IRRIGATION PRINCIPLES. 



223 



AS APPLIED IN CALIFORNIA. 



Of this group of States, California led off by its 

 adoption in 1850. It is safe to say that the thought 

 of irrigation never entered the head of any one 

 member of its first constitutional convention and 

 initial session of legislature, as connected with this 

 water law subject. Probably not any one of the 

 members would have known the difference in the 

 principles involved, or appreciated the inevitable 

 difference of outcome in their working, even if atten- 

 tion had been drawn to the subject. 



Moreover, it was soon found that the Common law 

 right of appropriation fitted the case presented in 

 early California times exactly. The country was a 

 wild, unoccupied one. There were no embarrassing 

 riparian claimants. Waters were needed for mining. 

 Local customs and laws based on the appropriation 

 principle, immediately sprung into existence on 

 every placer stream, and these, of course, stood the 

 tests of the higher courts of the State, which were 

 working under the Common law. 



Before riparian interests had developed in a way 

 likely to be interfered with by diversion of waters, all 

 mining water rights had been adjudicated in the 

 courts, adjusted among themselves, and become fixed 

 by limitations. Then came, by custom and by statute, 

 the extension of the privilege of appropriation to the 

 acquirement of rights to use water in irrigation. It 

 was very soon applied on streams where great and 

 valuable riparian interests had grown up; and then 

 followed the conflict. 



It was a great conflict, and cost the principal con- 

 testants and the people of California many millions of 

 dollars. It shook the body politic for twelve years. 

 For eight years of that time it controlled legislation, 

 and for an equal period it largely occupied and even 

 sought to overawe the courts. 



The appropriators, under the advice of their attor- 

 neys, contended that although the Common law had 

 been adopted as a whole, the custom and right of 

 water appropriation had been acquired with the 

 California territory from Mexico which had Civil law, 

 and had been continuously followed in the State, and 

 recognized and made part of the law of the State by 

 the decisions of the courts. They claimed that it 

 was a new grafting on the Common law, and that it 

 overthrew or put aside riparian rights. 



The riparian proprietors claimed that the Common 

 law, unmodified, was the one and only law on this 

 point in the State, that it admitted of appropriation, 

 but not as against the rights of a riparian proprietor, 

 except adverse right be established by use and the 

 running of time, under the statute of limitations. 



The appropriators fairly shouted in one breath an 

 appeal to have the old Spanish water law upheld and 

 the doctrine of appropriation established. 



The riparians with equal vehemence declared the 

 appropriators' appropriation doctrine a curse, and the 

 Civil law system inapplicable under our social con- 

 ditions. 



A more ridiculous spectacle could hardly be con- 

 jured up. Here were the best lawyers in the land 

 inextricably mixed in their ideas on both sides of the 

 question. 



Had the demands of the appropriators prevailed 

 that the Civil law doctrine on this point be recognized 

 as having been derived from Mexico their cher- 

 ished right of appropriation must have been swept 

 away. The Civil law, even in Mexico, never recog- 

 nized the right of appropriation of waters, as it be- 



came established in California under the Common 

 law during the mining period. 



It permitted the unlicensed utilization of waters 

 from streams, following upon " denouncement," in 

 remote places where the administrative arm did not 

 reach. But such privileges never became fixed or 

 established as a property right, and always remained 

 subject to administrative modification, abridgment 

 and regulation. 



" Give us the good Spanish law of waters,' 1 de- 

 manded the appropriators. "It is adapted to an ir- 

 rigation region. This is an irrigation region." Let 

 us examine that Spanish law of waters a moment, and 

 see what they would have gotten. 



It expressly says: "An administrative authorization 

 "is necessary for the employment of public waters 

 " for undertakings on public or private account." It 

 nowhere says that any waters of a stream, lake or 

 pond maybe taken and utilized without such express 

 authorization, except for drinking, washing, bathing, 

 watering animals, and some other similar uses, known 

 as " common utilizations,' 1 and for these purposes the 

 mode of taking is restricted to dipping in a bucket, 

 tub, barrel or the like. 



The Spanish law of waters is the most complete, 

 concise and express code, as applied to irrigation, in 

 existence. The subjects of ownership and control of 

 waters under all circumstances, of channels and 

 banks, that of servitudes as relating to waters, chan- 

 nels and banks, of water rights and permits, and po- 

 lice regulation of waters and diversions thereof, 

 are fully and systematically covered, but the word 

 appropriation, apropiar, occurs but twice in the 

 whole long document. Of these two times once is to 

 say that a person may appropriate waters he brings 

 to the surface by means of artesian wells on his own 

 lands or those he has a well-boring concession on ; 

 and once is to say he shall not appropriate waters he 

 may drain out or his neighbor's lands by digging a 

 ditch or trench along or near the boundary line. 



"The wording of the law itself appears to have 

 ' been most carefully made to convey an exact 

 'meaning on this point. There are four verbs 

 ' employed in speaking of the taking of waters under 

 ' the provisions of the law, and of the rights acquired 

 ' thereby, as follows: aprovechar, to apply to a use- 

 ' ful purpose, to profit by, to usefully employ; 

 ' utilizar, to utilize; usar % to use, and apropiar, to 

 ' appropriate. Usar or its derivations appears fre- 

 'quently; utilizar, quite frequently; and aprovechar 

 'is employed the greater number of times; while 

 ' apropiar finds place but twice in the entire law." 

 [Irrigation Development, p. 454.] 



The Spanish water law, then, is most particular in 

 saying that the only waters which a person may take 

 for irrigation, without express leave may appropriate 

 are those which he causes to rise to the surface by 

 artesian borings on land he owns or controls, And 

 it is equally particular in saying that waters of 

 streams, lakes and ponds may be usefully employed, 

 utilized, or used, only after an administrative permit or 

 concession for diversion has been obtained, but not 

 before. Moreover, this, substantially has ever been, 

 in modern times, the French and Italian law of waters 

 on this point of irrigation diversion rights. And all 

 three of these systems, either in the laws themselves 

 or in administrative regulations thereunder, specify 

 in detail the modes of procedure necessary to obtain 

 a water-right concession or permit for diversion of 

 water from streams. 



