parian rights" of private owners on the banks of streams are referred to by section 1422, are excepted or removed by it from the meaning and operation of the whole title, and are left existing in the law of California as fully and completely as they were before the Code. The title of the Code thus finds its sole application to the water of streams flowing entirely through public lands, upon the banks of which no private owner has yet acquired title to any tract or parcel of private land.

If it be urged that this construction virtually emasculates the entire title of the Code concerning water-rights, and renders it virtually inoperative over a large and most important branch of those rights, the answer is that this is the fault of the legislation, and not of the construction. It is the duty of courts to take statutes as they are, to expound them according to the plain and natural import of their terms, and not to add to or take from them according to any notions which the judges may have as to what the legislature ought to have enacted. In the title of the Code under consideration the legislature has undoubtedly shirked its responsibility. Called upon to settle a question of the gravest importance, in which there are directly opposing interests involved, any settlement of which must necessarily be hostile to some large pecuniary interests, the legislature, under a mere appearance,-a simulacrum of settlement,-has, in fact, done nothing, but has left all the important questions of private water-rights of private riparian owners in exactly the same position which they occupied prior to the Code. The failure of the legislature to do what it was supposed and desired by some it should do, can have no effect upon the action of the courts in construing and interpreting the statute as a whole. The court cannot enact a new and different statute.

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§ 113. Interpretation of section 1422 — Lux V.

Haggin.

[The views advanced by our author in the preceding sections have received the sanction of the highest court of California, and are thus in harmony with the authoritative interpretation of this obscure and ambiguous statute. In the case of Lux v. Haggin,' decided in 1884, it was said by Sharpstein, J.: "After carefully examining all the cases bearing on this question, we are unable to find one in which it is held, or even suggested, that outside of the mining districts the common-law doctrine of riparian rights does not apply with the same force and effect in this state as elsewhere." And the reason why it did not apply to the mining districts is "that the government, being the owner of all the land through which a stream of water runs, had a right to permit the diversion and use of it by any one who chose to divert and use it for mining, agricultural, or other purposes. There is not only no occasion for the application of the doctrine of riparian proprietorship in such a case, but it is one to which the doctrine could not be applied." The court continued: "The provisions of the Civil Code in respect to the appropriation of water must be limited to that which flows over lands owned by this state or by the United States. It cannot affect the rights of riparian proprietors, (1) because it is expressly declared that it shall not; and (2) because an owner of land cannot be divested of any interest which he has acquired in it except for a public use, and not then until just compensation has been made for it."2

14 Pac. Rep. 919, 923.

2 In this case a dissenting opinion was delivered by Ross, J., in which he said: "Of course the doctrine of appropriation, as contradistinguished to that of riparian rights, was not intended to, and in

deed could not, affect the rights of those persons holding under grants from the Spanish or Mexican government-First, because the doctrine is expressly limited to the waters upon what are known as the public lands; and, secondly, be

This case was reargued in 1886; and the opinion then prepared is so exhaustive in its scope, and is characterized by such learning and judicial acumen, that it may almost be said to constitute, in itself, a complete treatise on water-rights. In regard to the point now under consideration, it was held that the waterrights of the state, as riparian owner, are not reserved by section 1422 of the Code, because (whenever the state has not already parted with its right to those who have acquired from it a legal or equitable title to riparian lands) the provisions of the Code confer the state's right to the flow on those appropriating water in the manner prescribed by the Code. Further, it was suggested in argument that the "riparian rights" designed to be reserved by section 1422 were such only as had become vested before the Code went into operation, and that, after that date, no genuine riparian rights could be acquired in California. the court held that the section in question is protective, not only of riparian rights existing when the Code was adopted, but also of the riparian rights of those who had acquired a title to land from the state after the adoption of the Code, and before an appropriation of water in accordance with the Code provisions. This decision was made to rest upon a point not previously considered in any of the cases, but one of such importance and so clear that it seems to terminate the whole controversy. To quote the language of McKinstry, J.: "We do not find it necessary to say that the prospective provisions of the Code would violate the obligation of a contract; but, when the state is prohibited

cause the rights of such grantees are protected by the treaty with Mexico and the good faith of the government. It is the rights of such riparian proprietors as those that are unaffected by the doctrine of appropriation, and those are the riparian rights that are excepted

But

from the operation of the provisions of the Civil Code, in relation to water-rights, by section 1422 of that Code." Lux v. Haggin, (Cal.) 4 Pac. Rep. 919, 935. But this view cannot be regarded as tenable. 1Lux v. Haggin, (Cal.) 10 Pac. Rep. 739.

from interfering with the primary disposal of the public lands of the United States, there is included a prohibition of any attempt on the part of the state to preclude the United States from transferring to its grantees its full and complete title to the land granted, with all its incidents. The same rule must apply to homesteaders, pre-emptioners, and other purchasers under the laws of the United States. To say that hereafter the purchaser from the United States shall not take any interest in the water flowing to, or in the trees on, or in the mines beneath, the surface, but others of our citizens shall have the privilege of removing all these things, is to say that hereafter the United States shall not sell the water, wood, or ores." The learned judge continued: "The section declares, in effect, that those appropriating water under the previous sections shall not acquire the right to deprive of the flow of the stream those who shall have obtained from the state a title to, or right of possession in, riparian lands, before proceedings leading to appropriation shall be taken. Such is the meaning of the words employed. Our conclusion on this branch of the case is that section 1422 saves and protects the riparian rights of all those who, under the land laws of the state, shall have acquired from the state the right of possession to a tract of riparian land prior to the initiation of proceedings to appropriate water in accordance with the provisions of the Code. If section 1422 of the Civil Code were interpreted as saving all riparian rights actually vested before the section took effect, the mere appropriator could acquire no rights to water by virtue of the provisions of the Code, but would be left to the enjoyment of such as he might secure by convention with the riparian proprietors. If all riparian rights existing when the section was adopted were preserved by section 1422, then, inasmuch as both the state and the United States were at that time riparian owners, the lands of neither government would be affected relating to water-rights; nor, of course, would any

subsequent grantee of either government be affected by those provisions."

The common law, therefore, defines and governs the waterrights of all persons owning lands upon a stream in California, where the waters of such stream had not been already appropriated when their titles accrued.]

§ 114. Mexican law-Effect on riparian rights.

[The recognition and enforcement of the common law doctrine of riparian rights, by the legislation and in the courts of California, is not in anywise affected or invalidated by the fact that the laws of Mexico obtained in that jurisdiction before its admission as a state into the Union. If, under the Mexican regime, vested rights of property had grown up, of such a nature and to such an extent that the general enactment of the law of riparian proprietorship would have been inconsistent with their continued enjoyment, it is obvious that California would have had no power to destroy these rights by the adoption of the common law, or by its legislation on the subject of waters. But, on the contrary, the Mexican law, as it existed at the time of the cession of California, did not confer nor recognize any inherent vested right, enforceable in the courts, in others than riparian proprietors, to the use of any portion of the waters of a stream, nor any right, except as to those who actually appropriated waters in the manner and on the conditions prescribed by the laws.

This subject was very fully discussed in the recent important case of Lux v. Haggin, where the conclusion above indicated was reached and applied. It was contended by counsel that "the fundamental principle upon which all the laws of the former governments of this territory upon this subject [waters and their uses] were based will be found to be that the flowing wa

1Lux v. Haggin, (Cal.) 10 Pac. Rep. 674, 744.

POM.RIP.-13

2 Id. 674, 705-718.

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