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cerning Water Rights and the Rights of Riparian Owners, as it
prevails in the southern states and territories of the Pacific slope; . to ascertain, as far as practicable, the rules which have been es
tablished by statute or by judicial decision; to point out the omissions, imperfections, contradictions, or questions left unsettled; and to compare these results generally with the commonlaw and the Spanish-Mexican systems. I may, in conclusion, suggest some amendments which might properly be made by the legislature.
In these Pacific states and territories, water is the one essential element of all productiveness and consequent prosperity. Its use for mining operations first attracted attention, and was the subject of some partial legislation. Its use for agricultural purposes of every kind has become far more important and beneficial, and more closely connected with the permanent welfare of these communities. Regions which are apparently most desert and sterile, can, with a sufficient supply of water, be turned into gardens, and made to "blossom as the rose.” Nature has arranged abundant means and facilities for such an artificial supply. For example, in the great San Joaquin valley east of the San Joaquin river-which at times seems to be an expanse of dry sand—there is hardly an acre which cannot be reached by a well-constructed system of irrigation utilizing the water of the streams which rise in the high sierras, cross the valley at nearly equal intervals, and empty into the San Joaquin. With such irrigation, the whole valley would be, perhaps, the most fertile district in the world. I may remark in passing that never before did I so fully appreciate this wonderful transforming power of water, as after riding, some years ago, a whole day over the foot-hills, parched and browned and barren, I drove the few miles from the ferry at Merced Falls to the village of Snelling, through what was in fact a rural paradise, -through green fields, roads overarched with rows of magnificent trees, and door-yards filled with flowers, -all the effect of irrigation obtained from the Merced. Similar illustrations may be seen in all parts of this state. But these uses of water for mining, for irrigation, for municipal purposes, necessarily diminish, to a very considerable extent, the natural and normal supply of the lakes and streams from which it is taken, and therefore conflict with the common-law rights of the riparian owners, and violate the settled doctrines of the common law. It is simply impossible to utilize water for any of these purposes, and then to return it, substantially unchanged, in amount and condition, to its original channels. The problem is to reconcile, or rather to adjust, these necessary uses, and the common-law rights and interests of all other and riparian proprietors. It will be expedient to state by way of preface, for purposes of comparison and illustration, the general doctrines of the common law; and this will be attempted in the following chapter.
THE COMMON-LAW DOCTRINE.
§ 4. Priority of appropriation gives no superior right.
5. Statement of leading cases.
§ 4. Priority of appropriation gives no superior
right. The common-law doctrine, in its most general form, is that the water of permanent running streams and of inland lakes is sacred to the common use alike of all the riparian proprietors upon their borders. This doctrine extends both to navigable and unnavigable streams and lakes which are wholly inland and territorial. Each proprietor may use the water for all reasonable purposes as it passes through or by his land, provided that he does not interfere with the public easement of navigation in all navigable lakes and streams; but he must, after its use, return it without substantial diminution in quantity or change in quality to its natural bed or channel, before it leaves his own land, so that it will reach his adjacent proprietor in its full, original, and natural condition. No priority of use or appropriation by any one proprietor can give him any higher or more extensive rights than these, as against other proprietors either higher up or lower down on the stream, or abutting on either side of him upon the shores of the lake. More extensive or exclusive rights than these against other riparian proprietors can only be acquired by grant froin them, or by prescription which
presupposes a former grant. Even the state, by its power of eminent domain, cannot give any more extensive or exclusive rights to one proprietor, under color of a public use, without making provision for compensation to all other proprietors whose natural rights would thus be invaded. This general doctrine, and all the detail of subordinate rules to which it leads, are fully sustained by the almost unanimous consensus of modern decisions; although there may be some partial deviations from its consequences in certain particulars in a few of the states.
§ 5. Statement of leading cases.
In the well-considered case of Heath v. Williams, 25 Me. 209, Mr. Justice Shepley briefly but accurately stated the general doctrine: “The cases decide that priority of appropriation of the water of a stream confers no exclusive right to the use of it. A riparian proprietor, who owns both banks of a stream, has a right to have the water flow in its natural current, without any obstruction injurious to him, over the whole extent of his land, unless his rights have been impaired by grant, license, or an adverse appropriation for more than twenty years." In Tyler v. Wilkinson, 4 Mason, 397, Judge Story said: "Of a thing common by nature there may be an appropriation by
1[In the United States it is well settled that mere prior occupancy or appropriation of the water of a running stream by a riparian owner, unless continued for such a length of time as to raise a pro sumption of a grant, can give po exclusive right thereto as against other owners above or below him on the same stream, except where the common law has been modified by local usage or by statutory enactment. Heath v. Williams, 25 Me. 209; Evans v. Merriweather, 3
Scam. 492: Gilman v. Tilton, 5 N.
general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no exclusive right. It is not like the case of mere occupancy, where the first occupant takes by force of his priority of occupancy. That supposes no ownership already existing, and no right to the use already acquired. But our law annexes to the riparian proprietorship the right to the use in common, as an incident to the land; and whosoever seeks to found an exclusive use, must establish a rightful appropriation in some manner known and admitted by the law. Now, this may be either by a grant from all the proprietors whose interest is affected by the particular appropriation, or by a long, exclusive enjoyment without interruption, which affords a just presumption of right.” In Pugh v. Wheeler, 2 Dev. & B. 55, Ruffin, C. J., stated the general doctrine in the following somewhat fuller manner: “If one build a mill on a stream, and a person above divert the water, the owner of the mill may recover for the injury to the mill, although before he built he could only recover for the natural uses of the water, as needed for his family, his cattle, and irrigation; but, if instead of building a mill he had diverted the stream itself, he cannot justify it against a proprietor below, upon the ground that he had thus made an artificial use of the water before the other had made any such application of it. The truth is that every owner of land on a stream necessarily and at all times is using water running through it, if in no other manner, in the fertility it imparts to his land, and the increase in the value of it. There is therefore no prior or posterior in the use, for the land of each enjoyed it alike from the origin of the stream, and the priority of a particular new application or artificial use of the water does not, therefore, create the right to that use; but the existence or non-existence of that application at a particular time measures the damages of a wrongful act of another in derogation of the general right to the use of