of Reno, for the sum of $2,621.10, and requested a receipt for this amount of money. The clerk was disinclined to treat the certificate as money. In this emergency, he was requested by defendant's attorney to accompany him to the bank that issued the certificate, and have it cashed. The clerk had no suitable place for safely keeping the money, and, preferring to treat the certificate as money, rather than have the coin or currency in his custody that night, receipted to appellant for $2,621.10, and received therefor the certificate. The next day the bank paid the certificate, on presentation by the clerk.

We are of the opinion that these facts constitute a compliance with the statutory requirement, that to render an appeal effectual the appellant may, instead of giving an undertaking with sureties, deposit money equal in amount to the sum named in the undertaking. This conclusion is reached, because all of the acts of the appellant in the premises are characterized by good faith, and an intention to meet the substantial requirements of the statute. Appellant probably employed the certificate of deposit, instead of the actual money, as a matter of safety and convenience in the first instance. When the clerk, consulting his own accommodation, accepted the certificate, not for the purpose of assisting in a simulated compliance with the law, but because the amount of money called for by the certificate had been appropriated to its payment, the requirements of the statute were substantially performed.

Motion denied.

SUPREME COURT OF CALIFORNIA.

No. 8,587.

LUX ET AL. v. HAGGIN ET AL.

In Bank. Filed October 27, 1884.

RIGHTS OF GRANTEE IN NATURAL STREAMS AT COMMON LAW AND IN CALIFORNIA. --Whatever limitations there may be upon the right which the grantee of a parcel of land acquires in a natural stream of water running over it, it is well settled, both by the common law, and in this state, that the right itself is incident to the property in the land, and passes by a grant thereof, as an incorporal hereditament.

THE SAME APPROPRIATION OF WATER-CONSTRUCTION OF CODE AND UNITED STATES STATUTES. -One who purchases land from the United States, or from this state, after the whole, or some part of the water of a natural water-course, running through such land, has been appropriated by some one else, under the act of congress of July 26, 1866, or under the provisions of title VIII of the civil code of this state, takes such land subject to the rights acquired by such prior appropriator. Such provisions of the civil code only affect water flowing over lands owned by this state, or by the United States. They do not affect the rights of riparian proprietors, (1) because it is expressly declared that they shall not; and (2) because an owner of land cannot be divested of any interest which he has acquired therein, except for a public use, and not then until just compensation has been made.

THE SAME APPROPRIATION OF WATER ON PUBLIC LAND AFTER DATE OF PURCHASE.-The right of a purchaser of public lands of this state, to have a natural stream of water flowing thereon, at the date of his purchase, continue to flow currere solebat, is not affected by an appropriation of the waters of such stream, made subsequent to the date of his purchase, but prior to the date of his patent.

RIGHTS OF RIPARIAN PROPRIETORS, AS BETWEEN THEMSELVES AND OTHERS.-A riparian proprietor has a right to the reasonable use of water, flowing in a natural stream over his land. What is a reasonable use, in any given case, depends upon the facts and circumstance.

of that case. But it is only as between riparian proprietors that the question can ever arise. One, not a riparian proprietor, has no right to interfere in any way with the natural flow of a stream of water over a riparian proprietor's land.

THE SAME ESTOPPEL IN PAIS-WHAT AMOUNTS TO.- -A riparian proprietor is not estopped from disputing the validity of an appropriation of the waters of a stream flowing through his land, by the mere fact that he knew of the intention of the appropriator to divert such water before any was diverted, and of the construction of works for such purpose, but made no objection thereto before bringing an action to prevent the same.

APPEAL from an order of the superior court of Kern county, denying the plaintiffs a new trial. The opinions state the facts.

Stetson & Houghton and McAllister & Bergin, for the appellants. Louis T. Haggin, Garber, Thornton & Bishop and Flournoy & Mhoon, for the respondent.

SHARPSTEIN, J. The question whether in this state one can rightfully divert and appropriate to a useful purpose any considerable part of the water flowing in a natural stream over the lands of others, who are making no use of it and deriving no benefit from it, beyond such as it naturally confers by running through their lands, has been elaborately argued by counsel. The contention of the respondent is that "the doctrine that the owner of land upon the margin of a flowing stream, has the right, incident to such ownership, that such stream shall continue to flow unaltered in quality and undiminished in quantity, is a doctrine that was unknown to the common law of England, but on the contrary, the common law was that first in time was first in right as to the uses of the water of a flowing stream, and no action could be except for a disturbance of actual use under an appropriation previously made," and that the law of this state, in that respect, is the same as the common law of England was. But if the common law of England were otherwise, the so-called doctrine of riparian rights, whereby a proprietor of land bordering upon a running stream is presumed to have a right to the full, free and uninterrupted waters of such stream, is not, and never has been, the law of this state; at least so far as appertains to state or government lands, as contradistinguished from those held by Mexican grant."

While it way be difficult and perhaps impossible to define with precision the character and extent of the right which the grantee of a parcel of land acquires in a natural stream of water running over it, all the text writers and all the cases, so far as we are advised, agree that it constitutes a corporeal right or hereditament that passes by grant of the land over which it runs. "For land," says

Sir Edward Coke, "comprehendeth in its legal signification, any ground, soil or earth whatsoever, as arable, meadows, pastures, woods, moors, waters, marshes, furzes and heath:" 1 Inst., 4; 2 Bla. Com., 18; Woolrych Law of Waters, 146; Angell on Watercourses, 8.

"The right to flowing water is now well settled to be a right incident to property in the land:" Shaw, C. J., in Elliott v. Fitchburg R. R. Co., 10 Cush., 193. "But this right or corporeal hereditament, which is embraced within or appertains to the ownership of

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the land over and through which a watercourse runs, is subject to the same incidents as all other interests in real property. It may be conveyed absolutely, by grant; so, too, it may be lost or acquired, either wholly or in part, by an adverse user sufficiently long, exclusive and notorious, to furnish adequate grounds for the presumption of a grant:" Brace v. Yale, 10 Allen, 441. So that whatever limitations there may be upon the right, it is well settled that the right itself is incident to property in land. It constitutes a real or corporeal hereditament. It is often said that the owner of land over which a natural stream of water runs has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat is the language of the law: 3 Kent's Com., 561. "For water is a movable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient usufructuary property therein:" 2 Bla. Com., 18. From the context it is quite clear that the learned commentator meant no more than that a natural stream of water must of necessity continue common as between all who own lands through which it runs. 'Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat), without diminution or alteration:" 3 Kent's Com., 439. And the same doctrine was laid down in nearly the same words by Sir John Leach in Wright v. Howard, 1 Sim. and Stuart, 190, in which the vice-chancellor said: "Every proprietor has an equal right to use the waters which flow in the stream; and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors, no other proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above."

66

With the exception of the dicta in a few cases cited by counsel for respondent, we have been unable to discover anything in the text-books or reports which conflicts with this exposition of the common law doctrine on the subject. And in Mason v. Hill, 5 B. & A., 1, Denman, C. J., said: "None of these dicta, when properly understood with reference to the cases in which they were cited, and the original authorities in the Roman law from which the position that water is publici juris is deduced, ought to be considered as authorities, that the first occupier or first person who chooses to appropriate a natural stream to a useful purpose, has a title against the owner of the land below, and may deprive him of the benefit of the natural flow of the water."

Has the common law rule in this respect been abrogated or modified in this State?

We know of no case in this state prior to Ferrea v. Knipe, 28 Cal., 340, which involved the question of the right of an owner of land to have a natural stream of water which flowed over it continue to do so without material obstruction or diminution, from

artificial causes. In that case the court "while admitting that a riparian owner to whom the water first comes in its flow, has the right to use it for domestic purposes, and for watering his cattle" said "that he has not the right to so obstruct the stream as to prevent the running of water substantially as in a state of nature it was accustomed to run." This has never been overruled, or doubted; nor is it in conflict with any of the earlier reported cases.

But it is insisted by respondent's counsel that both the United States and this state have adopted a policy in respect of water flowing over their lands which is inconsistent with the doctrine of riparian rights, as we construe it. As a result of that policy it is claimed that a grant of land by either of these governments must be read as if it contained a condition, that any one should thereafter be at liberty to appropriate so much of the water of any natural stream running over such land as the grantee had not previously appropriated to some useful purpose, other than that which it subserved by flowing naturally over such land. That would constitute a reservation of an interest in the land granted, not for the benefit of the grantor, but for that of any other person who might choose to avail himself of it. If a grant does not contain any such express reservation or condition, we ought not to interpolate one unless it is clearly implied, because the general rule is that the owner of property cannot be divested of any interest in it by the simple prior appropriation of that interest by some one else. Both the state and the United States governments have granted to private persons and corporations large tracts of land which have remained unoccupied and in their virgin state for many years afterwards. lt probably never occurred to any one that the owners by neglecting to appropriate the grasses and trees naturally growing on such lands to some useful purpose, left them open and subject to a rightful appropriation by any one else. And yet we have the same authority for holding that a simple grant of land conveys a right to have the water flowing over it continue so to flow, as we have for holding that it conveys a right to the trees and grasses growing on it, or to the soil itself. The principle that he who first appropriates property to a useful purpose, is best entitled to it, applies only to cases in which none of the parties has a grant, actual or presumptive.

In an early case, which involved the question, "whether the owner of a canal in the mineral region of this state, constructed for the purpose of supplying water to miners, has the right to divert the water of a stream from its natural channel, as against the claims of those who, subsequent to the diversion, take up lands along the banks of the stream for the purpose of mining," the land through which the stream run, and through which the canal passed, being a part of the public domain to which there was no claim of private proprietorship, the court held that the common law doctrine which "prescribes that a water-course must be allowed to flow in its natural channel," could not be invoked in such a case, because, as the court said, that doctrine would, upon an examination of the author

ities which support it, "be found to rest upon the fact of the individual rights of landed proprietors upon the stream, the principle being, both at the civil and common law, that the owner of lands on the bank of a water-course, owns to the middle of the stream, and has the right, in virtue of his proprietorship, to the use of the water in its pure and natural condition:" Irwin v. Phillips, 5 Cal., 140.

In Crandall v. Woods, 8 Cal., 136, where both parties had posessory rights, in separate parcels of land, the title to which was in the United States, it was held that each had a right to have a stream of water which naturally flowed over both parcels, continue to flow over the parcel in his possession, substantially as it did when his possessory right first attached to it. As between themselves, their respective rights in the stream, were held to be those of riparian

owners.

In Hill v. Smith, 27 Cal., 476, it is explicitly denied that the rules of the common law, touching water rights, have been materially modified in this state. Although in that case it is said that these rules do not apply to sections of the state in which water is exclusively used for mining purposes. But this was said in a case in which neither of the parties owned any land over which a natural stream of water flowed. The respective rights of prior and subsequent appropriators were alone involved. It is claimed that the same reason exists for not applying the common law doctrine of riparian rights to the agricultural, as is given for not applying it to the mining regions of the state. Because water is as essential to the prosecution of the one industry as of the other, in this state.

uses.

But in Hill v. Smith, the court says: "When the law declares that a riparian proprietor is entitled to have the water of a stream flow in its natural channel-ubi currere solebat-without diminution or alteration, it does so because its flow imparts fertility to his land, and because water in its pure state is indispensable for domestic But this rule is not applicable to miners and ditch owners, simply because the conditions upon which it is founded do not exist in their case." The conditions upon which it is said the rule is founded do exist in agricultural districts. And it is the rule applicable to those districts which concerns us in this case. And, after carefully examining all the cases bearing on this question, we are unable to find one in which it is held, or even suggested, that outside of the mining districts, the common law doctrine of riparian rights does not apply with the same force and effect in this state as elsewhere.

And the reason why it did not apply to the mining districts is given in the opinion of the court by Field, J., in Atchison v. Peterson, 20 Wall., 507, where he says: "The government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common law doe trine of riparian proprietorship with respect to the waters of those streams. The government, by its silent acquiescence, assented to the general occupation of the public lands for mining, and, to en