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prior to and since the Codes, recognized the common-law doctrines concerning "riparian rights," and protected "riparian proprietors" in the enjoyment of those rights, to some extent at least, although they have not fully defined those rights, in all their scope and detail. The correctness of this statement will clearly appear from the following citations.

$123. Review of the authorities.

In a recent case, which related wholly to the appropriation of the waters of a public stream, the court says: "No question as to the use of the waters of a stream by riparian proprietors is presented by this record. There is nothing in the pleadings or findings to indicate that when all the waters of Lytle creek were appropriated, any of the lands by or through which the creek flows had passed into private ownership." The court here expressly recognizes the distinction between the right of appropriating a stream flowing through the public lands, and the right to the use of its waters after any of the lands by or through which it flows have been acquired by private owners. In the recent case of Ellis v. Tone2 the private proprietor of lands bordering on a stream maintained an action and recovered damages for a diversion of the water from the stream, made by the defendant in 1877. The decision recognizes and is based upon the existence of some riparian rights held by the plaintiff as a riparian proprietor on the stream. The opinion, it is true, does not discuss the general doctrine, but is confined to an examination of certain instructions given to the jury at the trial, and the entire charge of the trial judge is not reported. The case, however, is a direct authority for the existence of "riparian rights" under the common-law doctrines, at least to some extent. The decision in Pope v. Kinman3 is unambigu

1 Lytle Creek W. Co. v. Perdew, 65 Cal. 447, 2 Pac. Rep. 732.

258 Cal. 289.

354 Cal. 3.

ous and express. A stream called "Lytle Creek" rises on public lands, and then flows through private lands, including those of the plaintiff and of the defendants. The plaintiff received the patent to his tract in 1872. The title, or at least the possession, of the defendants was earlier. The defendants had diverted and used all the water of the creek, and claimed the exclusive right to do so. The plaintiff brought this action in 1877 to quiet his title to the use of the water as a riparian owner, and to restrain the defendants' diversion. The court, after holding that the plaintiff's action was not barred by the statute of limitations, says: "The principal question is whether it is competent for the defendants, by the mere diversion of the waters of Lytle creek, which is an innavigable stream flowing across the lands of the plaintiff, to deprive the plaintiff of all interest or right of any nature in the waters of that creek. As being owner of the land, the plaintiff has an interest in the living stream of water flowing over the land; his interest is that called the 'riparian right.' It is not necessary'in this case to define in detail the precise extent of the riparian rights as existing in this country; it is enough to say that under settled principles, both of the civil and the common law, the riparian proprietor has a usufruct in the stream as it passes over his land. The judgment of the court below deprived the plaintiff of that usufruct, and declares in terms that plaintiff has no right, title, nor interest in said waters or any portion of them.' The judgment of the court below is therefore modified so as to read as follows: (1) That defendants have nothing as against the plaintiff, except only such rights as any of them may have of like character with that of the plaintiff, as being riparian proprietors of land bordering on said stream; and (2) that none of defendants have any right, title, or interest in or to the waters of said creek except as riparian proprietors as aforesaid."

The rights of a "riparian proprietor" were also admitted and

The court said:

protected in the case of Creighton v. Evans. "It is admitted that the waters of Elk bayou flowed in its natural channel through plaintiff's land, and that defendant diverted a portion of the water to his own land for purpose of irrigation, and other purposes. It is not averred that he is a riparian owner, and as such entitled to use any portion of said water. The court properly instructed the jury that plaintiff was entitled to recover at least nominal damages, even though he had suffered no actual damages. But the court further instructed the jury that if defendant diverted a portion of the water for a useful purpose, and that enough water was left in the stream for the use of the plaintiff for watering his stock and for domestic purposes, and if the plaintiff was not damaged by the diversion, the verdict should be for the defendant. This was not only contradictory to the first instruction, but was erroneous as matter of law. So far as appears on the record, defendant was not entitled to divert the water for any purpose, and plaintiff was entitled to at least nominal damages." This case was decided in 1878, but the report does not show when the cause of action arose. Several cases concerning the interference with or use of subterranean water, whether percolating through the soil or flowing in defined streams, also recognize and are decided in accordance with the settled common-law rules on that subject.2

In the case of Ferrea v. Knipe3 the rights of riparian proprietors were not only recognized, but their extent was also partially defined. The controversy was between two owners upon The defendant, for the alleged purpose of securing the water for the use of watering his stock, and for domestic purposes, had erected a dam, which collected the whole water

the same stream.

153 Cal. 55.

2 See Hale v. McLea, 53 Cal. 578; Huston v. Leach. Id. 262; Hanson v. McCue, 42 Cal. 303; Mosier v.

Caldwell, 7 Nev. 363; Strait v.
Brown, 16 Nev. 317.
328 Cal. 341.

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of the stream in a pond, and prevented any of it from flowing down to the plaintiff's lands below. An action for damages and preventive relief was sustained. Currey, J., delivering the opinion of the court, said, (page 344:) "Every proprietor of the land through or adjoining which a water-course passes has a right to a reasonable use of the water, but he has no right to so appropriate it as to unnecessarily diminish the quantity of its natural flow. The use of the water of a stream for domestic purposes and for watering cattle necessarily diminishes the volume of the stream. This is unavoidable, and though, by reason of such diminution, a proprietor on the stream below fails to receive a supply commensurate with his wants, he is without remedy, because his right subsists subject to the rightful use of the water by his neighbor on the stream above him. But while admitting that a riparian owner, to whom the water first comes in its flow has the right to use it for domestic purposes, and for watering his cattle, it is proper to observe that he has not the right to so obstruct the stream as to prevent the running of water substantially as in a state of nature it was accustomed to *" Page 345: "Though the defendant had the right to use the stream for watering his cattle, and for household purposes, he had not the right, under the circumstances, to dam up the creek, and spread out the water over a large surface, by which it would become lost by absorption and evaporation to an extent to prevent the stream from flowing to the plaintiff's premises, as it would have done had it not been for the defendant's dams. This was not a proper and beneficial use of the stream."

run.

* *

In the case of Hill v. Smith,' Mr. C. J. Sanderson announced the principle which underlies the common-law doctrines as still forming a part of the California jurisprudence, (page 482.) Speaking of certain erroneous views, he says: "This is due in

127 Cal. 475.

a great measure, doubtless, to the notion, which has become quite prevalent, that the rules of the common law touching water rights have been materially modified in this state, upon the theory that they were inapplicable to the conditions found to exist here, and therefore inadequate to a just and fair determination of controversies touching such rights. This notion is without any substantial foundation. The reasons which constitute the ground-work of the common law upon this subject remain undisturbed. The maxim, 'sic utere tuo ut alienum non lædas,' upon which they are grounded, has lost none of its force. When the law declares that a riparian proprietor is entitled to have the water of a stream flow in its natural channel,―ubi currere solebat, -without diminution or alteration, it does so because its flow imparts fertility to his land, and because the water in its pure state is indispensable for domestic uses. But this rule is not applicable to miners and ditch-owners, simply because the conditions upon which it is founded do not exist in their case." The court went on further to hold that the common-law doctrines still regulated the right to the use of water in mining regions as far as the conditions of the situation and business would allow.

In the early and leading case of Crandall v. Woods,' which did not relate to the use of water for mining or other special uses, nor to the prior appropriation of water flowing in a public stream, discussed in the former portion of this article, the same general common-law doctrine was affirmed. The controversy arose between two proprietors who held different tracts of the public land upon the same stream, by a possessory right good against all third persons, but who had not yet obtained the legal title from the United States by patent or otherwise. The question was whether one of these parties could divert the water of the stream, and prevent it from flowing by or through the land 18 Cal. 136.

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