that case, in Ellis v. Tone; but, as we have shown, it is not definitely settled by that decision.

In the third place, there is nothing in the common-law doctrines, as the supreme court of Nevada have stated in the case of Van Sickle v. Haines, which prohibits the use of water for irrigation by the private riparian proprietors on all streams, as a part of their general rights. The fundamental notion being that of relative equality of right among all the proprietors on the same stream, it is evident that, if the natural flow of the water is sufficient to allow each one of them to take an amount sufficient for the needs of his own tract of riparian land, without infringing upon the equal rights of the others, no injury could possibly result from such an appropriation and use. The only difficulty would arise where the natural flow of the stream was not large enough to furnish such a complete and unrestricted supply to every proprietor.

The common law permits each proprietor to use the water of a stream, as it flows by or through his own land, for any purpose, like the propelling of machinery, which does not consume it to any substantial extent. But a use which necessarily consumes the water-like that for purposes of irrigation-lessens the natural flow of the stream, and therefore tends to invade the equal rights of other riparian proprietors. If, however, after any proprietor has used and consumed all the water which he reasonably needs for the irrigation of his own land, there is still left an amount flowing down the stream adequate for the similar needs of all the other riparian proprietors below him, the result of his act would at most be a damnum absque injuria. On the larger streams of the state, therefore, in which the natural flow of water is considerable and is constant throughout all seasons of the year, irrigation might be resorted to, it would seem, by

the private riparian proprietors, without any practical violation of the common-law doctrines. On the minor streams, in which the natural flow of water is small and inconstant, varying with different seasons, the difficulty is much greater. In fact, it seems hardly possible for a proprietor upon such a small and varying stream to consume a quantity of the water sufficient for the irrigation of his own land, without thereby lessening the natural flow to such an extent as to invade the equal rights of the other proprietors.

§ 151. Reasonable use for irrigation.

Finally, it is very plain that the only right of a private riparian proprietor to appropriate the water of the stream for the purpose of irrigation, which is consistent with the common-law doctrines, is a right which belongs in relative equality to all the proprietors alike. The quantity of water which any proprietor may divert must depend, in the first place, upon the extent of his own land and the amount reasonably requisite for its irrigation; and, in the second place, upon the extent of the lands held by all the other riparian proprietors, and the amount reasonably requisite for their irrigation; and, in the third place, upon the size of the stream itself, and its capacity to furnish a supply for all these proprietors. Or, to state the same position in other words, each riparian proprietor is only entitled to use, for the purpose of irrigating his own land, that portion of the stream which is in excess over the amount thereof to which all the other proprietors are equally entitled for the purpose of irrigating their own tracts of land.1 Any other rule than this must necessarily vio

[In Messinger's Appeal, 109 Pa. St. 285, 4 Atl. Rep. 162, it was said: "It is a well-recognized rule that a riparian proprietor may, jure naturæ, divert water from a stream for domestic purposes and

for the irrigation of his land; but to what extent he may do the lat ter in any particular case, depends on whether it is reasonable, having due regard to the condition and circumstances of other propri

late natural justice and equity. It is plain, however, that when the stream is small, where the flow of water is varying, where its amount is insufficient to furnish a constant and considerable excess over and above the needs of all the riparian proprietors, this common-law rule can only be a very imperfect and impracticable guide; it needs to be supplemented and aided by positive legislation. The character and object of such legislation we shall attempt to explain in the succeeding and final chapter.

§ 152.

Easements and adverse user.

All the foregoing discussion concerning the rights of private riparian proprietors has assumed and treated their rights as they exist at the law, unaffected by agreement or other conduct among the proprietors themselves. It is hardly necessary to state that any private riparian proprietor upon a stream may obtain, as against other proprietors, special rights to use the water, in the nature of easements or servitudes, far other and greater than those which the law confers upon him simply as a riparian proprietor. Thus, for example, he may obtain, by grant from other proprietors, or by prescription against them, the exclusive right to any portion of the waters of a stream for purposes of irrigation; and thus a prior appropriation may by prescription ripen into a lawful right, as against all the other riparian proprietors, to use the entire waters of a stream for any beneficial purpose. It is not our design to enter into any discussion of the servitudes which may thus be acquired by grant or by prescription. The

etors on the stream; he should not so divert it as to destroy or mate rially diminish or impair the ap plication of the water by other proprietors." The right of a proprietor to use a due proportion of the water for irrigation cannot be LAW W. R.-20

affected by the grant of a right to divert the waters of the same stream, made by an adjacent pro prietor. Anaheim Water Co. v. Semitropic Water Co., 64 Cal. 185, 30 Pac. Rep. 623.]

(305)

law on this subject is in no manner peculiar to these Pacific communities, except in the remarkably short statutory period of adverse user-five years-adopted by the Code of California. § 153. Relation of irrigation to the natural wants. [Water for irrigation is not a natural want in the same sense that water for quenching thirst is, which a riparian proprietor may satisfy without regard to the rights and needs of proprietors below. Thus a riparian owner may lawfully divert the water of a stream, for the purpose of irrigating his land, to a reasonable extent, but in no case may he do this so as to destroy, or render useless, or materially affect, the application of the water by other riparian proprietors. Now, it follows from this principle, in the first place, that a riparian owner cannot divert all the water of a stream, for the purpose of irrigating his lands, without regard to the rights of other owners, even though the whole stream might be needed for the sufficient accomplishment of his purpose. This question was presented in the most direct and explicit manner in the recent case of Learned v. Tangeman. The action was brought by a private riparian proprietor against another private riparian proprietor, having lands situated upon the banks of the same stream higher up than the lands of the plaintiff. The defendant had diverted the water of the stream for the purpose of irrigating his own riparian lands, and the plaintiff complained that he had diverted and used more than the amount to which he was entitled, and had thereby deprived the plaintiff of the portion of the waters of the stream to which he was entitled for the irrigation of his own riparian land. At the trial the judge instructed the jury that, "if they believed from the evidence that the defendant was a riparian proprietor, and used the water of the stream for the purpose of irrigating

1 Union Mill Co. v. Ferris, 2 Sawy. 176.

265 Cal. 334, s. c. 4 Pac. Rep. 191.

his lands, and used no more than was necessary for that purpose, and returned the surplus water after such use into the channel, then they should return a verdict for the defendant." It is perfectly evident that this instruction of the trial court was given upon the assumption that the right of a riparian proprietor to use the water of a stream for the irrigation of his lands is identical and co-extensive with the natural right of a riparian proprietor to use the water for watering his cattle, for drinking, and for other strictly domestic purposes; that, in the one case as well as in the other, a riparian proprietor is entitled, by the law, to divert and consume all the amount of the stream which may be reasonably necessary for his purposes, even though a sufficient. quantity is not left remaining to flow down the channel for similar needs of the riparian proprietors below him. If this assumption of the lower court had been correct, then the instruction to the jury, as given in this case, would undoubtedly have stated the rule of law applicable to the facts with substantial accuracy. But the decision of the supreme court shows, in the clearest and most positive manner, that the assumption was incorrect, and that the right to use water for irrigation is not identical or co-extensive with the right to use it for watering cattle and other like domestic purposes. The supreme court, after quoting the instruction to the jury as given above, proceed to condemn it in the following language: "This (instruction) was error, for by it the jury were in effect told that the defendant was entitled to divert and use all of the water of the stream, if necessary for the irrigation of his land, without regard to the wants or necessities of the other riparian proprietor." The judgment was therefore reversed, and a new trial of the cause was ordered.1

[The foregoing account of the case of Learned v. Tangeman is in the language of Professor Pomeroy, and is taken from an article

which appeared in the West Coast Reporter after the close of the series which forms the basis of the present work. ED.]