It

Code are declaratory of the pre-existing law, the right which could be acquired under the laws to the separate use of the portions of a stream constituted an exclusive usufruct, of the nature of private property, which did not and could not co-exist with a common use of such waters by all. The court then continued: "It was the policy of Mexico to foster and protect navigation. The rivers naturally adapted to the passage of watercraft 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. 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 navigation was, by the civil law, common to all, unless the privilege was limited to a class. Interference with 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 referred to some other source or principle, the Mexican government employed the power of permitting the diversion of waters from innavigable streams, by those not riparian proprietors, upon

Among the authorities cited by the court are the following: 2 Just. Inst. 1, §§ 1, 2; Hal. Int. Law, 147; Moyle, Just. 184; Escriche;

Hall, Mex. Law, 447; Vinnius,

Comm. Inst.; Mason v. Hill, 5 Barn. & Adol. 1; Bow. Mod. Civil Law, 64; Mex. Civil Code, art. 1066. See, also, Sand. Just. 157, 159.

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 to the exclusive use of the waters of such streams. It had power to do this, even if the consequence should be the entire deprivation of the common use. It may be said that the Mexican laws which provided for such concessions to individuals or corporations did not provide for grants to such persons, but were themselves 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 innavigable 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 they complied 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 the common use. No one of such had any right in or to the water until he had complied with the conditions which authorized 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, except in the single case where he acquired a right merely conditional, under laws which reserved the power in the agents of the state or municipality to deprive him of it without indemnification."]

§ 129. 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

1Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 705–711.

affected by the provisions of the Civil Code. It is also held that the common law as to riparian rights was not abrogated by certain 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 1850.1]

§ 130.

Common law of England.

[The rights of riparian owners in California are to be determined 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 system. 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 legislature shows that there was a considerable minority in favor of the adoption of the civil law; and there are circumstances appearing from the proceedings tending to prove that the advantages 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 common 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

1Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 785.

the interpretation of such statute by the courts of the other states."]

§ 131. Who are riparian owners.

[Where a party has a contract for the purchase of lands adjoining a river, upon conditions not yet fulfilled by him, he has not yet acquired the fee, and cannot invoke the doctrine of riparian rights in his favor.2 But one who, though not a riparian owner, derives his right to the use of running water from a riparian 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. But it is held that a mere intruder on land is limited to his actual possession, and the rights of a riparian proprietor do not attach to him. And so also, a mere possessor of unsurveyed government land has no riparian rights to the use of a stream of water flowing through it."]

§ 132. Prescriptive water rights.

4

5

[While the common law recognizes no such thing as an exclusive right acquired by mere priority of appropriation of wa

1Lux v. Haggin, 69 Cal. 255, 10

Pac. Rep. 746, 749.

2 Smith v. Logan, 18 Nev. 149, s.

c. 1 Pac. Rep. 678.

3 Williams Conn. 277.

V. Wadsworth, 51

4 Weill v. Baldwin, 64 Cal. 476,

8. c. 2 Pac. Rep. 249.

5 Watkins v. Holman, 16 Pet. 25. Lake v. Tolles, 8 Nev. 285.

ter, it must be remembered that the riparian owner may obtain exclusive interests in the stream by 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 exercised for the full period of time required by the statute, which is, in this state, five years. A party claiming a prescriptive right for five years, who, within 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 through his neighbor's land, such prescriptive right does not extend to the overflowing of the water over such land to the neighbor's injury. Where a riparian owner has used the waters of a stream for the purpose of irrigation, and has acquired a prescriptive right thereby, a lower riparian proprietor cannot obtain an injunction restraining his so doing on the ground that the diversion of the water has become injurious through a gradual diminution in the natural volume of the stream. But the right to the exclusive use of the water of a stream for irrigating purposes cannot be acquired by adverse possession, where, during the time in which such prescriptive right is claimed to have accrued, there has been an abundant supply of water in the stream for all claimants.5

1 Boynton v. Longley, 19 Nev. 69, 6 Pac. Rep. 437, Hawley, J.

2 Wattier v. Miller, 11 Or. 329, s.

c. 8 Pac. Rep. 354.

3 Tucker v. Salem Flouring-Mills Co., 13 Or. 28, s. c. 7 Pac. Rep. 53.

In Maine, it is

4 Messinger's Appeal, 109 Pa. St. 285, 4 Atl. Rep. 162.

5 Anaheim Water Co. v. Semitropic Water Co., 64 Cal. 185, 30 Pac. Rep. 623.