They can be had only by contract from him or the like; not by simply receiving his waste. This statement may be somewhat too broad to be exact, but it is near enough for present purposes. Any change by him of his ditch or pump, changing or stopping the source of the manufactured flow, is no cause of action. Damage or no damage does not enter here. There is no right invaded by the change in the first place; certainly not where the change is made in good faith for some purpose of the maker, without malice or mere ill-will to the persons deprived thereby.25 This exception applies, however, only to changes at the source. It also only applies to permit changes by the producer of the artificial flow. The law is that among all the rest of the world except the producer, the flow follows the usual law of water-courses, and it is immaterial between them how that flow came to be.25a Strangers to the producer are not concerned with his rights when they are not privy to him, and he is not setting them up himself. The rule that change can be made "if no injury to others" was begun on common law authority. In the original precedent, cited at the beginning, for change of point of diversion, the court quoted common law decisions and texts and drew its conclusion from them.26 But when it comes to defining "injury" there is in all parts of the law this twilight zone between "damage" and "injury" that causes different views. 27 An illustration elsewhere is where riparian owners seek injunctions against change of conditions by nonriparian owners. Some rulings say such change will not be stopped unless it is shown to be "injurious;" others (and the weight of authority) hold such change to be an injury "per se;" and the debate continues unsettled still.28 In the common law of easements the question has arisen how far the dominant owner can change the use of the easement. Here the ruling against the change seems to be accepted with less dispute.2 It seems worth recalling that in 1856 and 1860, when the

29

25 See Wiel, Water Rights, (3d. ed.), §§ 53-62; 29 Harvard Law Review 137.

25a See the paper of the present writer in 29 Harvard Law Review, 137. 26 Kidd v. Laird (1860), 15 Cal. 161, 181.

27 See 1 C. J. 964; Wiel, Water Rights, (3d ed.), § 642.

28 Wiel, Water Rights, (3d ed.), Ch. 35; 2 California Law Review, 340. 29 14 Cyc. 1206, 1211. "Plaintiff established a prescriptive right to the use of the water for stock purposes, and it is so found, but there is no evidence and no finding that he acquired any such right to use the water for household or domestic purposes or for irrigation." (Held fatal).

original rulings permitting changes were made, and during the period up to the end of the eighties when they were spread through the western water law, the locality was a wide expanse of public domain, where changes were mainly upon public land. The "injury," if any, was predominantly to the United States, who raised no objection. Since then settlement has occupied much of the region around water supplies. Land and rights in water have become private property. The rule that there must be no injury to them has become more prominent than the rule of change. Those who may be injured have increased and multiplied and now assert their rights, and along with this has come a stricter view of what constitutes an "injury."30

Whatever the reason, a glittering generality that was very easy of statement and seemed simplicity itself, seems to be turning against itself in its application today.

San Francisco, California.

Samuel C. Wiel.

Gurnsey v. Antelope etc. Co. (1907), 6 Cal. App. 393. A prescriptive right for watering stock cannot be changed to irrigation, Duckworth v. Watsonville Co. (1907), 150 Cal. 520, 89 Pac. 338. A right of way to carry water to certain lands cannot be changed to carry it to other lands, Logan v. Guichard (1911), 159 Cal. 592, 114 Pac. 989. Easement granted for "supply pipes" of a water system cannot be changed to use as distributing pipes; that is, pipes for conveying water from one reservoir to another cannot be used for conveying water from the reservoir to consumers, Gray v. Cambridge (1905), 189 Mass. 414, 76 N. E. 195. One cannot substitute an iron pipe in place of a flume or trough, against the opposition of the owner of the land upon which it lies, Lewis v. Meredith (1913), 1 Ch. 571, 580.

30 See in Re North Powder River (1914), 75 Ore. 83, 144 Pac. 486.

Inalienable Rights of Property: A Study of Contract Obligations and Other Vested Rights

VI. RIGHTS OF INDIVIDUALS UNDER PARTICULAR TRANSACTIONS.

are

Time as of which contract rights vest.-The constitutional and statutory law in force at the time a contract is made enters into and becomes a part of it; and the rights which become vested by virtue of a contract those created by the act of the parties in view of such law. Where a public contract for street work, to be completed in a specified time, and to be paid for by local assessment to be collected after the work was done, was entered into by a city in the fall of 1879, a provision of the state constitution,2 adopted in 1879 to take effect in January of the following year, requiring that where public work in a city is to be paid for by local assessment, the assessment be collected and paid into the city treasury before any contract for doing the work is let, does not apply; and, such contract being valid under the law in force when it was made, was not invalidated by the constitutional provision, either as a whole, or merely as to work not done thereunder when the new constitution took effect: the fact that after January 1, 1880, the time to complete the work was extended by the city pursuant to authority given by such street law, does not affect the result, the granting of the extension not being a novation

1 Robinson v. Magee (1858), 9 Cal. 81; Tuolumne Redemption Co. v. Sedgwick (1860), 15 Cal. 515; Ede v. Knight (1892), 93 Cal. 159, 28 Pac. 860; Welsh v. Cross (1905), 146 Cal. 621, 81 Pac. 229, 106 Am. St. Rep. 63.

In case of carriage of persons or property by a railroad, the law, constitutional and statutory, regulating such matter, subsisting at the time and place of the making of the contract and where such contract is to be performed, enters into and forms a part of the contract, the same as though set forth at length in the contract. James v. Oakland Traction Co. (1909), 10 Cal. App. 785, 103 Pac. 1082; Southern Pacific Co. v. Superior Court (1915), 27 Cal. App. 240, 150 Pac. 397, opinion being reserved by supreme court on denying rehearing, 27 Cal. App. 256, (carriage of freight, the long and short haul clause of the state constitution being involved).

2 Art. 11, § 9.

or new contract. Where at the time a municipality contracted an indebtedness to an individual, its power to contract the same was limited, there is no violation of the obligation of a contract. in restricting the rights and remedies of the individual on such contract to those to which he was entitled under the limitations of the law which prevailed when he made the contract.* Where in 1872, when a note and mortgage were executed and the mortgagor died, the Probate Act, provided:

"No holder of any claim against any estate shall maintain any action thereon, unless the claim shall have been first presented to the executor or administrator,"

and section 1500 of the Code of Civil Procedure, as enacted in 1872 to take effect in 1873, embodied the above section of the Probate Act with the proviso that,

"An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint," and thereafter the deceased mortgagor's will was probated, and notice to his creditors published, and subsequently this proviso was repealed, and later the note and mortgage became due, after which the time to present a claim thereon expired without the presentation of any, and with the exception expressed in section 1500 as enacted in 1872 the law at all times had been that a claim not presented was "forever barred;" it was held that the mortgagee contracted with reference to the law in force at the time its note and mortgage were executed, and never acquired any vested right to foreclose its mortgage without first presenting a claim, and the repeal of the proviso by the amendment did not impair the obligation of its contract.5a

Indefeasibility of contract rights not dependent on form of action. The principle that rights created by a contract are vested

5a Per McKinstry, J., concurring in judgment in Hibernia Savings & Loan Soc. v. Jordan (1880), 2 Cal. Unrep. Cas. 79, 5 Pac. Coast L. J. 381, (reversed on rehearing); Same v. Hayes (1880), 56 Cal. 297, 7 Cal. Unrep. Cas. 398, 6 Pac. Coast L. J. 686, on ground that the amendment of 1874 did not apply to an estate wherein notice to creditors had been published before it took effect).

3 Oakland Paving Co. v. Barstow (1889), 79 Cal. 45, 21 Pac. 544; Ede v. Cogswell (1889), 79 Cal. 278, 21 Pac. 767; Ede v. Knight, supra, n. 2. 4 Smith v. Broderick (1895), 107 Cal. 644, 40 Pac. 1033, 48 Am. St. Rep. 167.

5 Cal. Stats. 1851, p. 448.

and cannot be impaired by a subsequent change in the law which entered into and became a part of the contract, is applicable in actions of tort for violation of the law so entering into the contract, as well as in actions of contract on the contract.®

Pensions and benefits.-By statute a fund was provided for the insurance of the San Francisco police, the fund consisting of a monthly sum paid by each police officer, and the accumulations thereof. This act was impliedly superseded by a later act which contained provisions inconsistent with the first, and this second act was superseded by the freeholders' charter of 1899. Until the happening of a contingency upon which, under that of the foregoing enactments in force at the time of its happening, a benefit was payable out of the fund created by them, the right of the beneficiary thereto was a mere expectancy and not a vested right. Thus the right to a benefit was to be determined by the law in force at the time of the happening of the contingency, and was subject to be lost by a change in the laws or by the discharge of the police officer before the happening thereof. But upon its happening, the right to the benefit became vested and was not thereafter subject to be lost by any change in the law.10

Measure of damages for tort.-It cannot be held that a change in an arbitrary and statutory standard of measurement of damages in cases of tort, when applied to a person who had suffered a wrong before the change, impairs the obligation of a contract or deprives him of any vested right, even though by the change the amount of damages recoverable by him for the wrong was reduced." Thus where at the time of the wrongful conversion of certain personal property section 3336 of the Civil Code provided that the detriment caused by the wrongful conversion of personal property "is presumed to be . . . . the value of the property at the time of the conversion, with the interest from that time, or,

James v. Oakland Traction Co., supra, n. 1.

Pennie v. Reis (1889), 80 Cal. 266, 22 Pac. 176, affirmed (1889), 132

U. S. 464, 33 L. Ed. 426, 10 Sup. Ct. Rep. 149.

8 Pennie v. Reis, supra, n. 7; Cohrn v. Henderson (1912), 19 Cal. App. 89, 124 Pac. 1037.

9 Clarke v. Reis (1891), 87 Cal. 543, 25 Pac. 759.

10 Kavanaugh v. Board of Police Pension Fund Commissioners (1901),

134 Cal. 50, 66 Pac. 36.

11 Tulley v. Tranor (1878), 53 Cal. 274, 2 Pac. Coast L. J. 312.