284 . HISTORY OF LAW 



states. There was uniform agreement that the shortest cut to pro- 

 viding one was to adopt the common law of England. This was 

 done in all the states, with the limitations that it was not to apply 

 when inconsistent with local limitations or conditions. This excep- 

 tion gave the judges a discretion in applying common law that has 

 tended to establish a practice of departing from a rigid rule or pre- 

 cedent, and instead to apply a standard suggested by the needs 

 of the people or local conditions. A second influence came from the 

 different social position of lawyers in America. In England the bar 

 was allied with the Crown. In America the sovereign power after 

 the Revolution resided in the people. This made the English lawyers 

 more conservative. In America, while they were an aristocracy, 

 they were in touch with the people and responsive to popular ideas. 

 A third factor is that the judges in many states are elected by the 

 people and inevitably are affected by the interests of their electors 

 more than by an abstract system of law. A fourth influence is the 

 general indifference of Americans as to authority from the past. And 

 a fifth is the American characteristic to ask for results that are 

 practical and tangible rather than those that support a theory. 



There is a considerable but not yet classified body of decisions 

 that illustrates this tendency of the courts to adapt the law to popular 

 need and local conditions. One case only will be chosen to illustrate 

 this. It is the case of Katz v. Walkinshaw (141 Calif. 116). Before 

 speaking of this case, it is necessary to refer to the case of Lux v. 

 Haggen (69 Calif. 255). The question in the latter case was whether 

 an upper appropriator of water, which he applied to general and 

 public use, had a better right to the water of the stream than a lower 

 and earlier riparian proprietor. It was contended that the public 

 welfare demanded that the later right should prevail over the earlier. 

 There was a California statute adopting the common law. The local 

 arid conditions, the necessity for irrigation, were urged as reasons 

 for modifying the rule of the common law restricting the taking of 

 water from a stream to a reasonable use measured by the needs of 

 other riparian proprietors. But to this proposition Judge McKinstry 

 replied, "While the argument ab inconvenienti should have its 

 proper weight in ascertaining what the law is, there is no 'public 

 policy' which can empower the courts to disregard law; or because 

 of an asserted benefit to many persons (in itself doubtful) to over- 

 throw settled law. This court has no power to legislate, especially 

 not to legislate in such manner as to deprive citizens of their vested 

 rights." (69 Calif. 299.) "We know of no decision which intimates 

 that a difference in climatic or geographical conditions may operate 

 to transfer a right of property from those in whom a right of property 

 is vested by the common law." (69 Calif. 306.) The later case of 

 Katz v. Walkinshaw raised a question as to rights in percolating 



