of the other, who had acquired his possessory right before any such diversion was made. This question was answered in the negative, although the possession of the one making the diversion was prior to that of the other party who complained of the diversion. Holding that possession of public land carries with it the privileges and incidents of ownership against every one but the government, the court further held, as a necessary consequence, that such possession gives the right to the use of water flowing through the land for its natural wants, but does not confer the right to divert it, and to prevent its running upon the land of another who has taken up the same subsequently, but before the attempt to change the course of the water. The opinion of the court, by Mr. C. J. Murray, uses the following language, (page 141:)

"The property in the water, by reason of riparian ownership, is in the nature of a usufruct, and consists, in general, not so much in the fluid as in the advantage of its impetus. This, however, must depend upon the natural as well as the artificial wants of each particular country. The rule is well settled that water flows in its natural channels, and should be permitted thus to flow, so that all through whose land it passes may enjoy the privilege of using. A riparian proprietor, while he has the undoubted right to use the water flowing over his land, must so use it as to do the least possible harm to other riparian propriThe uses to which water may be appropriated are, first, to supply natural wants, such as to quench thirst, to water cattle, for household and culinary purposes, and, in some countries, for the purpose of irrigation. [In no country where the common-law doctrines alone govern, is the purpose of irrigation placed upon the same footing with those other purposes and uses mentioned by Mr. Justice Murray.] These must be first supplied, before the water can be applied to the satisfaction of artificial wants, such as mills, manufactories, and the like, which

etors.

are not indispensable to man's existence. [The necessary limitations to be placed upon this dictum will be described in the sequel.] Water is regarded as an incident to the soil, the use of which passes with the ownership thereof. As a general rule, a property in water cannot be acquired by appropriation, but only by grant or prescription." This decision and the opinion quoted refer to a condition of circumstances completely analogous with private ownership of lands on the banks of a stream. The appropriation of water from public streams for mining and other purposes, in pursuance of local customs and rules sanctioned by the act of congress, and the special condition of the mining regions, are not involved nor affected by the reasoning or the decision. The common-law doctrine here applied to private riparian proprietors who have only possessory titles or occupation rights to land bordering on streams, must a fortiori extend to those riparian proprietors who have obtained complete legal titles and ownership over such lands. The same doctrine was affirmed in Leigh v. Independent Ditch Co.1 In an action for the diversion of water, the complaint alleged that the plaintiffs were owners and possessors of a certain mining claim situated on a certain stream, and were entitled to have the waters thereof flow as they naturally did, but defendants had diverted them. The defendants demurred to this complaint on the ground that it stated no cause of action, because it did not allege that plaintiffs had appropriated the water, or were owners of it, or were in possession of it. The demurrer was overruled. "The allegation that the plaintiffs were owners and in possession of the mining claim was sufficient. The ownership and possession of the claim drew to them the right to the use of the water flowing in the natural channel of the stream. The diversion of the water was therefore an injury to the plaintiffs for which they could sue. The princi

18 Cal. 323.

ple involved in this case was expressly decided by this court in the case of Crandall v. Woods." The court here expressly decided that a riparian proprietor, merely by virtue of his ownership, is entitled to the use of the water without making any actual appropriation. The common-law doctrine, that the right over the stream arises from riparian ownership, and not from any appropriation, is again declared. It is true the land in this case was a mining claim, but the decision was not in the slightest based upon or affected by that fact. In the state of Nevada, the common-law doctrines concerning the riparian rights of private riparian proprietors have been adopted in the most explicit manner by the well-considered decision of the supreme court in the case of Van Sickle v. Haines. The court held that a person acquiring the legal title by patent fron the United States, to a tract of land bordering on a stream, obtained as a necessary incident of his ownership, and before making any actual appropriation, full right to the water of the stream as a riparian proprietor, superior and complete as against another party, not a riparian owner, who had made a prior appropriation of the waters of the stream while it was entirely public. Extracts from the very able and instructive opinion in this case will be given under a subsequent head.

§ 124. Common-law doctrine of riparian rights obtains in California.

The foregoing series of cases shows, beyond a possibility of question or doubt, that prior to and since the adoption of the Civil Code, the laws of California recognized, protected, and enforced the rights known as the "riparian rights" of private "riparian proprietors" owning lands situated on the banks of natural streams, substantially as they exist at the common law.

17 Nev. 249. But compare Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 Pac. Rep. 317.

The rights thus known as "riparian rights" have been defined;1 they belong alike and equally to all "riparian proprietors" on the same stream, subject solely to the natural advantage belonging to the upper over the lower proprietor; they exist as a necessary incident of ownership, even though the proprietors had hot as yet made any actual appropriation or diversion of the water; they entitle each "riparian proprietor" to the usufruct of the water as it flows in the natural channel of the stream, including the right to use so much of it as may be reasonably necessary for such primary purposes as watering his cattle, domestic and household uses, without thereby unnecessarily or unreasonably diminishing its natural flow down to the proprietors below him on the stream. Whether these riparian rights include the right to use the water for purposes of irrigation is not directly decided, nor even considered, by these cases.

We are thus furnished with a conclusive answer to a question suggested on a preceding page. I had stated the position maintained by some, that the section 1422 of the Civil Code is not in reality restrictive, and can produce no practical effect upon the whole legislation of the Code concerning water rights for two rea sons; the first of these being that, under the law of California, independently of the Code, private "riparian proprietors" have no rights as such to the waters of the adjoining stream. The series of decisions above quoted demonstrates the incorrectness of this opinion. These authorities show most clearly that the law of California, independently of the Code, did and does recognize the "riparian rights" of "riparian proprietors" substantially as they exist at the common-law. This conclusion is so certain that no further discussion can render it any more plain.

1 Pope v. Kinman, 54 Cal. 3. 2Id.; Ferrea v. Knipe, 28 Cal. 341; Crandall v. Woods, 8 Cal. 136. 3 Creighton v. Evans, 53 Cal. 55. 4 Pope v. Kinman, Creighton v.

Evans, Ferrea v. Knipe, Crandall v. Woods, supra. And see Paige v. Rocky Ford Canal Co., 83 Cal. 84, 23 Pac. Rep. 875.

The legislature, in enacting section 1422, clearly assumed that the then existing law of the state recognized and protected these "riparian rights" of "riparian proprietors."

§ 125.

Construction of section 1422.

We are then brought back to a consideration of the question: What are the practical effects, upon the entire legislation of the Code, of the restrictive provision contained in section 1422? In support of the position maintained by some, that this clause is not restrictive, and can produce no practical effects upon the legislation as a whole, a second ground has been advanced, namely, that the "rights of riparian proprietors" intended to be saved and protected by the section are simply those which are not inconsistent with the previous sections of the title, and which are not, therefore, taken away and abrogated by these provisions; those rights, in short, which still remain in force after and notwithstanding the preceding and operative sections of the statute. Is this the interpretation which should properly be given to the language of section 1422? In my opinion it is not. Such an interpretation would, in my opinion, be unreasonably forced, and in plain violation of the settled rules governing the construction and interpretation of statutes. In the first place, it is a fundamental doctrine of statutory interpretation that in every distinct, clear, additional provision the legislature must be assumed to have meant something; to have intended the provision to have some meaning, operation, and effect, so that it is not wholly superfluous, useless, and nugatory. Nothing but absolute necessity, therefore, should ever admit such an interpretation of a clear, distinct, and positive provision as would render it unnecessary, useless, superfluous, and nugatory.

The suggested construction of section 1422 would render the whole clause utterly useless, superfluous, and nugatory. If it were adopted, the section would in effect read: "The rights of