with water, of property in water, or in the soil covered by the water, under all conditions and circumstances. There are many important questions which I have left untouched; there are many questions of great doubt and difficulty, peculiar to this Pacific coast, to which I have not even alluded. The single object of this essay was to ascertain, as far as possible, the law peculiar to the Pacific states and territories, concerning the waters of natural running streams, the rights of all persons, riparian proprietors and others, to use the waters of such streams, and especially, as being of paramount importance to the agricultural interests, their right to use and consume these waters for the purpose of irrigation. Upon the foundation of existing law, as thus ascertained, it was my further design to suggest such measures of just and practicable legislation as would render the waters of these streams available, for purposes of irrigation, to the largest communities of persons engaged in agriculture, with the least possible interference with the existing and natural rights of any class. The object thus proposed has been reasonably accomplished. There seemed to be a prevailing opinion among the members of the legal profession-an opinion in which I partook when commencing this essay-that the law of California and other Pacific commonwealths concerning the water-rights in natural streams, private riparian rights, the rights of private riparian proprietors, and similar topics connected with the appropriation and use of such waters, was wholly vague, unsettled, and uncertain, to be collected only from doubtful, contradictory, and conflicting decisions. It has been shown that there is, in reality, no foundation for this opinion. In the great majority of the states and territories embraced within our review, the entire field has been occupied by elaborate systems of statutory legislation. In California and Nevada it has been shown, as it seems to me, beyond the possibility of question or doubt, that the principles and fundamental doctrines of the common law concerning the waters of natural streams flowing through or by private lands, private riparian rights, and the rights of private riparian proprietors, have been established by the courts in an unbroken series of decisions. There are two antagonistic interests in the state, each endeavoring to control the legislature, and to shape the legislation entirely in its own behalf, to the complete exclusion of the other. These are the riparian proprietors, who assert their common-law rights, and would exclude all other classes from any participation in the waters of the stream, however abundant; and the communities of land-owners away from the banks of streams, who deny any rights of the riparian proprietors, and claim a free, unrestricted access to and appropriation of all natural streams, limited only by the extent of their own needs. The latter class, being the most numerous, has prevailed with the legislature, and shaped the legislation exclusively for its own benefit, in most of the Pacific states and territories, whose statutes I have hereinbefore quoted. The type of legislation which I have proposed, recognizes the just claims of both these classes; it provides for satisfying the demands of each, so far as possible, without completely sacrificing the other; but it necessarily requires that each should surrender some portion of its exclusive pretensions. I have the utmost confidence that the main elements and features of legislation which I have proposed, might, in the hands of intelligent men, who were familiar alike with the situation and topography of the larger rivers, and of the regions through which they run, and with the agricultural methods, customs, and wants of the adjacent communities, be worked up into a just, practicable, and efficient system for the regulation of irrigation throughout all parts of the state. INDEX. [THE NUMBERS REFER TO SECTIONS.] A. ABANDONMENT, of appropriation, 88-91. general doctrine of, 88. by invalid sale, 89. by returning the water, 89. by negligence, 89. by adverse user, 90. ACEQUIAS, statutes of New Mexico concerning, 102. of Arizona, 103. system of, impracticable for California, 149. ACTION, for injuries to ditches, 67. for unlawful diversion, 68. in equity, 69. for injury to quality of water, 70. for damages caused by dams or ditches, 71-78. to restrain hydraulic mining, 77. ACT OF CONGRESS, concerning appropriation of water, 17. of 1870, is declaratory only, 28. has not sanctioned injurious effects of hydraulic mining, 77 ADVERSE USER, rights acquired by, 90. easement in use of stream acquired by, 137. (287) AGRICULTURE, see IRRIGATION. APPLICATION, of water to beneficial use, intention of, is necessary to valid appro- priation, 47. must be actual, 49. of water, by riparian owner, to useful purposes, 119 et seq. APPROPRIATION OF WATER, not recognized at common law, 4, 21. for mill purposes, 11. origin and basis of the right of, 12-24. early importance of mining interest, 13. mining customs, 14. doctrine of, stated, 15. right of, not at first availing as against government or its presumed license from government, 22. as against subsequent patentee, 25. on public lands of the state, 29. right of, confined to public lands, 30. relative jurisdiction of state and United States over public lands, 31. conflicting claims between settlers and appropriators, 33. when patentee's title vests, 34, 35. whether patent relates back to initial steps, 38. riparian rights under Mexican grants, 42. how effected, 44-54. successive appropriations, 44. doctrines which control, 45. methods of effecting, 46. water-right may be merely possessory, 46. intent to apply water to beneficial use, 47. for drainage only, 47. |