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ditches over them, and that the statute on this subject is simply declaratory of the common law in that commonwealth.'
1 See Yuoker v. Nichols, 1 Colo. the constitution the unappropri551; Schilling v. Rominger, 4 Colo. ated water of every natural stream 100; Crisman v. Heiderer, j Colo. is the property of the public. Al 589. [The extent to which the common law the riparian owner common-law rule has been abro. is, for certain purposes, entitled gated in some of these states, and to the exclusive use of the water the reasons for it, may be seen in as it flows through his land. Unthe following cases: Oppenlander der the constitution the use of the v. Left Hand Ditch Co., (Colo.) water is dedicated to the people 31 Pac. Rep. 854; Reno Smelting of the state, subject to appropria. Works v. Stevenson, 20 Nev. 269. tion. The riparian owner's right 21 Pac. Rep. 317; Clough v. Wing, to the use of water does not de. (Ariz.) 17 Pac. Rep. 453; Stowell pend upon user, and is not forv. Johnson, (Utah.) 26 Pac. Rep. feited by nonser.
The appro290. In the case last cited it was priator bas no superior right or said: “Riparian rights have never privilege in respect to the use of been recognized in this territory, water on the ground that he is a or in any state or territory where riparian owner. His right of use irrigation is necessary; for the depends solely upon appropriaappropriation of water for the tion and user, and he may forfeit purpose of irrigation is entirely such right by abandonment or by and unavoidably in conflict with nonuser for such length of time the common-law doctrine of ripa- that abandonment may be rian proprietorship. If that had implied. A riparian proprietor. been recognized and applied in owning both sides of a running this territory, it would still be a stream, may divert the water desert.” In Oppenlander v. Left therefrom, provided he returns Hand Ditch Co., supra, the court ibe same to the natural stream had occasion to inquire into the before it leaves his own land, so differences between the common. that it may reach the riparian law doctrine of water rights and proprietor below without matethat established by the consti- rial diminution in quantity, qualtutional provisions in Colorado. ity, or force. The appropriator, The following language was em- though he may not own the land ployed: “Upon examination, we on either bank of a running tind few points of analogy and stream, may divert the water many points of difference between therefrom, and carry the same water rights at common law and wbitbersoever necessity may re. water rights under the constitu- quire for beneficial use, without tion of this state. For illustra- returning it, or any of it, to the tion, note the following: At com- natural stream. in any manner. mon law the water of a natural The appropriator may, under cer. stream is an incident of the soil tain circumstances, change the ihrough which it fows. Under point of diversion, as well as the
§ 121. Two distinct systems.
It will be seen that the legislation, as a whole, in these lastmentioned commonwealths, provides in fact for two distinct systems. One of these is wholly private; permits private owners 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 actions, in which the priority of the appropriation must determine all questions of priority in right. The other system is public, or at least quasi 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 of county governments; have local or district oflicials, 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 commonlaw 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 legislation. These commonwealths are the states of California and Nevada. [But since our learned author wrote the foregoing, it has become apparent that Nevada is no longer to be included among the states in which the common-law doctrine of riparian rights is recognized and in force. And on the other hand, as was shown in the preceding sections, that doctrine must be regarded as applicable in Oregon, and perhaps also in Washington, though the latter point is doubtful.]
place of application, of tbe water. rights, and substituted in lieu He has a property right in the thereof the doctrine of appropriawater lawfully diverted to bene.
tion.") ticial use, and may dispose of the 1 [But it is deemed advisable, in same, separate and apart from the the present edition, in view of the land in connection with wbich the increased interest and the recent right ripened to any one who will legislation on the subject of irri. continue such use without injury gation and ditch companies and to the rights of others. Thus it public irrigation districts, to add appears that the constitution bas, chapters on these important sub. to a large extent, obliterated the jects. See chapters X and XI, in. common-law doctrine of riparian fra.]
1 Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 Pac. Rep. 317. Hayden v. Long, 8 Oreg. 244. LAW W. R.-15
RIPARIAN RIGHTS ON PRIVATE STREAMS.
L NATURE AND EXTENT OF THESE Rights.
& 122. Ambiguity of California statutes on water rights.
123. Review of the authorities.
133. Loss of riparian rights by adverse user and estoppel. II Uses To WHICH THE WATER MAY BE PUT. & 134. General statement of riparian rights-Van Sickle v.
NATURE AND EXTENT OF THESE RIGHTS.
§ 122. Ambiguity of California statutes on water
rights. What is the present condition of the law of California concerning 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 of rules determining and regulating the rights of water in all streams, public and private; but that the effect and operation of these rules are rendered at least doubtful, and perhaps nugatory, in their application to streams running through or by private 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 practical consequence upon the legislation as a whole, because (1) under the law of California, independently 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 protected are simply those which are not inconsistent with the preceding 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 statutes. Before entering upon any discussion of this most important 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 bordering 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 natura; 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