ditches over them, and that the statute on this subject is simply declaratory of the common law in that commonwealth.1 1 See Yunker v. Nichols, 1 Colo. 551; Schilling v. Rominger, 4 Colo. 100; Crisman v. Heiderer, 5 Colo. 589. [The extent to which the common-law rule has been abrogated in some of these states, and the reasons for it, may be seen in the following cases: Oppenlander v. Left Hand Ditch Co., (Colo.) 31 Pac. Rep. 854; Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 Pac. Rep. 317; Clough v. Wing, (Ariz.) 17 Pac. Rep. 453; Stowell v. Johnson, (Utah,) 26 Pac. Rep. 290. In the case last cited it was said: "Riparian rights have never been recognized in this territory, or in any state or territory where irrigation is necessary; for the appropriation of water for the purpose of irrigation is entirely and unavoidably in conflict with the common-law doctrine of riparian proprietorship. If that had been recognized and applied in this territory, it would still be a desert." In Oppenlander v. Left Hand Ditch Co., supra, the court had occasion to inquire into the differences between the commonlaw doctrine of water rights and that established by the constitutional provisions in Colorado. The following language was employed: "Upon examination, we find few points of analogy and many points of difference between water rights at common law and water rights under the constitution of this state. For illustration, note the following: At common law the water of a natural stream is an incident of the soil through which it flows. Under the constitution the unappropriated water of every natural stream is the property of the public. At common law the riparian owner is, for certain purposes, entitled to the exclusive use of the water as it flows through his land. Under the constitution the use of the water is dedicated to the people of the state, subject to appropriation. The riparian owner's right to the use of water does not depend upon user, and is not forfeited by nonuser. The appropriator has no superior right or privilege in respect to the use of water on the ground that he is a riparian owner. His right of use depends solely upon appropriation and user, and he may forfeit such right by abandonment or by nonuser for such length of time as that abandonment may be implied. A riparian proprietor. owning both sides of a running stream, may divert the water therefrom, provided he returns the same to the natural stream before it leaves his own land, so that it may reach the riparian proprietor below without material diminution in quantity, quality, or force. The appropriator, though he may not own the land on either bank of a running stream, may divert the water therefrom, and carry the same whithersoever necessity may require for beneficial use, without returning it, or any of it, to the natural stream. in any manner. The appropriator may, under cer tain circumstances, change the point of diversion, as well as the 121. Two distinct systems. It will be seen that the legislation, as a whole, in these lastmentioned commonwealths, provides in fact for two distinct systems. One of these is wholly private; permits private owners to appropriate the water of any stream, and to conduct it by a ditch or canal to his own lands. All disputes between two or more appropriators or claimants, under this system, must generally be settled by judicial proceedings, or appropriate actions, in which the priority of the appropriation must determine all questions of priority in right. The other system is public, or at least quasi public. It provides for territorial water or irrigation districts, including a community, or space of territory which can be conveniently irrigated by the same supply, drawn from the same source. These districts are under the general control of county governments; have local or district officials, whose powers relate to the location, construction, and maintenance of a system of canals for each district, to the raising of money to defray the expense of their construction and maintenance, to the distribution of water among the landed proprietors in the districts, and other like matters. the policy of this legislation. I shall not, at present, discuss Nor shall I make any attempt to suggest and examine the questions which must arise from the particular provisions of these statutes. Hitherto very few cases have come before the courts involving a judicial interpretation place of application, of the water. He has a property right in the water lawfully diverted to beneficial use, and may dispose of the same, separate and apart from the land in connection with which the right ripened, to any one who will continue such use without injury to the rights of others. Thus it appears that the constitution has, to a large extent, obliterated the common-law doctrine of riparian rights, and substituted in lieu thereof the doctrine of appropriation."] 1 [But it is deemed advisable, in the present edition, in view of the increased interest and the recent legislation on the subject of irrigation and ditch companies and public irrigation districts, to add chapters on these important subjects. See chapters X and XI, infra.] of these legislative systems, and it would be useless to speculate concerning any possible interpretation in the future. It is enough to say that in each of these commonwealths the statutes have covered the whole ground, entirely displacing the commonlaw doctrines; and the labors of their courts will be confined to the proper construction and application of the statutory rules. Without attempting any further examination of these statutes, which so completely displace the common-law doctrine, I shall confine myself to the law concerning riparian rights, riparian proprietors, and the use of streams flowing through private lands, in the commonwealths which have not adopted these complete statutory systems, and settled all questions of right by legislation. These commonwealths are the states of California and Nevada. [But since our learned author wrote the foregoing, it has become apparent that Nevada is no longer to be included among the states in which the common-law doctrine of riparian rights is recognized and in force. And on the other hand, as was shown in the preceding sections, that doctrine must be regarded as applicable in Oregon, and perhaps also in Washington, though the latter point is doubtful.] 1Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 Pac. Rep. 317. Hayden v. Long, 8 Oreg. 244. LAW W. R.-15 (225) CHAPTER VII. RIPARIAN RIGHTS ON PRIVATE STREAMS. L NATURE AND EXTENT OF THESE RIGHTS. II § 122. Ambiguity of California statutes on water rights. 124. Common-law doctrine of riparian rights obtains in California. 125. Construction of section 1422. 126. Riparian rights excepted. 127. Interpretation of section 1422-Lux v. Haggin. 128. Mexican law-Effect on riparian rights. 129. Riparian rights in Kern district. 130. Common law of England. 131. Who are riparian owners. 132. Prescriptive water rights. 133. Loss of riparian rights by adverse user and estoppel. USES TO WHICH THE WATER MAY BE PUT. § 134. General statement of riparian rights-Van Sickle v. Haines. 135. Modifications on doctrine of Van Sickle v. Haines. 136. Legitimate riparian uses. § 122. Ambiguity of California statutes on water rights. What is the present condition of the law of California concerning the rights of private owners on the banks of natural streams to use the water of such streams? We have already seen that the Civil Code furnishes what purports to be a system of rules determining and regulating the rights of water in all streams, public and private; but that the effect and operation of these rules are rendered at least doubtful, and perhaps nugatory, in their application to streams running through or by private lands, by the final provision, section 1422: "The rights of riparian proprietors are not affected by the provisions of this title." What are the practical consequences, with respect to the whole legislation of the Code, of this restrictive clause? It has been said, by way of answer, that this clause is not restrictive, and that it can produce no practical consequence upon the legislation as a whole, because (1) under the law of California, independently of the Code, private "riparian proprietors" have no rights as such to the waters of the adjoining streams; or (2) the "rights of riparian proprietors" intended to be saved and protected are simply those which are not inconsistent with the preceding provisions of the title, and which are not, therefore, taken away by it; those rights, in short, which still remain after and notwithstanding the previous and operative sections of the statBefore entering upon any discussion of this most important question, it will be expedient to collect the various judicial authorities bearing upon it, which will aid in its examination. utes. There seems to be a prevalent opinion that the common-law doctrines concerning "riparian rights" of "riparian proprietors' upon natural streams have no existence whatever in the law of California; that the rights of all private owners of lands bordering upon any stream are wholly subordinate and subject to the right of one who has made a prior appropriation and diversior of its water to any extent for some beneficial purpose; that priority of appropriation and diversion determines the existence nature, and extent of the rights to the waters of all natura: streams among all persons. This opinion is wholly unsupported by judicial authority. It is directly opposed to a long line of decisions and of dicta which have, in the clearest manner, both |