CHAPTER VII. RIPARIAN RIGHTS IN THE PRIVATE STREAMS OF CALIFORNIA AND NEVADA. I. NATURE AND EXTENT OF THESE RIGHTS. 108. Ambiguity of California statutes on water-rights. 109. Review of the authorities. 110. Common-law doctrine of riparian rights obtains in California. 111. Construction of section 1422. 112. Riparian rights excepted. 113. Interpretation of section 1422-Lux v. Haggin. 115. Riparian rights in Kern district. 116. Common law of England. 117. Who are riparian owners. 118. Prescriptive water-rights. II. USES TO WHICH THE WATER MAY BE PUT. § 119. General statement of riparian rights-Van Sickle v. Haines. 120. Modifications on doctrine of Van Sickle v. Haines. 121. Legitimate riparian uses. What is the present condition of the law of California concerning the rights of private owners on the banks of natural streams to use the water of such streams? We have already seen that the Civil Code furnishes what purports to be a system of rules determining and regulating the rights of water in all streams, public and private; but that the effect and operation of these rules are rendered at least doubtful, and perhaps nugatory, in their application to streams running through or by private lands, by the final provision, section 1422: "The rights of riparian proprietors are not affected by the provisions of this title." What are the practical consequences, with respect to the whole legislation of the Code, of this restrictive clause? It has been said, by way of answer, that this clause is not restrictive, and that it can produce no practical consequence upon the legislation as a whole, because (1) under the law of California, independently of the Code, private "riparian proprietors" have no rights as such to the waters of the adjoining streams; or (2) the "rights of riparian proprietors" intended to be saved and protected are simply those which are not inconsistent with the preceding provisions of the title, and which are not, therefore, taken away by it; those rights, in short, which still remain after and notwithstanding the previous and operative sections of the statutes. Before entering upon any discussion of this most important question, it will be expedient to collect the various judicial authorities bearing upon it, which will aid in its examination. There seems to be a prevalent opinion that the common-law doctrines concerning "riparian rights" of "riparian proprietors" upon natural streams have no existence whatever in the law of California; that the rights of all private owners of lands bordering upon any stream are wholly subordinate and subject to the right of one who has made a prior appropriation and diversion of its water to any extent for some beneficial purpose; that priority of appropriation and diversion determines the existence, nature, and extent of the rights to the waters of all natural streams among all persons. This opinion is wholly unsupported by judicial authority. It is directly opposed to a long line of decisions and of dicta which have, in the clearest manner, both prior to and since the Codes, recognized the common-law doctrines concerning "riparian rights," and protected "riparian proprietors" in the enjoyment of those rights, to some extent at least, although they have not fully defined those rights, in all their scope and detail. The correctness of this statement will clearly appear from the following citations. § 109. ers. Review of the authorities. In the very latest case, which related wholly to the appropriation of the waters of a public stream, the court says: "No question as to the use of the waters of a stream by riparian proprietors is presented by this record. There is nothing in the pleadings or findings to indicate that when all the waters of Lytle creek were appropriated, any of the lands by or through which the creek flows had passed into private ownership." The court here expressly recognizes the distinction between the right of appropriating a stream flowing through the public lands, and the right to the use of its waters after any of the lands by or through which it flows have been acquired by private ownIn the recent case of Ellis v. Tone2 the private proprietor of lands bordering on a stream maintained an action and recovered damages for a diversion of the water from the stream, made by the defendant in 1877., The decision recognizes and is based upon the existence of some riparian rights held by the plaintiff as a riparian proprietor on the stream. The opinion, it is true, does not discuss the general doctrine, but is confined to an examination of certain instructions given to the jury at the trial, and the entire charge of the trial judge is not reported. The case, however, is a direct authority for the existence of "riparian rights" under the common-law doctrines, at least to some extent. The decision in Pope v. Kinman3 is unambigu 1 Lytle Creek W. Co. v. Perdew, (Cal.) 2 Pac. Rep. 732. 258 Cal. 289. 354 Cal. 3. As ous and express. A stream called "Lytle Creek" rises on public lands, and then flows through private lands, including those of the plaintiff and of the defendants. The plaintiff received the patent to his tract in 1872. The title, or at least the possession, of the defendants was earlier. The defendants had diverted and used all the water of the creek, and claimed the exclusive right to do so. The plaintiff brought this action in 1877 to quiet his title to the use of the water as a riparian owner, and to restrain the defendants' diversion. The court, after holding that the plaintiff's action was not barred by the statute of limitations, says: "The principal question is whether it is competent for the defendants, by the mere diversion of the waters of Lytle creek, which is an innavigable stream flowing across the lands of the plaintiff, to deprive the plaintiff of all interest or right of any nature in the waters of that creek. being owner of the land, the plaintiff has an interest in the living stream of water flowing over the land; his interest is that called the 'riparian right.' It is not necessary in this case to define in detail the precise extent of the riparian rights as existing in this country; it is enough to say that under settled principles, both of the civil and the common law, the riparian proprietor has a usufruct in the stream as it passes over his land. The judgment of the court below deprived the plaintiff of that usufruct, and declares in terms that plaintiff has no right, title, nor interest in said waters or any portion of them.' The judgment of the court below is therefore modified so as to read as follows: (1) That defendants have nothing as against the plaintiff, except only such rights as any of them may have of like character with that of the plaintiff, as being riparian proprietors of land bordering on said stream; and (2) that none of defendants have any right, title, or interest in or to the waters of said creek except as riparian proprietors as aforesaid." The rights of a "riparian proprietor" were also admitted and POM.RIP.-12 (177) protected in the case of Creighton v. Evans. The court said: "It is admitted that the waters of Elk bayou flowed in its natural channel through plaintiff's land, and that defendant diverted a portion of the water to his own land for purpose of irrigation, and other purposes. It is not averred that he is a riparian owner, and as such entitled to use any portion of said water. The court properly instructed the jury that plaintiff was entitled to recover at least nominal damages, even though he had suffered no actual damages. But the court further instructed the jury that if defendant diverted a portion of the water for a useful purpose, and that enough water was left in the stream for the use of the plaintiff for watering his stock and for domestic purposes, and if the plaintiff was not damaged by the diversion, the verdict should be for the defendant. This was not only contradictory to the first instruction, but was erroneous as matter of law. So far as appears on the record, defendant was not entitled to divert the water for any purpose, and plaintiff was entitled to at least nominal damages." This case was decided in 1878, but the report does not show when the cause of action arose. Several cases concerning the interference with or use of subterranean water, whether percolating through the soil or flowing in defined streams, also recognize and are decided in accordance with the settled common-law rules on that subject." In the case of Ferrea v. Knipe3 the rights of riparian proprietors were not only recognized, but their extent was also partially defined. The controversy was between two owners upon The defendant, for the alleged purpose of securing the water for the use of watering his stock, and for domestic purposes, had erected a dam, which collected the whole water the same stream. 153 Cal. 55. 2 See Hale v. McLea, 53 Cal. 578; Huston v. Leach, Id. 262; Hanson v. McCue, 42 Cal. 303; Mosier v Caldwell, 7 Nev. 363; Strait v. 828 Cal. 341. |