"Sec. 1415. A person desiring to appropriate water must post a notice in writing, in a conspicuous place, at the point of intended diversion, stating therein (1) that he claims the water here flowing to the extent of (giving the number) inches, measured under a four-inch pressure; (2) the purposes for which he claims it, and the place of intended use; (3) the means by which he intends to divert it, and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it. A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the county in which it is posted.

"Sec. 1416. Within sixty days after the notice is posted, the claimant must commence the excavation or construction of the works in which he intends to divert the water, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snow or rain.

"Sec. 1417. By 'completion' is meant the conducting the waters to the place of intended use.

"Sec. 1418. By a compliance with the above rules, the claimant's right to the use of the water relates back to the time the notice was posted.

"Sec. 1419. A failure to comply with such rules deprives the claimants of the right to the use of the water as against a subsequent claimant who complies therewith.

"Sec. 1420. Persons who have heretofore claimed the right to water, and who have not constructed works in which to divert it, and who have not diverted nor applied it to some useful purpose, must, after this title takes effect, and within twenty days thereafter, proceed as in this title provided, or their right

ceases.

"Sec. 1421. The recorder of each county must keep a book, in which he must record the notices provided for in this title." All these provisions by themselves would furnish a reasona(193)

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bly clear and certain system of rules applicable to all streams, whatever may be thought of their expediency or justice; but the following and final section turns the whole into utter doubt and uncertainty, so far as it can apply to private streams, or streams bordering on the lands of private owners. This final section is as follows:

"Sec. 1422. The rights of riparian proprictors are not affected by the provisions of this title."

I would remark, in passing, that so far as the title applies to streams wholly public, on the banks of which there are as yet no riparian proprietors, and, of course, no "riparian rights," it furnishes a system of rules which must be complied with by all those who seek to make an appropriation of the water subsequently to the going into effect of the statute. Thus, for example, the contents of the notice and the place of posting are definitely described; also the time within which work must be commenced after posting the notice is fixed in all cases; and the work must be prosecuted "uninterruptedly," the only causes of interruption allowed being "snow or rain." The early decisions. prescribed no such definite rule, but left the time of commencing the work, and of prosecuting it to completion, to depend upon many other specia. circumstances of each case, such as the situation and physical conformation of the country, the difficulty of transportation, of obtaining materials and labor, and the like. So far, therefore, as the title applies solely to the appropriation of water from streams wholly public, it furnishes rules which must be obeyed, somewhat more definite and less elastic than those laid down by the courts; and as to its meaning, force, and effect, in connection with such streams, there seems to be no uncertainty nor difficulty.

In addition to these provisions of the Civil Code, there is a statute called "An act to promote irrigation," passed in 1872. 1St. 1871-72, pp. 945-948.

This statute provides that, if "owners of any body of lands susceptible of one mode of irrigation" desire to irrigate the same, they may take steps in connection with the board of supervisors by which they become an association for irrigating purposes. They may make by-laws for the appointment of trustees, who have general management of their affairs, and for the construction and maintaining of irrigating works. The powers and duties of these trustees are defined. Provisions are made for assessments upon the members of the association, for the purpose of defraying the cost of constructing and maintaining the works. "Sec. 21. The trustees may acquire, by purchase, all property necessary to carry out and maintain the system of irrigation provided for.

"Sec. 22. The trustees may acquire by condemnation (1) the right to the use of any running water not already used for culinary or domestic purposes, or for irrigating, milling, or mining purposes; (2) the right of way for canals, drains, embankments, and other works necessary," etc.

"Sec. 23. The provisions of title 7, part 3, of the Code of Civil Procedure, (concerning the condemnation of private property for public uses,) are applicable to and the condemnation. herein provided for must be made thereunder."

It is further provided that parties owning the whole district to be irrigated may proceed as above described, without appointing any trustees; that is, may manage the whole by themselves. This act is declared not to extend to the counties of Fresno, Kern, Tulare, and Yolo.

It is very plain that this statute does not contemplate nor recognize any right of land-owners to appropriate the waters of private streams; that is, of streams running through or adjacent to lands of private owners. The "riparian rights" of such owners are most certainly assured and protected; for the owners desiring to appropriate the water of such a stream must proceed

to condemn it under the right of eminent domain, and must of course pay compensation; and the only parties who could be compensated are the owners of lands on the banks of the stream, whose "riparian rights" to use its waters would be invaded. Such riparian rights, like all other rights of private property, are held subject to the state's power of eminent domain. [The legislation of this state also includes an important statute, passed in 1887, for the organization and government of "irrigation districts," the provisions of which will be fully summarized and discussed in a subsequent chapter devoted to that special subject.']

The earlier legislation of this state, bearing on the general subject-matter, is contained in certain sections of the general statutes which permit the construction of flumes or ditches for carrying water. Parties may construct a ditch or flume across private land, and to that end may take such land by right of eminent domain, on paying just compensation to the owner thereof; the amount of the compensation to be determined in a manner and by a proceeding described. This act shall not interfere with any prior or existing claim or right.2 The statute makes no allusion to the appropriation of or acquisition of title to the water to be conducted by such ditches or flumes. This law was supplemented in 1887, by an act relating to the right to construct waste ditches, and providing a right of way for such ditches through the lands of others.3

1The statute referred to is the act of March 7, 1887; Stat. Cal. 1887, p. 29. It is commonly called the "Wright Act." It was amended and supplemented in several particulars by numerous statutes passed during the next four years.

2 Gen. St. Nevada, 1885, §§ 362365.

3 Act of Feb. 26, 1887; St. Nevada, 1887, p. 83. And it was still further amended by the act of Mar. 9, 1889; St. Nevada, 1889, p. 96.

In this state, also, two important acts were passed in the year 1889. The first provides for a "Board of Reclamation Commissioners," and prescribes their powers and duties. The board is authorized to construct canals and ditches, for irrigating and other purposes, from any river or water-way of the state, having in view the distribution of the water in such manner as to benefit the greatest possible area.1 This statute also contains provisions for the organization of irrigation districts, and the issue of bonds, under the supervision of the said board, but these provisions were probably superseded by the act of 1891, which authorized the formation of "irrigation districts" on a plan substantially identical with that in force in California under the "Wright Act." This statute will be again referred to in the chapter relating to "Irrigation Districts."

The other statute passed in 1889, was one providing for the appointment of "Water Commissioners." It is made the duty of these commissioners to divide the water in the natural lakes or streams of their districts among the several ditches taking water from the same, according to the prior rights of each respectively, in whole or in part, and to shut and fasten, or cause to be shut and fastened, the head-gates of any ditch or ditches heading in any of the natural streams or lakes of the district, which in time of a scarcity of water makes it necessary by reason of the priority of the rights of others above or below them on the stream." This act also contains an elaborate system for the judicial determination of conflicting claims of priority.2

A recent decision of the supreme court of this state declares that the common-law doctrine of riparian rights,—

1Act of Mar. 9, 1889; St. Nevada, 1889, p. 102.

2 Act of Mar. 9, 1889; St. Nevada, 1889, p. 107.