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WHOLE No. 14.

APRIL 3, 1884.

VOL. II. No. 6.




The preceding discussion has been exclusively confined to the rights of appropriating and using the waters of public streams, flowing entirely through the public lands of the United States, before any private owner has acquired from the government, bỹ patent or otherwise, the title to a tract or tracts of land upon their banks. All the decided cases heretofore cited, and all the judicial opinions, except perhaps a few dicta in one or two of the very earliest California cases, have distinguished between the appropriation from these public streams, and the rights to the water after the land, or any part of it, bordering on a stream has passed into the ownership of private proprietors. In the recent decisions, the court most carefully guards against any inference that they affect the rights of such owners, and expressly distinguishes between the rules laid down governing the taking and use of water from public streams, and those relating to “riparian proprietors” and “riparian rights” properly so called. I purpose now to examine the position of these “riparian proprietors,” and to ascertain, as far as possible, what are their “riparian rights,” under the law of the Pacific communities. If, before any appropriation whatever has been made of the waters of a stream hitherto wholly public, a private person acquires from the government the title to, and thus becomes the absolute owner of, a tract of land through which such stream runs, or even lying on one of its banks, although he makes no actual diversion of the water, an entirely new element is introduced into the problem. He is clearly not embraced within the operations of the doctrines heretofore explained; he is a true "riparian proprietor; ” his own rights over the stream are as complete and perfect as though all the other lands on its borders were held by private owners; the unrestricted right of diverting and using the water for some beneficial purpose by any prior appropriator does not exist against him. A fortiori is this so, where many owners have acquired title to different tracts abutting on the stream, and finally where all the lands bordering

No. 14-1.


on both sides of the stream through its whole length have passed into the ownership of private proprietors. There is then presented exactly the condition of circumstances which exists in England and in the older and fully settled states of the Union—the condition in which the common-law doctrines concerning riparian rights arose, and to which they were originally applied. Assuming a stream to be so situated, with the lands on its banks owned by private proprietors, and assuming that no proprietor has yet made any actual diversion of its waters, the question is fairly presented: Can any one of these owners, by means of a prior appropriation, acquire the right, as against the others, to divert, use, and consume any quantity of the water which may


for some beneficial purpose, such as irrigating, mining, etc., and thus deprive all the other proprietors bordering on the stream, above and below him, of the benefits and uses of the stream, as may be done by the prior appropriator on a public stream? Or, on the other hand, are the rights of all these proprietors equal and alike, irrespective of any appropriation or diversion actually made by any one of them, and are their rights defined, measured, and regulated by the common-law rules concerning riparian proprietors; in other words, are their rights, in a true sense, the “riparian rights” recognized and protected by the common-law doctrines? Or, finally, if neither of these inquiries can be fully and unreservedly answered in the affirmative, has any other peculiar system of rules applicable to such persons been established, combining in some measure the common-law doctrines with the special doctrines touching the appropriation of public streams? Do the common-law rules wholly control? or do the doctrines concerning public streams govern? or has any other modified system of regulations been established ? or is the whole matter still left in a condition of uncertainty, to be settled by the courts or the legislature? These are the questions which must be examined, and their answer, if possible, given. In pursuing this examination, we must ascertain, first, whether the statutes furnish any, and if so what, auswer; and second, what conclusions may be derived from judicial decisions. I shall, therefore, by way of introduction, give a summary of the legislation on the subject which has been adopted by the various states and territories embraced within our discussion.

I. Summary of statutory legislation.

California. The civil code of California, which went into effect on the 1st of January, 1873, contains the following provisions, which, in terms, apply to all streams, public and private; their language being general, not restricted to any class of streams, must, of course, be construed as applying to all. It will be noticed, however, that these provisions are a mere statutory declaration or enactment of the special rules which had been previously settled by the courts concerning the appropriation of public streams, virtually as formulated in the previous sections of this essay. The title of the code is denominated “ Water Rights," and contains the following sections, which I quote in full.

“$ 1410. The right to the use of running water flowing in a river or stream, or down a canyon or ravine, may be acquired by appropriation. $ 1411. The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose, the right ceases. § 1412. The person entitled to the use may change the place of diversion, if others are not injured by such change, and may extend the ditch, flume, pipe, or aqueduct by which the diversion is made to places beyond that where the first use was made. $1413. The water appropriated may be turned into the channel of another stream, and mingled with its water, and then reclaimed, but in reclaiming it the water already appropriated by another must not be diminished. $1414. As between appropriators, the one first in time is the first in right. $1415. A person desiring to appropriate water must post a notice in writing, in a conspicuous place, at the point of intended diversion, stating therein, (1) that he claims the water there flowing to the extent of (giving the number) inches, measured under a four-inch pressure; (2) the purposes for which he claims it, and the place of intended use; (3) the means by which he intends to divert it, and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it. A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the county in which it is posted. $1416. Within sixty days after the notice is posted, the claimant must commence the excavation or construction of the works in which he intends to divert the water, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snow or rain. $1417. By “completion” is meant the conducting the waters to the place of intended use. $ 1418. By a compliance with the above rules, the claimant's right to the use of the water relates back to the time the notice was posted. $1419. A failure to comply with such rules deprives the claimants of the right to the use of the water as against a subsequent claimant who complies therewith. § 1420. Persons who have heretofore claimed the right to water, and who have not constructed works in which to divert it, and who have not diverted nor applied it to some useful purpose, must, after this title takes effect, and within twenty days thereafter, proceed as in this title provided, or their right ceases. $ 1421. The recorder of each county must keep a book, in which he must record the notices provided for in this title.” All these provisions by themselves would furnish a reasonably clear and certain system of rules applicable to all streams, whatever may be thought of their expediency or justice; but the following and final section turns the whole into utter doubt and uncertainty so far as it can apply to private streams or streams bordering on the lands of private owners. This final section is as follows: “$ 1422. The rights of riparian proprietors are not affected by the provisions of this title.

I would remark in passing, that so far as the title applies to streams wholly public, on the banks of which there are as yet no riparian proprietors and, of course, no “riparian rights,” it furnishes a system of rules which must be complied with by all those who seek to make an appropriation of the water subsequently to the going into effect of the statute. Thus, for example, the contents of the notice and the place of posting are definitely described; also the time within which work must be commenced after posting the notice is fixed in all cases; and the work must be prosecuted “uninterruptedly,” the only causes of interruption allowed being “snow or rain.” The early decisions prescribed no such definite rule, but left the time of commencing the work, and of prosecuting it to completion, to depend upon many other special circumstances of each case, such as the situation and physical conformation of the country, the difficulty of transportation, of obtaining materials and labor, and the like. So far, therefore, as the title applies solely to the appropriation of water from streams wholly public, it furnishes rules which must be obeyed, somewhat more definite and less elastic than those laid down by the courts; and as to its meaning, force and effect in connection with such streams, there seems to be no uncertainty nor difficulty.

In addition to these provisions of the civil code there is a statute called "An act to promote irrigation,” passed in 1872. This statute provides that if" owners of any body of lands susceptible of one mode of irrigation," desire to irrigate the same, they may take steps in connection with the board of supervisors by which they become an association for irrigating purposes. They may make by-laws for the appointment of trustees, who have general management of their affairs, and for the construction and maintaining of irrigating works. The powers and duties of these trustees are defined. Provisions are made for assessments upon the members of the association, for the purpose of defraying the cost of constructing and maintaining the works. § 22. “The trustees may acquire, by purchase, all property necessary to carry out and maintain the system of irrigation provided for. § 23. The trustees may acquire by condemnation: (1) The right to the use of any running water not already used for culinary or domestic purposes, or for irrigating, milling or mining purposes; (2) the right of way for canals, drains, embankments, and other works necessary,” etc., etc. $ 24. The provisions of title VII, part III, of the code of civil procedure (concerning the condemnation of private property for public uses) are applicable to, and the condemnation herein provided for must be made thereunder.” It is further provided that parties owning the whole district to be irrigated may proceed as above described, without appointing any trustees—that is, may manage the whole by themselves. This act is declared not to extend to the counties of Fresno, Kern, Tulare and Yolo.

1 Stats. of 1871-2, p. 945–948.

It is very plain that this statute does not contemplate nor recognize any right of land-owners to appropriate the waters of private streamsthat is of streams running through or adjacent to lands of private owners. The “riparian rights” of such owners are most certainly assured and protected; for the owners desiring to appropriate the water of such a stream must proceed to condemn it under the right of eminent domain, and must of course pay compensation; and the only parties who could be compensated are the owners of lands on the banks of the stream, whose “riparian rights” to use its waters would be invaded. Such riparian rights, like all other rights of private property, are held subject to the state's power of eminent domain.

Nevada. The only legislation of this state bearing on the subject, which I have found, is contained in certain sections of the compiled laws, which permit the construction of flumes or ditches for carrying water. Parties may construct a ditch or flume across private land, and to that end may take such land by right of eminent domain, on paying just compensation to the owner thereof, the amount of the compensation to be determined in a manner and by a proceeding described. This act shall not interfere with any prior or existing claim or right. The statute makes no allusion to the appropriation of or acquisition of title to the water to be conducted by such ditches or flumes.

Montana. The legislation of this territory is in complete derogation of the common-law “riparian rights.” It will be noticed that the lands for which it provides the use of water may be situated anywhere within the territory. Their situation on, near or at a distance from streams is wholly immaterial. I give an abstract of the provisions, only quoting the exact language of the most important and fundamental provisions."

$ 731. Any person or corporation owning or having a possessory title to any agricultural land "shall be entitled to the use and enjoyment of the waters of the streams and creeks in said territory, for the purposes

of irrigation and making said land available for agricultural purposes, to the full extent of the soil thereof." Proviso, when by a prior appropriation any person has diverted all the water of a stream, or so much thereof that there is not an amount left sufficient for those having a subsequent right thereto for irrigation, then any surplus left by said prior appropriator shall be turned back into the stream for the use of subsequent claimants, with a penalty in the form of damages for a neglect to do so after demand made.

3 Comp. Laws of Nev. (1873), vol. 2, SS 3852- 4 Rev. Stat. of Mont. (1879), p. 562, SS 731. 3855.


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