44 IRRIGATION INVESTIGATIONS IN CALIFORNIA. 



or the tliree dissenting judges believed it would be, as is shown by the 

 following extracts: 



The interests involved are of such magnitude, not only as between the parties themselves, but 

 also as to thousands of others, and the result reached so disastrous to the defendants, so destructive 

 to the vast and beneficial improvements made by them in good faith and in the belief that the same 

 law as to those matters applied both to the State and Government lands in California, so disastrous to 

 the people of a large jtart of California, and so destructive of all those great interests which have 

 grown up under the irrigation system based upon the doctrine of appropriation to beneficial uses, 

 that we firmly believe your honors will wish, even if in the end you feel compelled to adhere to the 

 views already expressed, to do so only after you have permitte<l argument to te exhausted upon the 

 subject and have received all the light which the profession can give. No matter how onerous and 

 pressing the duties which devolve upon your honors, there is, we submit, before you no question or 

 business which can compare in public interest to the inquiry whether the decree shall stand which 

 condemns to absolute barrenness the thousands of acres of land reclaimed from the desert by the vast 

 expenditures of the defendants here and now a garden of productiveness and Ijeauty, in obedience to 

 the law of another country, baaed upon its customs, and arising under conditions the most diverse 

 from ours; whether, in obedience to tliat law, a large part of this State, after a progress almost unparal- 

 leled and improvements made at incalculable cost of labor and treasure, is to be condemned to return 

 to sterility and unproductiveness; whether, in obedience to that law, the wheel of progress is to be 

 turned back and the present prosperity of thousands changed into ruin and poverty that a few men 

 who happen to own land on the banks below may enjoy the pleasure of seeing the stream flow as it was 

 accustomed to flow. Your honors will not, we are sure, forget that this decree, it it is to stand, not 

 only overthrows the progress of the past, but puts a perpetual bar upon future progress and develop- 

 ment. For if the purchase of the smallest subdivision of land on a stream below gives riparian 

 rights, overthrows the settled policy of the State, and changes its laws, no man will venture to expend 

 a dollar in turning water, which is the lifeblood of California, upon her comparatively waterless 

 land. — Extract from argument in favor of rehearing by John Garber, of Garber, Thornton & Bishop. 



The doctrine that the water of a stream must continue to flow in its natural course undiminished 

 in quantity, has been so far modified in States with the climatic conditions of Massachusetts and 

 Illinois as to permit the diversion of water for the purposes of irrigation where the quantity of the 

 stream is necessarily diminished by at least the quantity absorbed in the irrigation of the land upon 

 which it is put Especially should this be so in California, where in a great part of the State water is 

 its very lifeblood. Every practical man must know that, with the dry atmosphere and porous soils 

 of those sections requiring irrigation, but little, if any of the water diverted and used in irrigation is or 

 can be returned to the stream from which it is taken. To establish, therefore, as the law of this State, 

 that the water of a water course nmst flow on in its natural channel undiminished in quantity would 

 in effect be to convert the fertile fields, gardens, orchards, and vineyards in many and great sections of 

 the State into waste and desert places. Such a rule is inapplicable to the conditions of things existing 

 here. The common law is supposed and has been said to be the perfection of human reason, but it 

 would be the very reverse of this to hold that the waters of the streams of California nmst continue to 

 flow in their natural channels until they sink into the sand or wa.ste themselves in the sea, while 

 orchards, vineyards, and growing crops of immense if not incalculable value perish from thirst. — 

 Extract from dissenting opinion of Justice Erskine M. Ross. 



If the decision of the California supreme court had meant what the 

 three dissenting justices thought it meant, it would have practically ended 

 the use of water in irrigation so far as California is concerned. That this 

 result did not follow indicates that the riparian doctrine of California, as 

 established in Lux v. Haggin, is something entirely different from the 

 common-law riparian doctrine as understood elsewhere. Not only do the 

 actual conditions of irrigation and the practices of irrigators in California 



