48 IRRIGATION INVESTIGATIONS IN CALIFORNIA. 



apj^ropriators were claiming all the water in the State, not because they 

 needed it or intended to use it, but because they proposed to rent or sell it 

 to users. That they regarded the abuse of appropriations as serious an evil 

 as the restriction of the riparian doctrine seems clear from the following 

 extract from the decision: 



If the law is settled, we can not override the established rule to secure some conjectural advantage 

 to a greater number. If, however, we were permitted to do this, the inquiry would still remain 

 whether the recognition of a doctrine of appropriation (such as is contended for by respondent) would 

 secure the greatest good to the greatest number. Observe, if that be the true rule, the appropriator 

 does not necessarily act as the agent of the State, employing the power of eminent domain for the 

 benefit of the public, but by his appropriation makes the running water his own, subject only to the 

 trust that he shall employ it for some useful purpose. It would hardly be contended that while he 

 continues to use it for a useful purpose a statute would be valid which should take it frorn him without 

 indemnification under a pretext of regulating the "common use" of the water more profitably or of 

 providing for its distribution so as to benefit a greater number of persons. He would have a vested 

 right to the use of the water, although the riparian proprietors would have none. If, indeed, one who 

 has appropriated the water of a stream since the adoption of the present constitution has appropriated 

 it "for sale, rental, or distribution" to others, the rates he may charge consumers must be fixed by 

 local authority. (Const., art. 14, sec. 1.) But if he shall consume the water himself, one may thus, 

 for his own benefit, arbitrarily deprive many of an advantage which, whether technically private 

 property or not, is of great value, and thus secure to himself that which by every definition is a species 

 of private property in him. Riparian lands are irrigated naturally by the waters percolating through 

 the soil and dissolving its fertilizing properties. This is sufficiently apparent from the consequences 

 which ordinarily follow from a continual cessation of the flow of a stream. If, in accordance with the 

 law, such lands may be deprived of the natural irrigation without compensation to the owners, we 

 must so hold; but we fail to discover the principles of "public policy," which are of themselves of 

 paramount authority, and demand that the law shall be so declared. In our opinion it does not require 

 a prophetic vision to anticipate that the adoption of the rule, so called, of "appropriation" would 

 result in time in a monopoly of all the waters of the State by comparatively few individuals, or combi- 

 nations of individuals controlling aggregated capital, who could either apply the water to purposes 

 useful to themselves, or sell it to those from whom they had taken it away, as well as to others. 

 Whether the fact that the power of fixing rates would be in the supervisors, etc., would be a sufficient 

 guaranty against overcharges would remain to be tested by experience. Whatever the rule laid down, 

 a monopoly or concentration of the waters in a few hands may occur in the future. But surely it is 

 not requiring too much to demand that the owners of lands shall be compensated for the natural 

 advantages of which they are to be deprived. (69 Cal., 308-310.) 



The fear above expressed is believed to be well founded. The estab- 

 lishment of riparian rights does not, however, provide a remedy. To do 

 that water should be attached to all the lands on which used, instead of 

 simply those lands past which it flows. The germ of natural justice is in 

 the riparian doctrine, but in arid lauds it needs to be expanded to permit of 

 the largest use of the stream. 



Giving to the lands abutting tne river control of its waters when the 

 necessity for irrigation extends to all the lands in its valley involves a 

 complete disregard of climatic necessities, and is not warranted by any 

 element of natural justice. The water which fills the stream does not come 

 from lands owned by riparian proprietors. Its storehouse is the distant 



