CHAPTER IX.

SUGGESTIONS FOR LEGISLATION ON RIPARIAN RIGHTS.

§ 160. Need of statutory regulation.

161. Irrigation-Common-law rules inadequate.

162. Contents of proposed statute.

163. Essential nature of projected law.

164. System of acequias impracticable.

165. Colorado system criticised.

166. Legislation must respect natural laws and natural rights.

167. Natural rights and advantages of riparian owners.

168. Legislation should recognize these rights.

169. Jurisdiction of equity.

170. Legislation to the same end.

171. Provision for non-riparian lands.

172. Condemnation of stream for public use.

173. Whether irrigation is a public use.

174. Eminent domain.

175. Summary of suggestions concerning legislation. 176. Concluding observations.

§ 160. Need of statutory regulation.

In concluding our discussion upon water rights in the Pacific communities, we purpose to offer a few observations or suggestions concerning the legislation which should be enacted in the states of California and Nevada for the more complete regulation and protection of these rights. We have already given a full synopsis of the statutory systems adopted in all the other states and territories of the Pacific coast embraced within our general review; and, as before stated, we shall enter into no discussion of these statutes. As those states and territories become more settled by an agricultural population, the practical effect of their legislative methods will become known, and some satisfactory judgment can be formed as to their efficacy. At present any discussion of them might be regarded as speculative, al

though the results which they must inevitably produce are, in our opinion, perfectly clear. Confining ourselves, therefore, to the two states of California and Nevada, if we are correct in our conclusions concerning the rights of private riparian proprietors upon natural streams, and especially upon their right to use the waters thereof for purposes of irrigation, it is plain that some legislation is needed, not to define and establish the rights, but to protect and regulate their exercise within certain limits.

§ 161. Irrigation -Common-law rules inadequate. Assuming as true, what we think has been shown to be established by judicial authority, that the general common-law doctrines on the subject apply to and determine the rights of private riparian proprietors, those doctrines are sufficient of themselves to regulate the use of water, by private riparian proprie tors, for all other ordinary purposes except that of irrigation. The common-law rules concerning the use of water for milling and manufacturing purposes, and for all those purposes termed "natural,”—domestic and household consumption, and the watering of stock,—are simple, plain, equitable, and just. No fault has ever been found with their practical operation; they are suited to all communities and circumstances; no legislation is needed to render them effective; any legislation interfering with their free control would be injurious. With irrigation the case is otherwise. The use of the waters of natural streams for irrigation is, in many respects, the most important of all possible uses, in these states. Without irrigation the agricultural resources of the soil cannot be developed; with a sufficient supply of water for irrigation, there are hardly any accessible portions of these states which cannot be made profitably productive. The problem is, to benefit as large a portion of the agriculturai population as possible, by affording the means of irrigating their lands, without invading and violating the private natural rights

of any class of proprietors. The use of water for purposes of irrigation is practically unknown to the common law. While the equitable principles of the common law may, without any alteration, comprehend the use of water for purposes of irrigation, yet the special rules developed by common-law courts from those principles have not dealt with irrigation. In applying these established doctrines of the common law to the use of water for irrigation, the aid of statutory legislation is clearly needed. If the rights of the private riparian proprietors upon the same stream to use its water for irrigation were correctly stated in our last chapter, it is plain that some practical, simple, and comprehensive method is necessary to settle authoritatively the relative rights of all the proprietors upon any particular stream, and the relative amounts or proportionate quantities of its water which they are all entitled to take and consume. The general doctrine that each is only entitled to the excess over and above that which all the others are entitled to take, is simply the foundation. How that excess is to be actually ascertained and apportioned to each riparian proprietor before he takes the water from the stream is the difficulty; and it is a difficulty which can only be obviated by statutory legislation.

§ 162. Contents of proposed statute.

Adopting the equitable doctrines of the common law as its basis, the sole purpose of the legislation should be to furnish a practical mode by which these doctrines can be applied to the use of water for the irrigation of lands. To this end the provisions of the statute should not consist of vague generalities, merely defining some general rights, and leaving all the practical working and effects of the system to be settled by a long series of judicial decisions. They should be detailed, specific, and minute. The statute should be most carefully drawn so as to provide a plain, certain, inexpensive, and practical system regulating the

exercise by every riparian proprietor upon any stream of his right to use the waters thereof for purposes of irrigation; determining the relative amounts of the water to which all of the proprietors are entitled under every condition of circumstances; the proportionate amounts when the whole flow of the stream is not sufficient to furnish a full supply to all; the times and order in which the water may be taken; and all other similar matters. The statutory provisions should be so clear and definite that there could be no reasonable doubt as to the extent of each proprietor's right under any ordinary circumstances; and they should give a simple and effective means of enforcing these rights and regulating their exercise, through the interpretation of local agents or officials representing the whole body of riparian proprietors upon any particular stream, without the necessity of a resort to the courts, and to actions for damages or for injunctions, as the only means of protecting the rights or preventing their invasion.

§ 163. Essential nature of projected law.

Without dwelling any further upon its external form, we proceed at once to the most important inquiry, what should be the essential nature of this legislation? We submit, as its fundamental conception, that such legislation should recognize, be founded on, and carry out natural laws and natural rights. Any attempt to violate natural and economic laws and rights, to confer a supposed benefit upon certain classes of persons by legislation which invades and abrogates the natural rights, resulting from natural and economic laws, held by other persons, must be injurious to society as a whole, and can produce no real good to any portion of it. In the second place, the legislation should interfere as little as possible with existing and established private rights of property. Numerous private riparian proprietors are located upon nearly all the important streams in this state;

the lands upon the banks of some of these streams are probably all, or nearly all, held by private owners. The rights of all these proprietors are recognized and established by the existing law of the state as incident to or a part of their property. These rights should not be disregarded. An attempt to do so would be grossly unjust, and could only produce confusion and wrong. Finally, it is a principle of universal application that new laws, and most especially new statutes, should be based upon notions and conceptions with which the people are familiar; they should reflect the customary and popular customs, habits of thought, and institutions.

§ 164. System of acequias impracticable.

If the foregoing general principles of legislation are accepted and followed, it is plain that the public system of "acequius" which prevails in New Mexico and Arizona would be utterly impracticable and impossible in California and Nevada. By that system, it will be remembered, there is not, and cannot be, any private property rights in natural streams and lakes. All such waters are public, free to the use of all occupants of land for the purpose of irrigation. No person can appropriate the water of a stream even for the purpose of milling. The irrigating canals or "acequias" are maintained by the public, at the public expense, and are controlled by the local authorities. It is enough to say of this system, which is borrowed from the Spanish-Mexican laws, that it is utterly foreign to the habits of thought, customs, modes of legislation, and institutions of our people; and its adoption would violate all of the established rights of private riparian proprietors as recognized by the existing law of the state. It is hardly probable that any one would seriously advocate the introduction of this type of legislation.

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