ters of the streams and rivers of the country were dedicated to the common use of the inhabitants, subject to that legislative control which is the equivalent of the exercise of that legislative power which we know as the 'police power' of the state." And the court understood this proposition to mean that "the inhabitants" of the territory, or at least the occupants of lands in each valley or water-shed capable of irrigation from a stream flowing in it, had, under the Mexican law, a vested interest in the common use, for irrigation and like purposes, to which the waters were "dedicated," which could not be taken away by the legislative power; that the dedication continues to the present hour; that the state of California has no power to restrict the use to riparian proprietors; that the statute of 1850, adopting the common law as the rule of decision, is not to be construed as an attempt so to restrict the use; and, if it must be thus construed, it is invalid to that extent, since the power of the state is limited to the mere regulation of the common use. But the court denied the view contended for, and announced the principle that, "by the law of Mexico, the running waters of California were not dedicated to the common use of all the inhabitants in such sense that they could not be deprived of the common use."

This doctrine was supported upon substantially the following reasoning: By the Roman law, three things, viz., air, running water, and the sea, (with its shores,) were considered as common to all. But the Roman jurists made a distinction between res communes and res publicæ, including the sea among the former and rivers among the latter. The same distinction was recognized by the Spanish writers,-bienes comunes being those which, not being, as to ownership, the property of any, pertain to all as to their use, as the air, rain, water, the sea, and its beaches; and bienes publicos being those which, as to property, pertain to a people or nation, and, as to their use, to all the individuals of the territory or district, such as rivers, shores,

§ 114 ports, and public roads. And by the Mexican law the property in rivers pertained to the nation; the use, to the inhabitants. Now, whatever the common use to which rivers, harbors, and public roads were subjected, the enjoyment of such use would exclude the notion of an exclusive use or occupation which must interfere with a like use by others. But the common use of rivers would seem to be such as all could enjoy who had access to them as rivers. An eminent English judge speaks of a distinction mentioned by the civilians between a river and its waters; the former being, as it were, a perpetual body, and under the dominion of those in whose territory it is contained; the latter continually changing, and incapable, while it is there, of becoming the subject of property; and he adds: "It seems that the Roman law considered running water not as a bonum vacans, in which any might acquire a property, but as public or common, in this sense only, that all might drink it, or apply it to the necessary purposes of supporting life; and that no one had any property in the water itself, except in that particular portion which he might have abstracted from the stream, and of which he had the possession, and during the time of such possession only."1 The common use of the waters, it would seem, existed only while they continued to flow in, and constituted a portion of, the river; but under the Mexican law an exclusive use of parts or the whole of the waters of a river might be legally acquired by individuals. By the Mexican Civil Code of 1870 it is provided: "The property in waters which pertains to the state does not prejudice the rights which corporations or private individuals may have acquired over them by legitimate title, according to what is established in the special laws respecting public property. The exercise of property in waters is subject to what is provided in the following acts." Article 1066. If, as is probable, the presumption is that the provisions of the 1 Denman, J., in Mason v. Hill, 5 Barn. & Adol. 1.

Code are declaratory of the pre-existing law, the right which could be acquired under the laws to the separate use of the portions of a stream constituted an exclusive usufruct, of the nature of private property, which did not and could not co-exist with a common use of such waters by all.' The court then continued: "It was the policy of Mexico to foster and protect navigation. The rivers naturally adapted to the passage of watercraft were devoted to the common use for purposes of navigation. It would seem to be in the power of the sovereign (except so far as the power is limited by the constitution of government) to authorize such diversions as shall interfere with navigation. It was never doubted that an act of parliament would operate to extinguish any public right to passage. Woolr. Waters, 289. While, however, a river remained a navigable river, the navigation was, by the civil law, common to all, unless the privilege was limited to a class. Interference with the appropriate use of innavigable rivers was not thus absolutely prohibited by the Mexican law. The common use of the waters of such rivers by all who could legally gain access to them continued only while the waters legally flowed in their natural channel, and the power of determining whether the public good-the purposes for which the social state exists-demands that the use of the whole or portions of the waters should pass as an exclusive right to one or a class of individuals remained in the sovereign. Whether the power is an incident to the ultimate domain or right of disposing of the property of the state, or is to be referred to some other source or principle, the Mexican government employed the power of permitting the diversion of waters from innavigable streams, by those not riparian proprietors, upon

1 Among the authorities cited by the court are the following: 2 Just. Inst. 1, §§ 1, 2; Hal. Int. Law, 147; Moyle, Just. 184; Escriche; Hall, Mex. Law, 447; Vinnius,

Comm. Inst. Mason v. Hill, 5 Barn. & Adol. 1; Bow. Mod. Civil Law, 64; Mex. Civil Code, art. 1066. See, also, Sand. Just. 157, 159.

But

such terms and conditions, and with such limitations, as were established by law, or by usages and customs which had the force of law. That government saw fit to concede private rights to the exclusive use of the waters of such streams. It had power to do this, even if the consequence should be the entire deprivation of the common use. It may be said that the Mexican laws which provided for such concessions to individuals or corporations did not provide for grants to such persons, but were themselves a recognition of a right in all to a use of the waters. a system which provided for the mode of acquisition of private, separate, and exclusive rights by individuals or corporations. cannot be said to be merely in regulation of a common use. Those who appropriated and diverted the waters of an innavigable river in accordance with the laws, obstructed pro tanto its Nevertheless they acquired an exclusive right to the use of that which they diverted, because, if they complied with the established conditions, their rights were acquired under and in accordance with law, and the waters they diverted were no longer portions of the waters of a river, or subject to the common use. No one of such had any right in or to the water until he had complied with the conditions which authorized him to appropriate it. Every one of such who complied with the conditions, and appropriated water, acquired a vested right in such water, at least while he continued to use it, except in the single case where he acquired a right merely conditional, under laws which reserved the power in the agents of the state or municipality to deprive him of it without indemnification."]

common use.

§ 115.

Riparian rights in Kern district.

[We have shown that the common law regulates the rights of riparian owners on the rivers and streams of California, un

1 Lux v. Haggin, (Cal.) 10 Pac. Rep. 705-711.

affected by the provisions of the Civil Code. It is also held that the common law as to riparian rights was not abrogated by certain statutes of the state applicable to a district of country within which is included the county of Kern, nor was the state estopped by such statutes from asserting its right to the flow of a natural stream from that district to and over the lands granted to the state by the act of congress of 1850.']

[The rights of riparian owners in California are to be determined by the common law, because these rights are excepted from the operation of the Code, and because the common law was adopted as the rule of decision in that state by the act of April 13, 1850. This statute, it is held, adopts the common law of England, not the civil law, nor the "ancient common law" of the civilians, nor the Mexican law, nor any hybrid system. And in ascertaining the common law of England, say the court, "we may and should examine and weigh the reasoning of the decisions, not only of the English courts, but also of the courts of the United States, and of the several states, down to the present time." "The report of the proceedings of the legislature shows that there was a considerable minority in favor of the adoption of the civil law; and there are circumstances appearing from the proceedings tending to prove that the advantages of each system, as the fundamental law of the future, were discussed and fully considered. Under these circumstances, we must believe that, if it had been intended to exclude the common law as to the riparian right, the intention would have been expressed. Moreover, it is a well-established principle that, when the legislature of this state has enacted a statute like one previously existing in other states, the courts here may look to

'Lux v. Haggin, (Cal.) 10 Pac. Rep. 735