for the purposes of irrigation, but would have given to each a reasonable use of the water and determined the question of reasonable use by the particular facts and circumstances as revealed by the evidence." In the case of Lux vs. Haggin,' the Court held that by the laws of that State riparian proprietors are entitled to a reasonable use of the waters of a stream for the purposes of irrigation; and what is a reasonable use is a question of fact, and depends upon the circumstances appearing in each particular case. Also in the case of Swift vs. Goodrich, the Court said: “A riparian proprietor may take water from the stream for necessary household purposes, and may make reasonable use of it for irrigation."3 From these authorities there can be no question as to the authority of riparian owners of the western States to divert the waters of a stream which runs through or adjoins their lands, and we will consider next the extent to which he may so divert it. $275. The Extent to Which Water May be Diverted for Irrigation. A riparian proprietor is not entitled to divert and use all the water of a stream for irrigation without regard to the wants and necessities of other riparian proprietors, although the amount so diverted and used was no more than necessary for the irrigation of his lands, as is the case with those who claim the water by virtue of a priority of appropriation, unless the proprietor lays claim to the water as a prior appropriator as well as a riparian proprietor. In the latter case the rules applicable to prior appropriators will apply. In fact there is but one instance where a riparian proprietor is permitted, under the laws of the western States, to divert and use all of the waters of a stream. An upper riparian proprietor is entitled to take from the stream as much water as is necessary for watering his cattle and for domestic uses, even when such necessities may consume all the water of the stream.1 Mr. Washburn, in his work on "Easements and Servitudes," sums up these principles in the following language: right of a riparian proprietor, jure naturae, to divert water from a stream when reduced to a simple proposition seems to be this, he may not do it for any purpose except domestic uses and that of irrigating his land; whether and to what extent he may do the latter depends in each particular case upon whether it is reasonable, having regard to the condition and circumstances of other proprietors upon the stream, and this is to be determined in all cases of doubt by a jury. But in no case may he do this so as to destroy or render useless, or materially diminish, or affect the application of the water by other proprietors." In Lux vs. Haggin, cited above, the Court said: "An entire diversion of a water course by an upper riparian proprietor for irrigation is never allowed." The owner of land through or along which a natural stream flows has a right to the reasonable use of the water of such stream during its passage, but has no right in the corpus of the water.3 Cal. 578; Ellis vs. Tone, 58 Cal. As to liability of lessors see 1 Union M. &. M. Co. vs. Dangberg, 2 Sawyer, 450, where the Court held that in the exercise of his common right each riparian proprietor may consume so much of the water as is necessary for household and domestic purposes and for his stock. See also Ferrea vs. Knipe, 28 Cal. 340; Hale vs. McLea, 53 Cal. 578; Lux vs. Haggin, 69 Cal. 255. 2 Washburn on Easements and Servitudes, 2nd. Ed. p. 240, 12. 3 Union M. & M. Co. vs. Dangberg, 2 Sawyer, 450; Eddy vs. Simpson, 3 Cal. 249; Crandall vs. Woods, 8 Cal. 136; Kidd vs. Laird, 15 Cal. 161; Hale vs. McLea, 53 Cal. 578; Pope vs. Kinman, 54 Cal. 3; Lux vs. Haggin, 69 Cal. 255; Weiss vs. Oregon Iron & Steel Co., 13 Ore. 496. § 276. What is a Reasonable Use by Riparian Owners.A reasonable use of the waters of a stream by a riparian proprietor may be defined as any use that does not work actual, material, and substantial damage to the common right which each proprietor has, as limited and qualified by the precisely equal right of every other proprietor. What will be construed as a reasonable use by the riparian proprietor depends entirely upon all the facts and circumstances of each particular case considered not only with regard to any one proprietor's right, but with regard to the rights of all whose lands adjoin or are divided by the stream. It is impossible to lay down any definite rule that will be of universal application. It is necessary to take into consideration the character of the soil and the climate; the actual amount of water needed to make a certain tract of land productive; the nature and size of the stream, including the water flowing therein, and the uses to which it can be or is applied. It is also necessary to determine the nature and importance of the use for which it is claimed and exercised by one party as well as the inconvenience or injury to all other owners upon the stream; the proportion of water diverted, compared with the whole volume of the stream; the quantity lost by evaporation and absorbed by the soil; the manner of diverting the water from the natural stream and conducting it to the place where it is needed; the mode in which it is used; the quantity of land under cultivation; the kind of crops to be irrigated and their need of water; the means adopted for returning the water to its natural channel; the season of the year, and whether there is low or high water, and all other matters bearing upon the question of fitness and propriety in the use of water by the riparian owner. The diversion must be reasonable in the light of all the evidence and circumstances of each particular case. In other words, it must not be unreasonable and without regard to the rights and necessities of other riparian proprietors. 1 Union M. &. M. Co. vs. Dangberg, 2 Saw. 450; Lux vs. Haggin, 69 Cal. 255. § 277. Same.-Authorities Cited.-Upon this proposition a late California case held:1 Assuming that in this State an upper riparian proprietor has the right to use a reasonable amount of the water of a natural stream running through his premises for irrigating his riparian land, still he has not the right for that purpose to take all the water which flows in the stream at the point where he diverts it; and if the defendant did (as the evidence tends to show) thus take all the water flowing at the point where it was diverted his act in so doing was wrongful. What would be a reasonable amount of water for irrigation is a question that must depend upon the particular circumstances of each case in which it arises, and it is a question which will often be of difficult solution; but it is clear that in no case can he for that purpose as against a lower proprietor use all the water of the stream. That could be done, if at all, only where the whole of the water was absolutely necessary for strictly domestic purposes and to furnish drink for man and beast."2 In a very late case decided by the Supreme Court of California, in March, 1892, in Harris vs. Harrison, the Court held that the common law rules as to riparian rights are so far modified in that State that an upper riparian proprietor has the right to the reasonable use of the water of a natural stream for irrigating the riparian land where irrigation is necessary, although such use may appreciably diminish the flow down to the lower riparian proprietor; but he does not have the right to absorb all the water of the stream, so as to allow none to flow down to the lower riparian proprietor. Mr. Justice McFarland, in rendering the opinion of the Court, 1 Gould vs. Stafford, 77 Cal. 67. As to liability of riparian owners as lessors see Same vs. Same, 91 Cal. 146; 27 Pac. Rep. 543; and also 35 Pac. Rep. 427. 2 In an action by a lower riparian owner to restrain the diversion by an upper owner of the waters of a stream, a decree ordering that the whole of the water be allowed to flow unrestricted to plaintiff's lands in the natural flow, except a given number of inches, is erroneous, since defendant would thereby be deprived of the reasonable use of any part of the water for irrigation or other necessary purposes as riparian proprietor. Van Bibber vs. Hilton, 84 Cal. 585; 24 Pac. Rep. 308; Stanford vs. Felt, 71 Cal. 249: 16 Pac. Rep. 900. 3 93 Cal. 676; 29 Pac. Rep. 325. said upon the subject: "According to the common law doctrine of riparian ownership, as generally declared in England and in most of the American States upon the facts in the case at bar, the plaintiffs would be entitled to have the waters of Harrison canon continue to flow to and upon their land as they were naturally accustomed to flow, without any substantial deterioration in quality or diminution in quantity. But in some of the western and southwestern States and Territories, where the year is divided into one wet and one dry season, and irrigation is necessary to successful cultivation of the soil, the doctrine of riparian ownership has by judicial decision been modified or rather enlarged, so as to include the reasonable use of natural water for irrigating the riparian land, although such use may appreciably diminish the flow down to the lower riparian proprietor. And this must be taken to be the established rule in California, at least where irrigation is thus necessary. (Lux vs. Haggin, 69 Cal. 394.) Of course there will be great difficulty in many cases to determine what is such reasonable use; and 'what is such reasonable use is a question of fact, and depends upon the circumstances appearing in each particular case.' (Lux vs. Haggin, 69 Cal. 394.) The larger the number of riparian proprietors whose rights are involved, the greater will be the difficulty of adjustment. In such a case the length of the stream, the volume of water in it, the extent of each ownership along the banks, the character of the soil owned by each contestant, the area sought to be irrigated by each-all these and many other considerations must enter into the solution of the problem; but one principle is surely established, namely, that no proprietor can absorb all the water of the stream so as to allow none to flow down to his neighbor. "In the case at bar only the rights of two riparian proprie'tors are to be considered; none other are involved. And the amount of water in the stream is so small that it is apparent that defendants could not use it for any useful irrigation without practically absorbing it all, and leaving none to flow down to plaintiffs' land. There was sufficient evidence to warrant the finding of the Court that in order to irrigate it is necessary that the full flow of the stream be used at once.' But |