reserving or protecting such existing rights shall be incorporated into the patent.' The result is that when the waters of a stream flowing wholly over the public land have been appropriated for a purpose recognized and protected by the statutes of congress, and a patent is subsequently issued by the United States to a private person conveying the title to a tract of land on the banks of the same stream, the patentee takes his title, and must enjoy his rights as a riparian proprietor subject and subordinate to the already existing rights of the prior and actual appropriator. On the other hand, whenever the waters of a stream, flowing wholly over the public land, have not been appropriated at all for any purpose, or whenever they have been appropriated for a purpose not recognized and protected by the congressional legislation, and a patent is issued by the United States to a private person conveying a tract of land on the banks of the same stream, in either case the patentee obtains, as incidents of his title, the full and complete rights of a private riparian proprietor on the stream. His title to the extent of his right as riparian proprietor is paramount to any subsequent appropriation from the stream as a public stream; and his rights in the stream are as perfect and complete when he is the sole private proprietor on its banks as when all the lands on its banks are held by private

owners.

§ 121. Legitimate riparian uses.

Assuming, as has been shown, that the "riparian rights" of private "riparian proprietors" on natural running streams in this state of California are expressly excepted from the operation of the title concerning water-rights in the Civil Code, are wholly untouched by its provisions, and are left existing in every respect as though it had not been enacted, we are now in a position to ascertain, with more certainty and definiteness, 1 Rev. St. U. S. § 2338.

the nature and extent of these rights, and what uses of the waters they confer upon or withhold from the "riparian proprietor."

$122. California decisions.

The series of decisions heretofore cited show most conclusively that all of the fundamental common-law doctrines concerning the riparian rights of private riparian proprietors, which were so fully and ably expounded in the Nevada case, have been adopted by the California court, and recognized as forming a part of the California law. While the reasons for these doctrines have not been explained at such length in the California cases, and while the authorities upon which they rest have not been so exhaustively quoted, yet, upon a comparison of the various decisions, it will appear, beyond a possibility of a doubt, that all of the essential and important doctrines of the common law, as discussed and formulated by the Nevada court in the case of Van Sickle v. Haines, have been accepted and affirmed by the supreme court of California in repeated decisions. To present this conclusion in the clearest light, I give, even at the expense of repeating what has already been said, a brief summary of those decisions.

§ 123. Natural uses.

It is held that the right of the private riparian proprietor is an incident of his ownership of land on the bank of the stream, and exists as a necessary consequence of such ownership, and does not in the slightest depend upon the fact of an actual appropriation of the water having been made by himself or by any other riparian proprietor on the same stream. The right to the water is not an absolute property in all the water, authorizing

1Pope v. Kinman, 54 Cal. 3; Creighton v. Evans, 53 Cal. 55; Ferrea v. Knipe, 28 Cal. 341.

§ 124 any riparian proprietor to consume it entirely; it is a right that the stream should continue to flow along in its natural channel as it has been accustomed to flow, and give the riparian proprietor the usufruct of the water as it passes along his land bordering on the stream; and this right belongs equally to all the private proprietors on the banks of the same stream, subject only to the advantage which position gives to those higher up the stream over proprietors lower down. The law recognizes certain natural uses which are paramount to all others, and these include the use of water for household and domestic purposes, washing, drinking, cooking, etc., and its uses for watering stock. It may be doubted whether these "natural uses" embrace anything more than these two purposes. From these paramount natural uses originates the only advantage which the common law gives to one riparian proprietor over another or others on account of his relatively superior position. A proprietor higher up on the stream may use as much of the water as is reasonably necessary for his own domestic and household purposes, and for the watering of his own stock, even though the amount left flowing down the stream is thereby so much diminished that there is not enough left to supply the needs of the lower proprietor or proprietors for the same purposes. But the use for these purposes by a proprietor higher up the stream must be reasonable in amount, and reasonable in its methods and instrumentalities.2

In addition to these natural and paramount uses, which necessarily consume the portion of water used, each riparian proprietor, by virtue of his usufruct, may use the water of the stream,

1 Id.

2Id. See Ferrea v. Knipe, supra. And see Slack v. Marsh, 11 Phila.

543; Stein v. Burden, 29 Ala. 127; Shook v. Colohan, 12 Or. 239, s. c. 6 Pac. Rep. 503.

as it passes along by or through his land, for any other lawful purpose, provided he returns all of the water, undiminished in amount and undeteriorated in quality, into the natural channel of the stream before it leaves his own land and enters upon that of the adjacent proprietor below him, and provided, also, he does not thereby interfere with the similar and equal right of the proprietor upon the immediately opposite bank of the stream, where his own land abuts upon only one bank,-that is, when the stream does not flow through his own land. In this manner any riparian owner may use the water of a stream for propelling machinery on his own land, provided he returns all the water into the natural channel before it leaves his own land, and does not impair its quality; and to this end he may construct a dam in the stream upon his own land, provided he does not interfere with the land of proprietors above him by the backwater, and does not invade the rights of a proprietor immediately opposite to himself on the other bank of the stream. These rights are conferred by the common law upon all of the proprietors owning lands upon the same stream. Any proprietor may, of course, obtain more extensive rights by grant from others, or by prescription. How far the right of the riparian proprietor includes the right to use and consume the water for purposes of irrigation, remains to be considered.

§ 125. Reasonable riparian use.

[The rule that every riparian proprietor has an equal right to the use of the water as it is accustomed to flow, without diminution or alteration, is subject to a well-recognized limitation, viz., that each owner may make a reasonable use of the water for domestic, agricultural, and manufacturing purposes.1 But here

1 Embrey v. Owen, 6 Exch. 352; Nuttall v. Bracewell, L. R. 2 Exch. 1; Miner v. Gilmour, 12 Moore, P. C. 131, 156; Tyler v. Wilkinson,

4 Mason, 397; Union Mill Co. v. Ferris, 2 Sawy. 176; Gerrish v. New Market Manuf'g Co., 30 N. H. 478; Tillotson v. Smith, 32 N. H.

it is necessary to note an important distinction between primary and secondary, or natural and artificial, wants; for, to supply his natural wants, as for household purposes, for quenching thirst, and for his cattle, a riparian proprietor may consume the entire stream if necessary; but for artificial wants, as for irrigating his land or propelling his machinery, he is only entitled to a reasonable use.1