§ 165. Colorado system criticised.

It has, however, been strenuously urged that the Colorado system of defining and regulating water rights, which virtually prevails in Montana, Idaho, and other territories, and of which a detailed account was given in a previous chapter, should be adopted by the legislation of California. We do not think that any intelligent lawyer or statesman, or careful student of political economy, who was familiar with the results of legislation, and with the enforcement of statutes creating hostile and conflicting interests, could recommend the adoption of this Colorado system. In order to understand what this legislation really is, the reader must consult the detailed synopsis of the statutes given in a former chapter; it will be sufficient now to state its essential and fundamental notions. It utterly disregards all natural laws and the natural rights arising from the position of those who own lands situated directly upon the banks of streams. It places persons owning land at any distance from a stream upon exactly the same footing of right to its water with those who own land upon its very banks. Its fundamental idea is that prior appropriation from any stream by any one, irrespective of his location, or his prior possession or ownership, confers an absolute supremacy of right to use and divert its water; so that a proprietor who has for years owned land on the banks of a stream, but has not constructed a ditch by which to divert and use its water, shall be subordinate to any person who makes a prior actual appropriation for the benefit of his lands, however distant from the stream. It virtually permits an unlimited invasion of private lands, for the purpose of constructing and maintaining ditches across them by which to carry water.

As Colorado and these territories become more fully settled, especially by an agricultural population, this system of water regulation will inevitably give rise to an enormous amount of

trouble, controversy, and litigation. It is impossible to conceive of legislation tending more than this to create strifes, conflicts, and breaches of the peace. The right of prior appropriation on the public streams was a most fruitful cause of litigation in California, as is shown by the great number of reported cases; but this is a feeble illustration of the litigation and controversy which must arise from the statutes of Colorado and of the various territories when they come into full operation upon an increasing population.

§ 166. Legislation must respect natural laws and natural rights.

A

No legislation can be just or practicable, or can tend to the peace and prosperity of society, which attempts to violate and override natural laws and natural rights,-the immutable truths which exist in the regular order of nature. No matter what may be its motive, although enacted for the assumed purpose of benefiting certain classes of society, legislation which disregards natural laws, justice, and rights not only produces evil to society as a whole, but even injures the very classes it was designed to benefit. There is much in the general legislation of California which demonstrates the truth of this principle. most instructive essay might be written upon this topic, which would conclusively show the injurious results of many California statutes which violate natural laws, and economic truths and rights based upon natural justice,-results which bear most heavily upon the very classes whose interests were intended to be promoted. We cannot refrain from illustrating this most momentous principle of economic laws by a single example. The legislation of California, in dealing with the relations of debtor and creditor, leans very strongly in the supposed favor of the debtor class. This leaning is shown in a very remarkable manner in the statute of limitations. There is probably no

other civilized country in the world, except perhaps some states or territories which have copied the California statutes, which prescribes such extremely short periods of limitation within which rights of action are barred. Every lawyer of intelligence is familiar with the analogous statutes in England and in most of the American states, and can make the comparison with These extremely short periods which seem to abridge the creditor's rights, were enacted with the supposition that the debtor class would be benefited thereby. What is the actual effect? There is no other state in the Union where the laws are practically so hard against debtors in the enforcement of claims as in California; there is no other state where the debtor's property is so constantly and necessarily sacrificed on judgments and

our own.

executions.

Under these statutes of limitation, and the decisions construing them, a creditor, however well disposed and however willing to favor his debtor, cannot be lenient, cannot give terms. Any leniency on his part is simply rendered impossible by the statute which would bar and destroy his claim by a brief period of inaction. However worthy, honest, and industrious the debtor may be, or however unfortunate he may have been, his creditor cannot stay his hand except at the risk of entirely losing the demand. The creditor must foreclose his mortgage within the brief statutory period, no matter at how great a loss for the debtor; he must sue and obtain judgment, and must seize and sell the debtor's property on execution, no matter at how great a sacrifice. In other states a creditor can be lenient without risk to himself; he can wait for years, so that an honest, industrious, or unfortunate debtor may recover himself, because his mortgage remains good for twenty years, his judgment continues to be an effective security for ten years, and his debt, whatever may be its form, is not barred within six years. But the legislature of California, acting in the supposed interests of

the debtor class, has made it simply impossible for a creditor to be lenient, and has exposed the debtor to a greater risk of loss and sacrifice of property than results from the laws of any other state, except those, if any, which have copied the California statutes.

This is only a single example, but it well illustrates a principle which is universal. The truth is established, not only by the most convincing a priori reasoning, but by general experience, that legislation which disregards natural laws and rights must work injury to society. The various classes of society are so connected that no large class can be injured without injury to all.

§ 167. Natural rights and advantages of riparian

owners.

The laws of nature certainly give a natural right and advantage, from their superiority of position, to those who own land lying on the banks of natural streams. It is an undeniable fact that such proprietors have a natural right as compared with those who own land at a distance from streams. Legislation which disregards this fact-which attempts to deprive the one class of their natural right and advantage, and to confer the same right and advantage upon the other-is necessarily impracticable; it cannot work successfully; it is essentially unjust, and can only produce wrong. Statutes, however elaborate and detailed, which invade natural rights, and violate the sense of natural justice, must be the occasion of unlimited confusion, strife, contention, and litigation; nothing can be settled and established by them. The common-law doctrines recognize and protect this natural right and advantage of the private riparian proprietor; they regard it as a fact which cannot be denied nor overcome, and they build all of their specific rules upon it as a foundation.

A similar natural advantage is connected with landed ownership in many other respects. Those who own fertile and productive lands have an enormous natural superiority over those proprietors whose lands are wholly situated in barren and unproductive soils and regions. Is this any just ground for legislation which would authorize the latter class to invade the possessions of the former, and to deprive them of some portion of their more valuable property? Those who own land upon which there is a supply of forest trees, have a great natural advantage over those whose lands are entirely devoid of timber. Is this any just ground for statutes enabling the latter to claim and appropriate a portion of the timber land belonging to the former? The use of the stream, and of the water flowing through it, forms a part of the rights incident to and involved in the ownership of the lands upon its borders. This is the principle recognized by the common law, and which should be recognized by any auxiliary legislation. It is, moreover, a natural law, an inevitable fact, which no legislation can change. Any statute denying this fact simply attempts an impossibility.

§ 168. Legislation should recognize these rights.

It results from the foregoing positions that any legislation, in order to be just and practicable, should primarily recognize, maintain, and protect the water rights, and especially the right to use the water, for purposes of irrigation, of all the private riparian proprietors owning lands abutting on either bank of any natural stream throughout its entire course.

§ 169. Jurisdiction of equity.

We have no doubt that equity has full jurisdiction over all the private riparian proprietors upon any given stream, to determine their individual rights, and to furnish a perpetual means for the protection and enforcement of those rights. A very re