having caused the thing which was hung high up on the great vessel to inflate, they were borne far off, and disappeared from sight as if they had entered the water."

Which of the two men is responsible for the difference in the endings of the two versions of the story? The two books were published about the same time-Dumont's in 1753, Le Page's in 1758. Prior, however, to this date, Le Page had published in the "Journal Economique" what he terms an abridgment of his history. Dumont, in his "Memoires," accuses Le Page of borrowing his manuscript and of appropriating his work; and while repeatedly speaking of him as his friend, charges him with inaccuracies, blunders, and falsehood. The credulity of the reader of the "Memoires" is taxed by the author's assertion that he saw a rattlesnake twenty-two feet in length, and a frog that weighed thirty-two pounds. On the other hand, Le Page's volumes are free from all exaggeration of statement, are void of personalities, and except for certain speculations on the origin of the native races and their religion, which betray a fondness on his part for theories of his own, seem perfectly reliable. Were it not for the fact that Le Page must have been in France at the time of the publication of Dumont's book, where be could hardly have escaped seeing the version of the story there given, with himself as authority, we should have little hesitation in charging Dumont with the responsibility for the change. As it is, however, we must search further for a satisfactory explanation of the two endings.

About the same time that these books were going through the press, a great war was going on among the European cartographers on the subject of the northwest coast of America. Into this war our two historians drifted. Dumont ranged himself with his countrymen. For Le Page to have taken the same step, would have been to abandon Moncacht-Apé. We may feel sure that if Le Page originally believed in the story of the Indian, the fires of his faith, now that he had become mixed up in this partisan controversy which questioned its truth, would

be fanned to a fiercer glow; while, if the story was a fiction of his own construction, he would avail himself of any opportunity to build it up and increase its strength.

In the sixteen years which elapsed between the return of Behring's expedition and the publication of Le Page's History, more or less of the information gathered by that expedition had been furnished to the public. With his senses sharpened by participation in the war of the geographers, it would not be wonderful if Le Page had heard that the natives of the coast were in the habit of eating roots, and that the seals furnished them with meat. There had, however, been no such publication of these facts as would justify us in saying that he must have known them.

The outline of our coast, as suggested by Moncacht-Apé in his travels, shows a much better conception of the facts than do the hypothetical maps of the French cartographers, which were hampered in their construction by the fictions of Fonté and Maldonado. The Russians published a chart about this time, based upon knowledge which was public and freed from the prejudices of upholding geographical theories, which corresponds very closely with our coast as we now know it, and would easily answer to Moncacht-Apé's general description.

To just the extent that we may believe Le Page to have come into possession of the knowledge upon these subjects which we have shown to have been possibly within his reach, will the argument of coincidences between the statements of the Indian and the revelations of subsequent discoveries be weakened. It depends upon our views on this point what weight we shall give to the Indian's astonishment at the absence of Indian corn, his yearning for it, and the inadequacy of the breadstuff furnished him as a substitute-the natural and probable experience of a traveler over this route. So, too, with reference to the use of seal's meat as food.

And now, what about the bearded men, who came habitually to the coast with such regularity that their arrival could be predict

ed within a few days; whose purpose simply was to get a cargo of dye wood, and who had no expectation of traffic in their annual visits ? If we admit this part of the story to be true, we shall have no difficulty in accept ing the learned argument of M. de Quatrefages to prove that the foreigners came from Lieou-Tchou or the eastern islands of Japan, but if we submit the tale to a careful scrutiny, it is not an easy one to believe.

There is not sufficient evidence to justify the belief that the Japanese or Chinese ever made such ventursome voyages. We have both record and tradition of the arrival of Japanese vessels on our coast, but they were plainly unwilling visitors. There is no known wood upon our coast of particular value as a dye-wood, and there is no part of the North Pacific coast where the extermination of a particular tree would leave the inhabitants without wood. The collection of a cargo of dye-wood in a country which has no wood valuable for that purpose is not a sufficient motive for the annual voyage. If, for the purpose of rendering the story more plausible, we admit that the bearded men came for the purposes of trade, then we should expect to find some traces of its existence in the hands of the Indians. A careful examination of the authorities does not disclose any evidence of such a trade ever having existed.

Our conclusions, then, are that the journey of the Indian was not only a possibility, but that the accumulation of testimony showing knowledge of the river and sea of the West bears evidence of the existence of intercourse between the tribes inhabiting the valleys of the Mississippi and the Columbia. We can not accept as probable the habitual visitations of the bearded men; and since Dumont acknowledges that he receives the version that he gives from the lips of Le Page, we must hold Le Page responsible for their introduction in the story and for the double endings. That Moncacht-Apé existed, that he had a reputation as a traveler, and that he made some such trip as is described in the story, may be inferred from Dumont's statement that he knew the Indian; and although he does not give full credit to the story, still his publication of it shows that he felt that there might be some foundation for it.

Should the students who may hereafter have access to Oriental records find material there which will justify the belief that the shores of the North Pacific Coast of America were frequently visited by the Japanese or Chinese, we shall gladly withdraw our conclusions that a large part of the story of Moncacht-Apé, as told by Le Page du Pratz, is to be assigned to the literature of hoaxes, and cheerfully join in restoring it to the region of history.

Andrew McFarland Davis.

for the most part, treeless plains. The late rains enable the growth of small grains, but forage plants, fruits, and vines cannot be grown with success. A thousand acres will not afford a reasonable living to more than one family. Were it possible by a network of ditches to bring into these valleys an abundant supply of water, a metamorphosis could and would be accomplished in their agricultural condition. The soil is rich and the climate warm. With the requisite mois ture, forage plants, trees, and vines would

grow with rapidity and luxuriance. The broad valleys would become a vast garden laid out in orchards, vineyards, alfalfa and grain fields. One hundred acres would yield an increase sufficient to support a family in affluence.

In the June number of the OVERLAND a very able article discussed the power of the State legislature to make the waters of our streams public property, and the justice and wisdom of the common law doctrine of riparian rights as applied to the State of California. The writer concluded in favor of the existence of the power mentioned, and pronounced the common law doctrine as thus applied unwise and unjust.

The correctness of his conclusions may well be doubted. The State government has not the power to declare the waters of the streams of this State public property. At common law, the owner of land upon a stream has a right to the use of the waters thereof for household purposes and for watering his stock; to the natural irrigation of his land, worked by the percolation of the waters through the soil; to the use of the waters for artificial irrigation, so far as it is consistent with the undiminished flow of the stream; and to the water power derivable from the natural fall of the stream while passing his land. He is entitled to have the waters flow down as they have flowed from time immemorial, undiminished in quantity and unimpaired in quality. This right is not an incident or appurtenance to the land. It is as much a part and parcel of the land as the soil, or as the stones and the trees upon it. (Angell on Water-courses, Sec. 92.) So far as the public lands have not passed from the United States to individuals, the title to the water-rights as a part and parcel of the lands resting upon the running streams is in the United States. The State has no more property in the waters than in the soil of the public domain. The lands of this State, with every part and parcel thereof, the soil, the trees, and the waters and water-rights, passed to the United States by grant from the Mexican government, before the State of California emerged above

the political horizon as a new but brilliant star in the firmament of States; and those lands have remained in the United States, except where granted to private individuals, or, as in the case of the sixteenth and thirtysixth sections, to the State. It is hardly necessary to say that the State can no more declare the waters of the public lands of the United States public property, thereby debarring the United States from passing the usual water-rights to individuals, than it can declare the soil or trees public property, subject to the disposition of the State legislature.

Where public land has passed by sale and grant from the United States to individuals, the water-right, as a part and parcel of the land, has passed to the individual. A conveyance of land situated upon a stream conveys the usual water-right without express words to that effect. It is no more necessary to express a grant of the water-right than it is necessary to express a grant of the trees or stones upon the land. (Angell on Water-courses, Sec. 92.) The United States patents are no exception. Their operation as conveyances are to be determined, not by the civil, Spanish, or Mexican law, but by the common law. Private water-rights may not have existed in California under the Mexican regime. But the national government, vested with the title both to the soil and the water of the public lands, has passed to its grantees, by its common law conveyances, the soil and certain water-rights, and we are bound to resort to the common law to ascertain the nature and the extent of those rights; as in the case of a marriage contracted in California previous to the cession of the State to the United States, and property acquired to the married couple previous to such cession, we are bound to resort to the Mexican law, to ascertain what rights the husband and wife respectively possess in such property. It cannot be claimed that the United States' grants have not had this operation. Such a position would involve the contention that the United States' patents made to lands in Ohio, Kentucky, and all the other States east of the Mississippi River, passed no rights

in the waters whose nature and extent we have to ascertain from the common law.

But if the water-rights have passed to individuals, they cannot be arbitrarily divested by the State. The legislature can no more extinguish such rights by its arbitrary decree than it can thus extinguish the right held by one by virtue of a private grant, to flow water from another's reservoir. It would be depriving a man of his property without due process of law, and taking private property for public use without compensation therefor. Were the State to pass an act declaring such rights public property, the State courts would be bound to declare the act unconstitutional. If they failed to do so, the Supreme Court of the United States would adjudge the act void. An appeal would lie, because the act sought to take private property without due process of law in violation of the fourteenth amendment to the National Constitution. A strenuous effort was made, in the case of Lux et al. vs. Haggin et al., to induce the Supreme Court of this State to reject the doctrine of riparian rights, but that court remained true to the law. Had our court not done so, on appeal to the Supreme Court of the United States the decision would have been reversed. The water-rights now existing in individuals in this State can only be extinguished by condemnation to public use in the exercise of the power of eminent domain. An alteration in our code will not, and cannot, affect the riparian rights of land-owners. They derive their rights from the national government solely, and now hold them as vested rights. The code operates only in the case of public lands. Where parties acquire water-rights upon such lands under the codes, they can enforce them against all persons not holding title from the United States. The case is identical with the possession of our public lands. Under our State laws, a possessor of such land can hold the same until the United States or a grantee from the same interferes. In the case of lands still a part of the public domain, the United States can, if it sees fit, reserve from the operation of subsequent land grants the water-rights, or it can grant

the same separate and apart from the soil. The latter it has heretofore done to some extent in the case of mining and irrigating ditches, by the United States statute of July 26th, 1866. (Rev. Stat. U. S. '78, p. 2,339.)

The legislature of California cannot therefore abolish the riparian doctrine or the riparian rights. It can only provide for the condemnation of water-rights for the public use. It can authorize the formation of water companies, and empower them to institute judicial proceedings for the condemnation of the waters of the streams. This condemnation may involve an enormous expense, for it will be necessary to condemn the water-right of every owner of land upon both sides of a stream from the point of diversion to the mouth. It must be remembered, however, that this expense is incurred to secure to these riparian owners an equivalent for a valuable property of which they are divested, and the institution of a system of irrigation cannot be profitable to the State unless the diversion of the water enhances the fertility of a country greater in area than the lands deprived of water and rendered unnaturally dry and infertile. And in that case the owners of the lands enhanced in value should, in justice, compensate those whose lands are rendered less fruitful. it is a mistake to suppose that irrigation necessarily involves the extensive condemnation of water-rights. The attempt to divert the waters of the small streams in the San Joaquin is in reality an attempt, not to utilize waters which do not serve any purpose of irrigation, but to divert to lands not now naturally irrigated, the waters which now naturally irrigate equal if not greater areas of land. The true system of irrigation should aim to utilize, for the purpose of irrigating our arid plains, the surplus waters over and above the waters which annually serve to naturally irrigate the lands along the banks of the streams of our State.

But

These surplus waters are the waters that come down in the spring and winter freshets. These should be hemmed up in huge artificial lakes in the gorges of the Sierra Nevadas, and the waters thus stored should be drawn