CHARACTERISTICS OF THE COMMON LAW 285 



water and seems to have been decided upon a different principle, 

 and one which illustrates the proposition I have stated. The ques- 

 tion was whether an owner of land could pump percolating water 

 from his land and sell it for a general use on remote land, if thereby 

 he deprived the adjoining landowner of percolating water in his 

 land needed for use on his land. By the common law, each party had 

 an equal right to percolating water without restrictions from the 

 corresponding right of the other. But the court held that local 

 conditions required a departure from the common law, and on the 

 principle of utility of a fair use of the water, so as to secure the 

 greatest benefit to the greatest number decided that the defendant 

 could not sell the water, if thereby he exercised an unreasonable use 

 measured by the needs of the adjoining plaintiff. It would seem 

 that the rule of property that probably existed in California as to 

 percolating water was departed from in this case, and in its place 

 one laid down based upon public utility. 



In this case, the court adopts the view that the law is a practical 

 science to be applied so as to conserve the interests of the people 

 to whom existence is the main problem of life, and not that it is 

 a philosophical theory to be applied according to the wishes of the 

 expert and to conserve an ideal and immutable professional standard. 



This theory of utility was advanced by the late Austin Abbott in 

 a paper read before the section of legal education of the American 

 Bar Association in 1893, in which he spoke as follows: "Existing 

 American jurisprudence looks to the actual situation of affairs. All 

 the phases of jurisprudence treated in books are tributary to the 

 wisdom and caution necessary in working out the development 

 now slowly going on, whether we recognize it or not [of] the juris- 

 prudence of utility, a jurisprudence which recognizes the unspeakable 

 value of all the traditions of the past, and respecting the limit of 

 statutory command, seeks also for the premises to be found in the 

 welfare of the community, and reasons from them, too, in ascertain- 

 ing what premises are suitable to be received as governing the ad- 

 ministration of law among our people. It would be easy to show that 

 this change in the conception of law is necessitated by our condition, 

 and that its future advance is inevitable." (Vol. 16, Rep. Am. Bar 

 Ass'n, p. 374.) 



It remains to contrast the legislative and judicial functions in 

 America at the present time. 1 



The legislative functions are discharged by representatives. They 

 make general laws for future public needs. To insure this, the repre- 

 sentation is broad; all classes are concerned and should have a voice. 

 There is no test of fitness excepting age and citizenship; and broad 



1 On the distinction between the legislative and judicial functions, see the 

 admirable paper by Reuben C. Benton, 8 Am. Bar Ass'n Rep. 261 (1885). 



