120 IRRIGATION INVESTIGATIONS IN CALIFORNIA. 



On July 26, 1866. or fifteen years after State recognition of thi.s new right, it 

 was embodied in the United States Statutes as section 2339 of the Revised Statutes of 

 the United States, as follows: 



Whenever, by priority or possession, rights to the use of water for mining, agricultural, manufactur- 

 iiig, or other purposes have vested and accrued, and the same are recognized and acknowledged by the 

 local customs, laws, and the decisions of the courts, the possessors and owners of such vested rights 

 shall be maintained and protected in the same, and the right of way for the construction of ditches 

 and canals for the purposes herein si)ecified is acknowledged and confirmed; and whenever any person 

 in the construction of any ditch or canal injures or damages the possession of any settler on the public 

 domain, the party committing such injury shall be liable to the party injured for such injury or 

 damage. 



Sec. 2340. All patents granted or preemptions or homesteads allowed shall be subject to any 

 vested and accrued water rights or rights to ditches and reservoirs used in connection with such water 

 rights as may have been acquired under or recognized by the preceding section. 



The common-law principles of riparian rights thus came into conflict with the 

 practice and law existing previous to the acquisition of the country; with the 

 customs, usages, and regulations established bj- the miners upon the sound and 

 philosophic basis of necessity^ and with the incorporation of these into State laws 

 and into the Revised Statutes of the United States. 



The question of riparian rights came before the supreme court of California, in 

 Lux v. Haggin (69 Cal., 255), and the following is the interpretation hy a majority 

 of the court: 



By the common law as administered in this State, the right of the riparian proprietor to the flow 

 of the stream ' is inseparably annexed to the soil, and passes with it not as an easement or appurtenance 

 but as part and parcel of it. Use does not create the right and disuse can not destroy or suspend it. 

 The right in each extends to the natural and usual flow of all water unless when the quantity has been 

 diminished as a consequence of the reasonable application by other riparian owners for domestic 

 purposes, for watering stock, and for irrigation; what is such reasonable use is a question of fact and 

 depends upon the circumstances appearing in each particular case. 



The citizens and industrial enterprises of this State are thus in the anomalous 

 position of having to operate under contradictory laws. On one side the common- 

 law principles of riparian rights have been ingrafted into the code without defining 

 whether these principles should apply to the low-water discharge of streams, to flood 

 discharge, or to some intermediate stage. On the other hand, the antagonistic prin- 

 ciple of appropriation of water has been introduced, and is the basis of extensive 

 industries, and which permits the citizen to lay claim to anj^ amount of water he 

 ma J' deem fit, limiting his legal rights to the capacitj' of the worits he may construct. 



As a result, upon nearly every stream in the State has already sprung up or will 

 spring up a vexatious series of lawsuits. The questions involved must be settled 

 upon the basis of facts and testimony of each particular case, no one type of princi- 

 ples being applicable to all cases. The matter can not, therefore, be settled by 

 legislative enactment, although judicious laws will tend toward sj'stem and wise 

 supervision will adjust some of the impending legal troubles and prevent future 

 conflicts. But most of the discrepancies and disagreements must, in the language of 

 the supreme court of the State, be settled "upon the circumstances appearing in each 



' It would be much better for the State if the court, instead of the words "flow of the stream," 

 could have said, "the use of the water is inseparably annexed to the soil." 



