CHAPTER XII.

TWENTY YEARS OF IRRIGATION IN CALIFORNIA.

THE STORY OF THE GREAT FIGHT FOR A SYSTEM OF IRRIGATION TO MAKE LANDS VALUABLE READS LIKE A CHAPTER FROM THE ARABIAN NIGHTS TROUBLES IN THE WAY OF THOSE DESIRING TO RECLAIM LANDS UNFIT FOR USE BECAUSE OF LACK OF WATER-THE PROBLEMS OF LEGISLATORS-HOW THE FIGHT FOR A GOOD LAW WAS WON, BUT NOT UNTIL MUCH BITTERNESS AND MANY APPEALS HAD BEEN TAKEN FROM LOWER COURTS.

In the year 1884 a great legal war was being waged over the respective rights of riparian proprietors and those who sought to divert the water from the natural streams and apply the waters so diverted to irrigation. The agitation of this question finally culminated in the case entitled “Lux vs. Haggin," in the supreme court of this state. The question there presented was, as stated by that court, "Can a private corporation divert the waters of a watercourse and thereby deprive the riparian proprietors of all use of the same, without compensation made or tendered to such proprietors?" and the court held in answer to this question:

First: That the owners of land by or through which a watercourse naturally and usually flows have a right of property in the waters of the

stream.

Second: This property may be taken for a public use, just compensation being first made, or paid into court.

Water to supply "farming neighborhoods" is a public use, and it is for the legislature to determine whether, in the exercise of the power of eminent domain, it was necessary or expedient to provide further legal machinery for the appropriation (on due compensation) of private rights to the flow of running streams and distribution of the waters thereof to public

uses.

Third: But one private person cannot take property from another,

either for the use of the taker or for an alleged public use, without any compensation made or tendered.

Fourth Riparian owners may reasonably use waters of a stream for purposes of irrigation.

By the foregoing decision on riparian rights it was thought that irrigation interests in California had severely suffered, and the best thought of the state was directed to some solution of the problem as to how waters needed for irrigation purposes might be diverted and appropriated for irrigation purposes. Such was the legal situation.

The contestants in the above entitled case, however, subsequent to the rendition of the foregoing decision, settled all their differences by compromise, which rendered any further controversy between them unlikely. The respective sides had represented contending forces, and when the plaintiffs and defendants in that case had settled their differences, those whom they had so represented respectively were at a loss to know what course to pursue in the premises. The right of the private corporation or other land owner to divert the waters of a watercourse for irrigation purposes had, by the above decision, been denied. The statutes prior to this time had apparently fully authorized such diversion. A title of our Civil Code provided that the right to the use of running water flowing in a river or stream might be acquired by appropriation, provided that the appropriations were for useful or beneficial purposes.

The simple process by which this diversion might be made consisted in the requirement that a notice of appropriation should be posted in a conspicuous place at the point of intended diversion, and that the claimant should state therein the amount of water claimed by him; the purposes for which he claimed it, and the place of the intended use; the means by which he intended to divert it, and the size of flume, ditch, pipe or acqueduct in which he intended to divert it, and that a copy of the notice must, within ten days after being posted, be recorded in the office of the recorder of the county in which it was posted.

After taking these preliminary steps, the claimant was required to commence work within sixty days, which work he was required to prosecute diligently and uninterruptedly to completion, unless temporarily interrupted by snows or rain.

It had been thought, prior to the decision of the case of Lux vs. Haggin, that these provisions of the statute authorized the appropriation of water for irrigation purposes in California, and that the doctrine of riparian rights, as defined in said case, had no existence. The future welfare of the state depended upon the right to use all available water for irrigation purposes. The right to have the water flow in its accustomed channel to the sea, according to the common-law doctrine, it was thought, did not exist. In fact, it had become the commonly accepted belief in California that the statutory enactments to which I have called attention, were sufficient authority for the diversion and use of the waters of any stream as against any and all riparian claims. But this decision put a new phase upon the irriga

tion situation.

Many important irrigation enterprises had been launched; large canals and other works essential for the diversion of water had been constructed in various portions of the state. In many instances these systems had been operated for a sufficient length of time before this decision was announced as to have acquired a right to the use of the water theretofore diverted by them by prescription, or statute of limitations. Some of the largest irrigation systems of the state were so protected. But while vast amounts of money had been expended in the building up of such systems, the area covered by the water supplied by them was insignificant when compared with the entire area requiring irrigation. It might be safely said that not onetwentieth part of the irrigable land in California had been supplied with water for irrigation purposes at the time this decision was announced. When we speak of irrigable land, we mean lands that were scarcely worth having unless supplied with water for irrigation. Such is the character of the land. throughout the great San Joaquin Valley, except in favored spots lying along the bottoms of certain rivers. The same may be said of the lands in the Sacramento Valley, which are for the most part of little value in their natural

state.

The conditions in southern California were even worse, because the lands in that locality are more desert-like in character than are those in the San Joaquin and Sacramento valleys. California was essentially an irrigation state. Its lands were scarcely worth the government price unless they could be supplied with water for irrigation. It is true that the coast lands, such

as are found in portions of Ventura, San Luis Obispo, Santa Cruz, Santa Clara, Napa and Mendocino counties, do not in general require water for irrigation. The rainfall in these localities is generally in excess of the rainfall in the interior, and the added dampness by reason of proximity to the sea renders them reasonably profitable for agricultural purposes without the artificial use of water for irrigation, but the great preponderance in area was situated as above noted. How this might be supplied with irrigation, within the requirements of the decision of Lux vs. Haggin, was a problem to be

met.

The court had decided, as we have seen, that "farming neighborhoods" were entitled to exercise the right of eminent domain. In other words, that water to supply "farming neighborhoods" was a public use, and that this public use authorized the invocation of the right of eminent domain. But how should this be accomplished? The "farming neighborhoods" consisted of an aggregation of farmers, each of whom was a private individual, and whose interests were separate and distinct from those of his neighbor, and a single farmer was not authorized to join with his neighbors in a common cause of action because their interests were distinct and separate and therefore the exercise of the right of eminent domain did not lie within the reach of either the single farmer or of the many farmers.

The court, it will also be seen, had significantly suggested that it was for the legislature to determine whether, in the exercise of the power of eminent domain, it was necessary or expedient to provide further legal machinery for the appropriation (on due compensation) of private rights to the flow of running streams and the distribution of water thereof to public uses. No other recourse seemed possible under this decision than the organization of these "farming neighborhoods" into public corporations, having the semblance of municipalities who would thereby become possessed of the right of eminent domain in behalf of any interest which they, as such public corporations, might have.

When the legislature of 1887 met such was the existing condition. Vast areas of land in the San Joaquin Valley which might be made exceedingly profitable with irrigation were without the needed supply, and without the means of acquiring it. It was absolutely beyond their reach for the reason that any attempt to take it from the streams would be met by riparian claims,