222 



THE IRRIGATION AGE. 



be enabled to serve the community at the stipulated 

 rates. In any event, there is nothing to prevent le 

 gitimate land speculation from accompanying the 

 venture. 



Such, substantially, is the Civil law irrigation sys- 

 tem as it exists in France, Italy and Spain, with vari- 

 ations as to details, to-day. Great water-right litiga- 

 tions and legislative strugglings over proposed water 

 codes and laws, disastrous failures of irrigation en- 

 terprise, loss of investments, oppression of irrigators, 

 conflict of rights, and the multitudinous other tribu- 

 lations to which irrigation development has subjected 

 our country, are there unknown. The reason is not 

 found in the different form of government or condi- 

 tion of society. It is traceable to the logical applica- 

 tion of the principle that water is the common prop- 

 erty of all people, and as such is to be guarded in 

 their interest. That it is not a public property be- 

 longing to no man subject, as such, to private ap- 

 propriation. 



ENGLISH COMMON LAW. 



Under the Common law of England, on the con- 

 trary, water is regarded as part of the stream, lake or 

 pond in which it runs or rests. Some streams, lake?, 

 etc., are private property, and others are public 

 property. Thus, with certain limitations as to use in 

 the interest of the public and of other owners, water 

 in some streams, lakes and ponds is in private, and 

 in others it is in public ownership. 



To be in private ownership, subjects it to private 

 use, regardless of the needs of the people at large, 

 and subject only to check by the action of courts in 

 protecting the usufructuary rights in it, of others, 

 and the property rights of others to it or the stream, 

 lake or pond of which it is part. 



To be in public ownership, subjects it to appropri- 

 ation to private use, where such use does not inter- 

 fere with public interests in the stream, lake or pond 

 or with other private interests therein, or usufructu- 

 ary rights thereto. The water is regarded as that 

 class of public property which may be converted to 

 private possession without public or governmental 

 permission or authorization. All the people are not 

 supposed to have an interest in, much less an owner- 

 ship of it, as a separate thing from the stream. If a 

 stream, as such, is not injured to the public detriment 

 by the diversion of its waters, the public is not sup- 

 posed to be injured by such diversion. The peo- 

 ple, except as a body politic the public have no 

 property right, usufructuary right or other interest in 

 it. They are not supposed to be abridged in their 

 prospective or actual rights of property or of use, by 

 diversion of water from streams. It is only when a 

 person is a riparian proprietor that he has any indi- 

 vidual or common rights in a stream, lake or pond, 

 or the waters thereof. This is the Common law doc- 

 trine, pure and simple. 



Every owner of lands on a stream's bank has, 

 under the Common law. certain rights in the stream 

 and its waters. He is thereby constituted a guardian 

 thereof in his own interest, and he must assert and 

 maintain his rights in court, when need be, in oppo- 

 sition to encroachment by others, else, within a lim- 

 ited time, he is estopped. 



As this system grew in England there being prac- 

 tically no irrigation diversions from streams, and 

 lands being concentrated in comparatively few large 

 proprietorships there was no necessity for public 

 administration of streams, and, so, the Common law 

 does not contemplate such an institution. The 

 riparian proprietors, in their own interests, guarded 



the streams, each from the encroachments of the 

 other. The stream was valued by them for itself. 

 The water was an integral part of it. If taken out 

 for use, it must be put back, without pollution and 

 without diminution, before it came to lands of an- 

 other. The courts really administered the affairs of 

 streams, and riparian proprietors were the watchmen. 



In a country all in personal ownership as England 

 was, all streams and their waters thus had guardians.. 

 There were no public lands, no wide unoccupied 

 wastes without a personal owner, no streams without 

 a claimant, no water without a guardian ; and no 

 great demand for water separate from the streams. 

 The crown, the church, the municipalities, and the 

 nobles, practically owned the country. They were 

 the riparian proprietors; they, virtually, owned the 

 streams as individuals, and each guarded his rights 

 therein, when necessary, by appeal to the courts; ex- 

 cept in the case of the crown, whose order was suffi- 

 cient to prevent abridgment of its rights. 



Water-rights for purposes of diversion, when they 

 were needed, which was very seldom, were acquired 

 by appropriation as against the public and by nego- 

 tiation with and payment to riparian proprietors, or 

 by condemnation of such riparian rights in the public 

 interest, and payment therefor. 



There was no scarcity of water itself. It was only 

 that the stream was injured for riparian occupation, 

 that objection was made to diversion, ordinarily. 

 Navigable rivers were virtually tidal estuaries, and 

 diversion from the running parts of them above tidal 

 limits did not affect their navigability below. Hence, 

 the public took no interest in such matters except 

 when a municipality asserted its rights as a riparian 

 proprietor. 



Hence, again, there was no distinct administration 

 of streams, no public guardianship of waters in con- 

 nection with the Common law public rights in them. 

 Such, substantially, was and is the law of waters on 

 this point in England. And, notwithstanding the 

 fact that there has been but little diversion from 

 streams, as compared to that in irrigation countries, 

 England itself has been the theater of most extended 

 and ruinous water-right conflicts, and is a country of 

 water monopoly. The reason for this is found in the 

 fundamental principle of law which makes water 

 private property under some natural conditions, and 

 leaves it public property under others, subject to pri- 

 vate ownership or unregulated taking. The right of 

 all people in and to a part of it is not recognized in 

 the law which forms the basis of the system. If it 

 had been, then it would have been incumbent upon 

 government to protect that right. There would have 

 been administration of streams, and riparian selfish- 

 ness and appropriation greed could never have 

 grown up. 



These are the two fundamental principles which 

 have most affected the development of irrigation 

 systems in modern times: That of the Civil law, 

 which makes water the common property of all peo- 

 ple, and, as such, a subject for governmental protec- 

 tion from unlicensed taking by any person; and that 

 of the Common law, which makes water a public 

 property, and leaves it subject to be taken by any 

 person having access thereto, who is not stopped by 

 some other person having a claim to its remaining in 

 its natural bed. 



In most of our States where irrigation is now 

 thought to be necessary we have the Common law, 

 with all its shortcomings when applied in the de- 

 velopment of irrigation. 



