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Tourtellot v. Phelps...
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LAW OF WATER RIGHTS .

CHAPTER I.

INTRODUCTION.

§ 1. Importance of the subject–Need of legislation.

:. Object of the present work. 8. 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 important, 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 regulating them upon a comprehensive and just basis, entirely independent, 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 unjust discrimination, which would inevitably retard, if not completely stop, the development of the most valuable and pernianent natural resources of these states, the following preliminary conditions are essential: (1) The common-law rules concerning water rights should be accurately apprehended, in order that it may be seen how far, and in what particulars, they are unfitted. for the industrial pursuits, the mining, agricultural, grazing, manufacturing, and municipal interests of these Pacific communities. (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 all conflicting interests, as far as it is possible to provide for and protect all by a compromise in which each must make some surrender, must submit to some curtailment. Common justice requires some partial surrender by each in order that all may be benefited; and the chief difficulty lies in making an equitable apportionment of such burdens among all classes of proprietors. Statutes which recognized the rights of riparian owners alone, by simply enacting the common-law rules, would destroy the main usefulness of our streams, and stop the development of the great agricultural resources, by rendering any extensive system of irrigation practically impossible. On the other hand, statutes which should wholly ignore the interests of riparian proprietors would invade vested rights, and produce evils equally grave and far-reaching.

§ 2. Object of the present work.

As well for the purpose of furnishing a slight contribution towards such amendatory legislation, as for the purpose of discussing a subject of great importance to the legal profession, I intend, in the following pages, to examine the existing law con

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