OBSTACLES TO DEVELOPMENT. 47 



streams are being absorbed by such diversions, there is need of some stand- 

 ard by which the location and area of riparian lands and of the volume of 

 riparian diversions can be defined. Are all irrigable lands to be regarded as 

 riparian lands; if so, where does the doctrine differ from the laws govern- 

 ing appropriations of water? Is the owner of a section of land having a few 

 hundred feet frontage on a stream entitled to irrigate the entire section as 

 ripai'ian lands; and if he disposes of a quarter section which does not touch 

 the stream to a nonriparian landowner does the land sold cease to be 

 riparian land and lose its right to water for irrigation ? We have not been 

 able to find any decision which specifically answers these inquiries. 



A riparian proprietor in California has been held to possess a right in 

 the stream which he can sell, rent, or lease.^ In the absence of a definite 

 determination of the volume of water to which each riparian proprietor is 

 entitled the volume sold depends largely on the demand for water and the 

 price which Will be paid for it. In some cases rights are asserted to water 

 enough to in-igate all the lands owned by the riparian proprietor and, in 

 addition, to all the water that he can dispose of to his nonriparian neighbors. 



These investigations have shown that riparian proprietors have not only 

 claimed a right to take water for nonriparian lauds, but also to exercise this 

 right in a wholly arbitrary fashion. The report of Mr. Wilson (p. 174) serves 

 to show how water is furnished or withheld at the will or caprice of riparian 

 pi'oprietors. 



In California riparian rights may be disposed of by sale. This is dif- 

 ferent from the disposal of water before referred to. As Judge Works has 

 stated, the purchaser of a right does not hold it as a riparian proprietor. 

 The sale entirely changes its character. So far as we are able to determine, 

 the purchaser of such a right would hold it as a purely speculative prop- 

 erty. By extending his purchases he could acquire the absolute control of 

 the entire waters of a river. And it is the assertion of a right of this char- 

 acter that forms the basis of the principal controversy discussed in the report 

 of Mr. Wilson. 



Wherever a riparian proprietor objects to the use of water above him, 

 only litigation can determine whether or not his objection is justified. A 

 speculative purchaser can, by the purchase of the rights of the riparian 

 proprietors, acquire such control of a stream as to be a menace to actual, 

 users, even if he does not levy tribute upon them. The justices who con- 

 sidered this matter in Lux v. Haggin were confronted by the fact that 



'Grouldr. Stafford (91 Cal., 146); Spraguet'. Heard (90 Cal., 221); Swift v. Groodrich ("OCal., 103). 



