the interpretation of such statute by the courts of the other states."] § 117. Who are riparian owners. [Where a party has a contract for the purchase of lands adjoining a river, upon conditions not yet fulfilled by him, he has not yet acquired the fee, and cannot invoke the doctrine of riparian rights in his favor.2 But one who, though not a riparian owner, derives his right to the use of running water from a riparian proprietor, may restrain an interference with such right by an upper riparian proprietor who uses the water for purposes not riparian. So where adjoining land-owners agree that the waters of a certain stream be taken to a reservoir on the land of one of them, and that the other shall conduct half of the water through ditches to his land, these are covenants that run with the land, and the successor of either party has no right to go to a point higher up than where the stream reaches their adjoining lands, and convey the water to his land by some different means, and claim the whole of it for his own use.*] § 118. Prescriptive water-rights. [While the common law recognizes no such thing as an exclusive right acquired by mere priority of appropriation of water, it must be remembered that the riparian owner may obtain exclusive interests in the stream by grant or by prescription. In regard to the last named it is said: "The right acquired by prescription is only commensurate with the right enjoyed. The extent of the enjoyment measures the extent of the right. right gained by prescription is always confined to the right as 11d. 746,749. 2 Smith v. Logan, 18 Nev. 149, s. c. 1 Pac. Rep. 678. The exercised for the full period of time required by the statute, which is, in this state, five years. A party claiming a prescriptive right for five years, who, within that time, enlarges the use, cannot, at the end of that time, claim the use as enlarged within that period." The owner of a mill-dam cannot acquire a right by prescription to overflow adjoining lands while they belong to the United States or to the state. And so, if a party has acquired by prescription a right to divert water so that it flows into a creek running through his neighbor's land, such prescriptive right does not extend to the overflowing of the water over such land to the neighbor's injury.3] § 119. II. USES TO WHICH THE WATER MAY BE PUT. General statement of riparian rights-Van It thus appearing that the title of the Code concerning waterrights has no application to nor operation upon the riparian rights of private riparian proprietors who hold the title to tracts of land on the banks of natural running streams in this state; that those rights are left existing as they have been declared by judicial decisions made before and since the adoption of the Code; and that those rights have thus been declared by judicial decisions to be substantially the same as the rights created, recognized, regulated, and protected by the common-law doctrines relating to the subject, we are now in a position to inquire, with more of detail, what are the nature, extent, and limits of the rights held by private riparian proprietors in California; what uses of the water of streams do they confer, permit, or for 1 Boynton v. Longley, (Nev.) 6 Pac. Rep. 437, Hawley, J. 2 Wattier v. Miller, 11 Or. 329, s. c. 8 Pac. Rep. 354. 3 Tucker v. Salem Flouring-Mills Co., 13 Or. 28, s. c. 7 Pac. Rep. 53. § 119 bid; with special attention to the inquiry whether they permit the use of water for purposes of irrigation, and, if so, to what extent and under what limitations. As a preliminary to this proposed examination, I shall quote at some length from a de-, cision made by the supreme court of Nevada, which covers all of the questions. The same physical conditions affecting the use of water exist in both states, and in both the common-law doctrines concerning the rights of private riparian proprietors are recognized as substantially controlling. These facts alone would recommend the decision to the attention of the courts and profession of California; but the decision itself is so important, and the opinion of Chief Justice Lewis is so able, learned, and exhaustive, that no excuse is needed for the long extracts which I have made. If the common-law doctrines still determine and regulate the rights of private riparian proprietors in our own state, it is proper to know what these doctrines are, how they have been settled, and upon what authority they rest. The facts of the case present in a marked manner the distinction between the appropriation of water from streams while flowing wholly over the public lands of the United States, and the rights to the water held by a proprietor who has acquired a title as private owner to a tract of land bordering upon a stream. The opinion shows in the clearest manner the general nature, extent, and limits of the rights possessed by such private riparian proprietor, as established by the overwhelming consensus of authorities, English and American. Unless I am entirely wrong in the construction placed upon the title in the Civil Code, and unless the decisions of the California supreme court, heretofore quoted, are to be wholly disregarded, then, as it seems to me, the opinion of Chief Justice Lewis, in its reasoning and its conclusions, applies to and defines the rights of private riparian proprietors in California, with one modification, to be subsequently mentioned, growing out of a more recent statute of con gress. The case to which I refer, and from which I now proceed to quote, is Van Sickle v. Haines.1 The facts were briefly as follows: In 1857 the plaintiff, Van Sickle, diverted a portion of the waters of Daggett creek, a natural innavigable stream, by means of a ditch for irrigating and domestic purposes, to be used upon a tract of land in his possession not situated upon the banks of said creek. The diversion was made at a point then on the public land, but the tract of land bordering on the creek and including this point was, in 1864, conveyed by patent from the United States to the defendant Haines. In 1865 Van Sickle obtained a patent from the United States for the tract in his possession, on which he used the water. In 1867 Haines constructed a flume on his own land, and by its means diverted the water of the creek for the benefit of his own riparian tract of land, and thereby deprived Van Sickle of the supply of water which he had been using. In 1870 Van Sickie brought an action, which resulted in a judgment for damages against Haines, and a perpetual injunction restraining him from interfering with the plaintiff's prior appropriation. It should be carefully noticed that the plaintiff, Van Sickle, was not a riparian proprietor. On appeal, the judgment was reversed by the supreme court, and a decree was ordered for the defendant dismissing the suit. The court held, among other points, that, since there can be no title acquired by adverse user against the United States, the time during which a person diverts water from a stream wholly on the public land, previous to the issue of a patent to a private riparian proprietor, cannot be set up as an adverse user against such patentee. The same has been held by California decisions.2 The plaintiff presented a petition for a rehearing, and thereupon a second most able and exhaustive opinion by Lewis, C. J., was 17 Nev. 249. 2 Pope v. Kinman, 54 Cal. 3. delivered, from which I shall quote several passages that seem to bear upon the general questions under discussion. This opinion opens with some preliminary observations which are peculiarly appropriate and instructive, (pages 257, 258:) “We are unable to understand from the petition what exact condition is assigned to running water in the catalogue of rights or property; or what the nature of the title which may be acquired to it, if any. Much thereof is devoted to showing that there can be no property in running water; that it is, and must of necessity remain, common to all; that it is a thing 'the property of which belongs to no person, but the use to all;' and in the same sentence it is said that it is publici juris, res communis, and bonum vacans.' This abandon in the use of legal expressions is evidently the result of a radical misunderstanding of the signification which is given to them in the books of law. True, it is often said that water is publici juris, or belongs to those things which are res communes; but how it can be either publici juris or res communis and also bonum vacans is a problem not yet solved in the science of the law. If common property, or, as argued by counsel, something in which no one has an absolute property, but every one has the use, the right to the use must then certainly be in the community; but bonum vacans is a thing without an owner of any kind, and which belongs absolutely to the person who may first find or appropriate it, and he has the complete right of property in it as against the world. It is a flat contradiction, in terms, to say that running water is at the same time common property and bonum vacans. But we have the word of Lord Denman in Mason v. Hill,' and of Baron Parke in Embrey v. Owen's Ex'rs,2 that it was never considered bonum vacans. ply to legal terms. 15 Barn & Adol. 22. Nor are these contradictions confined sim- 26 Exch. 353. |