FEATURES AND WATER RIGHTS OF YUBA RIVER. 119 



divert, and use water. Possible conflicts in the application of this right were guarded 

 b\- clauses providing that priority of claim and diligent prosecution of work were 

 essential. Abuses were guarded against by clauses which required a claimant to make 

 good his claim by actual use, and limiting his claim to the volume of water actually 

 used. Abandonment was recognized as a forfeiture. Thus by nonuser extravagant 

 claims to water were held in check in whole or in part. 



Under these principles there were laid out and constructed extensive water stor- 

 ing and diverting works. The necessity for large volumes of water at points remote 

 from streams was so great that water from one drainage basin was diverted into or 

 carried across an adjacent basin. The claim to water for mining purposes gi'ew into 

 a claim to water alone, and individuals and corporations undertook to appropriate, 

 store, and supply water, not onl}- for their own properties, but for others. The 

 riparian right was thus practically set aside, and the prime necessity for water for 

 mining gave full sanction to this action. 



This harmonized with the law and practice of water appropriation which had 

 previoush' existed under Spanish and Alexican rule, and which had been handed down 

 from Roman law through these channels. But it was i-adically at variance with the 

 riparian-right principles which existed in the common law of England, and which had 

 been embodied in the codes of the several States. 



These common-law principles came to this country as a "precious heritage," and 

 found proper and easy lodgment in the codes of the Eastern States, where climatic 

 conditions are about the same as those in England, and where the mean annual i"ain- 

 fall is from S^'to 50 inches, and drainage more essential in agricultural operations 

 than irrigation. But in the arid and semiarid States and Territories the adoption of 

 these principles in so far as they affect water supply has been done without due con- 

 sidei-ation, and leaves the law with no rational and philosophic basis and opposed to 

 the necessities of the country. These principles are adopted in California as follows: 



An act adopting the common law, passed April 17, 1850: 



The common law of England, so far as it is not repugnant to or inconsistent with the Constitution 

 of the United States or the constitution or laws of the State of California, shall be the rule of decision 

 in all the courts of this State. (Stats. Cal., 1850, p. 219.) 



The statutes of 1899 contain the following: 



Sec. 4468. The common law of England, so far as it is not repugnant to or inconsistent with the 

 Constitution of the United States, or the constitution or laws of this State, is the rule of decision in all 

 the courts of this State. 



From the above beginnings of the right to appropriate water the laws of Cali- 

 fornia were gradually perfected, and they now prescribe the mode by which the 

 waters flowing in a river or stream, or down a canyon or ravine, maj' be acquired by 

 appropriation. 



These laws prescribe that the appropriation must be for some useful or beneficial 

 purpose, the rights to which are voided by nonuser. (Civil Code of California, sec- 

 tions 801, sub. 5, and 1-110, 1115, 1116, 1117, 1118, 1119, and 1120.) 



These provisions of the law are reenforced by others which favor the appropria- 

 tors and users with the right to use natural channels as conduits and with the right 

 to change the place of diversion, provided no injury be done thereby. 



Rights and properties acquired under these laws are protected by penal laws. 

 (See sections 199 and 592 of the Penal Code of California.) 



