234 IRRIGATION INVESTIGATIONS IN CALIFORNIA. 



EVOLUTION OF WATER LAWS IN CALIFORNIA. 



As stated before, the history of irrigation in California began, from a legal stand- 

 point, with the coming of the gold seekers in 1848. Previous to that time the mis- 

 sion fathers had cultivated their vinej^ards and orchards, using aqueducts and small 

 systems of artificial irrigation modeled on the method of Mexico and Spain ; but very 

 little water had actually been used and no occasion for dispute or necessity for local 

 laws had arisen. 



But with the coming of the miners and the location of their mining claims water 

 for their working became an imperative necessity, and often the water acquired had 

 to be conveyed by means of ditches and flumes. The necessity for laws to regulate 

 these appropriations of water was evident. Each locality adopted its own simple 

 rules, based on common sense and justice, and, as before stated, those of the ditfer- 

 ent mining districts, however widely separated, were practically identical. The 

 lands being a part of the public domain of the United States, the first appropriator 

 was held to have, within certain well-defined limits, a better right than others to the 

 claim he had taken up, and this rule was also applied to the water necessary to the 

 working of the claim. The first appropriator of water to be conveyed to a locality 

 for mming or other beneficial purposes was recognized as having, to the extent of 

 actual use, the better right. The doctrine of the common law respecting the rights 

 of riparian owners was not considered applicable, or, at most, onl}^ in a very slight 

 degree, to the conditions of miners. 



In 1851 the State legislature of California enacted a law sanctioning the "mining 

 customs" when not in conflict with the constitution and laws of the State. This 

 enactment was based upon a new principle governing the rights to water in the 

 United States, the principle of priority of appropriation or of the first appropriator 

 being first in right. 



But in 1850 the legislature had adopted the common law of England when not in 

 conflict with the Constitution of the United States or the constitution of California. 

 Thus there were established in the State two distinct S3^stems or rules of law govern- 

 ing the use of watei', one having its foundation in the equal right of all riparian 

 owners to the flow of the stream, without material diminution in quantity or altera- 

 tion in quality, regardless of any priority, and the other having for its basis the law 

 of priority of appropriation and use, without any ownership of the soil being nec- 

 essary, and without any oVjligation on the part of the owners to turn the water thus 

 diverted back into the natui"al course of the stream. 



The law of riparian rights, brought over from England, a nonirrigating country, 

 and embodied in our common law, has been greatly modified in its application. The 

 right of the riparian owner to have the waters of the stream flow past his lands 

 "unpolluted and undiminished in volume" has been encroached upon by the necessity 

 of other riparian owners to use water for irrigation; and the question. Shall irrigation 

 be considered an artificial or a natural use of water? has been answered by the courts. 

 The courts hold that the circumstances of the case should decide the question. In a 

 country where irrigation is a necessity, as in California, irrigation is a natural and 

 reasonable use of water; and riparian owners are entitled to use the waters flowing 



