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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 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 appropriations 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, unless 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 reversed, 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.
LEGISLATION ON WATER RIGHTS.
L LEGISLATION ON THE SUBJECT.
8 102. Distinction between appropriator and riparian owner.
103. Appiication of the common law.
119. Federal Legislation.
& 120. Riparian rights abolished.
121. Two distinct systems.
I. LEGISLATION ON THE SUBJECT.
$ 102. Distinction between appropriator and ripa
rian owner. 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 recent decisions, the court most carefully guards against any inference 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 "riparian proprietors” and “riparian rights,” properly so called. I purpose now to examine the position of these "riparian proprietors," and to ascertain, as far as possible, what are their "riparian rights,” under the law of the Pacific communities. If, before any appropriation whatever has been made of the waters of a stream hitherto wholly public, a private person acquires from 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 di1 version of the water, an entirely new element is introduced into
the problem. He is clearly not embraced within the operation: of the doctrines heretofore explained. He is a true "ripariar proprietor.” His own rights over the stream are as complete and perfect as though all the other lands on its borders were held by private owners. The unrestricted right of diverting and using the water for some beneficial purpose by any prior appropriator 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,-ihe condition in which the common-law doctrines concerning riparian rights arose, and to which they were originally applied.
$ 103. Application of the common law.
Assuming a stream to be so situated, with the lands on its banks owned by private proprietors, and assuming that no proprietor has yet made any actual diversion of its waters, the question is fairly presented, can any one of these owners, by means of a 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 irrigating, 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 appropriator on a public stream? Or, on the other hand, are the rights of all these proprietors equal and alike, irrespective of any ap
ropriation or diversion actually made by any one of them, and are their rights defined, measured, and regulated by the common-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 answered in the affirmative, has any other peculiar system of rules applicable to such persons been established, combining in some measure the common-law doctrines with the special doctrines touching the appropriation of public streams? Do the common-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 examination, we must ascertain–First, 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 subject which has been adopted by the various states and territories embraced within our discussion.
§ 104. Summary of statutory legislation-Califor
The Civil Code of California, which went into effect on the first of January, 1873, contains the following provisions, which, in terms, apply to all streams, public and private. Their language 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 settled by the courts concerning the appropriation of public streams, virtually as formulated in the previous sections of this essay. The title of the Code is denominated “Water Rights,” and contains 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 acquired 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 mado 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 appropriators, the one first in time is the first in right.