riparian proprietors, so far as they are not taken away or abrogated by the provisions of this title, are not affected by the provisions of this title." It cannot be supposed that the legislature would deliberately, and by a formal and final section placed at the end of a statute, enact a provision so unnecessary and meaningless. Whatever may have been the riparian rights existing previous to the statute, then, as a matter of course, so far as they were not opposed to the provisions of the statute, so far as they were not taken away, abrogated, lessened, or altered by the statute, they would necessarily remain unaffected by its provisions. It needs no express clause to produce this result, which would be inevitable in the absence of such a clause; no clause could make the consequence any more certain or operative. We find the title of the Code concluded by a formal, peremptory, and sweeping final section in the nature of a proviso or limitation upon the operation of the statute as a whole, and it is simply absurd to suppose that the legislature intended by this section nothing but what would have been equally true if the section had been omitted. The correctness of this conclusion will appear even still more clear from a further consideration. The interpretation which I am examining would render section 1422 wholly without meaning, effect, and operation. If the "rights of riparian proprietors" intended to be protected are simply those which are not inconsistent with the previous sec tions of the title, which are not abrogated, but which still remain notwithstanding the preceding provisions of the statute, then, I say, this section 1422 is utterly useless, and without any force and effect, because there are no such "rights of riparian proprietors" remaining unaffected by the title. If the previous provisions of this title are operative to their full extent, unlim ited and unrestricted by the final section, then they must inevitably abolish and abrogate all the "riparian rights," and "rights of riparian proprietors," existing at the common law. The

fundamental conception upon which all of the common-law rules, are based, and all and singular of the special "riparian rights," and rights of "riparian proprietors" created and regulated by these common-law rules, are alike inconsistent with and opposed to the provisions of this title of the Code, if these are to have their full and natural meaning and operation, unrestricted by the proviso contained in the final section 1422. And, furthermore, the interpretation in question seems to have been, impliedly at least, condemned by recent decisions of the supreme court. In several of the cases above quoted, the causes of action arose since the title of the Civil Code concerning water rights went into effect. Under the construction which it is claimed should be given to section 1422, the provisions of this title would have been a complete answer to the plaintiff's contention in all of these cases, and would have absolutely controlled their decision. And yet in none of these cases is the title of the Code even suggested or referred to by the court. is not too much to say that these cases are wholly inconsistent with any interpretation of section 1422, which leaves the preceding provisions of this title fully operative, according to their natural and literal import, upon the rights of private riparian proprietors.1

$126. Riparian rights excepted.

It

The conclusion, then, seems to be irresistible that the legislature intended section 1422 to have some meaning and effect; that they designed it to be a material and substantial limitation upon the otherwise general operation of the preceding clauses of

1 See Ellis v. Tone, 58 Cal. 289; Pope v. Kinman, 54 Cal. 3; and in other reported cases decided since the Code took effect, but which do not show when the causes of action arose. some reference to this title of the Code

would certainly have been made, if it had the effect to abrogate all riparian rights. See Creighton v. Evans, 53 Cal. 55; Lytle Creek Water Co. v. Perdew, 65 Cal. 447, 2 Pac. Rep. 732.

the title. What are its meaning and its effect? A fair and reasonable construction seems to leave no other alternative but that the section must have all the meaning, force, and effect which can result from the full, settled, and legal import of all its terms, considered as referring to and acting upon the then existing doctrines of the law established by judicial decisions. In other words, the common-law "riparian rights" of private "riparian proprietors" owning tracts of land upon the margins of natural streams in this state, which have been recognized, declared, and maintained by judicial decisions both before and since the Code, are not affected by the title of the Code; do not, in fact, come within the purview of its provisions. In short, the whole title has no relation to, nor effect upon, the rights of those private owners who hold tracts of land bordering upon natural streams, but is confined in its operation to the rights of appropriating and using the waters of streams which flow wholly through public lands of the United States or of the state. There seems to be no escape from this construction unless an entirely different meaning is to be given to the words "rights of riparian proprietors" when found in a statute, from that given by the universal consent of all judicial decisions.

The supreme court has uniformly recognized and maintained the distinction between the common right of all persons to appropriate the water of streams while running wholly through public lands, and the rights of private riparian owners who have acquired private titles to lands on the banks of streams. It has recognized the technical terms "riparian rights" and "riparian proprietors," and has defined them as they have been defined and are understood at the common law. The doctrines decided by the supreme court concerning these "riparian rights" have been summarized on a previous page, and need not be here. repeated. There can be no reasonable doubt that these "ri

1 See ante, § 109.

parian rights" of private owners on the banks of streams are referred to by section 1422, are excepted or removed by it from the meaning and operation of the whole title, and are left existing in the law of California as fully and completely as they were before the Code. The title of the Code thus finds its sole application to the water of streams flowing entirely through public lands, upon the banks of which no private owner has yet acquired title to any tract or parcel of private land.

If it be urged that this construction virtually emasculates the entire title of the Code concerning water rights, and renders it virtually inoperative over a large and most important branch of those rights, the answer is that this is the fault of the legislation, and not of the construction. It is the duty of courts to take statutes as they are, to expound them according to the plain and natural import of their terms, and not to add to or take from them according to any notions which the judges may have as to what the legislature ought to have enacted. In the title of the Code under consideration the legislature has undoubtedly shirked its responsibility. Called upon to settle a question of the gravest importance, in which there are directly opposing interests involved, any settlement of which must necessarily be hostile to some large pecuniary interests, the legislature, under a mere appearance,- —a simulacrum of settlement,—has, in fact, done nothing, but has left all the important questions of private water rights of private riparian owners in exactly the same position which they occupied prior to the Code. The failure of the legislature to do what it was supposed and desired by some it should do, can have no effect upon the action of the courts in construing and interpreting the statute as a whole. The court cannot enact a new and different statute.

LAW W. R.-16

(241)

§ 127. Interpretation of section 1422 - Lux v.

Haggin.

[The views advanced by our author in the preceding sections have received the sanction of the highest court of California, and are thus in harmony with the authoritative interpretation of this obscure and ambiguous statute. In the case of Lux v. Haggin,' decided in 1884, it was said by Sharpstein, J.: "After carefully examining all the cases bearing on this question, we are unable to find one in which it is held, or even suggested, that outside of the mining districts the common-law doctrine of riparian rights does not apply with the same force and effect in this state as elsewhere." And the reason why it did not apply to the mining districts is "that the government, being the owner of all the land through which a stream of water runs, had a right to permit the diversion and use of it by any one who chose to divert and use it for mining, agricultural, or other purposes. There is not only no occasion for the application of the doctrine of riparian proprietorship in such a case, but it is one to which the doctrine could not be applied." The court continued: "The provisions of the Civil Code in respect to the appropriation of water must be limited to that which flows over lands owned by this state or by the United States. It cannot affect the rights of riparian proprietors, (1) because it is expressly declared that it shall not; and (2) because an owner of land cannot be divested of any interest which he has acquired in it except for a public use, and not then until just compensation has been made for it."2

169 Cal. 255, 4 Pac. Rep. 919, 923. 2 In this case a dissenting opinion was delivered by Ross. J., in which he said: "Of course the doctrine of appropriation, as contradistinguished to that of riparian rights, was not intended to, and in

deed could not, affect the rights of those persons holding under grants from the Spanish or Mexican government-First, because the doctrine is expressly limited to the waters upon what are known as the public lands; and, secondly, be