OBSTACLES TO DEVELOPMENT. 45 



indicate this diffei'euce, but it is recognized by law writers. In a recent 

 discussion of this subject, Hon. John D. Works, ex justice of the supreme 

 court of Cahfornia, has clearly and cogently portrayed the existing situation. 

 He says (the italics being ours) ■} 



The majority opinion (in Lux r. Haggin) sustained the contention that the common law must 

 prevail, and that the court must not be swerved from its enforcement by the plea of differing conditions 

 and injurious consequences. But the court, while not overruling this case, has in numerous subse(]uent 

 crises departed from it, and the court in that and later cases has done preciseh' what it was then held 

 could not be done: allowed the necessity for some different rule of right, a.s between the riparian 

 owners themselves and between them and the appropriator, to prevail over the law as it was then 

 declared to be. 



But, strangely enough, while the main question in that case was whether the common-law right 

 of a riparian owner should be recognized as existing at all in this State or not, and the right was 

 upheld, manifestly, only because the majority of the court felt constrained to that conclusion by strict 

 rules of law, that and later cases, or some of them, have extended the right of a riparinn ovmerfar 

 beyond thai vested in him at common law, and has thus, in a measure, if not entirely subverted and destroyed 

 the common-law riparian right. — Pp. 11-12. 



» * * * * » » 



As the law of this State stands to-day, the common law of riparian rights is in force. But those 

 riglds are so entirely opposed to the best interests of the State that they are being but little regarded in the 

 actual distribution and use of water, and therefore the conclusion of the supreme court that they 

 must be respected as existing rights in this State has not been as harmful as was at first anticipated. 

 It is believe<l that one of the strongest rea-sons for this is that the owners of riparian rights have 

 found that in order to make their rights of any value, for purposes of irrigation, they must become 

 appropriators of the water. And the supreme court has practically nullified the common-law right 

 to water by recognizing and making part of it the right of appropriation for irrigation. The practical 

 effect of it really is to give the owner on the stream a preferred right to appropriate so much of its 

 waters as he may reasonably need for the irrigation of his riparian lands. — Harris r. Harrison, 93 

 Cal., 676. 



And while the court has enlarged the right of the riparian owner by allowing the diversion and 

 use of the waters of the stream for irrigation it has, on the other hand, limited his right by holding 

 that he can not complain of an appropriation of a part of the stream above him when the water diverted 

 would not be used by him. — Modoc L. and L. S. Co. r. Booth, 102 Cal., 1.51, 156. 



But his injury by an unlawful diversion can not be held to be inconsiderable, because it is inca- 

 pable of ascertainment or can not be measured in damages. — Heilbron v. Canal Co., 7.5 Cal., 426. 



This is, of course, an infringement upon the common-law riparian right of the landowner, which 

 entitles him to the flow of the entire stream undiminished in quantity. Under the common-law 

 doctrine, the question whether he could use the water in no way affected or limited his right. It was 

 simply a giving way by the supreme court to the necessity, growing out of the prevailing conditions 

 in this State, to curtail the common-law right of the riparian owner in order to conserve the water of 

 the State and allow its more extended use. 



But the very same thing that would justify the court in enacting and enforcing this limitation of 

 the common-law right would have justified it equally in holding, in the first instance, that the 

 common-law right was not applicable to the conditions prevailing in this State, and that the common 

 law respecting it was never in force here. 



The right of a riparian owner, as thus expanded and limited to suit the exigencies of the 

 situation by the supreme court, is, according to the decided cases in this State, the subject of sale and 

 transfer by him, and may be lost by grant, condemnation, or prescription. — Gould v. Stafford, 91 Cal., 

 146. Alta Land, etc., Co. v. Hancock, 8.5 Cal., 219. Sprague v. Heard, 90 Cal., 221. 



But this, again, is wholly inconsistent with the common-law right which is a part of the land to 

 which it ia annexed. Of course he could grant or convey his right with the land of which it is a part, 



'Works on Irrigation, pp. 11-25. 



