272 IRRIGATION INVESTIGATIONS IN CALIFORNIA. 



Under these circumstances the recorded copy of the posted notice has but little 

 value, if an_y, bej'ond fixing the date at which the original claimant intended to take 

 water and put the same to a beneficial use. To be of real service, even in this respect, 

 the record should not be made at the county seat of the county in which posted, but 

 in some place where all records relating to the same stream arc to be found. 



Kings River, after all, is a tributary of San Joaquin River — somewhat uncertain 

 of flow in the channels which it sends through Fresno Swamp, and particularly 

 unreliable in the matter of producing an overflow from Tulare Lake — but still at 

 times an important feeder. The question may arise, therefore, as to the extent that 

 riparian ownership on the San Joaqidn River may affect the use of water from Kings 

 River. It may seem a remote question to raise, but the principle involved is the 

 same as on a stream known throughout its course by only one name, and is alluded 

 to for the purpose of illustrating how imperfectly the rights of water takers are 

 protected. The bank-land owner, hundreds of miles below, may, perhaps, be pre- 

 sumed to periodicallj' search the records of half a dozen counties to see whether any 

 one intends to take the water he is entitled to have flow past his property. Does he 

 do so? The appropriator hundreds of miles above him, on the other hand, is safe 

 in his taking onlj* after the downstream bank-land owners have all slept on their 

 rights five years or more, and even then only if there be not some minor heir to 

 interfere at a still later period. 



The notice of a claim as recorded confers no right to water or to its use. To 

 establish this right it is necessary to furnish, when required by adverse claimants, 

 proof of the taking, of compliance with the law in this respect, and of the amount 

 put to beneficial use. 



There seems to be no way — unless bj^ friendlj' litigation, and this has its dangers — 

 in which the appropriator can have his rights judicially defined. 



WATER LAWS AND WATER RIGHTS. 



It is not intended to present a full review of the laws governing the right to use 

 water for irrigation in this State, but a brief reference thereto seems essential for a 

 full understanding of the purpose of the notice of a claim to water as well as of the 

 rights of an appropriator and of an irrigator. 



Under the act of the legislature passed in 1850, which declares "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 of the State of California, shall be the rule 

 of decision in all the courts of the State," the common-law doctrine of riparian rights 

 has been recognized and enforced hy the courts of the State to such a degree as to 

 often serioush' hamper the diversion of water from a stream, even when intended 

 to be used for soiue purpose more beneficial than any it could serve while flowing in 

 its natural channel to a place of outfall. 



The vested rights under this doctrine were recognized when the civil code was 

 adopted in 1872. but they were not defined. In fact, great uncertainty seems j^et to 

 exist as to what rights to the use of water the riparian doctrine confers. As some- 

 times interpreted, giving to the bank-land owner the right to see the water of a 

 stream flow "undiminished in quantity and unimpaired in purity," the doctrine has 



