Mar. 20, 1891; St. Cal. 1891, p. 142.] Sec. 2. [Petition; bond; boundaries of district; notice of election.] A petition is to be presented to the board' of supervisors of the county which contains the lands in ques- tion, or the greatest part thereof, signed by the requisite number of persons, and particularly describing the bound- aries of the proposed district, and praying for its organiza- tion under the act. The petition is to be accompanied by a bond in a sum equal to double the amount of the probable cost of organizing the district, conditioned for the payment of all costs in case the organization is not effected. The pe- tition is to be presented at a regular meeting of the board, and must be published for at least two weeks before the time at which the same is to be presented. The board are to hear the petition, "and on the final hearing may make such changes in the proposed boundaries as they may find to be proper, and shall establish and define such bound- aries; provided, that said board shall not modify such boundaries so as to except from the operation of this act any territory within the boundaries of the district proposed by said petitioners which is susceptible of irrigation by the same system of works applicable to the other lands in such proposed district; nor shail any lands which will not, in (400; Ch. 11] lEEIGATION DISTRICTS. § 199 the judgment of said board, be benefited by irrigation by said system be included within said district; provided, that any person whose lands are susceptible of irrigation from the same source may, in the discretion of the board, upon application of the owner to said board, hare such lands included in such district." The district is to be di- vided into five divisions, as nearly equal in size as may be practicable, and one director shall be elected from each of the divisions. The board of supervisors shall then give no- tice of an election to be held in the proposed district for the purpose of determining whether or not the same shall be organized. This notice is to be published for at least three weeks in a newspaper published in the county. [As amend- ed, St. Cal. 1891, p. 142. As to change of boundaries, see amendatory act of Feb. 16, 1889; St. Cal. 1889, p. 18, also p. 21.] Sec. 3. [Election.] This section provides for the holding of the election just mentioned, and the canvass of the votes by the board of supervisors. If two-thirds of all the votes cast are in favor of the district, the board shall declare it duly organized. The order so declaring shall be recorded in each county wherein any portion of the lands lie. [As amended, St. Cal. 1891, p. 142.] Sec. 4. [Officers.] An election shall be held in each dis- trict, biennially, to choose an assessor, collector, treasurer, and a board of directors. These officers are to take and subscribe an official oath and file bonds. The bond of the assessor is to be in the sum of |5,000; that of the collector, $20,000; that of the treasurer, |50,000; that of each of the directors, |5,000. [As amended, St. Cal. 1891, p. 142.] Sees. 5-10. [District elections.] These sections relate to the holding of elections in the district after its organiza- tion. They provide for the posting of election notices by the board of directors; the appointment of a board of LAW w. E.— 26 (401) § 199 LAW OF WATEK EIGHTS. [Ch. 11 election, and the powers and duties of its chairman; the time of TOting; the counting of the votes; the manner of certifying the returns; the disposition of the election re- turns; the canvassing of the returns; the declaring and recording the result; and the issue of certificates of elec- tion. [See amendatory act of Feb. 16, 1889; St. Cal. 1889, p. 15.] Sec. 11. [Powers of board of directors.] Provision is made for the meeting and organization of the board of directors. "The board shall have the power, and it shall be their duty, to manage and conduct the business and affairs of the dis- trict; make and execute all necessary contracts; employ and appoint such agents, officers, and employes as may be required, and prescribe their duties; establish equitable by-laws, rules, and regulations for the distribution and use of water among the owners of said lands; and generally to perform all such acts as shall be necessary to fully carry out the purposes of this act. The said by-laws, rules, and regulations must be printed in convenient form for distribu- tion in the district. And it is hereby expressly provided that all waters distributed for irrigation purposes shall be apportioned ratably to each land-owner upon the basis of the ratio which the last assessment of such owner for dis- trict purposes within said district bears to the whole sum assessed upon the district; provided, that any land-owner may assign the right to the whole or any portion of the waters so apportioned to him." [As amended, St. Cal. 1891, p. 142.] Sec. 12. [Acquisition of lands and water rights.] Provi- sion is made for regular monthly meetings of the board of directors, and for special meetings on call. Three mem- bers constitute a quorum. "The board and its agents and employes shall have the right to enter upon any land to make surveys, and may locate the necessary irrigation C402) Ch. 11] IRRIGATION DISTRICTS. § 199 works and the line for any canal or canals, and the neces- sary branches for the same, on any lands which may be deemed best for such location. Said board shall also have the right to acquire, either by purchase or condemnation or other legal means, all lands, and waters and water rights, and other property, necessary for the construction, use, supply, maintenance, repair, and improvement of said canal or canals and works, including canals and works con- structed and being constructed by private owners, lands for reservoirs for the storage of needful waters, and all neces- sary appurtenances. In case of purchase, the bonds of the district hereinafter provided for may be used at their par value in payment; and in case of condemnation, the board shall proceed, in the name of the district, under the provi- sions of title 7 of part 3 of the Code of Civil Procedure. Said board may also construct the necessary dams, reser- voirs, and works for the collection of water for said district, and do any and every lawful act necessary to be done that suflScient water may be furnished to each land-owner in said district for irrigation purposes. The use of all water required for the irrigation of the lands of any district formed under the provisions of this act, together with the rights of way for canals and ditches, sites for reservoirs, and all other property required in fully carrying out the provisions of this act, is hereby declared to be a public use, subject to the regulation and control of the state, in the manner prescribed by law." [As amended, St. Cal. 1891, p. 142.] Sec. 13. [Title to property.] "The legal title to all prop- erty acquired under the provisions of this act shall imme- diately and by operation of law vest in such irrigation dis- trict, and shall be held by such district in trust for, and is hereby dedicated and set apart to, the uses and purposes set forth in this act, and the said board is hereby author- (403) § 199 LAW OF WATEE EIGHTS. [Ch. 11 ized and empowered to hold, use, acquire, manage, occupy, and possess said property as herein, provided." Sec. IJr. The board is authorized to take conveyances of property, and to institute and maintain necessary proceed- ings at law' and in equity. Sec. 15. [Bonds of district.] The board of directors are to estimate the amount of money necessary to be raised for the purpose of constructing the irrigating canals and other works, and for acquiring the necessary property and rights therefor, and shall call a special election, at which the qualified electors of the district are to vote on the ques- tion whether or not the bonds of the district in the amount as determined shall be issued. Notice of the election is to be given,^ and the election is to be held as nearly as practicable in conformity with the provisions already given for the elections for officers, but it is not to be invalidated by any mere informality in conducting it. If the result is in the affirmative, the board shall cause the bonds to be issued. These bonds shall be payable in gold, and shall be divided into ten series, so arranged that the first shall be paid of: in eleven years, and the last at the end of twenty years. They are to bear six per cent, interest pay- able semi-annually. The bonds are to be in denominations of not less than |100 nor more than |500, and be negotiable in form. [As amended, St. Gal. 1891, p. 147.] Sec. 16. [Sale of bonds.] "The board may seU said bonds- from time to time, in such quantities as may be necessary and most advantageous, to raise money for the construc- tion of said canals and works, the acquisition of said prop- ' As this section provides the provides for general elections manner of giving notices for for that purpose. Board of Di- special elections for voting rectors of Modesto Irrigation bonds for irrigation districts, it District v. Tregea, 88 Oal. 334^ excludes the notice provided 26 Pac. Rep. 237. by section 5 of the act, which (404) Ch. 11] IRRIGATION DISTRICTS. § 199 erty and rights, and otherwise to fully carry out the ob- jects and purposes of this act." The board shall give no- tice of their intention to sell bonds, and receive sealed pro- posals for the purchase of the same. [Note. The act of Mar. 16, 1889, St. Cal. 1889, p. 212, supplemental to this statute, provides for judicial proceedings for the examina- tion, approval, and confirmation of proceedings for the issue and sale of such bonds. See, infra, § 208.] Sec. 17. [Payment of bonds.] "Said bonds and the in- terest thereon shall be paid by revenue derived from an annual assessment upon the real property of the dis- trict; and all the real property in the district shall be and remain liable to be assessed for such payments as herein- after provided." Sec. 18. [Assessment of realty.] This section provides for an annual assessment of the realty in the district by the district assessor, and for the form and contents of the assessment; and the descriptions and other information to be entered in the assessment book; also for the assess- ment of property which may have escaped assessment the previous year. [As amended, St. Cal. 1891, p. 244.] Sees. 19-21. These sections regulate the appointment and compensation of deputy assessors, the time for the com- pletion of the assessment, and the powers and duties of the board of directors sitting as a board of equalization. Sec. 22. [Levy of assessment.] "The board of directors shaU then levy an assessment sufficient to raise the annual interest on the outstanding bonds," and the principal of such bonds as may be maturing that year. The secretary is to extend the tax on the assessment rolls. The assess- ment is to be paid into the district treasury. If the direct- ors refuse to make the levy and assessment, the board of supervisors of the county shall act in their stead. And if the collector or treasurer of the district refuses to act, the (405) § 199 LAW OF WATER EIGHTS. [Ch. 11 county tax collector or county treasurer shall perform his duties. [As amended, St. Cal. 1891, p. 147.] Sec. 23. [Lien of assessment.] "The assessment upon real property is a lien against the property assessed from and after the first Monday in March for any year, and the lien for the bonds of any issue shall be a preferred lien to that for any subsequent issue, and such lien is not removed until the assessments are paid, or the property sold for the payment thereof." [As amended, St. Cal. 1891, p. 147.] Sec. 24. [Delinquency of assessments.] This section re- lates to the delivery of the assessment book to the collector; to his notice of the assessment and of the time and place where it is payable; and to his attendance at the time and place specified, and giving receipts. Unpaid assessments become delinquent on the last Monday in December at 6 P. M., and thereafter bear an addition of five per cent. [As amended, St. Cal. 1891, p. 244.] Sec. 25. Provides for publication of the delinquent list and notice of the time and place of sale for non-payment of the assessment. [Amended, St. Cal. 1891, p. 244.] Sec. 26. Relates to the collection of penalties on delin- quent assessments; and regulates the time, place, and man- ner of conducting the sale of property for non-payment. [Amended, St. Cal. 1891, p. 244.] Sees. 27-33. [Sales for non-payment.] These sections are concerned with the collection of the assessments. They regulate the amount and description of land which may be sold for non-payment, giving the owner the right to desig- nate the property to be sold; the resale of property not paid for by the purchaser; the issuance and effect of the tax certificate; the right of the owner to redeem, and the time and manner in which it may be exercised; the form, contents, and execution of the tax deed, and its effect as evi- dence; the effect of a mistake in the assessment or misno- (406) Ch. 11] IRRIGATION DISTRICTS. § 199 mer of the owner; and the time and manner of the collect- or's settlement with the secretary of the board. [Note. In ' so far as relates to the redemption of property sold for delin- quent assessments, this part of the act was amended, or supplemented, by an act passed March 10, 1891; St. Cal. 1891, p. 53.] Sec. 34. [Payment of bonds.] This section contains direc- tions as to the payment of coupons on the bonds, and also provides for the redemption of bonds not yet due, out of the surplus funds of the district, when such funds, after ten years from the issuance of the bonds, amount to ten thou- sand dollars. Sec. 35. [Contracts for construction of works.] "After adopting a plan of said canal or canals, storage reservoirs, and works, the board of directors shall give notice, by pub- lication thereof, not less than twenty days, in one newspa- per published in each of the counties composing the dis- trict (provided a newspaper is published therein) and in such other newspapers as they may deem advisable, calling for bids for the construction of such work, or of any portion thereof; if less than the whole work is advertised, then the portion so advertised must be particularly described in such notice. Said notice shall set forth that plans and specifications can be seen at the office of the board, and that the board will receive sealed proposals therefor, and that the contract will be let to the lowest responsible bid- der, stating the time and place for opening said proposals, which, at the time and place appointed, shall be opened in public; and as soon as convenient thereafter the board shall let said work, either in portions or as a whole, to the lowest responsible bidder; or they may reject any or all bids and readvertise for proposals, or may proceed to con- struct the work under their own superintendence. Con- tracts for the purchase of material shall be awarded to the C407) § 199 LAW OF WATER RIGHTS. [Ch. 11 lowest responsible bidder. Any person or persons to whom a contract may be awarded shall enter into a bond, with good and sufficient sureties, to be approTed by the board, payable to said district for its use, for twenty-five per cent, of the amount of the contract price, conditioned for the faithful performance of said contract. The work shall be done under the direction and to the satisfaction of the en- gineer, and be approved by the board." [As amended, St. Gal. 1891, p. 142.] Sec. 36. [Payment of claims.] "No claim shall be paid by the treasurer until allowed by the board, and only upon a warrant signed by the president and countersigned by the secretary." But the board may deposit in the county treas- ury any portion of the construction fund in excess of twenty-five thousand dollars. The county treasurer is responsible for money so deposited, and is to pay it out to the treasurer of the district on orders signed and attested. He is to make monthly reports of such receipts and dis- bursements. Sec. 37. [Payment of expenses.] "The cost and expense of purchasing and acquiring property and constructing the works and improvements herein provided for, shall be wholly paid out of the construction fund. For the purpose of defraying the expenses of the organization of the district, and of the care, operation, management, repair, and im- provement of such portions of said canal and works as are completed and in use, including salaries of officers and em- ployes, the board may either fix rates of tolls and charges, and collect the same from all persons using said canal for irrigation and other purposes, or they may provide for the payment of said expenditures by a levy of assessments therefor, or by both said tolls and assessments; if by the latter method, such levy shall be made on the completion and equalization of the assessment roll, and the board shall (408J Ch. 11] lERIGATION DISTRICTS. § 199 have the same powers and functions for the purposes of said levy as are now possessed by boards of supervisors in this state. The procedure for the collection of assessments by such levy shall in all respects conform to the provisions of this act relating to the payment of principal and interest of bonds herein provided for." Sec. 38. [Crossing roads, etc. ; right of way.] "The board of directors shall have power to construct the said works across any stream of water, water-course, street, avenue, highway, railway, canal, ditch, or flume which the route of said canal or canals may intersect or cross, in such man- ner as to afford security for life and property; but said board shall restore the same, when so crossed or inter- sected, to its former state as near as may be, or in a suffi- cient manner not to have impaired unnecessarily its useful- ness; and every company whose railroad shall be crossed or intersected by said works shall unite with said board in forming said intersections and crossings, and grant the privileges aforesaid; and if such railroad company and said board, or the owners and controllers of said property, thing, or franchise so to be crossed, cannot agree upon the amount to be paid therefor, or the points or the manner of said crossings or intersections, the same shall be ascertained and determined in all respects as is herein provided in re- spect to the taking of land. The right of way is hereby given, dedicated, and set apart, to locate, construct, and maintain said works over and through any of the lands which are now or may be the property of this state; and also there is given, dedicated, and set apart, for the uses and purposes aforesaid, all waters and water rights belong- ing to this state withiu the district." Sec. 39. Provides for the per diem compensation and mileage of the directors and the compensation of other oflS- cers. (409) § 199 LAW OP WATER EIGHTS. [Ch. 11 Sec. 40. Prohibits any and all offlcers from having any in- terest in any contract to be awarded by the board or in the profits to be derived therefrom, under penalty of forfei- ture of their office and fine and imprisonment. Sec. 41. Provides for the calling of special elections to determine whether or not special assessments shall be levied. Sec. 42. [Limit of indebtedness.] "The board of direct- ors, or other officers of the district, shall have no power to incur any debt or liability whatever, either by issuing bonds or otherwise, in excess of the express provisions of this act; and any debt or liability incurred in excess of such express provisions shall be and remain absolutely void, except that for the purposes of organization, or for any of the purposes of this act, the board of directors may, before the collection of the first assessment, incur an in- debtedness not exceeding in the aggregate the sum of two thousand dollars, and may cause warrants of the district to issue therefor, bearing interest at seven per cent, per annum." [As amended, St. Oal. 1891, p. 142.] Sec. 43. [Apportionment of water.] "In case the volume of water in any stream or river shall not be sufflcient to supply the continual wants of the entire county through which it passes, and susceptible of irrigation therefrom, then it shall be the duty of the water commissioners, con- stituted as hereinafter provided, to apportion, in a just and equitable proportion, a certain amount of said water upon certain or alternate weekly days to different localities, as they may, in their judgment, think best for the inter- est of all parties concerned, and with due regard to the legal and equitable rights of all. Said water commission- ers shall consist of the chairman of the board of directors of each of the districts affected." Sec. 44. [Water to be kept flowing.] "It shall be the (410) Ch. 11] 1EEIGA.TI0N DISTKICTS. § 200 duty of the board of directors to keep the water flowing through the ditches under their control to the full capacity of such ditches in times of high water." Sec. 45. [Mining rights protected.] "Navigation shaU never in any wise be impaired by the operation of this act; nor shall any vested interest in or to any mining water rights or ditches, or in or to any water or water rights, or reservoirs or dams, now used by the owners or possessors thereof, in coimection with any mining industry, or by per- sons purchasing or renting the use thereof, or in or to any other property now used directly or indirectly in carrying on or promoting the mining industry, ever be affected by or taken under its provisions, save and except that rights of way may be acquired over the same." Sec. 46. [Existing statutes not repealed.] "None of the provisions of this act shall be construed as repealing or in any wise modifying the provisions of any other act relat- ing to the subject of irrigation or water commissioners. Nothing herein contained shall be deemed to authorize any person or persons to divert the waters of any river, creek, stream, canal, or ditch from its channel, to the detriment of any person or persons having any interest in such river, creek, stream, canal, or ditch, or the waters therein, un- less previous compensation be ascertained and paid there- for, under the laws of this state authorizing the taking of private property for public uses." Sec. 47. "This act shall take effect immediately." § 200. Statutes of Washington and Nevada. In the state of Washington an act was passed, March 20, 1890,* which is substantially the same as the California statute set out in the preceding section, with the incorpora- ♦1 Hill's St. Wash. §§ 1784-1861. (411) § 201 LAW OF WATER RIGHTS. [Ch. 11 tion of most of the amendments and additions thereto. It is, in fact, in great part a literal transcript of that statute, and the system established is identically the same. The Washington act, however, is somewhat more full on the subject of changing the boundaries of districts, and of peti- tions to have lands included in, or excluded from, the dis- trict. The "Wright act" has also been adopted in Nevada. The statute there in force, enacted in 1891, is founded upon the act mentioned, is exactly similar to it in all its important provisions, and is for the most part a literal copy of it.^ The Nevada act includes the clauses relating to judicial pro- ceedings for the confirmation of the issue and sale of the bonds. In its 50th section it provides that the act shall not repeal or in any wise modify the provisions of any other act relating to the subject of irrigation or water commissioners. In these two states, therefore, the Califor- nia decisions construing this statute, wiU be entitled, on familiar legal principles, to very great attention and respect. § 201. Statute of South Dakota. In the recent legislation of this state, we find "an act to authorize civil townships to sink artesian wells for public purposes and to issue bonds therefor."^ It authorizes the formation of irrigation districts to be watered from such weUs, and provides a system sufficiently resembling that in California, Washington, and Nevada to be classed in the same category of statutes. Its more important provisions are as follows: — Sec. 1. "The water of the artesian basin underlying or 'St. Nevad. 1891, p. 106. ' Sess. Laws S. Dak. 1891, c. 80, p. 196. (412) Ch. 11] IRRIGATION DISTRICTS. § 201 being in the shale formation, in all townships in the state of South Dakota which shall petition for and sink artesian weUs as hereinafter provided, and not heretofore appropri- ated, is hereby declared to be the property of the public and is dedicated to the use of the people of the state of South Dakota subject to appropriation as hereinafter provided." Sec. 2. Application may be made by twenty or more persons, each owning not less than eighty acres of land in any township, to the state engineer of irrigation, for the location of artesian wells in said township, — ^not more than nine sis-inch wells, or not more than sixteen four-and- one-half-inch wells, — and the state engineer shall then locate such wells in such places as shall, in his judgment, best subserve the interests of all the resident land-owners, of the township. Sees. 3-5. The application and the engineer's report thereon shall be filed, and notice thereof shall be given tO' the board of supervisors. Sees. 6-10. An election shall be held, upon prescribed notice, for the purpose of voting on the question of issuing bonds for the sinking of the wells. Sec. 11. If the vote is in the affirmative, the board of supervisors shall, within three days, advertise for bids for the contracts for sinking and casing the wells. Sees. 12-14. These sections relate to the filing of bids,, the time of doing the work, and the approval and accept- ance of the completed wells by the state engineer. Sec. 15. The supervisors shall cause the water from the wells to be conveyed to the highest point of ^ land in the tract to be irrigated. Sec. 16. The person upon whose land the well is located shall deed one acre thereof to the township, with right of way from the highway to the well, and the right to lay (413) § 201 LAW OF WATER RIGHTS. L^h- H pipes from the well across the land to the lands of adjoin- ing owners. Sec. 17. Townships are authorized to receive conveyances of land, as in the preceding section. Sec. 18. Any person owning land in the township who shall desire to be supplied with water from the well for irri- gation shall apply to the supervisors, describing the tract to be irrigated and the number of acres. Sec. 19. The supervisors shall then contract with such person to furnish him water at a price per acre-foot of water, such price not to exceed "a pro rata amount of eight per cent, of the bonds issued." Sees. 20-22. The application and contract shall be filed with the register of deeds. The township shall have a lien on the lands for the water-rent. The township treasurer shall collect such rents. Sec. 23. If the water-rents in any year do not amount to enough to pay the interest on the bonds, the necessary amount shall be raised by taxation. And after five years a sulficient tax shall be levied to provide a sinking fund for the payment of the principal of the bonds when due; but in no event shall the tax exceed three per cent, upon the taxable property of the township in any one year. Sec. 24. Provision is made for the redemption of the bonds. Sec. 34. "The state engineer shall prescribe rules and reg- ulations for the distribution and use of water from public wells not in conflict with law, subject to the approval of the township board of supervisors." Sec. 36. The water from the wells is to be applied first, for domestic purposes (defined as meaning household use, supply of domestic animals, and watering trees, grass, flow- ers, and shrubbery about the house of the consumer in an (414) Ch. 11] IREIGATION DISTRICTS. § 202 area of not more than half an acre); second, for purposes of irrigation. But power may be leased for manufacturing purposes, whenever the use of the wells for such purposes wiU in no manner obstruct or materially diminish the waters for irrigation purposes. Sec. 42. "Any person, association, or corporation owning lands shall have the right to sink or bore an artesian well or wells on his, their, or its lands, for the purpose of procuring water for domestic use, for irrigation, or for manufacturing purposes; but in wells hereafter constructed no more water shall be appropriated by such person, association, or corpo ration than is needed for said purposes, when such addi- tional use of water interferes with the flow of wells on adjacent lands." Sec. 49. "Whenever any township in which an incorpo rated village is or stall be located, shall be desirous of sink- ing an artesian well for domestic and general public pur- poses under the provisions of this act, it shall be lawful for the incorporated village to join with the township in voting upon the question of bonding; the electors of the entire township, including the village, shall vote upon the ques- tion of bonding in the same manner as if there was no sep- arate incorporated vUlage; and the bonds so issued shall be a lien upon all taxable property of the township and village alike." Sec. 50. "The township board of supervisors shall keep all wells, ditches, dams, pipes, and appurtenances in good repair, at the expense of the township, and shall pay for the same out of the township funds not otherwise appro- priated." § 202. Statute of Utah. In this territory, an act of 1884 provides a system for the organization and government of irrigation districts which (415) § 202 LAW OF WATER RIGHTS. [Ch. 11 resembles, in many respects, the statutes already de- scribedJ The following synopsis will be found to embrace its most important provisions: Sec. 2403. [Organization of district.] "Upon the majority of the citizens of any county or part thereof representing to the county court that more water is necessary, and that there are streams or parts of streams unclaimed or unused, which, if brought out of their natural channels and thrown upon tracts of land under cultivation, or to be put under cultivation, can be of value to the interests of agriculture, the county court having jurisdiction may proceed to organ- ize the county, or part thereof, into an irrigation district; and thereafter the landholders of such district shall be equally entitled to the use of the water in, or to be brought into, such district, according to their acknowledged rights; provided, such landholders pay their proportion of the ex- pense incurred in the construction and keeping in repair of ' the necessary canals, flumes, dams, or ditches." Sec. 2404. [Choice of trustees.] "The citizens of an irriga- tion district, when so organized for the purposes provided in the preceding section, may, in mass meeting, proceed to the formation of a company, by electing viva voce not less than three nor more than thirteen trustees, a secretary, and a treasurer." Notice of this meeting is to be given ten days previous, by published and posted advertisements. Sec. 2405. The trustees shall then locate the proposed canal or ditch, determine the land to be benefited thereby, estimate the cost of the works, and calculate the rate of taxation on land necessary to pay for the same. Sec. 2406. [Election.] The trustees having reported to the county court, a meeting shall be called of the owners of lands to be benefited by the proposed canal, at which a '2 Comp. Laws Utah, 1888, §§ 2403-2427, being act of Marcli 13, 1884. (416) Ch. 11] IREIGATION DISTRICTS. § 202 vote shall be taken on the willingness of the said owners to pay the estimated tax, and on their approval of the action of the mass meeting in the election of ofQcers. No- tice of the election shall be given, and the voting shall be by ballot. Landholders in the district are alone entitled to vote. Sec. 2407. [Tax.] If two-thirds of the votes are in the affirmative, "then the tax so agreed upon shall be a law in the said irrigation district, and the tax when collected shall be paid over to the treasurer of said company on his order." But not more than half of the tax shall be collected at one time, and the residue shall be collected as the work pro- gresses. And provided that if the first estimate proves in- suflBicient for the construction of the works, additional taxes may be assessed in the same manner as already pro- vided until the canal or ditch is completed. Sec. 2408. [Effect of less vote.] If less than two-thirds of the votes are cast in the aflfirmative, all proceedings shall be null and void. But other persons than those nominated by the mass meeting may be elected to the offices. Sees. 2409, 2410. These sections contain provisions relat- ing to the bonds of officers and their term of office. Sec 2411. [Elections.] This section provides for annual elections for determining the rate of taxation, and biennial elections of officers. "The votes at said election shall be by acreage and not per capita. The right to use the water for one acre of land shall entitle the owner to one vote. The tax voted by a majority vote at said election shall be a lien on all water rights until paid, from the day of assessing the same, but not upon any land." [As amended by act of Mar. 10, 1892; Laws Utah, 1892, c. 36, p. 38.] Sec. 2412. [Duties of trustees.] The trustees are to elect one of their number as president; make by-laws, rules, and regulations; appoint agents, subordinates, and officers; LAW w. E.— 27 (417) § 202 LAW OF WATER RIGHTS. [Ch. 11 employ workmen; appoint assessors and collectors, or make agreement with the county assessors to assess and collect the tax; construct and complete the canals and other works; keep accounts of receipts and disbursements; make annual reports to the county court; and file a map of the irrigation district, showing the location and subdivi- sion of land therein and of the company's canals and ditches. Sec. 2413. [Powers of trustees.] "The trustees shall have power to sue and be sued, plead and be impleaded, to have and to hold all such real estate and personal property as may be necessary to construct the contemplated ditch or canal, including all appurtenances belonging thereto." Sec. 2414 [Vacant lands.] "If any part of the lands to be benefited by the proposed ditch or canal are not legally claimed, then such lands may be appraised by the trustees and shall be held and the possession of them sold by the trustees, as opportunity may offer, and the estimated amount of funds necessary to complete such canal or ditch shall be decreased by the estimated value of such lands, previous to the levy and assessment of any tax." Sec. 2415. [Streams rising in other counties.] "Where the streams to be taken out for irrigation purposes come from other counties than the one in which the district is situated, but where there are no existing claims to the water, and where no individual or settlement will be in- jured thereby, then the power of said irrigation district is hereby extended to said other county, insomuch as said extension may be necessary for the construction of dams to turn the waters, and ditches or canals with all necessary appurtenances as may be necessary to convey the same to where it is to be used." Sec. 2416. [Eeservoirs.] Lakes or ponds in natural basins may be used as reservoirs, but "the waters of such lakes or (418) Ch. 11] IRRIGATION DISTRICTS. § 202 ponds are in no case to be raised, by dams or otherwise, so as to interfere with or damage settlers upon the margin thereof." Sec. 2417. [Ownership of works; cost of repairs.] The canals, ditches, and reservoirs, upon their construction or partial construction, become the property of the irrigation district; and the funds necessary for repairing the same, keeping them in order, or altering or enlarging them, are to be raised by a tax on the lands benefited, to be voted as above provided. But in case of a sudden emergency, caused by inundation or otherwise, the trustees are authorized to act on their own responsibility and levy a tax for the nec- essary amount. Sec. 2418. [Exemption from taxation.] "All property or money belonging to any irrigation district, in the hands of the trustees to be expended by them under the provisions of this act, is hereby exempted from all city, county, and ter- ritorial taxes." Sec. 2419. [Purchase of property.] After the canal or ditch has been laid out, "the trustees or company may agree with the owners of land through which it will pass for the purchase of so much thereof as may be necessary for the making of the canal or ditch and the appurtenances thereto belonging." Sees. 2420-2422. [Condemnation of right of way.] These sections provide for the ascertainment of the value of the land necessary for the company's right of way, in case of disagreement with the owner, for its appraisal by referees mutually chosen or by commissioners appointed by the court, and for the acquisition of title by the trustees upon paying or tendering the assessed damages. Sec. 2423. [Injury to property of district.] Penalties are denounced against persons willfully or maliciously injuring or interfering with the canal or other property of the dis- (419) § 203 LAW OF WATER RIGHTS. [Ch. 11 trict, or wrongfully appropriating the water, or using more than has been duly distributed to them, or changing its flow. [Note. This section was supplemented by an act ap- proved Mar. 11, 1890 (Laws Utah, 1890, c. 28, p. 21), which provides that "any person or company who shall raft or float timber or wood down any river or stream of this terri- tory shall not allow such timber or wood to accumulate at or obstruct the water-gates owned by any person or irriga- tion company taking or diverting the water of said river or stream for irrigation or manufacturing purposes. Any person violating the provisions of this act shall be guilty of a misdemeanor."] Sec. 2424. [Company liable for damages.] All companies or districts organized under the provisions of this act shall be liable for any damage which may occur by the break- ing of any canal or ditch. No such company shall be enti- tled to divert the waters of any stream to the injury of any irrigation company or person holding a prior right to the use of said waters. • It will be observed that the foregoing statute makes no provision for the condemnation of existing water rights. On the contrary, such rights are expressly saved, and the act applies only to "unclaimed or unused" waters. § 203. Constitutionality of these statutes. The constitutional validity of the statute of California providing for the organization and government of irriga- tion districts, set forth in a preceding section, has been definitely and finally affirmed by the supreme court of that state. As the decisions so holding are of the greatest in- terest and importance, both in that jurisdiction and also in those states which have adopted the essential features of the California legislation on this subject, we feel justi- fied in noticing them at considerable length. (420) Ch. 11] IRRIGATION DISTRICTS. § 203 The whole question was very fully and carefully consid- ered in the case of the Bonds of the Madera Irrigation Dis- trict.8 The validity of the act was there objected to on the ground that it was not within the scope of the legisla- tive power ; tliat it was local and special in its nature ; that it unlawfully delegated legislative powers; that the meas- ures which it authorized were not of a public nature, or for the benefit of the public; and also on various specific grounds hereinafter noticed. Against all these objections the constitutionality of the law was sustained. The opin- ion of the court was delivered by Harrison, J., from whose remarks we extract the following quotations, as giving the gist of the reasoning by which the validity of the law was maintained: "That the legislature is vested with the whole of the leg- islative power of the state, and that it has authority to deal with any subject within the scope of civil government, ex- cept in so far as it is restrained by the provisions of the constitution, and that it is the sole tribunal to determine as well the expediency as the details of all legislation within its power, are principles so familiar as hardly to need mention. The declaration in article 4, § 1, of the con- stitution, 'The legislative power of this state shall be vested in a senate and assembly, which shall be designated "The Legislature of the State of California," ' comprehends the exercise of all the sovereign authority of the state in mat- ters which are properly the subject of legislation; and it is incumbent upon any one who wUl challenge an act of the legislature as being invalid to show either that such act is without the province of legislation, or that the particular subject-matter of that act has been by the constitution, either by express provision or by necessary implication, = 92 Cal. 29G, 28 Pac. Kep. 272. (421) § 203 LAW OF WATER EIGHTS. [Ch. 11 withdrawn by the people from the consideration of the legislature. The presumption which attends every act of the legislature is that it is within its power, and he who would except it from the power must point out the particu- lar provision of the constitution by which the exception is made, or demonstrate that it is palpably excluded from any consideration whatever by that body. "In providing for the welfare of the state and its several parts, the legislature may pass laws affecting the people of the entire state, or, when not restrained by constitutional provisions, affecting only limited portions of the state. It may make special laws relating only to special districts, or it may legislate directly upon local districts, or it may intrust such legislation to subordinate bodies of a public character. It may create municipal organizations or agen- cies within the several counties, or it may avail itself of the county or other municipal organizations for the pur- poses of such legislation, or it may create new districts embracing more than one county, or parts of several coun- ties, and may delegate to such organizations a part of its legislative power to be exercised within the boundaries of said organized districts, and may vest them with certain powers of local legislation, in respect to which the parties interested may be supposed more competent to judge of their needs than the central authority." "In providing for the public welfare, or in enacting laws which in the judgment of the legislature may be expedi- ent or necessary, that body must determine whether or not the measure proposed is for some public purpose. We do not mean by this that the declarations of the legisla- ture that an act proposed by it wUl be for the pub- lic good will of necessity preclude an investigation therein, or that such declaration will be conclusive when the act itself is palpably otherwise. . . . But if the (422) Ch. 11] IRRIGATION DISTRICTS. § 203 subject-matter of the legislation be of such a nature that there is any doubt of its character, or if by any possibility the legislation may be for the welfare of the public, the will of the legislature must prevail over the doubts of the court. . . . Whenever it is apparent from the scope of the act that its object is for the benefit of the public, and that the means by which the benefit is to be attained are of a public character, the act will be upheld, even though in- cidental advantages may accrue to individuals beyond those enjoyed by the general public. . . ." "The same rules of construction must be applied to the exercise of legislative authority in authorizing an expendi- ture for a local improvement. Such authorization is a leg- islative declaration that the expenditure is for a public purpose, and for the welfare of the public, and its action is not to be disregarded by the courts upon an assumption by them that such legislation is unwise, or that it may be injurious to some of the individuals who are affected by it. In determining whether any particular measure is for the public advantage it is not necessary to show that the entire body of the state is directly affected thereby, but it is suffi- cient that that portion of the state within the district pro- vided for by the act shall be benefited thereby. The state is made up of its parts, and those parts have such a recip- rocal influence upon each other that any advantage which accrues to one of them is felt more or less by aU of the others. A legislature that should refrain from aU legis- lation that did not equally affect all parts of the state would signally fail in providing for the welfare of the pub- lic. In a state as diversified in character as is California, it is impossible that the same legislation should be applica- ble to each of its parts. Different provisions are as essen- tial for those portions whose physical characteristics are different as are needed in the provisions which are made (423) § 203 LAW OF WATER EIGHTS. [Ch. 11 for the government of town and country. Those portions of the state which are subject to overflow, and those which require drainage, as well as those which for the purpose of development require irrigation, fall equally within the pur- view of the legislature, and its authority to legislate for the benefit of the entire state, or for the individual district. The power of the legislature to adapt its laws to the pe- culiar wants of each of these districts rests upon the same principle, viz., that it is acting for the public good in its capacity as the representative of the entire state. . . ." "We have not been cited to the statute of any other state which provides for irrigating arid lands, or to any authority in which the power of the legislature over the subject is discussed. But we have no hesitation in saying that the principles upon which the decisions to which we have re- ferred were made are applicable to sustain the legislative authority in making provision for such irrigation. Whether the reclamation of the land be from excessive moisture to a condition suitable for cultivation, or from excessive arid- ity to the same condition, the right of the legislature to au- thorize such reclamation must be upheld upon the same principle, viz., the welfare of the public, and particularly of that portion of the public within the district affected by the means adopted for such reclamation. Whatever tends to an increased prosperity of one portion of the state, or to promote its material development, is for the advantage of the entire state; and the right of the legislature to make provision for developing the productive capacity of the state, or for increasing facilities for the cultivation of its soil according to the requirements of the different portions thereof, is upheld by its power to act for the benefit of the people in affording them the right of 'acquiring, possess- ing, and protecting the property' which is guarantied to them by the constitution. The local improvement contem- (424) Ch. 11] IRRIGATION DISTRICTS. § 203 plated by such legislation is for the benefit and general welfare of all persons interested in the lands within the district, and is a local public improvement. This principle is not contravened by the fact that it may even operate injuriously upon some of the individuals or proprietors of land within the district, or by the fact that there may be some who for personal motives may wish to resist the im- provement. Such result is only a sacrifice which the indi- vidual makes to the general good in compensation for the advantages enjoyed by virtue of the social compact. All laws of this character are upheld upon the same principle as is the creation of a district for any other local improve- ment, such as the opening of a highway, or of a street, or of a public park. The legislature, to which has been confided the matter, has determined that it will be for the public good that such street or park be opened, and it has imposed the burden of such opening upon the prop- erty within a limited district. In each of such instances the land taxed for the improvement may not be the only land that will be benefited. Although land adjacent to the district may be incidentally benefited, that is no reason for taxing such land, nor is it any objection to the proceeding that some of the property within the district will not receive any benefit, or that the improve- ment will more specifically benefit tibiose who have pro- cured its creation. . . . The means by which the legislature may exercise this power are left to its own discretion, except as it may be limited by the constitution. If, in the exercise of its care for the public welfare, it finds that a specific district of the state needs legislation that is inapplicable to other parts of the state, it may, in the absence of constitutional restrictions, legislate directly for that district, or, if it be the case that similar legislation be required for other portions of the state, it may provide (425) § 203 LAW OF WATER RIGHTS. [Ch. 11 for adapting such legislation to those portions at the will of the people in such districts, as was done in the reclama- tion and levee laws already referred to. It may, too, by general laws authorize the inhabitants of any district, under such restrictions, and with such preliminary stejys as it may deem proper, to organize themselves into a public corporation for the purpose of exercising those govern- mental duties, upon the same principle as it authorizes the incorporation of any municipal corporation under gen- eral laws. The constitution of California has been framed with the principle of investing separate subdivisions of the state with local government, and especially authorizes the legislature to confer the power of local l^slation upon such subdivisions within the state as may be organized under its authority. The legislature is itself forbidden to interfere in any manner, except by general laws, with the power of local legislation intrusted to such organiza- tions, nor can it delegate to any but public corporations the power to perform any municipal functions whatever, or vest in any but the corporate authority of a municipal corporation the power to assess and collect taxes for any municipal purpose. But, although the legislature is pre- vented from passing any special or local law which shall be applicable to only a particular portion or district of the state, its power of legislation for the public good in that portion of the state has not been destroyed. It still re- tains the full power of legislation conferred upon it in the constitution, but is required to exercise such power in the mode prescribed in that instrument. It may pass general laws which from their nature will be capable of enforce- ment in only particular portions of the state; or it may by other general laws authorize the organization of munici- pal corporations, which, from the nature of the functions intrusted to them, can find occasion for organization only (426) Ch. 11] lEEIGATION DISTRICTS. § 203 in certain portions of the state, and it may by such general laws provide for the organization of such and as many species of municipal corporations as in its judgment are de- manded by the welfare of the state, and the 'protection, security, and benefit of the people,' for which government is instituted, and which has been by the people confided to it. Const, art. 1, § 2. The provision in article 11, § 6, of the constitution, 'Corporations for municipal purposes shall not be created by special laws' does not imply that the legislature must by any general law provide a plan in which shall be prescribed the mode under which all municipal corporations must be organized, and the powers that they can exercise. The provision in article 12, § 1, that private corporations 'may be formed under general laws, but shall not be created by special act,' although more explicit, and, under the declaration of the constitution itself, (article 1, § 22,) 'mandatory' rather than permissive, requiring that they must be formed under general laws, has never been construed as requiring that all private cor- porations must be formed under the same general law, or limited to the exercise of the same powers. On the con- trary, the form of organization, as well as the powers to be exercised, have been by legislation adapted to the charac- ter of the corporation to be organized. All corporations of the same class are required to be organized in the same manner, but the nature of the organization does not permit, nor does the constitution require, that corpora- tions of different classes shall be organized in the same manner, or provided with the same powers. Hence the provisions that have been made by the legislature for the organization and powers of railroad, insurance, religious, mining, and other business corporations have been adapted to their respective character and needs. With greater propriety has it been left to the legislature to provide the (427) ■§ 203 LAW OF WATEE RIGHTS. [Ch. 11 mode of organization and the powers to be exercised by different species of municipal corporations. Such corpora- tions are but the agents or representatives of the state in the particular locality in which they exist. They are organized for the purpose of carrying out the purposes of the legislature in its desire to provide for the general welfare of the state, and in the accomplishment of which legislative convenience or constitutional requirements have made them essential. Although in this state the legis- lature is required to provide such agencies under general laws, it is authorized, under its general power of legislation, to invest such corporations, when created, with the same powers which without such restriction it could itself have exercised; and in providing for such organizations it need confer upon them only such powers as in its judgment are proper to be exercised by them in the discharge of the par- ticular functions of government which may be conferred "upon them. Being the representatives of the legislature in the various localities of the state, the requirements for organization, as well as the powers to be exercised, vary with the character of the purpose for which they may be created. Hence the general laws which the legislature may enact for the organization of public corporations may be as numerous as the objects for which such corporations may be created. For each of these objects the law is the same, but there would be a manifest impropriety in requir- ing that the organization of a levee district or an irriga- tion district should be conducted in the same manner as the organization of a corporation for the management of a. public park, or the control of the school department. Whether the districts to which such general laws are appli- cable, or in which the people thereof may avail themselves of the privilege conferred, be many or few, is immaterial. J5ven if there be but a single district to which the law is (428) Ch. 11] lEEIGATION DISTRICTS. § 20S applicable at the time of its enactment, the legislature would be justified under its legislative power to pass gen- eral laws, in making such provision for that district. Whenever a special district of the state requires special legislation therefor, it is competent for the legislature bj^ general law to authorize the organization of such district into a public corporation, with such powers of government as it may choose to confer upon it. . . ." "It is contended that the act is unconstitutional for the reason that it is a delegation of the legislative power to create a corporation. If by this is meant that only the legislature can create such corporation, the answer is that the constitution prohibits such action. If it is meant that the corporation is not 'created' until the voters of the dis- trict have accepted the terms of the act, the answer is that such proceeding is in direct accord with the principles of the constitution. Having the power to create municipal cor- porations, but being prohibited from creating them by spe- cial laws, the only mode in which such corporations could be created under a general law would be by some act on the part of the district or community seeking incorporation, indicative of its determination to accept its terms. As the constitution has not limited or prescribed the character of such general law, its character and details are within the discretionary power of the legislature. We know of no more appropriate mode of such indication than the afiSrmative vote of those who are to be affected by the ac- ceptance of the terms of the act. The municipal corpora- tions which may be thus created are not limited to cities and towns. . . ." "In the present case, the legislature- has chosen to au- thorize the creation of a public corporation, iu the manner and with the forms specified in the act under discussion. For this purpose it has provided that a petition of flfty^ (429) § 203 LAW OF WATER EIGHTS. [Ch. 11 freeholders, or a majority of the freeholders owning lands within a proposed district susceptible of one mode of irrigation, shall be presented to the board of supervisors of the county within which such lands are situate, and that the board of supervisors shall, upon the hearing of such petition, after notice thereof, determine whether or not it will take steps to organize an irrigation district; and that upon such determination an election shall be ordered, at which, if two-thirds of the electors within the district shall vote in favor of such organization, the district shall thereupon be organized, and its management confided to a board of directors chosen by the electors of that district. It is objected to this that it is placing in the hands of those not interested the power of imposing a burden iipon the owners of the land, who may be a small minority of the electors within that district, or who may be even non- residents of the district. This, however, is a matter which was addressed purely to the discretion of the legislature. Whether such a petition shall be made by the owners of a fixed proportion of the land, as was required in the reclamation law, or whether there should be any qualifica- tion to the petitioners, or whether there should be any limit to the expenses which they were authorized to incur for the purposes of the improvement, are questions which were solely for the consideration of the legislature. It is not for this department of the government to question the policy or the prudence of a co-ordinate branch. If those who are affected by its proceedings feel that it has not given them sufficient protection, or placed sufficient safeguards around the institution of the corporation, they must seek redress from that body. We can only act upon the law as it has been enacted. It must be observed, how- ever, that this petition has no binding operation, but is merely the initiatory step which gives to the board of super- (430) Ch. 11] IRRIGATION DISTRICTS. § 203 visors a jurisdiction to act upon the expediency or policy of authorizing the creation of the district. That body is the representative of the county, and has been chosen by its electors for the express purpose of legislation upon local subjects, and may naturally be supposed to have the inter- ests of the entire county, as vsrell as of each of its parts, in charge, and to be acquainted with its needs and require- ments. The legislature has not, however, intrusted that body with the final determination of the question, but has authorized it to submit the question to a vote of the elect- ors of the district, and it is only when these electors have determined by a vote of two-thirds of their number in favor thereof that the district can be created as a political body. The objection that this vote may be carried by a majority of those who have no interest in the lands affected thereby is but an incident, and not of the essence of the matter. It is no more than exists in every popular vote which in- volves the creation of a municipal debt or the adoption of . a municipal organization. The fact that the ovmers of the lands are non-residents within the district, and not allowed a voice in the proceedings, is of the same character. . . ." "The constitutionality of the act in question is further assailed upon the ground that it makes no provision for a hearing from the owners of the land prior to the organiza- tion of the district. But the steps provided for the organi- zation of the district are only for the creation of a public corporation, to be invested with certain political duties which it is to exercise in behalf of the state. Dean v. Davis, 51 Gal. 406. It has never been held that the inhabit- ants of a district are entitled to notice and hearing unon a proposition to submit such question to a popular vote. In the absence of constitutional restriction, it would be competent for the legislature to create such public cor- poration, even against the will of the inhabitants. It has (431) § 203 LAW OF WATER EIGHTS. [Ch. 11 as much power to create the district in accordance with the will of a majority of such inhabitants. It must be observed that such proceeding does not affect the property of any one within the district, and that he is not by virtue thereof deprived of any property. Such result does not arise until after delinquency on his part in the payment of an assessment that may be levied upon his property, and before that time he has opportunity to be heard as to the correctness of the valuation which is placed upon his property, and made the basis of his assessment. He does not, it is true, have any opportunity to be heard, other- wise than by his vote, in determining the amount of bonds to be issued, or the rate of assessment with which they are to be paid; but in this particular he is in the same condi- tion as is the inhabitant of any municipal organization which incurs a bonded indebtedness or levies a tax for its payment. His property is not taken from him without due process of law, if he is allowed a hearing at any time before the lien of the assessment thereon becomes final.® "It is also objected that the mode provided for the pay- ment of the bonds is unconstitutional, in that it provides for an assessment upon the real property within the district according to its value, and not according to the benefit which each particular parcel of land may derive from the improvement. The power of the legislature in matters of taxation is unlimited, except as restricted by constitutional provisions. This is one of the attributes of sovereignty which the people have placed in its hands; and they have intrusted its exercise to its discretion, either in the manner or to the extent to which it is to be applied. All taxation "Citing People v. Smith, 21 U. S. 701, 4 Sup. Ct. Rep. 663; N. Y. 595; Gilmore v. Hentig, Davies v. Los Angeles, 86 CaL 33 Kans. 170, 5 Pac. Rep. 781: 46, 24 Pac. Rep. 771. Hagar v. Reclamation Dist., Ill (432) Ch. 11] lEEIGATION DISTRICTS. § 203 has its source in tlie necessities of organized society, and is limited by such necessity, and can be exercised only by some demand for the public use or welfare. And, whether the tax be by direct imposition for revenue or by assess- ment for a local improvement, it is based upon the theory that it is in return for the benefit received by the person who pays the tax, or by the property which is assessed. For the purpose of apportioning this benefit, the legisla- ture may determine in advance what property will be bene- fited, by designating the district within which it is to be collected, as well as the property upon which it is to be imposed, or it may appoint a commission or delegate to a subordinate agency the power to ascertain the extent of this benefit. It may itself declare that the entire state is benefited, and authorize the burden to be borne by a public tax, or it may declare that all or a portion of the property within a limited region is benefited, either accord- ing to its value or in proportion to its actual benefit, to be specifically ascertained by actual determination of officers appointed therefor. . . ." "It is, however, for the legislature to determine how the apportionment shall be made, and, while it is held that an apportionment of the expenses for a local improvement is to be made according to the benefits received by the property assessed, yet the power to make such apportion- ment rests upon the general power of taxation, and the apportionment itself does not depend upon the fact of local benefit in any other sense than that all taxes are supposed to be based upon the benefit received by the tax payer. . . ." "It is not necessary to show that property within the dis- trict may be actually benefited by the local improvement, and, even if it positively appear that no benefit is received, such property is not thereby exempted from bearing its LAW w. R.— 28 (433) § 203 LAW OP WATER EIGHTS. [Ch. 11 portion of the assessment, nor is the ^ct unconstitutional becaiise it provides that such property shall be assessed. Property that is exempt from taxation has always been held subject to the burdens of assessment for local improve- ments, and property within a district that is not suscep- tible of receiving any immediate benefit from the improve- ment is nevertheless so indirectly benefited thereby that it must bear a portion of the burden. If within the limits of a levee district a parcel of land should be so situated as not to require the protection of the levee, that would be no reason for excluding it from its share of the expense, or, if within the limits of a drainage district there should chance to be found a cliff, that would be no reason for exempting it from assessment. The objection that the legislature has no authority to confer upon the supervisors of the county the right to create a corporation whose dis- trict shall embrace a portion of the territory of another county does not arise in the present case. It is not con- tended that any portion of the Madera irrigation district lies outside of the county of Fresno." On a re-hearing in this case, it was further decided that the statute in question is not in violation of that clause of the California constitution which prohibits cer- tain public corporations from incurring indebtedness "with- out the assent of two-thirds of the qualified electors there- of," as that prohibition is limited to "county, city, town, township, board of education, or school-district" corpora- tions.i" * "In re Bonds of Madera Irr. 18 Pac. Rep. 379; Central Irr. Dist., 92 Cal. 296, 28 Pac. Rep. Dist. v. DeLappe, 79 Cal. 351, 675. See, also, Turlock Irr. 21 Pac. Rep. 825. Dist. V. Williams, 76 Cal. 360, (434) Ch. 11] IRRIGATION DISTRICTS. § 204 § 204. Irrigation districts are public, but not mu- nicipal, corporations. The determination of the status of districts organized under these laws becomes important in connection with various constitutional and statutory provisions relating to public, private, and municipal corporations respectively. As the authorities now stand, it may be said to be settled that such irrigation districts are to be classed as "public corporations," as distinguished from private corporations, but that they do not fall within the narrower class of "municipal corporations" properly so called. The supreme court of California has twice ruled that such districts are not private corporations, but public. In one of the cases so holding, we find the theory sustained by the following course of reasoning: "That an irriga- tion district, organized under the act in question, becomes a public corporation, is evident from an examination of the mode of its organization, the purpose for which it is or- ganized, and the powers conferred upon it. It can be or- ganized only at the instance of the board of supervisors of the county, — the legislative body of one of the constitution- al subdivisions of the state; its organization can be effected only upon the vote of the qualified electors within its boundaries; its officers are chosen under the sanction and with the formalities required at all public elections in the state, — the officers of such election being required to act under the sanction of an oath, and being authorized to administer oaths when required for the purpose of con- ducting the election; and the officers when elected being required to execute official bonds to the state of California, approved by a judge of the superior court. The. district ■ officers thus become public officers of the state. When organized, the district can acquire, either by purchase or condemnation, all property necessary for the construction (435) § 204 LAW OF WATER EIGHTS. [Ch. 11 of its works, and may construct thereon canals, and other irrigation improvements; and aU the property so acquired is to be held by the district in trust, and is dedicated for the use and purposes set forth in the act, and is declared to be a public use, subject to the regulation and control of the state. For the purpose of meeting the cost of ac- quiring this property, the district is authorized, upon the vote of a majority of its electors, to issue its bonds; and these bonds, and the interest thereon, are to be paid by revenues derived under the power of taxation, and for which all the real property in the district is to be assessed. Under this power of taxation, one of the highest attributes of sovereignty, the title of the delinquent owner to the real estate assessed, may be divested by sale, and power is con- ferred upon the board of directors to establish equitable by-laws, rules, and regulations for the distribution and use of water among the owners of said lands, and generally to perform all such acts as shall be necessary to fully carry out the purpose of the act. Here are found the essential elements of a public corporation, none of which pertain to a private corporation. The property held by the corpora- tion is in trust for the public, and subject to the control of the state. Its officers are public officers chosen by the electors of the district, and invested with public duties. Its object is for the good of the public, and to promote the prosperity and welfare of the public."ii On the other hand, the supreme court of the state of Washington has decided that an irrigation district is not a municipal corporation, within the meaning of a consti- tutional provision that "no county, city, town, school dis- trict, or other municipal corporation" shall incur an in- " In re Bonds of Madera Irr. Dist. v. DeLappe, 79 Cal. 351,. Dist., 92 Cal. 296, 28 Pac. Rep. 21 Pac. Rep. 825. 272. See, also. Central IiT. (436) Ch. 11] lEEIGATION DISTRICTS. § 204 debtedness in excess of a certain percentage of its taxable property .12 From the opinion in the case cited we extract the following remarks: "We are forced to the conclusion that every public corporation formed by the state for the purpose of carrying out any of the duties which the state owes to any locality, and which by its terms are made alike applicable to all the inhabitants of the district or locality affected thereby, must be held to be included with- in the 'other municipal corporations' named in said section. It does not follow, however, that every corporation which may be constituted by the state as an agency in the per- formance of some public or quasi public duty comes within «aid definition. One of the essentials of a municipal corporation is that for the purposes for which it is organ- ized it must affect all within its boundaries alike, and this is true, even although such corporation is constituted for a single purpose; for instance, a school district, though organized only for the purpose of providing means and furnishing facilities for the education of its children, yet affects all the tax payers of such district alike. The same may be said of a county. It has only limited powers, it is true, but those powers are to be exercised in the interest of all the inhabitants of the county alike. Such is not the case with corporations formed under the provisions of the act in question, for, while it is true that its powers and privileges are subject to the will of the majority of the electors therein, yet when it acts thereunder it does not equally affect all of its inhabitants. The act does not provide that its purposes shall be carried out by means of a tax on aU the property within the district, but, on the contrary, expressly limits it to the real estate situated therein, and which is judged to be benefited by the improve- " Board of Directors Middle Kittitas Irr. Dist. v. I'eterson, (Wasli.) 29 Pac. Rep. 995. (437) § 204 LAW OF WATER RIGHTS. [Ch. 11 ment contemplated. It will thus be seen that, even if we are to hold that every corporation, which the legislature sees fit to make use of for the purpose of aiding in the go-sernment of any district or locality, or providing for the inhabitants thereof any right or privilege common to them all, was a ' municipal corporation,' within the inhi- bition of said constitutional provision, yet it would not follow that corporations of the kind contemplated by this act were also municipal corporations. The powers con- ferred upon these irrigation districts are not primarily that of government or regulation, or even of taxation, though such are conferred to a limited degree as necessarily in- cident to the main power conferred. The primary and main power thus conferred is that of local improvement of the real estate therein for the benefit of its owners, and at their expense. In one sense, the district thus consti- tuted is not a public corporation at all; its object has no connection with any of the public duties which the state owes to its inhabitants. In a certain sense, it is only the purely private interest of the freeholders that is sought to be subserved. If, in the absence of constitutional provi- sions prohibiting special legislation, the legislature saw fit to provide that the farms of three adjoining proprietors should be improved by the erection of a dyke or the excava- tion of a ditch upon certain provisions therein provided, we do not think it would be claimed that the three farms and their owners were by said act constituted a public cor- poration, and we are certain that such legislation would not create a municipal corporation, in any sense whatever. The act in question is of substantially the same kind as would be such special act. It is true that it may be ex- tended throughout a large area, and affect the rights of a large number of people; but it must be remembered that it does not affect their rights in the way that ordinary munici- (438) Cll. 11] IRRIGATION DISTRICTS. § 204 pal corporations do. They pay taxes, it is true, or an assessment in the nature of a tax, but it is not for the benefit of the community at large within such districts, but for the special benefit of the owners of real estate situated therein, and is proportioned to the benefits which they are to receive from the improvement. In a certain sense, no "tax," in the ordinary use of that word, is imposed. Each owner of land contributes to a common fund, and receives back from such fund the exact amount of his contribution. Such is not the nature of a tax levied in any of the corporations which have been held to be municipal corporations. In those every tax payer must pay his taxes according to the value of his property, regardless of the question as to whether or not his property is directly bene- fited thereby. In the contemplation of law he may be benefited, but such benefit is not the direct and immediate consequence of the payment of the tax, as in the case of these districts. In a school district every property owner has to pay a tax, regardless of the question whether or not his children are to be benefited by the schools to be maintained therein, and, so far as we know, this reasoning may be applied to every corporation which has been held to be municipal. It is practically conceded by the respondent that these districts constitute public corporations, and not municipal ones, if, under our constitution, the words 'public' and 'municipal,' as thus applied, have not been made sub- stantially synonymous. Such words are no doubt used at times as expressing substantially the same idea, but it is conceded that in the usual and ordinary sense the word 'public' Is a broader term than the word 'municipal,' and includes, not only municipal corporations, but others of a public character, which are not in the ordinary sense 'mu- nicipal.' "But it is claimed on the part of the respondent that (439) § 204 LAW OF WATER EIGHTS. [Ch. 11 the provisions of our constitution are such, as to abrogate this distinction, and make it the duty of courts in interpret- ing the same to construe these words as being synonymous. This argument is gathered largely from the wording of said section 6 of article 8, which, as we have seen before, classes as municipal corporations school districts and coun- ties as weU as cities and towns; the argument of respond- ent in this regard being that, as school districts and counties belong to the class of public as distinguished from municipal corporations, the constitution in classing them therewith intended to do away with all distinction between them. In our opinion, such a result does not follow, though it must be conceded that the effect thereof has been to enlarge the definition of 'municipal' so that cor- porations will fall withia that class which would not otherwise have done so. But it does not follow that there cannot be corporations which are of a public or quasi public nature which are so different in all their powers, character- istics, and objects from either counties or school districts as not to faU within the definition of 'other municipal cor- porations' used in connection therewith. If the effect of such section was as contended for by the respondent, then the constitution makers did not keep up throughout the entire constitution the idea that such distinction had been abrogated, as they naturally would have done; for in various other sections of the constitution we find the words 'pubUc' or 'municipal' used together, where the use of both was entirely unnecessary if the distinction between them had been abrogated. See sections 13, 15, art. 11. Besides, the use of terms in the constitution must be interpreted in the light of legislation existing at the time, and, upon an examination of the legislation in force in this state at the date of the adoption of the constitution, it wUl be clearly seen that a well-defined distinction, as between (440) Ch. 11] IRRIGATION DISTRICTS. § 204 'public' and 'municipal,' as applied to corporations, existed. The constitution clearly recognizes the importance of im- provements of the kind sought to be furthered by this legislation, and yet to interpret the section under consider- ation as contended for by the respondent would take from the legislature the power to deal with the subject in any effective manner. The improvement contemplated in the creation of the districts is a local one, in the interest of property benefited, and has nothing whatever to do with the taxing power; and it is impossible that this legislation could be sustained upon the ground that the bonds proposed to be issued were not a 'debt' within the meaning of the constitutional provisions relating thereto, but were simply evidences of the fact that a special assessment for the improvement of property benefited had been made, and the pajinent thereof provided for in installments, as stated in said bonds. This would, perhaps, be a strained construction of the legislation; but, rather than to hold the same uncon- stitutional, it might be our duty to thus construe it. We are, however, better satisfied to hold that these districts, although undoubtedly 'corporations' in a certain sense, and perhaps 'public corporations,' are not 'municipal cor- porations' within the meaning of said section of the con- stitution. Such seems to us the reasonable construction of such constitutional provision as applied to the act under consideration, and we should probably sustain the legisla- tion without bringing to its aid the rule of construction above stated; and, in the light of said rule, our duty to do so is clear." The California decisions do not appear to have been noticed or referred to in this case.^^ " As to the distinctions be- 668; Kandle v. Del. Canal Co., tween public, private, and mu- 1 Wall. Jr. 290; Minei-s' Ditch nicipal corporat,ions, see fur- Co. v. Zellenbach, 37 Oal. 577; ther, Dartmouth College v. Ang. & A. Corp. § 32. Woodward, 4 Wheat. 518, 562, (441) § 206 LAW OF WATER EIGHTS. [Ch. 11 § 205. Organization of district. The boaxd of supervisors, to wMch is addressed the peti- tion for the organization of an irrigation district, is the sole judge of the sufQciency of the bond accompanying the petition. And it is also to judge of the suflftciency of the petition itself in the first instance. But the record of the board, stating that there was evidence, to the satisfaction of the board, on the question whether there were the re- quired number of bona fide freeholders within the bounda- ries of the proposed district who had signed the petition, is not conclusive, or even competent evidence, to show the legality ot the proceedings, when the question arises in the special statutory proceeding for a judicial confirmation of the organization of the district; for in that case it is the duty of the court to examine and determine for itself the validity of the proceedings. Again, the statutory re- quirement that the petition shall particularly set forth and describe the boundaries of the district sought to be organized, does not mean that they should be described with any greater degree of particularity than would be nec- essary in an act of the legislature creating a particular district or a municipal corporation. And the proceedings for the organization of the district are not to be adjudged defective, though the order by the supervisors for the issuing of the bonds did not conform strictly to the statute, since the statute may be followed by the board of directors when issuance of bonds by them becomes necessary." § 206. Including and excluding territory. In California, and in those states which have copied its legislation on the subject of irrigation districts, the pro- " The foregoing points were non-user of its franchises, since all ruled in the case of Bonds the statute makes no provision of Madera Irr. Dist., 92 Cal. for any such proceeding. People 296, 28 Pac. Rep. 2T2. The courts v. Selma Irr. Dist. (Cal.), 32 Pao. have no power to dissolve an ir- Kep. 1047. rigation district on the ground of (442; Ch. 11] IRRIGATION DISTRICTS. § 206 Tision of law is that the board of supervisors shall not in- clude within such a district "any lands which will not, in the judgment of said board, be benefited by irrigation by said system/'i'^ As to the construction of this provision, the supreme court of California holds that it is not the duty of the supervisors "to exclude by demarkation every minute tract or parcel of land that happens to be covered by a building or other structure AvMch unfits it for cultivation; and certainly the law could not be so construed without disregarding many of its express provisions, and at the same time rendering it practically inoperative. We construe the law to mean that the board may include within the bound- aries of the district all lands which in their natural state would be benefited by irrigation, and are susceptible of irrigation by one system, regardless of the fact that build- ings or other structures may have been erected here and there upon small lots, which are thereby rendered unfit for cultivation at the same time that their value for other pur- poses may have been greatly enhanced. So construed, we can see no objection to the law upon constitutional grounds or grounds of expediency. As to owners of such property, it seems reasonable to assume that they must participate, indirectly at least, in any benefits the dis- trict may derive from the successful inauguration of a system of irrigation; but aside from this, the law contains an express provision designed to secure to them a benefit exactly corresponding to any burden to which they may be subjected, and in that respect is far more equitable than many of the assessment laws which have been upheld here and elsewhere. The provision referred to is this: Every tax payer of the district receives a portion of all the water distributed exactly equivalent to his proportion of the total ^= St. Cal. 1887, p. 30, § 2. (443) § 206 LAW OF WATEB RIGHTS. [Ch. 11 lax levied, and this water is Ms to use or to sell, as lie may elect; so that if his lot is not fit for cultivation, he never- theless gets a full equivalent for the tax assessed to hini."i'' JPortifled by this reasoning, the court felt justified in hold- ing that a city or town, or a portion thereof, may, in a proper case, in the discretion of the board of supervisors, be included in an irrigation district. In the case at bar, it appeared that the district contained about 108,000 acres of land, including the city of Modesto, a town covering about 2,000 acres and having about 3,000 inhabitants and about 600 dwelling-houses, besides shops, etc. On this branch of the case it was remarked: "One propositon of the appellant seems to be that the mere fact of the corpo- rate existence of a town or city, though situate in the midst of a district susceptible of irrigation by one system, neces- sarily deprives the board of supervisors of the county of the power to include any of the lands within the corporate limits of such city or town in an irrigation district. We say this seems to be a proposition of the appellant, because, although it is not expressly stated in terms, it appears to be necessary to sustain his contention; for, if it lies within the discretion of the board to include in an irrigation dis- trict any part of the lands of a town or city upon the ground that in their judgment such part will be benefited by irri- gation under the system proposed, and if the judgment of the board upon the question of benefits is conclusive of the fact, — as we shall show that it is, — ^there is no ground upon which a court can say that an order including all the lands of a city or town in such district is void. The idea of a city or town is, of course, associated with the existence of streets, to a greater or less extent lined with shops and stores, as weU as of dwelling-houses, but it is also a noto- ^' St. Cal. 1887, p. 34, § 11. r444) Ch. 11] IRRIGATION DISTRICTS. § 206- rious fact that in many of the towns and cities of Califor- nia there are gardens and orchards inside the corporate boundaries requiring irrigation. It is equally notorious that in many districts lying outside of the corporate limits of any city or town there are not only roads and highways,, but dwelling-houses, outhouses, warehouses, and shops. With respect to these things, which determine the useful- ness of irrigation, there is only a difference of degree be- tween town and county. The adyantages of irrigation to- a town like Riverside, in San Bernardino county, for in- stance, no one could deny; and the difference between such a town and these places where irrigation would be as man- ifestly out of place are not marked by any hard and fast line which would enable a court to lay down a rule of dis- crimination. The question whether in any particular case a town will, as a whole, be benefited directly by the appli- cation of water for irrigation, is in its nature, and under- existing conditions must remain, a question of fact to be decided by that tribunal to whose discretion it had been, committed by the legislature."^'^ We therefore learn fur- ther, from this case, that upon the question of fact as to- what lands Avill or wiU not be benefited by irrigation, the decision of the board of supervisors is conclusive. A statute of California supplementary to the Wright act provides that if there be any outstanding bonds, no order of exclusion of part of the district can be made without the- consent of the bondholders.^^ In a case where there was an understanding between the bidders and the directors that the former were not to be held to their offer unless, they could effect a sale of the bonds, and the bonds were never issued or paid for, and prior to the order of exclusion "Board of Directors of Modesto Irr. Dist. v. Tregea, 88 Gal. 334, 26 Pac. Rep. 237. "St. Oal. 1889, p. 23, § 6. (445) § 208 LAW OF WATER EIGHTS. [Ch. 11 the bidders had been released from their offer, it was held that the decree of validity of the order of exclusion rendered by the lower court was proper.^* § 207. Levy of assessments. Upon a comparison of the various provisions of the Wright act, the courts have reached the conclusion that an assessment of taxes cannot be levied by the directors of an irrigation district — even for the payment of current expenses and wages and salaries — without a previous au- thorization by a vote of the electors of the district. And whereas it is provided that the directors may call an elec- tion for the purpose of submitting the question of such as- sessment "Avhen in their judgment it may be advisable," this merely means that if, in their judgment, an assessment is advisable, they shall call an election. In other words, their judgment is to be directed to the advisability of levy- ing an assessment, not to the advisability of calling an election, as to which they have no discretion.^^ § 208. Proceedings for confirmation of bonds. Since the validity of the bonds of an irrigation district, when issued, depends upon the regularity- of the proceed- ings of the board of directors, and upon the ratiflcation of the proposition by a majority of the electors, it soon be- came evident that investors were unwilling to talie such bonds at their par value, while all the facts affecting their validity remained open to question and dispute. To meet this inconvenience, — for the security of investors, and to enable the irrigation districts to dispose of their bonds on advantageous terms, — the legislature of California, in 1889, " Board of Directors of Mo- '° Tregea v. Owens, . 94 Cal. desto Irr. Dist. v. Tregea, 88 317, 29 Pac. Rep. 643. Cal. 334, 26 Pac. Rep. 237. (446) Ch. 11] lEEIGATION DISTRICTS. § 208 passed an act supplementary to the Wright law, by which it is provided that the board of directors of any irrigation district may "commence a special proceeding in and by which the proceedings of said board and of said district providing for and authorizing the issue and sale of the bonds of said district, whether said bonds or any of them have or have not been sold, may be judicially examined, approved, and eonflrmed."2i It was at first contended that confirmation proceedings, under this act, could not be com- menced until the bonds had actually been issued. But the supreme court held that the board of directors might in- stitute such proceedings as soon as any resolution for the issue and sale of bonds had been adopted by them.^^ The statute provides that the court shall direct publication of a notice of the filing of the petition in the same manner and for the same length of time as is provided for a notice of special election, stating the time and place for the hear- ing of the petition, and that any person interested in the organization may on or before the day of the hearing demur to or answer said petition. And it is held that this notice is sufficient to confer jurisdiction upon the court.^^ iphe notice is suflicient in itself if it states the substance of the prayer in the petition.^* And the prayer of the peti- tion is sufficient if it prays for the examination, approval, and confirmation of the proceedings "aforesaid" for the issue and sale of bonds of the district.^^ And an order of confirmation entered in such proceedings is conclusive, as to a proper compliance with all the provisions of the Wright act, on a land-owner of the district who did not ap- pear at the confirmation proceedings, but who seeli.s to " St. Cal. 1889, p. 212. "^ Id. ''^ Board of Directors of Mo- "Id. desto Irr. Dlst. v. Tregea, 88 ""Id. Cal. 334, 2G Pac. Rep. 237. (447) § 208 LAW OF WATER EIGHTS. [Ch. 11 enjoin the sale of the bonds. The confirmation proceeding being a proceeding in rem, the land-owner is bound thereby, if there has been due publication of the notice in accord- ance with the terms of the statute, notwithstanding there has been no personal service of notice upon him.^® ^ Crall V. Board of Directors of Madera Irr. Dist., 92 Gal. Poso Irr. Dist., 87 Gal. 140, 26 296, 28 Pac. Rep. 272. Pac. Rep. 797. See In re Bonds (4481 Ch. 12] STATE SUPKBVISION OF DISTBIBUTION AND USE. § 210 CHAPTER XII, STATE SUPERVISION OF DISTRIBUTION AND USE OF WATER. [By the Editor.] § 809. Characteristics of this system. 210. Statute of Wyoming. 211. Statute of Colorado. 212. Statute of Nevada. 813. Statute of Idaho. 214. Statute of Arizona. 215. Powers of water commissioners. § 309. Characteristics of this system. The class of statutes to be considered in the present chapter differ from those which we have heretofore dis- cussed, in that they do not contemplate the appropriation or condemnation of water rights by public or private cor- porations, organized for that purpose. But they provide a system by which existing appropriations or vested rights are ascertained and protected, future appropriations are regulated, and the distribution and use of the available water-supply are placed under restrictions designed to pro- mote economy and to secure a just apportionment of the indispensable element among all the consumers according to their respective rights. These ends are attained by sub- jecting title appropriation and use of the streams to the supervision and control of a body of public officers, whose powers and duties are described in the summaries of the statutes which here follow. § 210. Statute of Wyoming. In the state of Wyoming, a statute was enacted in 1890,i on the subject of the "supervision and use of the waters ^Laws Wyom. 1890-91, c. 8, p. 91. LAW w. E. — 29 (449) § 210 LAW OF WATER EIGHTS. [Ch. 12 of the state," which was intended to furnish a complete system in that regard, and which repealed most of the prior legislation on the subject.^ This statute provides for a division of the state into water districts, with public officers in each having control of the appropriation and use of the waters therein. But it differs from the legislation of California and Washington, in that these districts are not quasi-municipal corporations, and that the law relates not merely to the use of water for irrigation but for all other purposes as well. Its important provisions may be epit- omized as follows: Sees. 1-5. The state is divided into four "water divi- sions," and their respective territories are described. Sees. 6--12. [State engineer.] These sections relate to the state engineer, his appointment, qualification, duties, and compensation. He is to "make measurements and cal culations of the discharge of streams from which water shall be taken for beneficial purposes, . . . collect facts and make surveys to determine the most suitable location for constructing works for utilizing the water of the state, and to ascertain the location of the lands best suited for irrigation. He shall examine reservoir sites, and shall, in his reports, embody all the facts ascertained by such surveys and examinations, including, wherever practicable, estimates of the cost of proposed irrigation works and of the improvement of reservoir sites. He shall become con- versant with the waterways of the state and the needs of the state as to irrigation matters, and in his reports to the governor he shall make such suggestions as to the amend- ment of existing laws, or the enactment of new laws, as his information and experience shall suggest, and he shall keep in his office fuU and proper records of his work, obser- ' Particularly, It repeals the tion"), and the act of Mar. 8, greater part of title 19 of the 1888 (Laws Wyom. 1888, p. 115). Revised Statutes ("Of Irriga- (450) Ch. 12] STATE SUPERVISION OF DISTRIBUTION AND USE. § 210 vations, and calculations." He is to report to the governor biennially, and oftener if required. Sees. 13--18. [Division superintendents.] There shall be one division superintendent appointed for each water divi- sion. "The superintendent of each water division shall have immediate direction and control of the acts of the water commissioners and of the distribution of water in his water division. . . . He shall, under the general supervision of the state engineer, execute the laws relative to the distribution of water, in accordance with the rights of priority of appropriation." He may make additional reg- ulations to secure the equal and fair distribution of water. "All water commissioners shall make reports to the divi- sion superintendent of their division, as often as may be deemed necessary by said superintendent." Sees. 19-33. [Board of control.] A "board of control" is created, composed of the state engineer and the super- intendents of the four water divisions. Their primary duty is to hear and determine all conflicting claims to priority of right in the appropriation of public waters, beginning with those streams which are most used for irrigation. Sees. 34-39. [Appropriation of water.] These sections regulate all future appropriations of water, and are evi- dently intended to prevent any confusion or conflict in the rights of appropriators thereafter arising. Briefly stated, it is provided that any person or corporation desiring to appropriate any of the public waters of the state shall flrst make an application to the state engineer for a permit to make such appropriation. This application is to be accom- panied by a full and detailed description of the source and amount of the proposed appropriation and of the works by which the applicant intends to make it effective, and of the purposes for which the water is to be used. "If there; is unappropriated water in the source of supply named in the (451) § 210 LAW OP WATER EIGHTS. [Ch. 12 application, and if such appropriation is not otherwise det- rimental to the public welfare," the state engineer shall authorize the applicant to proceed with his works. Other- wise he shall refuse to sanction the appropriation. Eut in the latter case, the applicant may appoaJ to the board of control, and ultimately to the proper district court. If the application is approved and allowed, the appropriator is to file a map of the source of supply, location of works, and district to which the water is applied. He will then receive from the board of control a certificate of his appro- priation. The priority of the appropriation shall date from the filing of the application in the engineer's office. Sees. 40-45. [Water commissioners.] The board of con- trol shall divide the state into water districts, having regard to the best protection of the claimants for water, and the most economical supervision on the part of the state. One commissioner shall be appointed for each district. "It shall be the duty of the said water commissioner to divide the water in the natural stream or streams of his district, among the several ditches taking water therefrom, accord- ing to the prior rights of each respectively, in whole or in part, and to shut and fasten, or cause to be shut and fas- tened, under the direction of the superintendent of his water division, the head-gates of ditches heading iu any of the natural streams of the district, when, in i:ime of scarcity of water, it is necessary so to do by reason of the priority of rights of others taking water from the same stream or its tributaries." But "said water commissioners shall not begin their work until they have been called upon by twO' or more owners or managers of ditclies or persons control- ling ditches in the several districts, by application in writ- ing, stating that there is a necessity for the use of water; and they shall not continue performing services after the necessity therefor shall cease." (452J Ch. 12] STATE SUPERVISION OF DISTRIBUTION AND USE. § 211 § 211. Statute of Colorado. In Colorado we find a statute,^ providing for a division of the state into six "water divisions" and sixty-eiglit "water districts," with \^-ater commissioners, division superintend- ents, and a state engineer, constituting a system similar in I !;my respects to that in Wyoming. Thus, the powers and duties of the water commissioners are substantially the same; they are to divide the water, shut head-gates in times of scarcity, not to act until called upon by two or more owners, etc. The "superintendent of irrigation" for each division shall have general control over the water com- missioners in his division, execute the laws of the state relative to the distribution of water in accordance with the rights of priority of appropriation, make regulations, and receive reports from the commissioners. Tlie state engineer "shall have general supervising control over the public wa- ters of the state;" he shall measure the How of water in streams and compute the discharge; collect information as to dams and reservoirs, and the feasible and economical construction of such works on eligible sites, also in regard to the snow-fall in the mountains, so as to predict the x'l'ob- able flow of water in the streams; approve plans and de- signs for dams and embankments more than ten feet higli; have general charge of the work of the superintendents and commissioners; furnish them with data and informa- tion and require them to report to him; and make reports to the governor. But this statute lacks the excellent feature of the Wyo- ming act which provides that apxilicatious for the right to appropriate water must be made to, and passed upon by, the board of control. ■1 Mills' Ami. St. Colo. §§ 2310-2392, and 2440-2469. (453) § 214 LAW OP WATEH EIGHTS. [Ch. 12 § 212. Statute of Nevada. In this state, a law was enacted in 1889,* providing for the appointment of water commissioners, whose duty it shall be "to divide the water in the natural lakes or streams of their districts among the several ditches taking water from the same, according to the prior rights of each respectively, in whole or in part, and to shut and fasten, or cause to be shut and fastened, the head-gates of any ditch or ditches heading in any of the natural streams or lakes of the district, which, in time of a scarcity of -nater, makes it necessary by reason of the priority of the rights of others above or below them on the stream." This act also contains an elaborate system for the judicial deter- mination of conflicting claims of priority. § 213. Statute of Idaho. In this state, there is a statute relating to the distribu- tion of water for purposes of irrigation, which provides for the creation of water or irrigation districts, and for the election of a "water master" in each, and minutely pre- scribes his duty of superintending the ditches, their repair, the distribution of water among consumers, etc.^ § 214. Statute of Arizona. In this territory, a law is in force which, bears sufficient resemblance to the foregoing statutes to be classed with them, although it also diilers from them in some important particulars.^ The following summary will sufficiently indi- cate its leading features. Sec. 3211. "Immediately after the publication of this *St. Nevad. 1889, p. 107. =Rev. St. Ariz. 1887, §§ 3211- »Rev. St. Idaho, §§ 3200-3205. 3223. (4:54) Ch. 12] STATE SUPERVISION OP DISTRIBUTION AND USE. § 214 chapter, it shall be the duty of the several justices of the peace in this territory to call together, in their respective precincts, all the owners and proprietors of land irrigated by any public acequia, for the purpose of electing one or more overseers for said acequia for the corresponding year." Sec. 3212. Maimer of conducting such election; none en- titled to vote except owners and proprietors of land, as above. Sec. 3213. A majority of the electors shall determine the pay and perquisites of the overseers. Sec. 3214. "It shall be the duty of the overseers to super- intend the opening, excavations, and repairs of said ace- quias; to apportion the number of laborers furnished by the owners and proprietors; to regulate them according to the quantity of land to be irrigated by each one from said acequia; to distribute and apportion the water in pro- portion to the quantity to which each one is entitled, ac- cording to the land cultivated by him; and, in making such apportionment, he shall take into consideration the nature of the seed sown or planted, the crops and plants cultivated; and to conduct and carry on such distribution with justice and impartiality." Sec. 3215. "During years when a scarcity of water shall exist, owners of fields shall have precedence of the water for irrigation according to the dates of their respective titles or their occupation of the lands, either by themselves or their grantors. The oldest titles shall have precedence always." Sec. 3216. "It shall be the duty of each of the owners and proprietors to furnish the number of laborers required by the overseer, at the time and place he may designate, for the purposes mentioned in the foregoing section, and for the time he may deem necessary." Sec. 3217. Penalty for neglect or misconduct of overseer, (455) § 215 LAW OF WATER EIGHTS. [Ch. 12 Sec. 3218. New election to fill the place of an overseer removed from office. Sec. 3219. Owner neglecting to furnish laborers as re- quired shall be fined. Sec. 3220. Penalties provided for injuries to acequias, or for interference with or obstruction of them. § 215. PoTvers of ■water commissioners. Water commissioners, invested by law with such powers and prerogatives as are described in the statutes above set forth, are merely agents selected for the public convenience to regulate the distribution of water according to the rights of the parties in interest. It is held that their action in distributing water does not prevent the parties from apply- ing to the courts for relief, nor does it prevent the courts from granting relief, if to any one is distributed more than his just proportion of the water.^ It is not thought that any valid objection could be maintained, on constitutional grounds, to the powers with which these commissioners are invested by the laws of Wyoming, Colorado, Nevada, Idaho, and Arizona, as above set forth. But it should be re- marked that an early statute of Montana, creating the office of water commissioners, was pronounced unconstitutional, on the ground that it attempted to confer upon them pow- ers which were judicial in their nature and which could not be granted by the legislature. The court said: "They are empowered by the act to apportion the waters in a just and equitable proportion. This required them to deter- mine what was just and equitable between these parties. In the next place, the apportionment was to be made with a due regard to the legal rights of all. This required of them to determine what these legal rights were."* 'Dailey v. Cox, 48 Cal. 127. 'Thorp v. Woolman, 1 Mont. See Pico v. Colimas, 38 Cal. 578. 168. Ch. 13] EIPAEIAN EIGHTS ON NAVIGABLE STREAMS. § 216 CHAPTER XIII. RIPARIAN RIGHTS ON NAVIGABLE STREAMS. [By the Editor.] § 216. What streams are navigable. 217. Navigable waters of the United States. 218. Floatable streams. 219. Paramount control of congress. 220. Title of state to bed of stream. 221. Limit of riparian owner's estate. 322. Incidents of state's ownership of bed of stream. 223. Rivers as boundaries between states. 224. Navigable stream as boundar}'. 225. Public right of navigation. 226. Right of state to improve navigation. 227. Public right of floating logs. 228. Public use of banks of stream. 229. Rights of riparian owner in general. 230. Right to build wharves and landings. 231. Right to reclaim submerged lands. 232. Preferential right to purchase. § 216. What streams are navigable. Bj the English common law, the meaning of the term "navigable streams" was restricted to those streams in which the tide ebbs and flows. And this definition has been so far followed in this country that any river or creek which is affected by the daily rise and fall of the tide is regarded as public and navigable, and subject to the rules governing such waters, unless it is affirmatively shown that it is in fact incapable of being used for purposes of navigation. Thus it is said that the common law princi- ple applies to our rivers so far as the rise and fall is gov- erned by the oceanic tides, although there may be no actual current up the river, and although the water be not salt or brackish.i 'People V. Tibbetts, 19 N. Y. 523. (457) § 216 LAW OF WATER RIGHTS. [Ch. 13 But in so far as th« common law rule limits the class of navigable streams to those affected by the tide, it has not been generally adopted in this country. The courts of the United States, for the purpose of determining the extent of federal jurisdiction and the application of federal laws, have discarded this rule altogether, and taken as the sole test the actual navigable capacity of the given stream. "The doctrine of the common law as to the navigability of waters," says the supreme federal tribunal, "has no appli- cation in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all, of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circum- stance tide-water and navigable water there signify sub- stantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide-water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A dif- ferent test must therefore be applied to determine the nav- igability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public naviga- ble rivers, in law, which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be con- ducted in the customary modes of trade and travel on water."^ And the rule thus formulated has been adopted in nearly all the states. So that it may now be said to be the general doctrine of the American common law that ^The Daniel Ball, 10 Wall. 563; The Geuesee Chief, 12 How. 443 C458) Ch. 13] RIPAEIA.N EIGHTS ON NAVIGABLE STREAMS. § 216 any water is "navigable water" if it is navigable in fact and available as a highway for commerce.^ And further, the question of navigability does not materially depend upon past or present actual public use. Such use may establish navigability, but it is not essential to give that character. If it were otherwise, streams in new and un- settled portions of the country, or where the increase, growth, and development have not been sufficient to call them into public use, would be excluded, though navigable in fact, thus making the character of being a navigable stream dependent on the occurrence of the necessity of pub- lic use. Capability of being used for useful purposes of navigation, of trade and travel, in the usual and ordinary modes, and not the extent and manner of the use, is there- fore the true test of navigability.* But the stream must admit of being used as a highway for commerce of an essen- tially valuable character, and the mere fact that it oifers a passage-way for boats or vessels does not always or nec- essarily determine its character as navigable water in the American sense.^ And where the whole of a river is above 'The Montello, 20 Wall. 441; Co. v. Kirk, 46 Pa. St. 112; Weise v. Smitli, 3 Oreg. 445; Hickok v. Hine, 23 Ohio St. Haines v. Hall, 17 Oreg. 165, 523; Walker v. Allen, 72 Ala. 20 Pao, Rep. 831; letter v. 456; Broadnax v. Baker, 94 N. GaUagher, 19 Oreg. 375, 24 Pac. Oar. 675; Gaston v. Mace, 33 Rep. 250; Shaw v. Oswego Iron W. Va. 14, 10 S. B. Rep. 60. Co., 10 Oreg. 371; American ' Sullivan v. Spotswood, 82 River Water Co. v. Amsden, 6 Ala. 166, 2 South. Rep. 716. Cal. 443; Concord Manuf. Co. "Burrows v. Gallup, 32 Conn. V. Robertson, (N. H.) 25 Atl. 493; Ledyard v. Ten Eyck, 36 Rep. 718; Sullivan v. Spots- Barb. 102. But in Minnesota it wood, 82 Ala. 166, 2 South, is said that the test of naviga- Rep. 716; Stover v. Jack, 60 bility to be applied to our in- Pa. St. 339; Diedrich v. North- land lakes must be sufficiently western R. Co., 42 Wis. 248; broad and liberal to include all Elder v. Burrus, 6 Humph. 358; the public uses, including boat- Brown v. Chadbourne, 31 Me. ing for pleasure, for which such 9; McManus v. Carmichael, 3 waters are adapted. So long Iowa, 1; Monongahela Bridge as they continue capable of be- (459) § 216 LAW OF WATEE EIGHTS. [Ch. IB "tide-water it is prima facie non-navigable, and the burden of proving that it is impressed with the character of a pub- lic highway is on the person asserting it.^ There are some few states, however, which still adhere to the common law test of navigability. Thus in New Jer- sey, it is said that a river may be legally navigable below the ebb and flow of the tide and actually navigable above, and the question of boundary, in respect to lands adjoining it, will be determined by one principle above and by another below tide-water; but as to the jurisdiction and power of the state over it, the river above tide- water is to be regard- ed as navigableJ The courts of Illinois hold that the Mississippi is not legally and technically a "navigable river," and hence the title of a riparian proprietor whose land abuts on that stream extends to the middle thread of the river.8 In Mississippi, it is said that the term "nav- igable," at common law, had reference only to such waters as were by the law of nations free to the commerce and navigation of all nations, and not to the capacity of a stream for navigation, and hence "navigable river" means only that part of a fresh-water stream, debouching into the sea, in which the tide ebbs and flows. And accord- ingly it is there held that the Mississippi is not technically a. navigable stream above tide-water.^ It is further to be remarked that a change in the condition of a non-navigable body of water, whereby it becomes or is made navigable, is not allowed to divest the previously acquired rights of Ing put to any beneficial public ware & Bound Brook R. Co., use, they are public waters. 27 N. J. Eq. 1. Lamprey v. Jletcalf, (Minu.) 5.^. ' Middletou v. Pritcliard, 4 111. N. W. Rep. 1139. See Attorney 510. In Ensminger v. People, General v. AVoods, 108 Mass. 47 111. 384, tlie coui-t refused to 436. depart from the rule laid down " Olive v. State, 86 Ala. 88, 5 in this case or to reconsider it. South. Rep. 653. " Steamboat Magnolia v. Mar- ' Attorney General v. Dela- shall, 39 Miss. 109. (460) Ch. 13] RIPAEIAN EIGHTS ON NAVIGABLE STREAMS. § 217 riparian owners. Thus where, by the cutting of a channel between a fresh-water pond and a body of salt water, the water of the former becomes salt and the tide ebbs and flows therein, the rights of the riparian proprietors are not affected by the change; that is, their boundaries are not moved back to the newly formed line of high water mark.^* § 217. Navigable -waters of the United States. The determination of the navigability of a river or stream may become important either with respect to state law or federal law. The constitution of the United States invests congress with the power to regulate foreign and interstate commerce, and commerce includes navigation. It also provides that the federal judicial power shall ex- tend to "all cases of admiralty or maritime jurisdiction." It is therefore apparent that, for these purposes, the federal authorities may and must determine what waters are navi- gable, and this without being in any manner bound by the doctrines of the states including or contiguous to such waters. For example, Illinois holds that the Mississippi is not technically a "navigable river;" yet that does not ex- clude the river, or any part of it, from the jurisdiction of the United States for its proper purposes. On the other hand, it is evident that there may be streams navigable in fact, and yet so situated that neither the commercial power of congress nor the admiralty jurisdiction of the fed- eral courts can properly be extended to them. It is accord- ingly settled that these two powers of the national govern- ment are restricted to the "navigable waters of the United States." And we are now to inquire into the meaning of this phrase. In the first place, as to the test of naviga- bility, the courts of the United States, as was stated in the "Wheeler v. Spinola, 54 N. Y. 377. C461) § 217 LAW OF WATER EIGHTS. [Ch. IS preceding section, have entirely discarded the common law doctrine, and hare made navigability in law synonymous with navigability in fact, irrespective of the influence of the tide. And in the second place, as to what navigable waters are navigable waters "of the United States," the scope of this term has been clearly defined by the supreme court. The rivers of the country, sayS that tribunal, "constitute navi- gable waters of the United States, within the meaning of the acts of congress, in contradistinction from the navigable waters of the states, when they form, in their ordinary condition, by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries, in the customary modes in which such commerce is conducted by water."ii It is therefore not necessary that a river, to answer this description, should flow in a course between two or more states, or traverse the territory of several states, if it constitutes a part of an unbroken line of waterway available for interstate commerce. For instance, the Willamette river, though lying wholly within the state of Oregon, yet forms, by means of its connection with the Columbia river, a highway for foreign and interstate commerce, and is therefore a navigable river of the United States, and subject as such to the control of congress.^^ And even a canal, used by vessels engaged in interstate traffic as a public waterway, though entirely within the limits of one state having exclusive control of it, with power in such state to close it at any time, is a part "'The Daniel Ball, 10 Wall. Rep. 228; United States v. Bur- 5G3; Tlie Genesee Chief, 12 lington, etc., Ferry Co., 21 Fed. How. 443; Escanaba Co. v. Chi- Rep. 331. cago, 107 U. S. 682, 2 Sup. Ct. '= Wallamet Iron Bridge Co. Rep. 185; Miller v. Mayor of v. Hatch, 19 Fed. Rep. 347. N. Y., 109 U. S. 385, 3 Sup. Ct. (462) Ch. 13] RIPARIAN RIGHTS ON NAVIGABLE STREAMS. § 218 of the navigable waters of the United States, and subject to the jurisdiction of its admiralty courts.^^ On the other hand, a lake or river which is completely within the limits of a state, without any navigable outlet to any other state or country, is a navigable water of the state (but not of the United States) and is not within the jurisdiction of the federal government.^* And it is also ruled that stat- utes passed by the states for their own uses, declaring small streams navigable, do not make them so within the meaning of any constitutional provision, treaty, or ordi- nance of the United States.^^ § 218. Floatable streams. In those states where lumbering is a principal industrial interest, it has been found necessary to establish a new rule in respect to the use of the streams, which is not founded upon any principle or precedent of the common law, but solely upon the local exigencies and customs. This rule is, that a fresh-water stream which is capable of being used for the purpose of floating down logs to the mills or to market, although it may be too small to admit of navigation, is "navigable" (or more properly "floatable") and a public highway, in the sense that the general public have an easement of passage over it for that purpose, though the title to the bed of the stream may remain in the riparian owners, subject to such public easement.^* "Tlie "B. & C," 18 Fed. Rep. son, 3 Oreg. 455; Nutter v. Gal- 543. laglier, 19 Oreg. 375, 24 Pac. " United States r. Burlington, Rep. 250; Brown v. Chad- etc., Ferry Co., 21 Fed. Rep. bourne, 31 Me. 9; Thompson v. 331. Improvement Co., 54 N. H. 545; "Duluth Lumber' Co. v. St. Carter v. Thurston, 58 N. H. Louis Boom Co., 17 Fed. Rep. 104; Moore v. Sanbourne, 2 418. Mich. 520; Herman v. Beef '° Shaw V. Oswego Iron Co., Slough Manuf. Co., 1 Fed. Rep. 10 Oreg. 371; Felger v. Robin- 145. (463) § 218 LAW OF WATER RIGHTS. [Ch. 1^> According to the New Hampshire court, "the easement is not founded upon custom, usage, or prescription, nor is it derived from previous enjoyment, but it depends upon the capacity of the stream for trade or business. It exists where the stream is capable of being generally and commonly used for the purpose of commerce for the floating of vessels, boats, rafts, or logs. A riparian owner cannot acquire a prescriptive right against the public to impede or in any way injure navigation or any other public ease- ment in any of the waters of the state."^'' In order to impress a stream with this character of floatability, it is not essential that it should be perennially available for the purpose mentioned. ''In order to make a stream floatable, it is not necessary that it should be so at all seasons of the year. It is suflicient if it have that character at different periods with reasonable certainty and for such a length of time as to make it profitable for that purpose."^* So the court in Alabama observes: "We are not to be understood as afflrming that to be a navigable stream or public highway it must be susceptible of the enumerated uses for the entire year. Most inland streams contain a greater volume of water in winter than in summer. Our precise meaning is that for a season, or considerable part of the year, it must contain that depth of water which fits it for such transportation. It excludes all those streams which have the requisite volume of water only occasionally, as the result of freshets, and for brief periods, as unnavigable and private property.''^^ In Oregon, it is said that it is sufficient if the periods of high water in the stream, or its navigable capacity, continue a sutti- " OoUins V. Howard, (N. H.) '° Morrison v. Coleman, 18 Atl. Rep. 794. Ala. 655, 6 South. Rep. 374. " Holden v. Robinson Manuf . Co., 65 Me. 215. (464) Ch. 13] RIPARIAN EIGHTS ON NAVIGABLE STREAMS. § 219 cient length, of time to make it useful for a highway.^" And this doctrine cannot be extended so as to include small streams of only a few miles in length, although they rise during a few weeks in the year sufficiently high to be used to a limited extent, by the application of artificial means, to float logs and timber a short distance.^i And the stream must be something more than a mere brook. Al- though it may serve to float down logs for a few days dur- ing a freshet, that does not make it a public highway. Whether it is the one or the other depends upon its ca- pacity, extent, and importance.^^ And in California it is said that a stream is navigable if it is capable of float- ing rafts of lumber, but that to go beyond this and declare any stream navigable which can float a log, would be to turn a rule intended for the benefit of the public into an instrument of serious detriment to individuals, if not of actual oppression.^s ji jg ^Iso held that streams not nat- urally fitted for floating logs do not become public through their improvement by the riparian owner.^* And in Oregon, there is a ruling to the effect that an artificial channel opened by an individual for his special use, and capable of floating logs for a few days in the year and at high water only is not subject to the public easement.^^ § 219. Paramount control of congress. The settled doctrine of the federal courts is that congress "having power to regulate commerce with foreign nations and among the several states, and navigation being a ^ Shaw v. Oswego Iron Co., ^ American River Water Co. 10 Oreg. 371. See, also, Felger v. Amsden, 6 Cal. 443. v. Robinson, 3 Oreg. 455. " Wadsworth v. Smith, 11 Me. ^1 Haines v. Hall, 17 Oreg. 278. 165, 20 Pac. Rep. 831. °= Nutter v. Gallagher, 19 '^Haines v. Welch, 14 Oreg. Oreg. 375, 24 Pac. Rep. 250, 319, 12 Pac. Rep. 502. LAW w. E.— 30 (465) § 219 LAW OF WATER RIGHTS. [Ch. 13 branch of that commerce, it has the control of all naviga- ble waters between the states, or connecting with the ocean, so as to preserve and protect their free navigation. Its power, therefore, to determine what shall be deemed, so far as that commerce is concerned, an obstruction, is necessarily paramount and conclusive."^^ But there must be a direct statute of the United States in order to bring within the scope of its laws obstructions and nuisances in navigable streams within a state; such obstructions and nuisances being offenses against the laws of the states within which the navigable waters lie, but not offenses against the United States in the absence of a statute.^^ Hence, until congress acts, each state has plenary authority over rivers lying within its limits, and over bridges span- ning them, and may regulate the construction, repair, and use of such bridges.^* But "while this court has main- tained, in many cases, the right of the states to authorize structures in and over the navigable waters of the states, which may either impede or improve their navigation, in the absence of any action of the general government in the same matter, the doctrine has been laid down with unvarying uniformity, that when congress has, by any ex- pression of its vnU, occupied the field, that action was conclusive of any right to the contrary asserted under state authority."^^ Included in this power of congress is the authority to regulate and improve the navigation of such rivers and to make regulations for their ports. It has the power, for instance, to close one of several channels " Miller v. Mayor of New Marsh Co., 2 Pet. 245; Gilman. YorK, 109 U. S. 385, 3 Sup. Ct. v. PMladelphia, 3 Wall. 713; Rep. 228. Escanaba Go. v. Oliicago, lOT "Wmamette Iron Bridge Co. U. S. 678, 2 Sup. Ct. Rep. 185. V. Hatch, 125 U. S. 1, 8 Sup. '^ Wisconsin v. Duluth, 96 U. Ct. Rep. 811. S. 379. "Willson V. Blackbird Creek (466) Ch. 13] EIPABIAN RIGHTS ON NAVIGABLE STREAMS. § 219 in a navigable stream, if, in its judgment, the navigation of the river will be thereby improved; and it may declare that an actual obstruction is not, in the view of the law, an illegal one.^o So it has authority to build light-houses for commercial purposes; and although the land used for that purpose has been granted by the state to a private owner, yet, if it lies wholly under "navigable water of the United States," such owner is not entitled to compensation for damages resulting from the erection of such struc- tures.^i In regard to wharves, it has been held that al- though they are related to commerce and navigation as aids and conveniences, yet, being local in their nature and requiring special regulations at particular places, the juris- diction and control thereof, in the absence of congressional legislation on the subject, properly belongs to the states in which they are situated.*^ But congress has now acted on this subject, as may be seen from certain provi- sions of the river and harbor act of 1890.^^ That law en- acts, in its seventh section "that it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, break- water, bulkhead, jetty, or structure of any Idnd outside established harbor-lines or in any navigable waters of the United States where no harbor-lines are or may be established, without the permission of the Secretary of War, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce, or anchor- age of said waters, and it shall not be lawful hereafter to commence the construction of any bridge, bridge-draw, bridge piers and abutments, causeway, or other works, ™ SouHh CaroliTia, v. Georgia, =^ Transportation Co. v. Par- 9:: U. S. 4. kersburg, 107 U. S. 691, 2 Sup. ^'Hlll V. United States, 39 Ct. Rep. 732. Fed. Rep. 172. " 26 U. S. St. at Large, 426. (467) § 220 LAW OF WATER EIGHTS. [Cll. 13 over or in any port, road, roadstead, haven, harbor, navi- gable river, or navigable waters of the United States, under any act of the legislative assembly of any state, until the location and plan of such bridge or other works have been submitted to and approved by the Secretary of War, or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of the channel of said navigable water of the United States, unless ap- proved and authorized by the Secretary of War." And the twelfth section of the same act provides that "where it is made manifest to the Secretary of War that the establishment of harbor-lines is essential to the preserva- tion and protection of harbors, he may and is hereby au- thorized to cause such lines to be established, beyond which no piers, wharves, bulkheads, or other works shaD. be extended or deposits made, except under such regula- tions as may be prescribed from time to time by him." § 220. Title of state to bed of stream. In England, the title to the alveus, or bed, of all navi- gable streams is vested in the crown. And anciently it was in the power of the king to convey this title to private persons at his mere will and pleasure. But this royal right was abridged by Magna Charta, so that it now re- quires an act of parliament to convey away this portion of the public domain. To these sovereign rights the several states succeeded upon the establishment of Ameri- can independence. The shores of navigable waters and the soil under them were not granted by the constitution to the United States, but were reserved to the several states respectively.^* But the United States has the same right of ownership in the navigable streams of its territories. " PoUard v. Hagan, 3 How. 212. (468) Ch. 13] EIPAEIAN EIGHTS ON NAVIGABLE STEEAMS. § 220 For if additions are made to the national domain by right of occupancy and discovery, the general government be- comes both sovereign and territorial proprietor of all the country so acquired. And if new territory is gained by purchase, it takes all the rights of the ceding sovereign, and is absolute owner of the waterways, except in so far as it is bound to recognize private rights previously vested or is restricted, in this respect, by treaty stipulations. It may therefore be regarded as the settled doctrine of Ameri- can law that the territorial sovereign, be it the state or tlie United States, is the owner in fee of the bed of all the navigable streams within its limits.^^ But in the case of non-tidal rivers, the question of title to the bed of the stream, as between the state and the riparian owner, will depend upon whether the common law doctrine of navigability has been adopted or rejected by that state. By that doctrine, as we have already seen, "navigable streams" are those only in which the tide ebbs and flows.36 But, as has also been shown, this test has been discarded as inapplicable in a majority of our states, and navigability in law has been made synonymous with navigability in fact. In those states, therefore, the beds of all streams which are in fact navigable for purposes of useful commerce belong to the state, whether the water is salt or fresh, or whether or not it is affected by the rise and fall of the tides.^''^ ^-^ Attorney General v. Ste- Rep. 931; Green v. Swift, 47 vens, 1 N. J. Eq. 369, 22 Am. Cal. 536; Lamprey v. Metcalf, Dec. 526; People v. Canal Ap- (Minn.) 53 N. W. Rep. 1139. praisers, 33 N. Y. 461; Browne '"Supra, § 216. V. Kennedy, 5 Har. & J. 195; "'People v. Canal Appraisers. Pitkin V. Olmstead, 1 Root, 217; 33 N. Y. 461; State v. Black State V. Black River Phosphate River Phosphate Co., (Fla.) 9 Co., (Fla.) 9 South. Rep. 205; South. Rep. 205; Lamprey v. St. Louis, I. M. & S. R. Co. V. Metcalf, (Minn.) 53 N. W. Rep. Ramsey, 53 Ark. 314, 13 S. W. 1139. (469) § 220 LAW OF WATER EIGHTS. [Ch. 13 But some few of the states adhere to the rule of the com- mon law, and in them the title of the riparian owner is correspondingly extended. Thus in Illinois, it is held that the Mississippi is not in law a navigable stream; and hence the title of a riparian proprietor whose lands are bounded by that river extends to the middle thread of the stream.^s In Iowa, on the other hand, the modern rule has been adopted, and it is there held that the bed of the Mississippi, and its banks to high water mark, belong to the state, and that the title of the abutting owner extends only to that line.3* This difference of doctrine produces some singular results. Thus, that portion of the great river which flows between the two states named is a "navigable water of the United States," is technically navigable on the Iowa side, and is technically non-navigable on the lUtuois side; and that half of its bed which lies adjacent- to Illinois is owned by private persons, while the other half belongs to the state of Iowa. But even in those jurisdictions where the common law rule prevails, the title of a riparian owner to the bed of a stream which is actually navigable is not quite so free and unrestricted as his ownership of land under water which is entirely incapable of being used for navigation. For it is subject to a public easement of passage. Thus in New Jersey, while it is said that the state has no jus privatum in the soil of the Delaware river above tide- water, yet the right of the riparian owners is subject to the public easement of navigation, and to such regulations of the waters by the legislature as the public right of navigation may require. As to the jurisdiction and power of the state over it, the river above tide-water is to be regarded as if "' Middleton v. Pi-itchard, 4 "Barney v. Keokuk, 94 U. S. 111. 510; Bnsminger v. People, 324. 47 111. 384. (470) Ch. 13] BIPARIAN BIGHTS ON NAVIGABLE STREAMS. § 221 it were navigable in law.*" And in an early case in New York, while it was stated that the riparian owner above tide-water takes to the middle thread of the stream, yet, if the stream is navigable in fact, the public have the right to use the waters as a highway for the passage of boats and vessels, and in conformity with this principle, the legislature may declare certain waters to be public high- ways, and regulate them in respect to the building of dams and in other similar regards.*^ § 221. Limit of riparian owner's estate. Assuming the particular stream to be navigable, — either because it is tidal or because it is recognized by the local law as having that character, — it next becomes important to determine the dividing line between the property of the state, as owner of the bed of the stream, and the property of- the adjoining upland proprietor. This line is fixed, in some states, at low water mark, in others at high water mark. In Pennsylvania, for example, the title of the ripa- rian proprietor extends to low water mark; but in tidal streams, such as the Delaware and the Schuylkill, his title is subject to the public right of passage in vessels when the tide is high.*2 In Massachusetts, by an ancient colonial ordinance, the title of owners of land adjoining all tidal waters extends to low water mark.*^ In West Virginia, the proprietors of lands bounded on the Ohio river own the fee in the lands to low water mark; subject to the *° Attorney General v. Dela- water mark," as the limit of a ware & Bound Brook R. Co., 27 riparian owner's title, is the or- N. J. Bq. 1. dinary low water mark unaf- " Canal Comm'rs v. People, fected by drought Stover v. 5 Wend. 423. Jack, supra. " Tinicum Fishing Co. v. Car- " Tappan v. Boston Water- ter, 61 Pa. St. 21; Stover v. Power Co., (Mass.) 31 N. E. Jack, 60 Pa. St. 339; BaU v. Rep. 703. Slack, 2 Whart. 508. And "low (471) § 222 LAW OP WATER RIGHTS. [Ch. 13 easement of the public in that portion lying between high and low water mark, with a right in the state to control the same, for the purposes of navigation and commerce,' without compensation to the owner.** In Minnesota, the state holds the title up to low water mark "in its sovereign capacity, in trust for the people, for the purpose chiefly of protecting the rights of navigation." *5 In Michigan, it is said that the ownership of land bordering upon I^ake Muskegon carries with it the ownership of the land under the shallow water so far out as it is susceptible of bene- ficial private use, but subordinate to the paramount public right of navigation and the other public rights incident thereto.*® On the other hand, in CJonnecticut, Iowa, and Arkansas, the proprietors of lands bounded on a navigable river own the soil to high water mark and no further.*^ And in Oregon, in the case of the Willamette river, it is ruled that the point to which the water usually rises in an ordinary season of high water is the true meander line, and forms the boundary of the title of the United States or its grantee.*^ § 222. Incidents of state's ownership of bed of streara. The principal consequence of the retention by the state of title to the beds of navigable rivers is that they are perpetually secured in their character as public highways. And the most important right vested in the public, by "Barre v. Flemings, 29 W. Conn. 38, 21 Am. Dec. 707; Va. 314, 1 S. E. Rep. 731; Barney v. Keokiik, 94 XJ. S. Brown Oil Co. v. Caldwell, 3.5 324; St. Louis, I. M. & S. R. W. Va. 95, 13 S. E. Rep. 42. Co. v. Ramsey, 53 Ark. 314, 13 ">]Vmier V. Mendenhall, 43 S. W. Rep. 931. Minn. 95, 44 N. W. Rep. 1141. "Jolinson v. Knott, 13 Oreg. "Rice v. Ruddiman, 10 Mlcb. 308, 10 Pac. Rep. 418. And see 125. Moore v. Willamette Transp. "Chapman v. Kimball, 9 Co., 7 Oreg. 355. (472) Ch. 13] RIPARIAN RIGHTS ON NAVIGABLE STREAMS. § 223 reason of such ownership on the part of the state, is the right of navigation. Of this right we shall have more to say hereafter. But there are also certain other rights which are free and common to the general public, when the state owns the bed of the stream, from which they would be excluded if the land under water were the private property of the abutting owners. Such is the right to take fish, ice, and the other fruits or products of the waters. In Connecticut, for example, it is ruled that the right to gather sea-weed growing on the bed of a navigable river, below low water mark, belongs to the public, and not exclusively to the riparian proprietor.*^ And in a case in Pennsylvania, where the action was for the value of a lot of paving-stones alleged to belong to the plaintiff and which had been carried away by the defendant, the latter attempted to show that the articles in question were the property of the state, because they had been gathered out of the Delaware river, but it was held net a valid defense.^" In an English case it was ruled that there is no common law right to bathe in the sea.^^ But this decision has been much criticised, and it is not generally accepted as good law in this country .^^ It must be observed, however, that all these rights of the general public must be exercised without trespassing in any manner upon the rights or the property of the riparian owners. § 223. Rivers as boundaries bet-ween states. Where a navigable river flows between two states, the dividing line of their territorial jurisdiction may be co- " Chapman v. Kimball, 9 =' Blundell v. Catterall, 5 B. Conn. 38, 21 Am. Dec. 707. & Aid. 268. " Solliday v. Jolinson, 38 Pa. '= See McManus v. Carmicliael, St. 380. 3 Iowa, 1; Hetfield v. Baum, 13 Ired. 394. (473) § 223 LAW OF WATER EIGHTS. [Ch. 13 incident either with, the middle thread of the stream or with one or other of its banks. This will depend upon the defi- nition of their respective boundaries, as fixed by treaty, organic act, or otherwise. Where a power possesses a river and cedes the territory on the other side of it, making the river the boundary, the rule is that that power retains the river, unless there is an express stipulation for a re- linquishment of the rights of soil and jurisdiction over the bed of such river.^* But generally, in this country, the determination of the limits of interstate jurisdiction is to be made by reference to the acts of congress authoriz- ing the formation of new states. Thus, by the acts of congress providing for the organization and admission of Illinois and Missouri as states of the Union, it was de- clared that the western boundary of Illinois and the eastern boundary of Missouri should be the "middle of the main channel of the Mississippi river." And in all such cases as this the two states have concurrent general jurisdiction over the river, and each has exclusive territorial jurisdic- tion over that portion adjacent to its own shore.^* Thus, the question whether a riparian owner holds the fee to the middle thread of the stream, or only to high or low water mark, is governed by the municipal law of the state where- in his land lies, and the two states, on opposite sides of the river, may establish different rules in this respect.^' But as to the river itself, the authority of each state is lim- ited to the protection of its own shores and harbors, without "^ Howard v. Ingersoll, 13 v. Porter, 11 Ohio, 138; How- How. 381. ard v. IngersoU, 13 How. 381; " City of St. Louis v. Rutz, Keator Lumber Co. v. St. Croix 138 V. S. 226, 11 Sup. Ct. Rep. Boom Co., 72 Wis. 62, 38 N. W. 337; Handly v. Anthony, 5 Ren. 529. Wheat. 374; Carlisle v. State, '" City of St. Louis v. Rutz. 82 Ind. 55; McFaU v. Comm., 138 U. S. 226, 11 Sup. Ct. Rep. 2 Mete. (Ky.) 394; Blanchard 337. (474) Ch. 13] RIPARIAN EIGHTS ON NAVIGABLE STREAMS. § 224 interfering with, the opposite shores or the common rights of navigation. And the state has no power or right to inflict injury on the riparian proprietors on the other side of the river, as by erecting dikes or other structures, for the protection of its own shore, but which deflect the cur- rent of the river and cause the erosion of the lands of such proprietors.^^ § 224. Navigable stream as boundary. Patents by the United States of land bounded by streams and other waters, in the absence of reservation or restric- tion of terms, are to be construed, as to their effect, by the law of the state in which the land lies. In Illinois, for instance, the common law being in force, a patentee from the United States of land there situated, bounded by the water of a small lake, takes to the center of the lake.^'^ In California it is held that, under a United States patent to lands bordering upon a navigable stream, the grantee, in the absence of an intent appearing in the patent to the contrary, does not acquire title to any land below high water mark.^s In Oregon and Nevada, it is held that where a stream is meandered in the public surveys, the stream, and not the meander line, forms the true boundary of the riparian proprietor.^^ And where the government leaves a small island in a navigable river, lying between the shore and the middle of the streana, unsurveyed, and sells all the surveyed islands and all the lands on both sides of the river, without any reservation as to such "' Rutz V. City of St. Louis, 7 WrigM v. Seymoiir, 69 Gal. 122, Fed. Rep. 438. 10 Pac. Rep. 323. =' Hardin v. Jordan, 140 U. S. ^ Weiss v. Oregon Iron Co., 371, 11 Sup. Ct. Rep. 808. 13 Oreg. 496, 11 Pac. Rep. 255; "Packer v. Bird, 137 U. S. Minto v. Delaney, 7 Oreg. 337; 661, 11 Sup. Ct. Kep. 210; Shoemaker v. Hatch, 13 Nev. 261. (475) § 225 LAW OF WATER RIGHTS. [Ch. 13 island, the title will be held to have passed to the riparian owner.^o In Mississippi a grant of land bounded "by" or ^'on" a fresh-water stream, whether in fact capable of navi- gation or not, conveys the soil to the middle thread of the stream, including, of course, the shore between high and low water mark.^i And in Virginia, a conveyance of riparian lands by metes and bounds, which ■ on the river side are substantially co-incident with high water mark, carries all the right of the grantor to the strip lying be- tween high and low water mark.*^ And it is held that where, upon a town plat, the only boundary for part of a street on one side is a navigable lake, the street extends to low water mark.^s § 225. Public right of navigation. In the case of navigable streams, both the riparian owner and the general public have rights, not necessarily incon- sistent, but which must so limit and restrict each other as to secure the due recognition and full enjoyment of all. In the first place, the public have a right of navigating such rivers. And it follows that the riparian owner, even though he may own to low water mark, cannot be allowed to construct piers, wharves, or other structures, in such a manner as materially to interfere with the navigation of the stream. His title to the soil of the shore, or under the water, does not authorize him to obstruct in any way the free use of the river by the public as a highway.*** And even though he may own both sides of the stream, he can- not construct booms entirely across the stream, since such * Ohandos v. Mack, 77 Wis. '" Village of Wayzata v. Great 673, 46 N. W. Rep. 803. Nortliern Ey. Co., (Minn.) 52 " Steamboat Magnolia v. Mar- N. W. Rep. 913. shall, 39 Miss. 109. " Sherlock v. Bainbridge, 41 "= McDonald v. Wliitehurst, 47 Ind. 35. Fed. Rep. 757. (476) Ch. 13] RIPARIAN RIGHTS ON NAVIGABLE STREAMS. § 22& booms would obstruct navigation." ^ And the right to use a navigable river being a public right and not a private right, the riparian owner cannot maintain an action for an illegal obstruction of navigation which prevents his use of this public right. To entitle hun. to maintain a private action, the obstruction must constitute an invasion or viola- tion of some private right, as distinguished from the public right which he has of navigating the river in common with the rest of the public."® Thus, where the riparian owner had free access to the navigable channel in front of Ms- land, it was held that he could not in his own name, main- tain a suit to compel the removal of a bridge over such channel, half a mile from his land, though his boats, in navigating to and from adjacent waters, were obstructed by such bridge.®^ And on similar principles, it is held that a person who has entered into a contract obligating himself to drive logs down a stream navigable for such purposes, knowing that the stream had been and was unlawfully obstructed, and who is hindered and subjected to expense in performing his undertaking, by reason of such impediments, is not entitled to maintain a private action for damages against the person creating such ob- structions in the highway."^ § 226. Right of state to improve navigation. As the state is the owner of the beds of navigable rivers,, it does not divest itself of the right and power of improv- ing the navigation thereof. In fact, the state may dO' everything to secure the full enjoyment of the public right " Stevens Point Boom Co. v. " Wlaitehead v. Jessup, 5S. Reilly, 46 Wis. 237, 49 N. W. Fed. Rep. 707. Rep. 978. "Brennan v. Lammers,. °° Swanson v. Mississippi & R. (Minn.) 48 N. W. Rep. 766. R. Boom Co., 42 Minn. 532, 44 N. W. Rep. 986. (477) § 226 LAW OF WATER EIGHTS. [Ch. 13 of navigation not inconsistent with the constitutional principle that private property shall not be taken for public use without just compensation.^^ And remote and conse- quential damages, such as the diminution of water-power, accruing to land from improvements to the navigation of the waterways of a state authorized by the legislature thereof, do not amount to a "taking'' within the meaning of the constitution, and the legislature is empowered to authorize such improvements without reference to such consequential damage to land within the state. But the legislature has no power to cause such damage to the own- ers of land in other states.'^'* Hence riparian owners on a navigable stream cannot recover damages for a diver- sion of the waters by the state, or by a corporation acting by authority of the state, for the improvement of naviga- tion.^i And in this respect the general government has equal rights and powers, so far as concerns "navigable waters of the United States." Thus for example, the Savannah river being such a stream, the rights of the owner of an adjoining rice field, in the ebb and flow of the tide, are subordinate to the control of the government, for pur- poses of navigation; and it having determined that the current shall be confined, for the purpose of scouring and deepening the channel, an injury resulting from an eleva- tion of the flow of the tide, which interferes with the drain- age of the rice field, is damnum absque injuria.'^^ At the same time, this right of the state must not be exercised in such a manner as to cause any more damage to the riparian owners than is unavoidable. Thus, in Louisiana, °»Hollister t. Union Co., 9 "Black Kiver Imp. Co. v. La Conn. 436. Crosse Boom Co., 54 Wis. 659, '"Holyoke Water-Power Co. 11 N. W. Rep. 443. V. Connecticut River Co., 20 "Mills v. United States, 46 Fed. Rep. 71. Fed. Rep. 738. (478) Ch. 13] EIPAEIAN RIGHTS ON NAVIGABLE STEEAMS. § 227 the levee commissioners are authorized to lay ofE the levees at a suitable distance from the bank of the Mississippi. Yet they have not an arbitrary discretion. And if they should wantonly and unnecessarily set the levee so far back as to ruin the property of a riparian owner, it is said that he would not be without a remedy.'^* § 227. Public right of floating logs. Closely analogous to the public right of navigation on streams which are adapted to be so used is the public right of using "floatable" streams for the purpose of driving logs to the mills or to market. Here, as there, the rights of the public and of the riparian proprietor co-exist, and each must be exercised with a due regard to the existence and preservation of the other. On the one hand, it is not the privilege of the riparian owner to make such use of the stream or of its banks or channel as materially to obstruct the public right of floatage. But yet this public right is not paramount, in any such sense that he may not make any proper use of the stream not substantially inconsistent with it. Thus, under a statute which makes it unlawful for any person to obstruct any navigable stream in any manner so as to obstruct the free navigation thereof, it is held that a dam which interferes with the passage of logs is not an unlawful obstruction unless it materially impairs the value of the stream for floating purposes.''* And in '= Dubose V. Levee Comm'rs, between those streams which 11 La. Ann. 165. are capable of floating logs and " Conn Co. v. Little Suamico timber only at certain periods, Lumber Co., 74 Wis. 652, 43 N. and then for a few days, In W. Rep. 660. In this case the times of freshet, and streams learned court observed: "It is which are capable of more ex- obvious that it not every ob- tended and constant navigation, struction placed in a navigable It seems to us that in reason stream which is a nuisance. A and common justice a dlstiue- distinction may well be made tion should be made in view of (479) § 227 LAW OF WATER EIGHTS. [Ch. 13 Maine we have a ruling to the effect that a mill-owner on a floatable stream is under no legal obligation to provide riparian rights. For if the right of floatage Is paramount, so that no bridge or dam or other obstruction can be placed in or over the stream by the riparian owner, his use and enjoyment of his property are unneces- sarily abridged and restricted. Suppose the riparian proprietor owns the land on both sides of the stream, and there is a wa- ter-power which can be utilized and made valuable by means of a dam, can he not construct such dam, and utilize his pow- er, providing he makes a rea- sonable provision for the pas- sage of logs through his dam? Can he not build a bridge over the stream for the convenient passage from one part of his land to the other? The owner must not so obstruct the stream as to materially impair its use- fulness for the purpose of navi- gation; but, if it only can be used for floating logs and tim- ber, the riparian owner is bound not to obstruct its rea- sonable use for that pm-pose. The rights of the riparian own- er and of the public are both to be enjoyed with due regard to the existence and preserva- tion of the other. The right of floatage of logs is not para- mount in the sense that the using of the water by the ri- parian owner for machinery is unlawful, so long as he does not materially or unreasonably interfere with the pubUc right, (Morgan v. King, 18 Barb. 277; Gould, Waters, § 110; Harring- ton V. Edwards, 17 Wis. 586;) (480) but he may use the stream land its banks for every piu-- pose not inconsistent with the public use. Section 1598 seems to go on some such principle. It provides that every person who shall obstruct any naviga- ble stream in any manner, so as to impair the free navigation thereof , or place in such stream, oir any tributary thereof, any substance whatsoever, so that the same may float in or into, and obstruct, any such stream, or impede its free navigation, or construct or maintain, or aid in the construction or mainte- nance of, any boom not author- ized by law in any such naviga- ble stream, shall be liable to a penalty, etc. This plainly Im- plies that an obstruction in a navigable stream which does not impair the free navigation thereof, though not authorized by law, is not a nuisance and unlawful. Dams, booms, mills, and bridges, even, may be con- stmcted on some navigable streams in such a manner as not to seriously affect the nav- igation thereof, or infringe up- on the common right. To say, therefore, that there can be no obstruction or impediment whatsoever by the riparian owner in the use of the streani or its banks, would be in many cases to deny all valuable en- joyment of his property so sit- uated. 'There may be, and there must be, allowed of that which is common to all a rea- sonable use. * * * There may be a diminution in qnan- Ch. 13] EIPAEIAN EIGHTS ON NAVIGABLE STREAMS. § 227 a public way for the passage of logs over his dam, better than would be afforded by the natural condition of the rirer unobstructed by his miUs. The right of the public is to the utilization of the natural flow of the river or its equivalent. And the mill-owner is not obliged to furnish any public passage for logs over his dam or through his mills, at a time when the river at such place, in its natural condition, does not contain water enough to be floatable if unobstructed by mills, although the stream is generally of a floatable character.'''''' On the other hand, the public easement on floatable streams must not be used to the substantial and permanent detriment of the riparian owners. Hence where the facts show that a stream is not navigable for floating logs with- out doing irreparable injury to the estate through which it flows, and defendant claims a right to use such stream,, for that purpose, not only for himself, but for the public,, and threatens to commit and claims the right to repeat the- numerous trespasses which the exercise of such right neces- sarily involves, it is held that the plaintiff is entitled to an injunction.''^^ But it is said that a corporation, authorized- by its charter to maintain dams and make all other im- provements required to facilitate the driving of logs on a' navigable river, may be bound to prevent the forming of jams which increase the danger of injury to the shores,, if it is practicable to do so by reasonable means ; but when. a jam is reasonably necessary and proper to facilitate the tity, or a retardation or accel- ing the value of the conmioii eration of the natural current, right is an implied element in indispensable for the general the right of using the stream at and valuable use of the water, all.' Story, ,7., in Tyler v. Wil- perfectly consistent with the kinson, 4 Mason, 397." existence of the common right. " Pearson v. Rolfe, 76 Me. The diminution, retardation, or 380. acceleration not positively and ™ Haines v. Hall, 17 Oreg.. sensibly injurious by diminish- 105, 20 Pac. Rep. 831. LAW W. B.— 31 (481), § 228 LAW OF WATEB EIGHTS. [Ch. 13 driving of logs, the corporation is not bound to remove it, and is not liable for damages resulting therefrom to a riparian owner. Nor is the corporation bound to erect booms or other structures along the shore to prevent it from washing away, or to station men along the bank to prevent logs from striking if'^ § 228. Public use of banks of stream. While the waters of a navigable stream remain subject to the public easement of passage, it is now the generally accepted rule of American and English law that the banks of the river, when held in private ownership, are not sub- ject to any servitude, for the benefit of the public, for pur- poses incidental to navigation. The history and develop- ment of this doctrine have been well described by the learned Chancellor Kent, in a passage from which we quote as follows: "The right of way, as to a foot or tow path along the banks of navigable rivers, has been a subject of great discussion, and of much regulation in the laws of different nations. In the civil law, the banks of public rivers and the seashore were held to be public. Riparum usus publicus est; littorum quoque usus est publicus jure gentium.''* The law of nations was here used for natural right, and not international law in the modern sense of it; and it is stated in the Institutes of Justinian that all persons have the same liberty to bring their vessels to land, and to fasten ropes to the banks of the river, as thoy have to navigate the river itself. These liberal doctrines of the Eoman law have been introduced into the jurispru- dence of those nations of Europe which have followed the civil and made it essentially their municipal law. Thus in Spain, the seashore is common to the public, and any one "Field V. Apple Riysr Co., "Citing Inst. 2, 1, 4, 5. And 67 Wis. 569, 31 N. W. Rep. IT. see Waslib. Easem. 2i.5. (482) Ch. 13] RIPAEIAN RIGHTS ON NAVIGABLE STREAMS. § 228 may fish and erect a cottage for shelter. The banks of navigable rivers may also be used to assist navigation. In the French law, navigable or floatable rivers, as they are termed, have always been regarded as dependencies of the public domain, and the lands on each side subject to the servitude or burden of towing paths for the benefit of the public. The English law was anciently the same as the Eoman law, if we may judge from the authority of Bracton, who cites the words of the civil law, declaring the banks of navigable rivers to be as much for public use as the rivers themselves. So Lord Holt held that every man, of com- mon right, was justified in going with horses on the banks of navigable rivers for towing.''^ But Sir Matthew Hale, in his treatise De Jure Maris, in which he has exhausted the learning concerning public property in the sea and rivers, and collected all the law on the subject, concluded that individuals had a right to a tow-path, for towing ves- sels up and down rivers, on making a reasonable compensa- tion to the owner of the land for the damage. This con- dition, which he annexes to the privilege, shows that in his opinion there was no such common right in the English law, inasmuch as it depended on private agreement with the owner of the soil. The point remained in this state of uncertainty until the case of Ball v. Herbert,^*' in 1789, brought the whole doctrine into discussion. The case was respecting a claim to tow on the banks of the river Ouze, in Norfolkshire, with men and horses, whenever it was necessary for the purposes of navigation, doing as little ™ And see Anonymous, 1 please. Nevertheless if tlio' Camp. 517, note, where Wood, abuse that right so as to work B., said: "A navigable river is a private injury, they are lia- a public highway, and all piT- ble to an action. The question sons have a right to come there will therefore be whether the in ships, and to unload, mooi', defendant has abused his right." and stay there as long as thty " 3 Term, 253. (483) § 228 LAW OF WATER RIGHTS. L^ll- 13 damage as possible. It was admitted that the Ouze was a navigable river where the tide ebbed and flowed. The question was whether, at common law, the public had a right to tow vessels on the banks of either side of a naviga- ble river, and it was investigated and argued with great ability. All the cases bearing on the question were col- lected and reviewed, and the court concluded that there was not, and never had been, any right at common law for the public to tow on the banks of navigable rivers. The claim was directly contrary to common experience; and it was observed by Lord Kenyon that the navigators on the Thames were frequently obliged, at several places, to pass from one side of the river to the other, with great inconvenience and delay, because they had no such general right. It was admitted that on many navigable rivers there was a custom to tow on the banks, but the pri\'ilege in those cases rested on the special custom, and not on any common law right. The statutes which have given a right of towing on parts of the Severn, Trent, and Thames, are evidence that no such general right before existed." ^^ It is true that in some parts of our country, where the civil law has been largely influential in shaping the local jurisprudence, the rule of that law, on this point, is still in force. Thus in Louisiana, it is said that the proprietor of the soil adjacent to the river has no right to appropriate to his exclusive use the banks of a navigable water-course, because he has no property in the use thereof; it belongs, to the public.*^ But in a majority of the states, follow- ing the modern English rule, it is now definitely held that the public right of passage over the navigable streams does not include a right to use the banks; that navigators have no common right to avail themselves of the banks as. »3 Kent, Comm. 425. La. Ann. 614, 7 South. Rep. " Sweeney v. Shakespeare, 't2 729. (484) Cb. lo] EIPARIAN RIGHTS ON NAVIGABLE STREAMS. § 228 a towing-path, or to land or moor their vessels- thereon, or to receive or discharge freight or passengers on the banks, or to approach the stream over the adjacent land, or even to land themselves (except perhaps under stress of peril or necessity), without the permission or consent of the riparian owner, or unless such a right has been ac- quired by a grant or prescription; and that any such un- authorized use of the banks will expose them to the lia- bility of trespassers.^^ So if the riparian owner has con- structed a wharf, it is his private property and cannot be used by the public without his consent. "By the common law, except In case of danger or necessity, no one has a right to land goods upon the private property of another on the shore of a navigable river."** The same principles apply to the case of floatable streams. The right to float logs down a stream does not confer a right to run them upon the adjacent land, or to travel upon the banks, or to cause the water to overflow the banks to the injury of the shore-owner, and it is immaterial whether an injury so occurring arises from the negligence of the party or oth- erwise.^5 But where the riparian owner has only a qualified interest in the shore below the line of high water mark, it is held that tying a float of logs to a tree standing below high water mark, and driving a team along the water's edge below high water mark, for the purpose of floating the logs, is a proper use of a navigable stream and not a trespass on the land.*® But still, even under these cir- cumstances, where the owner of vessels places them between ■^Ledyard v. Ten Eyck, 36 "O'NeUl v. Annett, 27 N. J. Barb. 102; Ensminger v. Peo- Law, 290. pie, 47 111. 384; Bainbridge v. ''Haines v. AVelch, 14 Oreg. Sherlock, 29 Ind. 364; Talbott 319, 12 Pac. Rep. 502; Hooper v. V. Grace, 30 Ind. 389; Steam- Hobson, 57 Me. 273. boat Magnolia v. Marshall, 39 "" Pursell v. Stover, (Pa.) 20 Miss. 109. Atl. Rep. 403. (485) § 228 LAW OF WATEK EIGHTS. [Ch. 13 high and low water mark in front of the property of another person, and lieeps them, there for an unreasonable time, making a profit out of such use of the landowner's property, he is liable in damages for such use, since it is not an incident to the right of navigation.^^ But in some states it has been attempted to accommodate the often conflicting rights of the shore-owner and the navigator, by according to the latter such rights, in respect to the use of the banks, as are necessary for the purposes of navigation. We find this doctrine expounded by the supreme court of Oregon in the following terms : "How far may one who has an undoubted right to navigate the stream meddle with or touch upon the bank of the stream, which is private property? Whatever he has is founded upon necessity. If he has a right to meddle with the bank, it is only an incidental one. Although the riparian owner has an absolute right to enjoy his land in all proper ways, the adverse party has an absolute right, as one of the public, to navigate the stream. Neither one can justly de- prive the other of his rights. If the riparian owner could deny the navigator the right to come to land, in a case where the business of navigating could not be performed without the privilege of landing, he could deny all use of the stream. . . . While it is beyond question that the riparian owner is entitled to be protected from any un- necessary intrusion upon his premises, it is equally certain that he cannot, solely for the maintenance of an abstract right, or an exclusive possession, deny to the public the right of navigation. He takes his title subject to this right vested in the public." ®* "Wall v. I'ittsbiargh Harbor Co., (Pa.) 25 Atl. Rep. 647. '"Weise v. Smitli, 3 Oreg. 445. (486) Ch. 13] RIPARIAN RIGHTS ON NAVIGABLE STREAMS. § 229 § 229. Bights of riparian o^wrner in general. The rights of a riparian owner on a navigable stream are substantially the same as those enjoyed by a proprietor bounding on a non-naAigable stream, which have hereto- fore been examined and explained.^a except that in some respects such rights are enlarged by the greater size and capacity of the stream, and that he is in the enjoyment of some additional privileges directly connected with its nav- igable character. "The distinction between tide waters and fresh, or between public and private waters, is not necessarily a material consideration in determining ques- tions relating to riparian rights, since riparian rights prop- er depend upon the ownership of land contiguous to the water, and are the same whether the proprietor of such land owns the soU under the water or not."^ A general sum- mary of these riparian rights was given in a decision of the United States supreme court, which has been widely quoted, and which is now recognized as the leading author- ity on the question. Speaking of the shore-owner, Mr. Jus- tice Miller said: "He is certainly entitled to the rights of a riparian proprietor whose land is bounded by a naviga- ble stream; and among those rights are access to the nav- igable part of the river from the front of his lot, and the right to make a landing, wharf, or pier, for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be. . . . This riparian right is property and is valuable, and though it must be enjoyed in due subjec- tion to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accord- »» Supra, §§ 134-159. '"Gould, Waters, § 148. (487) § 229 LAW OF WATER EIGHTS. [Ch. 13 ance with established law, and, if necessary that it be taken for the public good, upon due compensation." ^i And fur- ther, riparian rights on navigable streams cannot be de- stroyed or materially impaired, by the state, in the con- struction of works of public improvement, without com- pensation made.^2 It is held that the riparian owner may use the water flowing past his land for any purpose he pleases, so long as he does not impede navigation.^^ And it follows that no private person can complain of the use to which he puts the water or the amount he takes, provid- ed the public right of navigation is not impaired. Also the riparian owners may alter the channel of a stream by constructing dams and flumes, and diverting the water for manufacturing purposes, so far as such changes are possi- ble without an infringement of the public right to such a free way as would be afforded by the river in its natural condition.^* And conversely, in a case in Oregon, where it concerned a small fresh-water stream, which was naviga- ble for small boats and floating logs only a part of the year, it was held that the riparian owner was entitled to the aid of equity to prevent a diversion of the waters from their natural channel, and this notwithstanding that he did not himself use the water-power and had sustained but small pecuniary damage.^^ The riparian proprietor has also a right to protect his land from a threatened change in the '^ Yates v. Milwaukee, 10 " Hollingswortli v. Parish of WaU. 49T. See, also, Potomac Tensas, 17 Fed. Rep. 109. See Steamboat Co. v. Upper Pot. supra, § 226. S. Co., 109 U. S. 672, 3 Sup. »» MorriU v. St. Anthony Falls Ct. Kep. 445, and 4 Sup. Ot. Water-Power Co., 26 Minn. Rep. 15; Bowman v. Wathen, 222, 2 N. W. Rep. 842. 2 McLean, 376; Delaplaine v. " Connecticut River Lumber Chicago & N. W. R. Co., 42 Co. v. Olcott Palls Co., (N. H.) Wis. 214; Parker v. West Coast 21 Atl. Rep. 1090. Packing Co., 17 Oreg. 510, 21 "' Weiss v. Oregon Iron Co., Pac. Rep. 822. 13 Oreg. 496, 11 Pac. Rep. 255. (488) Ch. 13] RIPARIAN RIGHTS ON NAVIGABLE STREAMS. § 230 channel of the stream by erecting along the border thereof a bulkhead as high as the original bank of the stream.^® It is held that the person entitled to the exclusive right to possess and use land abutting on a navigable stream, is also entitled to enjoy the riparian rights incident to the land, though he does not own the fee.^'^ As to the exact nature and extent of riparian rights on navigable streams, these may vary according to the legislation of the several states. The federal courts declare that the incidents or rights which attach to the ownership of property conveyed by the United States bordering on navigable streams, will be determined by the states in which the lands are situated, subject only to the limitation that their rules do not impair the efficacy of the grant or the use and enjoyment of the property by the grantee.^* Many of the specific rights of a riparian owner on a navigable stream are substantially identical with those enjoyed by an owner bounding on the seashore, and may therefore be more fuUy discussed under the general head of "littoral rights." The particular ques- tions relating to the right of access to the water, fisheries, alluvion, etc., will be found treated in the succeeding chap- ter. § 230. Right to build wharves and landings. In those states where, by the local law, the line of a riparian owner on a navigable stream extends to low water mark, it is held that the owner, being thus invested with title to the shore, and having the right to the exclusive use thereof, has also the right (unless restrained by law »° Barnes v. MarsliaU, 68 Oal. "Packer v. Bird, 137 U. S. 569, 10 Pac. Rep. 115. 661, 11 Sup. Ct. Rep. 210; St. "Hanford v. St. Paul & D. Louis v. Myers, 113 U. S. 566, 5 R. Co., 43 Minn. 104, 42 N. W. Sup. Ot. Rep. 640. Rep. 596. (489) § 230 LAW OF WATER RIGHTS. [Ch. IS or ordinance) to establish a private wharf or landinj? there- on, and make reasonable charges for its use by those nav- igating the river.^ And the United States supreme court holds that riparian proprietors on streams navigable in fact have the same right to construct suitable landings and wharves, for the convenience of commerce and naviga- tion, as riparian proprietors on navigable waters affected by the ebb and flow of the tide.i<"> In Wisconsin, the rule is that the riparian owner has the right to construct, in shoal water in front of his land, proper wharves and piers in aid of navigation, and, at Ms peril of obstructing naviga- tion, through the water far enoug'h to reach actually naviga- ble water.ioi In Iowa, the riparian proprietor of land situated outside of an incorporated town or city has a right to erect private wharves or landings on the shores, if they conform to the state regulations (if any) and do not ob- struct the paramount right of navigation; but wharves erected within the corporate limits of any town or city must yield to the paramount right of the corporation, when granted by the law by which the corporation is created.^''^ On similar principles, it is held that those owning lands along floatable streams may lawfully, until prohibited by statute, construct in front of their land proper booms to aid in floating logs, but not so as to violate any public law or obstruct the navigation of the river by any method in which it may be used, or infringe upon the rights of other " Ensminger v. People, 47 111. '" Railroad Co. v. Schurmeier, 384; Chicago v. Laflin, 49 111. 7 Wall. 272. 172; Bambridge v. Sherlock, "^Diedrich v. Northwestern 29 Ind. 364; East Haven v. R. Co., 42 Wis. 248; Cohn v. Hemingway, 7 Conn. 186; Ryan Wausau Boom Co., 47 Wis. 314, V. Brown, 18 Mich. 196; Fry v. 2 N. W. Rep. 546. OampbeU's Creek Coal Co., (W. "' Grant v. City of Daven- Va.) 16 S. E. Rep. 796; Bond v. port, 18 Iowa, 179. Wool, 107 N. Car. 139, 12 S. E. Eep. 281. (490) Ch. 13] RIPARIAN RIGHTS ON NAVIGABLE STREAMS. § 231 riparian owners.^"^ On the other hand, in Pennsylvania, it is held that a riparian owner on the Delaware has no right to make any erection between high and low water mark without express authority from the state.i"* And in Atlee t. Packet Co.,i<"5 it was said that a pier erected in the navigable water of the Mississippi river, for the sole use of the riparian owner, as part of a boom for logs, with- out license or authority of any kind, except such as may arise from his ownership of the adjacent shore, is an un- lawful structure. Such a structure, it was said, differs very materially from wharves and other like constructions made to aid and facilitate navigation, and generally regu- lated by city or town ordinances, or by statutes of the state, or other competent authority. § 231. Biglit to reclaim submerged lauds. In the state of Minnesota, it is held that the owner of land bounded on a navigable stream has the right, by virtue of his ownership of the banlv, to enjoy free communi- cation between his abutting premises and the navigable channel of the river, and may fill out into the river, beyond low water mark, to navigable water, so as to make the shore available for the uses connected with navigation, and to this extent he is entitled to the exclusive occupancy of the bed of the stream, subordinate and subject only to the rights of the public with respect to navigation, and such needful rules and regulations for their protection as may be prescribed by competent legislative authority; and such riparian rights are property, and cannot lawfully be taken for public use without just compensation.i"8 And "= Stevens Point Boom Co. v. "»Carli v. SUUwater Street Reilly, 44 Wis. 295. Ry. Co., 28 Minn. 373, 10 N. W. '"Tinicum Fistiing Co. v. Car- Rep. 205; Brisbine v. St. Paul & ter, 61 Pa. St. 21. S. O. R. Co., 23 Minn. 114. '"=21 "Wall. 389. (491) § 231 LAW OF WATEE RIGHTS. [Ch. 13 also it is held, in the same state, that this right to reclaim and occupy the submerged lands out to the point of nav- igability, though originally incident to the riparian estate, may be separated therefrom, and be transferred to and en- joyed by persons having no interest in the original riparian estate.!"'' But inasmuch as the title to the bed of the stream is in the state, and the actual proprietary interest of the riparian owner extends to low water mark at the fur- thest, it is evident that such a right to fill in and occupy to the point of navigability must rest upon an implied license from the state. It is accordingly held, in the state to which we have referred, that the establishment by leg- islative authority of a harbor or dock line in navigable wa- ters is an implied grant to the owners of the adjacent up- land of the right to occupy the land between low water mark and such line, title to which is in the state, and to build on or fill up the same so as to extend the upland to such dock line.i"* And the same doctrine is recognized in Ehode Island and perhaps some other states.i"^ In New Jersey, although the title of the riparian owner on naviga- ble water extends only to high water mark, it is held, in virtue of a local custom now having the force of established law, that the adjacency of the land of such an owner to the stream invests him with a license to fill in and dock out on the public domain in front of his land to such an extent as does not interfere with public rights, and this license, when executed, becomes irrevocable.^^" So also in Mary- »"Hanford v. St. Paul & D. R. I. 334, 5 Atl. Rep. 199; Nor- R. Co., 43 Minn. 104, 44 N. W. folk v. Cooke, 27 Gratt. 438; Rep. 1144. Guy v. Hermance, 5 Gal. 74; '^ Miller v. MendenhaU, 43 Eldridge v. Gowell, 4 Gal. 80. Minn. 95, 44 N. W. Rep. 1141. ""New Jersey Zinc Go. v. '"Aborn v. Smith, 12 R. I. Morris Ganal Go., 44 N. J. Eq. 373; Engs v. Peckham, 11 R. 398, 15 Atl. Rep. 227. I. 223; Gerhard v. Gomm'rs, 15 (492) Ch. 13] RIPAEIAN RIGHTS ON NAVIGABLE STREAMS. § 232^ land, under the act of 1796, conferring on lot-owners in the city of Baltimore fronting on the water the right to make improvements in the water, it is held that such owners, while not having a technical fee in the submerged land, are entitled to the franchise and a perpetual use of the land for the purpose of erecting and keeping up the improve- ments.m But on the other hand, in some states, great stress being laid upon the state's ownership of the land uudi^i- navigable waters, it is denied that the riparian owner has any right or license, positive or implied, to reclaim or occupy below the line which marks the limit of his estate in fee. And as a consequence of this doctrine it is held that if land is made by a stranger, by filling in earth in front of the estate of a riparian owner, from low water mark into the stream, and wharves and docks are built thereon, the riparian owner cannot maintain ejectment for such property.^^^ And in New York it is said that where one, without right,, enters on and fills up land under navigable water, thereby raising it above the water, he acquires no title to such land, and is not an "adjacent owner" under the statute giv- ing to such owners a preferential right to purchase the flats.113 § 23S. Preferential right to purchase. In some states, as in New York, it is provided by statute that lands under the navigable waters may not be. granted by the state "to any person other than the proprietor of the adjacent lands." And this, it is held, refers to the pro- prietors of the adjacent uplands.^!* Where a riparian 'I' Horner v. Pleasants, 66 Office, (N. Y.) 32 N. E. Rep. Md. 475, 7 Atl. Rep. 691. 139. "^Austin V. Rutland R. Co., '" Rumsey v. New York & N. 45 Vt. 215. B. R. Co., 114 N. Y. 423, 21 N.. "» People V. Comm'rs of Land E. Rep. 1066. (493) § 232 LAW OF WATER EIGHTS. [^h. 13 owner conveys Ms land, he cannot reserve any right to the adjacent land under the water, of which he has received no grant from the state, but the grantee becomes the ripa- rian owner, and as such is entitled to apply to the state for a grant of the land under the water.^^s g^t the con- veyance of land for a railroad right of way, partly above and partly below high water, along the bank of a river, by one owning the adjacent uplands, does not destroy the grantor's character as riparian owner so that a patent may not issue to him, as the owner of adjacent land, for the land lying next under the water." » In North Carolina, the code excepts from entry lands covered by navigable streams, but with a proviso "that persons owning lands on any nav- igable sound, river, creek, or arm of the sea, may, for the purpose of erecting wharves on the side of the deep water thereof, next to their own land, make entries of the land covered by water adjacent to their own, as far as the deep water, and obtain title as in other cases." And it is held that this was not intended to wrest from the riparian ovnier any rights he already had, but only to allow him to acquire an absolute instead of a qualified property.^^'^ ""Blackslee Manuf. Co. v. Aldridge, (N. Y.) 32 N. B. Rep. Blackslee Iron Works, (N. Y.) 50. 29 N. B. Rep. 2. i"Bond v. Wool, 107 N. Car. '"New York Cent. R. Co. v. 139, 12 S. E. Rep. 281. (494) Ch. 14] LITTOEAL EIGHTS. § 233 CHAPTER XIV, LITTORAL RIGHTS. [By the Editor.] §333. "Tide-lands" defined. 234. Meaning of the terms "shore" and "beach. " 235. High and low water mark. 336. Seashore as a boundary. 237. Title of United States to tide-lands of territory. 238. State's ownership of shore and flats. 239. Nature of state's title. 340. Grant by state of tide-lands to private owner. 241. Preferential right, of littoral owner to purchase. 243. Location of scrip on tide-lands. 243. Public right of navigation. 244. Rights of littoral owner in general. 245. Right of access to water. 246. Same; cases denying right of access. 247. Same; cases affirming right of access. 248. Same; cases in the Pacific states. 249. Same; conclusions from the authorities. 250. Right to build wharves and landings. 251. Establishment of harbor lines. 252. Right to accretions. 253. Rights of fishing. 254. Severance of riparian rights. 255. Determination of boundaries as between adjoining owners. § 233. "Tide-lands" defined. The term "tide-lands," which is now constantly and familiarly used on the Pacific coast, is not a technical term of the common law. It appears to have been first employed in a statute of California, enacted in 1861, en- titled "An act to provide for the sale of marsh and tide lands of this state." But its precise meaning has been fixed by the courts with very little diflQculty or difference of opinion. It means such lands as are periodically cov- (495) § 234 LAW OF WATER RIGHTS. [Ch. 14 ered and uncovered by the rise and fall of the ordinary tides on the sea-coast or in a hay, estuary, or arm of the sea. It is never understood as including any land which is permanently submerged by the waters of the ocean or the bay.^ The term has been adopted, in legislative and judicial use, in Oregon and Washington, where it bears precisely the same meaning. Thus, in the former of those states, it is said that the phrase "tide-lands" applies to lands covered and uncovered by the ordinary tides, which the state owns by virtue of its sovereignty, and thus cor- responds with the shore or beach, which at common law is that land lying between ordinary high and low water mark. It must be such land as is alternately covered and left dry by the ordinary flux and reflux of the tides. Lands adja- cent to navigable waters, where the tide flows and reflows, come within the description. But it cannot be said to apply to lands which are covered with water the greater part of the year.^ So it is ruled that an isolated sand- bank, alternately covered and exposed by the tides, which is situated in the Columbia river a mile from the Oregon shore, and entirely disconnected from the main land, is not "tide-land," within the proper meaning of that term.^ § 234. Meaning of the terms "shore" and "beach." These two synonymous terms are frequently employed in legislative and judicial language, as well as in convey- ances between individuals where the sea is intended to be given as a boundary. Their meaning is now clear and well fixed. By the civil law (and the modified form of it in 'People V. Davidson, 30 Cal. ^Andrus v. Knott, 12 Oreif. 379; RondeU v. Fay, 32 Cal. 501, 8 Pac. Rep. 763. 354; Walker v. State Harbor ' ElUott v. Stewart, 15 Oreg. Comm'rs, 17 Wall. 048; Walker 259, 14 Pac. Kep. 416. V. Marks, 2 Sawy. 152. (496) Ch. 14] LITTORAL EIGHTS. § 234 force in Louisiana), tlie shore of a sea or bay extends as far up as the line marked by the highest tide in winter.* But by tke common law the dividing line between upland and shore is marked by the advance of the ordinai'y flood tide; that is, it does not extend as far up as the line reached by the waters under the stress of storms or at the period of the spring tides. Thus, in an early Massa- chusetts decision it was said: "The seashore must be understood to be the margin of the sea in its usual and ordinary state. Thus when the tide is out, low water mark is the margin of the sea, and when the sea is full, the margin is high water mark. The seashore is therefore all the ground between the ordinary high water mark and low water mark. It cannot be considered as including any ground always covered by the sea, for then it would have no definite limit on the seaboard. Neither can it include any part of the upland, for the same reason. This defini- tion of the seashore seems to result necessarily from its nature and situation." ^ As for the term "beach," it is considered by the courts as the exact equivalent of "shore." Thus it is said that this word, "in its ordinary significa- tion, when applied to a place on tide-waters, means the space between ordinary high and low water mark, or the space over which the tide usually ebbs and flows. It is a term not more significant of a sea margin than 'shore;' and 'bounding on the shore' does not include the shore." "Whence the court concluded that "bounded westerly by the beach" would not include the land between high and low water mark.^ * City of Galveston v. Me- deuce & S. Steamstiip Co., 12 nard, 23 Tex. 349; Civil Code R. I. 348. La., art. 451. °Niles v. Patch, 13 Gray, 254. ° Storer v. Freeman, 6 Mass. See, also, Doane v. W illcutt, .5 435. See, also. Providence Gray, 355; Hodge v. Bootliby, Steam Engine Co. v. Provi- 48 Me. 68. LAW w. E.— 32 (497> § 235 LAW Of WATER RIGHTS. [Ch. 14 § 235. High and lo\\r -water mark. "High, water mark," as the term is used with reference to boundaries on tidal waters, means the line to which the waters advance at the flood of an ordinary or usual high tide. That is, it excludes on the one hand the line of the periodical extraordinary tides or that marked by the furthest reach of the waters in storms, and on the otber hand the line marked by the periodical lowest tides at their flood. In other words, high water mark is determined by the reach of th.e medium high tide between the spring and the neap tides. On this definition the authorities are very generally agreed.^ But there is a decision in Califor- nia to the effect that by th.e designation "usual" or "ordi- nary high water mark," as applied to tide waters, is meant the limit reached by th.e neap tides.^ This, it will be per- ceived, — if the court chose its language with, scientific precision, — ^would give the upland proprietor the benefit of the strip between the mark of the medium flood tide and that of the neap tide, which is not usually accorded to him. But if this is the meaning of the decision, it is not borne out by the weight of authority. In regard to the term "low water mark," it is defined by the same authori- ties, as the line marked by the lowest ebb of an ordinai-y or usual tide. It corresponds with the legal meaning of "high, water mark" in rejecting th.e extraordinary flux and reflux of tbe water, and in being determined by the reach of the medium or average tide. ' New Jersey Zinc Co. v. Mor Stover v. Jack, 60 Pa. St. brf9; ris Canal Co., 44 N. J. Eq. 398, City of Galveston v. Menard, 15 Atl. Rep. 227; Howard v. 23 Tex. 349. IngersoU, 13 How. 423; Ger- ' Teschemacher v. Thompson, rlsli V. Proprietors, 26 Me. 395; 18 CaL 11. (498) Ch. 14] LITTOEAL EIGHTS. § 23(5 § 236. Seashore as a boundary. It is a general rule that a grant of lands bounded by navigable tide-water carries no title to land below high water marlv.^ But still, a deed will be understood to con- vey the land to low water mark, when that construction is necessary to make the distances and acreage agree with the deed.i" Thus, calls in a deed which describe a parcel of land on the seashore as running "to the water and thence by the water,'' will be held to carry the grant to low water mark." And it is said that the word "adjoining," in the description of premises conveyed, means "next to " or "in contact with," and excludes the idea of any intervening space. Hence the description of the premises granted as "adjoining the Atlantic ocean," with the additional words "bounded on the ocean," carries title to the line of ordinary high water, with all the incidents of riparian ownership upon tidal waters.^^ Where a street of a city is bounded on one side by one of the Great Lakes, the owner of the block on the other side takes only to the center of the street, while the fee of the half bounded by the lake re- mains in the original proprietor, subject to the public ease- ment.i^ In a case in Minnesota, where it appeared that the owner of land abutting on Lake Superior platted it, together with the shallows beyond the shore, and sold blocks with reference to the plat, it was held that the gradual encroachment of the water on one of the shore blocks, so as to entirely submerge it, did not vest the title thereto in the owner of the adjacent inland block.i* ° De Lancey v. Pfepgras, 17 Mt. Desert Real Estate Co., S4 N. Y. Supp. 681. Me. 14, 24 Atl. Rep. i'zd. '" Oakes v. De Lancey, (N. '^ Yard v. Ocean Beach Asso., Y.) 30 N. E. Rep. 974. (N. J.) 24 Atl. Rep. 729. " Babson v. Tainter, 79 Me. '= Banks v. Ogden, 2 WaU. 57 308, 10 Atl. Rep. 63; Snow v. " GUbert v. Eldridge, 47 Minn. 210, 49 N. W. Rep. 679. (499) § 237 LAW OP WATER EIGHIS. [Ch. 14 § 237. Title of United States to tide-lands of ter- ritory. While any portion of the United States remains under the territorial form of government, the title to its tide- lands is in the United States, except in so far as portions of the same may have been already granted to private owners. This is not disputed. But a question has been made as to the nature of the title thus held by the United States, and particularly as to the power and right of the general government to make private grants of such lands. Two decisions — one in Oregon and one in Alabama — have held that the United States has no jus disponendi of such lands, that it holds them merely in trust for the future State, and that, because each new state must be admitted to the Union on an equal footing with the older states, therefore it is not within the lawful power of the federal government to convey away any portion of its shores. In the Oregon case, the learned court remarked: "The tide- lands belong to the state of Oregon by virtue of its sov- ereignty. . . . But it is contended that this sovereignty did not attach until the state was admitted into the Union. This is true, but it is also equally true that the United States government has no constitutional or statu tory authority to so act towards a territory, or so dispose of the lands within a territory, as to make it impossible to admit such territory upon an equal footing with the other states of the Union. In all matters which touch the sovereignty, the general government is, in the very nature of our system, simply a protector thereof until the territory assumes the ampler powers of a state, and becomes thereby enabled to assert and protect its own sovereignty." i^ And "Hinman v. Warren, 6 Oreg. 408. (500) Ch. 14] LITTORAL EIGHTS. § 237 the decision in Alabama, so far as it deals with, this sub- ject, was ruled on substantially the samfe grounds.^^ Now this doctrine, in so far as it can claim to have any foundation in authority, is based upon a misunderstanding of the celebrated case of Pollard t. Hagan,!'' or upon the employment, in the opinion in that case, of certain terms and expressions, which do indeed appear to lend counte- nance to the doctrine in question, but do not fairly warrant it when read in the light of the facts of the case and sub- jected to a proper scrutiny. One of the head-notes to that case reads as follows: "The shores of navigable waters and the soils under them, were not granted by the consti- tution to the United States, but were reserved to the states respectively; and the new states have the same rights, sovereignty, and jurisdiction over this subject as the original states." And in the course of the optaion of the majority it was said: "To give to the United States the right to transfer to a citizen the title to the shores and the soils under the navigable waters would be placing in their hands a weapon which might be wielded greatly to the injury of state sovereignty and deprive the states of the power to exercise a numerous and important class of police powers." But this case was concerned solely with the disposition of certain lands held by the United States under an express trust. And hence it is no authority whatever for the proposition that, in the absence of such a trust, the general government is restrained from disposing of tide- lands in a territory merely because that territory may after- wards become a state. This will sufficiently appear from the following extracts from the opinion of McKinley, J.: "The United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which "Mayor of Mobile v. Eslava, 9 Port. 577. "3 How. 212. See, also, Pollard v. Kibbe, 9 How. 471. (501) § 237 LAW OF WATER EIGHTS. [Ch. 14 Alabama or any of the new states were formed, except for temporary purposes, and to execute the trusts created by the acts of the Virginia and Georgia legislatures and the deeds of cession executed by them to the United States, and the trust created by the treaty with the French Kepub- lic of the 30th of April, 1803, ceding Louisiana." And again: '^Whenever the United States shall have fully exe- cuted these trusts, the municipal sovereignty of the new states will be complete throughout their respective borders, and they and the original states will be upon an equal footing in all respects whatever. We therefore think the United States hold the public lands within the new states by force of the deeds of cession and the statutes connected with them, and not by any municipal sovereignty whicli it may be supposed they possess or have reserved by compact with the new states for that particular purpose." In a more recent case in the federal supreme court, the remark was made that tide-lands acquired by the United States by cession from Mexico were "held in trust for the future state" of Calif ornia,i8 But the grant there to be construed was one made by the city of San Francisco, and hence the case has no direct bearing on the question of the power of the United States to convey such lands. And the case of Hardin v. Jordani^* is sometttnes referred to as if it supported the theory that shore-lands are inalienable by the federal government. But the patent in that case was issued after the admission of the state. And the point there decided was that a grant made by the United States, under such circumstances, extends no further than to high water mark. And it was observed that the title to the shores of navigable waters, and to the submerged lands, is incidental to the sovereignty of the state (that is, when " Weber v. Harbor Comm'rs, 18 Wall. 5T. "> 140 U. S. 371, 11 Sup. Ct. Rep. 808. (502) Ch. 14] LITTORAL RIGHTS. § 237 the state is organized), and cannot be retained (tliat is, retained by the United States upon the admission of the state) or granted out to individuals by the United States (that is, after the title of the state has attached.) Upon reason and principle it is impossible to accept the theory of the Oregon court as correct. The rights and powers of the general government in respect to lands of which it is the proprietor cannot thus be restricted on tlie fanciful notion of a "trust" for a possible future state. It would scarcely be contended, for example, with any degree of seriousness, that the United States cannot lawfully convey to private persons lands embracing portions of the shore of Bering sea, merely because in the remote fature, Alaska may possibly be erected into a state. It is true that a new state must be admitted into the Union on an "equal footing" with the older states. But this does not imply that it must be the owner of an equal amount of territory, or equally the source of title to all the lands within its boundaries. If this were so, the United States could never dispose of an acre of public land, inland or shore. The equality spoken of is political equality. And the sovereignty of the new state has nothing to do with its proprietary rights. Though it may not own any por- tion of its shore, it is sovereign over that shore, as much as over any other portion of its territory. For it will always retain the jus publicum, which can never be alien- ated either by the United States or by the state itself. It is this alone which is held in trust for the future state. And the remarks made in Pollard v. Hagan can properly be carried no further than this. For it was there observed that if the control of the shores could be granted away, the state would be deprived of many valuable police powers. But those powers the state still retains after the land has passed into private ownership. Th« true doctrine is, that (503) § 238 LAW OF WATER EIGHTS. [Ch. 14 the United States may validly seU or otherwise dispose of the tide-lands bordering the coast of a territory, subject to the municipal control, or police jurisdiction, or the jus publicum, of the future state; and that when that state is admitted into the Union, it acquires the control as sovereign over all its shore, and as sovereign and pro- prietor over aU such lands not previously granted away by the United States. In the remaining cases in which this question has been considered the cor- rect view has been apprehended and applied.^" But it was stiU believed, in some of the western states, that the matter was involved in such a degree of doubt as to call for some authoritative confirmation of titles thus derived. Accordingly the constitution of Washington declares that "the state of Washington disclaims all title in and claim to aU tide, swamp, and overflowed lands patented by the United States." And it is held that this was substantially a grant of the state's interest in such lands, and such interest passed to the grantee in a patent from the United States previously issued which covered lands lying between ordinary high and low tide.^^ § 238. State's ownership of shore and flats. It is weU settled that the state is the owner in fee of the seashore, and of the shores of all tidal rivers, estuaries, inlets, and bays, within its territorial jurisdiction, except in so far as portions of the same may have been already granted to private owners, and subject to the paramount right of congress to regulate commerce and navigation.22 " Shively v. Welch, 20 Feci. " Arnold v. Mundy, 6 N. J. Rep. 28; Case v. Tof tus, 39 Fed. Law, 1, 10 Am. Dec. 356; Gough Eeo. 730. V. BeU, 21 N. J. Law, 156; State =' Scurry v. Jones, (Wash.) 30 v. Prosser, (Wash.) 30 Pac. Rep. Pac. Rep. 720. 734. (504) Ch. 14] LITTOEAL EIGHTS. § 238 In California, it is said that the lands belonging to the state are distinguishable into two general classes; first, those which it owns by virtue of grants from the United States; second, those which it owns by reason of its sov- ereignty. And the second class includes the shore of the sea and of its bays and inlets, in the common law definition of the word "shore," that is, the space usually overflowed by the ordinary tides."^ And the common law doctrine as to the dominion, sovereignty, and ownership of lands under tide-waters on the borders of the sea applies equally to the lands beneath the navigable waters of the G-reat Lakes; and such dominion, sovereignty, and ownership belong to the states, respectively, within whose borders such lands are situated, subject always to the right of congress to control the navigation so far asi may be necessary for the regulation of foreign and interstate commerce.^* As a consequence of this doctrine, it follows that a riparian own- er of land bordering on tide-waters cannot maintain eject- ment against persons who have taken possession of, and erected buildings on, the land below high tide mark, the title and power of disposal of which have been reserved to the state; the remedy, if any, is in equity .^^ It should be remarked, however, that in Massachusetts, by the colonial ordinance of 1647, the proprietors of upland bounding on the sea have an estate in fee in the adjoining flats above low water mark and within 100 rods of the upland, with full power to erect wharves and other buildings thereon, subject, however, to the reasonable use of other individual proprietors and of the public for the purposes of naviga- tion, and subject also to such restraints and limitations of ^People v. Morrill, 26 Oal. =* Illinois Cent. R. Go. v. lUi- 336; Long Beacli Land & "W. nois, 13 Sup. Ct. Rep. 110. Co. V. Richardson, 70 Cal. 206, '"Pierce v. Kennedy, 2 Wash. 11 Pac. Rep. 695. St. 324, 26 Pac. Rep. 554. (505) § 240 LAW OF WATEE RIGHTS. [Ch. 14 the proprietors' use of them as the legislature may see fit to impose for the preservation and protection of public and private rights.^® § 239. Nature of state's title. While the state is thus the proprietor of its sea-coast and of the shores of tidal rivers and bays, it does not fol- low that it holds such property in quite the same manner as a private person may hold the fee simple of an estate in la'nd. "It has been very common," says the learned court in Ehode Island, "to speak of the right of the state in the shores as a fee. This is proper only by analogy. To hold that the state owns the shores in fee in the same sense in which it owns a court-house or a prison, or in which the United States owns public lands, or a citizen may own land in fee, would lead to consequences which need only to be considered in order to show that such can never have been the nature of the right." The true doc- trine is that such property of the state "is a trust for the public, a power to control and regulate, to subserve the good of the public, and not a private property." 27 And this view has the support of unimpeachable authority, as well as of sound reason.^^ § 240. Grant by state of tide-lands to private ow^ner. Some few cases are to be found in the books which seem to assert an absolute and unqualified right in the state ^"Comm. V. Alger, 7 Cusli. 53; sliip Co., 12 R. I. 348, 34 Am. Storer v. Freeman, 6 Mass. 435; Rep. 652. Boston v. Richardson, 105 Mass. "^ Smltli v. Maryland, 18 How. 351; Drake v. Gurus, 1 Gush. 71; Illinois Gent. R. Co. v. Illi- 395; Locke v. Motley, 2 Gray, nois, 13 Sup. Gt. Rep. 110; WU- 265. son V. Welch, 10 Oreg. 353, f ^' Providence Steam Engine Pac. Rep. 341. Co. V. Providence & S. Steam- (506) Ch. 14] LITTORAL EIGHTS. § 240 to grant away its tide-lands as it may see fit, without refer- ence to the rights of the public of which it is the conserra- tor.29 But these cases, if their particular facts require them to go this far, are inconsistent with the generally accepted doctrine stated in the preceding section, — that the title of the state to such lands is only a trust for the pres- ervation and improvement of those public rights. As a necessary consequence of this doctrine it follows that the power of disposal vested in the state is limited to the sale or lease of the usufruct of the shore or waters, as by granting exclusive rights of fishery or the like, or the sale or grant of definite portions of its shore-land, not so great in amount as materially to impair the public rights, and made with the special intention that such grants shall be used for the building of wharves or other structures designed to be in aid of the public rights of navigation and commerce. These propositions are fuUy sustained by the decision of the United States supreme court in a very important case recently before it. It was held that a statute of Illinois, purporting to grant to the Illinois Central Railroad Company all the right and title of the state to the submerged lands constituting the bed of Lake Michigan, for one mile from the shore opposite the com- pany's tracks and breakwater in the city of Chicago, to be held in perpetuity without power to alienate the fee, was in excess of the legislative power of the state, and inop- erative to affect, modify, or in any respect control the sov- ereignty and dominion of the state over such lands or its ownership thereof, and consequently that it was within the constitutional power of the legislature to annul such grant by a subsequent repealing act^** In the course of =» Attorney General v. Ste- Dec. 526; City of Galveston v. vens, 1 N. J. Eq. 369, 22 Am. Menard, 23 Tex. 349. ""Illinois Cent. R. Co. v. Illi- (5.07) § 240 LAW OF WATEE EIGHTS. [Ch. 14 the opinion, after showing that the state's title to lands under the navigable waters of Lake Michigan was the same as the title of a state to soils under tide-waters bj the common law, it was said: "But it is a title different in character from that which the state holds in lands in- tended for sale. It is different from the title which the United States hold in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have lib- erty of fishing therein, freed from the obstruction or inter- ference of private parties. The interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks, and piers therein, for which purpose the state may grant parcels of the submerged lands; and, so long as their disposition is made for such purpose, no valid objections can be made to the grants. It is grants of parcels of lands under navigable waters that may afford foundation for wharves, piers, docks, and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly con- sidered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the state. But that is a very different doctrine from the one which would sanction the abdication of the general control of the state over lands under the navigable waters of an entire nols, 13 Sup. Ot. Rep. 110. It took no part in ttie decision, should be noticed, liowever, and Messrs. Justices Gray, that this case was in reality de- Brown, and Shlras dissented, cided by a minority of the Consequently the opinion is court. Mr. Chief Justice Fuller that of the remaining four and Mr. Justice Blatchford members of the court. (508) Ch. 14] LITTOBAL RIGHTS. § 240 harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of the public. The trust devolving upon the state for the public, and which can only be discharged by the manage- ment and control of the property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.. . , . A grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held^ if not absolutely void on its face, as subject to revoca- tion. The state can no more abdicate its trust over prop- erty in which the whole people are interested, like naviga- ble waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impaii'ment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the state the right to revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public prop- erty, or property of a special character, like lands under navigable waters; they cannot be placed entirely beyond, the direction and control of the state." (509) § 240 LAW OF WATER EIGHTS. [Ch. 14 In accordance with these general principles, it is held, in New York, that a grant of land under tide-water gives to the grantee a title to the soil, but does not authorize an interference with the public rights in the waters. Such grants are made in the interests of commerce, and operate as a license to the grantee to erect wharves and piers upon the lands granted, which those interests require. But while the grantee, by virtue of his proprietary interest, can exclude all other persons from the permanent occupa- tion of the land granted, yet the state, by making the grant, does not divest itself of the right to regulate the use of the granted premises in the interest of the public and for the protection of commerce and navigation.^i It is undoubted that the legislature may lawfully grant an usufructuary interest in the public waters, as a right to take fish, or to plant and gather oysters; and it may make such a grant to one citizen to the exclusion of others.^^ And the pro- vision of the federal constitution that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states does not entitle the citizens of the various states to share in the common property of the citizens of a particular state. Hence it is competent for a state to confine the right of fishing in its navigable waters to its own citizens.^^ Furthermore, in so far as the state may grant away any portion of its tide-land, it may make such grant to any person, the littoral owner or a stranger, as it may see fit, unless restrained by a statute giving to the proprietor of the adjacent upland a preferen- tial right to become the purchaser.^* But, as we shall °' People V. New York & '" McCready v. Virginia, 94 U. Staten Island Ferry Co., 68 N. S. 391; State v. Medbury, 3 E. Y. 71. I. 138. '"Paul V. Hazleton, 37 N. J. "Hoboken v. Penna. H, Co., Law, 106; Rogers v. Jones, 1 124 U. S. 656, 8 Sup. Ct. Rep. Wend. 237. 643, s. c, 16 Fed. Bep. 816; (510) Ch. 14] LITTORAL EIGHTS. § 240 presently endeavor to show, the littoral owner, merely as such, has certain valuable rights, which are property, and which cannot be taken from him without compensation. And if this doctrine is established, it will follow that the state, in making a grant of tide-lands to a stranger, if the effect is to cut ofE the littoral owner from his access to the water, must compensate him for the deprivation. It is also held that the title to the shore will not pass by implication. That is, a grant by the state of the upland will not carry the adjacent tide-land without express words.^5 But it seems that title to tide-lands may be ac- quired by the littoral owner making improvements upon them or reclaiming them, under an implied license from the state, or by force of a local custom,^* and perhaps also by disclaimer by the paramount owner and the recognition of title in the claimant.*^ But exclusive riparian rights do not attach, as a matter of course, to a grant of lands under tide-water. Whether they do so or not depends upon the express terms of the grant, or upon the intent of the parties as shown by prior use, by the object of the grant, or by other circumstances from which the intent may be inferred. In the absence of an express grant of the right of wharfage, or of any manifest intent to convey it, no exclusive right of wharfage passes as incident to a grant by the state of land imder water, below high water mark, in a harbor or navigable stream. "In the absence of an express grant of wharfage, or of such manifest intention, the city or the state, as the case may be, may make successive grants of its lands under water, each in front of the former, to differ- ent grantees, without any violation of the rights of either; Martm v. O'Brien, 34 Miss. 21. erson & N. R. Co., 34 N. J. " Oomm. V. Roxbury, 9 Gray, Law, 532. 451. "Dunliam v. Townshend, 118 "BeU V. Gough, 23 Ni. J. N. Y. 281, 23 N. B. Rep. 367. Law, 624. See Stevens v. Pat- (511) § 241 LAW OF WATER EIGHTS. [Ch. 14 and neither the first nor the last grantee will acquire any exclusive riparian privileges. None of such grantees are in any proper sense riparian owners at all, and riparian rights do not attach to such grants. In this state [New York], where the common law on the subject prevails, and the state is owner of the soil below high water mark, it was long since settled that a grant of such lands, even with a right to erect a wharf expressed in the grant, was by implication of law not an exclusive grant of wharfage rights, but that such rights, so long as they were not whoUy cut off, were subject to be modified and abridged through other grants and other harbor regulations for the public benefit, without compensation." ■"'^ § 341. Preferential right of littoral OTvner to pur- chase. In several of the states, where provision has been made for the sale of the tide-lands, the legislature has seen fit to enact that the littoral owners shall have the first or preferred right to purchase the portions of the shore ad- jacent to their several upland estates. No question appears to have been made of the competency of this legislation. And indeed it is eminently proper, as being in recognition of a natural right subsisting in the littoral owner by virtue of the advantages of his position. In New York, under the various statutes conferring authority upon the city of New York to grant rights under water in the harbor to others than the littoral owners on certain specified condi- tions, it is held that the granting of such rights, except upon compliance with such conditions, is by necessary implication forbidden.^* In Oregon, the legislature, rec- ^' Turner v. People's Feny ™ Bedlow v. New York Dry Co., 21 Fed. Rep. 90, citing Dock Co., 112 N. Y. 263, 19 N. Lansing v. Smitli, 8 Cow. 146. E. Rep. 800. (512) Ch. 14] LITTOBAL EIGHTS. § 242 ognizing the fact that the people had dealt with and sold the tide-lands adjacent to their uplands as their own, pro- vided, by the act of 1874, that the purchaser of any tide- land from the owner of the land adjacent thereto, should have the right to purchase the same from the state. By this act, it is held, the legislature recognized the rights of purchasers from adjacent owners.*" In Washington, an act passed in 1890 provided that the owners of any lands fronting on the Pacific ocean, or on any bay, harbor, etc., should have the right, for sixty days after final ap- praisement of tide-lands, to purchase such as were in front of the lands owned by them, "provided that if valuable improvements, in actual use for commerce, trade, or busi- ness, have been made upon said tide-lands, . . . the owners of such improvements shall have the exclusive right to purchase the land so improved for the period afore- said." And under this statute it is held that a littoral owner cannot sue to enjoin the maintenance of structures on tidal land by persons who erected the same, and were in use and possession thereof, before the passage of the act." § S4S. Location of scrip on tide-lands. The attempt has more than once been made to locate Valentine scrip on lands owned by the United States on the seashore between high and low water mark, but hither- to such locations have never been sustained. The act of congress for the relief of Valentine authorized the holder of this scrip to select unoccupied and unappropriated "pub- lic lands." And the ground of most of the decisions ad- verse to those who have claimed tide-lands under locations "De Force t. Welch, 10 Oreg. 507. *iEisenbach v. Hatfield, 2 Wash. St. 236, 26 Pac. Kep. 539. LAW W. E. — 33 (.513) § 242 LAW OF WATER RIGHTS. [Ch. 14 SO made is that the shores of the ^ea, or of other navigable waters, though the title thereto may remain in the United States, are not "public lands" withm the meaning of this act. The supreme court has explicitly declared that these words are habitually used in the federal legislation to de- scribe such lands as are subject to sale or disposition under general laws.''^ That is, not all lands owned by the general government are "public lands," but only such classes of lands — agricultural lands, mineral lands, desert lands, swamp lands, etc. — as have been thro-wu open to entry or purchase under general acts of congress. Now there is no general act of congress providing for the sale of tide- lands or lands covered by navigable waters. We must therefore understand that it was the intention of congress, in using the phrase "public lands" in the Valentine act, to authorize the location of this scrip only on lands the dis- posal of which is regulated by general laws, hence neces- sarily excluding tidal lands. It will be observed that it is not necessary here to raise any question of the power of the United States to dispose of shore-lands in a territory. Sound legal reason, as we have shown in a previous sec- tion,*3 compels the recognition of such a right in the gen- eral government if it shall choose to exercise it. But the question is solely whether such lands are included in the purview of the act under consideration. This contention came fairly before the supreme court of Washington, in a case where the plaintiff, as owner of Val- entine scrip, brought ejectment to recover certain lands, being portions of the tide-flats in Elliott bay, which are covered at ordinary high tide and uncovered at ordinary low tide, over which the defendant had erected buildings, but which plaintiff had selected at a time when they were •^NewhaU v. Sanger, 92 U. S. 761. "Supra, § 237. C514D Ch. 14] LITTORAL EIGHTS. § 242 unoccupied. It was held that the complaint was properly dismissed, since the premises were "water,"and not "land," or at least not "public land" subject to entry under the statute. And it was added that the fact that the tract in question A\-as not covered by navigable water, and was left bare at low tide, was immaterial, since high water mark is the limit of government grants.** Such has also been the uniform course of decisions in the general land office of the United States. And although the rulings of department officers are only quasi -judicial, and, in respect to matters of law, are not binding on courts,*^ j^et in questions of this character they are at least entitled to serious consideration and to a considerable de- gree of persuasive force. We think it not amiss, there- fore, to direct the reader's attention to the case reported as In re Burns,*'' where it was held that unsurveyed lands within the territories, lying below high water mark, are " Baer v. Moran Bros. Co., 2 Wash. St. 608, 27 Pac. Rep. 470. In this case, the learned court observed: "Within the meaning of the acts of con- gress, and the policy- thereby clearly established from the earliest times, the decisions of courts, and the general under- standing, this is not 'land,' but 'water,' to which none of the public or special and private land laws, Including the Valen- tine scrip act, have any appli- cation. It may be conceded that congress, by clear and explicit enactment, could have granted the bottom of naviga- ble waters to any person it saw fit before the admission of the state, but it will not be contended that the language ol the Valentine scrip act is to re- ceive any construction other than that awarded to the hundreds of other acts which relate to the 'public lands' sub- ject to Mr. Valentine's selec- tion, or that the lands therein meant are any lands different from those subject to entry under the pre-emption, home- stead, and other laws. There- fore it is but proper that, in construing this act, reference should Ije had in this manner to the hitherto universally sus- tained i"ule that 'public lands' means upland, and not soil be- neath navigable waters." « See 2 Black, Judgm. §§ 530, 531. "10 Land Dec. 365. Follow- ed, In re ICasson, 13 Land Dec. 299. (515) § 243 LAW OF WATER EIGHTS. [Cll. 14 not "public lands" subject to the location of Valentine scrip. "The words 'public lands' of the United States are used to designate such lands as are subject to sale and disposal under the general land laws, and do not include all lands to which the United States may have the legal title, or all lands that may be granted or disposed of by the United States." *^ And it is res judicata in the Department of the Interior that Valentine scrip cannot be located on the lake front in Chicago.** Finally, there are certain decisions in California which^ though not directly in point, are sufficiently analogous tO' the cases already cited to furnish a not inconsiderable sup- port to the views here advocated. In one of these cases,** it was ruled that lands covered by the ebb and How of the tide are not subject to location with school land warrants; nor does the location of such lands with such warrants con- fer on the locator a right to possession as against the true owner or amount to color of title. And in another case, the same court held that a certificate of purchase, as swamp and overflowed lands, of lands on the Sacramento river, sit- uated below high water mark and over which the tide ebbs, and flows, is void.''^ § 243. Public right of navigation. While the shores of the sea, between the lines of high ■and low water, belonging to the adjacent nation, and are sub- ject to its dominion and jurisdiction, yet they are subject to an easement in favor of the citizens of all nations, which entitles them to the lawful and proper use of the seashore " Per Noble, Secretary of the •" Farish v. Coon, 40 Cal. 33. Interior, in Re Bums, supra. '" Taylor v. Underbill, 40 Cal. "In re Valentine, 5 Land Dec. 471; People v. Morrill, 26 Gal. 382; In re ITarson, 2 Land Dec. 336. 338. (516) Ch. 14] LITTOEAL EIGHTS. § 244 for the purposes of navigation and conimerce.^i It is there- fore immaterial, for this purpose, what is the location of the title to the strip between high and low water mark. Whether it rwuaius in the United States, or the state, or has ve;'.led in a private owner, it is equally subject to the public right of navigation. Thus, in Massachusetts and Maine, by virtue of an ancient colonial ordinance, littoral owners are invested with title to the flats down to low water mark. But it is held that the right to use the wa- ters covering such flats, for the purposes of navigation, was not abridged by this ordinance; and the owners of ves- sels exercised only their legal right of navigation by pass- ing over such flats, when covered by water, and remaining upon them for commercial purposes from the ebb to the flow of the tide.^2 § 244. Eights of littoral owner in general. It is now generally agreed by the best authorities that while the title of a proprietor bounding on the sea termi- nates at ordinary high water mark, yet he is invested, by virtue of his littoral ownership, with certain valuable rights and privileges. Among the most important of these rights are (1) that of access from his land to navigable water, \2) the right to extend his land into the water by means of wharves subject to the qualification that he does not there- by injure the free navigation of the water by the public, (.3) the right by accretion to whatever lands by natural or artificial means are reclaimed from the sea.^^ These several subjects will be fully considered in the succeeding " steamboat ilagnolia v. Mar- Coim. 3S2; Providence Steam shall, 39 Miss. 109. Engine Co. v. Providence & S. " Gerrisli v. Proprietors of Steamship Co., 12 R. I. 348, 34 Union 'Wharf, 20 Me. 384. Am. Rep. G52.' And see cita- "^ Mather v. Chapman, 40 tlons in the following sections. (517) § 245 LAW OF WATER RIGHTS. [Ch. 14 sections. But here it is necessary to call attention to tlie fact that riparian or littoral rights are not considered an appurtenance to the land, bat a mere incident of its owner- ship, arising out of the local or common law. And hence a grant by the United States of land bordering on navigable water is not such a conveyance of riparian rights as will give jurisdiction to a federal court of a contest over such rights, as involving a federal question.^* In fact, the deter- mination of what rights, if any, shall attach to the estate of a riparian or littoral proprietor, is undoubtedly a matter for each state to regulate for itself.^^ It is entirely com- petent for a state to enact that an owner of land on the seashore shall have no rights or privileges whatever merely in virtue of such ownership. And in just the same way it was competent for the Pacific states (as several of them have done) entirely to abrogate the common law doctrine of riparian rights on non-navigable streams. But it must be noted that this can only be done prospectively. That is, such a rule can only apply to estates thereafter acquired by private persons from the state or the United States. If it were attempted thus to strip off from the estates of private owners the rights incident to their contiguity to a stream or the sea, as those rights existed at the time when their estates vested, the supposed legislation would cer- tainly be obnoxious to the charge of divesting vested rights, taking property without due process of law, and, in some cases, impairing the efiQcacy of grants made by the general government. § 245. Right of access to \(rater. We shall endeavor to show, in the succeeding sections, that the vast preponderance of authority, both in England "Kenyon v. Knipe, 46 Fed. Ilex>. 309. « Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. Rep. 808. (518) Ch. 14] LITTORAL EIGHTS. § 246 and the United States, recognizes the existence in the lit- toral proprietor of a right of access from his land to the water, or of free communication between his land and the water, which is a valuable property right, and of which he cannot be deprived without due compensation. It may appear singular that question should have been made of the correctness of this proposition. But the history of the discussion on this point, which is one of the most interest- ing in the story of our jurisprudence, will show the extraor- dinary tenacity of a legal heresy when once it is promul- gated by an able and respected court. § 246. Same; cases denying right of access. The New York court of appeals, not long after its organ- ization, was called upon to determine the rights of a ripa- rian proprietor on a navigable tidal river of the state, who claimed that he was damnified by the construction of a railroad along the shore of the river, in front of his land, on the strip between high and low water mark. It was adjudged that he had no property in the shore, but the same was the absolute property of the state to be disposed of as it might see fit, and that if he was deprived of access to the water, by reason of the shore being taken for the purposes of the railroad, he was not entitled to claim any compensation therefor.'^ This decision was approved and followed in several others in the same court.^'' Eventually it was overruled.^* But in the mean time, for nearly half a century it had been the occasion of doubt, confusion, and sometimes error to many courts. Its first fruits were seen in a case in New Jersey, wherein it was ruled that as the "Gould v. Hudson River R. N. Y. 567; People v. Tibbetts, Co., G N. Y. 522. 19 N. Y. 523. " See Smith v. Levinus, 8 N. " See next section. Y. 472; Furman v. Mayor, 10 (519) § 246 LAW OP WATER EIGHTS. [Oh. 14 state is the absolute owner of the land underlying all the navigable waters within its territorial limits, such land can be granted by the state to any person, either public or pri- vate, without making compensation to the owner of the adjoining shore-land; in other words, it is competent for the legislature to grant the soil under the water so as to cut off the riparian proprietor from the benefits incident to his property by reason of its contiguity to the water.^* Thus fortified, this erroneous doctrine next found its way into Iowa, where it was held that, as the owner of lands lying along the Mississippi river has no private right in the waters thereof, or in the shore between high and low water mark, he cannot recover damages for being deprived of access to the stream by reason of the construction of a railroad along its banks between such marks.*" This de- cision was based entirely on the authority of the New Yorlc case and the New Jersey case just mentioned. But it must have impressed the people of Iowa as grossly unjust to the riparian proprietors. For it was not three years after its promulgation before the legislature passed an act providing that land-owners abutting on the Mississippi and Missouri rivers were authorized to construct and maintain in front of their property piers, cribs, booms, and other proper and convenient erections and devices for the use of their re- spective pursuits, and the protection and harbor of rafts, logs, fioats, etc.; and "it shall not be lawful for any per- son or corporation to construct or operate any railroad or other obstruction between such lots or lands and either of said rivers, or upon the shore or margin thereof, unless "» Stevens v. Paterson & N. Works, L. R. 5 Ex. 221, wliich R. Co., 34 N. J. Law, 532. This last case lias since been re- case was decided largely on tlie versed in the House of Lords, authority of the Gould case and See, s. c, L. R. 5 H. L. 418. on that of Duke of Buccleuch ""Tonilln v. Dubuque, B. & V. Metropohtan Board of M. R. Co.. 32 Iowa, 100. (520) Ch. 14] LITTORAL EIGHTS. § 247 the injury and damage to such owners occasioned thereby shall be first ascertained and compen-sated." ^^ One other state court followed the lead of the New York decision, that, namely, of West Virginia. It was there held to be competent for the legislature to confer on municipal corpo- rations, in aid of the navigation of the Ohio river, the ex- clusive right to construct wharves within their corporate limits between high and low water mark, without compen- sation to the adjacent lot-owner for the land so taken for that purpose.^2 But as this decision was largely influenced by the overruled or repudiated cases to which we have just referred, it is no longer entitled to any considerable weight as an authority. Among the text-writers of repute, only one is found to be the champion of this fallacious doctrine.*'^ And in order to sustain his conclusions this writer has found it necessary (as has been remarked from the bench) to attack and con- demn "the opinion of the two highest courts of the civi- lized world." '54 The foregoing constituted the entire sum of the direct judicial authority in favor of this doctrine which denies the riparian owner's right of access, until the rendition of the late decisions in Oregon and Washington, which we shnli presently notice. We now proceed to recount the prjn- cipal cases which are ranged on the other side of the con- troversy. § 247. Same; cases affirming right of access. To begin with the decisions of the United States supreme court, the first case in that court dealing directly with the " Iowa act of Marcli 18, 1874; " Wood, Nuisances, § 468. Code Iowa, §§ 1953, 1954. " Dissenting opinion of StUes, "^ Ravenswood v. Flemins;s. X, in Eisenbacli v. Hatfield, 2 22 W. Va. 52. Wash. St. 236, 26 Pac. Rep. 539. (621) § 247 LAW OF WATER RIGHTS. [Ch. 14 question in hand was Button t. Strong.^^ Herein it was adjudged that a riparian proprietor has a right to erect bridge piers and landing places on the shores of navigable rivers, lakes, bays, and arms of the sea (which of coursft necessarily includes the right of access to navigable wa- ter), provided they conform to tlie regulations of the sitate, if any, and do not obstruct the paramount right of naviga- tion. This decision was repeated in the case of Eailroad Co. V. Schurmeir.^^ And not long afterwards, the opinion of the court was more fully and explicitly declared, in the following terms: "Whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, and the right to make a landing, wharf, or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be. . . . This riparian right is property and is valuable, and though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary that it be taken for the public good, iipon due compensation." ^^ These three decisions settled the doctrine of the supreme federal tribunal upon lines from which it has never since departed. Some of its later utterances may seem, at first sight, to militate against this statement. But the, apparent discrepancy wiU vanish the moment thev are examined with reference to their particular facts. "«>1 Black, (U. S.) 23. "Yates v. Milwaukee, 10 "7 Wall. 272. Wall. 497, Miller, J. C522) Ch. 14] LITTORAL RIGHTS. § 247 Thus, for example, in Weber y. Harbor Cominissioiiers,** it was held that where a wharf was constructed without license on land belonging to the state, the state, having power to remove it, may, without regard to the existence of the wharf, authorize improvements in the harbor, by the construction of which the use of the wharf will neces- sarily be destroyed. But the distinguishing fact is that the owner of the wharf, in this case, was not a riparian proprietor. And the court took occasion to quote with ap- proval the doctrine of Yates v. Milwaukee."^ So also in regard to the case of Hoboken v. Eailroad Co.''" Here the only matter in issue and decided was whether the state of New Jersey, as the superior of the city of Hoboken, could wholly destroy the public right of passage over fllled-up lands at the end of a street, beyond the end of the street as originally dedicated. No private person was complain- ing. And the court observed: "The right insisted on in these actions by the city of Hoboken is the public right, and not the right of individual citizens claiming by virtue of conveyances of lots abutting on streets made by Stevens or his successors to the title. The public right represented by the plaintiff is subordinate to the state and subject to^ its control. The state may release the obligation to the public, may discharge the land of the burden of the ease- ment, and extinguish the public right to its enjoyment. Whatever it may do in that behalf conclusively binds the local authorities, when, as in the present cases, the rights of action asserted are based exclusively on the public '"IS Wall. 57. Transportation Co. v. Parkers- "■lO Wall. 497. In much tlip burg, 107 U. S. 699, 2 Sup. Ot. same way we may distinguish Rep. 732; Potomac Steamboat Barney v. Keokuk, 94 V. S. Co. v. Upper Pot. S. Co., 109- 324, and McCready v. Virginia, U. S. 672, 3 Sup. Ot. Rep. 445. Id. 391. As further sustaining ™ 124 U. S. 656, 8 Sup. Ct. the statement of the text, set Rep. 643. (523j ^ 247 LAW OF WATER EIGHTS. [Ch. 14 right." And finally, that the court intends fuUy to abide by the doctrine first settled, is shown by the following quo- tation from one of its latest decisions: "The plaintiff was a riparian proprietor on the river. If his title to the land in question is not sustained, he is no longer such riparian proprietor and is cut ofE from access to the river. Among his rights as a riparian proprietor are access to the navi- gable part of the river from the front of his land, and the right to make a landing, wharf, or pier, for his own use or the use of the public."^i The inferior federal courts have uniformly agreed in sup- jjorting the same view. Thus, in a case in the circuit court for the southern district of New York, it was held that where the owner of land is bounded on navigable wa- ter, he has a vested right to have the water remain contig- uous to his property; and hence it is not permissible for the state, or its grantee of the land lying under the water, to fill into the water and build a new water-front before such owner's land, and so cut off the landing from the wa- ter. The state, having granted land bounded on a way, cannot afterwards remove the way without compensating the party injured.'^ If we turn now to the English decisions, we shall find the riparian owner's right of access recognized and vindi- cated with equal clearness and emphasis. In an important case before the House of Lords, it appeared that the plain- tiff was the owner of a garden on the bank of the Thames, and had a causeway running down from his garden to low wator mark in the river. He was deprived of the use of this, and of his communication with the river, by the em- ''St. Louis V. Rutz, 138 U. S. Hep. 738; State v. Illinois Cent. 226, 246, 11 Sup. Ct. Hep. 387. E. Co., 33 Fed. Rep. 730; Case '- Van Dolsen v. Mayor of v. Toftus^ 30 Fed. Rep. 730; New York, 17 Fed. Rep. 817. Bowman v. AVatlieu, 2 McL. See, also, Tuck v. Olds, 29 Fed. 376. (624) Ch. 14] LITTORAL RIGHTS. § 247 bankment of the river and the formation of a road between it and his garden. It was held that, being a riparian own- er, and having a right of access to the river and to the undisturbed flow of the river along the whole frontage of his property, he was entitled to damages for being deprived of these rights.''^ The whole subject received full and at- tentive consideration in the case of Lyon v. Fishmongers' Co.,^* where the Lord Chancellor (Cairns) expressed himself as follows: "Unquestionably the owner of a wharf on the river bank has, like every other subject of the realm, the right of navigating the river as one of the public. This, however, is not a right coming to him qua owner or occu- pier of any lands on the bank, nor is it a right which per se he enjoys in a manner different from any other member of the public. But when this right of navigation is connect- ed with an exclusive access to and from a particular wharf,, it assumes a very different character. It ceases to be a right held in common with the rest of the public, for other mem- bers of the public have no right of access to or from the river at the particular place; and it becomes a form of enjoyment of the land, and of the river in connection with the land, the disturbance of which may be vindicated in damages or restrained by an injunction. . . . The taking away of river frontage of a wharf, or the raising of an impediment along the frontage, interrupting the access between the wharf and the river, may be an injury to the public right of navigation, but it is not the less an injury to the owner of the wharf, which,^. in the absence of any parliamentary authority, would be compensated by damages or altogether prevented. It ap- " Duke of Buccleuch v. Metro, some of the cases cited in the- Board of Works, L. R. 5 H. preceding section had reUed. L. 418, reversing s. c. 5 Ex. "L. R. 1 App. Cas. 662. 221, on which earher decision C525) § 247 LAW OF WATER EIGHTS. [Ch. 14 pears to me impossible to say that a mode of enjoyment of land on the bank of a navigable river, which is thus valuable, and as to which a land-owner can thus protect himself against disturbance, is otherwise than a right or claim to which the owner of land on the bank of a river is by law entitled within the meaning of such a saving clause as that which I have read. ... A riparian owner on a navigable river has, of course, superadded to his riparian rights the right of navigation over every part of the river, and on the other hand his riparian rights must be controlled in this respect, that whereas, in a non-navigable river, all the riparian owners might combine to divert, pollute, or diminish the stream, in a navigable river, the public right of navigation would inter- vene and would prevent this being done. But the doctrine would be a serious and alarming one, that a riparian owner on a public river, and even on a tidal public river, had none of the ordinary rights of a riparian owner, as such, to preserve the stream in its natural condition for all the usual purposes of the land, but that he must stand upon his right as one of the public to complain only of a nuisance or an interruption to the navigation. ... I cannot enter- tain any doubt that the riparian owner on a navigable river. in addition to the right connected with navigation, to which he is entitled as one of the public, retains his rigliTs, as an ordinary riparian owner, underlying and controlled by, but not extinguished by, the public right of navigation." In New York, where the doctrine which we have de- scribed as a "legal heresy" first originated, the authority of the Gould Case was frequently questioned, and its cor- rectness was never fully conceded by the courts or the legal profession. Still it continued to stand as the law of the state, until the consideration of cases involving the rights of property owners on public streets as against the (526) Ch. 14] LITTOEAL EIGHTS. § 247 elevated railroads, and the recognition of the truth that streets and navigable rivers are equally public highways, and if the owner abutting on one has a right of access thereto so also has an owner abutting on the other, fur- nished an occasion for its complete and final overthrow. In 1889, a case arose in which the court of appeals ruled that the statute which authorized the grant of submoi-ped lauds only to the proprietors of the adjacent uplands aiudunted to the recognition of a right in such proprietors to have access to the water from their own lands."' JjUT, here the Gould Case w^as distinguished as inapplicable, the only question for determination being as to whether or not the plaintiffs were such "adjacent proprietors" ' at the time of the grant to them. Afterwards, another case came before the court, between the same parties,''^ and on the same facts. The decision was the same. The court stated the two propositions on which the defendant's case was based, the second being "that an upland owner has no right of way to the river as against one acting under state authority." And it was said: "As to the second proposition, the case of Gould v. E. Co., 6 N. Y. 522, is cited. If that decision deserves to be followed to its full extent, it has no application to the present case." A third time the same case was brought before the court,'^'' and here at last, as might have been predicted, the Gould Case was definitely overruled. It was herein remarked: "It may be observed that since the decision of the Gould. Case, in 1852, this question, and questions of a kindred nature, ha,ve been elaborately examined, discussed, and settled in this coui't, in our highest federal tribunal, in the court of '" Rumsey v. New York & N. ™ 125 N. Y. 681, 25 N. E. Rep. B. R. Co., 114 N. Y. 423, 21 1080. N. E. Rep. 1066. "'133 N. Y. 79, 30 N. E. Rep. G54. (627) § 247 LAW OF WATER EIGHTS. [Ch. 14 last resort in England, and in the highest courts of several of our sister states. The doctrine of that case has been repudiated or ignored in these decisions, and the rights of proprietors of lands upon rivers and public highways determined upon principles more in accord with reason and justice. The long line of decisions in this court, from the Story Case, 90 N. Y. 122, to the Kane Case, 125 N. Y. 164, 26 N. E. Eep. 278, hold that an owner of land abutting upon a public street has a property right in such street for the purposes of access, light, and air, and that the state has no power to grant to a railroad the right to oc- cupy the street, when such occupation injuriously affects the enjoyment, by the property owner, of such rights, except by the exercise of the power of eminent domain; and when a street is thus used by the railroad, without condemna- tion proceedings or a grant from the property owner, it is responsible to him for any damages resulting therefrom. Unless there is some distinction to be made between the rights which pertain to an owner of land upon a public river and one upon a public street, which is not perceived, then the principles sanctioned by this court in these cases virtually overrule the Gould Case, as they are apparently irreconcilable." The learned court then proceeded to advCT't, with approbation, to the decisions in Yates v. Milwaukee,''® the Duke of Buccleuch's case,''^ and various other decisions holding the opposite view from that originally advocated in New York, and concluded as follows: "It must now, we think, be regarded as the law in this state that an owner of land on a public river is entitled to such damages as he may have siistained as against a railroad company that con- structs its road across his water front, and deprives him "10 Wall. 497. "L. R. 5 H. L. 418. (628) Ch. 14] LITTOEAL EIGHTS. § 247 of access to the navigable part of the stream, unless the owner has granted the right, or it has been obtained by the power of eminent domain. This principle cannot, of course, be extended so as to interfere with the right of the state to improve the navigation of the river, or with the power of congress to regulate commerce, under the provisions of the federal constitution." In many other states the same doctrine has been rec- ognized, early or late, and is now fully established. Thus in Ehode Island, the rule is that a riparian owner on navigable water has a right of access to the water, of which he cannot lawfully be deprived; and any one doing any- thing in front of the land of such owner which makes it less accessible, is liable in damages therefor.^o In CJon- necticut, the cases very clearly recognize a right, vested in a proprietor bounding on the sea, to have free access to the deep water, and also to extend his lands into the water by means of wharves.^i In Pennsylvania, the state may grant authority to make erections on the shore of navigable waters, between high and low water mark, and it may grant such authority to persons other than the riparian owner, so long as the latter "is not thereby de- prived of access to and use of the river as a public high- way, which is implied, if not expressed, in the grant to him of land bounded on the stream."^^ j^ North Carolina, it is said that a riparian or littoral owner has, at common lajw, a qualified interest in the water frontage belonging by nature to his land, and the right to construct thereon wharves, piers, or landings.** In Arkansas, *■ Clark v. Peckham, 10 R. I. 25 Conn. 346; Prior v. Swartz, 35; Providence Steam Engine 62 Conn. 132, 25 Atl. Rep. 398. Co. V. Providence & S. Steam- " Tinicum Fishing Co. v. Car- ship Co., 12 R. I. 348. ter, 61 Pa. St. 21. '^ Mather v. Chapman, 40 ""Bond v. Wool, 107 N. Car. Conn. 382; Simons v. French, 139, 12 S. E. Rep. 281. LAW w. E.— 34 (629) § 247 LAW OF WATEE EIGHTS. [Ch. 14 riparian owners are entitled to recover the damages caused to their riparian rights by the wrongful construction of a railroad's tracks and landings along the margin and upon the banks of the stream.^* In Missouri, a municipal cor- poration which projects a dike into a navigable stream, by which the water is diverted from the front of the riparian owner's land, is liable to him for the damage oc- casioned thereby .^5 In AVisconsin, it is held that a riparian proprietor bounding on navigable water has, as such, the exclusive right of access to and from the water in front of his land, and of building wharves and piers in aid of navigation, though not so as to interfere with the public easement; and these private rights grow out of his title to the land and have a pecuniary value, and their destruc- tion or material abridgment is in general an injury enti- tling him to redress.*^ In Minnesota, "it is the well settled doctrine that the riparian owner has the fee to low water mark. But while he only has the fee to low water mark, he has certain riparian rights incident to the ownership of real estate bordering upon a navigable stream. Among these are the right to enjoy free communication between his abutting premisses and the navigable channel of the river, to buUd and maintain suitable landings, piers, and wharves, on and in front of his land, and to extend the same therefrom into the river to the point of navigability, even beyond low water mark, and to this extent exclusively to occupy for such and like purposes the bed of the stream, subordinate only to the paramount public right of naviga- tion. These riparian rights are property, and cannot " Organ v. Memphis & L. R. " Delaplaine v. Chicago & N. R. Co., 51 Ark. 235, 11 S. W. W. R. Co., 42 Wis. 214; Chap- Rep. 96. man v. Oshkosh & Miss. Riv. *' Meyers v. St. Louis, 8 Mo. R. Co., 33 Wis. 629; Holton v. App. 266; affirmed, 82 Mo. 367. Milwaukee, 31 Wis. 27. (630) Ch. 14] LITTOEAL EIGHTS. § 248 be taken away without paying just compensation there- for."87 Finally, the most approved text-writers agree in the opinion that the doctrine settled by the cases cited in this section is the only true and just doctrine on this subject. The theory that denies to the littoral owner the right of access, as a valuable property right, is character- ized by them as founded on a "narrow and technical course of reasoning," as "of at least doubtful authority," and as open to very serious objection on grounds of constitutional law.8* § 248. Same; cases in the Pacific states. In California, it does not appear that the precise question of a littoral owner's right of access to the water has ever been distinctly passed upon. But in view of the attitude assumed by its courts with reference to the right of such an owner to construct wharves, their ruling on the former question, should it ever fairly arise, may be foreshadowed as probably contrary to the weight of authority in the eastern states. It is not very easy to construe together the various California decisions on the subject of wharflng rights, or to say how far they modify or limit each other. But the general result of these decisions appears to be as follows: (1) There is no common law right in the littoral owner to wharf out against his own land, but he may do so under a license from the state, and such license has been granted with respect to certain parts of the coast. (2) If a wharf is erected in the tide waters and upon soil " UBion Depot Co. v. Bnms- hall, 43 Minn. 95, 44 N. W. Rep. wick, 31 Minn. 297, 17 N. W. 1141. Rep. 626; Carli v. Stillwater =«Cooley, Const. lim. 544, Street Ry. Co., 28 JItnn. 373, note 1; 1 DUlon, Munic. Corp. 10 N. W. Rep. 205; Brisbine v. § 106; 3 Washb. Real Prop. 417; St. Paul & S. 0. R. Co., 23 Lewis, Em. Dom. § 78; Gould, Minn. 114; Miller v. Menden- Waters, § 150. (531) § 248 LITTORAL EIGHTS. Ch. 14] belonging to the state, without such license, it will belong to the state, and possession of the land and wharf, if with- held, may be recovered by the state in ejectment. But it does not follow that such wharf is a public nuisance, from the merely negative reason that the state has not licensed it; that is a question of fact. (3) If a riparian owner desires to wharf out and is unlawfully obstructed, he may sue for damages, or he may have the obstruction abated, but he cannot maintain ejectment. (4) If such owner refuses or omits to construct wharves or landings, which are necessary for commerce and navigation, the state may authorize a stranger to construct them in front of his land.''^ But it may be suggested that these doctrines are probably modified, to a considerable extent, by the later case of Shirley v. Bishop.^* In Oregon, the courts were at first disposed to follow the true rule without hesitation, but afterwards abandoned it in favor of the moribund doctrine of the early New York cases. In Wilson v. Welch'^i it was said: "A shore- owner upon tide-waters, or upon a navigable stream, pos- sesses rights which of late are conceded to be property. They are not rights, ajs has often been supposed, that were derived from the state, though held and enjoyed in sub- ordination to the rights of the public. The embarrassing feature of this subject has arisen out of a misunderstanding of the nature of the state's ownership of land between high and low water upon navigable streams. It has been spoken of as an ownership in fee, and an erroneous im- pression has been conveyed. The state does own the channel of the navigable rivers within its boundaries, and "° See People v. Davidson, 30 Polit Code Cal. §§ 2906, 2917. Cal. 379; Dana v. Jackson ''»67 Cal. 543, 8 Pac. Rep. 82. Street Wharf Co., 31 Cal. 118; "12 Oreg. 353, 7 Pac. Hep. Cobum v. Ames, 52 Cal. 385; 341. (532) €h. 14] LITTORAL EIGHTS. § 248 the shores of its bays, harbors, and inlets between high and low water, but its ownership is a trust for the public. It has no such proprietorship in them as it has in its property and public buildings.^^ It cannot sell them so as to deprive the public of their enjoyment; nor can it take away riparian rights except for public use, and by giving just compensation. The New York courts have taken a different view, and whicih has been followed by an Iowa decision; but it is repudiated by the federal and most of the state tribunals."^^ And in a later case it was fairly decided that an owner of land bounded by navigable waters possesses important riparian rights, by virtue of such ownership, including the right to buUd wharves out to such a depth of water as wUl enable vessels navigating it to touch at such wharves and receive and discharge freight; and he has the right to use the shore in front of his land for any purpose not inconsistent with the rights of the public.^* But then, after the decision in Eisenbach V. Hatfield, in Washington, which we shall presently notice, the Oregon court, repudiating its former rulings, decided that, as the title to land over which the tide ebbs and flows is in the state, a conveyance thereof vests the abso- lute title in the grantee; whence it follows, of course, that the rights of the littoral owner may be entirely disre- garded. In this case, the court reached the conclusion that *'an upland owner on tidal waters has no rights, as against the state or its grantees, to extend wharves in front of his land, or to any private or exclusive rights whatever in the tide-lands, except as he has derived them from the statute."95 °= Supra, § 239. Oreg. 455, 11 Pac. Rep. 236. °'Per Thayer, J. And the "Parker v. "^Vest Coast Pack- same judge reiterated these doc- ing Co., 17 Oreg. 510, 21 Pac. trines, as his individual opin- Rep. 822. ion, In the subsequent case of °° Bowlby v. Shlvely, (Ureg.) McCann v. Oregon Ry. Co., 13 30 Pac. Rep. 15i. (533) § 248 LAW OF WATER EIGHTS. [Ch. 14 In the state of Washington, when this question was first fairly presented to the supreme court, in an impor- tant case which was fully argued and fully considered, it was held that, the title to the tide-lands being in the state, a riparian owner could claim no easement in them, nor im- pose any servitude upon them, without the consent of the legislature, and, as a consequence, that there was no foun- dation for the riparian owner's claim of rights of access, wharflng, ferriage, accretion, etc.*® It cannot be said that the opinion in this case is very satisfactory, either in re- spect to its line of argument or to its treatment of the authorities. But the same remark does not apply to the remarkably able and vigorous dissenting opinion of Mr. Justice Stiles. Herein the true doctrine is vindicated with much learning and sound reasoning. And in particu- lar we deem it important to call the reader's attention to the following })assages, in which the ultimate and irrefutable foundatir>a of the riparian owner's right is very clearly set forth. Speaking of the conclusion reached by the majority of the court, Judge Stiles observes: "To my mind, in reaching its conclusion, it has completely ignored the prime common source of the state's title and of the riparian claim to access, which is that the naviga- ble waters are natural public highways. Yet, as com- pared with this matter of substance, all questions of recla- mation, of accretion, and reliction, of fishery and seaweed, pale and fade into insignificance. It is as highways that the sovereignties of the world, and particularly our own, have any jurisdiction over the navigable waters, differing in any respect from their jurisdiction over the fast land, and their different jurisdiction is of precisely the same char- acter as the jurisdiction over highways upon the land. Under the constitution of the United States, congress ""Elsenbach v. Hatfield, 2 Wash. St. 236, 26 Pac. Rep. 539. (634) Ch. 14] LITTORAL EIGHTS. § 248 has the power to regulate commerce between the states and with foreign nations; but, while under this power it has never yet undertaken to dictate concerning the man- ner of construction of any land highway not undertaken by itself, it has gone upon the water highways, both tide and fresh, and assumed the broadest control, deepening channels, changing harbors, building dikes, and regulat- ing the building of bridges, in all of which it has been sus- tained by the supreme court of the United States, solely because the waters are natural highways. But it is at this point that the opponents of the riparian right of access make their strong stand, and where the forces of the parties for and against meet in final conflict; and that the court did not see fit to allude to this phase of the question is greatly to be regretted. For the real question involved here is not whether the owner of upland bordering upon the sea has any adverse claim to the soil under the water, as against the state, but whether, being upon his own fast land, he can step therefrom upon the public high- way, and there, as a member of the public, enjoy the public right of passage. "In the case at bar, the appellants, possessing them- selves of the exact line which borders the land and the highway, say to the land-owner : Ton can reach the water by yonder street, or, if you will wait until we have built a wharf here, you can pass over it at the same rate of toll as any other person. In the mean time you cannot pass at all.' The appellants, however, in order to sustain their own position, are forced to maintain the very doctrine they fight against, — ^that of the right of access. They op- pose the upland owner's access, but, having planted them- selves in the highway, they propose to build wharves and maintain access themselves. By their improvements they propose to turn the shallows into land, and then will claim (535) § 248 LAW OF WATER RIGHTS. [Ch. 14 that access to the water is necessary to its enjoyineiit. But here is land formed by nature, that since time was had no other outlet than over the sea, put there by nature as a highway. The land passed from the sovereign owner, by right of discovery the United States, by solemn patent, to the appellee, who is now told that the highway he relied upon is forever closed, without his consent and without any compensation for his loss. Has he been dajn- aged? 'Actually; oh, yes,' will be admitted by his bitterest opponent; 'but not in law, because the title to the land beneath this water is in the state.' But wherein does the nature of the state's title to soil under navigable waters differ from that of its title to soil of a land highway? No writer or court that I have been able to consult points out the distinction, if there be one, except the subjection of the state's title in the submerged soil to the constitutional powers of congress. If the purposes to be subserved by the state's holding the two titles are identical, viz., the per- petuation of highways, then it seems extremely difficult to argue on any secure or even plausible ground that the owner of land abutting on the sea has not the same right of access to and continuance of his highway as his neigh- bor who abuts upon a land highway. Certainly it is not necessary to argue what the rights of an abutter on a road or street are. The state, or its hand-maidens, the county, township, or municipal corporation, regulate and improve the way, but they cannot destroy it, or injure the abutter's direct access to it from every part of his front- age, without compensation. A late writer on this subject says: '"Once a highway, always a highway," is an old max- im of the common law, to which we have often referred, and so far as concerns the rights of abutters, or others occupying a simUar position, who have lawfully and in (536) Ch. 14] LITTORAL RIGHTS. § 248 good faith invested or obtained property interests, in the just expectation of the continued existence of the highway, the maxim still holds good. Not even the legislature can take away such rights without compensation.'"*'^ Later decisions of this court have not in any degree departed from the doctrine of the Eisenbach Case, but on the contrary have confirmed the rulings there made. In one of the late cases, it is held that a littoral land-owner cannot assert title to land lying below the line of ordinary high tide, as against the state, in the absence of a license from the state; that the provision of the state constitu- tion for the establishment of harbor lines did not recognize any rights in riparian owners to tide-lands, unless under licenses from the state; and that where a riparian pro- prietor has no right or title to tide-lands, merely owning the wharf thereon, the inclusion of such lands within the harbor lines is not such an interference with the owner- ship or possession of the wharf as will authorize the issue of a writ of prohibition to the harbor line commissioners.^^ This case went, on error, to the supreme court of the United States.^* But that court declined to pass upon the merits of the questions involved, on the ground that no federal question was so raised upon the record as to justify its interposition. Mr. Chief Justice Fuller observed, inter alia: "We cannot accede to the position that the action of the harbor line commissioners in locating the harbor line and filing the plat would take any of relator's property, "Citing Elliot, Roads & S. p. •» State ex rel. Yesler v. 658. The principle is then still Prosser, 2 Wash. St. 530, 27 further illustrated by the cases Pac. Rep. 550. of Abendroth v. R. Co., (N. ="> Yesler v. Board of Harbor Y.) 25 N. E. Rep. 49G; Story's Line Commissioners, 13 Sup. Case, 90 N. Y. 122; and Lahr v. Ot. Rep. 190. R. Co., 104 N. Y. 268, 10 N. E. Rep. 528. (537) § 248 LAW OF WATER BIGHTS. [Ch. 14 or so injuriously afPeot it as to come witMn the constitu- tional inhibition. Tlie filing of maps of definite loca,tion, in the exercise of the power of eminent domain, furnishes no analogy. The design of the state law is to prohibit the en- croachment by private individuals and corporations on navigable waters, and to secure a uniform water front; and it does not appear from relator's application that the defendants have threatened in any manner to disturb him in his possession, nor that that which is proposed to be done tends to produce that efilect. Whatever his rights, they re- m'ained the same after as before, and the proceedings, as the supreme court said, could not operate to constitute a cloud upon them from the standpoint of relator himself, for, if nothing further could lawfully be done in the absence of legislation for his protection, that wa;s apparent. The consequences which he deprecated were too remote to form the basis of decision. Whatever private rights or property he has by virtue of the territorial act of 1854 or of the state act of 1890, whatever his right of access to navigable waters or to construct a wharf from his own land, we do not see that he would be deprived of any of them by the action he has sought to prohibit. It may be true that the width of the reserved strip as delineated on the map brings the inner line across the outer end of relator's wharf, in respect of which, as if it were the harbor line, he complains that his right under the act of March 26, 1890, to purchase the ground occupied by his improvements, would be interfered with; but the construction of that act is for the state court to determine, and the averments of the affidavit and alternative writ make no issue upon it, as affected by the constitutional provision."^*'*' '"See, also. State ex rel. Columbia & P. S. B. Co. v. Prosser, (Wasli.) 30 Pac. Rep. 734. C538) Ch. 14] LITTORAL EIGHTS. § 249 § 249. Same; conclusions from the authorities. The foregoing review of the authorities leads us to the conclusion that the doctrine which denies to the littoral owner, as such, a Taluable property right, including the privilege of free access from his land to the water, is con- trary alike to authority, sound reason, justice, and the set- tled principles of constitutional law. First, it is contrary to authority. We have seen that it was first advanced by the court in New York in the Gould Case, and was thence adopted in three other states. But it was repeatedly questioned and criticised, and its author- ity diminished from year to year. In the state of its origia it was regarded as an iacubus, and became so in- tolerable that it was finally necessary to destroy it. And now at last aU the cases which had embraced this doctrine (with the exception of the late decisions in Oregon and Washington) have been either overruled, reversed, repudi- ated, counteracted by legislative interference, or stand dis- credited by the demolition of the authorities on which they had relied. On the other hand, the true doctrine, as an- nounced by the supreme court of the United States and the court of last resort in England, has constantly gained wider and wider recognition and has become more and more firmly Implanted in our jurisprudence. The Itae of cases which supports it may now be described, in the phrase once used by a learned judge, as "not a current, but a torrent, of judicial decisions." Secondly, the doctrine denying the riparian owner's right of acce^ is contrary to sound legal reason. This be- comes obvious the moment we recognize the truth that public waters, like public streets, are public highways, and that upon this fact alone must ultimately rest both the state's title and the riparian owner's rights. This consid- eration was so fully worked out in the opinion of Judge (539) § 249 LAW OF WATER EIGHTS. [Ch. 14 Stiles, quoted in the preceding section, as to require no further elucidation here. Thirdly, this doctrine is contrary to__ justice. This has always been perceived, and often urged, as one of the most serious objections to it, and was one of the principal reasons for the final overthrow of the cases which had first advo- cated it. The common sentiment of men recognizes the decided natural advantages of a proprietor bounding on navigable water, and the common sense of fairness revolts against his being deprived of these advantages arbitrarily or without compensation or equivalent. Fourthly, the doctrine is contrary to the established prin- ciples of constitutional law. If there were no other argu- ment to prove this thesis, it would be sufficiently demon- strated by the fact that the very states which have adopted the doctrine in question have passed statutes according to littoral owners a preferential right to purchase the ad- joining tide-lands. Now these statutes must necessarily amount to a recognition of the existence of superior rights and privileges in such owners. For if it were otherwise, their partiality and favoritism would be so palpable and grass as to render them utterly indefensible. But the moment the state thus recognizes such rights, — suflQcient to justify it in thus preferring such owners, — it wUl be impossible to escape the conclusion that if such rights are valuable for one purpose they are valuable for all purposes, and that the destruction or impairment of them, unless compen- sation be duly made, is forbidden by the constitution. In view of all the foregoing decisions, it is a matter for much regret that the courts of Oregon and Washington should have committed themselves to the support of a doctrine so false and so untenable. But unless these de- cisions are speedily overruled, they will crystallize into an inflexible rule of property, to the discredit of their juris- prudence and the perpetuation of injustice. (5i0) Ch. 14] LITTORAL RIGHTS. § 250 § 250. Right to build -wrharves and landings. According to the general consensus of judicial opinion in this country, the littoral owner's right of access from his land to the water involves the right to provide an available means of access to his land from the navigable water. And it is held that it is lawful for him to construct a wharf, pier, or landing in front of his land, for his own use or the use of the public, extending the same as far out as may be necessary to enable vessels to reach it, provided that such structures do not in any way impede or interfere witli the public right of navigation, and provided further that the same conform to the regulations, if any, which the state or municipal authorities may see fit to impose in the interests of commerce and navigaition.!"! In the state of California, however, this doctrine is subject to consider- able modification, as may be seen from the course of judi- cial decisions there rendered with reference to wharflng rights-io^ Now it is well settled that the littoral owner's actual title extends no further than to ordinary high water mark, •"Dutton V. Strong, 1 Black, Swartz, 62 Conn. 132, 25 Atl. (U. S.) 23; RaUroad Co. v. Rep. 398; Bond v. Wool, 107 Scliurmeir, 7 Wall. 272; Yates N. Car. 139, 12 S. E. Rep. 281; V. Milwaukee, 10 Wall. 497; Union Depot Co. v. Brunswick, Potomac Steamboat Co. v. Up- 31 Minn. 297, 17 N. W. Rep. per Pot. S. Co., 109 U. S. 672, 626; Miller v. Mendenhall, 43 3 Sup. Ct. Rep. 445, and 4 Sup. Minn. 95, 44 N. W. Rep. 1141; Ct. Rep. 15; St. Louis v. Rutz, Delaplaine v. Chicago & N. W. 138 U. S. 226, 11 Sup. Ct. Rep. R. Co., 42 Wis. 214; Parker v. 337; Tuck v. Olds, 29 Fed. Rep. West Coast Packing Co., 17 738; State v. Illinios Cent. R. Oreg. 510, 21 Pac. Rep. 822. Co., 33 Fed. Rep. 730; Case v. "= See People v. Davidson, 30 Toftus, 39 Fed. Rep. 730; Prov- Cal. 379; Dana v. .Tackson idence Steam Engine Co. v. Street Wharf Co., 31 Cal. 118; Providence & S. Steamship Co., Coburn v. Ames, 52 Cal. 385; 12 R. I. 348; Simons v. French, Shirley v. Bishop, 67 Cal. 543,. 25 Conn. 346; Mather v. Chap- 8 Pac. Rep. 82. man, 40 Conn. 382; Prior v. (541) § 250 LAW OF WATER EIGHTS. [Cll. 14 and that if he possesses a qualified interest in the shore, this will embrace no more land than that which lies above low water mark. Yet the oases just cited show that he is allowed to buUd his wharf or pier out to the point of navigability, which will usually be beyond low water mark, thus covering a portion of the soil which belongs to the state. It has been suggested, in explanation of this, that the right to wharf may be derived by strict analogy from the abutter's right in connection with a land highway. For as it is admitted to be the right of an abutter, where the improved road- way covers but a narrow strip in the mid- dle of the way, to build for himself a convenient means to reach the travelled track over the intervening land, so also, on the waiter-way, the navigable part of the water is the actual way, to which the wharf is the reasonable means of aocess.i''^ But this is not altogether satisfactory, because it must be confessed that it was otherwise at common law. By the English law, the private owner has no right to extend his wharf beyond low water mark with- out license from the crown. If he does so, and the struc- ture amounts to an obstruction of navigation, it is a nuisance. And even if the wharf does not in any manner impede or impair the public right of navigation, still it is liable to be abated or demolished by royal authority, as be- ing an encroachment or trespass upon the public domain, called a "purpresture." ^"^ Now, in this country, the state is equally the owner of the shores of navigable water®. Hence it appears that the only solid foundation for the littoral owner's right to wharf out to the line of navigability must be sought In an implied license from the state, author- ""Per StUes, J., in Eisenbacli 198; Gould, Waters, §§ 21, 93, V. Hatfield, 2 Wash. St. 236, 2*3 107; Attorney General v. Evart Pac. Rep. 539. Booming Co., 34 Mich. 462. "" See AngeU, Tide- Waters, (542) Ch. 14] LITTORAL BIGHTS. § 250 izing him to do so, which may easily be inferred from the general policy and duty of the state to encouriage and pro- mote navigation and commerce, and which, for that yery reason, would always be subject to the proviso that it must not be so exercised as to interfere with the equal rights of others or with the general rights of the public in the use of the waters for those purposes. But it must be added that, on familiar principles of law, such an implied license, when once acted on, would become irrevocable. So that it would not be consistent with the constitutioooal rights of the owner to destroy his wharf, or materially im- pair its value, even though built on a portion of the public domain, except by due process of law and upon compensa- tion made. But the erection of a wharf below low water mark, with- out express license, gives the builder no possession or color of title beyond the limits of the land under water actually covered by the wharf, and does not draw after it any ex- clusive right to the use of the open space by the side of it, for the purposes of a dock by way of easement, as appur- tenant to the wharf.i"" The owner, if he chooses, may in- tend and reserve the wharf for his own private use. And when this is the case, and he has never held it out as in- tended for the use of others, no implication arises, if a party without leave moors his vessel thereto, that he has done so with the owner's consent. Where a vessel is thus wrongfully attached to a pier without the consent of the owner, no peril of the vessel, however great, imposes any obligation on such owner to allow it to remain, and haz- ard his own property to save that of a trespasser. lo^ But the grant of a right of wharfage at a wharf adjoining land ""Gray v. Bartlett, 20 Pick. 186. See, also, Bond v. Wool, 107 N. Car. 139, 12 S. E. Rep. 281. "•Dutton V. Strong, 1 Black, (U. S.) 23. (543) § 251 LAW OF WATER EIGHTS. [Ch. 14 under water belonging to the grantor, carries with, it, as a necessary incident and appurtenance, and in legal effect as part of tlie grant, a right of way or access to the wharf for vessels over the grantor's adjacent land under water.^"^ In Oregon, a statute has been enacted which provides that "the owner of any land in this state lying upon any navigable stream or other lilte water, and within the corporate limits of any incorporated town therein, is here- by authorized to construct a wharf or wharves upon the same, and extend such wharf or wharves into such stream or other like water beyond low water mark so far as may be necessary and convenient for the use and accom- modation of any ships or other boats or vessels that may or can navigate such stream or other like water," power being reserved to the corporate authorities of the town, by ordinance or otherwise, to regulate the exercise of this privilege.i''8 This statute, however — so it is held — is not a grant of the tide-land; and where the license thereby given is not exercised before a grant of the tide-land, the license does not continue in any such sense as to authorize an interference with the rights of the grantee of such land.ioa § 251. Establishment of harbor lines. It is undoubtedly within the power of the state legis- lature to prescribe the lines, in its harbors, beyond which wharves, piers, docks, and other structures (other than those erected under the express or implied authority of the general government) may not be built by riparian '" Langdon v. Mayor of New 30 Pac. Rep. 154. And see York, 93 N. Y. 129. Parker v. West Coast Packing '™2 Hill's Ann. Laws Oreg. Co., 17 Oreg. 510, 21 Pac. Rep. §§ 4227, 4228. 822; Parker v. Taylor, 7 Oreg ""Bowlby V. Shively, (Ureg.) 435. (544) Ch. 14] LITTOEA.L RIGHTS. § 252 owners in the navigable waters of such harbors.i^" ipke constitution of the state of Washington has made provision for the appointment of a commission to establish harbor lines in the navigable waters of all harbors in the state, within or in front of the corporate limits of a city, or with- in a mile thereof, and for the leasing of the right to buUd and maintain wharves, docks, and other structures. And the supreme court of that state has held that, under these provisions, a littoral owner has no authority, as such, to extend wharves in front of his land below high water marli; and that the constitution does not recognize any rights in such littoral owners to tide-lands, unless under licenses from the state, and the commission may include such lands within the harbor lines.^^^ But, as we have endeavored to show in a preceding sectional ^ there is very serious reason to doubt the correctness of these rulings, in so far as they refuse to recognize the rights attaching to riparian ownership as such. And in Minnesota, on the other hand, it is held that the establishment by legis- lative authority of a harbor or dock line in navigable waters is an implied grant to the owners of the adjacent upland of the right to occupy the land between low water mark and such line, title to which is in the state, and to build on or flU up the siame so as to extend the upland to such dock-line.ii* § 253. Eight to accretions. "The riile governing additions made to land bounded by a river, lake, or sea, has been much discussed and va- "" State V. Illinois Cent. E. 539; State v. Prosscr, 2 Wash. Co., 33 Fed. Rep. 730. St. 530, 27 Pac. Rep. 550. >" Eisenbach v. HatfieM, 2 »^ Supra, §§ 247-249. Wash. St. 236, 26 Pac. Rep. '"Miller v. MendenliaU, 43 Minn. 95, 44 N. W. Rep. 1141, LAW w. E. — 35 (545) § 252 LAW OF WATER RIGHTS. [Ch. 14 riously settled by usage and by positive law. Almost all jurists and legislators, liowever, both, ancient and mod- ern, have agreed that the owner of the land thus bounded is entitled to these additions. By some, the rule has been vindicated on the principle of natural justice, that he who sustains th.e burden of losses and of repairs, imposed by the contiguity of waters, ought to receive whatever benefits they may bring by accretion; by others, it is derived from the principle of public policy, that it is the interest of tiie community that all land should have an owner, and most convenient that iiisensible additions to the sh.ore should follow the title to the shore itself.''^^* And the same rule applies whether the accretion is attributable purely to natural causes or to the wrongful deposit, by human agency, of soil in the ocean or other public waters in front of the upland. Thus, where one of two coterminous proprietors of land bounded on a oove, by filling in, makes new land, extending into the cove opposite the premises of both, the new-made land should be divided between them as if it were natural alluvion.ii^ And in one case, where a pier was unlawfully built in front of a littoral owner's property, shutting off access to his wharf, it was held that the pier was to be treated as an accretion and became the property of the shore-owner.118 But in California it is said that the doctrine of accretion does not apply to a marine in- crease of alluvion caused by a purpresture by the erection of a wharf in a public harbor.^i^ A party who sells the entire estate owned by him up to the line of a public road or street bordering a river, and beyond which no property susceptible of private ownership exists at the date of the "* Bants V. Ogden, 2 Wall. 57. "" Steers v. Brooklyn, 101 N. "•Watson v. Home, 64 N. H. Y. 51, 4 N. E. Rep. 7. 416, 13 Atl. Rep. 789. "'Dana v. Jackson Street Wharf Co., 31 Cal. 118. (546) Ch. 14] LITTORAL EIGHTS. § 253 sale, retains no estate to which the accessory right to future alluvion could attach.i^^ As a coroUary to the doctrine of accretion we have the rule that the proprietor of land bounding on the sea has the right to sea-weed cast by extraordinary floods above ordinary high water mark. As owner of the soil he is constructively the first occu- pant of it. But sea-weed cast and left upon the shore, that is, between ordinary high and low water mark, belongs to tlie public, and may lawfully be appropriated by the first occupant.ii* § 253. Eights of fishing. Since the beds of public navigable rivers and the sea- shore below high water mark, together with all bays, ports, and estuaries, belong to the people in their sov- ereign capacity, for the common use of all the inhabitants, it follows that the right of fishing in such waters is free and open to all 'the citizens of the state, except in so far as the same may have been restricted by legislative grants of exclusive privileges.i^" In reference to the land underlying such navigable waters, it has been said: "This soil is held by the state, not only subject to, but in some sense in trust for, the enjoyment of certain public rights, among which is the common liberty of taking fish, as well shell-fish as floating fish. The state holds the propriety of this soil for the conservation of the public rights of fishery thereon, and may regulate the modes of that en- joyment so as to prevent the destruction of the fishery. In other words, it may forbid all such acts as would render the public right less valuable or destroy it altogether. "' Delachaise v. Maginnis, (La.) "" Arnold v. Mundy, 6 N. J. 11 South. Kep. 715. Law, 1, 10 Am. Dec. 356; Moul- "° Mather v. Chapman, 40 ton v. Libbey, 37 Me. 472, 59 Conn. 382. Am. Dec. 57. (547) § 254 LAW OP WATER EIGHTS. [Ch. 14 This power results from the ownership of the soU, from the legislative jurisdiction of the state over it, and from its duty to preserve unimpaired those public uses for which the soil is held-''^^^ Hence the riparian or littoral owner,, merely as such, has not an exclusive right of fishing in the waters adjacent to his premises, nor any right, in that respect, other than what he enjoys as a member of the public. And while the owner of a beach has the right of drawing his seine to that beach, in exclusion of others,. yet he cannot acquire the sole right of fishing in a defined portion of the waters of a navigable sound independently of all others.122 j^^it the public rights, in this as in all other respects, must be exercised with a due regard to the rights of the riparian owner and without injui-y or tres- passing upon his property. The public, for example, have no right to land fish upon private property above high water mark.i^s Nor to erect huts on the shore for pur- poses connected with their fishing.i^* It has also been held that one who plants oysters in the bed of a navigable river has no such property therein that he can maintain trespass against a person taking them away, although he owns the adjacent shore.i^^ § 254. Severance of riparian rights. If the rights of a riparian or littoral proprietor, as such, are recognized as substantial property rights, it becomes- important to determine whether these rights are sepo- "'Smitli V. Maryland, 18 How. '"* Cortelyou v. Van Brundt, 71. 2 Jolms. 357. ^ Skinner v. Hettrick, 73 N. "= Arnold v. Mundy, 6 N. J. Car. 53; Hettrick v. Page, 82 Law, 1. See ..estfall v. Van N. Car. 65. Anker, 12 Johns. 425; Freary •^Bickel v. Polk, 5 Harr. v. Cooke, 14 Mass. 488. Com- (Del.) 325. pare Pitkhi v. Olmstead, 1 Koot, 217. (548) Ch. 14] . LlTTOEAIi EIGHTS. § 254 rable from the ownership of the upland or so far appurte- nant to it as to be inseparably annexed thereto. In Minne- sota, where this question has been much mooted, it was at first held that riparian rights belong to and are incident to the abutting shore, and cannot be severed or transferred apart from the shore, so as to be rights in gross.^^^ But this decision was afterwards overruled. The grounds assigned for departing from the former decision rested mainly upon the consideration that the riparian proprie- tor has the right to improve and i>eclaim the land out to the point of navigability, and that this right is recognized as a valuable property right; that it is not necessarily dependent on the ownership of the abutting land; and that it is for the interest of the public that such right should be exercised.^^'' From the opinon on reargument, in the case cited, we quote the following summary of the reasons which induced the court to take its present posi- tion: "We have thus considered that the riparian pro- prietor has the exclusive rights — absolute as respects every one but the state, and limited only by the public interests of the state for purposes connected with navigation — to improve, reclaim, and occupy the submerged land, out to the point of navigability, for any private purpose, as he might do if it were his separate estate; that this right, even though it may never have been exercised, is recog- nized and protected by the law as property, of which he cannot be deprived even by the state without just compen- sation; that the enjoyment of the right — the use of the premises — need not be associated with the use of the up- land; that it is for the interest of the state that such '^"Lake Superior Land Co. v. R. Co., 43 Mimi. 104, 42 N. W. Emerson, 38 Minn. 406, 38 N. Rep. 596, and 44 N. W. Rep. W. Rep. 200. 1144. "'Hanford v. St. Paul & D. (549) § 254 LA.W OF WATER RIGHTS. [Ch. 14 waste lands be improved and rendered profitable, while the state is not concerned as to whether the owner of the adjacent upland, or some person to whom he may release his right, makes the improvement and enjoys the private benefit; that the rights of other persons are not involved in the question; that when the land has been reclaimed it may be conveyed, according to most of the authorities, apart from the original upland; and that, according to other authorities, the riparian right may be transferred to and enjoyed by the owner of the next adjacent riparian estate. From these considerations, as well as from the authorities cited bearing directly upon the question, we think that the quality of alienability should be deemed to belong to this kind of property as it does to property in general. The only reason opposed to this is the technical one that the right grows out of, and, until severed, is in- cident to, a riparian estate. We have come to feel that this is unsatisfactory as a reason why such proi)erty should be deemed inseparable from the parent estate and incapable of a separate existence. If the right in question were cre- ated out of, or enjoyed at the expense of, some other estate or property, and were measured and limited by the needs or use peculiar to the riparian estate to which it is annexed, there would be ground for others to urge that the right could not be changed or transferred so as to enlarge the scope of a grant or contract, or so as to prejudice the party complaining. But no such coinsiderations exist. The rights of no one are affected by allowing the riparian owner to convey away this part of his property as he may Ms other property. It is only an abstract question whether the right, originating in custom, and having originally attached as an incident to his riparian lands, may not be sold and conveyed, and be enjoyed by the purchaser. It is for the interest of the riparian owner that he be allowed (550) Ch. 14] LITTOBAL RIGHTS. § 254 to dispose of or use his private property at his own dis- cretion. It is for the interest of the public tliat such prop- erty be subject to purchase and use, where the owner may be incapable of improving it. No one is interested in op- posing such unrestricted alienability and use." And this is now understood to be the settled law of that state.i^® In Connecticut also it is held that the rig'ht enjoyed by the owner of upland adjoining flats on the border of an arm of the sea, over which flats the tide ebbs and flows, of wbarflng out over the flats to the channel of the estu- ary, is not an inseparable incident to the title to the upland. And a conveyance of the upland will not necessarily convey the right of wharfage. And conversely, the right of wharf- age may be conveyed separate and apart from the upland.^^S' And a similar doctrine obtains in Oregon.i^o Xn one of the cases cited it was said: "We are aware that it is a general rule that what is appurtenant to land passes witli it, being an incorporeal hereditament, but the righit to build a wharf on the land of the state below high water is a franchise which attaches to the tide-land, and it is appurtenant to it, rather than to the adjacent land, for it can be severed from the adjacent land and enjoyed with- out it. The legislature has established the right of the adjacent owners to sell the right of wharfing on tlie ad- joining tide-lands, by recognizing such sales and giving the owners thereof the preference to purohase."i^i "=GUbert V. Eldrldge, 47 Steamboat Co. v. Sargent, 30 Minn. 210, 49 N. W. Rep. 679; Conn. 199. Duluth v. Railway Co., (Minn.) 51 ^™ Parker v. Taylor, 7 Oreg. N. W. Rep. 1163; Bradshaw 435; Parker v. Rogers, 8 Oreg, V. Duluth Imperial MUl Co., 183; Parker v. West Coast Pack- (Minn.) 53 N. W. Rep. 1066. Ing Co., 17 Oreg. 510, 21 Pac. »=» Simons v. French, 25 Conn. Rep. 822. 346. See, also, New Haven ^' Parker v. Rogers, supra. (551) § 255 LAW OF WATER EIGHTS. [Ch. 14 § 255. Determination of boundaries as bet-wreen adjoining owners. Wlieii the property of two adjoining owners abuts on shallow water or tide-flats, and the shore-line is concave or otherwise irregular in its contour, it is some- times a matter of difficulty to fix the proper division line between their interests in such flats. According to a late case in Wisconsin, the rule to determine the division line between adjoining holdings in the shallow waters of a navigable bay, of owners of land bordering thereon, and located on a cove, is as follows: (1) Measure the whole ex- tent of the shore line and compute how many rods, yards, or feet each riparian proprietor owns thereon. (2) Divide the navigable water line into as many equal parts as such shore line contains rods, yards, or feet, and then appropriate to each proprietor as many of such parts of such navigable water line as he owns rods, yards, or feet of the shore line. (3) Draw a line from the point of division on the shore line to the point thus determined as the point of division on the navigable water line. Where the navigable water line and the shore line are elongated by deep indentations and sharp projections, the meander line, as located by the gov- ernment survey, and the actual navigable water line should be discarded, and the general available shore line and the general trend of the navigable water Mne adopted.^^^ j^ Michigan, as a solution of the same problem, the following formula is proposed: From the extreme points of the oove draw lines at right angles to the shore or meander lines meeting at such points, bisect the angles formed by such lines, and extend the bisecting lines to navigable water "^Nortbem Pine-Land Co. v. Pick. 45, and has since been Bigelow, (Wis.) 54 N. W. Rep. frequently followed. See, also, 496. This rule was first laid Tappan v. Boston Water-Power down in Deerfield v. Arms, 17 Co., (Mass.) 31 N. E. Rep. 703. (552) Ch. 14] LITTOEAL EIGHTS. § 255 of, say, fifteen feet in depth. The points thus reached wDl be the head-lands of the cove. Connect the head- lands by a right line. Divide this line into as many equal parts as there are feet in the shore line between the two points of the coTe, the shore line being divided into parts of a foot each. The proprietorship of the land-owners in the inclosed waters is shown by straight lines connecting the corresponding points of division, this rule being based on the assumption that the bisecting lines wUl reach navigable waters before they intersect.i^^ In Connecticut, it is laid down that the division of a strip of seashore be- tween adjoining proprietors of land projecting into the sea, whose title-papers &k. definitely the division line of the up- land, but not of the shore, should be made by a line run- ning from the point of intersection between the division line of the upland and the high water line perpendicularly to the low water line.^** ■°* Blodgett & Davis Lumber '^* Morris v. Beardsley, 54 Co. V. Peters, 87 Mich. 498, 49 Conn. 338, 8 Atl. Rep. 139. N. W. Rep. 917. (553) INDEX. [the NTJMBEItS REFER TO SECTIONS.] ABANDONMENT, of appi'oprialion, 9(3-99. general doctriue of, 9t>. by invalid sale, 97. by iHiUuTiing tlie water, 97. by negligence, 97. by adverse user, 98. rights of ditch company lost by, 178, 180, 182, 183. ACCESS TO WATER, littoral owner's right of, 245-249. ACCUETIOX, right of littoral owner to, 2.02. ACEQUIAS, stiiUites of New Meslco concerning, 111. of Arizona, 112. systeiri of, impracticable for California, 164. corporations constructing, in New Mexico, 186. overseers of. In Arizona, 214. ACT OF CONGRESS, concerning appropriation of water, 17. of 1870, is declaratory only, 28. has not sanctioned injurious effects of hydraulic mining, 83. for reclamation and sale of desert lands, 119. granting right of way to ditch companies, 188. regulating wharves on navigable waters, 219. ACTION, for injuries to ditches, 71. for un]a"\A-ful diversion, 72. LAW \v. R. (555) 556 INDEX. ACTION— Continued. partips to action, 73. pleadings. 73. evidence, 73. danjajies, 73. in equitj-, . 75. action to (iiiiet title to water. 74. for injury to quality of water, 76. for damages caused by dams or ditches, 77-84. to restrain hydraulic mining, 83. to compel ditch company to furnish water, 195. for confirmation of bonds of irrigation district, 208. ADVERSE rSER, rights acquired by, 98. easement in use of stream acquired by, 132, 133, 152. AGRICULTURE, See "Irrigation" ALIEN, grant of water right to, not an abandonment thereof, 97. ALLUVION, right of littoral owner to, 252. APPLICATION, of water to beneficial use, intention of, is necessary to valid ap- propriation, 48. must be actual, 50. of water, by riparian ovsmer, to useful purposes, 134 et seq. APPROPRIATION OF WATER, not recognized at common law, 4, 21'.- for mill purposes, 11. origin and basis of the right of, 12-24. early importance of mining interest, 13. minin2 customs, 14. doctrine of, stated, 15. right of, not at first availing as against government or its grantee, 16. sanctioned by act of congress, 17. limits of the doctrine; the early cases, 18. views of United States supreme court on, 19. INDEX. 557 APPROPRIATION OF WATER— Continued. doctrine unknown to common law, 21. presumed license from government, 22. grounds of this presumption, 23. as against subsequent patentee, 25. act of congress of 1870, 28. on public lands of the state, 29. right of, confined to public lands, 30. relative jurisdiction of state and United States over public lauds^ 31. power of government to annex conditions to grants, 32. conflicting claims between settlers and appropriators, 33. when patentee's title vests, 34, 35. whether patent relates back to initial steps, 38. riparian rights under Mexican grants, 43. how effected, 45-55. successive appropriations, 45. doctrines which control, 46. methods of effecting, 47. water right may be merely possessory, 47. mtent to apply water to beneficial use, 48. for purposes of speculation, 48. for drainage only, 48. must be actual use of water, 50. what acts will accomplish, 51. notice of intent to appropriate, 52. reasonable diligence must be exerjised, 53. appropriation, when complete, 54. appropriation relates back to firat step, 55. effect of failure to comply With statutory i-ules, 56. nature of the right acquired by, 55-76. appropriator's right begins at head of his ditch, 57. natiu'e and extent of right depends on pm-pose of appropria- tion, 58. property in ditches and canals, 59. sale of ditches and water rights, 60. ten.ancy in common in water rights, 63. right to natural flow of water at head of ditch, 04, what are streams subject to appropriation, 65. definition and characteristics of a water-course, 06. 558 INDEX. APPROPRIATION OF WATER— Continued. liercolating and subterraneous waters, 67. riglit to exclusive use of water, 68. appropriator may change place and manner of use, 69. remedies for interference with appropriator's rights, 70. injuries to ditches, 71. remedies for unlawful diversion, 72. injunction in equity, 75. deterioration of quality of water is actionable, 76. liability of appropriator for damages caused by his works, 77-84. various kinds of injuries, 77. damages caused by breaking or overflow of dam, 78. measure of care required, 79. trespass on rights of riparian owners, 80. damages from mode of construction or operation of works, 81. injuries from discharge of debris into stream, 82. hydraulic mining as a pubUc nuisance, 83. impounding dams, 84. extent of the right acquired by, 85-89. amount of water acquired, 85. capacity of ditch as measure of, 86, 87. successive appropriations, 89-96. rights acquired by, 89, 90. surplus water may be appropriated, 90. periodical appropriations, 91. there must be actual diversion, 91. conditions under which subsequent appropriation may be effected, 92. division of increase in stream, 93. wrongful diversion of springs, 94. appropriator's control of tributaries, 95. abandonment of, 96-99. general theory of, 96. methods in which an abandonment is effected, 97. abandonment by adverse user, 98. review of the system, 99-102. the system as a whole, 99. defects of the system, 100. distinguished from true riparian rights, 102. INDEX. 659 APPROPRIATION OF WATER— Continued, legislation of California concerning, 104. act of Montana concerning, 306. constitutional provision in Colorado, 107. Idaho statutes regulating, 108. laws of Washington as to, 116. laws of Texas as to, 117. laws of Nebraska as to, 118. under Mexican law, 12S. distinguished from acquisition of rights by prescription, 133. use of water for irrigation, 148-15y. prior, gives no exclusive right to use of water for irrigation, 148. appropi'iation of water rights by ditcli companies, 189. regulated, in Wyoming, Ijy board of control, 210. API-URTBNANCE, riparian owner's right to natural flow of stream is not, 9. ditches and canals are not, 59. watcir rights may be, 62. littoral rights as appurtenant to upland, 254. ARID LANDS, judicial notice of meaning of term, 117. reclamation and sale of, under act of congress, 119. irrigation of, rights of riparian owners, 143-1.59. ARIZONA, statutes of, regulating water lighls, 112. doctrine of riparian rights abolished, 112. provisions for irrigation and acequias, 112. overseers of acequias in, 211. system of, impracticable for California, 164. ARTESIAN WISLLS, In South Dakota, private corporations for sinking of, 1S7. townships authorized to sink, 201. ASSESSMENT. of real property in. irrigation district, 199 (sec. 18.) le^-y of, 199 (sec. 22.) lien of, 199 fsec. 23.) delinquency of, 199 (sec. 24.) 560 INDEX. ASSESSMENT— Continued. sales far non-payment of, 199 (sees. 27-33.) power of directors to levy, 207. ASSESSORS, of irrigation district, election and bond of, 199 (sec. 4.) powers and duties of, 199 (sees. 18-33.) B. BANKS, essential to a water-course, 66. riparian owner may protect, by means of dam or bulk-head, 81. li.ibility of ditch company for breaking of, 197. of navigable streams, belong to riparian owners, 228. BEAOH, meaning of tlie term, 234. BILL OF SALE, transfer of water rights by, 60. ■ BOARD OF CONTROL. in Wyoming, powers and duties of, 210. BONDS, of ofl'cers of irrigation district, 199 (sec. 4.) of irrigation district, issue of, 199 (sec. 15.) sale of, 199 (sec. 16.) payment of, 199 (sees. 17, 34.) judicial confirmation of, 208. BOOMS, in navigable streams, right to constnict, 219, 225. BOUNDARIES, of irrigation district, 199 (sec. 2.) including and excluding territory, 206. of riparian owner on navigable stream, 221. rivers as boundaries between states, 223. navigable stream as boundary, 224i. seashore as a boundary, 236. BREAKING OF DAM, damages caused by, 78, 79. liability of ditch company for, 197. INDEX. 661 BRir>GES. over ditches at intersection of public higliways, 178-180, 182. 185, 186, 191. BULK-HEAD, may be erected to preserve banks of stream, 81, 229. C. CALIFORNIA, statute of, recognizing miners' customs, 14. legislation of, on riparian riglits, 104. act for promotion of irrigation, 104. riparian riglits in private streams of, 122 et seq. application of common-lavs' doctrines, 123, 124. construction of section 1422, Civil Code Cal., 125-127. effect of Mexican laws in, as to water riglits, 128. riparian rights in Kern district, 129. law of, as to riparian uses, 137. statute of, regulating ditch companies, 179. statute of, relating to irrigation districts, 199. doctrine of littoral rights in, 248. CANALS, diversion by means of, must be actual, 49. property in, 59. are not appurtenances, 59. sale of, 59, 60. liability for damages^ caused by, 77-84. corporations constructing and operating, see "Ditch Companies." condemnation of, by irrigation companies, 199 (sec. 12.) CARE, see "Diligence;" "Negligence." CHANNEL, essential to a water-course, 66. unlawful changing of, 81. obstruction of, by mining debris, 83. of stream, may be used by ditch company as part of its ditch, 178. 180. 182. of navigable stream, belongs to state, 220. LAW w. E. — 36 -562 INDEX. ■CITY, may be Included in irrigation district, 206. 'CIVIL LAW, law of riparian rights under, 128. as to public use of banks of navigable stream, 228. 'COAST. jurisdiction and ownership of, 237-239. rights of owner abutting on, see "Littoral Rights." 'CODE, of California, on water-rights, 104. of California, section 1422, construction of, 125-127. of France, on irrigation of riparian lands, 156. LOGS AND LOGGING, See "Floatable Streams." LOW-WATER MARK. as boundary of owner on navigable stream, 221. how determined, 235. M. MANDAMUS, to compel bridging of ditch at crossing of highway, 191. to compel ditch company to furnish water, 195. MANUFACTURES, use of stream for, 141. MAP, of route of irrigating ditch, to be filed, 178, 180, 182. MAXIMS, that water should flow in natural channel, 8. sic utere tuo, etc., applies to riparian rights, 142. MEANING OF TERMS, See "Definitions." MEASUREMENT OP WATER, methods of, 88. 574 INDEX. MEXICAN LAW, grants under, effect on riparian rights, 43. law of riparian rights In, 128. former prevalence of. In Oahfomla does not affect riparian rights, 128. MILLS, appropriation of water for, at common law, 11. use of water for propulsion of, 14L MINERS' CUSTOMS, origin and nature of, 14. sanctioned by legislation, 14. recognized by act of congress, 17. application and efficacy of, 24. when void, 24. must be proved as facts, 24. must be reasonable, 24. cannot legalize public nuisance, 24, 83. MINERS' INCH, as measure of water, 88. MINING, early importance of, in Pacific states, 13. presumed license from government for, 22, 23. liablhty for damages caused by, 77-84. discharge of debris, when unlawful, 82. hydraulic, injurious effects of, 83. regulated by statute in CaUfornia, 104. MONTANA, statutes of, regulating riparian rights, 106. statute of, regulating ditch companies, 183. MUNICIPAL CORPORATIONS, supplying "water to. Is public use for which stream may be con- demned, 172. irrigation districts are not, 204. may be included In irrigation district, 206. INDEX. 575 N. NATURAL WANTS, use of riparian streams for, 138. what are, 138. use for irrigation is subordinate to, 153. NAVIGABLE RIVERS, obstruction of, by mining debris, a public nuisance, 83. easement of public In, under Roman law, 128. riparian rights on, 216-232. NAVIGABLE WATERS. riparian rights on, 216-232. what streams are navigable, 216. navigable waters of the United States, what are, 217. floatable streams, 218. control of congress over, 219. lands under, belong to state, 220. as boundaries between states, 223. public rights on, 225-228. private rights on, 229-232. rights of owner on seashore, see "Littoral Riglits." NAVIGATION, public right of, on navigable streams, 216, 225. what streams are navigable, 216. what are navigable waters of the United States, 217. floatable streams, 218. . paramount control of congress over, 219. public easement of, 225. right of state to improve, 226. public right of, does not include right to use banks of stream, 228. public right of on the seashore, 243. NEBRASKA, legislation of, concerning water rights, IIS. statute of, regulating ditch companies, 184. NEGLIGENCE, will jeopard inceptive rights by appropriation, 53. causing injuries to ditches, 71. 576 INDEX. NEGLIGENCE— Continued. liability of appropriator for, 77-84. in construction and maintenance of dam, 78, 79. tmlawful discharge of mining debris, 82-84. works abandonment, when, 97, 98. Uability of ditch companies for, 197. NEVADA, statutes ot, regulating water rights, 105. board of reclamation commissioners in, 105. water commissioners in, 105. riparian rights abolished in, 105. rights in private streams in, 122 et seq. formation of irrigation districts in, 200. state supervision of water rights in, 212. NEW MEXICO, statutes of, regulating water rights, 111. system of, impracticable for CaUfomia, 164. statute of, regulating ditch companies, 180. NON-USER, forfeiture of water rights for, 97. riparian rights not lost by, 133. NORTH DAKOTA, legislation of, concerning water rights, 109. statute of, regulating ditch companies, 183. NOTICE, of intent to appropriate, 51, 52. not sufficient without actual appropriation, 51. how given, 52. provided for by statute in California, 104. of route of proposed Irrigating ditch, 178. of proceeding for confirmation of bonds of irrigation district, 208. NUISANCE, miners' customs cannot legalize, 24, 83. unlawful diversion of stream is a, 72. pollution of water is a, 76. effects of hydraulic mining, 83. obstruction of navigable streams as, 219, 225. INDEX. 5Ti O. OREGON, legislation of, concerning water rights, 115. riparian rights in, 115, 121. statute of, regulating irrigation and ditch companies, 178. doctrine of httoral rights in, 248. wharfing rights in, 250. OVERFLOW, of dam, Uability for damages caused by, 78, 79. carrying mining debris, 82, 84. liability of ditch companies for, 197. OVERSEER, of acequlas, in Arizona, 214. P. PAROL, sale of ditches and water rights by, 00-62. PARTIES, to actions concerning water rights, 72, 73, 75. to action for confirmation of bonds of irrigation district, 208. PARTITION, of water rights, as between tenants in common, 63. PATENT, subsequently issued, is subject to prior appropriation, 25. power of government to annex conditions to, 32. when to be issued, 34. title under, vests when, 35. whether relates back to initial steps, 38-42. for desert land reclaimed, when issued, 119. PERCOLATING WATERS, when constitute a water-course;, 67. PETITION, for organization of irrigation district, 199 (sec. 2.) determination of sufficiency of, 205. LAW W. E. — 37 578 INDEX. PIERS, in navigable rivers, right to construct, 219, 225, 230. on ttie seashore, 250. PLACE. of using water appropriated may be changed, 69. statute of California concerning, 104. PLEADINGS, in actions concerning water rights, 73. in actions for confirmation of bonds of irrigation district, 208. POSSESSION, without title, may support water rights, 47. but not true riparian rights, 18L PRE-EMPTION, See "Patent;" "Settlers." PRE-EMPTIONER, rights of, relate back, 38-42. PRESCRIPTION, right to commit a public nuisance cannot be acquired by, 83. rights to water acquired by, 97, 98, 132, 152. adverse user extinguishing riparian rights, 133. PRESUMPTION, of a license from government for mining operations, 22, 23. that stream was on public lands, 101. of license to construct wharves, 250. PRIORITY, as between settlers and appropriators, 33 et seq. successive appropriations, 89. statute of California regarding, 104. statute of Idaho as to, 108. laws of Washington as to, 116. PROPRIETORSHIP, of public lands, 31. of bed of navigable streams, 220. of tide-lands, 237-241. PUBLIC CORPORATIONS irrigation districts are, 204 INDEX. 579 PUBLIC LANDS, right to appropriate waters flowing through, 12-24. grantee of, takes subject to prior appropriation, 25. of the state, whether open to appropriation, 29. right of appropriation confined to, 30. appropriation may be independent of title to, 47. desert, sale and reclamation of, 119. primary disposal of, carries riparian rights, 127. right of way over, granted to ditch companies, 178, 184^186. right of way over lands of United States, 188. tide-lands not included in the term, 242. PUBLIC ROADS, ditches crossing, must be bridged by owner, 178-180, 182, 185, 186, 19L PUBLIC USB, See "Eminent Domain." PURPOSE, of appropriation, 48. of appropriation may be changed, 69. determines extent of right acquired, 85. to which water may be applied by riparian owner, 134. use of water for irrigation, 143-159. PURPRESTURE, at common law, construction of wharves as, 250. Q. QUIETING TITLE, to water rights, action for, 74. R. RAIN-FALL. drainage of, when constitutes a water-course, 66. RAVINE, may be used as part of appropriator's ditch, 49. as channel of natural water-course, 66. 580 INDEX, REALTY. riparian owner's right to flow of stream is part of, 9. when flowing water is part of, 57. ditches a>nd canals are. 59. REASONABLE DILIGENCE, in completing appropriation, 53. required by statute in California, 104. and in Idaho, 108. and in Washington, 116. and in Texas, 117. REASONABLE USE, of water by riparian owner, 140. is a question of fact, 140. for manufacturers, 141. manner of use must be reasonable, 142. of water for irrigation, 143-159. measure of reasonableness, 151. RECLAMATION, and sale of desert lands, act of congress for, 119. of lands under navigable water, 231. of lands below low-water mark, 254. RELATION. doctrine of, applied to Inceptive rights of pre-emption claimant, 38-42. applied to date of appropriation, 55. REMEDIES, for injuries to ditches, 71. for unlawful diversion, 72. in equity, 78. for injuries to quality of water, 76. for damages caused by dams or ditches, 77-84. for injuries from mining debris, 82. against injurious effects of hydraulic mining, 83. for obstruction of navigable stream, 225. RESERVOIRS, construction of, by irrigation companies, 178, 182. INDEX. 581 EIGHT OP WAY, for ditch companies, over private lands, 178-180, 182-185. over lands of state, 178, 184^186. for canals of irrigation district, 199 (sec. 38.) along navigable rivers, vested in the public, 225. but not along their banks, 228. over tide-lands, 243. of littoral owner, from his land to navigable water, 245-249. KIPARIAN RIGHTS, importance of, in Pacific states, 1. common-law doctrine of, 4^12. appropriation not recognized at common law, 4. diversion of stream is unlawful, 7. owner's right to natural flow of stream, 8. this right not an appurtenance to estate, 9. diversion, when permissible at common law, 10. appropriation for mill purposes, at common law, 11. origin and basis of the right to appropriate, 12-24. miners' customs as to, 14, 24. doctrine of prior appropriation, 15. legislation of congress as to, 17. appropriation as against subsequent patentee, 25. act of congress of 1870, 28. on pubUc lands of the state, 29. appropriation confined to pubUc domain, 30. power of government to annex conditions to grants, 32. conflicting claims between settlers and appropriators, 33. of patentee, become vested, when, 34, 35. under inceptive title are protected, 37. whether patent relates back; to initial steps, 38-42. tmder Mexican grant, 43. how appropriation is effected, 45-55. nature of the right acquired by appropriation, 57-76. definition and characteristics of a water-course, 66. deterioration of quality of water is actionable, 76. liability of appropriator for damages caused by dams or ditches, 77-84. injurious effects upon, of hydrauUc mining, 83. successive appropriations, 89-96. abandonment of, 90-99. 582 INDEX. RIPARIAN RIGHTS— Continued. distinguished from appropriation, 102. legislation on the subject of, 104^119. California, 104. Nevada, 105. Montana, 106. Colorado, 107. Idaho, 108. North Dakota, 109. South Dakota, 110. New Mexico, 111. Arizona, 112. Wyoming, 113. Utah, 114. Oregon, 115. Washington, 116. Texas, 117. Nebraska. 118. federal legislation, 119. abolished in several states and territories, 120. on private streams of California and Nevada, 122. common law governs, in California, 124. how affected by section 1422, Civil Code Cal., 125-127. under Roman and Mexican law, 128. in Kern district, 129. governed by common law of England, 130. who are riparian owners, 131. loss of, by adverse user and estoppel, 133. uses to which the water may be put, 134. general statement of law of, 134. legitimate riparian uses, 136. CaUfomia decisions on riparian uses, 137. natural uses, 138. secondary or artificial uses. 139. reasonable riparian use, 140. use for manufacturers, 141. manner of use must be reasonable, 142. use of water for irrigation, 143-159. no right to irrigate non-riparian lands, 147. prior appropriation gives no exclusive right, 148. INDEX. 6S3 BIPARIAN RIGHTS— Continued. relative equality of riparian owners, 149. size of stream affects, 150. use must be reasonable, 151, 154. irrigation is subordinate to natural wants, 153. test of reasonableness in use, 154r-158. surplus water must be restored, 159. suggestions for legislation concerning, 160-176. need of statutory regulation, 160. common-law rules inadequate for question of irrigation, 161. contents of proposed statute, 162. essential nature of proposed statute, 163. system of acequias impracticable, 164. Colorado system criticised, 165. legislation must respect natural laws and natural rights, 166. natural rigbts and advantages of riparian owners, 167. jurisdiction of equity in settling water rights, 169. legislation to the same end, 170. provision for non-riparian lands, 171. condemnation of stream for public use, 172. whether irrigation is a pubUc use, 173. taking stream under eminent domain, 174. summary of suggestions concerning legislation, 175. concluding observations, 176. condemnation of, by ditch companies, 189. acquisition of, by irrigation districts, 199. on navigable streams, 216-232. rights of riparian owner in general, 229. right to build wharves and landings, 230. right to reclaim submerged land, 231. preferential right to purchase, 232. on the seashore, see "Littoral Rights." RIVERS, (See, also, "Water-Courses,") no exclusive appropriation of, at common law, 4. what are, subject to appropriation, 65. obstruction of, by debris from hydraulic mining, 83. legislation on the subject of, 102. ownership of, xmder Roman and Mexican laws, 12S. use of, for irrigation, 143-159. navigable, what are, 216. 584 INDEX. RIVERS— Continued. floatable, what are, 218. bed of, belongs to state, 220. as boundaries between states, 223. navigable, public rights on, 225-228. private rights on, 229-232. ROMAN LAW, riparian rights under, 128. as to public use of banks of navigable streams, 228. S. SALE, of water rights and ditches, 60-62. water rights may be sold separate from land, 61. when works abandonment, 97. of water, by ditch company, 192-196. SCRIP, cannot be located on tide-lands, 242. SEA-SHORE, meaning of the term, 234. ownership of, see "Tide-Lands." rights of owner abutting on, see "Littoral Rights." SEA-WEED, property In, 252. SECRETARY OF WAR. when authorized to establish harbor-lines, 210. SETTLERS, take subject to prior appropriation, 25. and appropriators, conflicting claims of, 33. title of, when vests, 34. whether patent relates back to initial steps, 38. SHORE, meaning of the term, 234. SLOUGH, not a natural water-com-se, 66. INDEX. 685 SNOW-WATER, drainage of, when constitutes a water-course, 66. SOUTH DAKOTA, legislation of, concerning water rights, 110. statute of, regulating artesian well companies, 187. townships authorized to sink wells, 201. Irrigation districts In, 201. SOVEREIGNTY, over public lands, 31. over tide-lands, 237-239. SPECULATION, appropriation of water for purposes of, is nugatory, 48. SPRINGS, wrongful diversion of, 94. STATE, pubUo lands of the, whether open to appropriation, 29. and United States, relative jurisdiction of, over public lands, 31. power of, to restrain hydraulic mining, 83. riparian rights of, not reserved by section 1422, Civil Code Cal., 127. power of, to regulate water rights, not affected by former prev- alence of Mexican law, 128. owns bed of navigable rivers, 220. incidents of state's ownership, 222. rivers as boundaries between states, 223. right of, to improve navigation, 226. title of, to tide-lands, 238. STATE ENGINEER, powers and duties of, in Wyoming, 210. in Colorado, 211. STATUTE OP LIMITATIONS, acquisition of water- rights under, 132, 133. STATUTES, act of congress of 1866, 17. act of congress of 1870, 28. do not sanction injurious effects of hydraulic mining, 83. regulating riparian rights, 102-119. 586 INDEX. STATUTES— Continued. construction of section 1422, Civil Code Gal., 125-127. concerning water rights, suggestions for, 160-176. regulating irrigation and ditcli companies, 177-188. authorizing formation of irrigation districts, 199-202. for state supervision of water rights, 209-215. STATUTORY INCH, as imit for measurement of water, 8S. STREAMS. See "Water-Courses." SUBTERRANEAN WATERS, when constituting a water-course, 67. SUCCESSIVE APPROPRIATORS, priority as between, 45. rights acquired by, 89-96. SUIT, See "Action." SUPERINTENDENT OF IRRIGATION, in Colorado, powers and duties of, 211. SURFACE WATER, may constitute a stream, when, 66. TAX. See "Assessment." TENANT, of land, may sue one interfering with water rights, 73. TENANTS IN COMMON, of water i-ights, 63. partition as between, 63. TERRITORY, tide-lands of, subject to disposal by United States, 237. TEXAS, legislation of, concerning water rights, 117. right of riparian ovTiier to use water for irrigation, 158. statute of, regulating ditch companies, 185. INDEX. 587 TIDE, no test of navigability of stream, 216. title to lands covered by, 237-242. littoral rights, 244-255. TIDE LANDS, defined, 233. In territory, disposal of, by United States, 237. title to, vested in state, 238. nature of state's title, 239. transfer of, to private owner, 240. preferential right of littoral owner to purchase, 241. scrip cannot be located on, 242. subject to public right of navigation, 243. rights of littoral owner in, 244r-255. building of wharves on, 250. TIME, periodical appropriations, 91. TITLE. from United States, vests, when, 34. priority of, as against subsequent appropriator, 35, 36. relation of, to initial steps, 38. inceptive, riparian rights under, are protected, 37. water rights may depend on mere possession, 47. by appropriation, when perfect, 54, 55. appropriator's right begins at head of his ditch, 57. to ditches and canals, 59. to ditches and water rights, sale of, 59, 60. to water rights, in co-tenancy,. 63. to water, abandonment of, 96-99. to water rights, legislation on the subject of, 102-119. prescriptive water rights, 132, 133. to bed of navigable rivers is in the state, 220. of riparian owner on navigable stream, extends how far, 221. of United States to tide-lands of territory, 237. of state to seashore and flats, 238. nature of, 239. transfer of, to private owner, 240. TOWING, on bank of navigable stream, no public right of, 228. 588 INDEX. TOWN. may be included In irrigation district, 206. TOWNSHIPS, in Soutli Dakota, authorized to sink artesian wells, 201. TRANSFER. of water rights, by sale, 60-62. of tide-lands to private owner, 237-241. TRESPASS, upon rights of riparian owners, 80. on banlts of navigable streams, 228. TRESPASSER, acquires no riparian rights, 131. TRIBUTARIES. of stream, right of appropriator to control, 95. U. UNITED STATES, right of appropriation not originally availing against, 16. act of congress as to appropriation of water, 17. presumed to have licensed mining operations, 22, 23. grantee of, takes subject to prior appropriation, 25. act of 1870 is declaratory only, 28. appropriation restricted to public lands of, 30. and state, relative jurisdiction of, over public lands, 31. power of, to annex conditions to grants, 32. title from, when vests, 34. power of, over navigable rivers, 83. desert lands of, reclamation and sale of, 119. rights of, not affected by section 1422, Civil Code Gal., 127. grant right of way to ditch companies, 188. navigable waters of the, what are, 217. control of congress over, 219. title of, to tide-lands of territory, 237. USE, of water by riparian proprietors, at common law, 4. intent to apply water to beneficial use is indispensable to valid appropriation, 48. water must be actually put to use, 50. INDEX. 689 USE— Continued. place and manner of, appropriator may change, GO. must not pollute water, 76. determines amount of water acquired by appropriator, 85. non-user works abandonment, 97, 98. adverse, acquisition of water rights by, 132, 133. of water by riparian proprietor, 134^143. legitimate riparian uses, 130. natuiul uses, 13S. secondary or artificial uses, 139. must be reasonable, 140. reasonableness is question of fact, 140. for manufactures, 141. manner of, must be reasonable, 142. for irrigation, 148-159. irrigation is subordinate to natural wants, 153. supervision of, by public officers, 209-215. UTAH, statutes of, concerning water rights, 114. riparian rights abolished, 114, 120. formation of irrigation districts in, 202. V. VALENTINE SCRIP, cannot be located on tide-lands, 242. W. WASHINGTON, legislation of, concerning water rights, 110. riparian rights in, 116, 121. statute of, regulating ditch companies, 180. irrigation districts authorized in, 200. doctrine of littoral rights in, 248. WATER, importance and value of, in Pacific states, 1, 3. no appropriation of, at common law, 4. right to, may be independent of title to land, 47. intent to apply to beneficial use necessary to vaUd appropria- tion, 48. 590 INDEX. ■ WATER— Continued. must be actually diverted, 49. and put to actual use, 50. appropriator lias no right to, above his ditch, 57. rights in, may be sold, CO. pollution of, is actionable, 76. imlawful discharge of, upon lands of adjoining proprietor, 81. acquired by appropriation, amount of, 85. capacity of ditch as measure of appropriation, 86, 87. successive appropriations of, 89-96. surplus, may be appropriated, 90. Increase in, how divided, 93. abandonment of, 9(3-99. legislation on the subject of, 102-119. riparian rights in California and Nevada, 122 et seq.. use of, by riparian proprietor, 134-143. use of, for irrigation, 143-159. taken for pubUc use, 172-174. distribution and sale of, see "Ditch Companies." WATER COMMISSIONERS, in Nevada, appointment and duties of, 105. in Utah, powers, 114. in Wyoming, 210. In Colorado, 211, in Nevada. 212 general powers of, 215. WATER-COURSE S, common-law doctrine of, 4^12. no appropriation of, at common law, 4. diversion of, illegal at common law, 4, 7. riparian owner's right to flow of, in natural channel, 8. this right not an appurtenance to estate, 9. diversion of, when permissible at common law, 10. origin and basis of the right to appropriate, 12-24. presumed license to divert, 22, 23. appropriation of, is servitude on subsequent grant, 25. on pubUc lands of the state, 29. appropriation of, restricted to public domain, 30. INDEX. 591 WATER-COURSES— Continued. actual diversion of, necessary to complete appropriation, 49. appropriator has no right to, above his ditch, 57. rights In, may be sold, 60. co-tenancy in, 63. definition and characteristics of, 65-67. equity will enjoin unlawful diversion of, 75. pollution of. Is actionable, 76. liability of appropriator for damages caused by ditches or dams, 77-84. obstruction of, by debris from hydraulic mining, a public nui- sance, 83. increase in, how divided, 93. abandonment of rights to, 96-99. when presumed to be public, 101. legislation on the subject of, 102-119. riparian rights In. California and Nevada, 122. rights in, imder Roman and Mexican law, 128. who are riparian owners, 131. uses to which the water may be put, 134. use of, for irrigation, 143-159. size of stream as affecting use, 150. suggestions for legislation concerning , 160-176. natural rights and advantages of riparian owners, 167. condemnation of, for public use, 172-174. navigable, what ^a.re, .216. riparian rights on, 216-232. WATER DISTRICTSi in Wyoming, 210. in Colorado, 211. WATER DIVISIONS, in Wyoming, 210. in Colorado, 211. WATER-RATES. regulation of, by coimty officers, 178, 179, 182, 185. charged by ditch companies, 192, 193. WATER RIGHTS, (See, also, "Appropriation;" "Irrigation;" "Mining;" "Navigable Rivers;" "Riparian Rights;" "Water;" "Water-Com-ses.") 592 INDEX. WATEB RIGHTS— Continued. when appurtenant to land, 9, 59, 62. sale and conveyance of, 60-62. may be sold separate from land, 61. tenancy in common of, 63. remedies for interference with, 70-75. legislation on the subject of, 102-119. acquisition of, by advei-se user, 132, 133. rights of user in riparian owners, 134r-142. use of water for irrigation, 143-159. suggestions for legislation on, 160-176. acquisition of by ditch companies, 189. by irrigation districts, 199 (sec. 12.) state supervision and control of, 209-215. on navigable rivers, 216-232. rights of owner on seashore, see "Littoral Rights.' WATER MASTER, election and duties of, in Idaho, 213. WHARVES, on navigable rivers, right to build, 230. on tide-lands, right to construct, 250. WORDS AND PHRASES, See "Definitions." "WRIGHT ACT," synopsis of, 199. adopted in Washington and Nevada, 200. constitutionality of, 203. construction of, 204^208. WYOMING. legislation of, concerning water rights, 113. statute of, regulating ditch companies, 181. supervision of water rights in, 210. WEST PUBLISHING CO.. PKINTEKB AND 8TEREOTYPER8, 8T. PAUL, UnfH. / KP 6k6 P78 1893 Author Pomeroy, John Norton Title . i Treatise on the law of '^°'"' rater ristots as the same is t ■ • • Date Borrower's Name