2

The rights thus known as "riparian rights" have been defined;1 they belong alike and equally to all "riparian proprietors" on the same stream, subject solely to the natural advantage belonging to the upper over the lower proprietor; they exist as a necessary incident of ownership, even though the proprietors had not as yet made any actual appropriation or diversion of the water; they entitle each "riparian proprietor" to the usufruct of the water as it flows in the natural channel of the stream, including the right to use so much of it as may be reasonably necessary for such primary purposes as watering his cattle, domestic and household uses, without thereby unnecessarily or unreasonably diminishing its natural flow down to the proprietors below him on the stream. Whether these riparian rights include the right to use the water for purposes of irrigation is not directly decided, nor even considered, by these cases.

We are thus furnished with a conclusive answer to a question suggested on a preceding page. I had stated the position maintained by some, that the section 1422 of the Civil Code is not in reality restrictive, and can produce no practical effect upon the whole legislation of the Code concerning water-rights for two reasons; the first of these being that, under the law of California, independently of the Code, private "riparian proprietors" have no rights as such to the waters of the adjoining stream. The series of decisions above quoted demonstrates the incorrectness of this opinion. These authorities show most clearly that the law of California, independently of the Code, did and does recognize the "riparian rights" of "riparian proprietors" substantially as they exist at the common-law. This conclusion is so certain that no further discussion can render it any more plain.

1 Pope v. Kinman, 54 Cal. 3. 2Id.; Ferrea v. Knipe, 28 Cal. 341; Crandall v. Woods, 8 Cal. 136. 3 Creighton v. Evans, 53 Cal. 55.

4Pope v. Kinman, Creighton v. Evans, Ferrea v. Knipe, Crandall v. Woods, supra.

The legislature, in enacting section 1422, clearly assumed that the then existing law of the state recognized and protected these "riparian rights" of "riparian proprietors."

§ 111. Construction of section 1422.

We are then brought back to a consideration of the question: What are the practical effects, upon the entire legislation of the Code, of the restrictive provision contained in section 1422? In support of the position maintained by some, that this clause is not restrictive, and can produce no practical effects upon the legislation as a whole, a second ground has been advanced, namely, that the "rights of riparian proprietors" intended to be saved and protected by the section are simply those which are not inconsistent with the previous sections of the title, and which are not, therefore, taken away and abrogated by these provisions; those rights, in short, which still remain in force after and notwithstanding the preceding and operative sections of the statute. Is this the interpretation which should properly be given to the language of section 1422? In my opinion it is not. Such an interpretation would, in my opinion, be unreasonably forced, and in plain violation of the settled rules governing the construction and interpretation of statutes. In the first place, it is a fundamental doctrine of statutory interpretation that in every distinct, clear, additional provision the legislature must be assumed to have meant something; to have intended the provision to have some meaning, operation, and effect, so that it is not wholly superfluous, useless, and nugatory. Nothing but absolute necessity, therefore, should ever admit such an interpretation of a clear, distinct, and positive provision as would render it unnecessary, useless, superfluous, and nugatory.

The suggested construction of section 1422 would render the whole clause utterly useless, superfluous, and nugatory. If it were adopted, the section would in effect read: "The rights of

[Ch. 7. riparian proprietors, so far as they are not taken away or abrogated by the provisions of this title, are not affected by the provisions of this title." It cannot be supposed that the legislature would deliberately, and by a formal and final section placed at the end of a statute, enact a provision so unnecessary and meaningless. Whatever may have been the riparian rights existing previous to the statute, then, as a matter of course, so far as they were not opposed to the provisions of the statute, so far as they were not taken away, abrogated, lessened, or altered by the statute, they would necessarily remain unaffected by its provisions. It needs no express clause to produce this result, which would be inevitable in the absence of such a clause; no clause could make the consequence any more certain or operative. We find the title of the Code concluded by a formal, peremptory, and sweeping final section in the nature of a proviso or limitation upon the operation of the statute as a whole, and it is simply absurd to suppose that the legislature intended by this section nothing but what would have been equally true if the section had been omitted. The correctness of this conclusion will appear even still more clear from a further consideration. The interpretation which I am examining would render section 1422 wholly without meaning, effect, and operation. If the "rights of riparian proprietors" intended to be protected are simply those which are not inconsistent with the previous sections of the title, which are not abrogated, but which still remain notwithstanding the preceding provisions of the statute, then, I say, this section 1422 is utterly useless, and without any force and effect, because there are no such "rights of riparian proprietors" remaining unaffected by the title. If the previous provisions of this title are operative to their full extent, unlimited and unrestricted by the final section, then they must inevitably abolish and abrogate all the "riparian rights," and "rights of riparian proprietors," existing at the common law. The

§ 112 fundamental conception upon which all of the common-law rules are based, and all and singular of the special "riparian rights," and rights of "riparian proprietors" created and regulated by these common-law rules, are alike inconsistent with and opposed to the provisions of this title of the Code, if these are to have their full and natural meaning and operation, unrestricted by the proviso contained in the final section 1422. And, furthermore, the interpretation in question seems to have been, impliedly at least, condemned by recent decisions of the supreme court. In several of the cases above quoted, the causes of action arose since the title of the Civil Code concerning waterrights went into effect. Under the construction which it is claimed should be given to section 1422, the provisions of this title would have been a complete answer to the plaintiff's contention in all of these cases, and would have absolutely controlled their decision. And yet in none of these cases is the title of the Code even suggested or referred to by the court. is not too much to say that these cases are wholly inconsistent with any interpretation of section 1422, which leaves the preceding provisions of this title fully operative, according to their natural and literal import, upon the rights of private riparian proprietors.1

§ 112. Riparian rights excepted.

It

The conclusion, then, seems to be irresistible that the legislature intended section 1422 to have some meaning and effect; that they designed it to be a material and substantial limitation upon the otherwise general operation of the preceding clauses of

1 See Ellis v. Tone, 58 Cal. 289; Pope v. Kinman, 54 Cal. 3; and in other reported cases decided since the Code took effect, but which do not show when the causes of action arose, some reference to this title of the Code

would certainly have been made, if it had the effect to abrogate all riparian rights. See Creighton v. Evans, 53 Cal. 55; Lytle Creek Water Co. v. Perdew, (Cal.) 2 Pac. Rep. 732.

the title. What are its meaning and its effect? A fair and reasonable construction seems to leave no other alternative but that the section must have all the meaning, force, and effect which can result from the full, settled, and legal import of all its terms, considered as referring to and acting upon the then existing doctrines of the law established by judicial decisions. In other words, the common-law "riparian rights" of private "riparian proprietors" owning tracts of land upon the margins of natural streams in this state, which have been recognized, declared, and maintained by judicial decisions both before and since the Code, are not affected by the title of the Code; do not, in fact, come within the purview of its provisions. In short, the whole title has no relation to, nor effect upon, the rights of those private owners who hold tracts of land bordering upon natural streams, but is confined in its operation to the rights of appropriating and using the waters of streams which flow wholly through public lands of the United States or of the state. There seems to be no escape from this construction unless an entirely different meaning is to be given to the words "rights of riparian proprietors" when found in a statute, from that given by the universal consent of all judicial decisions.

The supreme court has uniformly recognized and maintained the distinction between the common right of all persons to appropriate the water of streams while running wholly through public lands, and the rights of private riparian owners who have acquired private titles to lands on the banks of streams. It has recognized the technical terms "riparian rights" and "riparian proprietors," and has defined them as they have been defined and are understood at the common law. The doctrines decided by the supreme court concerning these "riparian rights" have been summarized on a previous page, and need not be here repeated.1 There can be no reasonable doubt that these "ri

1 See ante, § 109.