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 A TREATISE <^ %:>^ 
 
 ON '^o. 
 
 THE LAW OF RIPARIAN RIGHTS 
 
 AS THE SAME IS FORMULATED AND APPLIED IN THE PACIFIC 
 STATES, INCLUDING THE DOCTRINE OF 
 
 APPROPRIATION 
 
 By John Norton Pomeroy, LL.D. 
 
 Author op works on Constitutional and International Law 
 AND ON Equity Jurisprudence 
 
 BEVISED AND EDITED BY 
 
 Henry Campbell Black, M. A. 
 
 AXTTHOR OF A WORK ON CONSTITUTIONAL PROHIBITION 
 
 ST. PAUL, MINN. 
 
 WEST PUBLISHING CO. jm 
 
 1887 .;•/•
 
 Pin 1 4 n 
 
 COPYBIGHT, 1887, 
 BY 
 
 WEST PUBLISHING COMPANY.
 
 EDITOR'S PREFACE. 
 
 The late Professor Pomeroy, during his editorship of the West 
 Coast Reporter, 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- 
 
 (iii)
 
 iv EDITOK S I'HKFACE. 
 
 tors, ftntl the introtluction of section numbers and appropriate 
 hcml-lincs, he has bccni scrupulous to preserve intact both the 
 Inn^uaj-o and the arranj^cnient 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 the present work. 
 
 3. The problem stated. 
 
 CHAPTER II. 
 
 THE COMMON-LAW DOCTRINE. 
 
 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 HI. 
 
 APPROPRIATION OF WATERS FLOWING THROUGH THE 
 PUBLIC DOMAIN 
 
 L Origin and Basis of the Right to Appropriatk. 
 
 § 12. Scope of the present chapter. 
 
 13. Early importance of mining interests. 
 
 14. Mining customs. 
 
 (V)
 
 ▼I CONTENTS. 
 
 g 13. Doctrine of npproprinlioti. 
 
 18. Appropriation not ut lirst availing as against the government. 
 
 17. Till) act of congress of IbOO. 
 
 18. Limits of the doctrine of appropriation— The early cases. 
 10. Views of the United States supreme court. 
 
 20. Grounds of these decisions. 
 
 21. Doctrine of appropriation unknown to the common law. 
 
 23. Basis of riirht to apjirojiriate water. 
 28. Grounds for iiresuuiption of license. 
 
 24. Efllcacy of miners' customs. 
 
 II. ArrHorniATioN as agaixst the Subsequent Grantee of the 
 
 GOVERNMEN T. 
 
 2.'). Title of suii^cijiicnt grantee is subject to prior appropriation. 
 
 26. California decisions on this |)oiut. 
 
 27. Views of United States supreme court. 
 
 28. The act of 1870 is declaratory only. 
 20. Public lands of the state. 
 
 III. The Right Restricted to the Public Domaiw. 
 
 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 Settlers and Appropriatobs. 
 
 38. Converse of ductrine of appropriation. 
 
 84. When title from United Slates is perfected. 
 
 35. When patentee's riparian rights vest 
 
 30. Review of the authorities on this point. 
 
 87. Riparian rights protected. 
 
 88. Doctrine of relation applied to patentees. 
 80. Grounds for the application of this doctrine. 
 
 40. California decisions. 
 
 41. Review of the cases. 
 
 42. Riparian rights under Mexican grants. 
 48. Summarj' of conclusions. 
 
 CHAPTER IV. 
 
 now AX APPHOPHIATION IS EFFECTED. 
 
 44. Successive appropriations. 
 
 45. Doctrines which control the appropriation.
 
 CONTENTS. VM 
 
 46. The methods by which an appropriation is effected. 
 
 47. Intent to apply water to beneficial use. 
 
 48. There must be actual diversion. 
 
 49. There must be actual use of water. 
 
 50. Physical acts constituting appropriation. 
 
 51. Notice of intent to appropriate. 
 
 53. Reasonable diligence in completion of works. 
 
 53. When appropriation is complete. 
 
 54. Appropriation relates back to first step. 
 
 CHAPTER V. 
 
 NATURE AND EXTENT OF THE RIGHT ACQUIRED BY 
 APPROPRIATION. 
 
 I. Nature of the Right Acquired. 
 
 § 55. Appropriator's right begins at head of his ditch. 
 
 56. Nature and extent of right depends on purpose of appropriatioa. 
 
 57. Property in ditches and canals. 
 
 58. Sale of ditches and water-rights. 
 
 59. Tenancy in common. 
 
 60. Right to natural flow of water at head of ditch. 
 
 61. What are streams subject to appropriation. 
 
 62. Definition and characteristics of a water-course. 
 
 63. Percolating and subterraneous waters. 
 
 64. Right to exclusive use of water. 
 
 65. Appropriator may change place or manner of use. 
 
 66. Remedies for interference with these rights. 
 
 67. Injuries to ditches. 
 
 68. Remedies for unlawful diversion. 
 
 69. Equitable jurisdiction. 
 
 70. Deterioration of quality of water. 
 
 II. Liability fob Damages Caused by Ditches. 
 
 71. Various kinds of injuries. 
 
 72. Damages caused by breaking or overflow. 
 
 73. Proper measure of care required. 
 
 74. Injuries from intentional trespasses. 
 
 75. Damages from mode of construction or operation of works. 
 
 76. Discharge of mining debris. 
 
 Tl. Effects of hydraulic mining a public nuisance. 
 78. Impounding dams.
 
 fill CONTENTS. 
 
 ni. Extent of the Right Acquired. 
 
 I 79. Amount of WRtor which the appropriator is entitled to use. 
 N). Carrying capntit)' of ditch. 
 til. True capacity of ditch the proper measure. 
 
 IV. Successive Apphopriatobs. 
 
 Ml Riirhts of subsequent appropriator 
 
 IB. Successive appropriations. 
 
 M. Periodical aitjiropriations. 
 
 85. Conditions under which subsequent appropriation may bo ef- 
 
 fected. 
 
 86. Division of increase in stream. 
 
 87. Wrongful diversion of springs. 
 
 V. Abandonment of Right. 
 
 88. General doctrine of abandonment. 
 
 89. Methods of abandonment. 
 
 •0. Abandonment by adverse user. 
 
 VI. Review of the System. 
 
 §1. This system ns a whole. 
 
 t-. Defects of the system. 
 
 •3. Presumption that stream was on public land. 
 
 CHAPTER VI. 
 
 RIPARIAN RIGHTS ON PRIVATE STREAMS. 
 
 I. Legislation on the Subject. 
 Distinction between appropriator and riparian owner. 
 
 95. Application of the common law. 
 
 »«. Summary of statutory legislation— California. 
 
 97. Nevada. 
 
 98. Montana. 
 
 99. Colorado. 
 100. Idaho. 
 101 Dakota. 
 
 109. New Mexico. 
 
 103. Arizona. 
 
 104. Wyoming. 
 106. Utah.
 
 CONTENTS. IX 
 
 II. The Effect of this Legislation. 
 
 ^ 106. Riparian rights abolished. 
 107. Two distinct systems. 
 
 CHAPTER VII. 
 
 BIPARIAN RIGHTS IN THE PRIVATE STREAMS OF CAL- 
 IFORNIA AND NEVADA. 
 
 I. Nature and Extent of These Rights. 
 
 :§ 108. Ambiguity of California statutes on water-rights. 
 
 109. Review of the authorities. 
 
 110. Common-law doctrine of riparian rights obtains in California. 
 
 111. Construction of section 1423. 
 
 112. Riparian rights excepted. 
 
 113. Interpretation of section 1423 — Lux v. Haggiu. 
 
 114. Mexican law — Effect on riparian rights. 
 
 115. Riparian rights in Kern district. 
 
 116. Common law of England. 
 
 117. Who are riparian owners. 
 
 118. Prescriptive water-rights. 
 
 II. Uses to Which the Water mat be Put, 
 
 119. General statement of riparian rights— Van Sickle v. Haines. 
 
 120. Modifications on doctrine of Van Sickle v. Haines. 
 
 121. Legitimate riparian uses. 
 
 122. California decisions. 
 
 123. Natural uses. 
 
 124. Secondary uses. 
 
 125. Reasonable riparian use. 
 
 126. Reasonable use for manufactures. 
 
 127. Manner of use must be reasonable. 
 
 CHAPTER VIII. 
 
 USE OF WATERS FOR IRRIGATION. 
 
 § 128. Irrigation of riparian lands — Ellis v. Tone. 
 129. Limited authority of foregoing decision.
 
 X CONTEXTS. 
 
 § 130. Teudcncy of decision in Ellis v. Tone. 
 
 131. The (|uc9tion as to irrigntiou stated. 
 
 IJW. No rishl to irrigate non riparian lands. 
 
 133. Prior apprctpriation gives no exclusive right 
 
 134. Relative ecpiality of riparian owners. 
 
 135. Size of stream. 
 
 136. Reasonable use for irrigation. 
 
 137. Easements and adverse user. 
 
 138. Relation of irrigation to the natural wanta. 
 189. Summar}' of principles. 
 
 140. Irrigalitin— The English authorities. 
 
 141. French law. 
 
 142. Review of the American authoritiua. 
 
 143. Revii'W of authorities continued— The Pacific cases. 
 
 144. Surplus water must be restored. 
 
 CHAPTER IX. 
 
 SUr.GESTIOXS FOR LEGISLATION ON IIIPAKIAN RIGHTS. 
 
 ^ IVi. Need of statutory regulation. 
 
 146. Irrigation — Common-law rules inadequate. 
 
 147. Contents of proposed statute. 
 
 148. Essential nature of projected law. 
 
 149. System of ar^^f/iVw impracticable. 
 
 150. Colorado system criticised. 
 
 151. Legislation must respect natural laws and natural rights. 
 
 152. Natural rights and advantages of riparian owners. 
 158. Legislation should recognize these rights. 
 
 154. Jurisdiction of equity. 
 
 155. Legislation to the same end. 
 
 156. Provision for non-riparian lands. 
 
 157. Condemnation of stream for public use. 
 
 158. Whether irrigation is a public use. 
 
 159. Eminent domain. 
 
 160. Summary of suggestions concerning legislation. 
 
 161. Concluding observations.
 
 TABLE OF CASES CITED. 
 
 [the numbers refer to sections.] 
 
 A. 
 
 Acquackanonk Water Co. v. Watson 12.5 
 
 Acton V. Bluudell 63 
 
 Adams v. Barn 63' 7 
 
 Agawam Caual Co. v. Edwards 125 
 
 American Co. v. Bradford 83 
 
 Antliony v. Lapham 142, 144 
 
 Arnold v. Foot 8, 119, 142 
 
 Ashley v. Wolcott 62 
 
 Atchison V. Peterson 15, 17, 19, 64. 79, 89 
 
 B. 
 
 Baker v. Brown 125, 138 
 
 Baltimore v. Appold 8, 125 
 
 V. Warren Manuf g Co 157 
 
 Barkley v. Tieleke 43, 88, 89 
 
 Barnes v. Marshall ! 75 
 
 V. Sabron 15, 26, 43, 60, 61, 64, 79, 80, 83, 84, 143 
 
 Barrett v. Parsons 125 
 
 Basey V. Gallagher 17, 19 
 
 Batavia Manuf g Co. v. Newton Wagon Co 125 
 
 Bealey V. Shaw 8, 119 
 
 Bear River Co. v. New York Min. Co 15, 18, 64, 70, 80 
 
 Bellv.Gough 159 
 
 Blaisdell v. Stephens 75 
 
 Blanchardv. Baker 119, 142, 144 
 
 Bliss V. Kennedy 4, 7, 126 
 
 (xi)
 
 xii CASES CITED. 
 
 Hnircs V- Morcpd Min. Co 33' '^^ 
 
 Huston Holliiii,' Mills v. Cambridge 77 
 
 Hiiyiiton V. Longley "^^^ ^^° 
 
 Hr«(ll.- V V. Ilnrkness 59 
 
 Hro.l.r V. Nfttoiua Water Co 16. 17, 27. 40. 83 
 
 Hrown V. Ashley 63,68 
 
 HurkiriLrliam v. Smith H^ 
 
 Hiuliiinik'ton v. Bradley 7, 8 
 
 HiifTiiin V. Harris 62 
 
 Hurwcll V. Ilubson 127 
 
 Hiitle Canal, etc.. Co. v. Vaughn 48, 83. 89 
 
 Butte T. M. Co. v. Morgan 64, 65, 68 
 
 c. 
 
 Campbell v. Bear River Co 72 
 
 V. Smith 119 
 
 Canal Appraisers v. People 119 
 
 Carpcntier v. Webster 59 
 
 Caruthcrs v. Pemberton 43 
 
 Cary v. Daniels 9. 11, 125 
 
 Case V. Weber 8 
 
 Chandler v. Ilowland 125 
 
 Chasemore v. Richards 8, 63 
 
 Chiatovirh v. Davis. . • .~ 58 
 
 Chotard v. Pope 41 
 
 Clark V. Willett 64, 67 
 
 Clifford V. Larrien 69 
 
 Clinton V. Myers 8, 125 
 
 Coffin V. Left Hand Ditch Co 49 
 
 Coffman v. Robbius 8 
 
 Cole Silver Min. Co. v. Virginia Water Co 63 
 
 Columbia M. Co. v. Holtcr 50 
 
 Commissioners v. Kempshall 119 
 
 V. Withers 159 
 
 Conger v. Weaver 23 
 
 Cook V. Hull 144 
 
 Cooper V. Williams g 157 
 
 Corning v. Troy Iron, etc., Factory 119 
 
 Countess of Rutland v. Bowler 9 
 
 Covington v. Becker 43 
 
 Cowles V. Kidder 4 g 
 
 Cramer v. Randall 43 47 70 
 
 Crandall v. Woods 15, 33, 36, 45, 109. UO 
 
 Crane v. Winsor I5
 
 CASES CITED. XIU 
 
 Creighton v. Evans 9, 37, 109. 110, 111. 123 
 
 V. Kaweah Canal Co ""^ 
 
 Crisman v. Heiderer ^"" 
 
 Crocker v. Bragg ^]^ 
 
 -Cross V. Kitts 
 
 63 
 
 \ 
 
 D. 
 
 Dalton V. Bowker ^^ 
 
 Daniels v. Lansdale *" 
 
 Davis V. Fuller ^^^ 
 
 V. Gale 47, 50, 64, 65, 79, 83, 86, 88, 8» 
 
 V. Getchell ^' l^^' ^^^ 
 
 1 07 
 
 De Baun v. Bean '■"" 
 
 Dickv. Bird '^'^ 
 
 v. Caldwell 4^' ^^ 
 
 Dickinson v. Grand Junction Canal Co 63 
 
 V. Worcester 
 
 Dilling V. Murray 8. 1«5 
 
 Dodare v. Harden ^^ 
 
 1 QO 
 
 Dorr v. Hammond 
 
 Dougherty v. Haggin 
 
 Dow v. Edes "^^ 
 
 ft 
 
 Druley v. Adam 
 
 Dumont V. Kellogg *' 1^' ^^^ 
 
 E. 
 
 Earl V. DeHart ^^ 
 
 Earl of Sandwich V. Great N. Ry "^^^ 
 
 Eddy V. Simpson ^ 
 
 Edgar v. Stevenson ^* 
 
 Elliot V. Fitchburg R. R 119,125, 142 
 
 Ellis V. Tone 109,111,128,130,131,134 
 
 Ellison V. Jackson Water Co 48 
 
 Embrey V.Owen 8.119,125,140 
 
 Eulrich V. Richter ••• ^^ 
 
 Eureka Lake Co. v. Superior Court ''"'' 
 
 Evans v. Merriweather 4, 8, 125. 138, 142 
 
 V.Ross 69.90 
 
 lid 
 Ex parte Jennings 
 
 F. 
 FarleV v.' Spring Valley M. Co 15, 36, 40. 41 
 
 JO 
 
 Fabian v. Collins
 
 XIV CASES CITED. 
 
 Fnm'Il V. Richards 125, 143 
 
 Keliz V. L<)9 Aiicflos 80 
 
 Fcrrca v. Knipe 9. 109, 110, 123, 127, 129 
 
 Fleming V. Davis 12"5 
 
 FraUT V. Sears Co 72 
 
 Frey v. I^owden 59 
 
 Frisbio v. Whitney 40, 41 
 
 Fuller V. Chicopee Mnnufg Co 11 
 
 G. 
 
 Gannon v. Hariradon 62 
 
 tJardiier v. NewhiirLrh 119 
 
 Carwood v. Hailroad 126 
 
 lurrish v. New Market Co 119, 125 
 
 IJibbs V. Williams 62 
 
 (Jibson V. Piichta 36, 47 
 
 Gillelt V. Johnson 62, 142 
 
 Gilman v. Tiltou 4 
 
 Golden Canal Co. v. Briirht 99 
 
 Gould V. Boston Duck Co 11 
 
 Green v. Carotto 62 
 
 Grepory v. Nelson 64, 67 
 
 Grigsby v. Clear Lake W. Co 75 
 
 H. 
 
 Ha^rar V. Reclamation District 42 
 
 llalduman v. Bruckhart 63 
 
 Hale V. McLca 9 53 109 
 
 Hanson v. McCue 9, 62, 63, 109 
 
 Hardt v. Liberty Hill Min. Co 78 
 
 Hartzall v. Sill 4 
 
 Harvey v. liyan 04 
 
 Hayes v. Waldron jog 
 
 Hazelline v. Case j25 
 
 Heath V. Williams 4 5 jjg 
 
 Hebron Gravel Road Co. v. Harvey 63 
 
 Henderson V. Nicholas 58 
 
 Hendrick v. Cook g 
 
 Hendricks v. Johnson o 
 
 Hcnshaw V. Clark 74 75 
 
 Hipgins V. Barker 79 81 83 
 
 Hill V. King . .15 68 
 
 ▼. Newman .....'.*.".*.".'.".*. .9, is! 18
 
 CASES CITED. XV 
 
 Hill V. Smith 15, 37, 64, 70, 83, 109 
 
 Hillman v. Newington 77 
 
 Himes v. Johnson 15, 64 
 
 Hobartv. Ford 43 
 
 Hoffman v. Stone 15, 18, 48, 68 
 
 V. Tuolumne Co 73, 73 
 
 Holden v. Lake Co 125 
 
 Holsman v. Boiling Springs Co 8 
 
 Howard v. Ingersoll 63 
 
 Hoy V. Sterrett ^ 
 
 Humphreys v. McCall 43 
 
 Huston V. Leach 1^^ 
 
 Huttonv. Frisbie 40,41 
 
 I. 
 
 Ingraham v. Hutchinson 119 
 
 Irwin V. Phillips 15. 24 
 
 V. Strait 64 
 
 J. 
 
 James V. Williams ^^ 
 
 Jennings, Ex parte H^ 
 
 Jennison v. Kirk 13, 40 
 
 Johnson v. Jordan 9, 119 
 
 V. Superior Court 69 
 
 Jones V. Adams 17> 143 
 
 V. Wabash, etc., R. Co 62 
 
 Judkins v. Elliott 26 
 
 Juukans v. Bergin "5 
 
 K. 
 Kaler v, Campbell 
 
 Keeney v. Carillo 
 
 48 
 
 Keeney Manuf g Co. v. Union Manuf g Co 4, 11 
 
 Kelly V. Dunning 63 
 
 V. Natoma Water Co 15, 18,50,83 
 
 Kiddv. Laird 15,48.55,60,64,65,79 
 
 Kimball V. Gearhart 50,51.53,54,64 
 
 King V. Edwards 24 
 
 V. Tiffany 8' 11^ 
 
 Knoth V. Barclay ^^
 
 xvi CASE3 CITED. 
 
 L. 
 
 I>an«<lftlp V. Dnnicls 2ff 
 
 I^Hriiner Co. Heservuir Co. v. Pciiplc ^9 
 
 L«'iiriHHl V. Tfiiijs't'iiiiin 138 
 
 IxmIu v. Jim Yl'I \Va »0 
 
 L«lii Irrignlinn Co. v. Moylc 'i^, 105 
 
 lA-\t:h Co. V. ImlependeiilDil.h Co 33. 36, 109 
 
 Ia- varolii v. Miller 7& 
 
 Lick V. Madden 119 
 
 Lincoln v. Chad bourne 11 
 
 Lobdell V. Hall 43,58 
 
 V. Simpson 15.43, 79,83 
 
 Lock wood Co. V. Lawrence 76 
 
 Lotran V. Driscoll 76 
 
 Lorenz v. Jacobs 59 
 
 Los Angeles v. Baldwin 55 
 
 Lowden v. Frey 89 
 
 Lowell V. Boston 11 
 
 Lower Kiniis Hiver W. Co. v. Kings River Co 55, CO' 
 
 Luther v. Winnisimraet Co 63 
 
 Lux V. Haggin 8. 9, 16, 21, 22, 24,26,28, 29. 36, 62, 69, 
 
 113. 114, 115, 116, 125, 140, 142, 143, 159 
 
 Lytle V. Arkansas 41 
 
 Lytle Creek Water Co. v. Perdew 26, 43, 59, 84, 93, 109, 111 
 
 M. 
 
 Mack V. Jackson 69' 
 
 Ma< oinber v. Godfrey 63 
 
 Maeris v. Hicktiell 15, 47, 54, 65 
 
 Mahan v. Brown 63 
 
 Martin v. Bigelow 8 
 
 V. Waddell 31 
 
 Mason v. Cotton 69 
 
 V- 'I'll 8, 114, 119, 125 
 
 Mayor of Baltimore v. Appold 8, 125 
 
 McCarty v. Boise City Canal Co 7.5- 
 
 McDonald v. Askew 47, 55,56, 60, 64, 86 
 
 V. Bear Hiver Co 15, 47, 53, 65, 68 
 
 McElroy v. Goble 125 
 
 M( Kinney v. Smith 47 79 83 
 
 Mcucrle V. Ashe 26 
 
 Mcrritleld v. Lombard 8 
 
 Merrill v. Brinkerholl 125.
 
 CASES CITED. XVll 
 
 Miller V. Miller 138 
 
 V. Troost 11 
 
 Mills V. Hall 77 
 
 Miner v. Gilmour 125, 140 
 
 Mitchell V. Parks .-.. 8 
 
 Mofifett V. Brewer 119 
 
 Moore v. Clear Lake Water- Works 69 
 
 Morton v. Solambo C. M. Co 24 
 
 Mosier v. Caldwell 63, 109 
 
 Munroe v. Ivie 43, 47, 159 
 
 N. 
 
 Natoma Water & M. Co. v. McCoy 60, 64,68 
 
 Nevada, etc., Co. v. Kidd 15,36, 53,55 
 
 V. Powell , 65, 79, 83, 87 
 
 Newhall v. Ireson 142 
 
 Nixon V. Bear River Co — 76 
 
 Norbury v. Kitchin 140 
 
 Norton v. Volentine 10 
 
 Norway Plains Co. v. Bradley 125 
 
 Nuttall V. Bracewell 125 
 
 o. 
 
 Omelvany v. Jaggers 8 
 
 Ophir Silver Min. Co. v. Carpenter 15, 43, 51, 52, 54, 64, 80 
 
 Orr Ewing v. Colquhoun 8 
 
 Ortnian v Dixon 15, 47, 55, 56, 58. 64, 79, 83 
 
 Osgood V. El Dorado Water Co 26, 36, 39, 50, 51, 52, 54 
 
 P. 
 
 Palmer v. Waddell 63 
 
 Parke v. Kilham 51, 52, 54, 68 
 
 Parker v. Hotchkiss 4, II7 119 
 
 Parks v. Ne wburyport .... 62 
 
 Parks Canal Co. v. Hoyt 15, 48, 55, 60 
 
 Pennsylvania R. R. v. Miller 125 
 
 People V. Canal Appraisers 21, 119 
 
 V. Cunningham 77 
 
 V. Gold Run Ditch Co 77 
 
 V. Stratton 77 
 
 Pettibone v. Smith 10 
 
 Pettis V. Johnson 77 
 
 Phoenix W. Co. v. Fletcher 15, 60, 64, 68 
 
 POM. RIP. — b
 
 XVUl CASES CITED, 
 
 Pillsbury v. Moore '''> 8 
 
 Pitt.s V. Lnncastrr Mills 125 
 
 riuiiili-i,i;h V. Diiwsoii 8. 119> 125 
 
 Pollard's Li-ssrc v. lliigaii 81 
 
 Pope V. Kii.miin !». 37. 109. 110, 111, 119, 123 
 
 Poller V. liiirdcn 8 
 
 Pratt V. Laiuson 8, 11 
 
 Proctor V. .leiinings 73, 83 
 
 Pugh V. Wheeler 4,5, 119 
 
 Pyle V. Richards 62 
 
 Q. 
 
 Quirk V. Fulk 57 
 
 R. 
 
 Railroad Co. v. Carr 75 
 
 Red River RolIerMills v. Wright 76 
 
 Reed v. .Spicer 57 
 
 Reynolds v. Hosnier 60, 64, 81,87 
 
 Rhodes v. Whitehead 8. 125. 138 
 
 Richardson v. Kier 48, 72, 75 
 
 Robinson v. Hlack Diamond Co 76 
 
 V. Imperial S. M. Co 43, 50 
 
 Rogers v. Jones 119 
 
 Rominger v. tSquires 85 
 
 Rudd V. Williams 8 
 
 Rupley V. Welch 37, 64 
 
 s. 
 
 Sacramento v. Central Pac. R. R 77 
 
 Baddler v. Lee 63 
 
 8t. Helena Water Co. v. Forbes 157 
 
 Bampson V. Hoddinott 9,119,125,140 
 
 Bchilling v. Rominger 15^ 106 
 
 bchul/. V. .Sweeny 89 
 
 Bhamlefler v. Council Grove Mill Co 8 
 
 Shields V. Arndt g3 
 
 hhively v. Hume gg 
 
 Shoemaker v. Hatch 43 
 
 Shook V. Colohan j23 
 
 Shury v. Piggot 9 
 
 Weber V. Frink ! 49, 54, 65, 90 
 
 Simpson v. Williams 79
 
 CASES CITED. XIX 
 
 Sims V. Smith 69 
 
 Slack V. Marsh 123, 125 
 
 Smith V. Adams 63 
 
 V. Agawam Canal Co 11 
 
 V. Athern 26 
 
 V. Gould 157 
 
 V. Logan. 90, 117 
 
 V. O'Hara 58, 83, 84, 89 
 
 V. Rochester 6, 21 
 
 Snow V. Parsons 119, 125 
 
 Springfield v. Harris 8, 126 
 
 State V. Pottmeyer 125 
 
 Stein V. Burden 123, 125 
 
 Stein Canal Co. v. Kern Island Co 64, 81, 83 
 
 Stillman v. White Rock Co 4 
 
 Strait V. Brown 15.48, 63,64, 87, 109 
 
 Swift V. Goodrich 69, 125, 143 
 
 Swindon Water- Works v. Wilts Canal Co 140 
 
 T. 
 
 Tartar V. Spring Valley Min. Co 19 
 
 Taylor V. Welch 8,63 
 
 Ten Eyck v. Delaware Canal Co 8 
 
 Tenney v. Miners' Ditch Co 72 
 
 Thomas v. Guiraud 47, 49. 50 
 
 Thompson v. Lee 50 
 
 Thurber v. Martin ' 125 
 
 Tillotson V. Smith 8. 119, 125 
 
 Timm v. Bear. 125 
 
 Titcomb v. Kirk 74 
 
 Toddv. Cochell 72 
 
 Tourtellot v. Phelps 125 
 
 Townsend v. McDonald 7 
 
 Trenton Water Co. v. RafE 159 
 
 Trustees v. Haven 119 
 
 Tucker v. Salem Flouring-Mills 118 
 
 Tuolumne W. Co. v. Chapman 68 
 
 Turner v. Tuolumne Co 74 
 
 Twiss V. Baldwin ^ 125 
 
 Tylerv. Wilkinson 4,5,8^ 9, 119, 125 
 
 u. 
 
 Union Mill Co. v. Dangberg 83. 86 
 
 V. Ferris 32, 33,36, 125, 138 
 
 Union Water Co. v. Crary 90
 
 XJL CASES CITED. 
 
 V. 
 
 Van Sickle v. Unmcs 10. 33. 30, 43. 109. 119. 120, 123, 131, 135 
 
 Vcrnuiu v. Wlieelcr '''•> 
 
 Vliet V. Sherwood & 
 
 w. 
 
 W'adsworth v. Tillotsnn 8, 9, 119, 125. 
 
 Wiire V. Walker 26, 65 
 
 Wattier V. Miller 118 
 
 Weaver v. Contjer 53 
 
 V. Eureka Lake Co 47, 50, 51, 52, 68 
 
 Webb V. Porllaiul Mannfg Co 119, 125 
 
 Weidekind v. Tuoluinue Water Co 73 
 
 Weill V. Baldwin 117 
 
 Weiss V. Oregon Iron Co 69, 126- 
 
 West V. Taylor 62 
 
 Western Pac. R. R. v. Tevis 40, 41 
 
 Weston V. Alden 142 
 
 Wheatley v. Baiigh 63 
 
 V. Chrisman 125 
 
 Whetstone v. Bowser 63 
 
 White V. Todd's Valley W. Co 81 
 
 Whittier v. Cocheco Manuf g Co 6* 
 
 Wilcox V. Ilausch 79- 
 
 Williams v. Wadswortb IIT 
 
 Williamson v. Canal Co 125 
 
 Wixon V. Bear River Co 15, 37, 76 
 
 Wolf V. St. Louis, etc., Co 72 
 
 Wood V. Edes 125 
 
 V. Waud ; 8, 125. 
 
 Woodruff V. North Bloomfield G. M. Co 24, 32, 42, 76, 77 
 
 Woolman v. Garringer 47, 51, 54, 65, 79, 89 
 
 Wright V. Howard 8, 119 
 
 V. Moore 77 
 
 Y. 
 
 Yankee Jim's Union Water Co. v. Crary 68 
 
 Yolo Co. V. Sacramento 77 
 
 Yunker v. Nichols 10ft 
 
 t
 
 LAW OF RIPARIAN RIGHTS. 
 
 CHAPTER I. 
 
 INTRODUCTIOJq". 
 
 § 1. Importance of the subject — Need of legislation. 
 
 2, Object of the present work. ' 
 
 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 
 
 POM. RIP. — 1
 
 I 2 INTRODUCTION. [Ch. 1. 
 
 eiHKlitioiis are essential: (1) The common-law rules concerning 
 wuter-right, should be accurately apprehended, in order that it 
 may be seen how far, and in what particulars, they are unfitted 
 for tlie industrial jnirsuits, 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 far as 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 
 aU conflicting interests, as far as it is possible to provide for and 
 protect all by a compromise in which each must make some 
 Burrender, must submit to some curtailment. Common justice 
 lequircs some partial surrender by each in order that all may 
 \c })enetited; and the chief difficulty lies in making an equitable 
 api>irtionment of such burdens among all classes of proprietors. 
 Statutes wliich 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 for the purpose of dis- 
 eussing a subject of great importance to the legal profession, I 
 intend, in the following pages, to examine the existing law con- 
 (2)
 
 Ch. 1.] INTRODUCTION. § 3 
 
 cerning Water-Eights and the Rights of Riparian Owners, as it 
 prevails in the southern states and territories of the Pacific slope; 
 to 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- 
 eficial, 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 sierras, 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 
 
 (3)
 
 § 8 INTRODUCTION. [Ch. 1. 
 
 Snclling, 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 xiparian 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 cliannels. 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; and this will 
 be attempted in the following chapter. 
 (4)
 
 Ch. 2.] COMMON-LAW DOCTRINE. § 4 
 
 CHAPTER II. 
 
 THE COMMON-LAW DOCTRINE. 
 
 § 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 owners 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 pro^jrietor 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 COMMON-LAW DOCTRINE. [Ch. 2. 
 
 presupposes n 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 j^ariia? deviations from 
 its consequences in certain particulars in a few of the states. 
 
 § 5. 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 
 
 J [In the United States it is well Scam. 492; Oilman v. Tilton, 5 N, 
 settled that mere prior occupancy H. 231; Cowles v. Kidder, 24 N. H. 
 or appropriation of the water of a 378; Parker v. Hotchkiss, 25 Conn, 
 running stream by a riparian own- 321 ; Keeney Manuf'g Co. v. Union 
 er, unless continued for such a Manuf'g Co., 39 Conn. 576; Hart- 
 length of lime as to raise a pre- zall v. Sill, 12 Pa. St. 248; Pugh v. 
 sumption of a grant, can give no Wheeler, 2 Dev. & B. 55; Bliss v. 
 exclusive right thereto as against Kennedy, 43 111. 67; Dumont v. 
 other owners above or below him Kellogg, 29 Mich. 420; Stillman v. 
 on the same stream, except where White Rock Co., 3 Woodb. & M. 
 the common law has been modified 5.50; Tyler v. Wilkinson, 4 Mason, 
 by local usage or by statutory en- 397; Ang. Water- Courses, §§ 134^ 
 actmenl. Heath v. Williams, 25 3.50.J 
 Me. 209; Evans v. Merriweather, 3 
 
 (6)
 
 Ch. 2.] 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 ta 
 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 
 
 (7)
 
 § 6 COMMON-LAW DOCTRINE. [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 cm 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 streanis which are navigable. This subject was recently 
 considered by the New York court of appeals in the case of 
 Smith V. City of Rochester, 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 
 higliway, which easement, as it pertains to the sovereignty of 
 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- 
 
 *Se8 also the elaborate editorial can, are collected, and the special 
 
 note to Heath v. Williams, 43 rules established by them are for- 
 
 Amcr. Dec. 269-279, in which nu- mulated. 
 merous cases, English and Ameri- 
 
 (8)
 
 Ch. 2.] COMMON-LAW DOCTRINE. § 6 
 
 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, appl}' 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- 
 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. 
 
 (9)
 
 § 8 COMMON-LAW DOCTRINE. [Ch. 2. 
 
 § 7. Specific rules stated. 
 
 From this general doctrine, the following more specific rulea 
 necessarily follow. A riparian j)roprietor 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." 
 
 § 8. Riparian owner's right 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 
 
 'Adams v. Barney, 25 Vt. 225. diminution or alteration. Bud- 
 
 Nor is it any defense to an action dington v. Bradley, 10 Conn. 213. 
 
 for diverting water from a riparian ^Hee 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 43 Amer. Dec. 274, 
 
 it, he has the right to the flow of 275. 
 the water on his own land without 
 
 (10)
 
 Ch. 2.] 
 
 COMMON-LAW DOCTRINE. 
 
 §8 
 
 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 
 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 
 
 lEmbrey v. Owen, 6 Exch. 352; 
 Wood V. Waud, 3 Exch. 748; Bea- 
 ley V. Shaw, 6 East, 208; Mason v. 
 Hill, 3 Barn. & Add. 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; Pillsbiiry v. 
 Moore, 44 Me. 154; Cowles v. Kid- 
 der, 24 N. H. 364; Tillotson v. 
 Smith, 32 N. H.90; Martin v. Bige- 
 low, 2 Aiken, 184; Merrifield 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. 213; Wadsworth 
 V. Tillotson, 15 Conn. 366; Clinton 
 V. Myers, 46 N. Y. 511; Arnold v. 
 Foot, 12 Wend. 330; Hoy v. Ster- 
 rett, 2 Watts, 327; Holsman v. 
 Boiling Springs Co., 14 N. J. Eq. 
 335; Ten Eyck v. Delaware Canal 
 
 Co., 18 N. J. Law, 200; Mayor of 
 Baltimore v. Appold, 42 Md. 442; 
 Omelvany v. Jaggers, 2 Hill, (S. 
 C.) 684; Hendrick v. Cook, 4 Qa. 
 241; Hendricks v. Johnson, 6 Port. 
 (Ala.)472; Potierv. Burden, 38 Ala. 
 651; Rhodes V. Whitehead, 27 Tex. 
 304; Shamleffer v. Council Grove 
 Mill Co., 18 Kan. 24; Cooper v. 
 Williams, 4 Ohio, 253; Case v. 
 Weber, 2 Ind. 108; Billing v. Mur- 
 ray, 6 Ind. 334; Mitchell v. Parks, 
 26 Ind. 354; Evans v. Merriweather, 
 3 Scam. ; 492. Plumleigh v. Dawson, 
 1 Gilman, 544; Rudd v. Williams, 
 43 111. 385; Druley v. Adam, 102 
 111. 177; Davis v. Getchell, 50 Me. 
 604; Vliet v. Sherwood, 35 Wis. 
 229; Lux v. Haggin, (Cal.) 10 Pac. 
 Rep. 753; Taylor v. Welch, 6 Or. 
 198; Coffman v. Robbins, 8 Or. 
 278; 3 Kent, Comm. *439; Ang. 
 Water-Courses, § 95; Gould, Wa- 
 ters, g 204. 
 
 (11)
 
 J 9 COMMON-LAW DOCTRINE. [Ch. 2. 
 
 some exclusive enjoyment. He has no property in the water 
 itself, but a simple usufruct wliile it passes along. Aqua mrrit 
 €t 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. 
 
 Altlii>uj;h, as above stated, the riparian owner has no prop- 
 erty in tlie 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 pro])rietor 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 susjiend 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. 
 
 '3 Kent. Comm. *439. v. Wilkinson, 4 Mason, 397; Samp- 
 
 *Lux V. Ilaggin, (Cal.) 10 Pac. son v. Hoddinott, 1 C. B.(N. S.)590; 
 
 Rep. 753; citing Ang. Water- Hill v. Newman, 5 Cal. 445; Pope 
 
 Courses. ^ 93; Hhury v. Piggot, v. Kinman, 54 Cal. 3; Creighton v. 
 
 Bulst. 339; Countess of Rutland Evans, 53Cal. 55; Ferrea v. Knipe, 
 
 y. Bowler. Palmer, 290; Washb. 28 Cal. 340; Eale v. McLea, 53 Cal. 
 
 Easem. 319; Gould, Waters, g 204; 578; Hanson v. McCue. 42 Cal. 303. 
 
 Johnson v. Jordan. 2 Mete. 239; See, also, Wadsworth v. Tillotson, 
 
 Cary v. Daniels, 5 Mete. 238; Tyler 15 Conn. 366. 
 (12)
 
 Ch. 2.] 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, "v^hen 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, wdthin 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 will 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 mills on 
 their land. In such case, prior occupancy gives a prior right 
 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 
 
 iLux V. Haggin, (Cal.) 4 Pac. spettibone v.Smith,37Mich.579; 
 Kep. 919. 2S[orton v. Volentine, 14 Vl. 239. 
 
 (13J
 
 §11 COMMON-LAW DOCTRINE. [Ch. 2. 
 
 there may be fall enough for mill-sites at short distances; or the 
 descent may be so grailual as only to admit of mills at consid- 
 enible 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 full to erect a mill on his land. It seems to follow, as a 
 necessary 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 
 occupy 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 rea.sonable 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 
 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 
 (14) 
 
 I
 
 Ch. 2.] COMMON-LAW DOCTRINE. § 11 
 
 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. 365, (Gil. 282.) 
 
 451; Fuller v. Chicopee Manuf'g ^See Parker v. Hotchkiss, 25 
 
 Co., 16 Gray, 44; Smith v. Agawam Conn. 321; Keeney Manuf'g Co. v. 
 
 Canal Co., 2 Allen, 857; Pratt v. Union Manuf'g Co., 39 Conn. 576; 
 
 Lamson, Id. 288; Lowell v. Boston, Dumont v. Kellogg, 29 Mich. 420. 
 
 (15)
 
 5 12 ArFHorrtiATioN of waters. [Ch. 3. 
 
 CHAPTER in. 
 
 APPHOnUATIOX OF WATERS FLOWING THROUGH THE 
 PUBLIC DOMAIN. 
 
 L OnKiiN AND Basis of the Right to AppuorniATB. 
 § 12. Scope of the present chapter. 
 
 13. Early importance of miuiug interests. 
 
 14. Minini,' customs. 
 
 1.5. 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 unknown to the common law. 
 
 22. Basis of right to appropriate water. 
 
 23. Grounds for presumption of license. 
 
 24. Efficacy of miners' customs. 
 
 XL Ari'KOfKIATION AS AGAINST THE SUBSEQUENT GrANTEE OF THE 
 GOVEHNMENT. 
 
 § 2.5. Title of subsequent grantee is subject to prior appropri- 
 ation. 
 
 26. California decisions on this jioint. 
 
 27. Views of United States supreme court. 
 
 28. The act of 1870 is declaratory only. 
 
 29. Public lands of the state. 
 
 in. TiiK Right Restuicted to the Public Domaht. 
 § 30. Apprf)priation confined to public lands. 
 
 31. .Jurisdiction of state and United States distinguished. 
 
 32. Power of government to annex conditions to grants. 
 IV. Conklkting Claims between Settlers and Appropkiators. 
 
 § 33. Converse of doctrine of appropriation. 
 
 34. When title from United States is perfected. 
 
 5'). When paten:ee's riparian rights vest. 
 
 86. Review of the authorities on this point. 
 
 87. Riparian rights protected. 
 
 8S. Doctrine of relation applied to patentees. 
 
 89. Grounds for the application of this doctrine. 
 
 40. California decisions. 
 
 41. Review of the cases. 
 
 42. Riparian rights under Mexican grants. 
 
 43. Summary of conclusions. 
 
 (10;
 
 Ch. 3.] APPROPKIATION OF WATERS. § IS 
 
 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 
 suddenly peopled by masses of men from all states and coun- 
 POM.RIP. — 2 (17)
 
 I 14 APPROPRIATION OF WATERS. [Ch. 3. 
 
 tries, restrained by no law, and not agreed as to whence the laws 
 ouiihi to emanate by wliicli they would consent to be bound." ^ 
 
 § 14. Mining customs. 
 
 In this condition of allairs, the miners themselves adopted 
 ttcrtain "mining customs" to which they yielded a voluntary 
 •bediencc, 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 
 Leld meetings in each district or locality, and enacted regula- 
 tions by wliicli 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 
 fear or diggings embracing said claims, and such customs, usages, 
 ©r regulations, when not in conflict with the constitution and laws 
 ef 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 
 ethers, the amount of work which would entitle him to a con- 
 tinued possession and enjoyment, Avhat would constitute anaban- 
 Uonment, and similar matters.^ In this proceeding we find the 
 ©rigin 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 
 
 eiistoms adopted by the miners, U. S. 453. 
 
 Ihe 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 pernm- 
 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 througli 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 streanas 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 j^rior ajDpropriation. 
 
 § 15. 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 aU other beneficial purposes for which water may be 
 
 (19)
 
 § 16 APPROPRIATION OF WATERS. Cll. 3. J 
 
 essential, — to niillini^, manufacturing, agricultural, irrigating, 
 anil niunicijial purposes.^ 
 
 § 16. Appropriation not at first availing as against 
 the government. 
 
 [It is very imjjortaiit 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 i)rior appropriator as against another person not the owner of 
 the soil, they acquired no sanction as aga,inst 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 States, 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- 
 l)riated 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 
 
 ^Californin. Parks Canal, etc., Co., 58 Cal. 142; Himes v. John- 
 Co. V. Hoyt, 57 Cal. 44; Hill v. son, 61 Cal. 259. Nevada. Strait v. 
 Smith. 27 Cal. 480; Wi.xon v. Bear Brown, 16 Nev. 317; Barnes v. Sa- 
 River. etc.. Co.. 24 Cal. 367; Phce- 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; Ortnian dell v. Simpson, 2 Nev. 274. Col- 
 V. Dixon, 13 Cal. 33; McDonald v. orado. Schilling v. Kominger, 4 
 Bear River, etc., Co., Id. 220; Bear Colo. 100. Utah. Crane v. Winsor, 
 River, etc., Co. v. New York Min. 2 Utah, 248. Montana. Atchison 
 Co., 8 Cal. 327; Crandall v. Woods, v. Peterson, 1 Mont. 561. For pur - 
 Id. 136; Hill V. Kint', Id. 336; Uoll- poses of irrifjation, etc. Barnes v. 
 man v. Stone, 7 Cal. 46; Kelly v. Sabron, 10 Nev. 217; Lobdell v. 
 Natoma W. Co., 6 Cal. 107; Hill v. Simpson, 2 Nev. 274. Ofmanufact- 
 Newman, 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, 262; Neva- man v. Dixon, Id. 33; and see note 
 da, etc., Co. v. Kidd, 37 Cal. 282, in 43 Amer. Dec. 279, 280. 
 312; Farley v. Spring Valley M. 
 
 C20)
 
 Ch. 3.] APPROPRIATION 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 Van Sickle 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 all 
 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 
 Yansickle v. Haines. But is there any real conflict? It will 
 be observed that the Broder Case turned (so far as the plain- 
 tiffs 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 
 
 »Lux V. Haggin, (Cal.) 10 Pac. Rep. 734. 2 id. 725. 
 
 (21)
 
 I 
 
 § 17 ArrRonuATioN of watebs. [Ch. 3. 
 
 coii:jiruoiinn ^'ivoii to the lani,'iiage of the reservation, of course, 
 implies that those wlioapprojjriatetl hinds or waters on the pub- 
 lic lanils, prior to the acts of 1S64 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 
 whicli could be asserted against the United States or its grantees, 
 except so far as tlieir occupations of land or water were pro- 
 tected and reserved to tliem 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. This 
 limitation was soon removed. The United States governmen"t 
 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 
 Eujjreme court, does not create the right; but it is "rather a 
 voluntary recognition of a pre-existing right of possession, con- 
 
 iBroder v. Natorua Water Co., 20 Wall. 670; Atchison v. Peterson, 
 101 U. S. 274; Basey v. Gallagher. Id. 507. 
 
 2 Rev. St. U. S. §2339. 
 (22)
 
 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 icants of 
 the community, 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 these 
 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, (Nov.) 
 101 U S. 274. The act of congress 6Pac. Rep. 442. 
 of 1866 merely confirms to land- 2 gee, for example. Hill v. New- 
 owners the rights and privileges man, 5 Cal. 44.5; Kelly v. Natom* 
 Ihey had formerly enjoyed by lo- W. Co., 6 Cal. 107. 
 cal customs and the decisions of ^7 Cal. 47, 48, (1675.) 
 
 (23)
 
 § 18 APPROPRIATION OF WATERS. [Ch. 3. 
 
 jiarts of the country whicli must have otherwise remained un- 
 fruitful and undeveloped, it was held that the first appropriator 
 aoiuired a special property in the waters thus appropriated; 
 and, as a necessary consequence of such property, might invoke 
 all k-gal 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 lias 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 only to the parties immediately connected with the suit, 
 but 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- 
 
 »8Cal. 327,332,(1875.) 
 (24)
 
 ■Ch, 3.] APPROPRIATION 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 necessary, and after doing this he was bound to 
 let the remaining portion flow, without material interruption or 
 deterioration, in the natural chamiel 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 APPROPRIATION OF WATERS. [Ch. 3. 
 
 sentence, as a common-law rule, may be questioned.] So far 
 ns tlic preferred uses were concerned, no one was allowed to de- 
 teriiirate the (juality of tlie water; and, for the purposes of a 
 motive power, tiiere was no use of the element which could im- 
 I)air 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 sanje 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 otiicr 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.] APPROPEIATION OF WATERS. § 19 
 
 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 approi3ri- 
 ator, in order to preserve the quality of a small portion taken 
 by him from the stream. 
 
 § 19. Vie^ws of the United 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 to 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 
 
 120 Wall. 507, (1874.) 
 
 (27)
 
 § 19 APPROPRIATION OF WATERS. [Ch. 3. 
 
 of the stream, nnd such owner lias the right to the use of the 
 water tlowing over the laud as an incident to his estate." The 
 judf^e gives a summary of the comnion-hiw doctrines as they are 
 stated in the preceding chapter, and then proceeds as follows: 
 "This o<juality of right [at the common law] among all the 
 jm'priftors on the same stream would have been incompatible 
 witli any extended diversion of the water by one proprietor, 
 and its convenience for mining purposes to points from which 
 it couUl 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 tirst 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 i)rior appropriation was recognized by the 
 legislation of congress in 186G, [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 and terri- 
 tories of the Pacific coast by the customs of miners or settlers, 
 or by the couits, 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 an\ 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 APPROrRIATION OF WATERS. [Ch. 3. 
 
 ngricultural and manufacturing purposes, as well as for mining. 
 * * * It is evident that congress intended, altliough the 
 languaire used is not happy, to recognize as valid the customar}'^ 
 law with rt'Spt'ct to the use of water, which had grown up 
 aiimng the occupants of the puljlic land under tiie peculiar ne- 
 cessities of tlieir condition; and that law may be shown by evi- 
 dence of the local customs, or h}' 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 
 l)erfection of the right by j^riority; 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 upon 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 tlie 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 ditl'erent 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 OF WATERS. § 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 conmion-law rules would defeat this intention, 
 and retard, if not wholly 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 eiitended 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 differ widely 
 from the general course of reasoning pursued by the state judges, 
 and especially from that adopted by the United States supreme 
 <30urt; and they are, as it seems to me, utterly irreconcilable 
 with man}"- subsequent decisions, establishing more special 
 rules, made by the state and the federal courts. 
 
 § 21. Doctrine of appropriation unkno"wn to tlie 
 common la'w. 
 
 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 
 
 (31)
 
 § 1>2 ArrROPRIATION OF WATERS. [Ch. 3» 
 
 courts of the Tncific com iiion wealths. In alleged support of thi» 
 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 tlie court with much 
 learning and ability, the early authorities were copiously cited, 
 and tlie 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 ivater. 
 
 [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 oq 
 the public domain. The right of a miner to go upon the pub- 
 lic 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- 
 sion. Tliis right, if it was to receive legal recognition at all,. 
 
 1 For example, to People V. Canal marked: "In examining the nu- 
 
 Appraisers, .33 N. Y. 461. merous cases which establish that 
 
 2 Smith V. City of Rochester, 92 the doctrine of appropriation is- 
 
 N. Y. 463. In the case of Lux v. not the doctrine of the common 
 
 Uaggiu. (Cal.) lOPac. Rep. 7")3, the law, we meet an embarrassment 
 
 supreme court of California re- of abundance. " 
 (32)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 23 
 
 must be made to rest upon some other foundation than that of 
 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 an}^ rights which he could 
 justly claim. Thus it is said: "From a very 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- 
 tinct 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 diflferences, 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 
 
 iLux V. Haggin, (Cal.) 10 Pac. Rep. 721. 
 POM. RIP. — 3 (33)
 
 § 23 APrROPRIATION OF WATERS. [Cli. 3. 
 
 the crown. It is true tlie 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 
 pei-suasive nmst have the like effect for the purposes of the 
 desired end; 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 wliich 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 laud 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, 
 Humes, 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 own- 
 (34)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 24 
 
 ership to any of the large body of lands within the mineral re- 
 gion of the state. The state government has not only looked on 
 quiescently upon this universal appropriation of the public do- 
 main for all of these purposes, hut 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 ujjon 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 presumjjtion, for a license to occupy from the owner 
 will be presumed."^ 
 
 At the same time it must be remembered that there was never 
 any license, in fad, 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.^ 
 
 § 24. Ef&cacy 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 
 
 1 Conger v. Weaver, 6 Cal. 556, ^Boggs v. Merced Min. Co., 14 
 557. Cal. 355. 
 
 8 Supra, § 14. 
 
 (35)
 
 § 24 APPROPRIATION OF WATERS. [Ch. 3. 
 
 witliin 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 alle-^od possessions of the respective parties, and the pri- 
 ority of possessory ri};ht 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, 
 wliere 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.* 
 
 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 
 
 >Lux V, Haggin, (Cal.) 10 Pac. And see Irwin v. Phillips, 5 Cal. 
 
 Rep. 748. 140, s. c 63 Amer. Dec. 113. 
 
 2 Morton v. Solambo Copper M. ^Code Civil Proc. Cal. § 748, and 
 
 Co.. 26 Cal. 527. St. 1851, p. 149, 5^ 621. See, also, 
 
 'Harvey v. Ryan, 42 Cal. 626. Rev St. U. S. §§2319, 2324. 
 
 <King V. Edwards, 1 Mont. 235. 
 
 (36)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 25 
 
 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."'] 
 
 II. Appropriation as against the Subsequent Grantee of 
 THE Government. 
 
 § 26. 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 
 a,cknowledged 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 
 
 ^Woodruff V. North Bloomfield G. M. Co., 9 Sawy. 441, s. c. 18 Fed. 
 Kep. 801. 
 
 (37)
 
 § 26 ArriionuATioN of waters. [Ch. 3. 
 
 conveyance, would acquire and hold it subject to the same serv- 
 itude which before existed in favor of tiie prior appropriator. 
 This consequence would naturally follow from the operation of 
 well-settK'd 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 
 witii 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. 
 
 § 26. California decisions on this point. 
 
 In the recent case of Osgood v. El Dorado Water Co.,' it ap- 
 peared that the plaintiff, Osgood, tirstwent upon a certain tract 
 of i)ublic land bordering on a stream, in 1863, and had resided 
 there ever since. The land at the time was unsurveyed. 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 not finally 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 
 
 156 Cal. 571,(1880.) 
 (38)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 26 
 
 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 
 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 controvers}', 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."^ 
 
 ^In support of this conclusion July 26, 1866, or under the provis- 
 
 the following cases were cited: ions of title 8 of the Civil Code of 
 
 Megerle v. Ashe, 33 Cal. 74; Dan- this state, takes subject to the 
 
 iels V. Lansdale, 43 Cal. 41; Smith rights acquired by such prior ap- 
 
 V. Athern, 34 Cal. 507; Lansdale v. propriator. " Lux v. Haggin. (Cal.) 
 
 Daniels, 100 U. S. 118. 4 Pac. Rep. 924. See, also. Barnes 
 
 2 [This doctrine is now conclu- v. Sabron, lONev. 217; Lytle Creek 
 
 sively established upon the author- Water Co. v. Perdew, (Cal.) 2 Pac. 
 
 ities. In a later case the same Rep. 733; .Judkins v. Elliott, (Cal.) 
 
 court said: "Whoever purchases 12 Pac. Rep. 116. When one ob- 
 
 land from the United States or this tains government land, he has a 
 
 state after the whole or some part right to appropriate, for the pur- 
 
 of the water of a natural water- pose of irrigation and stock-rais- 
 
 course running through such land ing, the waters of any stream tlow- 
 
 has been appropriated by some one ing through government land, 
 
 else under the act of congress of which have not been previously 
 
 (39)
 
 § 27 APPROPRIATION OF WATERS. [Ch. 3. 
 
 § 27. Views of United States supreme court. 
 
 In the case of Broder v. Natouia 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 railroad 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- 
 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 
 compreb.ensive 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 
 
 appropriated by another, and in the appropriation and use of the 
 waters thus converted to his use water, acquires, as against a sub- 
 he acquires a vested right which sequent purchaser from the United 
 cannot be affected bj' those who States as complete and perfect a 
 purchase above or below him. right to maintain his ditch as 
 Kaler v. Campbell, 13 Or. 596, though such easement had vested 
 B. c. 11 Pac. Rep. 301. And where in him by grant. Ware v. Walker, 
 an appropriator of water leads his (Cal.) 12 Pac. Rep. 475.] 
 ditch through the public lands, he, ilOl U. S. 274, 
 by the construction of his ditch and 
 (40)
 
 €h. 3.] APPROPRIATION OF WATERS. § 28 
 
 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." 
 
 § 28. 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 
 •property, 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 governnient 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 the language of such statute be found 
 to be too narrow or incomplete to afford, of itself, a sufficient 
 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 
 
 (41)
 
 § ii9 
 
 APPROrKIATION OF WATERS. 
 
 [Ch. 3. 
 
 .luc^^tiun belongs, huwever, to a subsequent portion of our es- 
 
 .say." 
 
 § 29. Public lands of the state. 
 
 Tho rules tiius 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- 
 fectual as against private persons who subsequently acquire, 
 from the general government, titles to portions of the public 
 land bordering on the same lake orstreain. 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 
 
 1 [At the same time it must be re- 
 membered that a grant of public 
 land of the United States carries 
 with it the common -law rights to 
 an innavigable stream thereon, 
 unless the waters are expressly or 
 impliedly reserved by the terms of 
 the patent, or of the statute grant- 
 ing the land, or unless they are re- 
 served by the congressional legis- 
 lation authorizing the patent or 
 other muniment of title. To this 
 point the supreme court of Cali- 
 fornia speaks as follows: "And if 
 the United States since the date of 
 the admission of the state has been 
 the owner of the innavitrable 
 streams on its lands, and of the 
 
 (42) 
 
 subjacent soils, grants of its lands 
 must be held to carry with them 
 the appropriate common-law use 
 of the waters of the innavigable 
 streams thereon, except where the 
 flowing waters have been reserved 
 from the grant. To hold other- 
 wise would be to hold, not only 
 that the lands of the United States 
 are not taxable, and that the pri- 
 mary disposal of them is beyond 
 state interference, but that the 
 United States, as a riparian owner 
 within the state, has other and dif- 
 ferent rights than other riparian 
 owners, including its own grant- 
 ees." Luxv. Haggin,(Cal.)10Pac. 
 Rep. 723.J
 
 Ch. 3.] APPROPRIATION OF WATERS. § 29 
 
 course, both the proprietary rights of iin 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 otlier 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 apjjly in connection with 
 the public lands of the state, it seems to be a natural, even if 
 not an inevitable, consequence, that the same doctrine should 
 be extended to those lands, as against the state itself and its 
 subsequent grantees.^ 
 
 ^[The position taken in tlie text always recognized a right in the 
 
 is strongly supported by a very im- prior possessor of lands of the state 
 
 portant decision lately rendered by as against those subsequently" in- 
 
 the supreme court of California, truding upon such possession. The 
 
 In Lux V. Haggin, (Cal.) 10 Pac. same principle would protect a 
 
 Rep. 775, it is said: "The citizens of prior appropriator of water against 
 
 the state have never been prohib- a subsequent appropriator from 
 
 ited from entering upon the public the same stream. It is not impor- 
 
 landsof the state. The courts have tant here to inquire whether, as 
 
 (43)
 
 § 31 APPROPRIATION OF WATERS. [Ch. 3. 
 
 III. The Right Restricted to the Public Domain. 
 
 § 30. Appropriation confined to public lands. 
 
 Wluitever 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 lands public^, — 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 
 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 otlier 
 proprietors, and all additional rules, must necessarily proceed 
 from the states themselves. 
 
 § 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 
 
 against a subsequent appropria- tenance of peace and good order, 
 tiou of water, a prior appropriator has protected the citizen in the ac- 
 of land, through which the stream quisition and enjoyment on ita 
 may run, would have the better lands of certain property rights 
 right. It is enough to say that, as obtained through possession, — 
 between two persons, both mere perhaps the mode by which all 
 occupants of land or water on the property was originally acquired, 
 state lands, the courts have deter- In view of these facts, we feel jus- 
 mined controversies. The implied tified in saying that it was the leg- 
 permission by the general govern- islative intent to exclude as well 
 ment to private persons to enter the state as the United States from 
 upon its lands has been assumed the protection which is extended 
 to have been given b}' the state to riparian proprietors by section 
 with reference to the lands of the 1422 of the Civil Code. "J 
 slate: and the state, for the main- 
 
 (44)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 31 
 
 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 slates. 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 federal 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 
 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 nmnicipal 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 
 
 »3 How. 223. 816 Pet. 410. 
 
 (45)
 
 § 32 Ari'ROl'RIATlOX OF WATERS. Ch. 3.] 
 
 each state became themselves sovereij^n, and in that charac- 
 ter hold the absolute rij,dit to all their navigaljle waters, and 
 the soils under thrni, 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." Recognizing 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- 
 ters, and the soils under them, were not granted by tlie 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. Power 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- 
 
 »2 Sawy. 176, before Sawyer and Ilillyer, JJ. 
 (46)
 
 ^h. 3.] APPROPRIATION OF WATERS. § 32 
 
 feet, 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- 
 <irnment, 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 imposing 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 
 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:^ "Asa condition of sale, in the 
 
 iRev. St. U. S. §2338. 
 
 (47)
 
 § 33 ArrRorRiATioN of waters. [Ch. 3. 
 
 Absence of necessary legislation by congress, the local legislature 
 of any state or territory may i)rovidc rules for working mines, 
 involving easements, drainage, and other necessary means to 
 their complete development; and those conditions shall be fully ex- 
 pressed in Oie patent.'" The patent here spoken of is clearly that 
 issued by tlie 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, wliich were originally public, is con- 
 fined to their j)n»i/trv dis})osal to its immediate grantees. If, 
 therefore, the public land bordering upon a stream, and situate 
 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 Appropri- 
 
 ATORS. 
 
 § 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 
 
 'See the observations of Sawyer, ^gge ante, §§ 25-28; Act Cong. 
 
 J., in Woodruff v. North Bloom- July 9. 1870. 
 field G. M. Co.. 9 Sawy. 441, s. c. 
 18 Fed. Rep. 801. 
 
 (48)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 34 
 
 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 by 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.^ 
 
 § 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 necessary, 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 
 
 1 Union Mill & M. Co. v. Ferris, Haines, 7 Nev. 249; and see Cran- 
 
 2 Sawy. 176; Union Mill & M. Co. dall v.Woods, 8 Cal. 136; Leigh Co. 
 
 V. Dangberg, Id. 450; Van Sickle v. v. Independent Ditch Co., Id. 323. 
 
 POM.RIP. — 4 (49)
 
 § 35 APPROPRIATION OF WATERS. [Ch. 3. 
 
 alone is the final conveyance of the legal estate. If, however, 
 the settler, pre-eniptor, 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 iiim 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 
 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 posti^oned, 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 jDcrfect, 
 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 conve}^- 
 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. 
 
 C50;
 
 Ch. 3.] APPROPRIATION OF WATERS. § 36 
 
 § 36. Revie-w 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 ai)propriator 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 
 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 rijjarian 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 Van Sickle 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 
 
 12 Sawy. 450; and see Union Mill & M. Co. v. Ferris, 2 Sawy. 176. 
 8 7NeY. 249. 
 
 (51)
 
 §36 APPROPRIATION OF WATERS. [Cll. 3. 
 
 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 afibrds, 
 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, anil the right to make such use of the water, when he chooses^ 
 as will not damage others located on the same stream and en- 
 titled to equal riglits 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 title has been acquired. 
 (52)
 
 €h. 3.] APPROPRIATION OF WATERS. § 36. 
 
 In Leigh 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 plaintiffs. The court said: "The 
 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 
 
 18 Cal. 323, (1857.) the waters thereof perfect, or at 
 
 28 Cal. 136, (1857.) The point least do not entitle him to any re- 
 
 actually decided in this case is, of lief against a diversion of such wa- 
 
 course, authoritativel3^ settled by ters by another person; that even 
 
 the later utterance of the same the prior oicner of the land must 
 
 court made in the subsequent case, have made some actual appropria- 
 
 as quoted above in the text. A tion of the water to his own uses, 
 
 perusal of the opinion in Crandall before he can maintain an action 
 
 V. Woods would leave it doubtful, against the diversion bj^ another 
 
 to say the least, in the absence person whose claim is subsequent 
 
 of the subsequent interpretation, to his own. In other words, that 
 
 whether such a point was decided, mere prior oicnership of riparian 
 
 Some portions of the opinion seem lands does not confer full and per- 
 
 to intimate— even if they do not feet riparian rights to the water, 
 
 expressly hold — that the mere See, also, to the same effect, Ne- 
 
 prior ownership and possession of a vada Co. & Sac. Canal Co. v. Kidd, 
 
 tract of land upon a stream do not 37 Cal. 283. 
 render the proprietor's rights to 
 
 (53)
 
 § 86 APPROPRIATION OF WATERS. [Ch. 3. 
 
 appcrUiin 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- 
 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^rsi 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 ^rsi step was 
 taken wliile the lands were unsurveyed; and his earliest legiti- 
 mate proceeding was subsequent to the date at which defend- 
 ants' rights of appropriation accrued. 
 
 '56 Cal. 571, 578. My reference ance of his patent." But this lan- 
 
 to this decision on a previous page guage cannot have been intended 
 
 {ante, ^ 26) does not describe it to lay down a general rule appli- 
 
 with perfect accuracy, and needs cable to all pre-emptors; it must 
 
 some correction. It is true that have referred entirely to the par- 
 
 the reporter's head-note represents ticular facts of that case. This 
 
 the court as laying down the fol- plainly appears from the sentence 
 
 lowing general rule: "In a ques- immediately preceding, and from 
 
 tion of priority of right between the cases which he cites in support 
 
 an appropriator of water on the of his conclusion, — these very 
 
 public lands and a pre emptor, the cases recognizing the rule that a 
 
 rights of the latter date from the grantee's riijht 7nay relate back ta 
 
 issuance of his patent. " It is also a date before that of his patent. 
 
 true that Mr. Justice Ross says, in He says: "The plaintiff seeks to 
 
 hiaopinion: "The plaintiff's rights invoke the doctrine of relation; 
 
 must therefore be held to have at- but for obvious reasons no case 
 
 tached on the twenty-fifth of Oc- was made for the application of 
 
 tober, 1871, the date of the Issu- that doctrine. " The plaintiff took 
 
 (64;
 
 Ch. 3.] APPROPRIATION OF WATERS. § 36 
 
 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 
 
 possession of bis land several made on the facts. [But a recent 
 years before it was survej'ed. It authority speaks of this case in 
 was surveyed in 1865. In June, the following language: "Osgood 
 1868, he flle'd bis first declaration v. Water Co. presented a question 
 as a pre-emptor; in 1870 he had of priority between an appropri 
 paid up; and in 1871 he received ator of water on lands of the Unit- 
 bis patent. But the defendants ed States and a pre-emptioner. It 
 bad taken their first step, from was there held that, by reason of 
 which their rights of appropriation the express language of the seven- 
 arose, in March, 1867. It thus ap- teenth section of the act of con- 
 pears that, even if the plaintiff's gress of July 9, 1870, amending the 
 title did relate back to the date of act of July 26,1860, the rights of the 
 bis declaration in 1868, it was still pre-emption claimant, as against 
 subsequent to defendants' right an appropriator, date only from 
 of appropriation, which accrued his patent or certificate of pur- 
 in 1867. The remark that plain- chase. " Lux v. Haggin, (Cal.) 10 
 tiff's title attached at the date of Pac. Rep. 782.] 
 his patent was not, therefore, es- ^58 Cal. 143. 
 sential to the decision actually 
 
 (65)
 
 § 37 APPROPRIATION OF WATERS. [Ch. 3. 
 
 other decisions. In Gibson v. Puchta^ the court held that 
 when the title of two j)arties to puljlic 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 ai»plicable 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, 
 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 owner whose title to such a tract rests 
 upon a prior patent, conveyance, or other grant from the United 
 States. 
 
 § 37. Riparian 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 
 
 '33 Cal. 310. seems to have given miners a right 
 
 224 Cal. 307; and see Rupley v, to enter upon the lands of prior oc- 
 
 Welch, 23 Cal. 403; Hill v. Smith, ciipants used solely for farming 
 
 27Cal.47G. The right of the prior purposes, when situated iu the 
 
 occupant was here merely posses- mineral regions; the interest of 
 
 Bory as against the United States, such occupants being only pos- 
 
 An early statute of California sessory. 
 (56)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 38 
 
 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 
 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 pro})rietor 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 st^p in the course of proceedings i)re- 
 
 1 Pope V. Kingmaa, 54 Cal. 3, 5. 253 Cal. 55. 
 
 (57)
 
 § 39. APrUOPRIATION OF WATERS. [Ch. 3. 
 
 scribfxl by conf,'rc.ss, — as in case of a pre-einptor, to the filing 
 of liis declaratory statement. 
 
 § 39. Grounds for the application of tliis 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 
 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 hi& 
 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- 
 quire title to portions of the public domain as pre-emptors, 
 homestead occupants, and the like. Congress has given no in- 
 
 1 See Osgood v. El Dorado, etc., Co., 56 Cal. 571. 
 C58)
 
 Ch. 3.] APPROPRIATION OB' WATERS. § 41 
 
 tiniation 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 
 United 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 lo have begun only in 
 1877, when he 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. Revie-w 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 
 
 1 58 Cal. 142. vis, 41 Cal. 489. The court also held 
 
 2Name]y, Frisbie v. Whitney, 9 that under the acts of congress, 
 
 Wall. 187; Button v. Frisbie, 37 July 26, 1866, and July 9, 1870, 
 
 Cal. 475; Western Pac. R. R. v. Te- the defendants obtained "existing 
 
 (59)
 
 § 41 ArrnopRiATioN of waters. [Ch. 3. 
 
 connected with governmental land titles. I think that the matters 
 flctually ilccidcd in Frisbie v. Whitney, Hutton v. Frisbie, and 
 Wcbtern I'ac. II. H. 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 i)rior cases will show that they dealt 
 witli an entirely different state of facts, and an entirely different 
 kind (if legislation; and that the opinions in these cases avowedly 
 and eare fully except and exclude from their operation such ques- 
 tions as that of ])riority of right between a pre-emptor and an 
 ajipropriator of water, arising under the general statutes of con- 
 gress concerning the disposition of the public lands among pri- 
 vate proi)rietors or occupants. In order to understand the ex- 
 act points decided by the United States suj'reme court in Fris- 
 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 
 years 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 ini])rovc'd 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 
 
 rights" to construct and use their course the real question was 
 
 reservoir, which were excepted whether the defendants had any 
 
 and saved in the patent issued to such "existing rights" at the time 
 
 the phiintiff; citing Jennison v. when the right of the plaintiff first 
 
 Kirk, 08 U. S. 460; Broder v. Na- accrued and became vested as 
 
 toma. etc., Co., 50 Cal. 621. Of against (ke defendants. 
 (60)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 41 
 
 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 
 been sold to 6ona_^de purchasers, from sale or pre-emption under 
 the general statutes, and confirmed and established the rights and 
 titles of such ipriov bona fide 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 
 
 19 Wall. 187. 
 
 61)
 
 § 41 APPROPRIATION OF WATERS. [Ch. 3. 
 
 him to protect his posseasimi against other individuah, and which the 
 land-onicprs are bound to respect. This inchoate xight 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 
 ])roperty 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 purcliase 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 
 of congress to ivithdraw 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 tlie 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 
 
 i37C'al. 475. 241 Cal. 489. 
 
 (62)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 41 
 
 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- 
 utes which were dictated by and carry out the same liberal 
 policy, — present, in my opinion, another question, which, I 
 would most res .octfully 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- 
 
 i58Cal. 143. 
 
 (63)
 
 § 41 APPROPRIATION OF WATERS. [Ch, 3. 
 
 fined to ft special act of congress directly icithdrawing specific 
 portions of the public lands from the operation of such general 
 legislation as the pre-emption laws, and do not touch upon the 
 eflect of the gciwal statutes dealing with the public lands, and 
 prescribing the modes by which private titles or interests thereiri 
 may be acquired. 
 
 In Hutton v. Frisbie, a case which arose on the same facts^ 
 Chief Justice Sawyer, delivering the opinion of the court, said:* 
 "Nor do we question the rule adopted in Chotard v. Pope^ and 
 Lytic V, State,^ to the eflect 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 hi& 
 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 attaclied 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 act^, contemplated that the party should be author- 
 ized to take land upon which other {)arties 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 cases are not necessarily inconsistent, and can be sa 
 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 ivill 
 
 1 37 Cal. 475, 485, 486. 2 12 Wheat. 587. 89 How. 333. 
 
 (04)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 41 
 
 always be our pleasure as well as duty to extend to all such the utmost 
 protection justified by the lauis of the land. But this beneficent pol- 
 icy has no element in Imrmony with the jDrinciple 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 
 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 Lytle 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 party 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, or 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 
 POM. RIP. — 5 (65)
 
 § 41 APPROPRIATION OF WATERS. [Ch. 3. 
 
 tlmt 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 liniitin<5 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 Ilutton 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 
 co-existhuj provisions of these general statutes. The decision in 
 the case of Western Pac. R. R. v. Tevis^ was also based upon 
 upon special legislation of exactly the same character. 
 
 \^niere 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 preliminar}' 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. 'a initial step was made before any act 
 
 19 Wall. 187. S41Cal. 489. 
 
 (66)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 42 
 
 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, 
 which requires such a discrimination between the two classes 
 of claimants. The notices posted and given by the appropria- 
 tor of water clearly do not confer on him any higher equity as 
 a bona fide purchaser; since the actual and continuous posse?- 
 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. Riparian 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 
 
 (67)
 
 § 42 APrROrRIATION OF WATERS. [Ch. 3. 
 
 from those held by any other riparian proprietor who derives 
 his title innnediately or mediately from the United States by 
 l)atent or otherwise. All the doctrines and rules of the law 
 which define and regulate the water-riglits of private riparian 
 projirietors upon innavifiable 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. 
 
 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- 
 (68)
 
 Ch. 3.] APPROPRIATION OF WATERS. § 42 
 
 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 bN'the rules 
 of the Mexican laAv 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 
 seems plain, therefore, that the riparian rights of a private pro- 
 prietor holding by a Mexican grant duh' confirmed are exactly 
 the same, governed by the same rules, as those held and enjo3'ed 
 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 accompanv 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 ])efore 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 
 
 ^ This principle, and the authori- Mr. Justice Field in delivering the 
 
 ties which support it, are discussed opinion of the court in the case of 
 
 by Sawyer, J., in Woodruff v. Hagar v. Reclamation Dist. No. 
 
 North Bloomfield, etc.. Co., 9 lOS, 111 U. S. 701, s. c. 4 Sup. Ct. 
 
 Sawy. 441, .s. c. 18 Fed. Rep. 801. Rep. 663. 
 The same principle is discussed by 
 
 (69)
 
 § 43 APPROPRIATION OF WATERS. [Ch. 3. 
 
 the f^rnntee is regarded ad 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. 
 
 § 43. 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- 
 sons, and is made by statute good as against the United States 
 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 sucb 
 "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 
 (70;
 
 Ch. 3.] APPROPRIATION OF WATERS. § 43 
 
 appropriated, his patent is not subject to any possible apjaropri- 
 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, havecome 
 into the private ownership of purchasers or grantees from the 
 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 
 
 ' [When there is nothing in the 2 gee Lobdell v. Simpson, 2 Nev. 
 
 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; Van Sickle 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. Brown, 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 /ac?e case. Humphreys Tieleke, 2 Mont. 59; Caruthers v. 
 
 V. McCall, 9 Cal. 59.] Pemberton, 1 Mont. Ill; and other 
 
 cases previously cited. 
 
 (71)
 
 § 43 APPROPRIATION OF WATKUS. [Cll. 3. 
 
 from the time when lie has duly performed all of the statutory 
 requirements, including payment of tlie 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. 
 (72)
 
 Ch. 4.] HOW APPROPRIATION IS EFP^ECTED. § 45 
 
 CHAPTER IV. 
 
 HOW AN APPROPRIATION IS EFFECTED. 
 
 § 44. Successive appropriations. 
 
 45. Doctrines which control the appropriation. 
 
 46. The methods by wliich an appropriation is effected. 
 
 47. Intent to apply water to beneficial use. 
 
 48. There must be actual diversion. 
 
 49. There must be actual use of water. 
 
 50. Physical acts constituting appropriation. 
 
 51. Notice of intent to appropriate. 
 
 52. Reasonable diligence in completion of works. 
 
 53. When appropriation is complete. 
 
 54. Appropriation relates back to first step. 
 
 § 44. 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 sj^ecial 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 prior 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 Avater of a particular stream. 
 
 § 45. 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- 
 
 (73)
 
 § 46 now APPROPRIATION IS EFFECTED. [Ch. 4. 
 
 sivc appropriation of water prevails. The various topics to 
 which these doctrines relate, and which require any discussion, 
 are the foUowinj,': 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 amountof 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 i)urpose to treat of these matters in the order here given. 
 
 § 46. The methods by wliich 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 riglit. 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 i)atent 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 Lira 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 
 
 everyone b\itthe government, and rights subsequent to those of oth- 
 
 is entitled to all the privileges and ers, then, as both rest for their 
 
 incidents which appertain to the foundation upon appropriation, 
 
 Boil, subject to the single excep- the subsequent locator must take 
 
 lion of rights antecedently ac- subject to the rights of the former, 
 
 quired. He may admit that he is &ndlhe rule, qui prior est in tempore 
 
 not the owner in fee, but his pos- potior est in jure, must apply.* 
 
 session will be sufficient to protect Crandall v. Woods, 8 Cal. 143.] 
 
 C74)
 
 Ch. 4.] HOW APPROPRIATION IS EFB'ECTED. -§ 47 
 
 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 
 virtue of their actual ownership of lands bordering upon a stream, 
 will be considered hereafter; they are foreign to the present dis- 
 cussion. 
 
 § 47. 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 immediate useful or ben- 
 eficial purpose, or in present bona fide 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, 33Cal. 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. Randall, 
 
 Kinney v. Smith, 21 Cal. 374; Ort- 2 Utah, 248; Munro v. Ivie, Id. 535; 
 
 man v. Dixon, 13 Cal. 33; McDon- Woolman v. Garringer, 1 Mont 
 
 aid V. Bear River, etc., Co., Id. 220; 535. 
 McDonald v. Askew, 29 Cal, 200; 
 
 C75)
 
 § 48 ' now APPKOPIUATION IS EFFECTED. [Ch. 4. 
 
 Under this rule, an apjiroiJi-iation for mere purposes of specula- 
 tion is nugatory.' And a diversion of water solely for tlje ob- 
 ject of drainage, witliout any bona fide intention of its present 
 or future use for other beneficial purposes, does not constitute 
 a valid apjaopriation.'' Thus, in the first of the cases cited be- 
 low, the grantors of the plaintiffs had constructed a ditch for 
 the purpose of drainage alone, with no intention of appropriat- 
 ing the water to any other use, and the defendants had subse- 
 quently made a ditch leading from the same stream with the 
 intent of using the water thus diverted for a beneficial object. 
 The court held that the defendants, although later in time, had 
 gained a priority of appropriation over the plaintiff's grantors, 
 and over all persons holding under them. 
 
 § 48. There must be actual diversion. 
 
 Again, since no exclusive jjropcrty 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 
 diver^iion of the water from its natural channel or bed, by means 
 of a ditch, canal, reservoir, or other structure.* For this pur- 
 pose, however, a dry ravine or gulcii may be used as a part of 
 a ditch, witli the same efllect as though the structure were wholly 
 artificial;^ and a "flume" is in all legal respects the same as a 
 
 1 Weaver v. Eureka Lake Co., public and unoccupied land, which 
 
 15 Cal. 271. conducted water to a point in a 
 
 2 Maoris v. Bicknell, 7 Cal. 261; can3on, where it disappeared un- 
 
 McKiuuey v. Smith, 21 Cal. 374; der ground, coming to the surface 
 
 Thomas v. Guiraud, 6 Colo. 530. again at the mouth of the canyon, 
 
 'Parks Canal & M. Co. v. Hoyt, heUl, that he was entitled to be pro- 
 
 57 Cal. -14; Kidd v. Laird, 15 Cal. tected as against defendant, who 
 
 162. dug other ditches cutting off the 
 
 *I)alton V. Bowker, 8 Nev. 190. supply. Keeney v. Carillo, 2 N. 
 
 MIolTman v. Stone, 7 Cal. 46. M. 480.] 
 £Where i)laintiff built a ditch upon 
 
 C76j
 
 Ch. 4.] HOW APPROPRIATION IS EFFECTED. § 49 
 
 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.^ 
 
 § 49. 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- 
 ular case.^] 
 
 1 Ellison V. .Jackson Water Co., Colorado constitution,) paramount 
 
 12 Cal. 542. to the right acquired by a subse- 
 
 - Richardson v. Kier, 37 Cal. 263; quent patentee of the land. This 
 
 Butte Canal, etc., Co. v. Vaughn, right is not dependent upon the 
 
 11 Cal. 143. locus of the application of the wa- 
 
 ^Sieber V. Frink. 7 Colo. 148, s. 0. ter to the beneficial use. Nothing 
 
 2 Pac. Rep. 901. [In Colorado, the in the statutes is susceptible of a 
 
 first appropriator of water from a construction which would vary 
 
 natural stream for a beneficial pur- this rule. Coffin v. Left-Hand 
 
 pose has a right to the extent of Ditch Co., 6 Colo. 443; Thomas v. 
 
 his appropriation, (subject only to Guiraud, Id. 530.] 
 the qualifications contained in the 
 
 07)
 
 § 50 now APrRorniATiox is effected. [Ch. 4. 
 
 § 50. Physical acts constituting appropriation. 
 
 Tlie I'undainental doctrine is well settled that, in order to con- 
 stitute a valid apiJropriation 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 insuflicient. 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 
 a specified stream will not of itself constitute an appropriation 
 thereof;^ nor, on the other hand, will the mere act of com- 
 
 1 Kimball v. Gearhart, 12 Cal. 27; The erection of a dam across a nat- 
 
 Osgood V. El Dorado, etc., Co., 56 ural water-course is an actual ap- 
 
 Cal. 571; Thompson v. Lee, 8 Cal. propriation of the water at that 
 
 275; Kelly v. jsatoma W. Co., 6 point, but not below it. although 
 
 Cal. 107; Weaver v. Eureka Lake the water flowing over the dam is 
 
 Co., 15 Cal. 271; Davis v. Gale, 32 brought back into the water-course 
 
 Cal. 26; Robinson v. Imperial Sil- by means of canals made bj' the 
 
 ver M. Co., 5 Nev. 44; Columbia owners of the dam. Kelly v. Na- 
 
 M. Co. V. Holter, 1 Mont. 296. toma Water Co., 6 Cal. 105.] 
 
 [The true test of appropriation is 2 Thompson v. Lee, 8 Cal. 275; 
 
 the successful application of the Robinson v. Imperial Silver M. Co., 
 
 water to the beneficial use; the 5 Nev. 44; Columbia M. Co. v. Hol- 
 
 method employed is immaterial, ter, 1 Mont. 296. 
 Thomas v. Guiraud, 6 Colo. 530. 
 
 (78)
 
 Ch. 4.] HOW APPROPRIATION IS EFFECTED. § 51 
 
 meucing 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."^ 
 
 § 51. 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, 
 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 
 
 » Kimball v. Gearhart, 12 Cal. 27. « Kimball v. Gearhart, 12 Cal. 27. 
 
 2 Robinson v. Imperial Silver M. 6 Osgood v. El Dorado, etc., Co., 
 
 Co.. 5 Nev. 44. 56 Cal. 571, 579. 
 
 3 See Osgood v. El Dorado, etc., 6i(i, 
 Co., 56 Cal. 571. 
 
 (79)
 
 § 52 HOW APPROPniATION IS EFFECTED. Ch. 4.} 
 
 use of the water which is obtained through a valid appropria- 
 tion.' 
 
 § 52. Reasonable 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 will depend 
 mainly upon tiie 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 i)ccun- 
 iary circumstances — of the parties themselves.^ In Ophir Sil- 
 ver M. Co. V. Carpenter it was held that "diligence in the pros- 
 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 ot 
 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- 
 
 ^ Osgood V. El Dorado, etc.. Co., 56 Cal. 571, 581; Weaver v. Eureka. 
 56 Cal. 571, .581; Parke v. Kilham, Lake Co., 15 Cal. 271. 
 8 Cal. 77; Kimball v. Gearhart. 12 SQp^jjr Silver M. Co. v. Carpen- 
 Cal. 37; Weaver v. Eureka Lake ter, 4 Nev. 534; Weaver v. Eureka. 
 Co., 15 Cal. 271; Ophir Silver M. Lake Co., 15 Cal. 271; Parke v. 
 Co. v. Carpenter, 4 Nev. 534; Wool- Kilham, 8 Cal. 77; Kimball v. Gear- 
 man V. Garringer, 1 Mont. 535. hart, 12 Cal. 27; Osgood v. El Do- 
 
 2 Osgood V. El Dorado, etc., Co., rado, etc., Co., 56 Cal. 571. 
 (80)
 
 Ch. 4.] HOW APPROPRIATION IS EFFECTED. § 53 
 
 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 inform B. 
 of his own prior claim to such water, A. and his vendees are 
 thereby estopped from afterwards setting up or asserting suck 
 claim, even though it was originally the prior one." 
 
 § 53. 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, 
 
 ^ [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 
 
 during a period of sixteen months, work 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 and a half the water. Ophir Silver M. Co. v. 
 
 years, in order to obtain an appro- Carpenter, 4 Nev. 534.] 
 
 POM. RIP. — 6 (81)
 
 § 53 HOW APPROPRIATION IS EFFECTED. [Ch. 4. 
 
 Che approjn-iator acquires no vested, exclusive right to the wa- 
 ter of the stream, ami 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 
 Hack to the time of his giving notice. In Nevada Co., etc., Co. 
 ▼. Kidd^ these conclusions were fully established: "A court of 
 equity will not restrain the diversion of water until the plain- 
 tifi" 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 
 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 
 
 ' [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. J 
 
 «f a ditch and flume, has certainly 237 Cal. 282. 
 a right to the use of so much water 
 
 (82)
 
 Ch. 4.] HOW APPROPRIATION IS EFFECTED. § 54 
 
 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 by 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. 
 
 § 64. 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 
 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 
 
 ^Osgood V. El Dorado, etc., Co., 27; Ophir Silver M. Co. v. Carpen 
 
 56 Cal. 571; Maerls v. Bicknell, 7 ter, 4 Nev. 534; Woolman v. Gar- 
 
 Cal. 261; Parke v. Kilham, 8 Cal. riuger, 1 Mont. 535; Sieber v. 
 
 77; Kimball v. Gearhart, 12 Cal. Frink, 7 Colo. 148, s. c. 2 Pac. 
 
 (83)
 
 § .34 now APruopRiATioN is effected. [Ch. 4. 
 
 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 
 riglils during such time by relation to the time when the first step 
 ivas 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." 
 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 grant- 
 ees or purchasers of lands on its banks. ^ 
 
 Rep. 901; Irwin v. Strait, 18 Nev. The supreme court uses the lan- 
 
 436, s. 0. 4 Pac. Rep. 1215. Al- guage, "the first step was taken. " 
 
 though the cases generally say i [In Irwin v. Strait. 18 Nev. 436, 
 
 that the right relates back to the s. c. 4 Pac. Rep. 1215, it is said: 
 
 time of co7nmencin(/ the work, there "In determining the question of 
 
 would seem to be no reason why the time when a right to water by 
 
 the relation should not extend appropriation commences, the law 
 
 back to the time of giving the no- does not restrict the appropriator 
 
 tice. The notice is the essential, to the date of his use of the water; 
 
 initial step in one entire continu- but, applying the doctrine of rela- 
 
 ous proceeding, and the due dili- tion, fixes it as of the time when he 
 
 gence must be used from the date begins the dam or ditch or flume, 
 
 of giving the notice. Is it possible or other appliance by means of 
 
 that the rights of another claimant which the appropriation is ef- 
 
 could intervene between the date fected, provided the enterprise is 
 
 of the first appropriator's notice prosecuted with reasonable dili- 
 
 and the time when his work is act- gence. " This language would 
 
 ually begun, no matter how short seem to exclude the theory that 
 
 the interval? Yet tliis result must the doctrine of relation would 
 
 be^^os.fi'^fe if theright of appropri- carry the appropriation back to 
 
 ation relates back only to the time the time of giving notice.] 
 of actually beginning the work. 
 
 (84)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 56 
 
 CHAPTER V. 
 
 NATUEE AND EXTENT OF THE RIGHT ACQUIRED BY 
 APPROPRIATION. 
 
 I. Natuke op the Right Acquired. 
 
 § 55. Appropriator's right begins at head of his ditch. 
 
 56. Nature and extent of right depends on purpose of appro- 
 
 priation. 
 
 57. Property in ditches and canals. 
 
 58. Sale of ditches and water-rights. 
 
 59. Tenancy in common. 
 
 60. Right to natural flow of water at head of ditch. 
 
 61. What are streams subject to appropriation. 
 
 62. Definition and characteristics of a water-course. 
 
 63. Percolating and subterraneous waters. 
 
 64. Right to exclusive use of water. 
 
 65. Appropriator may change place or manner of uao. 
 
 66. Remedies for interference with these rights. 
 
 67. Injuries to ditches. 
 
 68. Remedies for unlawful diversion. 
 
 69. Equitable jurisdiction. 
 
 70. Deterioration of quality of water. 
 
 n. Liability for Damages Caused by Ditche3. 
 § 71. Various kinds of injuries. 
 
 72. Damages caused by breaking or overflow. 
 
 73. Proper measure of care required. 
 
 74. Injuries from intentional trespasses. 
 
 75. Damages from mode of construction or operation of 
 
 works. 
 
 76. Discharge of raining debris. 
 
 77. Effects of hydraulic mining a public nuisance. 
 
 78. Impounding dams. 
 
 in. Extent of the Right Acquired. 
 
 § 79. Amount of water which the appropriator is entitled to 
 use. 
 
 80. Carrying capacity of ditch. 
 
 81. True capacity of ditch the proper measure. 
 rV. Successive Appropriators. 
 
 § 82. Rights of subsequent appropriator. 
 83. Successive appropriations. 
 
 (85)
 
 § 55 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 rV. Successive ArruoniiATORS— Continued. 
 g 84. Periodical appro|)ri}itions. 
 
 85. Conditions under which subsequent appropriation may 
 
 be effected. 
 
 86. Division of increase in stream. 
 
 87. Wrongful diversion of springs. 
 
 V. Abandonment of Rioht. 
 
 g 88. General doctrine of abandonment. 
 
 89. Methods of abandonment. 
 
 90. Abandonment by adverse user. 
 
 VL Review of the System. 
 
 § 91. This system as a whole. 
 
 92. Defects of the system. 
 
 93. Presumption that stream was on public land. 
 
 I. Nature of the Right Acquired. 
 
 § 55. 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 
 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 
 (86)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 58 
 
 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 propert}' until 
 it passes into his control in his ditch or other works. He caor 
 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, bj 
 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 use 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. 
 
 § 56. 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, ia 
 Lis ditch, canal, reservoir, or other structure, must depend, I 
 think, upon the purpose for which the appropriation is made. 
 
 'Lower Kings River W. Co. v. Donald v. Askew, 29 Cal. 200; Kidi 
 
 Kings River, etc., Co., 60 Cal. 408; v. Laird, 15 Cal. 161; Ortman v. 
 
 Parks Canal & M. Co. v. Hoy^ Dixon, 13 Cal. 33. 
 
 67 Cal. 44; City of Los Angeles v. 257 Cal. 44. 
 
 Baldwin, 53 Cal. 469; Nevada Co., 953 Cal. 469. 
 
 etc., Co. V. Kidd, 37 Cal. 283; Mc- *lb Cal. 161. 
 
 (87)
 
 § 67 NATURE AND EXTENT OF RIGnT. [Ch. 5. 
 
 Where the appro] )riation is made for purpose 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 conmts in the consumption, it would seem that the ap- 
 propriator acquired a liigher 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 
 proi)elling 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 appropriation. 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 
 momentum of its fall at that place, and to the flow of the water 
 in its natural channel." 
 
 § 57. Property in ditches 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 
 
 »13 Cal. 33. 229 Cal. 200. 
 
 C88)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 58 
 
 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 appurtenant 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. ^ 
 
 § 58. 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- 
 gatory.* A person who enters into possession of such a ditch, 
 
 iReed v. Spicer, 27 Cal. 61. law, when fortified by possession. 
 
 2 Quirk V. Falk, 47 Cal. 453. Ortman v. Dixon, 13 Cal. 33. A 
 
 ^McDonald v. Bear River, etc., co-ownerof a water-right, acquired 
 
 Co., 13 Cal. 220. by appropriation, can convey his 
 
 4 Smith V. O'Hara, 43 Cal. 371; own interest, but cannot convey 
 Lobdell V. Hall, 8 Nev. 507. [A so as to injuriously affect his co- 
 water-right can be convej'ed by a tenant's right. Henderson v. 
 bill of sale not under seal. It cer- Nicholas, 67 Cal. 152, s. c. 7 Pac. 
 tainly passes the equitable title. Rep. 412.] 
 and that is sufficient, under our 
 
 (89)
 
 § 59 NATURE AND EXTENT OF RIGHT. [Ch. 5, 
 
 umler 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.^ In a very recent decision 
 by the supreme court of Nevada, this same rule was declared in 
 the most general form: "Where, in a contest concerning prior- 
 ity, a party claiming a right to water by appropriation fails to 
 conned 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 suc- 
 cessor to their prior rights. Their prior appropriation is virtu- 
 ally abandoned.^ 
 
 § 59. 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.^ [Rut 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 forrecur- 
 
 » Smith V. O'Hara, snpra. laid down in Smith v. O'Hara is a 
 
 2Chiatovich v. Davis, 17 Nev. particular instance. 
 
 133. This decision plainly formu- » Bradley v. Harkness, 26 Cal. 69. 
 
 lates a general rule, of which that 
 
 (90)
 
 Ch. 5.] 
 
 NATURE AND EXTENT OF RIGHT. 
 
 § 59 
 
 ring periods of time by each, will not make them tenants in 
 1 
 
 common. 
 
 Of tenants in comm 
 occupy the whole of t 
 thereof, and may recov 
 and an arrangement as" 
 among the co-tenai 
 venience, and is no\t 
 third party by on 
 principle was laid op 
 that the waters were 
 appropriate them 
 ceive that it maki 
 mon of the wate 
 seized per my and 
 
 .V 
 
 [each has a right to enter upon and 
 common property, and every part 
 the whole thereof from a trespasser- 
 periods for the use of the water, 
 3ts threm Vily, and is for their con- 
 tuse tq an action of trespass against a 
 jo-ienants. In the case where this 
 liorntoni J., observed: "It is said 
 priited severally by those who did 
 Coii^ede tiis to/ be so, and we do not per- 
 iin^ere ice./f If they are tenants in com- 
 yim aAijcl each of them are tenants 
 entitled to the possession of 
 the whole. This must-Be sd^NSefeajise no one of them can cer- 
 tainly state which part ofvtheiii^s his own. They hold by 
 
 Pi 
 
 01 all 
 
 titles l)e distinct. If this 
 
 r iio longer exists.^ * * * 
 
 oldiiig the estate as joint tenants 
 
 i ii^ the result. Each can re- 
 
 >8m-y steps to protect the whole 
 
 unity of possession, tho 
 unity is destr 
 Whether joint app 
 or tenants in commo^i 
 cover the whole, or ta 
 against the acts of a 
 
 Further, a court of equi^^Jnas 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, 
 
 ^Lytle Creek Water Co. v. Per- 
 dew, (Cal.) 2 Pac. Rep. 732. 
 
 2 Citing 2 Bl. Comm. 191, 192; 
 Carpentier v. Webster, 27 Cal. 524. 
 
 SLytle Creek Water Co. v. Per- 
 dew, (Cal.) 4 Pac. Rep. 426. 
 
 ^Frey v. Lowden, (Cal.) 11 Pac 
 Rep. 838. 
 
 (91)
 
 § GO NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 where one of two or more co-owners, in the use of water of a 
 stream appropriated by them for beneficial purposes, diverts tor 
 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.'] 
 
 § 60. 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 plaintiff's right to have the water flow in the 
 river to tlie head of his ditch is an incorporeal hereditament 
 appurtenant to his [artificial] water-course, [i. 6., his ditch.] 
 Granting that the plaintiff' does not own the corpus of the water 
 until it shall entei* his ditch, yet the right to have it flow into the 
 diM .appertains to the ditch. "^ In another case a ditch, con- 
 veying water for purpose of sale to miners, took its water from 
 
 iLorenz v. Jacobs, (Cal.) 3 Pac. Cal. 200; Phoenix W. Co.v. Fletch- 
 
 Rep. 6.54; citing Story, Eq. Jur. § er. 23 Cal. 481; Natoma W. & M. 
 
 «27. Co. V. McCoy. Id. 490; Kidd v. 
 
 2Lower Kings River, etc.. Co. v. Laird. 15 Cal. 161; Barnes v. Sa- 
 
 Kings River, etc., Co.. 60 Cal. 408; bron, 10 Nev. 217. 
 
 Parks Canal & M. Co. v Hoyt, 57 ^Lower Kings River, etc.. Co. v. 
 
 Cal. 44; Reynolds v. Hosmer, 51 Kings River, etc., Co., 60 Cal. 408. 
 Cal. 20"); McDonald v. Askew, 29 
 
 (92)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 61 
 
 a stream near its head in the mountains, and thence ran for a 
 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. 
 
 § 61. What are streams subject to appropriation^ 
 
 The question here arises, what is a "stream" which may thils 
 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 these Pacific communities. It 
 is sufficient 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 usually 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 
 
 1 Reynolds v. Hosmer, 51 Cal. 223 Cal. 481. 
 205. 8 Barnes v. Sabron. 10 Nev. 217. 
 
 (93)
 
 § 02 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 ye;ir, and from year to year. It is well known that some of 
 the most important and well-defined streams in these regions 
 become dry thmugljout tlie whole or a considerable portion of 
 their lengths during certain seasons of each year. It is, per- 
 hai)s, 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." 
 
 § 62. Definition and characteristics of a "water- 
 course. 
 
 [In order to constitute a water-course, there must be a defined 1 
 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 
 cha;inel, 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.^ 
 
 Surface water, without a spring, when it has flowed in a cer- 
 
 »Hanson v. McCue, 42 Cal. 303; 11 Cush. 193; Gannon v. Hargadon, 
 
 Dickinson v. Worcester, 7 Allen, 10 Allen, 106; Buffum v. Harris, 5 
 
 19; Shields v. Arndt, 4 N. J. Eq. R. I. 243. 
 
 234; Gillett v. Johnson. 30 Conn. ^EatIy. De Hart, 12 N. J, Eq. 
 
 180; Luther v. Winnisinimet Co., 280; Palmer v. Waddell, 22 Kan. 
 
 9 Cush. 172; Macomber v. Godfrey, 3o2. Compare, however. Parks v. 
 
 108 Mass. 219; Ashley v. Wolcott, Newburyport, 10 Gray, 23. 
 (94)
 
 Ch. 5.] 
 
 NATURE AND EXTENT OF RIGHT. 
 
 §62 
 
 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 lias formed such banks and bed, is still a water-course at that 
 point.' 
 
 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- 
 
 lEulrichv. Richter, 41 Wis. 318; 
 Kelly V. Dunning, 39 N. J. Eq. 482; 
 Pyle V. Richards, 17 Neb. 180, s. c. 
 22 N. W. Rep. 370. In the case of 
 West V. Taylor, (Or.) 13 Pac. Rep. 
 665, it appeared that A. owned 
 lands adjoining a lake, about two 
 miles long and half a mile wide, fed 
 by perennial springs and a moun- 
 tain creek. Originally the main 
 outlet from the lake was a second 
 €reek, into which the waters flowed 
 at ordinarj' stages. From the west- 
 ern part of the lake flowed a third 
 creek, which emptied into a creek 
 that flowed into the Pacific ocean. 
 The main outlet becoming choked 
 up with sand, the waters over- 
 flowed the lands of B. and C. on 
 the north of the lake, forming 
 marshes and swales, and escaped 
 into a creek flowing into a bay; 
 
 and for several years this was the 
 main outlet from the lake. B. and 
 C. erected a dike to protect their 
 land, which raised the water in the 
 lake, and threw it back upon A.'8 
 land, overflowing about one thou- 
 sand acres. Previous to erecting 
 the dike, B. and C. had cut two 
 ditches that carried the water off 
 their land. On this state of facts 
 it was held that the waters on 
 the lands of B. and C. could not 
 be considered merely as surface 
 water, but constituted a water- 
 course, and that B. and C. had no 
 right to erect the dike. 
 
 2 Gibbs V. Williams. 25 Kan. 214, 
 8. c. 37 Amer. Rep. 241; Shively v. 
 Hume, 10 Or. 76. 
 
 3 Jones V.Wabash, etc., R. Co., 18 
 Mo. App. 251. 
 
 (95)
 
 § 62 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 riation in these and other particulars. As was said, in effect, by- 
 Curtis, J., in Howard v. Ingersoll, 13 How. 428, the bed and 
 banks or the channel is in all cases a natural object, to be sought 
 after, not merely by the application of any abstract rules, but, 
 'like other natural objects, to be sought for and found by the 
 distinctive appearances it presents.' Whether, however, worn 
 deep by the action of water, or following a natural depression 
 witlujut any marked erosion of soil or rock; whether distin- 
 guished by a difference of vegetation, or otherwise rendered per- 
 ceptible, — a channel is necessary to the constitution of a water- 
 course. Of course, we cannot judicially declare that a channel 
 is of such a nature that it can never cease to exist. Both the 
 evidence and findings herein show that, as a result of the ac- 
 tion of water, channels have been closed and new channels- 
 formed. We cannot say but the indications of a channel may 
 be removed by other natural forces. We can conceive that 
 along the course of a stream there may be shallow places where 
 the water spreads, and where there is no distinct ravine or gully. 
 Two ascending surfaces may rise from the line of meeting very 
 gradually for an indefinite distance on each side. In such case, 
 if water flowed periodically at the lowest portion of the depres- 
 sion, it flowed in a channel, notwithstanding the fact that, the 
 water being withdrawn, the ' distinctive appearances' that it had 
 ever flowed there would soon disappear."^ On the other hand, 
 in a later case from the same court, it appeared that the owner 
 of lands, ui)on which there was a lagoon having no natural out- 
 let, cut a ditch for irrigating purposes. Thereafter he conveyed 
 part of the land on which the lagoon was situated to the de- 
 fendants, and the remainder of his lands to the plaintiffs. The 
 irrigating ditch ran between the different tracts conveyed. By 
 parol permission of their grantor, (the defendants,) the plain- 
 
 1 Lux V. Hagiiin, (Cal.) 10 Pac. Rep. 770. 
 (96)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 63 
 
 tiffs had used the waste waters of the ditch. On this state of 
 facts it was held that, the water never having flowed in any nat- 
 ural channel, the plaintiffs never acquired any riparian rights 
 in the flow of water in the ditch.'] 
 
 § 63. Percolating and subterraneous ■waters. 
 
 [Percolating waters collected or gathered in a stream, running 
 in a defined channel, are such property or incidents thereof as 
 may be acquired by grant, express or implied, or by appropri- 
 ation; and, when rights in them are thus acquired, the owner 
 cannot be divested of his rights by the wrongful act of another.^ 
 Thus a lake, fed by streams and having a natural channel, and 
 whose waters find exit by percolation in a perceptible current 
 through a bed of gravel, is a running stream, and may not be 
 obstructed so as to set back upon the lands of another.^ The 
 word "percolate," as used in the cases relating to the right of 
 land-owners to use water on their premises, designates any flow- 
 age of sub-surface water other than that of a running stream, 
 open, visible, and clearly to be traced.* 
 
 In regard to subterranean streams, the general consensus, of 
 the authorities appears to be that, if an under-ground current of 
 water flows in a known and well-defined channel, so as to con- 
 stitute a regular and constant stream, the riparian owner may 
 invoke the same rules, in insisting upon its uninterrupted flow, 
 which exist in the case of water-courses upon the surface.^ And 
 
 1 Green v. Carotto, (Cal.) 13 Pac. ^Mo ,ier v. Caldwell, 7 Nev. 363. 
 
 Rep. 685. And see Gillett v. John- See a valuable editorial note on 
 
 son, 30 Conn. 180; Macomber v. Percolating Waters in 64 Amer. 
 
 Godfrey, 108 Mass. 219. Dec. 727. 
 
 2Cross V. Kitts, 69 Cal. 217, s. c. ^ Dickinson v. Grand Junction 
 
 10 Pac. He]). 409; Brown v. Ashley, Canal Co., 7 Exch. 282; Chasemore 
 
 16 Nev. 317. v. Richards, 2 Hurl. & N. 186; Cole 
 
 ^Hebron Gravel Road Co. v. S. Min. Co. v. Virginia Water Co., 
 
 Harvey, 90 Ind. 192, s. c. 46 Amer. 1 Sawy. 470; Hale v. McLea, 53 Cal. 
 
 Rep. 199. 578; Strait v. Brown, 16 Nev. 317; 
 
 POM. RIP. — 7 (97)
 
 § 64 NATURE AND EXTENT OF RIGHT. [Ch.'5. 
 
 SO, where the exact course of water which has once emerged and 
 sunk can be tract-d to where it emerges again, the proprietor at 
 this point is protected in its use as if it were not a subterranean 
 stream.' But if the water flows beneath the surface without a 
 definite channel, or in courses which are unknown or unascer- 
 tainable, it is not subject to the settled law governing the rights 
 of ri{)arian owners.^] 
 
 § 64. Right to exclusive use of water. 
 
 Such being the appropriator's right over the stream as such, I 
 proceed to consider his rights over the water which comes un- 
 der his exclusive control by means of an actual diversion and 
 appropriation. The general doctrine is settled, by the unani- 
 mous consent of the authorities, that the prior appropriator is 
 entitled to the exclusive use of the water, up to the amount em- 
 braced in his appropriation, either for the original purpose or 
 for any other or different purpose, provided the amount is not 
 thereby increased, without diminution or material alteration in 
 quantity or in quality; and his use will, to that extent and for 
 such purposes, be protected against all subsequent appropriators 
 or claimants using or interfering with the water, both above and 
 below on the same stream; and to this end he may obtain all 
 proper remedies, legal and equitable.^ As illustrations, it is 
 
 Mahan v. Brown. 13 Wend. 261; Haldeman v. Bruckhart, 45 Pa. St. 
 
 Smith V. Adams, 6 Paige, 435; 514; Taylor v. Welch, 6 Or. 198. 
 
 Wheatley v. Baugh. 25 Pa. St. 528; SHimes v. Johnson, 61 Cal. 259; 
 
 Whetstone v. Bowser, 29 Pa. St. Stein Canal Co. v. Kern Island I. 
 
 .59; Haldeman V. Bruckhart, 45 Pa. C. Co., 53 Cal. 563; Reynolds v. 
 
 St. 514; Taylor V. Welch, 6 Or. 198. Hosmer, 51 Cal. 205; Gregory v. 
 
 1 Saddler v. Lee, 66 Ga. 45, s. o. Nelson, 41 Cal. 278: Clark v. Wil- 
 42 Am. Rep. 62. lett. 35 Cal. 534; Davis v. Gale, 32 
 
 2 Chasemore V. Richards, 7 H. L. Cal. 2'S; McDonald v. Askew, 29 
 Cas. 349; Dickinson v. Grand Cal. 200; Hill v. Smith, 27 Cal. 476; 
 .Junction Canal Co.. 7 Exch. 282; 32 Cal. 166; Rupley v. Welch. 23 
 Acton V. Blundell, 12 Mees & W. Cal. 4.53; Phujnix W. Co. v. Fletch- 
 324; Hanson v. McCue,42 Cal. 303; er, Id. 482; Natoma W. Co. v. Mc- 
 
 (98)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 65 
 
 held in Kimball v. Gearhart that, when the appropriator has 
 , completed his ditch so as to receive the water appropriated, "he 
 is then entitled to said water as against all persons subsequently 
 claiming or locating it;" and "possession or actual appropriation 
 is the test of priority in all claims to the use of water, when such 
 claims are not dependent upon the ownership of the land 
 through which the water flows." In Ortman v. Dixon it is held 
 that "a prior appropriator of water for mill purposes is entitled 
 to it to the extent of his appropriation, and for those purposes 
 to the exclusion of any subsequent appropriation for the same 
 or for other purposes." In Barnes v. Sabron the suj^reme court 
 of Nevada held that "the first appropriator, for purposes of irri- 
 gation, of the water of a stream running through the public 
 lands, has the right to insist that the water flowing therein shall, 
 during the irrigating season, be subject to his reasonable use and 
 enjoyment to the full extent of his original appropriation and 
 beneficial use. To this extent his rights go, but no further; for, 
 in subordination to such rights, subsequent appropriators may 
 appropriate the remainder of the water running in said stream." 
 
 § 66. Appropriator may change place or manner 
 of use. 
 
 Whenever a prior appropriation has been made for a certain 
 kind of purpose or use, at a certain place, the appropriator may, 
 as against other parties whose rights have accrued subsequently 
 to his own, change the place of his use for the same purpose, if 
 the amount of water taken by him is not thereby increased be- 
 yond that of his original appropriation; and it seems that he 
 
 Coy, Id. 490; Butte, etc., Co. v. Ophir Silver M. Co. v. Carpenter, 
 
 Morgan, 19 Cal. 609; Kidd v. Laird, 4 Nev. 534; Barnes v. Sabron, 10 
 
 15 Cal. 161; Kimball v. Gearhart, Nev. 217; Strait v. Brown, 16 Nev, 
 
 12 Cal. 27; Ortman v. Dixon, 13 317; Atchison v. Peterson, 20 Wall. 
 
 Cal. 33; Bear River, etc., Co. v. 515. 
 New York M. Co., 8 Cal. 327; 
 
 (99)
 
 § 65 NATURE AND EXTENT OF RIGHT. [Ch. 5, 
 
 may, as against such parties, change the nature of the purpose 
 or use to which the water was applied, provided the amount of 
 water thereby taken is not increased, or the interference with or 
 bunlen upon the subsequent claimants or appropriators is not 
 augmented.' But such a change of place or of purpose is not 
 permitted, as against parties who have acquired subsequent 
 rights, when it would enlarge the amount of water used beyond 
 that of the original appropriation, or otherwise increase tlie bur- 
 den imposed upon them by such appropriation. These conclu- 
 sions seem to be established by the decisions. In Woolman v. 
 Garringer ^ it was held that a prior appropriator for mining pur- 
 poses, at a certain place, may extend his ditch, and use his 
 water, to the extent of his original appropriation, at any other 
 place, for the same or for other purposes.. Such an appropriator, 
 who has duly constructed his dam and ditch, need not give an 
 actual notice to subse(]ucnt appropriators of his intention to ex- 
 tend his ditch, and reclaim his waste water, and use the water 
 at another place. ' In JMaeris v. BicknelF the rule was stated 
 that a mere change of the use from one mining place to another, 
 where the appropriation was for mining purposes, does not for- 
 
 '[ A riparian owner, having the the snpply he is entitled to. Ware 
 right to divert a certain quantity v Walker, (Cal.) 13 Pac. Rep. 475. 
 of water from a stream, may take And see Sieber v. Frink, 7 Colo, 
 the same at any point on the 148, s. c. 2 Pac. Rep. 901. This is 
 stream, and may change the point also the doctrine of the common 
 of diversion at pleasure, provided law. In AVhittier v. Cocheco Man- 
 he does not injuriously affect the uf'g Co., 9 N. H. 454, it is stated 
 rights of other appropriators by that, where a right exists to use a 
 such change. Junkans v. Bergin, certain quantity of water for pro- 
 67 Cal. 267, s. c. 7 Pac. Rep. 684. pelling machinery, a change may 
 An appropriator may, as against be made in the mode and objects 
 a subsequent purchaser from the of the use. and in the place of 
 United States, carry his ditch using it, if the quantity is not in- 
 through such purchaser's lands to creased, and the change is not to 
 a point higher up the stream, the prejudice of others.] 
 where such a change is rendered ^1 Mont. 535. 
 necessary to enable him to obtain 87 (jal. 261. 
 
 (100)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 65 
 
 feit nor abandon nor affect the prior right of the appropriator. 
 In McDonald v. Bear River, etc., Co.,^ after declaring that the 
 appropriation of water for mill purposes stands on the same 
 footing as an appropriation for mining, the court said that when 
 a party has erected a saw-mill, and appropriated the water of a 
 public stream for it, he may use the water for a grist-mill which 
 he subsequently erects. In Kidd v. Laird^ the doctrine on this 
 subject was announced in the following broad and general man- 
 ner: "A person entitled to divert a given quantity of the water 
 of a stream may take the water at any point of the stream, and 
 may change the point of diversion at pleasure, if the rights of 
 others are not injured by such change. This fight of change 
 does not depend upon the mode of acquiring the right to use 
 the water, whether by express grant or by prescription, or whether 
 by parol license or presumed consent of the proprietor. The 
 difference as to the origin of the right affects the mode of deter- 
 mining its existence and its extent, [i. e., the amount of water 
 appropriated,] and not the manner of its exercise and enjoy ment.''* 
 The proper limitation upon this doctrine was stated in the sub- 
 sequent case of Butte T. & M. Co. v. Morgan,^ which held that 
 a party appropriating and diverting water at a certain point 
 cannot afterwards change the place of diversion so as to preju- 
 dice another person whose rights have subsequently accrued. 
 And it was further said that the case of Kidd v. Laird does not 
 hold anything conflicting with this conclusion, and the decision 
 in that case, as there explained and limited, was reaffirmed. 
 In Davis v. Gale"* the court again laid clown the general rule in 
 the most unequivocal manner: "A person who has appropriated 
 the water of a stream, and caused it to flow to a particular place 
 by a ditch, for a special use, may afterwards change the use, 
 and the place at which he used it, without losing his priority 
 
 ilSCal. 220. 3i9Cal. 609. 
 
 215Cal. 161. 4 32Cal. 26. 
 
 (101)
 
 § 65 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 ad against one wlio dug a ditch from the same stream before 
 the change was made. Such a person, appropriating water for 
 the working of a particular mine, may, after he has worked out 
 and abandoned said mine, extend the ditch, and use the water 
 at otlier points, without losing his priority as against a person 
 who acquired rights in the stream subsequently to his appro- 
 priation. Appropriation and use of water for beneficial pur- 
 poses are the tests of right in such cases, and not the place and 
 character of the particular use.''' In Nevada W. Co. v. Powell* 
 the negative side of the rule was again applied, and the court 
 said: "If a person has appropriated a portwn of the water of a 
 stream, and has made a dam and ditch amply suflEicient to ren- 
 der his appropriation available, and has thereby acquired the 
 right to use said portion only of such water, and in said man- 
 ner only, this will not prevent other persons from acquiring a 
 right to the surplus water of the stream, or to its bed or banks, 
 or to the adjacent land, to any extent which will not interfere 
 with the right previously acquired. When rights of subsequent 
 appropriators once attach, the prior appropriator cannot en- 
 croach on them by extending his use beyond the first appropri- 
 ation. In such a case the first appropriator cannot extend his 
 claims, or change the manner of his appropriation, to the injury 
 of the second appropriator, any more than the second can do so 
 to the injury of the first; each is, in respect to his own appro- 
 priation, prior in time and exclusive in right." On this ground, 
 it was held that the prior appropriator was not authorized, by 
 raising the height of his dam, to cut off or diminish the flow of 
 the surplus water which had been thus appropriated by the de- 
 fendants. 
 
 J34Cal. 109. The facts of this extent of the appropriation, — rath- 
 case, however, to which the decis- er than a change in the place or ia 
 ion applies, show an increase in the kind of the use. 
 the (niantity of water used, — in the 
 
 (102)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 67 
 
 § 66. Remedies for interference -v^ith these rights. 
 
 Such being the rights of the appropriator, any interference 
 with the water of the stream itself, either above or below the 
 point of his diversion, which hinders the full enjoyment of 
 those rights, and any interference with the water while in the 
 ditch, dam, or reservoir, or with these structures themselves, 
 are injuries, for which suitable remedies may be obtained. 
 
 § 67. Injuries to ditches. 
 
 A ditch may be injured, or even destroyed, by mining under 
 it, thereby causing the surface of the soil over which the ditch 
 runs to crack and settle. In such a case the mine-owners are 
 liable to the proprietor of the ditch when the injury has been 
 caused by their negligent or unskillful manner of conducting 
 their mining operations; but whether they are liable for such 
 an injury in the absence of all negligence and unskillfulness is 
 more than doubtful.^ In the case cited, which was brought to 
 restrain the mining operations under such circumstances, the 
 court say that the plaintiff has a right to a ditch on the surface 
 of the soil, and the defendants have a right to mine under the 
 surface. These rights are not necessarily incompatible or con- 
 flicting. To the two parties so situated the maxim, qui prior 
 est in tempore potior est in jure, does not apply, but rather the 
 maxim, sic utere tuo ut alienum non Isedas. How far a court of 
 equity will relieve against such an injury, when no negligence 
 or lack of skill is charged , the court expressly refrain from de- 
 ciding, and suggest the following query: "Whether ditch prop- 
 erty in the mining regions, although conceded to be real estate, 
 is to be regarded by courts of equity with the same measure of 
 favor as that which is extended to land held by owners for its 
 own sake, and not put to use for an ulterior object, is doubted, 
 
 1 Clark v.Willett, 35 Cal. 534. 
 
 (103)
 
 § ('>8 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 but not decided." It is abundantly settled that parties engaged 
 in mining operations will be restrained from interfering with, 
 or destroying or washing away, the ditch belonging to another 
 person. The riglits of a prior ditch-owner, as against persons 
 engaged in mining, were fully established by the case of Greg- 
 ory V. Nelson,' in which the following points were decided: If 
 the complaint avers ownership by the plaintiff of a certain 
 ditch, and that the ground over which it runs was vacant and 
 unoccupied wlien it was dug, and the plaiutitf has used it for 
 years for mining purposes, and the answer does not deny these 
 allegations, nor set up an}' prior right of defendants to said 
 ground, nor any claim or right of defendants to destroy the 
 ditch, the court should enjoin the defendants from destroying 
 or interfering with the ditch upon the pleadings, regardless of 
 the testimony. If a party owns a ditch, and the right of way 
 for the same, to conduct water for mining purposes, and has ac- 
 quired such right by prior appropriation, the court, in an ac- 
 tion brought to restrain the defendants from washing avray the 
 ground, should not allow the defendants to wash away the ditch, 
 provided they builcJ' a flume or other aqueduct in place of the 
 ditcli of suflicient capacity to carry the water flowing through 
 it. A court of equity had no power to make such a decree un- 
 der these circumstances. A court should not license a trespass 
 to ditch property in the mining regions, nor compel the owner 
 to exchange his ditch for some other means of conveying the 
 water flowing therein. 
 
 § 68. Remedies for unlawful diversion. 
 
 Interference with the water to which tlie ap])ropriator is en- 
 titled, whether flowing in the stream or running through his 
 ditch, may either diminish its quantity or deteriorate its quality. 
 These two kinds of injuries will be considered separately. 
 
 141 Cal. 278. 
 (104)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 68 
 
 Of course the mere use of the water by another person, when 
 its quantity is not thereby lessened nor its quaht}^ deteriorated, 
 is no injury to a prior appropriator. If, therefore, A. owns a 
 ditch, and has the right to divert the water of a certain stream 
 by its means, and B. subsequently takes water from the same 
 stream at a place above the head of A.'s ditch, and uses it for 
 his own purposes, but returns it back undeteriorated in quality 
 into the stream before it would reach A.'s ditch, or even into 
 the U23per part of the ditch itself at a point before A. has use for 
 it, no injury is thereby done to A., and he has no cause of action 
 against B. therefor.^ Whenever the rights of a prior appropri- 
 ator exist, they are equally protected from interference and con- 
 sequent injury by parties subsequently locating on the stream 
 or using its water either above or below him, ^ The diversion of 
 the water of a stream is a private nuisance to the prior appro- 
 priator who is injured thereby, and he can maintain an action 
 for such nuisance. For a past diversion the only remedy is a 
 recovery of damages; but, when the diversion is continuing, 
 equity will interfere by injunction.^ It seems the injured party 
 may himself abate the nuisance. When A. attempts to erect a 
 dam for the purpose of diverting the water of a stream at a cer- 
 tain place, and such diversion is unlawful as against B., who is 
 a prior appropriator and has a dam at a lower point on the 
 
 1 Yankee Jim's Uuion W. Co. v. his right, but also for its preserva- 
 Crary, 25 Cal. 504. tiou. la actions, therefore, for the 
 2 Hill V. King, 8 Cal. 337. diversion of water, where there is 
 2 Tuolumne W. Co. v. Chapman, a clear violation of an established 
 8 Cal. 392; Parke v. Kilham. Id. 77. right, and a threatened continii- 
 In Brown v. Ashley, 16 Nev. 312, ance of such violation, it is not 
 the court held that where the act necessary for the plaintiff to show 
 complained of is committed under actual damages, or even a preseni 
 a claim of right, which, if allowed use of the water, in order to au- 
 to continue for a certain length of thorize a court to issue an injunc- 
 time, would ripen into an adverse tion restraining the actual or 
 right, and deprive the plaintiff of threatened diversion, and to make 
 his property, he is not only entitled it perpetual. 
 to an action for the vindication of 
 
 (105)
 
 § 69 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 stream, it is held that 13. may oust A. from possession, and may- 
 prevent the construction of his dam.^ Where a party has lo- 
 cated on a stream, erected a mill, and appropriated the water 
 for its use, in an action against a mere trespasser to recover 
 damages for diverting the water, it is sutlicient that the com- 
 plaint alleges the plaintiffs possession of the land, the mill-site, 
 and the mill, without averring riparian ownership or a prior ap- 
 propriation of the water. ^ In a suit to obtain relief against an 
 injury to the plaintiffs rights as a prior appropriator, it is no 
 defense whatever that the defendant's works are the more valu- 
 able, or his interests the more important.^ Where an appropri- 
 ation has been made at a particular point, a person subsequently 
 locating or constructing works on the same stream above must 
 not impede the regular flow of the water, if the prior appropri- 
 ator would be injured thereby. A mere trivial or temporary 
 irregularity caused in the flow does not constitute a cause of ac- 
 tion; but a sensible injury will be restrained by injunction, as 
 well as compensated for in damages.^ Where a ditch-owner 
 uses a ravine as a part of his ditch to conduct the water of a 
 stream which he has appropriated, the natural waters of such 
 ravine belong to him as the tirst appropriator thereof, and an 
 action will lie in his favor for an appropriation or diversion of 
 such waters by a third person.* 
 
 § 69. Equitable jurisdiction. 
 
 [It was stated in the preceding section that, where the un- 
 lawful diversion is continuing, a court of equity will interfere 
 by injunction against the wrong-doer. In order to obtain this 
 
 1 Butte T. M. Co. v. Morgan, 19 « Phoenix W. Co. v. Fletcher, 23 
 
 Cal. 609. Cal. 481; Natoma W. & M. Co. v. 
 
 2 McDonald v. Bear River, etc., McCoy, 23 Cal. 490. 
 
 Co., 13 Cal. 220. 6 Hoffman v. Btone, 7 Cal. 46. 
 
 3 Weaver v. Eureka Lake Co., 15 
 Cal. 271. 
 
 (106)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 69 
 
 assistance from chancery, it is not necessary for the complain- 
 ant to have recovered his damages at law. "Under our Codes, '^ 
 say the California court, "the riparian proprietor is not required 
 to establish his right at law by recovering a judgment in dam- 
 ages before applying for an injunction. The decisions (in cases 
 of alleged nuisances) based on the failure of the complainant tcv 
 have had his right established at law have no appositeness here. 
 Here the plaintiff must, indeed, clearly make out his right in 
 equity, and show that money damages will not give him ade- 
 quate compensation. If he fail to do this, relief in equity will 
 be denied; but, if he proves his case, relief will be granted, al- 
 though he has not demanded damages at law. In the case at 
 bar, the plaintiffs do not admit that damages would constitute 
 compensation, and ask for an injunction until they shall recover 
 such compensation in an action for damages. The decisions 
 which bear on that class of cases, and which require of the 
 plaintiff to show that he has promptly sought redress at law, 
 have little applicability."^ And indeed it is settled that an ac- 
 tion of ejectment will not lie to recover possession of a water- 
 course.^ 
 
 Since a court of equity may grant or withhold its aid accord- 
 ing to the circumstances, its intervention can only be secured 
 by the presentation of a substantial case. Thus, each riparian 
 proprietor has a right, within his own territory, to the use of 
 the water as it flows, returning it to the channel of the stream 
 for the use of others below; but if the water may be conven- 
 iently used by two riparian owners, without strictly enforcing 
 such right, a court of equity may refuse to lend its aid; and ac- 
 cordingly it has been held that a riparian owner would not be 
 enjoined from taking water from a river for the use of his mill, 
 
 iLux V. Haggin, (Cal.J 10 Pac. ag^ift v. Goodrich, (Cal.)ll Pac. 
 Rep. 688. Rep. 561; Ang. Water-Courses, § 8. 
 
 (107)
 
 § 69 NATUIIE AND EXTENT OF RIGHT. [Cll. 5. 
 
 although it was not returned to the channel of the river before it 
 roaclieil the territory of an adjoining owner, where it was not 
 clear from the evidence that such adjoining owner could not use 
 the water, with substantially the same results, through the race of 
 the defendant's raill.^ And, further, equity has jurisdiction for 
 taking the necessary steps to make its decrees effectual. Hence, 
 when the court has jurisdiction to grant an injunction restrain- 
 ing the unlawful diversion of waters, it may also require the de- 
 fendant to remove the obstructions by means of wliich the di- 
 version is effected.^ 
 
 Unless the flow of a stream to the land of a riparian propri- 
 etor has been appreciably or perceptibly diminished, he is not 
 entitled to an injunction against another for wrongfully divert- 
 ing water from the stream.^ But at the same time, as stated in 
 a late case, a continuous wrongful diversion of water will be re- 
 strained in equity at the instance of a prior ai:)propriator thereof, 
 although no actual damages are averred or proved; the relief 
 being granted in such cases to prevent the wrongful acts from 
 ripening into a right. ^ Hence, also, the comjilaint in an action 
 by an appropriator of water, to restrain the unlawful diversion 
 of the stream, need not allege that the plaintiff is in a position 
 to use the water himself, or that he is in any position which 
 gives him a right to furnish it to others; but it is sufficient to 
 allege that he has a right to the use and enjoyment of the water. ^ 
 So the riparian owner is entitled to the aid of equity to enjoin 
 a diversion, notwithstanding he may have made no use of the 
 water-power himself, or sustained but small pecuniary damages, 
 
 1 Mason v. Cotton, 4 Fed. Rep. Creigbton v. Kaweah CanalCo., 67 
 
 792. Cal. 231, s. c. 7 Pac. Rep. 658. 
 
 2, Johnson v. Superior Court of ^ Moore v. Clear Lake Water- 
 
 Tulare Co., (Cal.) 4 Pac. Rep. 576. Works, 68 Cal. 146, a. 0. 8 Pac. 
 
 3 Moore v. Clear Lake Water- Rej). 816. 
 
 Works, (Cal.) 5 Pac. Rep. 494; 6 id. 
 
 (108)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 69 
 
 and although the defendant may be suljjected to heavy expense 
 if compelled to restore the water to its original channel.^ 
 
 In regard to the parties to actions of this character, the rule 
 seems to be established that, where each of two defendants made 
 a diversion of the water fcrr his own benefit, separately from the 
 other, and without any collusion or joint action between them, 
 a joint action to recover damages for such diversion is not main- 
 tainable.^ Under the peculiar system of "irrigating ditches," 
 prevailing in some of the states and territories, it is held that 
 the owners of irrigated lands, who -have the right to take water 
 from such a ditch, may bring suit for an injunction against one 
 who wrongfully diverts water from the ditch to their injury, 
 though the ditch be the property of another, " Though the own- 
 ers of the ditch are entitled to toll for the water, the owners of 
 the land are entitled to the water on payment of the toll. The 
 diversion of the water from the ditch would injure the owner 
 of the ditch, it is true, but it would also injure the owner of the 
 land to be irrigated, to deprive him of the water. The owner 
 of the ditch, for many reasons, might decline to sue. He might 
 be in collusion with the wrong-doer to destroy the value of plain- 
 tiff/s lands, in the hope of buying them. He might be actuated 
 by private malice. He might, from motives of economy, refuse 
 to embark in a lawsuit of this character. The rights of plain- 
 tiff would be of little value if they were subject to the interest, 
 whim, or caprice of the owner of the ditch. "^ 
 
 In an action on an injunction bond to recover damages for 
 loss of plaintiff's crops, by reason of his being restrained from 
 using the water in a certain ditch, the evidence showed that 
 there was a great scarcity of water, and that it could not have 
 
 ^ Weiss V. Oregon Iron Co., 13 2 Evans v. Ross, (Cal.) 8 Pac. 
 Or. 496, s. c. 11 Pac. Rep. 255; cit- Rep. 88. 
 
 ing High, Inj. § 795. ^Clifford v. Larrien, (Ariz.) 11 
 
 Pac. Rep. 397. 
 
 (109)
 
 § 70 NATURE AM) EXTENT OF RIGHT. [Cll. 5. 
 
 readied the i)laintifl"'s lands, whereupon a verdict for nominal 
 damages was rendered and sustained; and it was further held 
 that wliere a i)arty sues for damages for such a cause, if it is 
 sliown that he could have obtained water from another source, 
 lie will not be entitled to receive a greater sum than he would 
 have had to expend to obtain water from such source.^ 
 
 The prior locator of a mining claim on the bank of a stream 
 has a right to the use of the bed of the stream for the purpose 
 of tluming or working his claim, and may recover damages for 
 the obstruction of such right by jDarties who subsequently erect 
 dams or embankments upon the stream, by reason of which he 
 is hindered from working his claim by flumes or other neces- 
 sary means or appliances.^] 
 
 § 70. Deterioration of quality of -water. 
 
 With respect to deterioration in the quality of the water, 
 caused by subsequent locators or claimants higher up the stream, 
 there was at an early day some doubt; but the rule is now set- 
 tled that an interference of this kind producing injury will be 
 treated in the same manner as an interference with the quantity. 
 In the early case of Bear River, etc., Co. v. New York M. Co.^ 
 the plaintiff was the prior appropriator of water for mining pur- 
 poses. The defendants took the water at a point higher on the 
 stream, used it for their mining purposes, and then sent it down 
 the stream undiminished in quantity, but filled with mud, sand, 
 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 
 other rule would prohibit any use of the whole water of a stream, 
 80 as to preserve a small quantity of it first appropriated." The 
 
 1 Mack V. .Jackson, (Colo.) 13 Pac. 2 gjmg y. Smith, 7 Cal. 148. 
 Rep. 542. 88 Cal. 337. 
 
 (110)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 70 
 
 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 ijollution 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.^ 
 
 127 Cal. 476; and see s. c. 32 Cal. 166. 
 8 Cramer v. Randall, 2 Utah, 348. 
 
 (Ill)
 
 § 72 NATUHK AND EXTENT OF RIGHT. [Ch. 5. 
 
 II. LiAnir^iTY FOR Da^iac.es Caused by Ditches. 
 
 § 71. Various kinds of injuries. 
 
 It seems proper, in this connection, to consider very briefly 
 the liabihtics 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 se]>arately. 
 
 § 72. 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 appro^Driat- 
 ing the water to legitimate uses. The doctrine is settled by the 
 English courts that whenever a party lawfully constructs a res- 
 ervoir, embankment, dam, or other artificial structure on his 
 own land, for the purpose of catcliing, impounding, or retaining 
 water, he thereby becomes an insurer of the safety of his adjoin- 
 ing or neighboring proprietors and occupants against all 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 its 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 
 (112)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 72 
 
 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 
 affected.^ 
 
 Wolf V. St. Louis, etc., Co.^ was a similar action, to recover 
 damages for the overflowing of plaintiff's land through the neg- 
 
 1 Hoffman v. Tuolumne, etc., Co., 10 Cal. 413. nO Cal. 541. 
 
 POM.RIP. — 8 (113)
 
 § 73 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 ligent construction and use of defendant's flume. On the trial 
 the court charged that defendant was bound, in the construction 
 and management of its dam and flume, to use all the care which 
 a vei'ij 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 ordhiarily 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 plaintifi''s part could not be set up as a 
 defense to such an action.' 
 
 § 73. 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- 
 
 iFralerv. Sears, etc.,Co..l2Cal. Miners' Ditch Co., 7 Cal. 335; 
 
 556. As layini? down the same gen- Campbell v. Bear River, etc., Co., 
 
 tral test of liability, see, also, Todd 35 Cal. 679; Richardson v. Kier, 34 
 
 Y. Cochell, 17 Cal. 98; Tenney v. Cal. 63, 74, and 37 Cal. 263. 
 
 (114)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 73 
 
 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 nil 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 resiDective 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.^ 
 
 * [In the recent case of Weide- for a certain purpose, it charged 
 kind V. Tuolumne Water Co., (Cal.) with respect to a matter of fact. 
 4 Pac. Rep. 415, Sharpstein, J., The court might as well have 
 observed: "It was proper to in- charged them that, if the dam was 
 struct the jury as to the degree of not of certain dimensions or con- 
 care and vigilance which the law structedof a particular kind of ma- 
 devolved on the defendant in the terial, it was insufficiently 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 anyone charging that 'it was the duty of 
 might suffer 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 ' insuffi- circumstances, and should have 
 ciently and negligently construct- been left to the jury. "] 
 ed' unless it had gates sufficient ^ppoctor v. Jennings, 6 Nev 83. 
 
 (115)
 
 § 74 NATURE AND EXTKNT OF RIGHT. [Ch. 5. 
 
 § 74. 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 
 Btreams 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 tlie 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 proj)erty, destroy the prop- 
 erty of B., however urgent the necessity.^ 
 
 'Titcomb v. Kirk, 51 Cal. 288; STurner v. Tuolumne, etc., Co., 
 and see, also, Henshaw v. Clark, 25 Cal. 398. 
 14 Cal. 461; Boggs v. Merced M. 
 Co., 14 Cal. 282, 379. 
 
 (116)
 
 Ch. 5.] NATURE AND EXTENT OP^ RIGHT. § 75 
 
 § 75. Damages from miode of construction or op- 
 eration of -vsrorks. 
 
 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 grouj?, 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 j^erson, 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. 
 
 (117)
 
 § 75 
 
 NATURE AND E.XTKNT OF RIGHT. 
 
 [Ch. 5. 
 
 injure R.'s latul, K. is liable for the injmy 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 similar injuries in other 
 cases. ^ 
 
 ^See Ricliardson v. Kier, 37 Cal. 
 2G3; Blaistlell v. Stephens. 14 Nev. 
 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 cannot 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, (Xev.)6 Pac. Kep. 437. A per- 
 son owning a ditch, from which 
 water escapes upon the premises 
 of an adjoining landowner, 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. CJianginf/ 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 (lows and empties into the 
 
 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, 38 Ohio St. 
 448. Dams and Bulk- 1 leads. 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 anj' right, nor give 
 him legal ground for complaint. 
 Barnes v. Marshall, 68 Cal. 569, s. 
 c. 10 Pac. Rep. 115.] 
 
 (118)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 76 
 
 § 76. 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 
 Nixon 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 dowia 
 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 sufficient 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 unnecessaril}'-, 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 
 
 iLogan V. Driscoll, 19 Cal. 623; Cal. 367; Levaroni v. Miller,' 34 CaL 
 Wixon V. Bear River, etc., Co., 24 231. 
 
 (119)
 
 § 77 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 upon the lands of proprietors adjoining the stream in its lower 
 portions, perhaps many miles below the point of discharge.* 
 
 § 77. Effects of hydraulic mining a public nui- 
 sance. 
 [Within tlie 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 follows: The discharge 
 of sand, gravel, and other dcbria into the navigable rivers of the 
 state, as a consequence of mining by the hydraulic process, with 
 the effect to ffll u]) 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 IVIin. 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, 
 
 ^Robinson v. Black Diamond, ronce, T7 Me. 297; Red River Roller 
 
 etc., Co., 50 Cal. 401, and 57 Cal. I^Illls v "Wright, 30 Minn. 249, 15 
 
 412, s. c. 40 Amer. Rep. 118; Wood- N. W. Rep. 1G7. 
 
 ruff V. North Bloomfield, etc., Co., 29 gawy. 441, s. c. 18 Fed. Rep. 
 
 8 Sawy. 628, s. c. 16 Fed. Rep. 25; 753. 
 and see Lockwood Co. v. Law- 
 
 (120)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 77 
 
 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\-^-r ocks, 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 debi-is 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 Marysville, 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- 
 
 (121)
 
 § 77 NATUUK AiND EXTENT OF RIGHT. [Ch. 5. 
 
 dangcring 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 j)rivate 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 terras, 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 ite wa}' into the nav- 
 igable watt-rs of the state. As to congress, it might be sufficient 
 to say that it has no authority wliatever 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 authorit}' 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 
 (122)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 77 
 
 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 ])roperty for an alleged public use 
 without compensation. Tlie defendants were therefore stripped 
 of all color of statutory autliority 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 i^ublic 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 
 
 (123)
 
 § 77 NATURE AND EXTENT OF RIGHT. [Cll. 5. 
 
 the state.'" The last contention of the defendants was that their 
 acts 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. 
 Sucli 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 & 'Slin. Co. has Ijccu 
 since August, 1870, a corporation existing un<ler the laws of tlic 
 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 lust 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 oflF 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- 
 
 » Citing Wood, Nuis. 790-792; Cooley, Torts, 613. 24 Pac. Rep. 1152. 
 
 (124;
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 77 
 
 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 carrjnng on its mining operations upon said laud for about 
 eight 3^ears 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 3^ards of soHd 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 
 IDortion 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 
 mostl}^ 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 Avould have been, and covering thousands 
 of acres of good land in the Sacramento valley with mining de- 
 
 (125)
 
 § 77 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 bris. And as the rivers are at all times carrying in suspension 
 the ligliter earthy matter from the mines, and washing down 
 the heavier debiis, they are likely to fill more rapidly in the 
 future in proportion to the quantity of hydraulic tailings than 
 in the past, and to cause much further and greater injury in 
 the future to large tracts of land; prolsably 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 make 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- 
 gaged 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 from their 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 
 (126)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. ■ § 77 
 
 water flowing over it, for the purposes of transportation and 
 commercial intercourse. The soil of a navigable river is the 
 alveus 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 affect 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 
 debris dumped into the stream by the defendant and other min- 
 ing comj^anies, 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. Reference was made to the case of 
 
 (127)
 
 § 77 NATURE AND EXTENT OK RIGHT. [Ch. 5, 
 
 Hillmnn v. Newiiigton, 57 Cal. 62, and it was said: "This case 
 clearly recognizes the equitable i)rinciple that, in an action to- 
 abate a public or ])rivate nui-ancc, all persons engaged in the 
 com mission of the wrongful acts which constitute the nuisance 
 may l^c 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 claimed 
 that the defendant has acquired the right from custom, and by 
 prescription and tlie stiitute 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 debrishas prevailed 
 for many years; and, as a custom, it may be conceded to have 
 been founded in necessity, for without it hydraulic raining could 
 not have been economically operated. In that custom the peo- 
 ple of the state have silently ac(|uicsced, 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 jjrivate rights, and cannot be invoked ta 
 justify the continuance of the business in an 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 sjjecies of property is the corresponding duty to so use it 
 (128;
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 78 
 
 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 debris into 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.^] 
 
 § 78. 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 ol these dams, 
 but the courts have not yet formulated a definite rule on the 
 subject. Keeping in mind, however, the extent of the public 
 
 1 Citing Pettis v. Johnson, 56 Pac. R. R., 61 Cal. 250; People v. 
 
 Ind. 139; Boston Rollins; Mills v. Stratton, 25 Cal. 242; Yolo Co. v. 
 
 Cambridge, 117 Mass. 396; Wright Sacramento, 36 Cal. 193. 
 
 V. Moore, 38 Ala. 593; People v. ^E^reka Lake «& Yuba Canal Co. 
 
 Cunningham, 1 Denio, 524; Mills v. Superior Court, 66 Cal. 311, i 
 
 V. Hall, 9 Wend. 315; Civil Code Pac. Rep. 490. 
 Cal. § 3490; Sacramento v. Central 
 
 POM.Rip.— 9 (129)
 
 § 78 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 flinl private interests which are jeopardized by the system of hy- 
 drauHc mining, tliey have held that no dam for impounding 
 mining debris, erected in a mountain river, should be held suffi- 
 cient to protect rii)arian and other proprietors below, upon any 
 evidence not of tlie 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. All doing injury must 
 be stopped or restrained from contributing to further injury, or 
 uone."'] 
 
 iHardt v. Liberty Hill Mia. Co., 27 Fed. liep. 788. 
 (130)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 79 
 
 III. Extent of the Right Acquired. 
 
 § 79. Amount of water which the appropriator is 
 entitled to use. 
 
 The amount of water which an approiDriator is entitled to use 
 — commonly designated as the extent of his appropriation — is a 
 question of fact to be determined by a jur3^ 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 by 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 
 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 thereby 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 
 
 1 Nevada W. Co. v. Powell, 34 Sabron, 10 Nev. 217; Atchison v. 
 Cal. 109; Ortman v. Dixon, 13 Cal. Peterson, 20 Wall. 514. 
 33; Higgins v. Barker, 42 Cal. 233; s^evada W. Co. v. Powell, 34 
 Davis V. Gale. 32 Cal. 26; Lobdell Cal. 109; McKinney v. Smith, 21 
 V. Simpson, 2 Nev. 274; Barnes v. Cal. 374; Barnes v. Sabron, 10 Nev 
 
 217. 
 
 (131)
 
 § 80 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 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.^ 
 
 § 80. 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 
 
 1 Davis V. Gale, 32 Cal. 26; Kidd stream, ou the part of one whohaa 
 
 V. Laird, 15 Cal. 161; Woolman v. conducted some water to it, will be 
 
 Garringer, 1 Mont. 535. [Where a restrained at the suit of a ripa- 
 
 party has appropriated water for rian proprietor, unless the former 
 
 the purpose of irrigation, the shows that he has not diverted 
 
 amount of water to which he is en- from it more water than he led to 
 
 titled, as against subsequent ap- it^ Wilcox v. Hausch, 64 Cal. 461, 
 
 propriators, is limited to the s. c. 3 Pac. Rep. 108. The prior 
 
 amount actually applied to the appropriatorof water has the prior 
 
 purposes of irrigation. Simpson right to its use to the e.xtent, in 
 
 v. Williams, 18 Nev. 432, s. c. 4 amount and time, of his tirst ap- 
 
 Pac. Rep. 1213. The grantee of propriation, and (it seems) to the 
 
 an undivided half of a sufficiency extent to which he was preparing 
 
 of water for a certain purpose to use it. Lehi Irrigation Co. v. 
 
 takes by his grant no more than Moyle, (Utah,) 9 Pac. Rep. 867.] 
 
 one-half of the whole quantity ^j^mes v. Williams, 31 Cal. 211. 
 
 of water in the stream, whenever In Feliz v. City of Los Angeles, 58 
 
 such quantity is, by natural causes, Cal. 73, it was held that tlie city 
 
 diminished below such sufficiency, had acquired a right to all the wa- 
 
 Dow V. Edea. 58 N. H. 193. The ter of a river, and that plaintiff's 
 
 diversion of water from a natural use was permissive, not adverse. 
 (132)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 81 
 
 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 Jill 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 
 at its smallest point; that is, at the point where the least water 
 -can be carried through it."^ 
 
 § 81. True capacity of ditch the proper measure. 
 
 It may well be doubted, I think, whether there is any mate- 
 rial difterence 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 
 after such commencement, and the amount of water actually di- 
 verted and carried by it at and during these times, do not alwayj 
 
 *Bear River, etc., Co. v. New tion, of watering his stock, and ot 
 
 York M. Co.. 8 Cal. 327. domestic uses; but if the capacity 
 
 ^Ophir Silver M. Co. v. Carpen- of his ditches is not more than suf 
 
 ter, 6 Nev. 393; 4 Nev. 534. Also fleient for those purposes, then, 
 
 in Barnes v. Sabron, 10 Nev. 317, under the facts of this case, nc 
 
 the court held that where the prior change having been made in the 
 
 appropriator of a stream has con- ditches since their construction, 
 
 structed ditches in order to irrigate and no question as to the right of 
 
 his land, if the capacity of his their enlargement being involved, 
 
 ditches is greater than is necessary he must be restricted to the capac- 
 
 to irrigate his farming land, he ity of his ditches at their smallest 
 
 must be restricted to the quantity point, 
 needed for the purposes of irriga- 
 
 (133)
 
 § 81 NATURE AND KXTENT OF RIGHT. [Cll. 5. 
 
 furnish an inflexible test or measure of the extent of the appro- 
 priator s ri<j;ht. 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 intended to be aj^propriated; and the increase in 
 the actual flow of water thus caused would not be an invasion 
 of the rights of subsequent approi)riators, although their rights 
 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 
 plaintifl' 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 witliin which to remove such obstruc- 
 tions or to adjust the grades, and could then divert the water 
 
 i8Cal. 443. 
 (134)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 82 
 
 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. A few other cases, which deal only with ques- 
 tions of fact as to the amount of water appropriated, are cited 
 in the foot-note.^ 
 
 IV. Successive Appropriators. 
 
 § 82. 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- 
 saril}' 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 
 
 ^Higgins V. Barker, 42 Cal. 233; Stein Canal Co. v. Kern Island Co., 
 Eeyuolds v. Hosmer, 51 Cal. 205; 53 Cal. 563. 
 Dougherty v. Haggin, 61 Cal. 305; 
 
 (135)
 
 § 83 NATURE AND EXTENT OF RICnT. [Cll, 5. 
 
 the waters of a pul)lic stream which have already been appro- 
 priated by the prior acts of another party. 
 
 i 83. 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 apj^ropriation at a place higher up 
 on the stream, may divert and use the waters, and return them, 
 nndeteriorated 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 
 tise of the water would not be in any way interfered with.^ This 
 particular case is simply an instance of the following general 
 doctrine, which has been firmly settled by numerous decisions: 
 
 A i^rior appropriation having been made on a public stream, 
 the residue or surplus remaining of its waiters, not embraced 
 within the amount of such prior appropriation, may afterwards 
 "be appropriated, either above or below on the same stream, by 
 ether 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- 
 
 »'See ante, % 55. ford. Id. 361; McKinney v. Smith, 
 
 *Stein Canal Co. v. Kern Island, 21 Cal. 374: Ortman v. Dixon, 13 
 
 «tc., Co., 53 Cal. 563; Broderv. Na- Cal. 33; Butte C. Co. v. Vaughn. 11 
 
 toma W. Co., 50 Cal. 621; Smith v. Cal. 143: Kelly v. Natoma W. Co., 
 
 O'Hara, 43 Cal. 371: Higgins v. 6 Cal. 105; Lobdell v. Simpson, 3 
 
 Barker. 42 Cal. 233; Nevada W. Co. Nev. 274; Proctor v. Jennings, 6 
 
 T. Powell, 34 Cal. 109; Davis v. Xev. 83; Barnes v. Sabron, 10 Nev. 
 
 Gale, 32 Cal. 26; Hill v. Smith, 27 217. 
 Cal. 476; American Co. v. Brad 
 (136)
 
 Oh. 5.] NATURE AND EXTENT OF RIGHT. § 83 
 
 ■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 de- 
 •cree prohibiting a party situated on a stream below the tiam at 
 the head of a ditch belonging to another person from diverting 
 or interfering with the water above such dam, does not hinder 
 him from using the surplus water which flows down the stream 
 iifter the ditch is supplied.^ The surplus water of a stream, 
 after a prior appropriation, may be the subject of a new appro- 
 priation, and the second approjDriator will have a paramcomt 
 right to use all the waters which are not required for the special 
 purposes of the prior a]">propriator.^ If a prior appropriator of 
 ■water for mill purposes suffers a portion of the water, or the 
 whole amount of it, after driving the mill, to flow down its ac- 
 customed channel, other parties below him on the stream may 
 appropriate this residuum, so as to obtain a vested right to its 
 use.^ In Lobdell v. Simpson^ the doctrine was briefly but com- 
 prehensively stated: "A second appropriator has a right to have 
 the water continue to flow as it flowed when he made his appro- 
 priation." The same court said, in Proctor v. Jennings:^ "A 
 person appropriating a water-right on a stream already appro- 
 priated acquires a right to the surplus or residuum which he ap- 
 propriates; and those who hold the prior rights, whether above 
 or below him on the stream, can in no way change or extend 
 their use of the water to his prejudice, but are limited to the 
 rights enjoyed by them when he secured his own." 
 
 iHill V. Smith, 27 Cal. 476. ^Ortman v. Dixon, 13 Cal. 33. 
 
 2Americaii Co. v. Bradford, 27 6 2 Ne v. 274. 
 
 Cal. 361. 6 6 Nev. 83. 
 
 3McKinney v. Smith, 31 Cal. 
 374. 
 
 (137)
 
 § 85 NATIRE AND EXTENT OF RIGHT. [Ch. 5. 
 
 § 84. Periodical appropriations. 
 
 It iiKikes no dill'crence in the application of this doctrine how 
 the surphis or residue of the water may arise. It may be con- 
 stant, resulting from an appropriation of a portion only of the 
 water; or it may be intermittent, resulting from an ap])ropria- 
 tion of all the water during only a part of the time. If a prior 
 appropriation is of such a character that it only takes and uses 
 the water on certain days of the week or month, a second ap- 
 propriator may acquire a vested and paramount right to the 
 same amount of the water flowing through the stream on the 
 other days not embraced in the prior claim. A. having appro- 
 priated the entire water of a stream to be used only on Mon- 
 days, Tuesdays, and Wednesdays, B. may subsequently acquire 
 an equally perfect right to use the same quantity of the water on 
 Thursdays, Fridays, and Saturdays.^ This rule is stated in the 
 Nevada case in the most general terms: "If the first appropria- 
 tt)r only appropriates a part of the waters of a stream for a cer- 
 tain period of time, any other person may not only appropriate 
 a part or the whole of the residue, and acquire a right thereto 
 as perfect as that of the first appropriator, but he may also ac- 
 quire a right to the quantity of water used by the first appro- 
 priator at such times as it is not needed or used by him." 
 
 § 85. Conditions under which subsequent appro- 
 priation may be effected. 
 The rights of the subsequent appropriator conferred and pro- 
 tected by this doctrine may exist and be exercised under the 
 following different conditions of fact: (1) A subsequent appro- 
 
 'Smith V. O'Hara, 43 Cal. 371; ing extraordinary high water or 
 
 Barnes V. Sabron, lONev. 217; and freshets, he cannot obtain an in- 
 
 see Lytle Creek W. Co. v. Perdew, junction against appropriation by 
 
 2 Pac. Rep. 732. [Where a land- another of the surplus water dur- 
 
 owner appropriates and uses all ing freshets. Edgar v. Stevenson, 
 
 the water of a stream, except dur- (Cal.) 11 Pac. Rep. 704. J 
 
 (138;
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 85 
 
 priator may always take and use any amount of water at a place 
 higher up the stream than the point of the prior appropriation, 
 and without any reference to the amount embraced in such prior 
 appropriation, provided he returns all the water after its use, 
 undeteriorated in quality, to its natural channel in the stream, 
 before it reaches the prior approjDriator's place of diversion, — 
 the head of his ditch; since under these circumstances the prior 
 appropriator is in no manner injured. (2) When a prior ap- 
 propriation includes only a certain portion of the water flowing 
 in a stream, — measured, for example, by the capacity of the 
 ditch, — a subsequent appropriator, at a place higher upon the 
 stream, may always take from the stream, use, and consume, 
 without returning, any quantity of its water, provided he leaves 
 flowing down the natural channel after his own diversion a suf- 
 ficient amount of the water at all times to meet the demands of 
 the prior appropriation; in other words, so as not to lessen nor 
 interfere with the amount which the prior appropriator is en- 
 titled to draw off by his means of diversion. (3) When a prior 
 appropriator takes and uses the whole or an}' portion of the wa- 
 ter of a stream, for milling or other similar purposes, by which 
 the water is not consumed, and then after such use returns the 
 water to the stream so that it thenceforth flows down its natural 
 channel, a subsequent appropriator lower down the stream may 
 appropriate and obtain a vested right to the whole or any part 
 of the same water so discharged and flowing down the natural 
 channel after its former use. (4) When a prior appropriator 
 takes and uses a certain portion or quantity of the water from a 
 stream, and by the nature of his use consumes the same without 
 restoring it or any part of it to the stream, then the surplus or 
 residue of the stream not so diverted but continuing to flow 
 down the natural channel, or any part thereof, may be subse- 
 quently appropriated by another party lower down the stream, 
 and his rights of appropriation in such surplus or residue will 
 
 (139)
 
 § 86 NATURE AND KXTENT OF RIGHT. [Cll. 5. 
 
 be vested and perfect. (5) In all these conditions, a subsequent 
 appropriator may appropriate and obtain a vested right to use 
 the water during the fixed intervals of time when it is not taken 
 and used by the prior appropriation. All the possible cases 
 which can arise may be accounted for and explained by a com- 
 bination among the foregoing general conditions of fact. When- 
 ever successive appropriations have been properly and lawfully 
 made on the same stream, each party is, with respect to the ex- 
 tent of his appropriation, — the amount included therein, — in 
 the legal position of a prior appropriator towards all the others.^ 
 
 § 86. Division of increase in stream. 
 
 In addition to the general doctrine thus stated and illustrated, 
 the following special rules, applying to particular circumstances, 
 have been the subject-matter of decision. If two persons suc- 
 cessively appropriate water of a stream by means of their ditches, 
 and a third person turns into the same stream, at a place higher 
 up than the heads of both these ditches, additional water brought 
 by means of his own ditch from another and different stream, 
 without any intention of recapturing the same, the water thus 
 discharged becomes jntblid juris, — to all intents a part of the nat- 
 ural waters of the stream into which it is emptied; and it be- 
 longs to the two appropriators according to their priority of right, 
 — the one having made the prior appropriation is first entitled 
 to the increased flow to the extent of his appropriation.^ 
 
 A person who had located a mill-site on a stream, and appro- 
 priated the water for the purposes of his mill, sold and con- 
 veyed all his interest in the water of the stream to the proprie- 
 
 1 [Where old ditches are super- priations, and not according to 
 
 seded by agreement by a new one, their interests in the new ditch, 
 
 and nothing is said in regard to the Rominger v. Squires, (Colo.) 12 
 
 division of the water, the rights of Pac. Rep. 213.] 
 
 the parties are to be determined 2 Davis v. Gale, 32 Cal. 26. 
 according to their original appro- 
 
 (140)
 
 Ch. 5.] NATURE AND EXTENT OF KIGHT. § 88 
 
 tor of a ditch above him . Held , that he had not thereby lost his 
 prior right to the water which still flowed down the stream after 
 such sale, as against a third party who had appropriated the 
 water below him subsequently to his original appropriation, but 
 before his said sale and conveyance.^ 
 
 § 87. Wrongful diversion of springs. 
 
 In the case of Strait v. Brown ^ the supreme court of Nevada 
 decided a point which may be of much practical importance. 
 Although no distinction, in general, exists between waters run- 
 ning under the surface in defined channels, and those running 
 in such channels upon the surface; and although water perco- 
 lating through the ground below the surface is not governed by 
 the same rules which pertain to running streams, — still, subse- 
 quent appropriators cannot, as against the prior appropriator of 
 the same stream, lawfully acquire rights to the waters of the 
 springs which constitute the source of such stream, simply be- 
 cause the means through which the waters are conveyed from 
 the springs to the stream are subterranean, and not well under- 
 stood nor defined. In other words, the subsequent appropria- 
 tors on a stream cannot cut off" and destroy or impair the rights 
 of the prior appropriators by tapping the very springs them- 
 selves which constitute the sources of the stream, under color 
 of a right to reach subterranean and percolating waters.' 
 
 V. Abandonment of Right. 
 
 § 88. General doctrine of abandonment. 
 
 Many of the cases heretofore cited, and several of the rules 
 formulated in the foregoing sections, recognize the fact that 
 
 1 McDonald v. Askew. 29 Cal. 200. Cal. 205. The particular facts and 
 216Nev. 317. rulings in these cases have been 
 
 ^For further special applications, sufficiently described under previ- 
 
 see Nevada W. Co. v. Powell, 34 ous sections. 
 
 Cal. 109; Reynolds v. Hosmer, 51 
 
 (141)
 
 § 89 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 there may be an abandonnient of the exclusive right to divert and 
 use water aciiuired by or resultinj? from a prior ai3propriation; 
 that such an abandonment may be made either after the prior 
 api^ropriation has become perfect and complete, and the right un- 
 der it vested, or while it is yet imperfect and incomplete, and the 
 right under it remains inchoate; and, finally, that an abandon- 
 ment may be express and immediate, by the intentional act of 
 the appropriator, or may be implied from his neglect, failure to 
 use due diligence in the construction of his works, non-user of 
 them after completion, and the like. The general doctrine con- 
 cerning the effect of such an abandonment, at whatever time or 
 in whatever manner made, is well settled. The prior appro- 
 priator thereby loses all of his exclusive rights to take or use 
 the water which he had acquired, or might have acquired, by 
 his appropriation; and he cannot, after an abandonment, reassert 
 his original right to the same, or the same amount of water, as 
 against a second or other subsequent claimant who has taken 
 proper steps to effect an appropriation thereof. If there has 
 been no subsequent appropriation of the water thus abandoned, 
 by another party, the prior appropriator may, of course, regain 
 his former right, but this can only be done by his properly 
 commencing and completing de novo the requisite steps in order 
 to effect an appropriation, as heretofore described. He is in ex- 
 actly the same situation as though he had hitherto made no at- 
 tempt to appropriate the water.' 
 
 § 89. Methods of abandonment. 
 
 The methods in which an abandonment may be accomplished 
 are various. Since the right held by the appropriator is an in- 
 
 1 Davis V. Gale, 32 Cal. 26; Bark due diligence in completing the 
 
 ley V. Tieleke, 2 Mont. 59; and see works, etc.; and concerning the 
 
 cases cited ante, concerning the discharge of water into the stream 
 
 mode of making an appropriation, without intent of "recapture." 
 (142)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 89 
 
 terest inland, an incorporeal hereditament, it can only be trans- 
 ferred, as has already been shown, by an instrument in writing 
 sufficient to convey real estate. It follows that a mere ^verbal 
 sale and transfer of his water-right by a prior appropriator op- 
 erates i/wo facto as an abandonment thereof.^ Such act shows an 
 unequivocal intent on the part of the appropriator to give up 
 and relinquish all of his interest, and, as it does not effect any 
 transfer thereof to the attempted assignee or vendee, the only 
 possible result is an immediate and complete abandonment. 
 The same result follows from an attempted transfer of the water- 
 right by means of an imperfect deed or instrument of convey- 
 ance.^ Returning the water, which has been diverted back into 
 the natural channel of the stream without the intent of " recapt- 
 uring" it, would be an express abandonment of all further 
 rights to the use of such water ; and the absence of any intent 
 to "recapture" would generally be inferred, it seems, unless the 
 returning of the water, after its first diversion, was made for the 
 purpose of using the natural channel as a part of the appropri- 
 ator's ditch or canal. ^ Again, an abandonment may be inferred 
 from a neglect to use the water for an unreasonably long time, 
 especially if the special purposes of its original appropriation 
 had been fully accomplished. Thus, in an important case al- 
 ready quoted, the court, after saying that the prior appropriator 
 of water for a particular mine may, when he has worked out and 
 abandoned said mine, extend his ditch and use the water at 
 other points, without losing his priority, further held that, where 
 
 1 Smith V. O'Hara, 43 Cal. 371. s^oolman v. Garringer, 1 Mont. 
 
 2Barkley V. Tieleke, 2Mont. 59. 535; Davis v. Gale, 83 Cal. 26; 
 
 In both these instances, as has al- Butte Canal Co. v. Vaughn, 11 Cal. 
 
 ready been shown, no interest 143. [A party cannot reclaim wa- 
 
 passes to the transferees; they do ter that he has used and then al- 
 
 not succeed to any jmority held by lowed to pass from his control, 
 
 their assignor; their rights of pri- Eddy v. Simpson, 8 Cal. 249; and 
 
 ority date only from the time of see Schulz v. Sweeny, (Nev.) 11 
 
 their own possession and user. Pac. Rep. 253.] 
 
 (143)
 
 § 89 NATURE AND EXTENT OF RIGHT. [Cll. 5. 
 
 water liad been approi)riated for a particular purpose, and that 
 pur[)(»se had been accomplished, the appropriators dispersed 
 and allowed a long time to elapse without making any use of the 
 water under their appropriation, and finally sold the ditch to 
 otlier parties for a nominal sum, all these facts were sufficient 
 evidence of an aljandoninent by them; in other w'ords, an aban- 
 donment of their prior appropriation might be inferred from 
 such conduct. The court further held that, when a party has 
 abandoned his prior appropriation, he cannot, by a sale and 
 conveyance, revive his prior rights in favor of his grantees, even 
 though the sale is hoiiafide on their part.^ On the other hand, 
 the mere suspension of work in constructing a ditch for a lim- 
 ited and reasonable time would not necessarily be an abandon- 
 ment of the appro priator's inchoate right. ^ It has already been 
 shown in a previous section that one who has given notice of hi& 
 intention to appropriate the water of a certain stream, must com- 
 mence and prosecute his works unto completion with due and 
 reasonable diligence, in order to perfect his exclusive right, by 
 appropriation. It seems to follow from this affirmative prop- 
 osition that a neglect or failure on his part to use the due and 
 reasonable diligence so required in constructing his works, 
 must necessarily amount to an abandonment of the intended 
 appropriation, and of all rights which could have been acquired 
 by its means. ^ 
 
 1 Davis V. Gale, 32 Cal. 26. [In poses ceases with the exhaustioa 
 
 Lowden v. Frey, 67 Cal. 474, s. c. of the mine for which it was ap- 
 
 8 Pac. Rep. 31, the court said: proprialed,' has no application." 
 
 "The testimony tends to show that It is not stated what would be the 
 
 the appropriation of the water by effect if the water were appropri- 
 
 the defendants and their grantors aled for use in one particular mine, 
 
 was formining purposes generally, and that mine became exhausted.} 
 
 to be used at various points. Un- ^^tci^jgoQ y, Peterson, 1 Mont, 
 
 der such circumstances, the posi- 561. 
 
 tion of the plaintiff, that ' the right » See ante, § 53. 
 to the use of water for mining pur- 
 
 (144)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 91 
 
 § 90. Abandonment by adverse user. 
 
 [The right of the first appropriator of water on tlie public lands 
 may be lost by the adverse possession of another; and when such 
 other person has had the continued, uninterrupted, and adverse 
 enjoyment of the water, or of some certain portion of it, for a 
 sufficient length of time, the law will j^resume a gijant of the 
 right so held and enjoyed by him.' A failure to use for a time 
 is competent evidence of abandomnent; and if such non-user 
 continues for an unreasonable period it may fairly create a pre- 
 sumption of intention to abandon; but this presumption is not 
 conclusive, and may be overcome by other satisfactory proofs.^ 
 Thus where, in an action to try the title to a certain water-right, 
 the defendant denied plaintiff's alleged ownership, and set up 
 title by adverse possession, the plaintiff, after proving prior ap- 
 propriation in himself, might, in order to defeat the defense of 
 the statute of limitations, show in rebuttal that the defendant, 
 before any bar of the statute had attached, had acknowledged 
 the plaintiff's claim, and endeavored to lease the said water-right 
 from the plaintiff.^] 
 
 VI. Review of the System. 
 
 § 91. This system as a -w^hole. 
 
 The foregoing summary of doctrines and rules presents the 
 system of water-rights, based upon prior and subsequent appro- 
 priations of streams and lakes situated within the public do- 
 
 1 Union Water Co. v. Crary, 25 title to realty under the statute of 
 
 Cal. 504; Smith v. Logan, 18 Nev. limitations. Dodge v. Harden, 7 
 
 149. Five years' adverse posses- Or. 456. 
 
 sion is sufficient to bar an action ^gjeber v. Frink, 7 Colo. 148, s. 
 
 to enforce a water-right. Evans c. 2 Fac. Rep. 901. And see Dorr 
 
 V. Ross, (Cal.) 8 Pac. Rep. 88. It v. Hammond, 7 Colo. 79, s. c. 1 
 
 is held in Oregon that non-user Pac. Rep. 693. 
 
 works no abandonment, unless ^Ledu v. Jim Yet Wa, 7 Pac. 
 
 continued long enough to give a Rep. 731. 
 
 POM. RIP. — 10 (145)
 
 § 92 NATURE AND EXTENT OF RIGHT. [Ch. 5. 
 
 main, or lands belonging to the United States, as that system 
 has been built up by judicial decisions upon the foundation of 
 local customs recognized and ratified by the legislation of con- 
 gress. It is plain, upon an examination and comparison of the 
 special rules formulated in the preceding sections, that the sys- 
 tem, in theory at least, furnishes all the possible protection for 
 the rights of subsequent and successive claimants after it has 
 once admitted that a party can, by prior appropriation, obtain 
 a prior and exclusive right to the water of a stream or lake, lim- 
 ited and measured only, in its extent, by the actual needs of 
 the particular purpose for which the appropriation is made. 
 The system places an oljstacle in the way of a prior appropria- 
 tor's obtaining an exclusive control of the entire stream, no mat- 
 ter how large; and secures the rights of subsequent appropriators 
 of the same stream, by requiring that a valid appropriation shall 
 be made for some beneficial purpose, presently existing or con- 
 templated; and by restricting the amount of water appropriated 
 to the quantity needed for such purpose; and by forbidding any 
 change or enlargement of the purpose, which should increase the 
 quantity of water diverted under the prior appropriation, to the 
 injury of subsequent claimants; and by subjecting the prior ap- 
 propriation to the effects of an abandonment, by which all prior 
 and exclusive rights once obtained would be lost. By these 
 means, a party is, in theory at least, prohibited from acquiring 
 the exclusive control of a stream, or any part thereof, not for 
 present and actual use, but for future, expected, and specula- 
 tive profit or advantage. In other words, a party cannot obtain 
 the monopoly of a stream, in anticipation of its future use and 
 value to miners, farmers, or manufacturers. 
 
 § 92. Defects of the system. 
 
 While the theory thus appears to be admirable, the practical 
 workings of the system may be attended with some difhculties, 
 (146)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 92 
 
 and they have certainly involved a great amount of litigation. 
 When a prior appropriator has actually established himself on 
 a stream, and is diverting its waters by ditches, an attempt to 
 enforce the rights of a subsequent claimant may be difficult, and 
 may require an expensive and protracted controversy. The 
 prior appropriator is certainly placed in a position of great ad- 
 vantage in maintaining his own claims, even though unfounded 
 and unlawful, against those who are seeking to enforce their sub- 
 sequent and lawful rights to use the water of the stream. But 
 the principal defect of the system, the one capable of working 
 the greatest injustice, is inherent in the very theory itself, in its 
 fundamental conception. This defect is the total absence of any 
 limit to the extent of a prior appropriation, — to the amount of 
 water which may be taken, — except the needs of the purposes 
 for which it is made. The prior appropriator, in order to carry 
 out a purpose regarded by the law as beneficial, of great magni- 
 tude, — such, for example, as an extensive system of hydraulic 
 mining, or the irrigation of a large tract of farming lands, or, 
 doubtless, the supply of a municipality, — may divert and con- 
 sume, without returning to its natural channel, the entire water 
 of a public stream, no matter what may be its size or length, or 
 the natural wants of the country through which it flows. Fur- 
 thermore, this appropriation may be made by a party who owns 
 no land upon the banks of the stream, and for a purpose situ- 
 ated at any distance from the stream itself, far beyond the region 
 to which the stream naturally belongs, and which would natu- 
 rally receive its benefits. In this manner the natural benefits of 
 a stream to the lands situated upon its bank throughout its en- 
 tire length may he completely destroyed, and the natural rights 
 of all persons who should afterwards settle and purchase lands 
 adjoining the stream may he totally ignored, disregarded, and 
 abrogated by such a prior appropriation. 
 
 (147)
 
 § 93 NATURE AND EXTENT OF RIGHT. [Ch, 5. 
 
 § 93. Presumption that stream was on public land. 
 
 Tliis first branch of the discussion may be appropriately ended 
 by the statement of an important point just decided by the su- 
 preme court of California, that, in the absence of all evidence, 
 it will be presumed that a stream, at the time when its waters 
 were appropriated, was a public stream, and all the lands on its 
 banks were public lands of the United States. There had been 
 several successive appropriations of a stream called "Lytle Creek" 
 by different parties. The court say: "There is nothing in the 
 pleadings or findings to indicate that, when all the waters of 
 Lytle creek were appropriated, any of the lands by or through 
 which the creek flows had passed into private ownership. It 
 must be presumed, therefore, that such lands were public lands 
 of the United States, and the rights to the water of Lytle creek 
 acquired by prior appropriations were confirmed by the act of 
 congress of 1866. The court found that the settlement on gov- 
 ernment land by defendant was made after the act of 1866 took 
 effect. Any rights which he might acquire, therefore, from the 
 government, would be subject to the previously confirmed ap- 
 propriations of the water."' This action was brought by a prior 
 approi)riator to restrain the defendant, a subsequent appropri- 
 ator, from an alleged unlawful diversion. It appeared that there 
 were other distinct and separate appropriators who were not par- 
 ties to the suit. The court made the following important ruling 
 concerning the necessary parties under such circumstances: "In 
 an action by an appropriator of the water of a certain stream to 
 restrain a defendant from diverting the same, when the court 
 finds that the plaintiff has a separate title to the use of all water 
 for a certain length of time out of a longer period, (namely, 'for 
 
 1 Lytle Creek W. Co. v. Perdew, 2 Pac. Rep. 732. (decided February 
 12, 1884.) 
 
 (148)
 
 Ch. 5.] NATURE AND EXTENT OF RIGHT. § 93 
 
 one hundred and thirty-two hours and nineteen minutes out of 
 each and every three hundred and seventy-two hours,') and that 
 other appropriators had a right to the use thereof, but fails to 
 find as to the order in which the persons interested in these appro- 
 priations used the water, or as to the times when the period 
 during which the plaintiff was entitled to the exclusive use would 
 recur, no decree fixing the rights of the plaintiff", or prohibiting 
 the defendant from interfering therewith, can be rendered, un- 
 less all the other persons entitled to the use of the waters of the 
 same stream are before the court as parties to the action." The 
 judgment entered in favor of the defendant was therefore re- 
 versed, and the cause was remanded, with direction that the 
 court below should order all persons owning or claiming rights 
 to the use of any of the water of said creek to be made parties 
 to the action. 
 
 (149)
 
 § 94 RIGHTS ON PRIVATE STREAMS. [Ch. 6. 
 
 5 til 
 
 CHAPTER VI. 
 RIPARIAN RIGHTS ON PRIVATE STREAMS. 
 
 Legislation on the Subject. 
 
 § 94. Distinction between appropriator and riparian owner. 
 
 95. Application of the common law. 
 
 96. Summary of statutory legislation— California. 
 
 97. Nevada. 
 kHCOa^ 98. Montana. 
 
 99. Colorado. 
 
 100. Idaho. 
 
 101. Dakota. 
 
 ^ y 102. New Mexico. 
 
 Slj-} -^ 103. Arizona. 
 
 104. Wyoming. 
 
 105. Utah. 
 The Effect of this Legislation. 
 
 § 106. Riparian rights abolished. 
 
 107. Two distinct systems. 
 
 
 Q 
 
 I. Legislation on the Subject. 
 
 94. Distinction betvsreen appropriator and ripa- 
 rian o^wner. 
 
 The preceding discussion has been exclusively confined to the 
 
 rights of appropriating and using the waters of public streams, 
 flowing entirely through the public lands of the United States, 
 before any private owner has acquired from the government, by 
 patent or otherwise, the title to a tract or tracts of land upon 
 their banks. All the decided cases heretofore cited, and all the 
 judicial opinions, except perhaps a few dicta in one or two of 
 the very earliest California cases, have distinguished between 
 the appropriation from these public streams, and the rights to 
 the water after the land, or any part of it, bordering on a stream, 
 has passed into the ownership of private proprietors. In the 
 (150)
 
 Ch. 6.] RIGHTS OX PRIVATE STREAMS. § 95 
 
 recent decisions, the court most carefully guards against any in- 
 ference that they affect the rights of such owners, and expressly 
 distinguishes between the rules laid down governing the taking 
 and use of water from public streams, and those relating to "ri- 
 parian proprietors" and "riparian rights," properly so called. I 
 purpose now to examine the position of these "riparian propri- 
 etors," and to ascertain, as far as possible, what are their "ripa- 
 rian rights," under the law of the Pacific communities. If, be- 
 fore any appropriation whatever has been made of the waters of 
 a stream hitherto wholly public, a private person acquires frotti V ^►t*'^ 
 the government the title to, and thus becomes the absolute • ; -'•*«. 
 owner of, a tract of land through which such stream runs, or ^ -, "'' 
 even lying on one of its banks, although he makes no actual di-, '■ . j 
 version of the water, an entirely new element is introduced into, .-r. , 
 
 the problem. He is clearly not embraced within the operations,; ^ ^^^ ,.,^^;, 
 of the doctrines heretofore explained. He is a true "riparian 
 proprietor." His own rights over the stream are as complete .w- 
 
 and perfect as though all the other lands on its borders were 
 held by private owners. The unrestricted right of diverting and Ri- 
 
 nsing the water for some beneficial purpose by any prior appro- 
 priator does not exist against him. A fortiori is this so where 
 many owners have acquired title to different tracts abutting on 
 the stream, and finally where all the lands bordering on both 
 sides of the stream through its whole length have passed into 
 the ownership of private proprietors. There is then presented 
 exactly the condition of circumstances which exists in England, 
 and in the older and fully-settled states of the Union, — the con- 
 dition in which the common-law doctrines concerning riparian 
 rights arose, and to which they were originally applied. 
 
 § 95. Application of the common la"W. 
 
 Assuming a stream to be so situated, with the lands on its 
 banks owned by private proprietors, and assuming that no pro- 
 
 (151) 
 
 •W:
 
 § 95 RIGHTS ON PRIVATE STREAM3, [Ch. 6. 
 
 prietor has yet made any actual diversion of its waters, the ques- 
 tion is fairly presented, can any one of these owners, by means 
 of & prior appropriation, acquire the right, as against the others, 
 to divert, use, and consume any quantity of the water which 
 may be necessary for some beneficial purpose, such as irrigat- 
 ing, mining, etc., and thus deprive all the other proprietors 
 bordering on the stream, above and below him, of the benefits 
 and uses of the stream, as may be done by the prior appropri- 
 ator on a public stream? Or, on the other hand, are the rights 
 of all these proprietors equal and alike, irrespective of any ap- 
 propriation or diversion actually made by any one of them , and 
 are their rights defined, measured, and regulaffed by the com- 
 mon-law rules concerning riparian proprietors; in other words, 
 are their rights, in a true sense, the "riparian rights" recognized 
 and protected by the common-law doctrines? Or, finally, if 
 neither of these inquiries can be fully and unreservedly an- 
 swered in the affirmative, has any other peculiar system of rules 
 applicable to such ])ersons been established, combining in some 
 measure the common-law doctrines with the sjjecial doctrines 
 touching the appropriation of public streams? Do the com- 
 mon-law rules wholly control? or do the doctrines concerning 
 public streams govern? or has any other modified system of 
 regulations been established? or is the whole matter still left in 
 a condition of uncertainty, to be settled by the courts or the 
 legislature? These are the questions which must be examined, 
 and their answer, if possible, given. In pursuing this exam- 
 ination, we must ascertain — Mrst, whether the statutes furnish 
 any, and if so what, answer; and, second, what conclusions may 
 be derived from judicial decisions. I shall, therefore, by way 
 of introduction, give a summary of the legislation on the sub- 
 ject which has been adopted by the varicflis states and territories 
 embraced within our discussion. 
 (152)
 
 €h, 6.] BIGHTS ON PRIVATE STREAMS. § 96 
 
 §96. Summary of statutory legislation — Califor- 
 nia. 
 
 The Civil Code of California, which went into effect on the 
 first of Januar}', 1873, contains the following provisions, which, 
 in terms, apply to all streams, public and private. Their lan- 
 guage being general, not restricted to any class of streams, must, 
 ■of course, be construed as applying to all. It will be noticed, 
 however, that these provisions are a mere statutory declaration 
 or enactment of the special rules which had been previously set- 
 tled by the courts concerning theapproi:)riation of public streams, 
 virtually as formulated in the previous sections of this essa}^ 
 The title of the Code is denominated "Water-Rights," and con- 
 tains the following sections, which I quote in full: 
 
 "Sec. 1410. The right to the use of running water flowing 
 in a river or stream, or down a canyon or ravine, may be ac- 
 quired by appropriation. 
 
 "Sec. 1411. The appropriation must be for some useful or 
 beneficial purpose, and when the appropriator or his successor 
 in interest ceases to use it for such a purpose the right ceases. 
 
 "Sec. 1412. The person entitled to the use may change the 
 place of diversion, if others are not injured by such change, and 
 may extend the ditch, flume, pipe, or aqueduct by which the 
 diversion is made to places beyond that where the first use was 
 made. 
 
 "Sec. 1413. The water appropriated may be turned into the 
 ■channel of another stream, and mingled with its water, and then 
 reclaimed, but in reclaiming it the water already appropriated 
 by another must not be diminished. 
 
 "Sec. 1414. As between appropriate rs, the one first in time 
 is the first in right. 
 
 "Sec. 1415. A person desiring to ajDpropriate water must post 
 a notice in writing, in a conspicuous place, at the point of in- 
 tended diversion, stating therein (1) that he claims the water 
 
 (153)
 
 § 96 RIGHTS ON PRIVATE STREAMS. [Ch. 6. 
 
 there flowing to the extent of (giving the number) inches, meas- 
 ured under a four-inch pressure; (2) the purposes for which he 
 claims it, and the place of intended use; (3) the means by 
 which he intends to divert it, and the size of the flume, ditch, 
 pipe, or aqueduct in which he intends to divert it. A copy 
 of the notice must, within ten days after it is posted, be re- 
 corded in the office of the recorder of the county in which it i& 
 posted. 
 
 "Sec. 1416. Within sixty days after the notice is posted, the 
 claimant must commence the excavation or construction of the 
 works in which he intends to divert the water, and must prose- 
 cute the work diligently and uninterruptedly to completion, un- 
 less temporarily interrupted by snow or rain. 
 
 "Sec. 1417. By 'completion' is meant the conducting the 
 waters to the place of intended use. 
 
 "Sec. 1418. By a compliance with the above rules, the claim- 
 ant's right to the use of the water relates back to the time the 
 notice was posted. 
 
 "Sec. 1419. A failure to comply with such rules deprives the 
 claimants of the right to the use of the water as against a sub- 
 sequent claimant who complies therewith. 
 
 "Sec. 1420. Persons who iiave heretofore claimed the right 
 to water, and who have not constructed works in which to di- 
 vert it, and who have not diverted nor applied it to some useful 
 purpose, must, after this title takes effect, and within twenty 
 days thereafter, proceed as in this title provided, or their right 
 ceases. 
 
 "Sec. 1421. The recorder of each county must keep a book, 
 in which he must record the notices provided for in this title." 
 
 All these provisions by themselves would furnish a reasona- 
 bly clear and certain system of rules applicable to all streams, 
 whatever may be thought of their expediency or justice; but 
 the following and final section turns the whole into utter doubt 
 (154)
 
 Ch. 6.] EIGHTS ON PRIVATE STREAMS. § 9G 
 
 and uncertainty, so far as it can appi}' to private streams, or 
 streams bordering on the lands of private owners. This final 
 section is as follows: 
 
 "Sec. 1422. The rights of riparia)i proprietors are not affected 
 by the provisions of this title.'" 
 
 I would remark, in passing, that so far as the title applies to 
 streams wholly public, on the banks of which there are as yet 
 no riparian proprietors, and, of course, no "riparian rights," it 
 furnishes a system of rules which must be complied with by all 
 those who seek to make an appropriation of the water subse- 
 quently to the going into effect of the statute. Thus, for ex- 
 ample, the contents of the notice and the place of posting are 
 definitely described; also the time within which work must be 
 commenced after posting the notice is fixed in all cases; and the 
 work must be prosecuted "uninterruptedly," the only causes of 
 interruption allowed being "snow or rain." The early decisions 
 prescribed no such definite rule, but left the time of commenc- 
 ing the work, and of prosecuting it to completion, to depend 
 upon man}' other special circumstances of each case, such as the 
 situation and physical conformation of the countr}', the diffi- 
 culty of transportation, of obtaining materials and labor, and 
 the like. So far, therefore, as the title applies solely to the ap- 
 propriation of water from streams wholly public, it furnishes 
 rules which must be obeyed, somewhat more definite and less 
 elastic than those laid down by the courts; and as to its mean- 
 ing, force, and effect, in connection with such streams, there seems 
 to be no uncertaint}- nor difficulty. 
 
 In addition to these provisions of the Civil Code, there is a 
 statute called "An act to promote irrigation,"^ passed in 1872. 
 This statute provides that, if "owners of any body of lands sus- 
 ceptible of one mode of irrigation " desire to irrigate the same, 
 they may take steps in connection with the board of supervisors 
 
 iSt. 1871-72, pp. 945-948. 
 
 (155)
 
 § 96 RIGHTS ON PRIVATE STREAMS. [Ch. 6. 
 
 by which the}' become an association for irrigating purposes. 
 They may make by-laws for the appointment of trustees, who 
 have general management of their afiiairs, and for the construc- 
 tion and maintaining of irrigating works. The powers and duties 
 of these trustees are defined. Provisions are made for assess- 
 ments upon the members of the association, for the purpose of 
 defraying the cost of constructing and maintaining the works. 
 
 "Sec. 21. The trustees may acquire, by purchase, all prop- 
 erty necessary to carry out and maintain the system of irriga- 
 tion provided for. 
 
 "Sec. 22. The trustees may acquire by condemnation (1) 
 the right to the use of any running water not already used for 
 culinary or domestic purposes, or for irrigating, milling, or min- 
 ing purposes; (2) the right of way for canals, drains, embank- 
 ments, and other works necessary," etc. 
 
 "Sec. 23. The provisions of title 7, part 3, of the Code of 
 Civil Procedure, (concerning the condemnation of private prop- 
 erty for public uses,) are applicable to and the condemnation 
 herein provided for must be made thereunder." 
 
 It is further provided that parties owning the whole district 
 to be irrigated may proceed as above described, without appoint- 
 ing any trustees; that is, may manage the whole by themselves. 
 This act is declared not to extend to the counties of Fresno, Kern, 
 Tulare, and Yolo. 
 
 It is very plain that this statute does not contemplate nor 
 recognize any right of land-owners to appropriate the waters of 
 private streams; that is, of streams running through or adjacent 
 to lands of private owners. The "riparian rights" of such own- 
 ers are most certainly assured and protected; for the owners de- 
 siring to appropriate the water of such a stream must proceed 
 to condemn it under the right of eminent domain, and must of 
 course pay compensation; and the only parties who could be 
 compensated are the owners of lands on the banks ot the stream, 
 (156;
 
 Ch. 6.] EIGHTS ON PRIVATE STREAMS. § 98 
 
 whose "riparian rights" to use its waters would be invaded. 
 Such riparian rights, like all other rights of private property, 
 are held subject to the state's power of eminent domain. 
 
 § 97. Nevada. 
 
 The only legislation of this state bearing on the subject, which 
 I have found, is contained in certain sections of the compiled 
 laws which permit the construction of flumes or ditches for car- 
 rying water. Parties may construct a ditch or flume across 
 private land, and to that end may take such land by right of 
 eminent domain, on paying just compensation to the owner 
 thereof; the amount of the compensation to be determined in a 
 manner and by a proceeding described. This act shall not in- 
 terfere with an}' prior or existing claim or right. ^ The statute 
 makes no allusion to the appropriation of or acquisition of title 
 to the water to be conducted by such ditches or flumes. 
 
 § 98. Montana. 
 
 The legislation of this territor}'- is in complete derogation of 
 the common-law "riparian rights." It will be noticed that the 
 lands for which it provides the use of water may be situated 
 anywhere within the territory. Their situation on, near, or at 
 a distance from streams is wholly immaterial. I give an ab- 
 stract of the provisions, only quoting the exact language of the 
 most important and fundamental provisions.^ 
 
 Sec. 731. Any person or corporation owning or having a pos- 
 sessory title to any agricultural land "shall be entitled to the 
 use and enjoyment of the waters of the streams and creeks in 
 said territory, for the purposes of irrigation and making said 
 land available for agricultural purposes, to the full extent of the 
 soil thereof." Proviso, when by a prior appropriation any per- 
 
 1 Comp. Laws Nev. 1873, §§ 3852- 2 Rev. St. Mont. 1879, p. 563, §§ 
 3855. 731-741. 
 
 (157)
 
 § 08 RIGHTS ON PRIVATE STREAMS. [Ch. 6. 
 
 son Ims diverted all the water of a stream, or so much thereof 
 that there is not an amount left sufficient for those having a 
 subsequent right thereto for irrigation, then any surplus left by 
 said prior appropriator shall be turned back into the stream for 
 tlie use of subsequent claimants, with a penalty in the form of 
 damages for a neglect to do so after demand made. 
 
 Sec. 732. Any such person or corporation owning land, when 
 there is no available water thereon, or when it is necessary to 
 rai.se the water of "said stream," so as to irrigate said land, or 
 when said lands are too far removed from said streams to use 
 them, said persons, etc., shall have a right of way across any 
 tract of land for ditches, canals, flumes, etc. 
 
 Sec. 733. Such right only extends to the digging ditches, 
 etc., across the land of another, as may be necessary. 
 
 Sec. 734. All controversies between different claimants of 
 water shall be determined by the dates of their respective ajD- 
 propriations. 
 
 Sec. 735. All waters of streams arc so available to the full 
 capacity thereof for irrigating, "without regard to deterioration 
 in quality or diminution in quantity," so as not to affect the 
 rights of a prior appropriator; but in no case can water be di- 
 verted from the ditches, etc., of such apj^ropriator. 
 
 Sec. 736. Any person digging a ditcli, etc., under section 
 732, and thereby injuring the lands of another, shall be liable 
 in damages to the injured party. 
 
 Sec. 737. This act shall not impair rights already acquired. 
 
 Sec. 738. Nor shall this act prevent the appropriation of said 
 streams for mining, manufacturing, and other beneficial pur- 
 poses, and the right to appropriate for such purposes is hereby 
 declared and enforced. 
 
 Sec. 739. Persons constructing ditches across public high- 
 ways must repair the same. 
 
 Sec. 740. Penalty for violation of last section. 
 (158)
 
 Ch. 6.] RIGHTS ON PRIVATE STREAMS. § 99 
 
 Sec. 741. AH controversies respecting rights to water for any 
 purposes, and the rights of parties to use water, shall be de- 
 termined by the dates of their respective appropriations, "with 
 the modifications heretofore existing under the local laws, rules, 
 or customs, and decisions of the supreme court of said territory." 
 
 The same statutes, in the chapter concerning corporations, 
 authorize the formation of corporations for the purpose of tak- 
 ing and conducting water from streams for various beneficial 
 purposes.^ The most recent volume of Session Laws also con- 
 tains the following provisions: An act of congress^ declaring 
 that all non-navigable streams on the public land in the terri- 
 tor}' shall be free and open for appropriation for irrigation, min- 
 ing, and other purposes, subject to existing rights; also an act 
 of the territorial legislature providing a penalty for diverting 
 water by one not entitled, to the injury of another.^ 
 
 § 99. Colorado. 
 
 The statutes of this state, in their latest revision, also contain 
 an elaborate system of rules concerning the use of water for ir- 
 rigation, which resembles in its essential features that of Mon- 
 tana. It will be sufficient for my purposes to give a brief ab- 
 stract of its provisions, quoting the exact language only of those 
 which are fundamental.* 
 
 Sec. 1711. "All persons who claim, own, or hold a possess- 
 ory right or title to any land or parcel of land within the bound- 
 aries of the state of Colorado, where these claims are on the 
 bank, margin, or neighborhood of any stream of water, creek, 
 or river, shall be entitled to the use of the water of said stream, 
 creek, or river, for the purposes of irrigation, and making said 
 
 1 Rev. St. Mont. 1879, pp. 456, 457, »Id. p. 113, §§ 1, 2. 
 
 §§271-375. *Gen. St. Colo. 1883, pp. 560- 
 
 2Sess. Laws Mont. 1883, p. 27; 587, g§ 1711-1812. 
 Act 44th Coug. 2d Sess. c. 107. 
 
 (159)
 
 § 99 RIGHTS ON PRIVATE STREAMS. [Ch. 6. 
 
 claims available, to the lull extent of the soil, for agricultural 
 purpusL'S." 
 
 Sec. 1712. When any such person, as mentioned in the last 
 section, "has not sullicient length of area exj^osed to said strcani 
 to obtain a sullicient fall of water to irrigate his land, or that his^ 
 farm, etc., is too far removed from said stream, and that he has 
 no water facilities on those lands, he shall be entitled to a right 
 of way through the farms or tracts of land which lie between 
 him and said stream, or the farms or tracts of land which lie 
 above and below him on said stream, for purposes hereinbefore 
 mentioned." 
 
 Sec. 1713. The right of way given by the last section only 
 extends to the construction of a ditch or canal sufficient for the 
 purpose of carrying the water required. 
 
 Sec. 1714. If the amount of water is not sufficient to furnish 
 a constant supply to all the community using a ditch or canal, 
 provision is made for allotting it to different consumers on al- 
 ternate days or times. 
 
 Sec. 1715. If the owners of tracts of land refuse to allow ditch- 
 owners a right of way, the right may be obtained by coudenma- 
 tion, under the power of eminent domain.^ 
 
 Sees. 1716-1720. Special provisions regulating the use, main- 
 tenance, repair, etc., of ditches. 
 
 Sec. 1721. The ditches herein provided for are for irrigation 
 only. 
 
 1 [In Colorado, when a person, by constructing such ditch, the 
 without initiating any steps under constitutional and statutory re- 
 pre-emption or other laws to pro- quirements are complied with, 
 cure title to public lands, places Knoth v. Barclay, 8 Colo. 300, s. 
 improvements thereon, and an- c. 6 Pac. Rep. 924. The Colorado 
 other desires to construct his irri- constitution, art. 16, § 6, provides 
 gating ditch over or across such that "the right to divert unappro- 
 lahds, if, by a proper proceeding, priated waters of any natural 
 full compensation is determined stream to beneficial uses shall 
 and is paid for all damage or in- never be denied. Priority of ap- 
 jury to the improvements caused propriation shall give the better 
 (IGO)
 
 Ch. 6.] RIGHTS ON PRIVATE STREAMS. § 99 
 
 Sec. 1722. In case of a deficiency in the supply of water, 
 provision is made for regulating its pro rata distribution among 
 the consumers entitled. Additional sections provide for the 
 formation and management of public irrigation districts; for 
 the defraying the expenses of constructing, maintaining, repair- 
 ing, etc., the ditches therein; for the regulation of the water 
 supply and distribution; for the rates of charge, etc. 
 
 Sees. 1762-1801. An elaborate system is provided for the 
 adjudication of rights of priority among different appropriators, 
 partly by means of special proceedings, and partly by means 
 of ordinary actions.^ 
 
 Another portion of these statutes authorizes the formation of 
 corporations to take and convey the water of streams for mines, 
 mills, irrigation, etc.^ 
 
 Sec. 309. Such corporations "shall have the right of way 
 over the line named in their certificates, [of incorporation,] and 
 shall also have the right to run the water of the stream or 
 streams named in the certificate through their ditches." Pro- 
 viso, that water shall not be diverted from any stream to the 
 detriment of any person or persons who may have priority of 
 right.^ 
 
 right as between those using the Pac. Rep. 143, the court had under 
 water for the same purpose. " Un- consideration Gen. St. Colo. § 1738 
 der this clause it is held that, while et seq., ("An act to regulsfte the use 
 the legislature cannot prohibit the of water for irrigation, and pro- 
 appropriation or diversion of wa- viding for settling the priority of 
 ter, for useful purposes, from nat- right thereto, and for payment of 
 ural streams upon the public do- the expenses thereof, and for pay- 
 main, it has the pow^er to regulate ment of all costs and expenses in- 
 the manner of such appropriation cldent to said regulation and use, ") 
 or diversion. Larimer Co. Reser- with special reference to the rel- 
 voir Co. V. People, 8 Colo. 614, s. ative rights of ditch-owners, and 
 C. 9 Pac. Rep. 794.] the purchasers of water from them. 
 1 Gen. St. Colo. 1883, p. 571. And it was held (1) that the phrase 
 2Id. pp. 198-201, §§305-315. "regulate the use," found in the 
 5 [In the case of Golden Canal title of the statute, is not confined 
 Co. V. Bright, 8 Colo. 144, 8. C. 6 to the forbidding of injustice in 
 
 POM.RIP. — 11 (161)
 
 § 100 RIGHTS ON PRIVATE STREAMS. [Ch. 6. 
 
 § 100. Idaho. 
 
 The General Laws of tliis territory contain "An act to regulate 
 the right to the use of water for mining, agricultural, and man- 
 ufacturing and other purposes."' A portion of this statute is 
 the same in substance, with some variations in the detail, as 
 the provisions hereinbefore quoted from the Civil Code of Cal- 
 ifornia, while the remainder follows the system prevailing in 
 Colorado and Montana. 
 
 Section 1. The right of the use of the water flowing in any 
 river, creek, canyon, ravine, or other stream, may be acquired 
 by appropriation, and, as between appropriators, priority in 
 time shall, subject to the provisions of this act, secure a pri- 
 ority of right. 
 
 Sec. 2. The appropriation must be for some beneficial pur- 
 pose, etc. 
 
 Sec. 3. Appropriator may change the place of diversion, etc., 
 if no injury is done to others. 
 
 Sec. 4. Notice to be given substantially as in California. 
 
 the distribution, the prevention of The right of an applicant for water 
 waste, or the apportionment in to the writ of mandamus, to com- 
 times of scarcity. It is broad pel the defendant to supply it un- 
 enough to include the frustration der the regulations provided by 
 of unfair exactions, and the fixing statute, is not prejudiced by the 
 of reasonable rates. (2) Under the fact that he has prospectively a 
 law, though the prior purchaser remedy by an action for damages 
 has not made his application with- in case his crops fail as the re- 
 in the time prescribed by rule, yet suit of lack of irrigation. (5) The 
 if he do so afterwards, and while owner of an irrigation ditch, under 
 the ditch-owner is free from con- the statute, is bound, provided he 
 flicting obligations, and is able to has water sufficient for the pur- 
 grant his refiuest, the statutory pose, to admit a prior purchaser to 
 right is not forfeited. (3) The pre- its use and enjoyment, upon his 
 sumption is that the legislature in- payment or tender of the proper 
 tended to confer the privilege spec- price therefor, provided the right 
 ified in the act, (section 1740,) un- thereto has not been forfeited.] 
 limited by any qualification as to ^Gen. Laws Idaho 1881, pp. 267- 
 the applicant's ability to procure 273, §§ 1-19. 
 water from any other source. (4) 
 
 (162)
 
 Ch. 6.] RIGHTS ON PRIVATE STREAMS. § 100 
 
 Sec. 5. Work must be commenced within sixty days, etc., 
 and prosecuted to "complete diversion," etc. 
 
 Sec. 6. "Complete diversion" defined same as "completion" 
 in the California Code. 
 
 Sec. 7. When work is completed, the right relates back to 
 the time of giving notice. 
 
 Sees. 8, 9. Ditches, appropriations, and claims heretofore 
 made are protected. 
 
 These provisions plainly do not differ in any material manner 
 from those of the California Civil Code. The following sections 
 contain the essential elements of the Colorado and Montana leg- 
 islation : 
 
 Sec. 10. "All persons, companies, and corporations, owning 
 or claiming any lands situated on the banks or in the vicinity 
 of any stream , shall be entitled to the use of the waters of such 
 stream for the purpose of irrigating the land so held or claimed." 
 
 Sec. 11. When any such person, etc., has not sufficient front- 
 age on a stream to afford a sufficient fall for such a ditch, or 
 when his land is back from a stream and convenient facilities 
 for irrigation cannot otherwise be had, he "shall be entitled to 
 a right of way through lands of others for the purposes of irriga- 
 tion." Proviso, that he shall keep his ditch in good repair, and 
 shall be liable to the owner of the land which it crosses for inju- 
 ries caused by overflow or neglect or accident. 
 
 Sec. 12. If the owner of the land refuses a right of way, the 
 same may be obtained by condemnation, upon payment of the 
 compensation as fixed. 
 
 Sec. 13. Provisions for ascertaining and fixing such compen- 
 sation by appraisers. 
 
 Sec. 14. Persons, etc., having land adjacent to any stream 
 may place in its channel or on its banks rams, etc., to raise the 
 water above the level of the banksj and a right of way for con- 
 
 (163)
 
 § 101 RIGHTS ON PRIVATE STREAMS. [Ch. 6. 
 
 ducting such waters across the lands of others may be acquired 
 in the manner prescribed in the last two sections. 
 
 Sees. 15, 16. Provisions as to maintaining and keeping in 
 repair the ditches; not to do damage, etc. 
 
 Sec. 17. All rights acquired previous to this act are not af- 
 fected thereby. 
 
 Sec. 18. When the water is not enough to fully sui)ply a 
 whole community or neighborhood, it must be distributed among 
 them according to the local customs as established and as rec- 
 ognized by the courts. 
 
 Sec. 19. If a ditch is constructed in order to sell the water 
 for irrigation, persons shall be entitled to said water at the 
 usual rates, in the following order, viz. : First, all persons through 
 whose land the ditch runs, in the order of their location along 
 the line of the ditch; second, after the last named, then those on 
 either side of the ditch, — those at the same distance each side 
 being equally entitled, etc. Excessive use by any one is pro- 
 hibited. 
 
 Another statute is entitled "An act for the regulation of irriga- 
 tion."^ This statute provides for the creation of water or irriga- 
 tion districts, and for the election of a "water-master" in each; 
 and minutely prescribes his duties of superintending the ditches^ 
 their repair, the distribution of water among consumers, etc. 
 
 § 101. Dakota. 
 
 A recent statute of this territory adopts the fundamental no- 
 tion of the Colorado, Montana, and Idaho legislation; but ex- 
 tends the right of appropriation equally to all beneficial pur- 
 poses, as well as that of irrigation.^ 
 
 Section 1. Any person or corporation, having title or possess- 
 ory right to any mineral or agricultural land, shall be entitled 
 
 »Gen. Laws Idaho, pp. 273-275, 2Se88. Laws Dak. 1881, pp. 266- 
 §§ 1-6. 274. 
 
 (164)
 
 €h. 6.] RIGHTS ON PRIVATE STREAMS, § 101 
 
 to the use and enjo3aiient of the water of any stream, creek, or 
 river within the territory, for mining, milling, agricultural, or 
 domestic purposes; but this shall not interfere with rights pre- 
 viously acquired. 
 
 Sec. 2. Such persons may have a right of way across the 
 lands of others under the same circumstances as prescribed in 
 the Colorado, Montana, and Idaho statutes. 
 
 Sec. 3. This right of way shall only extend to the construc- 
 tion of a suitable ditch, or canal, etc. 
 
 Sec. 4. All controversies between different claimants of water 
 shall be determined by the dates of their respective appropria- 
 tions. 
 
 Sec. 5. "The water of the streams, rivers, and creeks of this 
 territory may be made available to the full extent of the capac- 
 ity thereof, for mining, milling, agricultural, or domestic pur- 
 poses, without regard to deterioration in quality or diminution 
 in quantity, so that the same do not materially affect or impair 
 the rights of prior appropriate rs." 
 
 Sec. 6. If the owner of lands sustains injury by a ditch con- 
 structed across it, under section 2, the ditch-owner shall be lia- 
 ble to him in damages therefor. 
 
 Sec. 7. Relates to the abandonment of ditches or ap2)ropria- 
 tions. 
 
 Sec. 8. Prescribes penalties for violation of foregoing provis- 
 ions. 
 
 One remarkable feature of this statute is that, unlike those 
 of Colorado and Idaho, it makes no provision whatever for ob- 
 taining a right of way for a ditch across the lands of another 
 owner, by condemnation. It seems to permit an appropriator 
 to construct his ditch across the lands of another, without the 
 latter's consent, without any compensation ascertained and paid, 
 and without the necessity of any proceedings for a condemna- 
 tion. The only provision for the benefit of such land-owner 
 
 (-165)
 
 § 102 RIGHTS ON PRIVATE STREAMS. [Ch. 6. 
 
 seems to be a right to recover damages, if any injury is caused 
 by the ditch. Such legislation is, to say the least, remarkable. 
 It seems to be a plain invasion of the rights of private property, 
 an evident violation of the constitutional prohibition against de- 
 priving a person of his property without due process of law, 
 and taking private property for public use without just compen- 
 sation. That such a provision is invalid seems hardly to ad- 
 mit of a doubt. 
 
 § 102. New Mexico. 
 
 In this territory the use of water for the purposes of irriga- 
 tion is made paramount to all other uses, for milling, manu- 
 facturing, and the like. The general laws contain an elaborate 
 system of legislation for the construction and maintenance of 
 public and private ^' acequias^^ or irrigating canals. This sys- 
 tem is embodied in the statutes of several successive legislatures, 
 and is evidently borrowed from the Mexican law.^ 
 
 Section 1 . "All inhabitants of the territory of New Mexico shall 
 have the right to construct either private or conunon [i. e., pub- 
 lic] acequias, and to take the water for said acequias from wher- 
 ever they can, with the distinct understanding 4o i)ay the owner 
 through whose land said acequias pass a just compensation taxed 
 for the land used." Provision is made for appraising and fix- 
 ing the amount of such compensation, in cases of dispute, by 
 appraisers to be appointed by a probate judge. [It may be re- 
 marked that these early statutes were originally enacted and 
 published in the Spanish language. The translation found in 
 the last edition of the General Laws, from which these sections 
 are quoted, is extremely literal, and sometimes fails to adopt 
 the precision and certainty of expression usual in our English 
 and American statutes.] 
 
 iGen. Laws N. M. 1880, pp. 13- 1863, 1866, and 1880, concerning 
 23, embracing Acts 1851, 1852, 1861, "acequias, " or irrigating canals.
 
 Ch. 6.] RIGHTS ON PRIVATE STREAMS. § 103 
 
 Sec. 2. "No inhabitant of said territory shall have the right 
 to construct any property to the impediment of the irrigation 
 of land or fields, such as mills or other property that may ob- 
 struct the course [i. e., flow] of the water; as the irrigation of 
 the fields should be preferred to all others, [i. e., to all other 
 uses.]" 
 
 Sec. 4. All owners of tillable lands shall labor on public ace- 
 quias, whether they cultivate the land or not. 
 
 Sec. 9. "All rivers and streams of water in the territory for- 
 merly known as public acequias or ditches are hereby established 
 and declared to be public acequias or ditches." 
 
 The foregoing quotations suflEiciently indicate the essential nat- 
 ure of this system, without going into any further detail. Sub- 
 sequent portions of the statute make provision for the election 
 of "overseers" in different precincts, and define their duties in 
 managing the acequias, and in distributing the water supply. 
 Ample provision is made for maintaining the ditches, and for 
 keeping them in repair by public labor, etc. 
 
 § 103. Arizona. 
 
 The legislation of this territory somewhat resembles that of 
 New Mexico, except that the use of water for mining purposes 
 seems to have a preference over that for all other purposes, even 
 for irrigation. 
 
 The fundamental principle that the water of streams, etc., is 
 public, incapable of private and exclusive ownership, is declared 
 in the territorial bill of rights.^ 
 
 "Art. 32. All streams, lakes, and ponds of water, capable of 
 being used for purposes of navigation or irrigation, are hereby 
 declared to be public property, and no individual or corporation 
 shall have the right to appropriate them exclusively to their 
 
 iComp. Laws Ariz. 1877, p. 27, Bill of Rights. 
 
 (167)
 
 § 104 RIGHTS ON PRIVATE STREAMS. [Ch. 6. 
 
 own private use, except under equitable regulations and restric- 
 tions as the legislature shall provide." 
 
 The use of water is regulated by the provisions of a chapter 
 concerning acerjuias or irrigating canals.^ 
 
 Sec. 3240. All rivers, creeks, and streams of water are de- 
 clared to be public, and applicable for purposes of irrigation and 
 mining. 
 
 Sec. 3241. All acequiaa at present established shall be con- 
 tinued. 
 
 Sec. 3242. All inhabitants of this territory who own or pos- 
 sess arable or irrigable land shall have the right to construct 
 public or private acequias, and to obtain the necessary water for 
 the same from any convenient river, creek, or stream. 
 
 Sec. 3243. Such acequias may be run through the land of an- 
 other when necessary, the damages by way of compensation to 
 be fixed by assessors appointed by a judge, etc. 
 
 Sec. 3244. No interference shall be permitted with these ace- 
 quias by <lams and other structures, except when used for min- 
 ing purposes as otherwise provided. 
 
 The use of water for mining purposes seems to have prefer- 
 ence over all other uses, even when the latter have been actually 
 established; but parties using water for mining purposes must 
 pay compensation in damages for injury thereby caused to irri- 
 gating canals (acetjuias) already existing. There is no such de- 
 tailed system of regulations for the acequiaa as exists in New 
 Mexico. 
 
 § 104. Wyoming. 
 
 The legislation of this territory is the same in substance, and 
 almost identical in language, with that of Colorado, heretofore 
 described.' 
 
 *Comp. Laws Ariz. 1877, p. 538. 
 2Comp. Laws Wyo. 1876, pp. 377-379. §§ 1-13. 
 (168)
 
 Ch. 6.] RIGHTS ON PRIVATE STREAMS. § 105 
 
 Section 1. Any person or corporation having the title or the 
 possessory right to any tract of land within the territory is en- 
 titled to the use of the water of any stream, etc., for purpose of 
 irrigation, and of making the land available for agriculture, etc. 
 
 Sees. 2-9. To that end, such person, etc., may have right of 
 way across the lands of another for a ditch. Such right of way 
 may be acquired by condemnation, the compensation therefor 
 being fixed by ajDpraisers. When the supply of water is not 
 ■sufficient to furnish a full amount to an entire community, it is 
 to be apportioned among them. Owners or occupants border- 
 ing on streams may place rams in the channel or on the banks 
 in order to raise the water, and may have a right of way to con- 
 duct such water. Prior vested rights to the use of water are pro- 
 tected. Provision for keeping ditches, etc., in good repair, etc. 
 
 § 105. Utah. 
 
 The General Statutes and Session Laws of this territory contain 
 an elaborate and detailed system of regulations devoting the wa- 
 ter of all streams to the purpose of irrigation. The common- 
 law doctrines concerning property in the waters of streams, and 
 ■"riparian rights," are completely abrogated. The leading stat- 
 ute concerning irrigation^ provides for the formation of irriga- 
 tion districts. The citizens of such districts may be organized 
 into irrigation companies, and may elect trustees for the man- 
 agement of these companies. A tax may be levied upon the 
 lands in each district benefited in order to defray expenses. 
 Land may be condemned for ditches, etc. All ditches and other 
 
 1 Comp. Laws Utah 1876, pp. 219- sist in widening and repairing the 
 
 225, "An act to incorporate irriga- same, with the tacit understanding 
 
 tion companies," passed January that they are to be entitled to use 
 
 20, 1865; amended in Sess. Laws the same, they thereby acquire 
 
 1878, pp. 49-53. [Where parties, right and title to such ditch, and 
 
 with the knowledge and consent to the water therefrom. Lehi Ir- 
 
 of the original constructors of an rigation Co. v. Moyle, (Utah,) 9 
 
 irrigation ditch, work upon and as- Pac. Rep. 867.] 
 
 (169)
 
 § 105 RIGHTS ON PRIVATE STREAMS. [Ch. 6. 
 
 works become the proi)crty of the company, etc. No irrigation 
 cuin])ftny shall be entitled 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 water.' 
 
 A more recent statute regulates the use of water by private 
 j)ersons, and protects their rights to such use, supplementary to 
 the former system.^ The selectmen of each county are made 
 "water commissioners," and have general power to manage irri- 
 gation, and to regulate the use and distribution of water among 
 the land-owners of their respective counties. This statute con- 
 tains provisions, not found in any other legislation, which di- 
 vide the vested rights of private persons to use water for domes- 
 tic, agricultural, manufacturing, and all other beneficial pur- 
 poses, into two grades, "primary" and "secondary," of which 
 the "secondary" is the subordinate grade. ^ The "primary" 
 vested rights exist (1) when any person or persons shall have 
 taken, diverted, and used any of the unappropriated water of 
 any natural stream, lake, or spring, or other natural source of 
 supply; (2) when any person or persons shall have had open, 
 peaceable, uninterrupted, and continuous use of water for a 
 period of seven years. The "secondary" rights exist, subject 
 to the "primary," (1) when the whole water of any stream, lake, 
 or spring, or other natural source of supply, has been taken, 
 diverted, and used by prior appropriators for a part or parts of 
 each year, and other persons have subsequently appropriated 
 said water during other parts of said year; and (2) when the 
 unusual increase of the water of a stream, over and above its 
 avernge amount for seven years, has been ai)propriated and used 
 by any person or persons, and the ordinary or average flow of 
 the same stream has been appropriated and used by other persons. 
 
 * Seas. Laws 1878. p. 53, § 7. to the use of water, and regulating 
 
 2 Sess. Laws 1880, pp. 36-41, " An their exercise. " 
 
 act for the recording vested rights 'Id. g§ 6, 7. 
 (170)
 
 Ch. 6.] RIGHTS ON PRIVATE STREAMS. § 106 
 
 In Oregon and Washington. territoiy there is not, so far as I 
 have been able to discover, any legislation whatever concerning 
 the use of water, or property in natural streams and lakes, or 
 the rights of rii:)arian proprietors. The necessity for any such 
 special legislation, it may be assumed, does not exist in these 
 commonwealths. 
 
 II. The Effect of This Legislation. 
 
 § 106. Riparian rights abolished. 
 
 It is plain from the foregoing summary that in the state of 
 Colorado, and in the territories of Montana, Idaho, Dakota, Wy- 
 oming, New Mexico, Arizona, and Utah , the legislation has wholly 
 abandoned and abrogated all the common-law doctrines concern- 
 ing private property in streams and lakes, and concerning the 
 "riparian rights" of'rijDarian proprietors." The statutes in ex- 
 press terms aj^ply to all streams, as well those running through 
 public lands as those bordered by the lands of private owners. 
 No exception from their operation is made in favor of persons 
 owning land on the banks of a stream. Under these statutes no 
 pro^jrietor derives any legal benefit or advantage from the fact 
 that his land is immediately adjacent to a stream. Unless he 
 has made an actual appropriation and diversion of its water for 
 the use of his own land, he is liable to have perhaps the entire 
 stream appropriated and diverted away for the benefit of a pro- 
 prietor whose land is situated at any distance from the stream. 
 In fact, a proprietor immediately adjoining a stream is, by rea- 
 son of his position, subject to a liability which must often be a 
 grievous burden upon the land, and a serious interference with 
 his rights of private j^roperty ; namely, the liability to which his 
 land is exposed of having ditches or canals constructed across it 
 without his consent, for the purpose of conducting water from 
 the stream to more distant lands. Even though this right of 
 
 (171)
 
 § 107 RIGHTS OX PRIVATE STREAMS. [Ch. 6. 
 
 aqueduct across the land of a private owner must be acquired by 
 condemnation, under the exercise of the power of eminent do- 
 main, and upon payment of compensation, still it must be a 
 most material incumbrance upon all riparian owners, and hin- 
 deranoe to their enjoyment and free use of their own property. 
 The statutes of one territory seem to go to the extreme of per- 
 mitting canals and ditches to be constructed across the lands of 
 private owners, againi^t their consent, without any condemna- 
 tion or any comi)cnsation. Such a statutory provision seems to 
 be a most palpable and express invasion of private property 
 rights, and it is difficult to understand upon what principle its 
 validity can be upheld. And yet the early decisions in Colo- 
 rado seem to hold that all lands of private OM-ners are subject to 
 the rights of others to locate and construct irrigating canals and 
 ditches over them, and that the statute on this subject is simply 
 declaratory of the common law in that commonwealth.' 
 
 § 107. Two distinct systems. 
 
 It will be seen that the legislation, as a whole, in these last- 
 mentioned commonwealths, provides in fact for two distinct 
 systems. One of these is wholly private; permits private own- 
 ers to appropriate the water of any stream, and to conduct it by 
 a ditch or canal to his own lands. All disputes between two 
 or more appropriators or claimants, under this system, must 
 generally be settled by judicial proceedings, or appropriate ac- 
 tions, in which the priority of the appropriation must determine 
 all questions of priority in right. The other system is public, or 
 at least (puisi public. It provides for territorial water or irriga- 
 tion districts, including a community, or space of territory which 
 can be conveniently irrigated by the same supply, drawn from 
 the same source. These districts are under the general control 
 
 iSee Yunker v, Nichols, 1 Colo. 100; Crismau v. Heiderer, 5 Colo. 
 551; Schilling V. Rominger, 4 Colo. 589. 
 (172)
 
 Ch. 6.] RIGHTS ON PRIVATE STREAMS. § 107 
 
 of county governments; have local or district oflficials, whose 
 powers relate to the location, construction, and maintenance of 
 a system of canals for each district, to the raising of money to 
 defray the expense of their construction and maintenance, to 
 the distribution of .water among the landed proprietors in the 
 districts, and other like matters. I shall not, at present, discuss 
 the policy of this legislation. Nor shall I make any attempt 
 to suggest and examine the questions which must arise from the 
 particular provisions of these statutes. Hitherto very few cases 
 have come before the courts involving a judicial interpretation 
 of these legislative systems, and it would be useless to speculate 
 concerning any possible interpretation in the future. It is 
 enough to say that in each of these commonwealths the statutes 
 have covered the whole ground, entirely displacing the connnon- 
 law doctrines; and the labors of their courts will be confined to 
 the proper construction and application of the statutory rules. 
 Without attempting any further examination of these statutes^ 
 which so completely displace the common-law doctrine, I shall 
 confine myself to the law concerning riparian rights, riparian 
 proprietors, and the use of streams flowing through private lands, 
 in the commonwealths which have not adopted these complete 
 statutory systems, and settled all questions of right by legisla- 
 tion. These commonwealths are the states of California and 
 Nevada. 
 
 (173)
 
 § 108 RULE LN CALIFORNIA AKD NEVADA. [Ch. 7. 
 
 CHAPTER VII. 
 
 RIPARIAN RIGHTS IN THE PRIVATE STREAMS OF CAL- 
 IFORNIA AND NEVADA. 
 
 L Nature and Extent of These Rights. 
 
 § 108. Ambiguity of California statutes on water-rights. 
 
 109. Review of the authorities. 
 
 110. Common-law doctrine of riparian rights obtains in Cali- 
 
 fornia. 
 
 111. Construction of section 1423. 
 
 112. Riparian rights excepted. 
 
 113. Interpretation of section 1422 — Lux v. Haggin. 
 
 114. Mexican law — Effect on riparian rights, 
 llo. Riparian rights in Kern district. 
 
 116. Common law of England. 
 
 117. Who are riparian owners. 
 
 118. Prescriptive water-rights. 
 
 n. Uses to Wnicn the Water may be Put. 
 
 § 119. General statement of riparian rights— Van Sickle v. 
 Haines. 
 
 120. Modifications on doctrine of Van Sickle v. Haines. 
 
 121. Legitimate riparian uses. 
 
 122. California decisions. ^ 
 
 123. Natural uses. 
 
 124. Secondarj' uses. 
 
 125. Reasonable riparian use. 
 
 126. Reasonable use for manyfactures. 
 
 127. Manner of use must be reasonable. 
 
 I. Nature and Extent of These Rights. 
 
 § 108. Ambiguity of California statutes on water- 
 rights. 
 
 What is the present condition of the law of California con- 
 cerning the rights of private owners on the banks of natural 
 streams to use the water of such streams? We have already- 
 seen that the Civil Code furnishes what purports to be a system 
 (174;
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 108 
 
 of rules determining and regulating the rights of water in all 
 streams, public an<l private; but that the effect and operation 
 of these rules are rendered at least doubtful, and perhaps nuga- 
 tory, in their application to streams running through or by pri- 
 vate landS; by the final provision, section 1422: "The rights 
 of riparian proprietors are not affected by the provisions of this 
 title." What are the practical consequences, with respect to the 
 whole legislation of the Code, of this restrictive clause? It has 
 been said, by way of answer, that this clause is not restrictive, 
 and that it can produce no x^f'^ctical consequence upon the leg- 
 islation as a whole, because (1) under the law of California, in- 
 dependently of the Code, private "riparian proprietors" have no 
 rights as such to the waters of the adjoining streams; or (2) the 
 "rights of riparian proprietors" intended to be saved and pro- 
 tected are simply those which are not inconsistent with the pre- 
 ceding provisions of the title, and which are not, therefore, taken 
 away by it; those rights, in short, which still remain after and 
 notwithstanding the previous and operative sections of the stat- 
 utes. Before entering upon any discussion of this most impor- 
 tant question, it will be expedient to collect the various judicial 
 authorities bearing upon it. which will aid in its examination. 
 There seems to be a prevalent opinion that the common-law 
 doctrines concerning "riparian rights" of "riparian proprietors" 
 upon natural streams have no existence whatever in the law of 
 California; that the rights of all private owners of lands border- 
 ing upon any stream are wholly subordinate and subject to the 
 right of one who has made a prior appropriation and diversion 
 of its water to any extent for some beneficial purpose; that pri- 
 ority of appropriation and diversion determines the existence, 
 nature, and extent of the rights to the waters of all natural 
 streams among all persons. This opinion is wholly unsupported 
 by judicial authority. It is directly opposed to a long line of 
 decisions and of dicta which have, in the clearest manner, both 
 
 (175)
 
 § 109 RULE IN CALIKOKNIA AND NEVADA. [Ch. 7. 
 
 prior to antl since tlie Codes, recognized the common-law doc- 
 trines concerning "riparian riglits,"and protected "riparian pro- 
 prietors" in the enjoyment of those rights, to some extent at 
 least, altliough they have not fully defined those rights, in all 
 tlieir scope and detail. The correctness of this statement will 
 clearly api)ear from the following citations. 
 
 § 109. Review of the authorities. 
 
 In the very latest case, which related wholly to the appropri- 
 ation of the waters of a public stream, the court says: "No 
 question as to the use of the waters of a stream by riparian pro- 
 prietors is presented by this record. There is nothing in the 
 pleadings or findings to indicate that when all the waters of 
 Lytle creek were appropriated, any of the lands by or through 
 which the creek Hows had passed into private ownership."* 
 The court here expressly recognizes the distinction between the 
 right of appropriating a stream flowing through the public lands, 
 and the right to the use of its waters after any of the lands by 
 or through which it flows have been acquired by private own- 
 ers. In the recent case of Ellis v. Tone^ the private proprie- 
 tor of lands bordering on a stream maintained an action and re- 
 covered damages for a diversion of the water from the stream, 
 made by the defendant in 1877. The decision recognizes and 
 is based upon the existence of some riparian rights held by the 
 plaintiff as a rijiarian proprietor on the stream. The opinion,, 
 it is true, does not discuss the general doctrine, but is confined 
 to an examination of certain instructions given to the jury at 
 the trial, and the entire charge of the trial judge is not reported. 
 The case, however, is a direct authority for the existence of 
 "riparian rights" under the common-law doctrines, at least ta 
 some extent. The decision in Pope v. Kinman^ is unambigu- 
 
 1 Lytle Creek W. Co. v. Perdew, 258 Cal. 289. 
 (Cal.) 2 Pac. Rep. 732. ^54 Cal. 3. 
 
 (176)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 109 
 
 ous and express. A stream called "Lytle Creek" rises on pub- 
 lic lands, and then flows through private lands, including those 
 of the plaintiff and of the defendants. The plaintiff received 
 the patent to his tract in 1872. The title, or at least the pos- 
 session, of the defendants was earlier. The defendants had 
 diverted and used all the water of the creek, and claimed the ex- 
 clusive right to do so. The plaintiff brought this action in 
 1877 to quiet his title to the use of the water as a riparian 
 owner, and to restrain the defendants' diversion. The court, 
 after holding that the plaintiff's action was not barred by the 
 statute of limitations, says: "The principal question is whether 
 it is competent for the defendants, by the mere diversion of the 
 waters of Lytle creek, which is an innavigable stream flowing 
 across the lands of the plaintiff", to deprive the plaintiff of all 
 interest or right of any nature in the waters of that creek. As 
 being owner of the land, the plaintiff has an interest in the living 
 stream of water flowing over the land; his interest is that called the 
 ' riparian right.'' It is not necessary in this case to define in de- 
 tail the precise extent of the riparian rights as existing in this 
 country; it is enough to say that 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. The judgment 
 of the court below deprived the plaintiff of that usufruct, and 
 declares in terms ' that plaintiff has no right, title, nor interest 
 in said waters or any portion of them.' The judgment of the 
 court below is therefore modified so as to read as follows: (1) 
 That defendants have nothing as against the plaintiff, except 
 only such rights as any of them may have of like character with 
 that of the plaintiff, as being riparian proprietors of land bor- 
 dering on said stream; and (2) that none of defendants have any 
 right, title, or interest in or to the waters of said creek except 
 as riparian proprietors as aforesaid." 
 
 The rights of a "riparian proprietor" were also admitted and 
 POM.MP.— 12 (177)
 
 § 109 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 protected in the case of Creighton v. Evans. ^ The court said: 
 "It is admitted that the waters of Elk bayou flowed in its nat- 
 ural channel throuo;h plaintiff's land, and that defendant di- 
 verted a portion of the water to his own land for purpose of ir- 
 rigation, and other purposes. It is not averred that he is a 
 riparian owner, and as such entitled to use an)' portion of said 
 n-ater. The court properly instructed the jury that plaintiff was 
 entitled to recover at least nominal damages, even though he 
 bad suffered no actual damages. But the court further instructed 
 the jury that if defendant diverted a portion of the w^ater for a 
 useful purpose, and that enough water was left in the stream 
 for the use of the plaintiff for watering his stock and for domes- 
 tic purposes, and if the plaintiff was not damaged by the diver- 
 sion, the verdict should be for the defendant. This was not 
 only contradictory to the first instruction, but was erroneous as 
 matter of law. So far as appears on the record, defendant was 
 not entitled to divert the water for any purpose, and plaintiff 
 was entitled to at least nominal damages." This case was de- 
 cided in 1878, but the report does not show when the cause of 
 action arose. Several cases concerning the interference with or 
 use of subterranean water, whether percolating through the soil 
 or flowing in defined streams, also recognize and are decided in 
 accordance with the settled common-law rules on that subject.^ 
 In the case of Ferrea v. Knipe^ the rights of riparian propri- 
 etors were not only recognized, but their extent was also par- 
 tially defined. The controversy was between two owners upon 
 the same stream. The defendant, for the alleged purpose of se- 
 curing the water for the use of watering his stock, and for domestic 
 purposes, had erected a dam, which collected the whole water 
 
 >53 Cal. 55. Caldwell, 7 Nev. 363; Strait v. 
 
 2 See Hale v. McLea, 53 Cal. 578; Brown. 16 Nev. 317. 
 
 Huston V. Leach, Id. 262; Hanson 328 Cal. 341. 
 ». McCue, 42 Cal. 303; Hosier v 
 
 (178)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 109 
 
 of the stream in a pond, and prevented any of it from flowing 
 down to the plaintiff's lands below. An action for damages and 
 preventive relief was sustained. Currey, J., delivering the 
 ■opinion of the court, said, (page 344:) "Every proprietor of the 
 land through or adjoining which a water-course passes has a 
 right to a reasonable use of the water, but he has no right to 
 so appropriate it as to unnecessarily diminish the quantity of 
 its natural flow. The use of the water of a stream for domestic 
 purposes and for watering cattle necessarily diminishes the vol- 
 ume of the stream. This is unavoidable, and though, by rea- 
 son of such diminution, a proprietor on the stream below fails 
 to receive a suj^ply commensurate with his wants, he is without 
 remedy, because his right subsists subject to the rightful use of 
 the water by his neighbor on the stream above him. But while 
 admitting that a riparian owner, to whom the water first comes 
 in its flow has the right to use it for domestic purposes, and 
 for watering his cattle, it is proper to observe that he has not 
 the right to so obstruct the stream as to prevent the running of 
 water substantially as in a state of nature it was accustomed to 
 run. * * *" Page 345: "Though the defendant had the 
 right to use the stream for watering his cattle, and for house- 
 hold purposes, he had not the right, under the circumstances, 
 to dam up the creek, and spread out the water over a large sur- 
 face, by which it would become lost by absorption and evapo- 
 ration to an extent to prevent the stream from flowing to the 
 plaintiff's premises, as it would have done had it not been for 
 the defendant's dams. This was not a proper and beneficial 
 use of the stream." 
 
 In the case of Hill v. Smith, ^ Mr. C. J. Sanderson announced 
 the principle which underlies the common-law doctrines as still 
 forming a part of the California jurisprudence, (page 482.) 
 Speaking of certain erroneous views, he says: "This is due in 
 
 127 Cal. 475. 
 
 (179)
 
 § 109 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 a great measure, doubtless, to the notion, which has become 
 quite prevalent, that the rules of the common law touching wa- 
 ter-rights have been materially modified in this state, upon the 
 theory that they were inapplicable to the conditions found to- 
 exist here, and therefore inadequate to a just and fair determi- 
 nation of controversies touching such rights. This notion is with- 
 out any substantial foundation. The reasons which constitute the 
 ground-work of the common law upon this subject remain un- 
 disturbed. The maxim , ' sic utere tuo ut alienum non laedas, ' upon 
 which they are grounded, has lost none of its force. When the 
 law declares that a riparian proprietor is entitled to have the 
 water of a stream flow in its natural channel, — uhi currere solebat, 
 — without diminution or alteration, it does so because its flow 
 imparts fertility to his land, and because the water in its pure 
 state is indispensable for domestic uses. But this rule is not 
 applicable to miners and ditch-owners, simply because the con- 
 ditions upon which it is founded do not exist in their case." 
 The court went on further to hold that the common-law doc- 
 trines still regulated the right to the use of water in mining re- 
 gions as far as the conditions of the situation and business would 
 allow. 
 
 . In the early and leading case of Crandall v. Woods, ^ which 
 did not relate to the use of water for mining or other special 
 uses, nor to the prior appropriation of water flowing in a public 
 stream, discussed in the former portion of this article, the same 
 general common-law doctrine was affirmed. The controversy 
 arose between two proprietors who held different tracts of the 
 public land upon the same stream, by a possessory right good 
 against all third persons, but who had not yet obtained the legal 
 title from the United States by patent or otherwise. The ques- 
 tion was whether one of these parties could divert the water of 
 the stream, and prevent it from flowing by or through the land 
 
 18 Cal. 136. 
 (180)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 109 
 
 of the other, who had acquired his possessory right before any 
 such diversion was made. This question was answered in the 
 negative, although the possession of the one making the diver- 
 sion was prior to that of the other party who complained of the 
 diversion. Holding that possession of public land carries with 
 it the privileges and incidents of ownership against every one 
 but the government, the court further held, as a necessary con- 
 sequence, that such possession gives the right to the use of wa- 
 ter flowing through the land for its natural wants, but does not 
 confer the right to divert it, and to prevent its running upon the 
 land of another who has taken up the same subsequently, but 
 before the attempt to change the course of the water. The opin- 
 ion of the court, by Mr. C. J. Murray, uses the following lan- 
 guage, (page 141 :) 
 
 "The property in the water, by reason of riparian ownership, 
 is in the nature of a usufruct, and consists, in general, not so 
 much in the fluid as in the advantage of its impetus. This, 
 however, must depend upon the natural as well as the artificial 
 wants of each particular country. The rule is well settled that 
 water flows in its natural channels, and should be permitted 
 thus to flow, so that all through ivhose land it passes may enjoy the 
 privilege of using. A riparian proprietor, while he has the un- 
 doubted right to use the water flowing over his land, must so 
 use it as to do the least possible harm to other riparian propri- 
 etors. The uses to which water may be appropriated are, first, 
 to supply natural wants, such as to quench thirst, to water cat- 
 tle, for household and culinary purposes, and, in some coun- 
 tries, for the purpose of irrigation, [In no country where the 
 common-law doctrines alone govern, is the purpose of irrigation 
 placed upon the same footing with those other purposes and 
 uses mentioned by Mr. Justice Murray.] These must be first 
 supplied, before the water can be applied to the satisfaction of 
 artificial wants, such as mills, manufactories, and the like, which 
 
 (181)
 
 § 109 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 are not indispensable to man's existence. [The necessary lim- 
 itations to be placed upon this dictum will be described in the 
 sequel.] Water is regarded as an incident to the soil, the 
 use of which passes with the ownership thereof. As a general 
 rule, a property in water cannot be acquired by appropriation, but 
 only by grant or prescription." This decision and the opinion 
 quoted refer to a condition of circumstances completely analo- 
 gous with private ownership of lands on the banks of a stream. 
 The appropriation of water from public streams for mining and 
 other purposes, in pursuance of local customs and rules sanc- 
 tioned by the act of congress, and the special condition of the 
 mining regions, are not involved nor afifected by the reasoning 
 or the decision. The common-law doctrine here applied to pri- 
 vate riparian proprietors who have only possessory titles or occu- 
 pation rights to land bordering on streams, must a fortiori ex- 
 tend to those riparian proprietors who have obtained complete 
 legal titles and ownership over such lands. The same doctrine 
 was affirmed in Leigh v. Independent Ditch Co.^ In an action 
 for the diversion of water, the complaint alleged tliat the plain- 
 tiffs were owners and possessors of a certain mining claim situ- 
 ated on a certain stream, and were entitled to have the waters 
 thereof flow as they naturally did, but defendants had di- 
 verted them. The defendants demurred to this complaint on 
 the ground that it stated no cause of action, because it did 
 not allege that plaintiffs had appropriated the water, or were 
 owners of it, or were in possession of it. The demurrer was 
 overruled. "The allegation that the plaintiffs were owners and 
 in possession of the mining claim was sufficient. The own- 
 ership and possession of the claim drew to them the right 
 to the use of the water flowing in the natural channel of 
 the stream. The diversion of the water was therefore an in- 
 jury to the plaintiffs for which they could sue. The princi- 
 
 18 Cal. 323. 
 (182)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 110 
 
 pie involved in this case was expressly decided by this court 
 in the case of Crandall v. Woods." The court here expressly 
 decided that a riparian proprietor, merely by virtue of his 
 ownership, is entitled to the use of the water without mak- 
 ing any actual appropriation. The common-law doctrine, that 
 the right over the stream arises from riparian ownership, and 
 not from any appropriation, is again declared. It is true the 
 land in this case was a mining claim, but the decision was not 
 in the slightest based upon or affected by that fact. In the 
 state of Nevada, the common-law doctrines concerning the ri- 
 parian rights of private riparian proprietors have been adopteci 
 in the most explicit manner by the well-considered decision of 
 the supreme court in the case of Van Sickle v. Haines.^ The 
 court held that a person acquiring the legal title by patent from 
 the United States, to a tract of land bordering on a stream, 
 obtained as a necessary incident of his ownership, and before 
 making any actual appropriation, full right to the water of the 
 stream as a riparian proprietor, superior and complete as against 
 another party, not a riparian owner, who had made a prior ap- 
 propriation of the waters of the stream while it was entirely 
 public. Extracts from the very able and instructive opinion in 
 this case will be given under a subsequent head. 
 
 § 110. Common-la'w doctrine of riparian rights ob- 
 tains in California. 
 
 The foregoing series of cases shows, beyond a possibility of 
 question or doubt, that prior to and since the adoption of the 
 Civil Code, the laws of California recognized, protected, and en- 
 forced the rights known as the "riparian rights" of private "ri- 
 parian proprietors" owning lands situated on the banks of nat- 
 ural streams, substantially as they exist at the common law* 
 
 17 Nev. 249. 
 
 (183)
 
 §110 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 The rights thus known as "riparian rights" have been defined/ 
 they belong alike and equally to all "riparian proprietors" on 
 the same stream, subject solely to the natural advantage belong- 
 ing to the upper over the lower proprietor;^ they exist as a nec- 
 essary incident of ownership, even though the proprietors had 
 not as yet made any actual appropriation or diversion of the 
 ■water;^ they entitle each "riparian projDrietor" to the usufruct 
 of the water as it flows in the natural channel of the stream, in- 
 cluding the right to use so much of it as may be reasonably nec- 
 essary for such primary purposes as watering his cattle, domestic 
 and household uses, without thereby unnecessarily or unreason- 
 ably diminishing its natural flow down to the proprietors below 
 him on the stream.* Whether these riparian rights include the 
 right to use the water for purposes of irrigation is not directly 
 decided, nor even considered, by these cases. 
 
 We are thus furnished with a conclusive answer to a question 
 suggested on a preceding page. I had stated the position main- 
 tained by some, that the section 1422 of the Civil Code is not in 
 reality restrictive, and can produce no practical effect upon the 
 whole legislation of the Code concerning water-rights for two rea- 
 sons; the first of these being that, under the law of California, 
 independently of the Code, private "riparian proprietors" have 
 no rights as such to the waters of the adjoining stream. The 
 series of decisions above quoted demonstrates the incorrectness 
 of this opinion. These authorities show most clearly that the 
 law of California, independently of the Code, did and does rec- 
 ognize the "riparian rights" of "riparian proprietors" substan- 
 tially as they exist at the common-law. This conclusion is so 
 certain that no further discussion can render it any more plain. 
 
 *Pope V. Kinman, 54 Cal. 3. ^pope v. Kinman. Creighton v. 
 
 2Id.; Ferrea v. Knipe, 28 Cal. Evans, Ferrea v. Knipe, Crandall 
 
 841; Crandall v. Woods, 8 Cal. 136. v. Woods, supra. 
 8 Creighton v. Evans, 53 Cal. 55. 
 
 (184)
 
 €h, 7.] RULE IN CALIFORNIA AND NEVADA. § 111 
 
 The legislature, in enacting section 1422, clearly assumed that 
 the then existing law of the state recognized and protected these 
 ^'riparian rights" of "riparian proprietors." 
 
 § 111. Construction of section 1422. 
 
 We are then brought back to a consideration of the question: 
 What are the practical effects, upon the entire legislation of the 
 <^ode, of the restrictive provision contained in section 1422? In 
 support of the position maintained by some, that this clause is 
 not restrictive, and can produce no practical effects upon the 
 legislation as a whole, a second ground has been advanced, 
 namely, that the "rights of riparian proprietors" intended to be 
 saved and protected by the section are simply those which are 
 not inconsistent with the previous sections of the title, and which 
 are not, therefore, taken away and abrogated by these provis- 
 ions; those rights, in short, which still remain in force after 
 and notwithstanding the preceding and operative sections of the 
 statute. Is this the interpretation which should properly be 
 given to the language of section 1422? In my opinion it is not. 
 Such an interpretation would, in my opinion, be unreasonably 
 forced, and in plain violation of the settled rules governing the 
 construction and interpretation of statutes. In the first place, 
 it is a fundamental doctrine of statutory interpretation that in 
 every distinct, clear, additional provision the legislature must 
 be assumed to have meant something; to have intended the provis- 
 ion to have some meaning, operation, and effect, so that it is 
 not wholly superfluous, useless, and nugatory. Nothing but ab- 
 solute necessity, therefore, should ever admit such an interpre- 
 tation of a clear, distinct, and positive provision as would ren- 
 der it unnecessary, useless, superfluous, and nugatory. 
 
 The suggested construction of section 1422 would render the 
 whole clause utterly useless, superfluous, and nugatory. If it 
 were adopted, the section would in effect read: "The rights of 
 
 (185)
 
 § 111 RULE IX CALIFORNIA AXD NEVADA. [Ch. 7, 
 
 riparian proprietors, so far as tliey are not taken away or abro- 
 gated by the provisions of this title, are not affected by the pro- 
 visions of this title." It cannot be supposed that the legislature 
 would deliberately, and by a formal and final section placed at 
 the end of a statute, enact a provision so unnecessary and mean- 
 ingless. Whatever may have been the riparian rights existing 
 previous to the statute, then, as a matter of course, so far as 
 they were not opposed to the provisions of the statute, so far as 
 they were not taken away, abrogated, lessened, or altered by 
 the statute, they would necessarily remain unaffected by its pro- 
 visions. It needs no express clause to produce this result, which 
 would be inevitable in the absence of such a clause; no clause 
 could make the consequence any more certain or operative. 
 We find the title of the Code concluded by a formal, peremp- 
 tory, and sweeping final section in the nature of a proviso or 
 limitation upon the operation of the statute as a whole, and it 
 is simply absurd to suppose that the legislature intended by 
 this section nothing but what would have been equally true if 
 the section had been omitted . The correctness of this conclu- 
 sion will appear even still more clear from a further considera- 
 tion. The interpretation which I am examining would render 
 section 1422 wholly without meaning, effect, and operation. If 
 the "rights of riparian proprietors" intended to be protected are 
 simply those which are not inconsistent with the previous sec- 
 tions of the title, which are not abrogated, but which still re- 
 main notwithstanding the preceding provisions of the statute, 
 then, I say, this section 1422 is utterly useless, and without 
 any force and effect, because there are no such "rights of riparian 
 proprietors" remaining unaffected by the title. If the previous 
 provisions of this title are operative to their full extent, unlim- 
 ited and unrestricted by the final section, then they must inev- 
 itably abolish and abrogate all the "riparian rights," and "rights 
 of riparian proprietors," existing at the common law. The 
 086;
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 112 
 
 fundamental conception upon which all of the common-law rules 
 are based, and all and singular of the special "riparian rights," 
 and rights of "riparian proprietors" created and regulated by 
 these common-law rules, are alike inconsistent with and opposed 
 to the provisions of this title of the Code, if these are to have 
 their full and natural meaning and operation, unrestricted by 
 the proviso contained in the final section 1422. And, further- 
 more, the interpretation in question seems to have been, im- 
 pliedl}' at least, condemned by recent decisions of the supreme 
 court. In several of the cases above quoted, the causes of ac- 
 tion arose since the title of the Civil Code concerning water- 
 rights went into effect. Under the construction which it i& 
 claimed should be given to section 1422, the provisions of this 
 title would have been a complete answer to the plaintiffs con- 
 tention in all of these cases, and would have absolutely con- 
 trolled their decision. And yet in none of these cases is the 
 title of the Code even suggested or referred to by the court. It 
 is not too much to say that these cases are wholly inconsistent 
 with any interpretation of section 1422, which leaves the pre- 
 ceding provisions of this title fully operative, according to their 
 natural and literal import, upon the rights of private riparian 
 proprietors.^ 
 
 § 112. Riparian rights excepted. 
 
 The conclusion, then, seems to be irresistible that the legis- 
 lature intended section 1422 to have some meaning and effect; 
 that they designed it to be a material and substantial limitation 
 upon the otherwise general operation of the preceding clauses of 
 
 ^See Ellis v. Tone, 58 Cal. 289; would certainly have been made. 
 
 Pope V. Kinman, 54 Cal. 3; and if it had the effect to abrogate all 
 
 in other reported cases decided riparian rights. See Creighton v. 
 
 since the Code took effect, but Evans, 53 Cal. 55; Lytle Creek Wa- 
 
 which do not show when the ter Co. v. Perdew,(Cal.)2 Pac. Rep. 
 
 causes of action arose, some ref- 733. 
 erence to this title of the Code 
 
 (187)
 
 § 112 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 the title. What are its moaning and its effect? A fair and rea- 
 sonable construction seems to leave no other alternative but 
 that the section must have all the meaning, force, and effect 
 which can result from the full, settled, and legal import of all 
 its terms, considered as referring to and acting ujjon the then 
 €xisting doctrines of the law established by judicial decisions. 
 In other words, the common-law "riparian rights" of private 
 "riparian proprietors" owning tracts of land upon the margins 
 of natural streams in this state, ^'hich have been recognized, 
 declared, and maintained by judicial decisions both before and 
 since the Code, are not affected by the title of the Code; do not, 
 in fact, come within the purview of its provisions. In short, 
 the whole title has no relation to, nor effect upon, the rights of 
 those private owners who hold tracts of land bordering upon 
 natural streams, but is confined in its operation to the rights of 
 appropriating and using the waters of streams which flow wholly 
 through public lands of the United States or of the state. There 
 seems to be no escape from this construction unless an entirely 
 different meaning is to be given to the words "rights of riparian 
 proprietors" when found in a statute, from that given by the 
 universal consent of all judicial decisions. 
 
 The supreme court has uniformly recognized and maintained 
 the distinction between the common right of all persons to ap- 
 propriate the water of streams while running wholly through 
 public lands, and the rights of private riparian owners who have 
 acquired private titles to lands on the banks of streams. It has 
 recognized the technical terms "riparian rights" and "riparian 
 proprietors," and has defined them as they have been defined 
 and are understood at the common law. The doctrines decided 
 by the supreme court concerning these "riparian rights" have 
 been summarized on a previous page, and need not be here 
 repeated.^ There can be no reasonable doubt that these "ri- 
 
 iSee o?i;e, § 109. 
 (188)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 112 
 
 parian rights" of private owners on the banks of streams are re- 
 ferred to by section 1422, are excepted or removed by it from 
 the meaning and operation of the whole title, and are left exist- 
 ing in the law of California as fully and completely as they were 
 before the Code. The title of the Code thus finds its sole ap- 
 plication to the water of streams flowing entirely through pub- 
 lic lands, upon the banks of which no private owner has yet ac- 
 quired title to any tract or parcel of private land. 
 
 If it be urged that this construction virtually emasculates the 
 entire title of the Code concerning water-rights, and renders it 
 rirtually inoperative over a large and most important branch of 
 those rights, the answer is that this is the fault of the legisla- 
 tion, and not of the construction. It is the duty of courts to 
 take statutes as they are, to expound them according to the plain 
 and natural import of their terms, and not to add to or take 
 from them according to any notions which the judges may have 
 as to what the legislature oic^/i^ to have enacted. In the title of 
 the Code under consideration the legislature has undoubtedly 
 shirked its responsibility. Called upon to settle a question of 
 the gravest importance, in which there are directly opposing 
 interests involved, any settlement of which must necessarily be 
 hostile to some large pecuniary interests, the legislature, under 
 a mere appearance, — a simulacrura of settlement, — has, in fact, 
 done nothing, but has left all the important questions of private 
 water-rights of private riparian owners in exactly the same posi- 
 tion which they occupied prior to the Code. The failure of the 
 legislature to do what it was supposed and desired by some it 
 should do, can have no effect upon the action of the courts in 
 construing and interpreting the statute as a whole. The court 
 
 cannot enact a new and different statute. 
 
 (189)
 
 § 1 13 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 § 113. Interpretation of section 1422 — Lux v. 
 Haggin. 
 
 [The views advanced by our author in the preceding sections 
 have received the sanction of the highest court of California, and 
 are thus in harmony with the authoritative interpretation of this 
 obscure and ambiguous statute. In the case of Lux v. Haggin,^ 
 decided in 1884, it was said by Sharpstein, J. : "After carefully 
 examining all the cases bearing on this question, we are unable 
 to find one in which it is held, or even suggested, that outside 
 of the mining districts the common-law doctrine of riparian 
 rights does not apply with the same force and effect in this state 
 as elsewhere." And the reason why it did not apply to the min- 
 ing districts is "that the government, being the owner of all the 
 land through which a stream of water runs, had a right to per- 
 mit the diversion and use of it by any one who chose to divert 
 and use it for mining, agricultural, or other purposes. There 
 is not only no occasion for the application of the doctrine of ri- 
 parian proprietorship in such a case, but it is one to which the 
 doctrine could not be applied." The court continued: "The 
 provisions of the Civil Code in respect to the appropriation of 
 water must be limited to that which flows over lands owned 
 by this state or by the United States. It cannot affect the rights 
 of riparian proprietors, (1) because it is expressly declared that 
 it shall not; and (2) because an owner of land cannot be di- 
 vested of any interest which he has acquired in it except for a 
 public use, and not then until just compensation has been made 
 forit.»2 
 
 1 4 Pac. Rep. 919, 923. deed could not, affect the rights of 
 2Inthi3 case a dissenting opin- those persons holding under grants 
 ion was delivered by Ross, J., in from the Spanish or Mexican gov- 
 whichhesaid: "Of course the doc- ernment — First, because the doc- 
 trine of appropriation, as contra- trine is expressly limited to the 
 distinguished to that of riparian waters upon what are known as 
 rights, was not intended to. and in- the public lands; and, secondly, be- 
 
 (190)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 113 
 
 This case was reargued in 1886; and the opinion then pre- 
 pared is so exhaustive in its scope, and is characterized by such 
 learning and judicial acumen, that it may almost be said to con- 
 stitute, in itself, a complete treatise on water-rights. In regard 
 to the point now under consideration, it was held that the water- 
 rights of the state, as riparian owner, are not reserved by section 
 1422 of the Code, because (whenever the state has not already 
 parted with its right to those who have acquired from it a legal 
 or equitable title to riparian lands) the provisions of the Code 
 confer the state's right to the flow on those appropriating water 
 in the manner prescribed by the Code.^ Further, it was sug- 
 gested in argument that the "riparian rights" designed to be re- 
 served by section 1422 were such only as had become vested 
 before the Code went into operation, and that, after that date, 
 no genuine riparian rights could be acquired in California. But 
 the court held that the section in question is protective, not only 
 of riparian rights existing when the Code was adopted, but also 
 of the riparian rights of those who had acquired a title to land 
 from the state after the adoption of the Code, and before an ap- 
 propriation of water in accordance with the Code provisions. 
 This decision was made to rest upon a point not previously con- 
 sidered in any of the cases, but one of such importance and so 
 clear that it seems to terminate the whole controversy. To quote 
 the language of McKinstry, J. : "We do not find it necessary to 
 say that the prospective provisions of the Code would violate 
 the obligation of a contract; but, when the state is prohibited 
 
 cause the rights of such grantees from the operation of the provis- 
 
 are protected by the treaty with ions of the Civil Code, in relation 
 
 Mexico and the good faith of the to water-rights, by section 1422 of 
 
 government. It is the rights of that Code. " Lux v. Haggin, (Cal.) 
 
 such riparian proprietors as t/tose 4 Pac. Rep. 919, 935, But this view 
 
 that are unaffected by the doctrine cannot be regarded as tenable, 
 
 of appropriation, and those are the ^Lux v. Haggin, (Cal.) 10 Pac. 
 
 riparian rights that are excepted Rep. 739. 
 
 (191)
 
 §113 RULE IN CALIFORNIA AND NEVADA. [Cll. 7. 
 
 from interfering with the primary disposal of the public lands 
 of the United States, there is included a prohibition of any at- 
 tempt on the part of the state to ju'eclude the United States from 
 transferring to its grantees its full and complete title to the land 
 granted, with all its incidents. The same rule must apply to- 
 homesteaders, pre-emptioners, and other purchasers under the 
 laws of the United States. To say that hereafter the purchaser 
 from the United States shall not take any interest in the water 
 flowing to, or in the trees on, or in the mines beneath, the sur- 
 face, but others of our citizens shall have the privilege of remov- 
 ing all these things, is to say that hereafter the United Statea 
 shall not sell the water, wood, or ores." The learned judge con- 
 tinued: "The section declares, in effect, that those appropriat- 
 ing water under the previous sections shall not acquire the right 
 to deprive of the flow of the stream those who shall have ob- 
 tained from the state a title to, or right of possession in, ripa- 
 rian lands, before proceedings leading to appropriation shall be 
 taken. Such is the meaning of the words employed. Our 
 conclusion on this branch of the case is that section 1422 saves 
 and protects the riparian rights of all those who, under the land 
 laws of the state, shall have acquired from the state the right of 
 possession to a tract of riparian land prior to the initiation of 
 proceedings to appropriate water in accordance with the pro- 
 visions of the Code. If section 1422 of the Civil Code were in- 
 terpreted as saving all riparian rights actually vested before the 
 section took effect, the mere appropriator could acquire no rights 
 to water by virtue of the provisions of the Code, but would be 
 left to the enjoyment of such as he might secure by convention 
 with the riparian proprietors. If all riparian rights existing 
 when the section was adopted were preserved by section 1422» 
 then, inasmuch as both the state and the United States were at 
 that time riparian owners, the lands of neither government would 
 be affected relating to water-rights; nor, of course, would any 
 (192)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 114 
 
 subsequent grantee of either government be affected by those 
 provisions."^ 
 
 The common law, therefore, defines and governs the water- 
 rights of all persons owning lands upon a stream in California, 
 where the waters of such stream had not been already appro- 
 priated when their titles accrued.] 
 
 § 114. Mexican law — Effect on riparian rights. 
 
 [The recognition and enforcement of the common law doctrine 
 of riparian rights, by the legislation and in the courts of Cali- 
 fornia, is not in anywise affected or invalidated by the fact that 
 the laws of Mexico obtained in that jurisdiction before its ad- 
 mission as a state into the Union. If, under the Mexican 
 regime, vested rights of property had grown up, of such a nature 
 and to such an extent that the general enactment of the law of 
 riparian proprietorship would have been inconsistent with their 
 continued enjoyment, it is obvious that California would have 
 had no power to destroy these rights by the adoption of the com- 
 mon law, or by its legislation on the subject of waters. But, on 
 the contrary, the Mexican law, as it existed at the time of the 
 cession of California, did not confer nor recognize any inherent 
 vested right, enforceable in the courts, in others than riparian 
 proprietors, to the use of any portion of the waters of a stream, 
 nor any right, except as to those who actually appropriated 
 waters in the manner and on the conditions prescribed by the 
 laws. 
 
 This subject was very fully discussed in the recent important 
 case of Lux v. Haggin,^ where the conclusion above indicated 
 was reached and applied. It was contended by counsel that 
 " the fundamental jDrinciple ujDon which all the laws of the for- 
 mer governments of this territory upon this subject [waters and 
 their uses] were based will be found to be that the flowing wa- 
 
 iLux V. Haggiu, (CaU 10 Pac. Rep. 674, 744. 2 id. 674, 705-718. 
 
 poM.Rip.— 13 (193)
 
 § 111 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 turs of the streams and rivers of the country were dedicated to 
 the connnon use of the inhaliitants, subject to that legislative 
 control which is the equivalent of the exercise of that legislative 
 power which wc know as the 'police power' of the state." And 
 the court understood this proposition to mean that "the inhab- 
 itants" of the territory, or at least the occupants of lands in each 
 valley or water-shed capable of irrigation from a stream flowing 
 in it. had, under the Mexican law, a vested interest in the com- 
 mon use, for irrigation and like purposes, to which the waters 
 were "dedicated," which could not be taken away by the legis- 
 lative power; that the dedication continues to the present hour; 
 that the state of California has no power to restrict the use to 
 riparian proprietors; that the statute of 1850, adopting the com- 
 mon law as the rule of decision, is not to be construed as an at- 
 tempt so to restrict the use; and, if it must be thus construed, 
 it is invalid to tliat extent, since the power of the state is lim- 
 ited to the mere rcfjidation of the common use. But the court 
 denied the view contended for, and announced the principle 
 that, "by the law of Mexico, the running waters of California 
 were not dedicated to the common use of all the inhabitants in 
 such sense that they could not be deprived of the common use." 
 This doctrine was supported upon substantially the following 
 reasoning: By the Roman law, three things, viz., air, running 
 water, and the sea, (with its shores,) were considered as com- 
 mon to all. But the Roman jurists made a distinction between 
 res communes and res puhlicie, including the sea among the for- 
 mer and rivers among the latter. The same distinction was 
 recognized by the Spanish writers, — bienes comunes being those 
 which, not being, as to ownership, the property of any, pertain 
 to all as to their use, — as the air, rain, water, the sea, and its 
 beaches; and bienes publkos being those which, as to property, 
 pertain to a people or nation, and, as to their use, to all the in- 
 dividuals of the territory or district, — such as rivers, shores, 
 (194;
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 114 
 
 *ports, and public roads. And by the Mexican law the property 
 in rivers pertained to the nation; the use, to the inhabitants. 
 Now, whatever the common use to which rivers, harbors, and 
 public roads were subjected, the enjo3'^ment of such use would 
 exclude the notion of an exclusive use or occupation which must 
 interfere with a like use by others. But the common use of 
 rivers would seem to be such as all could enjoy who had access 
 to them as rivers. An eminent English judge speaks of a dis- 
 tinction mentioned by the civilians between a river and its wa- 
 ters; the former being, as it were, a perpetual body, and under 
 the dominion of those in whose territory it is contained; the 
 latter continually changing, and incapable, while it is there, of 
 becoming the subject of i3roperty ; and he adds: "It seems that 
 the Roman law considered running water not as a bonum means, 
 in which any might acquire a property, but as public or com- 
 mon, in this sense onl}^ that all might drink it, or apply it to 
 the necessar}' purposes of supporting life; and that no one had 
 any property in the water itself, except in that particular por- 
 tion which he might have abstracted from the stream, and of 
 which he had the possession, and during the time of such pos- 
 session only."^ The common use of the waters, it would seem, 
 existed only while they continued to flow in, and constituted a 
 portion of, the river; but under the Mexican law an exclusive 
 use of parts or the whole of the waters of a river might be legally 
 acquired by individuals. By the Mexican Civil Code of 1870 
 it is provided: "The property in waters which pertains to the 
 state does not prejudice the rights which corporations or private 
 individuals may have acquired over them by legitimate title, 
 according to what is established in the special laws respecting 
 public property. The exercise of property in waters is subject 
 to what is provided in the following acts." Article 1066. If, 
 as is probable, the presumption is that the provisions of the 
 
 iDenman, J., in Mason v. Hill, 5 Barn. «& Adol. 1. 
 
 (195)
 
 § Hi RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 Code are declaratory of the pre-existing law, the right ^Yhich 
 could be acquired under the laws to the separate use of the por- 
 tions of a stream constituted an exclusive usufruct, of the nat- 
 ure of private property, which did not and could not co-exist 
 with a common use of such waters by all.^ The court then con- 
 tinued: "It was the policy of Mexico to foster and protect nav- 
 igation. The rivers naturally adapted to the passage of water- 
 craft were devoted to the common use for purposes of navigation. 
 It would seem to be in the power of the sovereign (except so far 
 as the power is limited by the constitution of government) to 
 authorize such diversions as shall interfere with navigation. It 
 was never doubted that an act of parliament would operate to 
 extinguish any public right to passage. Woolr. Waters, 289. 
 While, however, a river remained a navigable river, the navi- 
 gation was, by the civil law, common to all, unless the priv- 
 ilege was limited to a class. Interference Avith the appropriate 
 use of innavigable rivers was not thus absolutely prohibited by 
 the Mexican law. The common use of the waters of such rivers 
 by all who could legally gain access to them continued only 
 while the waters legally flowed in their natural channel, and the 
 power of determining whether the public good — the purposes 
 for which the social state exists — demands that the use of the 
 whole or portions of the waters should pass as an exclusive right 
 to one or a class of individuals remained in the sovereign. 
 Whether the power is an incident to the ultimate domain or 
 right of disposing of the property of the state, or is to be re- 
 ferred to some other source or principle, the Mexican govern- 
 ment employed the power of permittirg the diversion of waters 
 from innavigable streams, by those not riparian proprietors, upon 
 
 1 Among the authorities cited by Comm. Inst. ; Mason v. Hill, 5 Barn, 
 
 the court are the following: 2 & Adol. 1; Bow. Mod. Civil Law, 
 
 Just. Inst. 1, §§ 1, 2; Hal. Int. Law, 64; Mex. Civil Code, art. 1066. See, 
 
 147; Movie, Just. 184; Escriche; also, Sand. Just. 157, 159. 
 Hall, Mex. Law, 447; Vinnius, 
 (1%)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 115 
 
 such terms and conditions, "and with such limitations, as were 
 established by law, or by usages and customs which had the 
 force of law. That government saw fit to concede private rights 
 10 the exclusive use of the waters of such streams. It had power 
 to do this, even if the consequence should be the entire depriva- 
 tion of the common use. It may be said that the Mexican laws 
 which provided for such concessions to individuals or corpora- 
 tions did not provide for grants to such persons, but were them- 
 selves a recognition of a right in all to a use of the waters. But 
 a system which provided for the mode of acquisition of private, 
 separate, and exclusive rights by individuals or corporations 
 cannot be said to be merely in regulation of a common use. 
 Those who appropriated and diverted the waters of an innavi- 
 gable river in accordance with the laws, obstructed pro tanto its 
 common use. Nevertheless they acquired an exclusive right 
 to the use of that which they diverted, because, if the}^ com- 
 plied with the established conditions, their rights were acquired 
 "under and in accordance with law, and the waters they diverted 
 were no longer portions of the waters of a river, or subject to 
 Ihe common use. No one of such had any right in or to the 
 water until he had complied with the conditions which author- 
 ized him to appropriate it. Every one of such who complied 
 with the conditions, and appropriated water, acquired a vested 
 right in such water, at least while he continued to use it, ex- 
 cept in the single case where he acquired a right merely condi- 
 tional, under laws which reserved the power in the agents of 
 the state or municipality to deprive him of it without indemni- 
 fication."^] 
 
 § 116. Riparian rights in Kern district. 
 
 [We have shown that the common law regulates the rights 
 of riparian owners on the rivers and streams of California, un- 
 
 iLux V. Haggiu, (Cal.) 10 Pac. Rep. 705-711. 
 
 (197)
 
 § 116 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 afTccted 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.^] 
 
 § 116. Common law 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 the 
 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, (Cal.) 10 Pac. Rep. 735 
 (198)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 118 
 
 the interpretation of such statute by the courts of the other 
 states."^] 
 
 § 117. Who are riparian owners. 
 
 [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 different means, 
 and claim the whole of it for his own use.*] 
 
 § 118. Prescriptive water-rights. 
 
 [While the common law recognizes no such thing as an ex- 
 clusive right acquired by mere priority of appropriation of wa- 
 ter, it must be remembered that the riparian owner may obtain 
 exclusive interests in the stream b}^ 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 
 
 lid. 746,749. 3 Williams v. Wadsworth, 51 
 
 2 Smith V. Logan, 18 Nev. 149, s. Conn. 277. 
 C. 1 Pac. Rep. 678. « Weill v. Baldwin, 64 Cal. 476, 
 
 8. c. 3 Pac. Rep. 249. 
 
 (199)
 
 § 119 RULE IN CALIFORNIA AND NEVADA. [Cll. 7. 
 
 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, Avithin 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 throv.gh his neighbor's land, such 
 prescriptive right does not extend to the overflowing of the war 
 ter over such land to the neighbor's injury.^] 
 
 II. Uses to Which the Water may be Put. 
 
 § 119. General statement of riparian rights — Van 
 Sickle V. Haines. 
 
 It thus appearing that the title of the Code concerning water- 
 rights has no apjilication to nor operation upon the riparian 
 rights of private riparian proprietors who hold the title to tracts 
 of land on the banks of natural running streams in this state; 
 that those rights are left existing as they have been declared by 
 judicial decisions made before and since the adoption of the 
 Code; and that those rights have thus been declared by judicial 
 decisions to be substantially the same as the rights created, rec- 
 ognized, regulated, and protected by the common-law doctrines 
 relating to the subject, — we are now in a position to inquire, 
 with more of detail, what are the nature, extent, and limits of 
 the rights held by private riparian proprietors in California; 
 what uses of the water of streams do they confer, permit, or for- 
 
 iBoynton v. Longley, (Nev.) 6 STuckerv. Salem Flouring-Mills 
 Pac. Rep. 437, Hawley, J. Co., 13 Or. 28, s. c. 7 Pac. Rep. 53. 
 
 2Wattier v. Miller, 11 Or. 329, s. 
 C. 8 Pac. Rep. 35-4. 
 
 (200)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 119 
 
 "bid; with special attention to the inquiry whether they permit 
 the use of water for purposes of irrigation, and, if so, to what 
 extent and under what limitations. As a preliminary to this 
 proposed examination, I shall quote at some length from a de- 
 cision made by the supreme court of Nevada, which covers all 
 of the questions. The same physical conditions affecting the 
 use of water exist in both states, and in both the common-law 
 ■doctrines concerning the rights of private riparian proprietors 
 are recognized as substantially controlling. These facts alone 
 would recommend the decision to the attention of the courts and 
 profession of California; but the decision itself is so important, 
 and the opinion of Chief Justice Lewis is so able, learned, and 
 exhaustive, that no excuse is needed for the long extracts which 
 I have made. If the common-law doctrines still determine and 
 regulate the rights of private riparian proprietors in our own 
 state, it is proper to know what these doctrines are, how the}- 
 have been settled, and upon what authority the}' rest. The 
 facts of the case present in a marked manner the distinction be- 
 tween the appropriation of water from streams while flowing 
 wholly over the public lands of the United States, and the rights 
 to the water held by a proprietor who has acquired a title as 
 private owner to a tract of land bordering uj^on a stream. The 
 opinion shows in the clearest manner the general nature, extent, 
 and limits of the rights possessed by such private riparian pro- 
 prietor, as estaljlished by the overwhelming consensus of author- 
 ities, English and American. Unless I am entirely wrong in 
 the construction placed upon the title in the Civil Code, and 
 unless the decisions of the California suj^reme court, heretofore 
 quoted, are to be wholly disregarded, then, as it seems to me, 
 the opinion of Chief Justice Lewis, in its reasoning and its con- 
 clusions, applies to and defines the rights of private riparian 
 proprietors in California, with one modification, to be subse- 
 quently mentioned, growing out of a more recent statute of con- 
 
 (201)
 
 §119 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 gross. The case to wliich I refer, and from which I now pro- 
 ceed to quote, is Van Sickle v. Haines.^ 
 
 The facts were briefly as follows: In 1857 the plaintiff, Van 
 Sickle, diverted a portion of the waters of Daggett creek, a nat- 
 ural innavigable stream, by means of a ditch for irrigating and 
 domestic purposes, to be used upon a tract of land in his pos- 
 session not situated upon the banks of said creek. The diver- 
 sion was made at a point then on the public land, but the tract 
 of land bordering on the creek and including this point was, in 
 1864, conveyed by patent from the United States to the defend- 
 ant Haines. In 1865 Van Sickle obtained a patent from the 
 United States for the tract in his possession,' on which he used 
 the water. In 18G7 Haines constructed a flume on his own 
 land, and by its means diverted the water of the creek for the 
 benefit of his own riparian tract of land, and thereby deprived 
 Van Sickle of the supi)ly of water which he had been using. 
 In 1870 Van Sickle brought an action, which resulted in a 
 judgment for damages against Haines, and a perpetual injunc- 
 tion restraining him from interfering with the plaintifPs prior 
 appropriation. It should be carefully noticed that the plain- 
 tiff, Van Sickle, was not a riparian proprietor. On appeal, the 
 judgment was reversed by the supreme court, and a decree was 
 ordered for the defendant dismissing the suit. The court held, 
 among other points, that, since there can be no title acquired 
 by adverse user against the United States, the time during 
 which a person diverts water from a stream wholly on the pub- 
 lic land, previous to the issue of a patent to a private riparian 
 proprietor, cannot be set up as an adverse user against such pat- 
 entee. The same has been held by California decisions." The 
 jjlaintifF presented a petition for a rehearing, and thereupon a 
 second most able and exhaustive opinion by Lewis, C. J,, was 
 
 1 7 Ne V. 249. 2 Pope v. Kinman, 54 Cal. 3. 
 
 (202)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 119 
 
 delivered, from which I shall quote several passages that seem 
 to bear upon the general questions under discussion. This 
 opinion opens with some preliminary observations which are 
 peculiarly appropriate and instructive, (pages 257, 258:) "We 
 are unable to understand from the petition what exact condi- 
 tion is assigned to running water in the catalogue of rights or 
 property; or what the nature of the title which may be acquired 
 to it, if any. Much thereof is devoted to showing that there 
 can be no property in running water; that it is, and must of 
 necessity remain, common to all; that it is a thing 'the prop- 
 erty of which belpngs to no person, but the use to all;' and in 
 the same sentence it is said that it ' is publici juris, res communis^ 
 and honum vacuus.'' This abandon in the use of legal expres- 
 sions is evidently the result of a radical misunderstanding of 
 the signification which is given to them in the books of law. 
 True, it is often said that water is 'pvhlici juris, or belongs to 
 those things which are res communes; but how it can be either 
 publici juris or res communis and also bonum vacans is a problem 
 not yet solved in the science of the law. If common property, 
 or, as argued by counsel, something in which no one has an ab- 
 solute property, but every one has the use, the right to the use 
 must then certainly be in the community; but bonum vacans is 
 a thing without an owner of any kind, and which belongs ab- 
 solutely to the person who may first find or appropriate it, and 
 he has the complete right of property in it as against the world. 
 It is a flat contradiction, in terms, to say that running water is- 
 at the same time common property and bonum vacans. But we 
 have the word of Lord Denman in Mason v. Hill,' and of Baron 
 Parke in Embrey v. Owen's Ex'rs,^ that it was never consid- 
 ered bonum vacans. Nor are these contradictions confined sim- 
 ply to legal terms. The argument proceeds upon the assump- 
 
 15 Barn & Adol. 23. 25 Exch. 353. 
 
 (203)
 
 §119 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 tion that running water belongs to the community generally, 
 and authorities are cited which are supposed to sustain that doc- 
 trine, as tlic quotation from Blackstone, who says, ' water flow- 
 ing is publici juris. By the Roman law, water, light, and air 
 were res communes, and which were defined things, the property 
 of which belongs to no person, but the use to all.' Yet, after 
 arguing to show that water is common property, it is also 
 claimeil that a stream may be absolutely appropriated by the 
 first person who may wish to u«;e it. In other words, that wa- 
 ter, instead of being something which belongs to all in com- 
 mon, as is argued at first, is a thing which belongs absolutely 
 to him who first api)ropriated it, to the extent even that, if it 
 be necessary for the purpose for w^hich the appropriation is 
 made, it may be completely consumed. Surely, the two prop- 
 ositions are as irreconcilably contradictory as any that can be 
 named. As an illustration, it is argued that running water is 
 like the air, to which certainly all have an equal right, and with 
 which no one has the right to interfere to the injury of another. 
 But in tliis case the right is claimed Ijy Van Sickle to deprive 
 the appellant of the stream, which in the ordinary course of 
 things he would be enabled to enjoy, and to appropriate it ex- 
 clusively to himself. If running water be like the air, then 
 surely no one has the right to interfere with it in its natural 
 state to the prejudice of others. When positions so utterly con- 
 tradictory are assumed, the real questions in the case are likely 
 to be involved and obscured, rather than elucidated." The fol- 
 lowing observations concerning the influence which the "pulilic 
 interests" should have upon the decisions of cases involving pri- 
 vate rights, are of weighty importance in this community as 
 well as in Nevada and every other state. While courts most 
 certainly have a legislative function, since the great body of 
 connnon law and of equity has been built up by courts, it should 
 never l)e forgotten that courts do not rightfully possess the 
 (204)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 119 
 
 power of legislating //WH motives 'of mere policy or expediency. The 
 duty of courts is to declare and protect private rights of suitors 
 by applying or extending some established principle or doctrine 
 to new conditions of facts. The court say, (})age 259:) "Be- 
 fore proceeding to an investigation of the legal questions really 
 involved in the case, we may state, once for all, that, the fact 
 that the case is of great interest to the public, whose rights, it 
 is claimed, 'are seriously disturbed by the decision,' is a con- 
 sideration which, in very doubtful cases, may, and perhaps 
 should, have some weight with judicial tribunals. But that 
 the interests of the public should receive a more favorable con- 
 sideration than those of any individual, or that the legal rights 
 of the humblest person in the state sliould be sacrificed to the 
 weal of the man}', is a doctrine which, it is to be hoped, will 
 never receive sanction from the tribunals of this country. The 
 public is in nothing more interested than in scrupulously pro- 
 tecting each individual citizen in every right guarantied to him 
 by the law, and in sacrificing none, not even the most trivial, 
 to further its own interests. Every individual has the right, 
 equally with the public at large, to claim a fair, impartial con- 
 sideration of his case; for the rights of the public are no more 
 sacred, or entitled to greater protection in law, than those of the 
 individual; and therefore, in actions between individuals, the 
 consideration of public interest has weight only when there is 
 grave doubt as to where the right lies. This doctrine which 
 would justify the courts in depriving a person of a civil right 
 to-day for the public good, might to-morrow force them to sac- 
 rifice his life to the clamor of a mob; which would deprive 
 Haines of his property at one time, might operate against Van 
 Sickle at another. As in tliis case we have no doubt whatever 
 as to what should be our conclusion, the fact that it may inju- 
 riously affect the public can have no weight in its consideration. 
 Happily, however, we do not think the decision, if properly un- 
 
 (205)
 
 § 119 RULE IN CALIFORXIA AND NEVADA. [Ch. 7. 
 
 (.Icrstood, will produce the general disastrous results appre- 
 hended by counsel." Coming to the merits of the case, the 
 learned chief justice states the material questions to be consid- 
 ered and determined, (page 260:) "As the appellant claims the 
 water of Daggett creek as an incident to the land patented to 
 him by the United States, and as it is admitted that he could 
 get only such title and right as was vested in the United States 
 itself, it becomes necessary to ascertain what is the nature of 
 the rights of the federal government to the public land, and we 
 purpose to show (1) that the United States has the absolute 
 and perfect title; (2) that running w^ater is primarily an inci- 
 dent to or part of the soil over which it naturally flows; (3) that 
 the right of the riparian proprietor does not depend upon the 
 appropriation of the water by him to any special purpose, but 
 that it is a right incident to his ownership in the land to have 
 the water flow in its natural course and condition, subject only 
 to those changes which may be occasioned by such use by the 
 proprietors above him as the law permits them to make of it; 
 (4) that the government patent conveyed to Haines not only the 
 land, but the stream naturally flowing through it; (5) that the 
 common law is the law of this state, and must prevail in all 
 cases where the right to water is based upon the absolute own- 
 ership of the soil." The chief justice follows this statement by 
 an elaborate argument and citation of authorities showing that 
 the United States has the absolute title in fee-simple in all the 
 public lands, to the same extent and in like manner as any pri- 
 vate owner has; and that this title includes all the incidents and 
 power of absolute private ownership, (pages 261-264.) As the 
 correctness of these conclusions is undoubted, it is unnecessary 
 to quote this portion of the opinion. He then proceeds to con- 
 sider the right to water as an incident of ownership, (page 264:) 
 "Being absolute owner of the soil, the source of all title thereto, 
 and entitled to all the remedies for its protection and preserva- 
 (206)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 119 
 
 tion which are given to any individual owner, it certainly can- 
 not be maintained that the United States is not equally enti- 
 tled to everything which is naturally such an inseparable inci- 
 dent to the land that it is frequently spoken of as a part of the 
 soil itself. Such an incident is a natural water-course. It 
 passes by deed of the soil without any mention, and forms as 
 marked a feature of the land through which it passes as the trees 
 upon it or the vegatation which it nourishes. Nothing more 
 readily recommends itself to the understanding than that an 
 clement which the laws of nature have connected with the free- 
 hold, and which, without any effort on the part of man, clothes 
 it with refreshing verdure, — when without it there must be 
 only forbidding nakedness; creating fertility and productiveness 
 where otherwise tliere would be only sterility; at once adminis- 
 tering pleasure and affording profit, — is necessarily a part of or 
 incident to his land. This is the natural effect of running wa- 
 ter, independent of an}'- use which may be made of it in admin- 
 istering to the immediate wants of man and beast. How fre- 
 quent is it that small streams of water are found to add im- 
 measurably to the value of estates, even where no particular use 
 is made or intended to be made of them. It is very seldom, in- 
 deed, that they do not to some extent enhance the value of real 
 property, and they are frequently esteemed invaluable. * * * 
 How can it be said, then, that a water-course is not essentially 
 a part of the freehold itself. That it is so, the authorities 
 bear abundant witness. We do not wish to be understood as 
 saying that there is such an absolute property in the water that 
 the whole stream may be destroyed by a riparian proprietor, so 
 that others below him will be deprived of it; but that it is an 
 incident of his land to the extent that he has the right to have 
 it continue to flow in its natural course, subject to such changes 
 only as may be occasioned by such use of it as the law allows 
 the various proprietors to make, as it passes along, and which 
 
 (207)
 
 § 119 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 will be hereafter more fully explained. In this sense only is 
 the right to be understood, when spoken of in the authorities 
 about to be quoted." Tiie opinion then quotes numerous au- 
 thorities, and it may not be inappropriate to copy those which 
 are cited from Ai'nerican decisions. 
 
 After (]Uoting the general definitions given by Lord Coke and 
 by Mr. Angell, the chief justice proceeds, (page 266:) "The su- 
 preme court of Ohio says:* 'The uses of the waters of private 
 streams belong to the owners of the land over which they flow. 
 They are as nmch 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 Qbbs 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 tlie 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- 
 
 ^ Buckingham v. Smith, 10 Ohio, ^js Conn. 373. 
 
 297. 5 Elliot V. Fitchburg R. R., !(> 
 
 2 Gardner v. Village of New- Cush. 19.3. 
 
 burgh, 2 .Johns. Ch. 166. « Johnson v. Jordan, 3 Mete. 239. 
 
 3 6 Cow. .543. 
 
 (208)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 119 
 
 tenance, but as jjarcel. 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 publici juris, but that common to the 
 proprietors of the land on the stream. And, as between them, 
 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 himself 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 riparian 
 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 
 
 iPugh V. Wheeler, 2 Dev. & B. 55. 
 2 Davis V. Fuller, 13 Vt. 178. 
 poM.Rip.— 14 (209)
 
 § 119 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 person owning the 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 : tliat 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 
 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 imjiarts 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 solebatf 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 
 (210)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 119 
 
 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 sirring, 
 which is not yet used, may be abstracted from it, and that the 
 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 
 
 iPhear, Water-Courses, 31. 
 'Mason v. Hill, 5 Barn & Adol. 11. 
 
 (211)
 
 § 119 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 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 advantageSy 
 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 
 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 Ellenborough 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 riglit 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 
 
 1 Sampson V. Hoddinott. 1 C. B. ^EHJot y_ Fitchburg R. R., 10 
 (N. S.)611. Cush. 191. 
 
 *Bealey v. Shaw, 6 East. 208. *Pugh. v. Wheeler, 3 Dev. & B. 
 
 60. 
 
 (212)
 
 Ch. 7.] RULE IX CALIFORNIA AND NEVADA. § 119 
 
 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 
 several and exclusive right, by use or any other means; but 
 with smaller streams it is otherwise. They may still be publici 
 juris, so far as to allow all persons to drink the water and the 
 like, and also so far as to prevent a person to whose land it 
 ■comes from thus consuming it entirely by applying it to other 
 purposes than those for which it is conceded to every one, 
 ad lavnndum et potandum, as to divert or corrupt it.' And the 
 supreme court of New York says: ^ 'A person through whose 
 farm a stream naturally flows is entitled to have it pass through 
 his land, although he ma}^ not require the whole or any part 
 of it for the use of machinery. Upon any other principle this 
 right to the stream, which is as perfect and indefeasible as the 
 right to the soil, would always depend upon the use, and a party 
 who did not occupy the whole for special purposes would be 
 ■exposed to have the same diverted by his neighbor above him 
 without remedy, and which diversion by twenty years' enjoy- 
 ment would ripen into a prescriptive right beyond his control, 
 and thereby defeat any subsequent use.' Such is the invariable 
 rule, iterated and reiterated through all the books, and of which 
 there seems to be no denial. These cases show that the owner 
 of soil can insist upon having the stream continue to run through 
 his land as it was wont, independent of any special use of it. 
 
 iCrooker v. Bragg, 10 Wend. 260. See, also. Corning v. Troy Iron & 
 Nail Factory, 40 N. Y. 191. 
 
 (213)
 
 § 119 RUI.E IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 The fact, as stated by Chief Justice RufTin, tliat he is necessarily 
 and at all times using the water running through his land, in 
 so far at least as the water imparts fertility to the soil and en- 
 hances its value, is a sufficient user to entitle him to claim that 
 he shall not be deprived of it." 
 
 The learned judge then proceeds to discuss at length the effect 
 of certain territorial legislation, but this portion of his opinion 
 I omit, since it has no bearing upon any general questions. The 
 conclusion of his opinion touches upon a subject of great inter- 
 est in the state of California, and I shall therefore quote it at 
 length, (pages 284-287:) "It is said that the rule which is 
 adopted in this case may be the rule of the common law, but 
 that it is not applicable to our situation, and therefore should 
 not be followed. We have shown that a stream is an incident 
 of the land through which it naturally flows; that it is, in fact, a 
 part of the soil itself; that the right to have it continue to flow is 
 as sacred a right as that to the soil itself; that, being so an incident 
 of the land, it necessarily passes by conveyance of the land. Such 
 being the law, we are unable to understand how or by what au- 
 thority this court can say the patent of the United States does not 
 convey as complete and perfect a title to its patentee in the state 
 of Nevada as it does elsewhere. There is no rule within our 
 knowledge which would justify a court, independent of any com- 
 mon-law principle, in holding that the appellant Haines should 
 not have the benefits of a stream of water which the paramount 
 proprietor of the soil grants to him by its letters patent. It might 
 as well be said that the courts can deprive him of the land it- 
 self by holding that it did not pass by the patent, as to rule sa 
 respecting that which is universally admitted and held to bean 
 inseparable and valuable incident to it. But perhaps it is an un- 
 warranted conclusion drawn from our opinion in this case, 
 namely, that the water of a stream could not be used by the ri- 
 parian proprietor for irrigation, which is thought to be inappli- 
 (2U;
 
 Ch. 7.] RULE IN CALIFORXIA AND NEVADA. § 119 
 
 cable to the condition of things in this state. To this it may be 
 answered — First, that no such decision has been made, nor has 
 anything of the kind been intimated; second, whatever the com- 
 mon-law rule may be, whether applicable or not, it is made the 
 law of this state, and is as binding on us as is any statute ever 
 adopted by the legislature; and therefore we have no more 
 power to annul or repudiate it than we have to disregard a leg- 
 islative act. The first legislature of the territory of Nevada (see 
 St. 1861, p. 1) declared that 'the common law of England, so 
 far as it is not repugnant to or inconsistent with the constitu- 
 tion or laws of the United States, or the laws of the territory of 
 Nevada, shall be the rule of decision in all courts of this terri- 
 tory.' Our state constitution adopted this by section 2 of the 
 schedule. Hence, although the common law might, in the 
 opinion of judges, be inapplicable, still, if not in conflict with 
 the constitution or laws of the United States, or the constitution 
 or laws of Nevada, it must nevertheless be enforced. But sup- 
 pose that decision should necessitate the adoption of the com- 
 mon law respecting the manner in which running water may be 
 used by those having the right to it; although it may operate 
 unjustly in some cases, still, as a general rule, none more jxist and 
 reasonable can he adopted for this state. It is a rule which gives 
 the greatest right to the greatest number, authorizing each to 
 make a reasonable use of it, providing he does no injury to the 
 others equally entitled to it with himself; while the rule of prior 
 appropriation would authorize the first person who might choose 
 to make use of or divert a stream, to use or even waste the 
 whole, to the utter ruin of others who might wish it. The 
 common law does not, as seems to be claimed, deprive all of the 
 right to use, but, on the contrary, allows all riparian proprie- 
 tors to use it in any manner not incompatible with the rights of 
 others. When it is said that a proprietor has the right to have a 
 stream continue through his land, it is not intended to be said 
 
 (215)
 
 §119 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 that he has the right to all the water, for that would render the 
 Btream which belongs to all the proprietors of no use to any. 
 What is meant is that no one can absolutely divert the whole 
 stream, but must use it in such a manner as not to injure those be- 
 low him. As the right is equal in each owner of the land, be- 
 cause naturally each owner can equally enjoy it, so one must exer- 
 cise that right in himself without disturbing any other above or 
 below in his natural advantages. Chief Justice Shaw says:^ ' The 
 right of flowing water is now well settled to be a right incident 
 to property in the land; it is a right 'puhlici juris, of such a char- 
 acter that while it is common and equal to all through whose land 
 it runs, and no one can obstruct or divert it, yet, as one of the 
 beneficial gifts of Providence, each proprietor has a right to a 
 just and reasonable use of it as it passes through his land; and 
 so long as it is not wholly obstructed or diverted, or no larger 
 appropriation of the water running through it is made than a 
 just and reasonable use, it cannot be said to be wrongful or in- 
 jurious to a proprietor lower down, whose said just and reason- 
 able use may often be a difficult question, dei^ending on various 
 circumstances. * * * Ji h^s sometimes been made a ques- 
 tion whether a rii^arian proprietor can divert water from a run- 
 ning stream for purposes of irrigation. But that we think an 
 abstract question, which cannot be answered either in the af- 
 firmative 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 proprietor of the soil along or through which it passes. 
 Yet a proprietor cannot, under color of that right, or for the act- 
 ual purpose of irrigating his own land, wholly obstruct or di- 
 vert the water-course, or take such an unreasonable quantity of 
 water, or make such unreasonable use of it, as to deprive other 
 proprietors of the substantial benefits which they might derive 
 
 1 Elliot V. Fitchburg R. R., 10 Cush. 193. 
 (216)
 
 Ch. 7.] RULE IN CALIFOENIA AND NEVADA. § 120 
 
 from it if not diverted or used unreasonably.' This is the doc- 
 trine uniformly recognized both in England and in the United 
 •States, and is the necessary result of the general principles uni- 
 versally recognized respecting running water. Whether the right 
 to irrigate land can in this state be considered a 'natural want,' 
 is a point in nowise involved in this case, and which, therefore, 
 does not call for decision." In conclusion, the learned judge 
 shows that the early decisions in Nevada and a series of cases in 
 California liave no bearing whatever upon the questions con- 
 cerning riparian rights, since they related exclusively to the ap- 
 propriation of water of streams wholly public, by parties who 
 "were not riparian proprietors. It has already been shown that 
 the California courts make the same distinction. As throwing 
 light upon the discussion, and as supporting his positions, the 
 chief justice cites a long list of cases, which for purposes of ref- 
 erence I have thought proper to place in the foot-note.^ 
 
 § 120. Modifications on doctrine of Van Sickle v. 
 Haines. 
 
 The decision in Van Sickle v. Haines is subject to some mod- 
 ification, in respect to one of its conclusions, by the legislation 
 of congress. The court expressly held that a patent granted by 
 the United States to a private person, conveying the full legal 
 title to a tract of what had been public land situated on the 
 
 1 Mason v. Hill, 3 Barn. & Adol. Manuf g Co., 30 K H. 478; Ingra- 
 
 S05; 5 Barn. &, Adol. 1; Sampson ham v. Hutchinson, 2 Conn. 584; 
 
 V. Hoddinott, 1 C. B. (N. S.) 611; Parker v. Holchkiss, 25 Conn. 321; 
 
 Embre}^ v. Owen, 6 Exch. 353; Wadsworth v. Tillotson, 15 Conn. 
 
 Wright V. Howard, 1 Sim. & S. 366; King v. Tiffany, 9 Conn. 162; 
 
 190; Davis v. Getchell, 50 Me. 602; Elliot v. Fitchburg R. R., 10 Cush. 
 
 Heath v. Williams, 25 Me. 209; Lick 191 ; Tyler v. Wilkinson, 4 Mason, 
 
 V. Madden, 25 Cal. 209; Blanchard 397; Webb v. Portland Manuf g 
 
 V. Baker, 8 Greenl. 253; Davis v. Co., 3 Sum. 189; Gardner v. Village 
 
 Fuller, 12 Vt. 178; Snow V. Parsons, of Newburgh, 2 Johns. Ch. 163; Ex 
 
 28 Vt. 459; Tillotson v. Smith, 32 parte Jennings, 6 Cow. 518; Canal 
 
 N. H. 90; Gerrish v. New Market Appraisers v. People, 17 Wend. 
 
 (217)
 
 § 120 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 bank of a stream, although all the rest of the land on its banks 
 was still public, ipso facto, and necessarily, so far as the pat- 
 entee's riparian rights to the stream were concerned, cut off and 
 annulled all rights to use_ the waters of the same stream as a 
 public stream acquired by prior appropriation, and held by 
 parties who were not private riparian proprietors. The reasons 
 for the conclusion were that the appropriation of the waters of 
 streams running over the public lands was wholly permissive; 
 the right of the appropriator could never become complete 
 against the United States by adverse use, but it was a new 
 license or privilege, subject to be revoked and abrogated at any 
 time by the United States; and that a patent, by which the 
 full legal title of the United States, with all of its incidents, was 
 conveyed to the patentee, necessarily clothed such patentee with 
 all rights over the land which had belonged to the United States, 
 and conveyed to him the land entirely free from all claims to the 
 water of the stream growing out of the prior appropriation and 
 uses. On principle, and in the absence of contrary legislation, 
 the correctness of this ruling cannot be doubted. It has, how- 
 ever, been modified within certain limits by a statute of con- 
 gress referred to twice in a previous chapter. This statute pro- 
 vides, in substance, that the waters of public streams may be 
 appropriated, under local customs and laws, for various pur- 
 poses connected with mining; and that, when such appropria- 
 tions have been made from the waters of a public stream, pat- 
 ents subsequently issued by the United States to private persons 
 shall be subject to the rights of the appropriator, and conditions 
 
 570; 5 Wend. 423; Rogers V.Jones, 486; 40 N. Y. 204; Campbell v. 
 
 1 Wend. 237; People v. Canal Ap- Smith, 3 Halst. 140; Plumleigh v. 
 
 praisers, 13 Wend. 355; Crooker v. Dawson, 1 Oilman, 544; Pugh v. 
 
 Bragg, 10 Wend. 260; Arnold v. Wheeler, 2 Dev. & B. 50; Board of 
 
 Foot,12 Wend. 330; Commissioners Trustees v. Haven, 11 111. 554; Mof- 
 
 V. Kempshall, 26 Wend. 404; Corn- fett v. Brewer, 1 Greene, (Iowa,) 
 
 ing V. Troy Iron-Works, 34 Barb. 348. 
 (218)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 121 
 
 reserving or protecting such existing rights shall be incorporated 
 into the patent.' The result is that when the waters of a stream 
 flowing wholly over the public land have been appropriated for 
 a purpose recognized and protected by the statutes of congress, 
 and a patent is subsequently issued by the United States to a 
 private person conveying the title to a tract of land on the banks- 
 of the same stream, the patentee takes his title, and must enjoy 
 his rights as a riparian proprietor subject and subordinate to the 
 already existing rights of the prior and actual appropriator. On 
 the other hand, whenever the waters of a stream, flowing wholly 
 over the public land, have not been appropriated at all for any 
 purpose, or whenever they have been appropriated for a pur- 
 pose not recognized and protected by the congressional legisla- 
 tion, and a patent is issued by the United States to a private 
 person conveying a tract of land on the banks of the same 
 stream, in either case the patentee obtains, as incidents of his 
 title, the full and complete rights of a private riparian proprietor 
 on the stream. His title to the extent of his right as riparian 
 proprietor is paramount to any subsequent appropriation from 
 the stream as a public stream; and his rights in the stream are a& 
 perfect and complete when he is the sole private proprietor on 
 its banks as when all the lands on its banks are held by private 
 owners. 
 
 § 121. Legitimate riparian uses. 
 
 Assuming, as has been shown, that the "riparian rights" of 
 private "riparian proprietors" on natural running streams in 
 this state of California are expressly excepted from the opera- 
 tion of the title concerning water-rights in the Civil Code, are 
 wholly untouched by its provisions, and are left existing in 
 every respect as though it had not been enacted, we are now in 
 a position to ascertain, with more certainty and definiteness, 
 
 iRev. St. U. S. § 2338. 
 
 (219)
 
 §123 RULE IN CALIFORNIA AND NEVADA. [Cll. 7. 
 
 the nature and extent of these rights, and what uses of the 
 waters they confer upon or withhold from the "riparian propri- 
 etor." 
 
 § 122. California decisions. 
 
 The series of decisions heretofore cited show most conclusively 
 that all of the fundamental common-law doctrines concerning 
 the riparian rights of private riparian proprietors, which were 
 so fully and ably expounded in the Nevada case, have been 
 adopted by the California court, and recognized as forming a 
 part of the California law. While the reasons for these doc- 
 trines have not been explained at such length in the California 
 cases, and while the authorities upon which they rest have not 
 been so exhaustively quoted, yet, upon a comparison of the va- 
 rious decisions, it will appear, beyond a possibility of a doubt, 
 that all of the essential and important doctrines of the common 
 law, as discussed and formulated by the Nevada court in the 
 case of Van Sickle v. Haines, have been accepted and affirmed 
 by the supreme court of California in repeated decisions. To 
 present this conclusion in the clearest light, I give, even at the 
 expense of repeating what has already been said, a brief sum- 
 mary of those decisions. 
 
 § 123. Natural uses. 
 
 It is held that the right of the private riparian proprietor is 
 an incident of his ownership of land on the bank of the stream, 
 and exists as a necessary consequence of such ownership, and 
 does not in the slightest depend upon the fact of an actual ap- 
 propriation of the water having been made by himself or by any 
 other riparian proprietor on the same stream.^ The right to the 
 water is not an absolute property in all the water, authorizing 
 
 iPope T. Kinman, 54 Cal. 3; Creightou v. Evans, 53 Cal. 55; Ferrea v. 
 Knipe, 28 Cal. 341. 
 
 (220)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 124 
 
 any riparian j^roprietor to consume it entirely; it is a right that 
 the stream should continue to flow along in its natural channel 
 as it has been accustomed to flow, and give the riparian propri- 
 etor the usufruct of the water as it passes along his land border- 
 ing on the stream; and this right belongs equally to all the pri- 
 vate proprietors on the banks of the same stream, subject only 
 to the advantage which position gives to those higher up the 
 stream over proj)rietors lower down.^ The law recognizes cer- 
 tain natural uses which are paramount to all others, and these 
 include the use of water for household and domestic purposes, 
 washing, drinking, cooking, etc., and its uses for watering stock. 
 It may be doubted whether these "natural uses" embrace any- 
 thing more than these two purposes. From these paramount 
 natural uses originates the only advantage which the common 
 law gives to one riparian proprietor over another or others on 
 account of his relatively superior position. A proprietor higher 
 up on the stream may use as much of the water as is reason- 
 ably necessary for his own domestic and household purposes, 
 and for the watering of his own stock, even though the amount 
 left flowing down the stream is thereby so much diminished 
 that there is not enough left to supply the needs of the lower 
 proprietor or proprietors for the same purposes. But the use 
 for these purposes by a proprietor higher up the stream must 
 be reasonable in amount, and reasonable in its methods and in- 
 strumentalities.^ 
 
 § 124. Secondary uses. 
 
 In addition to these natural and paramount uses, which nec- 
 essarily consume the portion of water used, each riparian pro- 
 prietor, by virtue of his usufruct, may use the water of the stream, 
 
 lid. 543; Stein v. Burden, 29 Ala. 137; 
 
 2Id. See Ferrea V. Knipe, supra. Shook v. Colohan, 12 Or. 239, s. c. 
 And see Slack v. Marsh, 11 Phila. 6 Pac. Rep. 503. 
 
 (221)
 
 § 125 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 as it passes along by or through his land, for any other lawful 
 purpose, provided he returns all of the water, undiminished in 
 amount and undeteriorated in quality, into the natural chan- 
 nel of the stream before it leaves his own land and enters upon 
 that of the adjacent proprietor below him, and provided, also, 
 he does not thereby interfere with the similar and equal right 
 of the proprietor upon the immediately opposite bank of the 
 stream, where his own land abuts upon only one bank, — that is, 
 when the stream does not flow through his own land. In this 
 manner any riparian owner may use the water of a stream for 
 propelling macliinery on his own land, provided he returns all 
 the water into the natural channel before it leaves his own land, 
 and does not impair its quality; and to this end he may con- 
 struct a dam in the stream upon his own land, provided he 
 does not interfere with the land of proprietors above him by the 
 backwater, and does not invade the rights of a proprietor im- 
 mediately opposite to himself on the other bank of the stream. 
 These rights are conferred by the common law upon all of the 
 proprietors owning lands upon the same stream. Any propri- 
 etor may, of course, obtain more extensive rights by grant from 
 others, or by prescription. How far the right of the riparian 
 proprietor includes the right to use and consume the water for 
 purposes of irrigation, remains to be considered. 
 
 § 126. Reasonable riparian use. 
 
 [The rule that every riparian proi:)rietor has an equal right to 
 the use of the water as it is accustomed to flow, without diminu- 
 tion or alteration, is subject to a well-recognized limitation, viz., 
 that each owner may make a reasonable use of the water for do- 
 mestic, agricultural, and manufacturing purposes.^ But here 
 
 lEmbrey v. Owen, 6 Exch. 352; 4 Mason, 397; Union Mill Co. v. 
 
 Nuttall V. Bracewell,,L. R. 2 Exch. Ferris, 2 Sawy. 176; Gerrish v. 
 
 1; Miner v. Gilmour, 12 Moore, P. New Market Manuf g Co., 30 N. H. 
 
 C. 131, 156; Tyler v. Wilkinson, 478; Tillotsou v. Smith, 32 N. H. 
 
 (222)
 
 Ch. 7.] 
 
 EULE IN CALIFORNIA AND NEVADA. 
 
 § 125 
 
 it is necessary to note an important distinction between primary 
 and secondary, or natural and artificial, wants; for, to supply 
 his natural wants, as for household purposes, for quenching 
 thirst, and for his cattle, a riparian proprietor may consume the 
 entire stream if necessary; but for artificial wants, as for irrigat- 
 ing his land or propelling his machinery, he is only entitled to 
 a reasonable use.^ 
 
 90; Norwaj'^ Plains Co. v, Brad- 
 ley, 52 N. H. 86; Holden v. Lake 
 Co.,53N.H. 552; Snow v. Parsons, 
 
 28 Vt. 459; Barrett v. Parsons, 10 
 Cush. 367; Elliot v. Fitchburg R. 
 R., Id. 191; Gary V.Daniels, 8 Mete. 
 466; Pitts v. Lancaster Mills, 13 
 Mete. 156; Thurber v. Martin, 2 
 Gray, 394; Tourtellot v. Phelps, 4 
 Gray, 370; Chandler v. Rowland, 
 7 Gray, 348; Wood v. Edes, 2 Al- 
 len, 578; Twiss v. Baldwin, 9 Conn. 
 291; Wadsworth v. Tillotson, 15 
 Conn. 3(56; Agawam Canal Co. v. 
 Edwards, 36 Conn. 476; Merritt v. 
 Brinkerhoff, 17 Johns. 306; Clin- 
 ton V. Myers, 46 N. Y. 511; Ac- 
 quackanonk Water Co. v. Watson, 
 
 29 N. J. Eq. 366; Farrell v. Rich- 
 ards, 30 N. J. Eq. 511; Williamson 
 V. Canal Co., 78 N. C. 156; McElroy 
 V. Goble, 6 Ohio St. 187; State v. 
 Pottmeyer, 33 Ind. 402; Evans v. 
 Merriweather, 3 Scam. 492; Plum- 
 leigh V. Dawson, 1 Gilman, 544; 
 Batavia Manuf'g Co. v. Newton 
 Wagon Co., 91 111. 230; Dumont v. 
 Kellogg, 29 Mich. 420; Hazeltine 
 V. Case, 46 Wis. 391, s. c. 1 N. W. 
 Rep. 66; Swift v. Goodrich, 11 
 Pac. Rep. 561; 3 Kent, Comm. *440; 
 Ang. Water-Courses, § 95; Washb. 
 Easem.*216; Gould, Waters, § 205. 
 
 In 2 Washb. Real Prop. (4th Ed.) 
 348, it is said: "There are sundry 
 uses which each successive owner 
 along the stream may exercise. 
 
 though by so doing he impairs to 
 some extent the enjoyment by oth- 
 ers of the full flow of the water, 
 provided it be done in a reasonable 
 manner, and not so as thereby to 
 destroy or materially diminish the 
 supply of the water, or render use- 
 less its application by the other ri- 
 parian proprietors, either by the 
 quantity consumed or by corrupt- 
 ing its quality, by throwing it back 
 upon the lands of others above, or 
 diverting and stopping its flow so 
 as to affect such lands below his 
 own premises. Each case must 
 depend upon its own circumstan- 
 ces; but among the uses to which 
 a riparian proprietor may be said 
 to have a natural right to apply 
 the waters of a stream, to the ex- 
 tent already indicated, are such 
 agricultural and domestic pur- 
 poses as irrigating his land, water- 
 ing his cattle, and the like;" citing 
 Mason v. Hill, 5 Barn. & Adol. 1 
 Wood v. Waud. 3 Exch. 748, 775 
 Embrey v. Owen, 6 Exch. 353 
 Webb v. Portland Co., 3 Sum. 189 
 Sampson v. Hoddinott, 1 C. B, (N. 
 S.) 590. 
 
 1 Evans v. Merriweather, 3 Scam. 
 492; Stein v. Burden, 29 Ala. 127; 
 Slack V. Marsh, 11 Phila. 543; Ba- 
 ker V. Brown, 55 Tex. 377; Rhodes 
 V. Whitehead, 27 Tex. 314; Flem- 
 ing V. Davis, 37 Tex. 173. 
 
 (223)
 
 § 125 RULE IN CALIFORNIA AND NEVADA. [Ch. ?► 
 
 The question, what is a reasonable use? depends upon a number 
 of circumstances; upon the subject-matter of the use itself, the 
 size of the stream, the velocity of the current, the nature of the 
 banks, the diameter of the soil, and a variety of other facts.* 
 "What constitutes reasonable use," says the court in Wisconsin, 
 "depends upon the circumstances of each particular case; and 
 no positive rule of law can be laid down to define and regulate 
 such use with entire precision, is the language of all the author- 
 ities upon the subject. In determining this question, regard 
 must be had to the subject-matter of the use, the occasion and 
 manner of its application, its object, extent, and the necessity 
 for it, to the previous usage, and to the nature and condition of 
 the improvements upon the stream: and so, also, the size of the 
 stream, the fall of water, its volume, velocity, and prospective 
 rise and fall, are important elements to be considered.''^ And 
 the question of the reasonableness of the use of a stream, whea 
 it is not settled by custom and is in its nature doubtful, should 
 always be regarded as one of fact, to be determined by the tri- 
 bunal trying the facts. ^ We may add that the mode and extent 
 to which a riparian owner may use and apply the waters of a 
 stream, as between him and another riparian proprietor, is not 
 measured by what would be reasonably requisite for his partic- 
 ular business, but what is reasonable, having reference to the 
 rights of tlie other proprietors in the stream, without, by such 
 use, materially diminishing its quantity or deteriorating its qual- 
 ity.* And even where a party has a right to the use of a water- 
 course according to his convenience and judgment, and all the 
 
 1 Union Mills Co. v. Ferris, 2 ^gnow v. Parsons, 28 Vt. 459. 
 
 Sawy. 176; Dilling v. Murray, 6 ^BataviaManuf gCo. v. Newton 
 
 Ind. 324; Mayor of Baltimore v. Wagon Co., 91 111. 246; Union Mill 
 
 Appold,42Md.442; Elliot v. Fitch- & M. Co. v. Ferris, 2 Sawy. 196; 
 
 burg R. R., 10 Cush. 191; Thurber Wheatley v. Chrisman, 24 Pa. St. 
 
 V. Martin, 2 Gray, 394; Timm v. 298; Pennsylvania R. R. v. Miller, 
 
 Bear, 29 Wis. 254. 112 Pa. St. 34, s. c. 3 Atl. Rep. 780. 
 
 2 Timm v. Bear, 29 Wis. 254. 
 
 (224)
 
 Ch. 7.] RULE IN CALIFORNIA AND NEVADA. § 126 
 
 right which prescription can confer, still he can exercise that 
 right only in a reasonable manner; and therefore if he uses the 
 water not for his own benefit and convenience, but maliciously 
 or wantonly, to the prejudice of another, he is liable in dam- 
 ages.^ Finally, it is only between riparian proprietors that the 
 question as to the reasonable use of the water can ever arise. ^] 
 
 § 126. Reasonable use for manufactures. 
 
 [In regard to the use of the water for mechanical or manufact- 
 uring purposes, the rule is thus stated: "Each proprietor of 
 land through which a natural water-course flows has a right, as 
 owner of such land, and as inseparably connected with and in- 
 cident to it, to the natural flow of the stream, for any hydraulic 
 purpose to which he may think fit to apply it; and it is a nec- 
 essary consequence from this principle that such proprietor can- 
 not be held responsible for any injurious consequences which 
 result to others, if the water is used in a reasonable manner, and 
 the quantity used is limited by, and does not exceed, what is 
 reasonably and necessarily required for the operation and pro- 
 pulsion of works of such character and magnitude as are adapted 
 and appropriate to the size and capacity of the stream, and the 
 quantity of water usually flowing therein."^ But as a ripariaa 
 owner cannot, by prior appropriation, acquire the right to di- 
 vert the water-course as against a lower proprietor, so he cannot 
 by such priority acquire a right to consume the entire stream 
 
 ^Twiss V. Baldwin, 9 Conn. 291. etor, for manufacturing purposes, 
 
 2 Lux V. Haggin, (Cal.) 4 Pac. without restoring to the channel 
 
 Rep. 925. the excess of water not actually 
 
 ^Springfield v. Harris, 4 Allen, consumed, is an unreasonable ex- 
 
 494, Merricli, J. And see Davis v. ercise of the right to use the water 
 
 Getchell, 50 Me. 602. But the di- of the stream. Weiss v. Oregom 
 
 version of a water-course, or a part Iron & Steel Co., 13 Or. 496, s. a 
 
 of it, by an upper riparian propri- 11 Pac. Rep. 255. 
 
 POM.RIP. — 15 (225)
 
 §127 RULE IN CALIFORNIA AND NEVADA. [Ch. 7. 
 
 for mechanical purposes, as by converting it into steam. ^ The 
 question whether the use of a stream to carry ofi' nianufocturer's 
 waste is reasonable or not, is one of fact for the jury, depending 
 upon the circumstances of the case, such as the size and char- 
 acter of the stream, the purpose of its use, the benetit to the 
 manufacturer, and the injury to the other riparian owners.^] 
 
 § 127. Manner of use must be reasonable. 
 
 [The maxim, sic utere tuo ut aHenum non laedas. emphatically 
 applies to riparian proprietors.^ For example, a riparian pro- 
 prietor, in using the water of a stream for domestic purposes and 
 watering cattle, has no right to so dam it up as to spread it over 
 a large surface, whereby it becomes lost by evaporation and ab- 
 sorption to an extent to prevent the stream from flowing through 
 the land of the next proprietor, as it would do but for such 
 dam.* But a riparian owner may dam the stream in order to 
 make a pond for ice, and he may drain such pond, and hold 
 back the water until he shall have cleaned out the pond in order 
 that the ice may be pure. Those below cannot complain of such 
 use.'] 
 
 1 Bliss V. Kennedy, 43 111. 67. In "to perceptibly reduce the volume 
 Garwood v. Railroad, 83 N. Y. 400, of water therein, " and to "mate- 
 plaintiff was the owner of a mill rially reduce or diminish the grind- 
 operated by water-power fur- ing power of plaintiff's mill," and 
 nished by a creek. Defendant, (a that in consequence he had sus- 
 railroad corporation,) who was a tained damage to a substantial 
 riparian owner above, under a amount. Held, that plaintiff might 
 claim of right, diverted the waters recover the damages sustained, 
 of the creek, conveying them by and have the diversion enjoined, 
 pipes to reservoirs, whence its lo- ^jjayes v. Waldron, 44 N. H. 580. 
 comotives were supplied with wa- suur^en y. Hobson, 12 Grat. 
 ler. The jury found, on sufficient 323. 
 
 evidence, that the water so divert- ^Ferrea v. Knipe, 28 Cal. 340. 
 
 ed from the creek was sufficient ^De Baun v. Bean, 29 Hun, 236. 
 (226)
 
 Ch. 8.] IRRIGATION. § 128 
 
 CHAPTER VIII. 
 
 USE OF WATERS FOR IRRIGATIOJ?". 
 
 § 138. Irrigation of riparian lands — Ellis v. Tone. 
 
 129. Limited authority of foregoing decision. 
 
 130. Tendency of decision in Ellis v. Tone. 
 
 131. The question as to irrigation stated. 
 133. No right to irrigate non-riparian lands. 
 
 133. Prior appropriation gives no exclusive right. 
 
 134. Relative equality of riparian owners. 
 
 135. Size of stream. 
 
 136. Reasonable use for irrigation. 
 
 137. Easements and adverse user. 
 
 138. Relation of irrigation to the natural wants. 
 
 139. Summary of principles. 
 
 140. Irrigation — The English authorities. 
 
 141. French law. 
 
 143. Review of the American authorities. 
 
 143. Review of authorities continued — The Pacific cases. 
 
 144. Surplus water must be restored. 
 
 § 128. Irrigation of riparian lands — Ellis v. Tone. 
 
 We are now brought to the question, how far do the riparian 
 rights of a private riparian proprietor, under the law of California 
 and of Nevada, include the right to use the water of the stream 
 for the purpose of irrigating his land? The only recent decision 
 which deals directly with this question to any extent, or in any 
 manner, is found in the case of Ellis v. Tone,^ decided in 1881. 
 Unfortunately this case is so reported that it does not throw 
 much light upon the general question. The action was tried 
 "before a jury, but the report does not give the entire charge of 
 the court, so that it may be seen upon what general theory of the 
 law, or upon what admitted doctrine, the cause was tried and 
 the recovery had. Certain detached clauses of the charge were 
 
 158 Cal. 28af 
 
 (227)
 
 §128 IRRIGATION. [Ch. 8. 
 
 excepted to, and certain special instructions were refused, and 
 these alone have been given by the reporter. 
 
 The opinion of the court is also confined to an examination 
 of the specific exceptions, and does not enter into any discus- 
 sion of the general doctrines upon which the case, as a whole, 
 must have rested. The case, however, is the most recent pub- 
 lished decision which deals with the right to use water for pur- 
 poses of irrigation, and we shall state it in substance, by way 
 of introduction to the discussion of this most important ques- 
 tion. 
 
 The action was brought to recover from defendants damages 
 for diverting water from Mormon slough, a natural water-course, 
 by which plaintiffs were prevented from irrigating their growing 
 crops in 1877. A verdict was rendered in favor of the plain- 
 tiffs. Defendants moved for a new trial, which was denied, and 
 they appealed. The facts, as stated in the report, were as fol- 
 lows: Mormon slough or channel heads from and runs out of 
 the Calaveras river east of Stockton, and about four miles north- 
 easterly from plaintiffs' land, and flows thence in a south-westerly 
 direction to the Stockton channel, a distance of about twenty 
 miles. The slough runs through the land of the plaintiffs in 
 two channels. The defendants own land on the Calaveras river, 
 below the point where the Mormon slough runs out of that river. 
 The slough is a natural water-course, having a well-defined chan- 
 nel and banks. In 1850, before the channel of the Calaveras 
 river was filled in by mining debris, it (the lower channel of said 
 river) was from four to six feet lower than the bed of the slough, 
 so that the waters of the river did not flow into the slough mitil 
 the waters of the river had risen from four to six feet. But the 
 channel of the river has since been so filled up by debris that, 
 when the water is low, most or nearly all of it runs and has run 
 into and through the slough . That has been the case since 1862, 
 unless prevented by artificial means, so that in dry seasons, or 
 (228)
 
 Ch. 8.] IRRIGATIOxN. § 128 
 
 in the dry season of the year, nearly all of the water ran into 
 the slough; and during the whole of the year water was in the 
 slough, while "in the dry season little or none ran in the river 
 below the head of the slough. In the fall of 1876 and winter 
 of 1877 plaintiffs put in a crop of wheat and barley on their 
 land, through which the slough ran as above stated. The plain- 
 tiffs made arrangements to irrigate this land in the next spring 
 (of 1877) by damming the north channel of the slough, so as to 
 make the water flow into the south channel, on the banks of 
 which their crop was growing. This arrangement was completed 
 in April, 1877. They then found that defendants had stopped 
 the entrance .of the slough by digging a ditch in the bed of the 
 river, and by damming the exit of the slough from the river, so 
 that the water was compelled to flow down the river, instead of 
 flowing, as had been the case for fifteen years, into the slough. 
 In consequence of this the water was cut off from the slough, 
 the plaintiffs were unable to irrigate, and their crop was a fail- 
 ure. Evidence also showed that in the spring of 1877 the de- 
 fendants had purchased from the Mokelumne Canal Company 
 four hundred miner's inches of water, to be furnished between 
 April 15th and the first of June. This water was taken from 
 the Mokelumne river, and was turned into the Calaveras river 
 .at a point above the head of the Mormon slough, and flowed 
 down that river to the lands of the defendants, so that they 
 <;ould use it for purposes of irrigation. 
 
 The court held that there was evidence sufficient to sustain 
 the verdict for the plaintiff. The trial court charged the jury 
 as follows: "This is an action brought by the plaintiffs against 
 these defendants, wherein the plaintiffs allege themselves to be 
 the owners of certain lands described in their complaint, and al- 
 lege that the Mormon slough was a natural stream of water flow- 
 ing through their lands. If you believe from the evidence that 
 the Mormon slough was a natural stream of water, and that the 
 
 ('229)
 
 § 128 IRRIGATION. [Ch. 8. 
 
 water would have flowed througli their lands hut for the diver- 
 sion of the natural flow of that water by the defendants, the 
 plaintifls are entitled to a verdict for whatever damages they 
 may have sustained to their crops, provided they were prepared 
 to use tiie water, and had niade the necessary preparations as 
 they have alleged in their coini)laint. The measure of damages 
 in this case is the amount of injury to the crops described in 
 the complaint by the act of the defendants in diverting the nat- 
 ural flow of the water, if they did divert it. If, however, the 
 plaintiffs received no damage by any act of the defendants, or 
 they did not divert the natural waters of this stream to the in- 
 jury of the plaintiffs, then your verdict will be for the defend- 
 ants." To this paragraph the defendants excepted; and objected 
 on the appeal that it assumed the fact of diversion; that it in ef- 
 fect directed the jury to find a verdict for damages to plaintiffs* 
 crops, no matter from what cause the damages originated; and 
 that it did not give the correct rule of damages. The supreme 
 court held that these objections were without any foundation; 
 that the instruction did leave the question to the jury whether 
 defendants had or had not diverted the water; and that the trial 
 court was not bound of his own motion to state any rule of dam- 
 age to the jury, but the defendants must request him to lay down 
 such rule as they claimed to be the true one, and, if he re- 
 fused, then they could except to his refusal. 
 
 The defendants requested the trial court to give the following 
 instruction, which the judge refused to give: "A riparian pro- 
 })rietor, who takes water from a channel in which it naturally 
 flows, has no legal right to take it beyond his own land before 
 returning it to its natural channel. So, if the jury believe from 
 the evidence that the natural waters of the Calaveras river and 
 Mormon channel would have flowed in the main Mormon chan- 
 nel (i. e., the north channel which plaintiffs dammed up) after 
 plaintiff's had built their dams, unless diverted by said dams or 
 (230)
 
 Ch. 8.] . IRRIGATION. § 128 
 
 other means; and if the jury further believe from the evidence 
 that plaintiffs' dam in the main channel (i. e., the north chan- 
 nel) of Mormon slough was not built on their own land for pur- 
 poses of irrigation, but on the land of one Murphy, whose lands 
 did not adjoin the land of plaintiffs; and unless the jury believe 
 from the evidence that the proprietors of intermediate lands 
 consented to the diversion of said natural water from the main 
 (north) channel of the Mormon slough, by a dam placed therein 
 by plaintiffs, (and such consent should be shown by the evi- 
 dence,) — then the jury should find for the defendants." The de- 
 fendants having excepted to the trial judge's refusal to give this 
 instruction, claimed on the appeal that this refusal was error. 
 The supreme court say: "It is urged that in this there was er- 
 ror, because plaintiffs did not show the consent of the interme- 
 diate owners of land referred to in the request. As to this, it 
 is only necessary to say that no intermediate land-owner is here 
 objecting to plaintiffs' bringing the water through their lands. As 
 the}' made no objection, we cannot see that the defendants could 
 make the objection for them, or either of them. No objection 
 appearing, it is proper to conclude that no one of such owners 
 ever objected." 
 
 The defendants also requested the trial court to instruct the 
 jury as follows: "The plaintiffs are not in any event entitled to re- 
 cover damages for the diverting from Mormon channel any waters 
 which were not the natural waters of the Calaveras river, nor for 
 the diverting of any waters in excess of plaintiffs' just and fair 
 proportion of the natural waters of the Calaveras river and Mor- 
 mon slough. If the jury believe from the evidence that the de- 
 fendants caused to be turned in and run down the Calaveras 
 river, above Mormon slough, prior to the erection of plaintiffs' 
 dam, and until the first of June, 1877, waters taken from the 
 Mokelumne river; and if the jury further believe from the evi- 
 dence that the natural waters of the Calaveras river did not 
 
 (231)
 
 §128 IRRIGATION, [Ch. 8. 
 
 run clown the river to the head of Mormon slough in sufficient 
 quantity to irrigate phiintiffs' land in the spring of 1877, and 
 after plaintiffs had constructed their dams, — then the jury should 
 find for the defendants." The court refused to give these in- 
 structions, and the defendants excepted. In regard to these ex- 
 •ceptions the supreme court said: "The court did, in effect, 
 tharge all these propositions in giving the following requests 
 asked by defendants: 'Third. In no event were the plaintiffs 
 entitled to the use as riparian proprietors of any water expept 
 the water which would naturally flow down the Calaveras river 
 and the Mormon slough; and if the jury believe from the evi- 
 dence that any water was turned into the Calaveras river above 
 the head of the Mormon slough, at the request of the defendants, 
 ©r any of them, from ditches which drew their water from 
 Mokelumne river, then the plaintiffs cannot recover any damages 
 for being deprived of the use of the water which was so turned 
 into the Calaveras river. Fourth. The plaintiffs had not the 
 legal right to use for the purpose of irrigation all of the natural 
 waters of the Calaveras river which flowed down the Calaveras 
 river and Mormon slough. The other riparian proprietors of 
 land on the Mormon slough had a legal right to use such natu- 
 ral waters equally with plaintiffs. The plaintiffs had no legal 
 exclusive right to use such natural waters for the purpose of 
 irrigation in excess of their just and fair proportion thereof. 
 Ninth. If the jury believe from the evidence that the defendants, 
 »r any of them, caused to be turned into the Calaveras river, 
 above the head of Mormon slough, waters taken from the Moke- 
 lumne river, and such waters continued to flow down the 
 Calaveras river from the middle of April until the first of June, 
 1877, then the plaintiffs cannot recover because the defendants 
 prevented them from using such waters.'" 
 
 With respect to other exceptions and objections by the defend- 
 ants, the supreme court further said: "An exception was re- 
 (232) '
 
 €h. 8.] IRRIGATION. § 128 
 
 served to the following instruction asked by the plaintiff's: 
 ' Every riparian owner upon a stream has a right to use, in a 
 reasonable way, the water of said stream for domestic purposes, 
 for the irrigation of his land, or for propelling machiner}'^, if the 
 quantity of water will warrant such use above the amount re- 
 quired for domestic purposes.' As to this, the counsel for de- 
 fendants said: 'The plaintiffs were entitled to the reasonable 
 use of the natural waters of the Mormon slough. By reasonable 
 use is meant reasonable quantity as well as reasonableness in the 
 manner of its use. The vice of the instruction is that the right to 
 use the water is qualified by the reasonable manner of its use, and 
 not by an. unreasonableness in respect to the quantity used.' In 
 our judgment, the criticism of the learned counsel is not war- 
 ranted. It savors of hypercriticism. The instruction as given 
 •embraced quantity as well fis manner. We do not see that any 
 injury was done to the defendants in giving the instruction eight, 
 asked by the plaintiffs. It was in these words: 'In the state 
 of California the right to the use of water becomes fixed after 
 five years' adverse enjoyment of the same.' There was some 
 evidence, in our view, on which such a charge might be predi- 
 cated. Further, in our opinion, the plaintiffs were entitled to 
 recover if there was a diversion, which seems to have been clearly 
 shown. In fact, the diversion was not denied in the answer, so 
 that the charge objected to was immaterial, and did no injur3\" 
 We have thus quoted in full every instruction of the trial 
 court, and every portion of the opinion of the supreme court in 
 this case, which directly or indirectly relates to the riparian 
 rights of riparian owners, or to unlawful diversion of water, or 
 to the general question concerning the right to use the water for 
 purposes of irrigation. All the other instructions as reported, 
 and all the remaining portions of the opinion, deal exclusively 
 with the measure of damages in this particular case, how far the 
 plaintiffs were entitled to recover for the value of the crops which 
 
 (233)
 
 § 129 IRRIGATION. [Ch. 8. 
 
 they would have raised if their land had been irrigated, and by 
 what evidence that value could be established. In this discus- 
 sion no allusion whatever is made to riparian rights in general, 
 nor to the general right of a riparian proprietor to use the water 
 of the streaui for the purpose of irrigating his land. 
 
 § 129. Limited authority of foregoing decision. 
 
 It is very plain, from the foregoing description and quota- 
 tions, that the general questions concerning the extent of private 
 riparian rights, and especially concerning the right to use the 
 waters of the stream for irrigation, are not determined by this 
 case, except so far as a doctrine may be regarded as settled 
 when it is tacitly accepted by both the litigant parties at a trial, 
 and its correctness, therefore, is not questioned before or b}^ the 
 appellate court. The instructions of *the trial court, purporting 
 to embody the general rules as to the use of water for irrigation 
 by a private riparian proprietor, were not excepted to by the 
 defendants, and the rules thus laid down were therefore as- 
 sumed to be correct /or this case by the supreme court on appeal; 
 but such assumption does not necessarily establish these rules as 
 correct for all cases, — does not settle them as general rules of the 
 law defining and fixing the rights which belong to private ri- 
 parian proprietorship. There are other features of this case, as 
 reported, which prevent it from being a final settlement of the 
 important general questions under discussion. In the first 
 place, it does not clearly appear in what relations the two liti- 
 gant parties, plaintiffs and defendants, were regarded by the 
 court as standing towards each other, — whether they were both 
 regarded as two riparian proprietors upon the same stream, and, 
 therefore, as having equal rights to the use of its waters; or 
 whether the plaintiffs were regarded as riparian proprietors upon 
 one stream, viz., the Mormon slough, and the defendants as ap- 
 propriating and diverting the water of that stream for the bene- 
 (234;
 
 Ch. 8.] IRRIGATION. § 129 
 
 fit of their land, which was not situated upon its banks. The 
 Calaveras river and the Mormon slough might be regarded as 
 one stream, although divided into two branches, in which case 
 the plaintiffs might be in the position of upper, and the defend- 
 ants of lower, proprietors on the single stream. The instruc- 
 tions of the trial court seem to have taken this view. On the 
 other hand, the Mormon slough might be regarded as a single 
 stream, and the plaintiffs as riparian proprietors upon it, while 
 the defendants were wrongfully diverting and appropriating its 
 waters, because they were not proprietors of land upon its banks. 
 The language of the opinion of the supreme court, already 
 quoted, — "further, in our opinion, the plaintiffs were entitled 
 to recover if there was a diversion," — tends somewhat to sustain 
 this view as the one taken by that court. 
 
 In the second place, the two instructions of the trial court, 
 which purported to embody the general rules concerning the 
 use of water for irrigation, and which were not substantially ob- 
 jected to by the defendants, will be found, on careful examina- 
 tion, not to be entirel}'^ harmonious; in fact, they are susceptible 
 of such a construction as will make them directly conflicting. In 
 one of these instructions the trial court said: "The plaintiff had 
 not the legal right to use, for the purpose of irrigation, all of 
 the natural waters of the Calaveras river which flowed down the 
 Calaveras river and the Mormon slough. The other riparian 
 proprietors of land on the Mormon slough had a legal right to 
 use such natural Avaters equally with the plaintiffs. The plain- 
 tiffs had no legal exclusive right to use such natural waters for 
 the purpose of irrigation in excess of their just and fair propor- 
 tion thereof." It will be noticed here, in confirmation of what 
 we have already said, that the court does not say "the other 
 riparian proprietors of land on the Mormon slough, (md on the 
 Calaveras river, had a legal right to use the Avaters equally Avith 
 the plaintiffs." It thus fails to show clearly Avhether the plain- 
 
 C235)
 
 §129 IRRIGATION. [Ch. 8. 
 
 tiffs and the defendants were regarded as riparian proprietors 
 on the same stream. But, passing by this criticism, the in- 
 struction furnishes a plain, definite rule. It places the rights of 
 all riparian proprietors to use the stream for irrigation upon a 
 perfect equality. No proprietor has any advantage or superior 
 light to use the water for such purpose, by reason of his being 
 located higher up on the stream than others. This rule clearly 
 and unequivocally distinguishes between the use of water for 
 irrigation, and its use for so-called natural purposes, viz., do- 
 mestic purposes and watering of stock. By this rule the right 
 •of every riparian proprietor to use the water for irrigation is 
 limited, regulated, and controlled by the equal right of every 
 other proprietor on the same stream to use its waters for similar 
 purposes. 
 
 It will be remembered that the common-law doctrines distin- 
 guish between certain uses of water called natural and all others. 
 It is the settled rule that, while a riparian proprietor must use 
 the water in a reasonable manner and to a reasonable amount, 
 he is entitled to take all of the water which is reasonably nec- 
 essary in manner and amount to supply his natural purposes, 
 namely, his domestic purposes and the watering of his stock, 
 even if so much of the water of the stream is thus consumed 
 that there is not a sufficient amount left flowing in its channel 
 to supply the similar uses of the proprietors below him. In 
 this single respect the common law gives a natural superiority 
 of right to a proprietor higher up the stream over one lower 
 down; but the superiority is strictly confined to the natural uses 
 of domestic purposes and watering stock. ^ The real question 
 to be determined is whether the irrigation of lands is one of 
 these natural uses, standing upon the same footing with domes- 
 tic wses and the watering of stock. The instruction quoted 
 
 ^See Ferrea v. Knipe, 28 Cal. 341 344, per Currey, J. 
 (236)
 
 Ch. 8.] IRRIGATION. § 129 
 
 above most unequivocally answers this question in the negative, 
 and gives one proprietor no preference whatsoever over the other 
 proprietors in the use of the stream for the purpose of irrigation. 
 The second instruction, to which we have referred, seems to put 
 irrigation on the same footing with domestic purposes. This 
 instruction was as follows: "Every riparian owner upon a stream 
 has a right to use, in a reasonable way, the water of said stream 
 for domestic purposes, for the irrigation of his land, or for pro- 
 pelling machinery, if the quantity of water will warrant such 
 use above the amount required for domestic purposes." So far 
 as this instruction can be construed as laying down any rule, 
 it plainly seems to place irrigation and domestic purposes upon 
 the same footing, and, if so, it is conflicting with the doctrine 
 announced in the other instruction previously quoted. We 
 have thus analyzed these instructions, and the rules which they 
 purport to embody, for the purpose of showing that, although 
 tacitly adopted by the supreme court, because not objected ta 
 on the trial, they do not furnish any authoritative and final set- 
 tlement of the questions at issue. The instruction last above 
 quoted is open to the gravest criticism; it mingles up subjects 
 entirely unlike. The use of water for "domestic" purposes nec- 
 essarily consumes it. And yet, if the manner and amount are 
 reasonable, the proprietor may use and thereby consume all 
 that is reasonably necessary, under the circumstances, even 
 though the natural flow of the stream is thus so diminished that 
 there is not left a supply for the proprietors below. The use of 
 water for irrigation also consumes it. It has been claimed that 
 irrigation is a natural use, and that the right of a proprietor to 
 use and consume water for irrigation is the same in nature and 
 extent as the right to use and consume it for domestic purposes 
 and for the watering of stock. 
 
 But, on the other hand, the use of water for propelling ma- 
 chinery does not consume it. The settled doctrines of the com- 
 
 (237)
 
 §130 IRRIGATION. [Ch. 8. 
 
 mon law allow a riparian proprietor to use the water of a stream 
 — the whole stream, if needed — as it passes through his land, 
 for the purpose of propelling machinery, provided he returns 
 the water, undiminished in quantity and undeterior^ted in qual- 
 ity, into the natural channel of the stream before it leaves his 
 own land and enters that of the proprietor next below him. 
 Such a use for propelling machinery, under these limitations, 
 cannot possibly injure the other riparian proprietors either above 
 or below him on the same stream. There is therefore no anal- 
 ogy between the use of water for propelling machinery and its 
 use for domestic purposes or for irrigation. These various uses 
 are governed by entirely different rules, and depend upon en- 
 tirely diflerent considerations. Our review of this case does not 
 touch upon the decision made by the supreme court. That 
 tribunal could, of course, only deal with the questions presented 
 to it by the record, — the questions raised by the exceptions. 
 
 § 130. Tendency of decision in Ellis v. Tone. 
 
 Although this case of Ellis v. Tone, as we have shown by the 
 foregoing examination, is of little value in settling the important, 
 general doctrines as to the rights of private riparian proprietors 
 in the law of California, yet it has a certain tendency towards 
 such a settlement. It plainly distinguished between the case 
 of a stream running wholly through public land, and that of a 
 stream bordered by the lands of private owners. Although 
 the cause of action arose in 1877, several years after the Civil 
 Code took effect, no allusion whatever is made, by the court or 
 the counsel, to the provisions of the Code relating to water-rights. 
 The title of the Code on this subject seems to have been tacitly 
 ignored as inapplicable to such a case. The arguments of the 
 counsel for both parties, as reported, freely cite text-books and 
 decisions based upon and representing the common-law doc- 
 trines, but they do not cite the Code. It is probable that the 
 (238)
 
 Ch. 8.] IRRIGATION. § 131 
 
 case, as a whole, proceeded uj^on the assumption that the Cal- 
 averas river and the Mormon slongh running out of it formed 
 one stream in contemplation of law, and intended to deal with 
 the rights of the two litigant parties as though both were ripa- 
 rian proprietors upon that single stream; in other words, it in- 
 tended to lay down rules of law applicable to two proprietors in 
 such a condition. In regard to the use of water for irrigation, 
 the decision, as a whole, seems to deny the right of any riparian 
 proprietor to use all the amount of water which may be reason- 
 ably necessary to irrigate his lands, if by such use the water left 
 flowing down the stream is rendered insufficient for the similar 
 purposes of other riparian proprietors. On the contrary, the 
 case seems to regard the right to use the water of a stream for 
 irrigation as belonging alike to all the riparian proprietors upon 
 the stream; that each proprietor is entitled to use, for irrigating 
 his lands, only so much of the'water of the stream as is in ex- 
 cess over and above the amounts which are requisite to supply 
 the similar jDurposes and uses of all the other proprietors upon 
 the same stream. In fact, the right of each riparian proprietor 
 upon any particular stream to use its water for irrigation must 
 depend, among other things, upon the size of the stream, the 
 amount and volume of water naturally flowing down its chan- 
 nel, the number of riparian proprietors upon it, the amount or 
 acreage of the land entitled to irrigation held by each of these 
 proprietors, and other similar considerations. Such, as it ap- 
 pears to us, is the tendency of the decision in Ellis v. Tone, al- 
 though it cannot, in our opinion, be said that the case author- 
 itatively and finally decides or settles any of these conclusions. 
 
 § 131. The question as to irrigation stated. 
 
 We have thus thrown all the light of authority upon the par- 
 ticular but most important question, how far do the riparian 
 rights of private riparian proprietors include the right to use the 
 
 (239)
 
 § 131 IRRIGATION. [Ch. 8, 
 
 water of the stream for the purjjose of irrigating their riparian 
 lands under the law of California and of Nevada? The previ- 
 ous discussions upon principle, as well as upon authority, have 
 unmistakably led to the conclusion that this question has not 
 yet been definitely and finally settled by judicial decision. All 
 of the fundamental doctrines which were accepted by both par- 
 ties in the recent case of Ellis v. Tone, and upon which that 
 case was decided, as described in a former section, might be 
 questioned or denied, and might possibly be rejected by a sub- 
 sequent decision. Any answer which we shall attempt to give, 
 must therefore, to a great extent, be merely speculative. It can 
 only be an expression of our own individual opinion derived 
 from a consideration of general principles, and from the tendency 
 of previous adjudications. It cannot be regarded as a definite 
 statement of the established and accepted rule of law. If we 
 are correct, our opinion will, doubtless, be soon confirmed by 
 the courts. If Ave are wrong, then our error must run through 
 our whole course of reasoning covering the rights of private ripa- 
 rian proprietors, as distinguished from the rights to use public 
 streams, and especially the interpretation which we had given 
 to the provisions of the Civil Code, and some entirely different 
 theory of private water-rights must be adopted by judicial au- 
 thority. We shall proceed, however, to give in brief terms an 
 answer to the general question formulated above, — an answer 
 which, in our opinion, results directly, and as a necessary in- 
 ference, from the doctrines which have been established by the 
 unbroken series of decisions made by the supreme court of Cali- 
 fornia, and quoted in our.former chapters. Those decisions have 
 been so frequently cited and so fully described, and the doc- 
 trines announced by them have been so elaborately discussed, 
 that no more special reference need be made to them as author- 
 ities for our conclusions. 
 
 The question is, how far do the riparian rights of private ri- 
 (240)
 
 Ch. 8.] IRRIGATION. § 132 
 
 parian proprietors, by the law of California and of Nevada, in- 
 clude the right to use the waters of the stream for the purpose of 
 irrigating their riparian lands? We shall assume, without restat- 
 ing or rearguing, the positions established in our previous arti- 
 cles, — namely, that the provisions o^ the Civil Code have no 
 application to private riparian proprietors owning lands on the 
 banks of a private stream , but the water-rights of such propri- 
 etors are left untouched and unaffected by the Code; and that 
 the rights of such private riparian proprietors are those recog- 
 nized, conferred, regulated, and protected by the common-law 
 doctrines on the subject, — doctrines substantially the same as 
 those so fully and carefully stated by the supreme court of Ne- 
 vada in the case of Van Sickle v. Haines. 
 
 § 132. No right to irrigate non-riparian lands. 
 
 In the first place, a private riparian proprietor has no right 
 whatever to divert or use an}' water of the stream for the pur- 
 pose of irrigating lands which do not adjoin or abut upon the 
 stream, — lands which are not strictly riparian. The appropri- 
 ation and division of the waters of a natural stream, for the ben- 
 efit of a tract of land not situated upon one or both of its banks, 
 are wholly unknown to the common law. They are a part and 
 parcel of the peculiar system which has grown up in the Pacific 
 communities primarily and mainly from the local customs and 
 needs of those engaged in mining; and they are confined en- 
 tirely to the public streams, — to those streams flowing through 
 the public lands of the United States, — or, under the Civil 
 Code, of the state of California. The common-law doctrines re- 
 strict the use of waters of natural streams to the lands bordering 
 on those streams, and the right to use the waters is held exclu- 
 sively by the private owners of such lands in their character as ri- 
 parian owners. There is nothing more completely antagonistic 
 to the common-law system, nothing which would more com- 
 POM.Rip.— 16 (241)
 
 § 133 IRRIGATION. [Ch. 8. 
 
 pletely destroy the equality and equity of the common distribu- 
 tion of rights among all the private riparian proprietors on any 
 particular stream, than the appropriation and diversion of its 
 waters, by means of ditches or canals, for the benefit of lands 
 not adjoining the stream, by persons who are not, with respect 
 to such lands, riparian proprietors. If a private riparian pro- 
 prietor owns a tract of land actually bordering on the stream, he 
 may possibly be entitled to use the water for the purpose of ir- 
 rigating the entire tract, no matter how great may be its extent; 
 how far distant from the stream may be its exterior line; but 
 his right to use a quantity of the water sufficient for that pur- 
 pose must depend upon other considerations to be mentioned 
 hereafter. It is certain, however, that no person can take water 
 from such a stream for the purpose of irrigating his tract of land 
 which is separated from the stream by the intervening lands be- 
 longing to other and riparian proprietors. 
 
 § 133. Prior appropriation gives no exclusive right. 
 
 In the second place, a prior appropriation can give no ex- 
 clusive right to the use of the water for purposes of irrigation, 
 and no superior right nor preference as to the quantity of the 
 water consumed for such purposes. Whether a person was the 
 very first one who acquired title to lands on the banks of a 
 given stream, and as such sole owner first began to use its wa- 
 ters, or whether, after many riparian proprietors had acquired 
 their respective titles, he was the first one of them to use its 
 waters, in either case the prior appropriation can give no right 
 to use an unlimited quantity, or an excess in quantity, nor any 
 other relative superiority in the use of the water for irrigation, 
 over all the other private riparian proprietors on the same stream. 
 The doctrine of prior appropriation, as has been shown, is for- 
 eign to the common law. So far as recognized by the law of 
 California and of Nevada, it is confined to public streams, and 
 (242)
 
 Ch». 8.] IRRIGATION. § 134 
 
 arose from local customs and the peculiar needs of miners, al- 
 though it was extended, in its application to public streams, to 
 other businesses, occupations, and uses besides mining. "The 
 fundamental conception of the common-law system is the purely 
 equitable principle of relative equality of right among all the 
 private riparian proprietors upon the same stream. Nature gives 
 to all the riparian proprietors on any stream an advantage, grow- 
 ing out of their location, over other owners whose lands do not 
 adjoin a water-course; and this natural right cannot be taken 
 away by the law, although its enjoyment may be interfered 
 with or prevented by arbitrary legislation. 
 
 § 134. Relative equality of riparian o-wrners. 
 
 The common law recognizes this natural right of all the riparian 
 proprietors on the same stream, resulting thus from their loca- 
 tion, and distributes and regulates it among them all according to 
 the equitable principle of relative equality. All have relatively 
 the same rights to enjoy the benefits of the water as it flows by 
 or through their lands, not depending upon the time when the 
 use began, but upon the extent of their riparian lands, — upon 
 the quantity of their lands susceptible of being lawfully bene- 
 fited by the water. This notion of equality, as has been shown, 
 runs through and shapes the entire system of common-law doc- 
 trines concerning the rights to the waters of natural streams. 
 Any legislation which ignores or violates this equitable notion 
 of equality is so far unjust. To this otherwise universal rule 
 the common law, as has been shown, recognizes one partial ex- 
 ception. As the use of water for drinking, both by man and 
 beast, and for other purely domestic and household purposes, 
 is essential to the preservation of life, the common law gives a 
 preference to its use for these so-called natural purposes. To 
 this end a riparian proprietor is allowed to use all the water of 
 a stream reasonably necessary for domestic purposes and water- 
 
 C243)
 
 § 135 IRRIGATION. [Ch.'S. 
 
 ing stock, even though the natural flow of the stream was 
 thereby lessened, and the supply for the other proprietors lower 
 down was diminished. This exception, however, was carefully 
 restricted, and was never extended be3'^ond its reasons. It does 
 not and cannot include irrigation. To permit a proprietor higher 
 up the stream, or a prior appropriator, to have an unrestricted 
 use of water for purposes of irrigation, would be a gross invasion 
 of natural rights, and a virtual destruction of the utility of 
 streams to the entire community of riparian owners through 
 which they flow. This is the view taken by the contending 
 parties, and therefore adopted by the court for the purposes of 
 that case, in Ellis v. Tone; but, as we have shown, it is not 
 definitely settled by that decision. 
 
 § 135. Size of stream. 
 
 In the third place, there is nothing in the common-law doc- 
 trines, as the supreme court of Nevada have stated in the case 
 of Van Sickle v. Haines, which prohibits the use of water for 
 irrigation by the private riparian proprietors on all streams, as a 
 part of their general rights. The fundamental notion being that 
 of relative equality of right among all the proprietors on the 
 same stream, it is evident that, if the natural flow of the water 
 is sufficient to allow each one of them to take an amount suffi- 
 cient for the needs of his own tract of riparian land, without in- 
 fringing upon the equal rights of the others, no injury could 
 possibly result from such an appropriation and use. The only 
 difficulty would arise where the natural flow of the stream was 
 not large enough to furnish such a complete and unrestricted 
 supply to every proprietor. 
 
 The common law permits each proprietor to use the water of 
 a stream, as it flows by or through his own land, for any pur- 
 pose, like the propelling of machinery, which does not consume 
 it to any substantial extent. But a use which necessarily con- 
 (244)
 
 Ch. 8.] IRMGATION. § 136 
 
 Slimes the water — like that for purposes of irrigation — lessens 
 the natural flow of the stream, and therefore tends to invade the 
 equal rights of other riparian proprietors. If, however, after 
 any proprietor has used and consumed all the water which he 
 reasonably needs for the irrigation of his own land, there is still 
 left an amount flowing down the stream adequate for the simi- 
 lar needs of all the other riparian proprietors below him, the re- 
 sult of his act would at most be a damnum absque injuria. On 
 the larger streams of the state, therefore, in which the natural 
 flowof water is considerable and is constant throughout all seasons 
 of the year, irrigation might be resorted to, it would seem, by 
 the private riparian proprietors, without any practical violation 
 of the common-law doctrines. On the minor streams, in which 
 the natural flow of water is small and inconstant, varying with 
 different seasons, the difficulty is much greater. In fact, it 
 seems hardly possible for a proprietor upon such a small and 
 varying stream to consume a quantit}^ of the water sufficient for 
 the irrigation of his own land, without thereby lessening the 
 natural flow to such an extent as to invade the equal rights of 
 the other proprietors. 
 
 § 136. Reasonable use for irrigation. 
 
 Finally, it is very plain that the only right of a private ri- 
 parian proprietor to appropriate the water of the stream for the 
 purpose of irrigation, which is consistent with the common-law 
 •doctrines, is a right which belnngs in relative equality to all the 
 proprietors alike. The quantity of water which any proprietor 
 may divert must depend, in the first place, upon the extent of 
 his own land and the amount reasonably requisite for its irriga- 
 tion; and, in the second place, upon the extent of the lands held 
 by all the other riparian proprietors, and the amount reasonably 
 requisite for their irrigation; and, in the third place, upon the size 
 of the stream itself, and its capacity to furnish a suppl}' for all 
 
 (245)
 
 § 137 IRRIGATION. [Ch. 8. 
 
 these proprietors. Or, to state the same position in other words, 
 each riparian proprietor is only entitled to use, for the purpose 
 of irrigating his own land, that portion of the stream which is 
 in excess over the amount thereof to which all the other propri- 
 etors are equally entitled for the purpose of irrigating their own 
 tracts of land. Any other rule than this must necessarily vio- 
 late natural justice and equity. It is plain, however, that 
 when the stream is small, where the flow of water is varying, 
 where its amount is insufficient to furnish a constant and con- 
 siderable excess over and above the needs of all the riparian pro- 
 prietors, this common-law rule can only be a very imperfect 
 and impracticable guide; it needs to be supplemented and aided 
 by positive legislation. The character and object of such legis- 
 lation we shall attempt to explain in the succeeding and final 
 chapter. 
 
 § 137. Easements and adverse user. 
 
 All the foregoing discussion concerning the rights of private 
 riparian proprietors has assumed and treated their rights as they 
 exist at the law, unaffected by agreement or other conduct among 
 the proprietors themselves. It is hardly necessary to state that 
 any private riparian proprietor upon a stream may obtain, as 
 against other proprietors, special rights to use the water, in the 
 nature of easements or servitudes, far other and greater than those 
 which the law confers upon him simpl}' as a riparian proprietor. 
 Thus, for example, he may obtain, by grant from other propri- 
 etors, or by prescription against them, the exclusive right to any 
 •portion of the waters of a stream for purposes of irrigation; and 
 thus a prior appropriation may by prescription ripen into a 
 lawful right, as against all the other riparian proprietors, to use 
 the entire waters of a stream for any beneficial purpose. It is 
 not our design to enter into any discussion of the servitudes 
 which may thus be acquired by grant or by prescription. The 
 (2i6)
 
 i\ 
 
 Ch. 8.] IRRIGATION. § 138 
 
 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. 
 
 § 138. 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 for the purpose of irrigating his own 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 /le 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, 2 255 Cal. 334, s. c. 4 Pac. Rep. 
 Sawy. 176. 191. 
 
 (247)
 
 §138 IRRIGATION. [Ch. 8. 
 
 his lands, and ii.scd no more than ivas necessary for that iiurpose, 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 
 quantit}^ 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 I'acts with suljstantial 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 therefore reversed, and a new trial of the cause was 
 ordered.* 
 
 ^ [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 tho 
 
 roy, and is taken from an article present work. Ed.] 
 (248)
 
 Ch. 8.] IRRIGATION. § 138 
 
 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-pro- 
 prietor to supj)ly his natural wants, and those of his family, 
 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 projirietors living on it, 
 none of the projDrietors can use the water for irrigation.^ It is 
 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, 
 
 1 Baker v. Brown, 55 Tex. 377. purpose would therefore afford no 
 
 In Rhodes v. Whitehead, 27 Tex. ground of complaint by the lower 
 
 304, it was said: "It maybe ad- proprietors if it were entirely 
 
 mitted that the purpose of irriga- consumed." But this decision was 
 
 tion is one of the natural uses, practically overruled by Baker v. 
 
 such as thirst of people and cattle. Brown, supra. 
 
 and household purposes, which 2 Evans v. Merriweather, 3 Scam, 
 
 must absolute!}' be supplied. The 493. 
 appropriation of the water for this 
 
 (249)
 
 § 139 IRRIGATION. [Ch. 8, 
 
 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." '] 
 
 § 139. 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- 
 sonable, 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 
 will be necessary to review the decisions on this subject at some 
 length.] 
 
 » Miller v. Miller. 9 Pa. St. 74. 
 (250)
 
 Ch. 8.] IRRIGATION. § 140 
 
 § 140. 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- 
 sand 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 itj 
 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- 
 pen that an}^ use for irrigation can be reasonable; and for any 
 purpose the use must be reasonable."^] 
 
 * Embrey v. Owen, 6 Exch. 352; 590; Miner v. Gilnaour, 13 Moore, 
 
 Swindon Water-Works v. Wilts P. C. 156; Norbury v. Kitchin, ^ 
 
 Canal Co., L. R. 7 H. L. 697; Earl Jur. (N. S.) 132; 1 Add. Torts, § 89. 
 
 of Sandwich v. Great Northern 2 Embrey v. Owen, 6 Exch. 352. 
 
 Ry., L. R. 10 Ch. 707, 711; Samp- 3Lux v. Haggin, (Cal.) 10 Pac. 
 
 son V. Hoddinott, 1 C. B. (N. S.) Rep. 757. 
 
 (251)
 
 § 142 IRRIGATION. [Ch. 8. 
 
 § 141. 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.'] 
 
 § 142. 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- 
 gard being had to the equal rights of all the riparian owners. 
 This will sufhciently 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 tlie same purpose; and, if the owner of a close below is dam- 
 aged thereby, it is damnum absque injuria.''''^ 
 
 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- 
 
 iCode Napoleon, liv. 2, Nos. 640-645. See 1 Add. Torts, § 89. 
 2Weslon V. Alden, 8 Mass. 136. 
 (252) 
 
 "
 
 Ch. 8.] IRRIGATION. § 142 
 
 sonable, and contrary to the general sense of mankind, 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 proj^osition) ought not to be taken 
 literally, unless the words 'material injury' be impressed with 
 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 23urposes 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 
 
 13 Kent, Comm. 429. » Arnold v. Foot, 12 Wend. 330. 
 
 2 Lux v. Haggin, 10 Pac. Rep. 756. 
 
 (253)
 
 § 142 IRRIGATION. [Ch. 8. 
 
 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 
 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 
 diflicult 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 
 
 iBlanchard v. Baker, 8 Me. 253, sparrell v. Richards, 30 N. J. Eq. 
 366. 511. 
 
 230 Conn. 180. 
 
 (254)
 
 Ch. 8.] IRRIGATION. § 142 
 
 proijrietor; 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 
 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, wAo% 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 lo any lower proprietor, while 
 
 (255)
 
 § 1-13 IRUIGATION. [Ch. 8. 
 
 the other wonlil nearly deprive him of the whole beneficial use^ 
 nivl y<f in both the water woiibl be used for irrigation."'] 
 
 § 143. Review of authorities continued — The Pa- 
 cific cases. 
 
 [U'hen 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 
 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 
 Hawley remarks: "When it is said that such use must be made 
 of the water as not to afl'ect the material rights of other pro]:)rie- 
 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 
 could have an}' 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 4s that, under the principles of the common law in rela- 
 tion to riparian rights, if applicable to our circumstances and 
 conditiori, 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- 
 
 J Elliot V. Fitchburg R. Co., 10 « Jones v. Adams, (Nev.) 6 Pac. 
 Cush. 193-195. See, further. An- Rep. 442. See, also, Barnes v. Sa- 
 thony V. Lapham, 5 Pick. 175; New- bron, 10 Nev. 217; Swift v. Good- 
 hall V. Ireson, 8 Cush. 595; Evans rich, (Cal.) 11 Pac. Rep. 561. 
 V. Merri weather. 3 Scam. 496; sjo Pac. Rep. 755-764. 
 Washb. Easem. 234; Gould, Wa- 
 ters, § 217. 
 
 (256)
 
 Ch. 8.] IRRIGATIOX. § 143 
 
 titled to a reasonable use of tlie 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." Tlie court continued: "The question whether 
 the use is reasonable is not so mucli whether the water be- 
 low is diminished thereby, as whether the lower proprietor is 
 m.aterially 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 
 loss by evaporation and absorption, and must often result in a 
 sensible and clearly perceptible reduction of the quantity in the 
 channel. 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." In the same case, after 
 an elaborate review of the authorities upon this question, the 
 court sums up its conclusions as follow's: "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 oj^inions 
 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 
 poM.Rip.— 17 (257)
 
 § 144 IRRIGATION. [Ch. 8. 
 
 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 all 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 
 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] 
 
 § 144. Surplus water must be restored. 
 
 [Where a riparian owner diverts the water of the stream for 
 the purpose of irrigation, without returning the surplus into 
 the natural channel, whereby the owner of land below, en- 
 titled to use the water in the same manner, is deprived of his 
 privilege, an action lies.^] 
 
 iLux V. Haggin, (Cal.) 10 Pac. ^Anthony v. Lapham, 5Pick. 175; 
 Rep. 763. Cook v. Hull, 3 Pick. 269; Blanch- 
 
 ard V. Baker, 8 Me. 253. 
 (258;
 
 Ch, 9.] SUGGESTIONS FOR LEGISLATION. § 145 
 
 CHAPTER IX. 
 
 SUGGESTIOIs^S FOR LEGISLATION 01^" RIPAEIAK RIGHTS. 
 
 § 145. Need of statutory regulation. 
 
 146. Irrigation — Common-law rules inadequate. 
 
 147. Contents of proposed statute. 
 
 148. Essential nature of projected law. 
 
 149. Sj'stem of crce^^fu^s impracticable. 
 
 150. Colorado system criticised. 
 
 151. Legislation must respect natural laws and natural rights. 
 153. Natural rights and advantages of riparian owners. 
 
 153. Legislation should recognize these rights. 
 
 154. Jurisdiction of equity, 
 
 155. Legislation to the same end. 
 
 156. Provision for non-riparian lands. 
 
 157. Condemnation of stream for public use. 
 
 158. Whether irrigation is a public use. 
 
 159. Eminent domain. 
 
 160. Summary of suggestions concerning legislation. 
 
 161. Concluding observations. 
 
 § 145. Need of statutory 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 efficacy. At present 
 any discussion of them might be regarded as speculative, al- 
 
 • (259)
 
 § 146 SUGGESTIONS FOR LEGISLATION. [Cll. 9. 
 
 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. 
 
 § 146. Irrigation — Common-la-w^ rules inadequate. 
 
 Assuming as true, what we think has been sliown to be estab- 
 lished by judicial authority, that the general common-law doc- 
 trines on the subject appl}' to and determine the rights of pri- 
 vate riparian proprietors, those doctrines are suflEicient 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 me 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 
 (260;
 
 €h. 9.] SUGGESTIONS FOR LEGISLATION. § 147 
 
 of any class of jaroprietors. The use of water for purposes of 
 irrigation is practically unknown to the connnon-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- 
 iitive rights of all the proprietors upon any j^articular stream, 
 iind 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 are entitled to take, is simply the 
 foundation. How that excess is to be actually ascertained and 
 apjjortioned to each riparian proprietor before he takes the water 
 from the stream, is the difRculty; and it is a difficulty which can 
 only^be obviated by statutory legislation. 
 
 § 147. 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 all 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 
 
 (261)
 
 § 1-18 SUGGESTIONS FOR LEGISLATION. [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 matters. 
 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 any 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. 
 
 § 148. Essential nature of projected la'W. 
 
 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; 
 (262;
 
 Ch. 9.] SUGGESTIONS FOR LEGISLATION. § 149 
 
 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 grossl}^ 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 wdiich the people are familiar; they should 
 reflect the customary and popular customs, habits of thought, 
 and institutions. 
 
 § 149. System of acequias impracticable. 
 
 If the foregoing general principles of legislation are accepted 
 and followed, it is plain that the public system of "acggwias" 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. 
 
 (263)
 
 § 150 SUGGESTIONS FOR LEGISLATION. [Ch. 9. 
 
 § 150. Colorado system criticised. 
 
 It lias, liowever, 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, tlie reader must consult the detailed synopsis of the 
 statutes given in a former chapter; it will be sufficient 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 to 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 will inevitably give rise to an enormous amount of 
 (264)
 
 ■Ch. 9.] SUGGESTIONS FOR LEGISLATION. § 151 
 
 trouble, controversy, and litioation. 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- 
 jDriation 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. 
 
 § 151. 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 ])rinciple 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 
 manner in the statute of limitations. There is probably no 
 
 (265)
 
 § 151 SUGGESTIONS FOR LEGISLATION. [Ch. 9. 
 
 Other civilized country in the world, except perhaps some states 
 or territories which have copied the California statutes, which 
 prescribes such extremel}- 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 
 (266)
 
 Ch. 9.] SUGGESTIONS FOR LEGISLATION. § 152 
 
 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. 
 
 § 162. Natural rights and advantages of riparian 
 o^wners. 
 
 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 /aci 
 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 ad-vantage 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. 
 
 (267)
 
 ^ 154 SUGGESTIONS FOR LEGISLATION. [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 Imrren 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. 
 
 § 153. 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. 
 
 § 154. 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- 
 (268)
 
 Ch. 9.] SUGGESTIONS FOR LEGISLATION. § 154 
 
 markable case, which came within our personal knowledge sev- 
 eral years ago, furnishes a most striking illusti'ation of the j>/-m- 
 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 Browii 
 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 thi» 
 
 the titles of numerous parties when principle in 1 Pom. Eq. §§ 255-275. 
 they all depend upon the same rule 
 
 (269)
 
 § 154 SUGGESTIONS FOR LEGISLATION. [Cll. 9. 
 
 ferent proprietors of mill lots, all holding under the original con- 
 veyances from Brown. There was, of course, no privity of con- 
 tract Ix'twcen 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 
 therehy 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 separate 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 w^ater 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- 
 (270)
 
 Ch. 9.] ' SUGGESTIONS FOR LEGISLATION. § 155 
 
 cision final and perpetual, and to secure and protect the rights 
 of all thus determined, the decree i^rovided for the appointment 
 and maintenance of a perpetual commission, representing all the 
 proprietors on the canal, who should possess the power to in- 
 sjiect the water supply-gates and openings of each lot, and to 
 preserv-e 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 U]3on any natural stream. The prin- 
 ciple is the same in both cases. We have no doubt that on the 
 same princij^le, 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 perjDetual commission, represent- 
 ing all the proprietors on that stream, which should have power 
 to carry into effect the provisions of the decree. 
 
 § 155. 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 
 
 ^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. 
 
 (271)
 
 § 155 SUGGESTIONS FOR LEGISLATION. [Cll. 9. 
 
 exact object sought to be obtained by means of legislation. 
 The legislation sliould regard all the jjrivate riparian proprietors 
 owning lands abutting on eitlier bank of any given natural 
 streain as constituting one inciividual community for the pur- 
 pose of irrigation. It should jjriinarlly assert, secure, and pro- 
 tect tlie equal rights of all the members of this community to 
 use the waters of that stream for the purpose of irrigation, as 
 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 jjroprietors 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 
 (272)
 
 Ch. 9.] SUGGESTIONS FOR LEGISLATION. § 156 
 
 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. 
 
 § 156. Provision for non-riparian lands. 
 
 Thus far our i^roposed legislation has dealt alone with the rights 
 of the actual riparian proprietor to use the waters of a stream 
 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 not 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 u^jon 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 ilhistration shows the absurdity, as well as the in- 
 poM.Rip. — 18 (273)
 
 § 157 SUGGESTIONS FOR LEGISLATION. [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, when not polluted by hydraulic 
 mining, if reasonably and properly controlled and utilized, can 
 certainly furnish an adequate 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 puljlic 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. 
 
 § 157. 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 property has been taken and whose pri- 
 (274)
 
 Ch. 9.] SUGGESTIONS FOR LEGISLATION. § 157 
 
 mary rights have been invaded? This method of obtaining the 
 Avater of a stream by distant land-owners is recognized by the 
 California 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 use public, nor render the taking of private 
 property for it valid. It is settled by unanimous agreement of 
 authorities that, lohen 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 2mblic 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 
 
 (275)
 
 § 157 SUGGESTIONS FOR LEGISLATION. [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 i^ure air. 
 To furnish an adequate supply for such purjjoses, the waters of 
 a natural stream or lake may 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, marshy, 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 
 
 * [St. Helena Water Co. v. Forbes, the city would have to acquire that 
 
 62 Cal. 182; Smith v. Gould, 59 Wis. prescriptive right as it did the oth- 
 
 631, s. 0. 18 N. W. Rep. 457. A er, by purchase or condemnation, 
 
 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 waterworks for public purpose; and water may be 
 
 the purpose of supplying the in- talien 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 proprietors enjoined or destroyed, compensation being 
 
 from polluting the stream, unless made. Cooper v. Williams, 4 Ohio, 
 
 they have acquired a right to do 253.] 
 BO by prescription, in which case 
 
 (276)
 
 €h. 9.] SUGGESTIONS FOR LEGISLATION. § 158 
 
 Lenefit to the general health of the local community 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 eff'ect of local customs, — that the propelling of mills, 
 factories, and manufactories, by water taken from natural streams, 
 is in no sense a pu1)lic 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. 
 
 § 158. 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 
 
 (277)
 
 § 158 SUGGESTIONS FOR LEGISLATION. [Ch. 9. 
 
 means by wliich the land is improved, its value enhanced, or 
 its productiveness increased for the personal and immediate ben- 
 efit of tlie 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 differ in kind or degree from 
 the use of the water by each riparian proprietor on the stream? 
 How does the use by the w^hole 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 
 (27 8 j
 
 Ch. 9.] SUGGESTIONS FOR LEGISLATION. § 158 
 
 same? For it should be remembered 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 such 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- >ii' 
 lated. Only the excess of the water remaining unconsumed after 
 their needs have been reasonably supplied should be appro i^ri- -f^- 
 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 fromx ^x. 
 the larger streams should be entitled to reach and appropriate j 3 
 this excess of their waters after the wants of the riparian propri- / i^ 
 etors are reasonably satisfied, without any condemnation or pay- i 
 ment of compensation, since such a use would not substantially ">^\; 
 afiect any rights held by the riparian proprietors on the streams, i 
 
 (279) ^
 
 § 159 SUGGESTIONS FOR LEGISLATION. [Ch. 9. 
 
 § 159. Eminent domain. 
 
 [It seems very clear, upon the authorities, that riparian own- 
 ers liave 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 jDower 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 haj^pen 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 Avater 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 
 
 »Bell V. Gough, 3 Zabr. 624; 535. See Commissioners of Homo- 
 Trenton Water Co. v. Eaflf, 36 N. chitto River v. Withers, 29 Miss. 21. 
 J.Law,335;Munroev.Ivie,2Utah. 210 Pac. Rep. 697, construing 
 
 Code Civil Proc. Cal. 1238. 
 (280)
 
 Ch. 9.] SUGGESTIONS FOR LEGISLATION. § 159 
 
 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 would 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. Haggia, (Cal.) 10 Pac. Rep. 700. 
 
 (281)
 
 § 160 SUGGESTIONS FOR LEGISLATION. [Ch. 9. 
 
 § 160. 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 liighest 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- 
 (282)
 
 Ch. 9.] SUGGESTIONS FOR LEGISLATION. § 161 
 
 parian proprielors 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 suffi- 
 ciently indicated. The details of these special rules must largely 
 depend upon particular 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. 
 
 § 161. 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 
 
 (283)
 
 §161 SUGGESTIONS FOR LEGISLATION. [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 sin<,de object of this essay was to ascertain, as far as pos- 
 sible, tlie 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 
 (284)
 
 Ch. 9.] SUGGESTIONS FOR LEGISLATION. § 161 
 
 and fundamental doctrines of the common law 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 
 communities 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 efficient system for the regulation of irrigation throughout 
 all parts of the state. 
 
 * (285)
 
 INDEX. 
 
 [the numbers refer to sections.] 
 
 A. 
 
 ABANDONMENT, 
 
 of appropriation, 88-91. 
 general doctrine of, 88. 
 by invalid sale, 89. 
 by returning the water, 89. 
 by negligence, 89. 
 by adverse user, 90. 
 
 ACEQUIAS, 
 
 statutes of New Mexico concerning, 102. 
 
 of Arizona, 103. 
 system of, impracticable for California, 149. 
 
 ACTION, 
 
 for injuries to ditches, 67. 
 for unlawful diversion, 68. 
 
 in equity, 69. 
 for injury to quality of water, 70. 
 for damages caused by dams or ditches, 71-78. 
 to restrain hydraulic mining, 77. 
 
 ACT OF CONGRESS, 
 
 concerning appropriation of water, 17. 
 
 of 1870, is declaratory only, 28. 
 
 has not sanctioned injurious effects of hydraulic mining, 77 
 
 ADVERSE USER, 
 
 rights acquired by, 90. 
 easement in use of stream acquired by, 137. 
 
 (287)
 
 288 INDEX. 
 
 AGRICULTURE, see Irrigation. 
 
 APPLICATION, 
 
 of water to beneficial use, intention of, is necessary to valid appro- 
 priation, 47. 
 must be actual, 49. 
 of water, by riparian owner, to useful purposes, 119 etseq. 
 
 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. 
 
 mining customs, 14. 
 
 doctrine of, stated, 15. 
 
 right of, not at first availing as against government or ita 
 grantee, 16. 
 
 sanctioned by act of congress, 17. 
 
 limits of the doctrine; the early cases, 18. 
 
 views of United States supreme court on, 19. 
 
 doctrine unknown to common law, 21. 
 
 presumed license from government, 23. 
 
 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 publiclands, 31. 
 power of government to annex conditions to grants, 32. 
 conflicting claims between settlers and appropriators, 38. 
 
 when patentee's title vests, 34, 35. 
 
 whether patent relates back to initial steps, 38. 
 
 riparian rights under Mexican grants, 42. 
 how effected, 44-54. 
 
 successive appropriations, 44. 
 
 doctrines which control, 45. 
 
 methods of effecting, 46. 
 
 water-right may be merely possessory, 46. 
 
 intent to apply water to beneficial use, 47. 
 
 for purposes of speculation, 47. 
 
 for drainage only, 47.
 
 INDEX. 289 
 
 APPROPRIATION OF WATER— Continued. 
 
 must be actual use of water, 49. 
 
 what acts will accomplish, 50. 
 
 notice of intent to appropriate, 51. 
 
 reasonable diligence must be exercised, 52. 
 
 appropriation, when complete, 53. 
 
 appropriation relates back to first step, 54. 
 nature of the right acquired by, 55-70. 
 
 appropriator's right begins at head of his ditch, 55. 
 
 nature and extent of right depends on purpose of appropria- 
 tion, 56. 
 
 property in ditches and canals, 57. 
 
 Bale of ditches and water-rights, 58. 
 
 tenancy in common in water-rights, 59. 
 
 right to natural flow of water at head of ditch, 60. 
 
 what are streams subject to appropriation, 61. 
 
 definition and characteristics of a water-course, 63. 
 
 percolating and subterraneous waters, 63. 
 
 right to exclusive use of water, 64. 
 
 appropriator may change place and manner of use, 65. 
 
 remedies for interference with appropriator's rights, 66. 
 
 injuries to ditches, 67. 
 
 remedies for unlawful diversion, 68. 
 
 injunction in equity, 69. 
 
 deterioration of quality of water is actionable, 70. 
 liability of appropriator for damages caused by his worlss, 71-78. 
 
 various kinds of injuries, 71. 
 
 damages caused by breaking or overflow of dam, 72. 
 
 measure of care required, 73. 
 
 trespass on rights of riparian owners, 74. 
 
 damages from mode of construction or operation of works, 75. 
 
 injuries from discharge of debris into stream, 76. 
 
 hydraulic mining as a public nuisance, 77. 
 
 impounding dams, 78. 
 extent of the right acquired by, 79-82. 
 
 amount of water acquired, 79. 
 
 capacity of ditch as measure of, 80, 81. 
 successive appropriations, 82-88. 
 
 rights acquired by, 82, 83. 
 
 surplus water may be appropriated, 83. 
 
 periodical appropriations, 84. 
 
 POM. EIP. — 19
 
 290 INDEX. 
 
 APPROPRIATIOlSr OF WATER— Continued. 
 
 there must be actual diversion, 48. 
 
 conditions under which subsequent appropriation may be effect- 
 ed, 85. 
 
 division of increase in stream, 86. 
 
 wrongful diversion of springs, 87. 
 abandonment of, 88-91. 
 
 general theory of, 88. 
 
 methods in which an abandonment is effected, 89. 
 
 abandonment by adverse user, 90. 
 review of the system, 91-94. 
 
 the system as a whole, 91. 
 
 defects of the system, 93. 
 distinguished from true riparian rights, 94. 
 legislation of California concerning, 96. 
 Montana act concerning, 98. 
 Idaho statutes regulating, 100. 
 under Mexican law, 114. 
 
 use of water for purposes of irrigation, 128-144. 
 prior, gives no exclusive right to use of water for irrigation, 133. 
 
 APPURTENANCE, 
 
 riparian owner's right to natural flow of stream is not, 9. 
 ditches and canals are not, 57. 
 
 ARIZONA, 
 
 statutes of, regulating water-rights, 103. 
 system of, impracticable for California, 149. 
 
 B. 
 
 BANKS, 
 
 essential to a water-course, 62. 
 
 riparian owner may protect, by means of dam or bulk -head, 75, note. 
 
 BILL OF SALE, 
 
 transfer of water-rights by, 58, note. 
 
 BREAKING OF DAM, 
 
 damages caused by, 72, 73. 
 
 BULK-HEAD, 
 
 may be erected to preserve banks of stream, 75, note. 
 
 I
 
 INDEX. 291 
 
 c. 
 
 CALIFORNIA, 
 
 statute of, recognizing miners' customs, 14. 
 legislation of, on riparian rights, 96. 
 act for promotion of irrigation, 96. 
 riparian rights in private streams of, 108 et seg. 
 
 application of common-law doctrines, 109, 110. 
 construction of section 1423, Civil Code Cal., 111-113. 
 effect of Mexican laws in, as to water-rights, 114. 
 riparian rights in Kern district, 115. 
 law of, as to riparian uses, 132. 
 
 CANALS, 
 
 diversion by means of, must be actual, 48. 
 
 property in, 57. 
 
 are not appurtenances, 57. 
 
 sale of, 57, 58. 
 
 liability for damages caused by, 71-78. 
 
 CARE, see Diligence; Negligence. 
 
 CHANNEL, 
 
 essential to a water-course, 63. 
 unlawful changing of, 75, note, 
 obstruction of, by mining debris, 77. 
 
 CIVIL LAW, 
 
 law of riparian rights under, 114. 
 
 CODE, 
 
 of California, on water-rights, 96. 
 
 of California, section 1422, construction of, 111-113. 
 
 of France, on irrigation of riparian lands, 141. 
 
 COLORADO, 
 
 statutes of, regulating riparian rights, 99. 
 system of water-rights in, criticised, 150. 
 
 COMMON LAW, 
 
 doctrine of, in regard to riparian rights, 4-13. 
 appropriation unknown to, 21. 
 
 as to riparian rights, abolished in several states, 106. 
 application of, to riparian rights in California, 109, 110»
 
 292 INDEX. 
 
 COMMON LAW— Continued. 
 
 not affected by section 1422, Civil Code Cal., 111-113. 
 governs riparian rights in California, 116. 
 ' prescriptive water-rights under, 118. 
 inadequate to settle question of irrigation in Pacific states, 146. 
 
 CONSTITUTIONAL LAW, 
 
 statutes cannot sanction injuries caused by hydraulic mining, 77. 
 taking stream for public use, 157-159. 
 
 CONSTRUCTION, 
 
 of act of congress of 1870, 28, 
 
 of section 1422, Civil Code Cal., 111-113. 
 
 of section 1288, Code Civil Proc. Cal., 159. 
 
 CO-TENANCY, 
 
 in water-rights, 59. 
 
 CUSTOMS, see Miners' Customs. 
 
 D. 
 
 DAKOTA, 
 
 statutes of, regulating riparian rights, 101. 
 
 DAMAGES, 
 
 caused by ditches or dams, 71-78. 
 
 from breaking or overflow of dam, 72, 73. 
 
 trespass upon rights of riparian owners, 74. 
 
 from mode of construction or operation of works, 75. 
 
 caused by mining debris, 76-78. 
 
 caused by hydraulic mining, 77. 
 
 DAMNUM ABSQUE INJURIA, 
 
 consumption of part of streams is, when, 135. 
 
 DAMS, 
 
 appropriation of water by means of, at common law, 11. 
 reasonable diligence must be exercised in completion of, 52. 
 appropriator's liability for damages caused by, 71-78. 
 damages from breaking or overflow of, 72. 
 care required in construction of, 73. 
 flooding adjacent lands by, 75. 
 for impounding mining debris, 78.
 
 INDEX. 293 
 
 DEBRIS, 
 
 pollution of water by, 70. 
 
 discharge of, into streams, 76. 
 
 from hydraulic mining, a public nuisance, 77, 
 
 impounding dams for, 78. 
 
 DEDICATION, 
 
 of rivers to public use, under Mexican law, 114. 
 
 DILIGENCE, 
 
 in completion of works, to secure benefit of appropriation, 53. 
 required in construction and maintenance of dam, 72, 73. 
 required by statute in California, of appropriators, 96. 
 
 DITCHES, 
 
 there must be actual diversion by means of, m oraer to constitute 
 
 valid appropriation, 48. 
 reasonable diligence required in completion of, 53. 
 appropriator's right begins at head of, 55. 
 property in, 57. 
 are part of realfy, 57. 
 sale of, 57, 58. 
 
 remedies for injuries to, 67. 
 
 appropriator's liability for damages caused by, 71-78. 
 capacity of, as measure of appropriation, 80, 81. 
 statute of Nevada regulating construction of, 97. 
 
 DIVERSION. 
 
 of water-course, illegal at common law, 4. 
 
 without actual damage. 7. 
 
 when permissible at common law, 10. 
 
 for mining purposes, 15. 
 
 presumed license from government for, 22, 23. 
 
 as against subsequent patentee, 25. 
 
 must be actual, in order to complete appropriation, 48. 
 
 point of, may be changed, 65. 
 
 unlawful, remedies for, 68. 
 
 injunction against, 69. 
 
 regulated by statute in California, 96. 
 
 of stream, for purposes of irrigation, 128-144. 
 
 DRAINAGE, 
 
 appropriation of water for purposes of, is nugatory, 47. 
 flooding adjacent lands is unlawful, 75.
 
 294 INDEX. 
 
 E. 
 
 EASEMENT, 
 
 riparian owner's right to natural flow of stream is not, 9, 
 to use of stream, acquired by grant or prescription, 137. 
 
 EJECTMENT, 
 
 will not lie to recover possession of a water-course^ 69. 
 
 EMINENT DOMAIN, 
 
 condemnation of right of way for ditches or flumes, 
 in Nevada, 97. 
 in Colorado, 99. 
 in Idaho, 100. 
 taking of stream for public use, 157-159. 
 water supply to cities is public use, 157. 
 whether irrigation is a public use, 158. 
 condemnation of stream under, 159. 
 
 EQUITY. 
 
 jurisdiction of, to restrain unlawful diversion, 69. 
 will enjoin hydraulic mining, 77. 
 jurisdiction of, in settling water-rights, 154 
 
 EVIDENCE, 
 
 miners' customs must be proved as facts, 24. 
 steps necessary to effect appropriation, 47 et seq, 
 of abandonment of appropriation, 89. 
 
 F. 
 
 FARMING NEIGHBORHOOD, 
 meaning of the term, 159. 
 
 FLUME, 
 
 may be used in diversion by appropriator, 48. 
 statute regulating construction of, in Nevada, 97. 
 
 FRENCH LAW, 
 
 on the subject of irrigation, 141. 
 
 G. 
 
 GRANT, 
 
 of public lands, subject to prior appropriation, 25 
 power of government to annex conditions to, 32.
 
 INDEX. 295 
 
 GRANT— Continued. 
 
 conflicting claims between settlers and appropriators, 33. 
 
 at what point title vests under, 34. 
 
 whether relates back to initial steps, 38. 
 
 Mexican, effect on riparian rights, 43. 
 
 of water-rights and ditches, 58. 
 
 if nugatory, works abandonment, 89. 
 
 H. 
 
 HYDRAULIC MINING, 
 
 effects of, constituting a public nuisance, 77. 
 impounding dams for, 78. 
 
 I. 
 
 IDAHO, 
 
 statutes of, concerning riparian rights, 100. 
 
 IMPOUNDING DAMS, 
 
 for hydraulic mining debris, 78. 
 
 INJUNCTION, 
 
 to restrain unlawful diversion of water, 69. 
 to restrain hydraulic mining, 77. 
 
 INTENT, 
 
 to apply water to beneficial use is indispensable to valid appropriA* 
 
 tion, 47. 
 notice of, 50, 51. 
 
 INTERPRETATION, 
 
 of act of congress of 1870, 28. 
 
 of section 1423, Civil Code Cal., 111-113. 
 
 of section 1283, Code Civil Proc. Cal., 159. 
 
 IRRIGATION, 
 
 California statute for promotion of, 96. 
 Montana statute concerning, 98. 
 Colorado statute concerning, 99. 
 legislation of New Mexico concerning, 103. 
 laws of Utah in relation to, 105. 
 use of riparian streams for, 128-144. 
 
 no right to irrigate non-riparian lands, 132. 
 
 prior appropriation gives no exclusive right, 133.
 
 296 INDEX. 
 
 IRRIGATION— Continued. 
 
 relative equality of riparian owners, 134. 
 
 size of stream, 135. 
 
 use must be reasonable, 136, 139. 
 
 irrigation is subordinate to natural wants, 138. 
 
 is not one of the natural wants, 138, 139. 
 
 test of reasonableness in use, 139 et seq, 
 
 French laws regulating, 141. 
 
 American authorities upon, 142, 143. 
 
 surplus water must be restored, 144. 
 common-law rules concerning, are inadequate in the Pacific states, 
 
 146. 
 whether stream can be taken for, under eminent domain, 158. 
 
 IRRIGATION COMPANIES, 
 
 laws governing, 99. 
 in Utah, 105. 
 
 J. 
 
 JOINT TENANCY, 
 
 in water-rights, 59. 
 
 JURISDICTION, I 
 
 of state and United States over public lands, 31. 
 of equity, to restrain unlawful diversion, 69. 
 to restrain hydraulic mining, 77. 
 in settling water-rights, 154. 
 
 KERN DISTRICT, 
 
 riparian rights in, 115. 
 
 K. 
 
 L. 
 
 LAKES, 
 
 law of riparian rights applied to, 6. 
 
 LEGISLATION, 
 
 need of, in regard to waters on the Pacific coast, 1. 
 
 of California, recognizing miners' customs, 14. 
 
 of the United States, 17. 
 
 act of congress of 1870 construed, 28. 
 
 on the subject of riparian rights, 94 et seq.
 
 INDEX. 297 
 
 LEGISLATION— Continued. 
 
 construction of section 1423, Civil Code Cal., 111-113. 
 concerning water-rights, suggestions for, 145-161. 
 
 LICENSE, 
 
 from government, for appropriation of waters, presumed, 23, 23. 
 
 M. 
 MANUFACTURES. 
 
 use of stream for, 126. 
 
 MAXIMS, 
 
 that water should flow in natural channel. 8. 
 sic utere tuo, etc., applies to riparian rights, 127. 
 
 MEXICAN LAW, 
 
 grants under, effect on riparian rights, 42. 
 law of riparian rights in, 114. 
 
 former prevalence of, in California does not affect riparian rights, 
 114. 
 
 MILLS, 
 
 appropriation of water for, at common law, 11. 
 
 use of water for propulsion of, 126. , 
 
 MINERS' CUSTOMS, 
 
 origin and nature of, 14. 
 
 sanctioned by legislation, 14. 
 
 recognized by act of congress, 17. 
 
 application and eflicacy of, 24. 
 
 when void, 24. 
 
 must be proved as facts, 24. 
 
 must be reasonable, 24. 
 
 cannot legalize public nuisance, 24, 77. 
 
 MINING. 
 
 early importance of, in Pacific states, 13. 
 presumed license from government for, 22, 23. 
 liability for damages caused by, 71-78. 
 discharge of debris, when unlawful, 76. 
 hydraulic, injurious effects of, 77. 
 regulated by statute in California, 96.
 
 298 INDEX. 
 
 MONTANA, 
 
 statutes of, regulating riparian rights, 98. 
 
 MUNICIPAL CORPORATIONS, 
 
 supplying water to, is public use for which stream may be con- 
 demned, 157. 
 
 N. 
 
 NATURAL WANTS, 
 
 use of riparian streams for, 123. 
 
 what are, 123. 
 
 use for irrigation is subordinate to, 138. 
 
 NAVIGABLE RIVERS, 
 
 obstruction of, by mining debris, a public nuisance, 77. 
 easement of public in, under Roman law, 114. 
 
 NEGLIGENCE, 
 
 will jeopard inceptive rights by appropriation, 53, 
 
 causing injuries to ditches, 67. 
 
 liability of appropriator for, 71-78. 
 
 in construction and maintenance of dam, 72, 73. 
 
 unlawful discharge of mining debris, 76-78. 
 
 works abandonment, when, 89, 90. 
 
 NEVADA, 
 
 statutes of, regulating riparian rights, 97. 
 riparian rights in private streams of, 108 et seg. 
 
 NEW MEXICO, 
 
 statutes of, regulating water-rights, 102. 
 system of, impracticable for California, 149. 
 
 NOTICE, 
 
 of intent to appropriate, 50, 51. 
 
 not sufficient without actual appropriation, SOl. 
 
 how given, 51. 
 
 provided for by statute in California, 96. 
 
 NUISANCE, 
 
 miners' customs cannot legalize, 24, 77, 
 unlawful diversion of stream is a, 68. 
 pollution of water is a, 70. 
 effects of hydraulic mining, 77.
 
 INDEX. 299 
 
 o. 
 
 OVERFLOW, 
 
 of dam, liability for damages caused by, 72, 73. 
 carrying mining debris, 76-78, 
 
 P. 
 
 PATENT, 
 
 subsequently issued, is subject to prior appropriation, 25. 
 
 power of government to annex conditions to. 33. 
 
 when to be issued, 34. 
 
 title under, vests when, 35. 
 
 whether relates back to initial steps, 38. 
 
 PERCOLATING WATERS. 
 
 when constitute a water-course, 63. 
 
 PLACE, 
 
 of using water appropriated may be changed, 65. 
 statute of California conceruing, 96. 
 
 POSSESSION. 
 
 without title, may support water-rights, 46. 
 
 PRE-EMPTION, see Patent; Settlerf, 
 
 PRESCRIPTION, 
 
 right to commit a public nuisance cannot be acquired by, 77. 
 rights to water acquired by, 89, 90, 118, 137. 
 
 PRESUMPTION, 
 
 of a license from government for mining operations, 22, 23. 
 that stream was on public lands, 93. 
 
 PRIORITY. 
 
 as between settlers and appropriators, 33 et seg. 
 successive appropriations, 83. 
 
 statute of California regarding, 96. 
 
 PROPRIETORSHIP, 
 of public lands, 31. 
 
 PUBLIC LANDS, 
 
 right to appropriate waters flowing through, 13-24. 
 grantee of, takes subject to prior appropriation, 25.
 
 300 INDEX. 
 
 PUBLIC LANDS— Continued. 
 
 of the state, whether open to appropriation, 29. 
 right of appropriation confined to, 30. 
 appropriation may be independent of title to, 46. 
 primary disposal of, carries riparian rights, 113. 
 
 PUBLIC USE, see Eminent Domain. 
 
 PURPOSE, 
 
 of appropriation, 47. 
 
 of appropriation may be changed, 65. 
 
 determines extent of right acquired, 79. 
 
 to which water may be applied by riparian owner, 119. 
 
 use of water for irrigation, 128-144. 
 
 R. 
 RAVINE, 
 
 may be used as part of appropriator's ditch, 48. 
 
 REALTY, 
 
 riparian owner's right to flow of stream is part of, 9. 
 when flowing water is part of, 55. 
 ditches and canals are, 57. 
 
 REASONABLE DILIGENCE, 
 
 in completing appropriation, 52. 
 
 required by statute in California, 96. 
 
 REASONABLE USE. 
 
 of water by riparian owner, 125. 
 
 is a question of fact, 125, 
 
 for manufactures, 126. 
 manner of use must be reasonable, 127. 
 of water for irrigation, 128-144. 
 measure of reasonableness, 136. 
 
 RELATION, 
 
 doctrine of, applied to inceptive rights of pre-emption claimant, 88. 
 applied to date of appropriation, 54. 
 
 REMEDIES. 
 
 for injuries to ditches, 67. 
 for unlawful diversion, 68. 
 in equity, 69.
 
 INDEX. 301 
 
 REMEDIES— Continued. 
 
 for injuries to quality of water, 70. 
 
 for damages caused by dams 9t ditches, 71-78. 
 
 for injuries from mining debris, 76. 
 
 against injurious effects of hydraulic mining, 77. 
 
 RIPARIAN 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, 12-34. 
 
 miners' customs as to, 14, 24. 
 
 doctrine of prior appropriation, 15. 
 
 legislation of congress as to, 17. 
 
 appropriation as against subsequent patentee, 35 
 
 act of congress of 1870, 38. 
 
 on public lands of the state, 29. 
 
 appropriation confined to public 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. 
 
 under Mexican grant, 42. 
 
 how appropriation is effected, 44-54. 
 
 nature of the right acquired by appropriation, 55-70. 
 
 definition and characteristics of a water-course, 63. 
 
 deterioration of quality of water is actionable, 70. 
 
 liability of appropriator for damages caused by dams or ditches, 
 
 71-78. 
 injurious effects upon, of hydraulic mining, 77 
 successive appropriations, 82-88. 
 abandonment of, 88-91. 
 distinguished from appropriation, 94. 
 legislation on the subject of, 94. 
 
 California, 96. 
 
 Nevada, 97.
 
 302 INDEX. 
 
 RIPARIAN RIGHTS-Continued. 
 
 Montana, 98. 
 
 Colorado, 99. 
 
 Idaho, 100. 
 
 Dakota, 101. 
 
 New Mexico, 103. 
 
 Arizona. 103. 
 
 Wyoming, 104 
 
 Utah, 105. 
 abolished in several states and territories, 106. 
 on private streams of California and Nevada, 108 etseq, 
 common law governs, in California, 110. 
 how affected by section 1422, Civil Code Cal., 111-113. 
 under Roman and Mexican law, 114. 
 in Kern district, 115. 
 
 governed by common law of England, 116. 
 who are riparian owners, 117. 
 uses to which the water may be put, 119 et seq. 
 general statement of law of, 119. 
 legitimate riparian uses, 121. 
 California decisions on riparian uses, 133, 
 natural uses, 123. 
 secondary or artificial uses, 124. 
 reasonable riparian use, 125. 
 use for manufactures, 126. 
 manner of use must be reasonable, 137. 
 use of water for irrigation. 128-144. 
 
 no right to irrigate non-riparian lands, 133. 
 
 prior appropriation gives no exclusive right, 133. 
 
 relative equality of riparian owners, 134. 
 
 size of stream affects, 135. 
 
 use must be reasonable, 136, 139. 
 
 irrigation is subordinate to natural wants, 138. 
 
 test of reasonableness in use, 139-143. 
 
 surplus water must be restored, 144. 
 suggestions for legislation concerning, 145-161. 
 
 need of statutory regulation, 145. 
 
 common-law rules inadequate for question of irrigation, 146. 
 
 contents of proposed statute, 147. 
 
 essential nature of proposed statute, 148. 
 
 system of acequias impracticable, 149. 
 
 I
 
 INDEX. 303 
 
 RIPARIAN RIGHTS— Continued. 
 
 Colorado system criticised, 150. 
 
 legislation must respect natural laws and natural rights, 151. 
 
 natural rights and advantages of riparian owners, 153. 
 
 jurisdiction of equity in settling water-rights, 154. 
 
 legislation to the same end, 155. 
 
 provision for non-riparian lands, 156. 
 
 condemnation of stream for public use, 157. 
 
 whether irrigation is a public use, 158. 
 
 taking stream under eminent domain, 159. 
 
 summary of suggestions concerning legislation, 160. 
 
 concluding observations, 161. 
 
 RIVERS, see, also, Wateb-Courses. 
 
 no exclusive appropriation of, at common law, 4. 
 
 what are, subject to appropriation, 61. 
 
 obstruction of, by debris from hydraulic mining, 77. 
 
 legislation on the subject of, 94. 
 
 ownership of, under Roman and Mexican laws, 114. 
 
 use of, for irrigation, 128-144 
 
 ROMAN LAW, 
 
 riparian rights under, 114. 
 
 SALE, 
 
 of water-rights and ditches, 58. 
 when works abandonment, 89. 
 
 SETTLERS, 
 
 take subject to prior appropriation, 25. 
 
 and appropriators, conflicting claims of, 33. 
 
 title of, when vests, 84. 
 
 whether patent relates back to initial steps, 38. 
 
 SOVEREIGNTY, 
 
 over public lands, 31. 
 
 SPECULATION, 
 
 appropriation of water for purposes of, is nugatory, 47. 
 
 SPRINGS, 
 
 wrongful diversion of, 87.
 
 304 INDEX. 
 
 STATE, 
 
 public lands of the, whether open to appropriation, 29. 
 and United States, relative jurisdiction of, over public lands, 31. 
 power of, to restrain hydraulic mining, 77. 
 
 riparian rights of, not reserved by section 1422, Civil Code Cal., 113. 
 power of, to regulate water-rights, not affected by former preva- 
 lence of Mexican law, 114. 
 
 STATUTES, 
 
 act of congress of 1866, 17. 
 
 act of congress of 1870, 28. 
 
 do not sanction injurious effects of hydraulic mining, 77. 
 
 regulating riparian rights, 94 et seq. 
 
 construction of section 1422, Civil Code Cal., 111-113. 
 
 concerning water-rights, suggestions for, 145-161. 
 
 STREAMS, see WaterCoubses. 
 
 SUBTERRANEAN WATERS, 
 
 when constituting a water-course, 63. 
 
 SUCCESSIVE APPROPRIATORS, 
 
 priority as between, 44. 
 rights acquired by, 82-88. 
 
 SUIT, see Action. 
 
 SURFACE WATER, 
 
 may constitute a stream, when, 62 
 
 T. 
 
 TENANTS IN COMMON, 
 
 of water-rights, 59. 
 
 TIME, 
 
 periodical appropriations, 84. 
 
 TITLE, 
 
 from United States, vests, when, 34. 
 
 priority of, as against subsequent appropriator, 35, 86. 
 
 relation of, to initial steps, 38. 
 
 inceptive, riparian rights under, are protected, 37. 
 
 water-rights may depend on mere possession, 46. 
 
 by appropriation, when perfect, 53, 54.
 
 INDEX. 305 
 
 TITLE— Continued. 
 
 appropriator's right begins at head of his ditch, 55. 
 
 to ditches and canals, 57. 
 
 to ditches and water-rights, sale of, 57, 58. 
 
 to water-rights, in co-tenancy, 59. 
 
 to water, abandonment of, 88-91. 
 
 to water-rights, legislation on the subject of, 94 etaeg. 
 
 prescriptive water-rights, 118. 
 
 TRESPASS, 
 
 upon rights of riparian owners, 74 
 
 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, 77. 
 
 rights of, not affected by section 1422, Civil Code Cal., 113. 
 
 USE, 
 
 of water by riparian proprietors, at common law, 4. 
 intent to apply water to beneficial use is indispensable to valid ap- 
 propriation, 47. 
 
 water must be actually put to use, 49. 
 place and manner of, appropriator may change, 65. 
 must not pollute water, 70. 
 
 determines amount of water acquired by appropriator, 79. 
 non-user works abandonment, 89, 90. 
 of water by riparian proprietor, 119-128. 
 
 legitimate riparian uses, 121. 
 
 natural uses, 123. 
 
 secondary or artificial uses, 124. 
 
 must be reasonable, 125. 
 
 reasonableness is question of fact, 125. 
 
 POM. RIP. — 20
 
 S06 INDEX. 
 
 USE— Continued. 
 
 for manufactures, 126. 
 
 manner of, must be reasonable, 137. 
 
 for irrigation, 1,8-144. 
 
 irrigation is subordinate to natural wants, 138. 
 
 UTAH, 
 
 statutes of, concerning water-rights, 105. 
 
 w. 
 
 WATER, 
 
 importance and value of, in Pacific states, 1, 3. 
 no appropriation of, at common law, 4. 
 right to, ma}' be independent of title to land, 46. 
 intent to apply to beneficial use necessary to valid appropriation, 47. 
 must be actually diverted, 48. 
 and put to actual use, 49. 
 appropriator has no right to, above his ditch, 55. 
 rights in. may be sold, 58. 
 pollution of, is actionable, 70. 
 
 unlawful discharge of, upon lands of adjoining proprietor, 75. 
 acquired by appropriation, amount of, 79. 
 capacity of ditch as measure of appropriation, 80, 81. 
 successive appropriations of, 83-88. 
 surplus, may be appropriated, 83. 
 increase in, how divided, 86. 
 abandonment of, 88-91. 
 legislation on the subject of, 94 et seq. 
 riparian rights in California and Nevada, 108 et seq. 
 use of, by riparian proprietor, 119-128. 
 use of, for irrigation, 128-144. 
 taken for public use, 157-159. '. 
 
 WATER-COURSES, 
 
 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. 
 
 appropriation of, for mill purposes, at common law, 11. 
 
 (
 
 INDEX. 307 
 
 WATER-COURSES-Continued. 
 
 origin and basis of the right to appropriate, 12-24. 
 
 presumed license to divert, 22, 23. 
 
 appropriation of, is servitude ou subsequent grant, 25 
 
 on public lands of the state, 29. 
 
 appropriation of, restricted to public domain, 30. 
 
 actual diversion of, necessary to complete appropriation, 48. 
 
 appropriator has no right to, above his ditch, 55. 
 
 rights in, may be sold, 58. 
 
 co-tenancy in, 59. 
 
 definition and characteristics of, 61-63. 
 
 equity will enjoin unlawful diversion of, 69 
 
 pollution of, is actionable, 70. 
 
 liability of appropriator for damages caused by ditches or dams, 
 
 71-78. 
 obstruction of, by debris froni hydraulic mining, a public nui- 
 sance, 77. 
 increase in, how divided, 86. 
 abandonment of rights to, 88-91 
 when presumed to be public, 93. 
 legislation on the subject of, 94 et seq. 
 riparian rights in California and Nevada, 108 et seq. 
 rights in, under Roman and Mexican law, 114. 
 who are riparian owners, 117. 
 
 uses to which the water may be put, 119. " 
 
 use of, for irrigation, 128-144. 
 size of stream as affecting use, 135. 
 suggestions for legislation concerning, 145-161. 
 natural rights and advantages of riparian owners, 153. 
 condemnation of, for public use, 157-159. 
 
 WYOMING, 
 
 legislation of, concerning water-rights, 104. 
 
 WEST PUBUSHINQ 00., PRINTERS, SAINT PAUL, MINN.
 
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