Imágenes de páginas
PDF
EPUB

This case was reargued in 1886; and the opinion then prepared is so exhaustive in its scope, and is characterized by such learning and judicial acumen, that it may almost be said to constitute, 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 suggested in argument that the "riparian rights" designed to be reserved 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 appropriation of water in accordance with the Code provisions. This decision was made to rest upon a point not previously considered 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 are protected by the treaty with Mexico and the good faith of the government. It is the rights of such riparian proprietors as those that are unaffected by the doctrine of appropriation, and those are the riparian rights that are excepted from the operation of the provis

ions of the Civil Code, in relation to water-rights, by section 1422 of that Code.' Lux v. Haggin, 69 Cal. 255, 4 Pac. Rep. 919, 935. But this view cannot be regarded as tenable.

'Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 739.

from interfering with the primary disposal of the public lands of the United States, there is included a prohibition of any attempt on the part of the state to preclude 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 surface, but others of our citizens shall have the privilege of removing all these things, is to say that hereafter the United States shall not sell the water, wood, or ores." The learned judge continued: "The section declares, in effect, that those appropriating water under the previous sections shall not acquire the right to deprive of the flow of the stream those who shall have obtained from the state a title to, or right of possession in, riparian 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 provisions of the Code. If section 1422 of the Civil Code were interpreted 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

subsequent grantee of either government be affected by those provisions."1

The common law, therefore, defines and governs the waterrights of all persons owning lands upon a stream in California, where the waters of such stream had not been already appropriated when their titles accrued.]

§ 128. 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 California, is not in anywise affected or invalidated by the fact that the laws of Mexico obtained in that jurisdiction before its admission 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 common 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,2 where the conclusion above indicated was reached and applied. It was contended by counsel that "the fundamental principle upon which all the laws of the former governments of this territory upon this subject [waters and their uses] were based will be found to be that the flowing wa

1Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 674.

2 Id.

ters of the streams and rivers of the country were dedicated to the common use of the inhabitants, subject to that legislative control which is the equivalent of the exercise of that legislative power which we know as the 'police power' of the state." And the court understood this proposition to mean that "the inhabitants" 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 common use, for irrigation and like purposes, to which the waters were "dedicated," which could not be taken away by the legislative 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 common law as the rule of decision, is not to be construed as an attempt so to restrict the use; and, if it must be thus construed, it is invalid to that extent, since the power of the state is limited to the mere regulation 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 common to all. But the Roman jurists made a distinction between res communes and res publicæ, including the sea among the former 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 publicos being those which, as to property, pertain to a people or nation, and, as to their use, to all the individuals of the territory or district, such as rivers, shores,

ports, and public roads. 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 enjoyment 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 distinction mentioned by the civilians between a river and its waters; 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 property; and he adds: "It seems that the Roman law considered running water not as a bonum vacans, in which any might acquire a property, but as public or common, in this sense only, that all might drink it, or apply it to the necessary purposes of supporting life; and that no one had. any property in the water itself, except in that particular portion which he might have abstracted from the stream, and of which he had the possession, and during the time of such possession 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 1 Denman, J., in Mason v. Hill, 5 Barn. & Adol. 1.

And by the Mexican law the property

« AnteriorContinuar »