of the stream, and such owner has the right to the use of the water flowing over the land as an incident to his estate." The judge gives a summary of the common-law doctrines as they are stated in the preceding chapter, and then proceeds as follows: "This equality of right [at the common law] among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its convenience for mining purposes to points from which it could not be restored to the stream. But the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common-law doctrines of riparian proprietorship with respect to the waters of these streams. The government, by its silent acquiescence, assented to the general occupation of the public lands for mining, and to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale and the acquisition of title by settlement. And he who first connects his own labor with property thus situated, and open to general exploration, does in natural justice acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public land throughout the Pacific states and territories, by their customs, usages, and regulations, everywhere recognized the inherent justice of this principle; and the principle itself was at an early period recognized by legislation and enforced by the courts in those states and territories." He quotes from some of the early California decisions hereinbefore cited, and further says: "This doctrine of right by prior appropriation was recognized by the legislation of congress in 1866, [quoting the statute of congress.] The right to water by prior appropriation, thus recognized and established as the law of miners on the mineral lands of the public domain, is limited in every case, in quantity and quality, by the uses for which the appropriation is made." Hav

ing thus explained the origin of the doctrine, the opinion goes on to state more particularly the extent and limits of the right thus acquired, the relations of the appropriator with other occupants, and the like. This portion of the opinion will be quoted in connection with subsequent discussions. In the case of Basey v. Gallagher,' the same doctrine was applied by the United States supreme court to all other beneficial purposes for which water is essential, as well as to mining. Mr. Justice Field, after quoting the decision in Atchison v. Peterson, said: "The views there expressed and the rulings made are equally applicable to the use of water on the public lands for purposes of irrigation. No distinction is made in the states and territories of the Pacific coast by the customs of miners or settlers, or by the courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one." He quotes an early California decision to this effect," and proceeds: "Ever since that decision it has been held generally throughout the Pacific states and territories that the right to water by prior appropriation for any beneficial purpose is entitled to protection. Water is diverted to propel machinery in flour-mills and saw-mills, and to irrigate land for cultivation, as well as to enable miners to work their mining claims; and in all such cases the right of the first appropriator, exercised within reasonable limits, is respected and enforced. We say within reasonable

limits, for this right to water, like the right by prior occupancy to mining or agricultural land, is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use, and vest an absolute monopoly in a single individual. The act of congress of 1866 recognizes the right to water by prior appropriation for

120 Wall. 671, (1874.) 2 Tartar v. Spring V. M. Co., 5 Cal. 397, (1855.)

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agricultural and manufacturing purposes, as well as for mining. It is evident that congress intended, although the language used is not happy, to recognize as valid the customary law with respect to the use of water, which had grown up among the occupants of the public land under the peculiar necessities of their condition; and that law may be shown by evidence of the local customs, or by the legislation of the state or territory, or by the decisions of the court. The union of the three conditions, in any particular case, is not essential to the perfection of the right by priority; and, in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, must necessarily control."

These extracts have been given for a definite purpose, and they have a most important bearing "pon the future discussion of other questions.

§ 20. Grounds of these decisions.

It is essential, to any accuracy in such discussions, that we should ascertain at the outset the exact grounds of the peculiar doctrine which lies at the foundation of the entire law concerning water rights in the Pacific communities. The question will afterwards rise whether this doctrine determines all the special rules which may apply to all circumstances and to all conditions of ownership; or whether, on the other hand, this doctrine only partially displaces the common law, leaving it applicable under different circumstances and conditions. It is plain, upon the most superficial examination, that the opinions which have been quoted-and the same is true of other cases-do not profess to derive their conclusions from the common law. On the contrary, they openly avow that these conclusions are directly opposed to the common law. They base their reasoning and its results upon the peculiar social and industrial needs of the early settlers, especially the miners; upon the condition of the

public domain in which the mining was carried on; upon the evident intention of the federal government in throwing open the mineral wealth of the public lands to all comers, so that its advantages might be enjoyed equally by all persons; and upon the fact that the common-law rules would defeat this intention, and retard, if not wholly destroy, the development of the mineral resources. Although this departure from the common law was, at the very first, made with reference solely to the use of water for mining, it was soon necessarily extended to all other beneficial uses. There are undoubtedly some dicta to be found in a few of the California cases which seem to assume or to suppose that the conclusions reached by the court were in agreement with the common-law doctrines. These dicta differ widely from the general course of reasoning pursued by the state judges, and especially from that adopted by the United States supreme court; and they are, as it seems to me, utterly irreconcilable with many subsequent decisions, establishing more special rules, made by the state and the federal courts.

§ 21. Doctrine of appropriation unknown to the common law.

It has been urged, although the position has never, I believe, been sustained by any authoritative decision in the Pacific states or territories, that the common law, in its early and original form, recognized and permitted a prior appropriation of the waters of running streams; that the contrary rules, as laid down by Story and Kent, and as they are briefly formulated in our second chapter, are a modern departure from the primitive common law, first made by some comparatively recent English decisions; and that, as a necessary consequence, these original common-law doctrines, denying what are ordinarily called "riparian rights," and not the modern innovations acknowledging such rights, are binding upon and should be followed by the

courts of the Pacific commonwealths. In alleged support of this view, reference has been made, among others, to some New York decisions.' Into the discussion of this question I shall not at present enter. In the very recent case decided by the New York court of appeals,2 described in our second chapter, the same position was urged by counsel. As a consequence, the common-law doctrine was examined by the court with much learning and ability, the early authorities were copiously cited, and the conclusions reached were in complete accordance with the common-law rules as they are universally understood at the present time by the courts of England and of the United States. The cases of People v. Canal Appraisers, and others like it, which seem to be antagonistic, it is shown are confined to the Mohawk and the Hudson rivers, the rights of riparian owners on these two streams being derived, not from the common law, but from the civil law, as it prevailed in the Netherlands during the colonial periods.

§ 22. Basis of right to appropriate water.

[Prior to the act of congress already referred to, there was no legislation emanating from the federal government which directly authorized the exclusive appropriation of water-courses on the public domain. The right of a miner to go upon the pub、 lic lands of the United States, and there appropriate to his own use the water of a running stream, and to hold the same against any person who should subsequently attempt to divert it from him, could be based upon no grant, statute, or express permission. This right, if it was to receive legal recognition at all,

1 For example, to People v. Canal Appraisers, 33 N. Y. 461.

2 Smith v. City of Rochester, 92 N. Y. 463. In the case of Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 753, the supreme court of Califor

nia remarked: "In examining the numerous cases which establish that the doctrine of appropriation is not the doctrine of the common law, we meet an embarrassment of abundance."