18

Utah. The general statutes and session laws of this territory contain an elaborate and detailed system of regulations devoting the water of all streams to the purpose of irrigation. The common-law doctrines concerning property in the waters of streams, and "riparian rights," are completely abrogated. The leading statute concerning irrigation provides for the formation of irrigation districts; the citizens of such districts may be organized into irrigation companies, and may elect trustees for the management of these companies; a tax may be levied upon the lands in each district benefited in order to defray expenses; land may be condemned for ditches, etc.; all ditches and other works become the property of the company, etc. No irrigation company shall be entitled. to divert the waters of any stream to the injury of any irrigation company or person holding a prior right to the use of said water. 19

A more recent statute regulates the use of water by private persons, and protects their rights to such use, supplementary to the former system.20 The selectmen of each county are made "water commissioners," and have general power to manage irrigation, and to regulate the use and distribution of water among the land-owners of their respective counties. This statute contains provisions, not found in any other legislation, which divide the vested rights of private persons to use water for domestic, agricultural, manufacturing and all other beneficial purposes, into two grades, "primary" and "secondary," of which the "secondary" is the subordinate grade." The "primary" vested rights exist, (1) when any person or persons shall have taken, diverted, and used any of the unappropriated water of any natural stream, lake, or lake or spring or other natural source of supply; (2) when any person or

18 Comp. Laws of Utah (1876), pp. 219–225, "An act to incorporate irrigation companies," passed January 20, 1865; amended in Ses. Laws of 1878, pp. 49-53.

19 Ses. Laws of 1878, p. 53, § 7.

No. 16-1.

20 Ses. Laws of 1880, pp. 36-41. "An act for the recording vested rights to the use of water, and regulating their exercise."

593

21 Ibid., §§ 6 and 7.

persons shall have had open, peaceable, uninterrupted, and continuous use of water for a period of seven years. "The secondary" rights exist, subject to the "primary," (1) when the whole water of any stream, lake, or spring, or other natural source of supply, has been taken, diverted and used by prior appropriators for a part or parts of each year, and other persons have subsequently appropriated said water during other parts of said year; and (2) when the unusual increase of the water of a stream, over and above its average amount for seven years, has been appropriated and used by any person or persons, and the ordinary or average flow of the same stream has been appropriated and used by other persons.

In Oregon and Washington Territory there is not, so far as I have been able to discover, any legislation whatever concerning the use of water, or property in natural streams and lakes, or the rights of riparian proprietors. The necessity for any such special legislation, it may be assumed, does not exist in these commonwealths.

II. The effect of this legislation.

It is plain from the foregoing summary that in the state of Colorado, and in the territories of Montana, Idaho, Dakota, Wyoming, New Nexico, Arizona, and Utah, the legislation has wholly abandoned and abrogated all the common-law doctrines concerning private property in streams and lakes, and concerning the "riparian rights" of "riparian proprietors." The statutes in express terms apply to all streams, as well those running through public lands as those bordered by the lands of private owners. No exception from their operation is made in favor of persons owning land on the banks of a stream. Under these statutes no proprietor derives any legal benefit or advantage from the fact that his land is immediately adjacent to a stream. Unless he has made an actual appropriation and diversion of its water for the use of his own land he is liable to have perhaps the entire stream appropriated and diverted away for the benefit of a proprietor whose land is situated at any distance from the stream. In fact, a proprietor immediately adjoining a stream is, by reason of his position, subject to a liability which must often be a grievous burden upon the land, and a serious interference with his rights of private property, namely, the liability to which his land is exposed of having ditches or canals constructed across it without his consent, for the purpose of conducting water from the stream to more distant lands. Even though this right of aqueduct across the land of a private owner must be acquired by condemnation, under the exercise of the power of eminent domain, and upon payment of compensation, still it must be a most material incumbrance upon all riparian owners, and hindrance to their enjoyment and free use of their own property. The statutes of one territory seem to go to the extreme of permitting canals and ditches to be constructed across the lands of private owners, against their con

sent, without any condemnation or any compensation. Such a statutory provision seems to be a most palpable and express invasion of private property rights, and it is difficult to understand upon what principle its validity can be upheld. And yet the early decisions in Colorado seem to hold that all lands of private owners are subject to the rights of others to locate and construct irrigating canals and ditches over them, and that the statute on this subject is simply declaratory of the common law in that commonwealth."

It will be seen that the legislation, as a whole, in these last-mentioned commonwealths, provides in fact for two distinct systems. One of these is wholly private; permits private owners to appropriate the water of any stream, and to conduct it by a ditch or canal to his own lands. All disputes between two or more appropriators or claimants, under this system, must generally be settled by judicial proceedings, or appropriate actions, in which the priority of the appropriation must determine all questions of priority in right. The other system is public, or at least quasi public. It provides for territorial water or irrigation districts including a community, or space of territory which can be conveniently irrigated by the same supply, drawn from the same source. These districts are under the general control of county governments; have local or district officials, whose powers relate to the location, construction, and maintenance of a system of canals for each district, to the raising of money to defray the expense of their construction and maintenance, to the distribution of water among the landed proprietors in the districts, and other like matters. I shall not, at present, discuss the policy of this legislation. Nor shall I make any attempt to suggest and examine the questions which must arise from the particular provisions of these statutes. Hitherto very few cases have come before the courts involving a judicial interpretation of these legislative systems, and it would be useless to speculate concerning any possible interpretation in the future. It is enough to say that in each of these commonwealths, the statutes have covered the whole ground, entirely displacing the common-law doctrines; and the labors of their courts will be confined to the proper construction and application of the statutory rules. Without attempting any further examination of these statutes, which so completely displace the common-law doctrine, I shall confine myself to the law concerning riparian rights, riparian proprietors, and the use of streams flowing through private lands, in the commonwealths which have not adopted these complete statutory systems, and settled all questions of right by legislation. These commonwealths are the states of California and Nevada.

22 See Yunker v. Nichols, 1 Col. 551; Schilling v. Rominger, 4 Id. 100; Chrisman v.

Heiderer, 5 Id. 589.

III. Water rights in private streams in California and Nevada.

What is the present condition of the law of California concerning the rights of private owners on the banks of natural streams to use the water of such streams? We have already seen that the civil code furnishes what purports to be a system of rules determining and regulating the rights of water in all streams, public and private; but that the effect and operation of these rules are rendered at least doubtful, and perhaps nugatory, in their application to streams running through or by private lands, by the final provision, § 1422: "The rights of riparian proprietors are not affected by the provisions of this title." What are the practical consequences, with respect to the whole legislation of the code, of this restrictive clause? It has been said, by way of answer, that this clause is not restrictive, and that it can produce no practical consequence upon the legislation as a whole, because (1) under the law of California independently of the code, private " riparian proprietors" have no rights as such to the waters of the adjoining streams; or, (2) the "rights of riparian proprietors" intended to be saved and protected are simply those which are not inconsistent with the preceding provisions of the title, and which are not, therefore, taken away by it; those rights, in short, which still remain after and notwithstanding the previous and operative sections of the statutes. Before entering upon any discussion of this most important question, it will be expedient to collect the various judicial authorities bearing upon it, which will aid in its examination.

There seems to be a prevalent opinion that the common-law doctrines concerning" riparian rights" of "riparian proprietors " upon natural streams have no existence whatever in the law of California; that the rights of all private owners of lands bordering upon any stream are wholly subordinate and subject to the right of one who has made a prior appropriation and diversion of its water to any extent for some beneficial purpose; that priority of appropriation and diversion determines the existence, nature and extent of the rights to the waters of all natural streams among all persons. This opinion is wholly unsupported by judicial authority. It is directly opposed to a long line of decisions and of dicta which have, in the clearest manner, both prior to and since the codes, recognized the common-law doctrines concerning "riparian rights," and protected “riparian proprietors" in the enjoyment of those rights, to some extent at least, although they have not fully defined those rights, in all their scope and detail. The correctness of this statement will clearly appear from the following citations:

In the very latest case, which related wholly to the appropriation of the waters of a public stream, the court says: "No question as to the use of the waters of a stream by riparian proprietors is presented by this record. There is nothing in the pleadings or findings to indicate that

25

when all the waters of Lytle creek were appropriated, any of the lands by or through which the creek flows had passed into private ownership. The court here expressly recognizes the distinction between the right of appropriating a stream flowing through the public lands, and the right to the use of its waters after any of the lands by or through which it flows have been acquired by private owners. In the recent case of Ellis v. Tone," the private proprietor of lands bordering on a stream maintained an action and recovered damages for a diversion of the water from the stream made by the defendant in 1877. The decision recognizes and is based upon the existence of some riparian rights held by the plaintiff as a riparian proprietor on the stream. The opinion, it is true, does not discuss the general doctrine; but is confined to an examination of certain instructions given to the jury at the trial, and the entire charge of the trial judge is not reported. The case, however, is a direct authority for the existence of " riparian rights" under the common-law doctrines, at least to some extent. The decision in Pope v. Kingman is unambiguous and express. A stream called Lytle creek rises on public lands, and then flows through private lands, including those of the plaintiff and of the defendants. The plaintiff received the patent to his tract in 1872. The title, or at least the possession of the defendants, was earlier. The defendants had diverted and used all the water of the creek, and claimed the exclusive right to do so. The plaintiff brought this action in 1877 to quiet his title to the use of the water as a riparian owner, and to restrain the defendants' diversion. The court, after holding that the plaintiff's action was not barred by the statute of limitations, says: "The principal question is, whether it is competent for the defendants, by the mere diversion of the waters of Lytle creek, which is an unnavigable stream flowing across the lands of the plaintiff, to deprive the plaintiff of all interest or right of any nature in the waters of that creek. As being owner of the land, the plaintiff has an interest in the living stream of water flowing over the land; his interest is that called the ' riparian right.' It is not necessary in this case to define in detail the precise extent of the riparian rights as existing in this country; it is enough to say that under settled principles, both of the civil and the common law, the riparian proprietor has a usufruct in the stream as it passes over his land. The judgment of the court below deprived the plaintiff of that usufruct, and declares in terms that plaintiff has no right, title, nor interest in said waters or any portion of them.' The judgment of the court below is therefore modified so as to read as follows: (1) That defendants have nothing as against the plaintiff, except only such rights as any of them may have of like character with that of the plaintiff, as being riparian

23 Lytle Creek W. Co. v. Perdrew, 1 West Coast Rep. 866.

24 58 Cal. 289.

25 54 Cal. 3.