DECISIONS UPON THE SUBJECT OF WATER 



RIGHTS. 



BY CLESSON S. KINNEY, OF THE SALT LAKE CITY BAR. 



IT is safe to say that California owes the 

 greater portion of the prominence which 

 that State occupies to-day to the results of 

 irrigation. The localities where irrigation 

 has been practiced the longest and the 

 most extensively have gained the widest 

 reputation outside of the State. Almost 

 every step taken in advance in California's 

 prosperity, since the subsidence of the 

 first great rush for gold, has been antici- 

 pated by new and more extensive irrigation 

 developments. It is no exaggeration to say 

 that were it not for irrigation the fame of 

 California would be confined to the mining 

 industry, and she would not have more 

 than one- half of her present population. 

 Without irrigation the major portion of 

 the State, which is to-day thickly popula- 

 ted and in the highest degree productive, 

 would still be in its original barren condi- 

 tion. 



The methods of practicing the art of 

 irrigation are many and diverse. We can 

 also say the same of the laws regulating 

 and controlling its practice. Its laws per- 

 mit the acquisition and retention of water 

 rights by means of all the known systems. 

 One can acquire title to water rights by 

 the means of prior appropriation, whereby 

 he diverts the water from the natural 

 channel and applies it to irrigating the soil 

 or to some other beneficial purpose. The 

 riparian proprietor is protected in his rights 

 in and to the waters of the stream or the 

 lake flowing over or adjoining his land, 

 and greater license is allowed him than 

 was permitted under a strict construction 

 of the common law rules, in his being per- 

 mitted to divert from the stream a reason- 

 able amount of water for the purpose of 

 irrigation. Rights acquired under the 

 civil Spanish and Mexican laws, before 

 California was transferred to the United 

 States, are protected to the fullest extent. 

 Also, at different times, statutory enact- 

 ments have been passed by the State Leg- 

 islature regulating and controlling the 

 uses of water. And last, by the statutory 

 enactments of 1887. and the subsequent 

 amendments, the "District System," fam- 

 iliarly known as the " Wright Law," was 

 created, which is without doubt the most 



famous irrigation law in the United States, 

 although it has been held by some courts 

 to be unconstitutional. This view of the 

 law seems to the writer to be the wrong 

 one. But how the Supreme Court of the 

 United States will decide the case which it 

 has before it remains to be seen. But it is 

 unfortunate for the people of California 

 that the case could not have been decided 

 this spring, instead of being kept under 

 advisement over the long summer term. 

 However, it may result in the case being 

 decided right. It is a great subject. There 

 are some of the old principles of law that 

 may have to be modified. But there can 

 be no question but that the law, in a great 

 degree, meets the needs and necessities of 

 the arid West. 



BIGHTS OF RIPARIAN PROPRIETORS. 



It has always seemed strange to the 

 writer that the legislature and courts of 

 California should try to reconcile and re- 

 tain principles of law governing waters so 

 adverse to each other. Take, for instance, 

 the laws of appropriation and diversion as 

 against that of riparian rights. In the 

 first, in order to hold the right, the water 

 must be diverted from the natural channel 

 of the stream and actually applied to some 

 beneficial use. In the latter the stream 

 must be permitted to flow, as it was accus- 

 tomed to flow, without any substantial 

 deterioration in quality or diminution in 

 quantity. 



One of the methods of reconciling these 

 adverse propositions is eeen in the caee of 

 Wiggins vs. Muscupiabe Land and Water 

 Company, decided on the 5th of June, 

 1896, and reported in 45 Pac. Eep., 160, 

 where it was held: That in determining 

 the rights of riparian proprietors to the 

 waters of a stream, for irrigation, it is 

 within the power of a court of equity to 

 apportion the flow by periods of time, 

 rather than by division of the quantity, 

 when such apportionment may be extended 

 to the use of the water for domestic pur- 

 poses, when necessary. 



'Mr. Justice Harrison, in rendering the 

 opinion of the court in the above case, 

 said: " The power of a court of equity to 



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