OBSTACLES TO DEVELOPMENT. 43 



recognized and applied in this Territory, it would still be a desert; for a man owning 10 acres of land 

 on a stream of water capable of irrigating 1,000 acres of land or more near its mouth could prevent the 

 settlement of all the land above him; for at common law the riparian proprietor is entitled to have 

 the water flow in quantity and quality past his land as it was wont to do when he acquired title 

 thereto, and this right is utterly irreconcilable with the use of water for irrigation. The legislature of 

 this Territory has always ignored this claim of riparian proprietors, and the practice and usages of the 

 inhabitants have never considered it applicable and have never regarded it. — Stowell r. Johnson, 26 

 Par. Rep., 290. 



In California no definite laws establishing' or abrogating the doctrine as 

 applied to irrigation have been passed, and, as a result of this and of the 

 further fact that the laws of the State are in conflict with the constitution, the 

 supreme court of the State was compelled to practically enter the field of 

 legislation when called upon to decide the case of Lux v. Haggin. (69 Cal., 

 255.) In this case Lux represented the riparian doctrine and Haggin the 

 right to use streams in irrigation. It so happened that this case arose in a 

 section of the State where crops can be gi'own without inigation, and so the 

 recognition of the doctrine did not necessarily mean, as has been contended 

 by the attorneys, that the settlers who were diverting water would have to 

 abandon their homes if deprived of it, as they woiild have had to do in Utah 

 and even in some sections of California. 



The fact that in a preceding case the same issues had been presented to 

 the court and the doctrine of riparian rights set aside, and that in this case 

 three out of seven judges believed it ought to be set aside, gives reason for 

 an interesting conjecture as to what the result miglit have been if this 

 historic case had involved orange lands where inngation is a necessity 

 instead of wheat lands where it has not been so regarded. 



This misgiving as to whether a strict construction of the law required a 

 decision so contrary to climatic necessities and which has proven so injurious 

 to development does not in any way reflect upon the court. Its duty was 

 to interpret the law as it existed regardless of consequences, and then to 

 enforce its policy with equal disregard of results. This, however, is not 

 what has happened. The decision was really a compromise. While it 

 refuses the right to appropriate or divert water to iirigate nouriparian 

 land, it allows it to be used on riparian land.^ The right to use streams 

 accorded riparian propiietors has been so liberally construed in subse- 

 quent decisions that it now resembles more nearly that claimed by appro- 

 priatoi's than the riparian doctrine as originally understood. The economic 

 import of the decision has not been what the counsel for appropriators 



' "The right of the riparian proprietors to a reasonable use of the stream for the purposes of irriga- 

 tion is recognizetl in many of the California cases, etc." (69 Cal., 409.) 



