can, 41 Cal. 508; Connar v. Paxon, 1 Black, 168; Edmonson v. De Kalb Co., 51 Ala. 101.

The judgment declaring the Montgomery license void is affirmed, but in all other respects reversed.

NOTES.

To those portions of the community who are interested in the subject of the codification of the laws, the New York Mail gives the following information as to the extent to which the New York codes have been adopted in other communities. In most instances the codes have been adopted substantially in detail, and in others in principle: "The first New York code, the code of civil procedure, went into effect on the 1st of July, 1848. It was adopted in Missouri in 1849; in California in 1851; in Kentucky in 1851; in Ohio in 1853; in the four provinces of India between 1853 and 1856; in Iowa in 1855; in Wisconsin in 1856; in Kansas in 1859; in Nevada in 1861; in Dakota in 1862; in Oregon in 1862; in Idaho in 1864; in Montana in 1864; in Minnesota in 1866; in Nebraska in 1866; in Arizona in 1866; in Arkansas in 1868; in North Carolina in 1868; in Wyoming in 1869; in Washington Territory in 1869; in South Carolina in 1870; in Utah in 1870; in Connecticut in 1879; in Indiana in 1881. In England and Ireland by the judicature act of 1873; this judicature act has been followed in many of the British colonies; in the consular courts of Japan, in Shanghai, in Hongkong and Singapore, between 1870 and 1874. The code of criminal procedure, though not enacted in New York till 1881, was adopted in California in 1850; in India at the same with the code of civil procedure; in Kentucky in 1854; in Iowa in 1858; in Kansas in 1859; in Nevada in 1861; in Dakota in 1862; in Oregon in 1864; in Idaho in 1864; in Montana in 1864; in Washington territory in 1869; in Wyoming in 1869; in Arkansas in 1874; in Utah in 1876; in Arizona in 1877; in Wisconsin in 1878; in Nebraska in 1881; in Indiana in 1881; in Minnesota in 1883. The penal code, though not enacted in New York until 1882, was adopted in Dakota in 1865, and in California in 1872. The civil code, not yet enacted in New York, though twice passed by the legislature, was adopted in Dakota in 1866 and in California in 1872, and has been much used in the framing of substantive laws for India. The political code, reported for New York but not yet considered, was adopted in California in 1872. Thus it will be seen that the state of New York has given laws to the world to an extent and degree unknown since the Roman codes followed Roman conquests."

RIPARIAN PROPRIETORS AND RIPARIAN RIGHTS ON PRIVATE STREAMS. In the case of Ferrea v. Knipe" the rights of riparian proprietors were not only recognized, but their extent was also partially defined. The controversy was between two owners upon the same stream. 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 of the stream in a pond, and prevented any of it from flowing down to the plaintiff's lands below. An action for damages and preventive relief was sustained. Currey, J., delivering the opinion of the court, said (p. 344): "Every proprietor of the land through or adjoining which a water-course passes has a right to a reasonable use of the water, but he has no right to so appropriate it as to unnecessarily diminish the quantity of its natural flow. The use of the water of a stream for domestic purposes and for watering cattle necessarily diminishes the volume of the stream. This is unavoidable, and though by reason of such diminution a proprietor on the stream below fails to receive a supply commensurate with his wants, he is without remedy, because his right subsists subject to the rightful use of the water by his neighbor on the stream above him. But while admitting that a riparian owner, to whom the water first comes in its flow, has the right to use it for domestic purposes, and for watering his cattle, it is proper to observe that he has not the right to so obstruct the stream as to prevent the running of water substantially as in a state of nature it was accustomed to p. 345: "Though the defendant had the right to use the stream for watering his cattle and for household purposes, he had not the right, under the circumstances, to dam up the creek and spread out the water over a large surface, by which it would become lost by absorption and evaporation to an extent to prevent the stream from flowing to the plaintiff's premises, as it would have done had it not been for the 6 28 Cal. 341.

run.

defendant's dams. This was not a proper and beneficial use of the stream.

,,

In the case of Hill v. Smith' Mr. C. J. Sanderson announced the principle which underlies the common-law doctrines as still forming a part of the California jurisprudence (p. 482). Speaking of certain erroneous views, he says: “This is due in a great measure doubtless to the notion, which has become quite prevalent, that the rules of the common law touching water rights have been materially modified in this state, upon the theory that they were inapplicable to the conditions found to exist here, and therefore inadequate to a just and fair determination of controversies touching such rights. This notion is without any substantial foundation. The reasons which constitute the groundwork of the common law upon this subject remain undisturbed. The maxim, "Sic utere tuo ut alienum non lædas," upon which they are grounded, has lost none of its force. When the law declares that a riparian proprietor is entitled to have the water of a stream flow in its natural channel-ubi curere solebat-without diminution or alteration, it does so because its flow imparts fertility to his land, and because the water in its pure state is indispensable for domestic uses. But this rule is not applicable to miners and ditch-owners, simply because the conditions upon which it is founded do not exist in their case." The court went on further to hold that the common-law doctrines still regulated the right to the use of water in mining regions as far as the conditions of the situation and business would allow.

In the early and leading case of Crandall v. Woods, which did not relate to the use of water for mining or other special uses, nor to the prior appropriation of water flowing in a public stream, discussed in the former portion of this article, the same general common-law doctrine was affirmed. The controversy arose between two proprietors who held different tracts of the public land upon the same stream, by a possessory right good against all third persons, but who had not yet obtained the legal title from the United States by patent or otherwise. The question was whether one of these parties could divert the water of the stream and prevent it from flowing by or through the land of the other, who had acquired his possessory right before any such diversion was made. This question was answered in the negative, although the possession of the one making the diversion was prior to that of the other party who complained of the diversion. Holding that possession of public land carries with it the privileges and incidents of ownership against every one but the government, the court further held, as a necessary consequence, that such possession gives the right to the use of water flowing through the land, for its natural wants, but does not confer the right to divert it, and to prevent its running upon the land of another who has 7 27 Cal. 475.

88 Cal. 136.

taken up the same subsequently, but before the attempt to change the course of the water. The opinion of the court, by Mr. C. J. Murray, uses the following language (p. 141):

"The property in the water, by reason of riparian ownership, is in the nature of a usufruct, and consists in general not so much in the fluid as in the advantage of its impetus. This, however, must depend upon the natural as well as the artificial wants of each particular country. The rule is well settled that water flows in its natural channels, and should be permitted thus to flow, so that all through whose land it passes may enjoy the privilege of using. A riparian proprietor, while he has the undoubted right to use the water flowing over his land, must so use it as to do the least possible harm to other riparian proprietors. The uses to which water may be appropriated are, first, to supply natural wants, such as to quench thrist, to water cattle, for household and culinary purposes, and, in some countries, for the purpose of irrigation." [In no country where the common-law doctrines alone govern, is the purpose of irrigation placed upon the same footing with those other purposes and uses mentioned by Mr. Justice Murray.] "These must be first supplied, before the water can be applied to the satisfaction of artificial wants, such as mills, manufactories, and the like, which are not indispensable to man's existence." [The necessary limitations to be placed upon this dictum will be described in the sequel.] "Water is regarded as an incident to the soil, the use of which passes with the ownership thereof. As a general rule, a property in water cannot be acquired by appropriation, but only by grant or prescription." This decision and the opinion quoted refer to a condition of circumstances completely analogous with private ownership of lands on the banks of a stream. The appropriation of water from public streams for mining and other purposes, in pursuance of local customs and rules sanctioned by the act of congress, and the special condition of the mining regions, are not involved nor affected by the reasoning or the decision. The common-law doctrine here applied to private riparian proprietors who have only possessory titles or occupation rights to land bordering on streams, must a fortiori extend to those riparian proprietors who have obtained complete legal titles and ownership over such lands. The same doctrine was affirmed in Leigh Co. v. Independent Ditch Co." In an action for the diversion of water, the complaint alleged that the plaintiffs were owners and possessors of a certain mining claim situated on a certain stream, and were entitled to have the waters thereof flow as they naturally did, but defendants had diverted them. The defendants demurred to this complaint on the ground that it stated no cause of action, because it did not allege that plaintiffs had appropriated the water, or were owners of it, or were in possession of it.

9 8 Cal. 323.

The demurrer was overruled. "The allegation that the plaintiffs were owners, and in possession of the mining claim, was sufficient. The ownership and possession of the claim drew to them the right to the use of the water flowing in the natural channel of the stream. The diversion of the water was, therefore, an injury to the plaintiffs for which they could sue. The principle involved in this case was expressly decided by this court in the case of Crandall v. Woods." The court here expressly decided that a riparian proprietor, merely by virtue of his ownership, is entitled to the use of the water without making any actual appropriation. The common-law doctrine, that the right over the stream arises from riparian ownership and not from any appropriation, is again declared. It is true the land in this case was a mining claim, but the decision was not in the slightest based upon or affected by that fact. In the state of Nevada, the common-law doctrines concerning the riparian rights of private riparian proprietors have been adopted in the most explicit manner by the well-considered decision of the supreme court in the case of Van Sickle v. Haines. The court held that a person acquiring the legal title by patent from the United States, to a tract of land bordering on a stream, obtained as a necessary incident of his ownership, and before making any actual appropriation, full right to the water of the stream as a riparian proprietor, superior and complete as against another party, not a riparian owner, who had made a prior appropriation of the waters of the stream while it was entirely public. Extracts from the very able and instructive opinion in this case will be given under a subsequent head.

11

10

The foregoing series of cases shows, beyond a possibility of question or doubt, that prior to and since the adoption of the civil code, the laws of California recognized, protected, and enforced the rights known as the "riparian rights" of private "riparian proprietors" owning lands situated on the banks of natural streams, substantially as they exist at the common law. The rights thus known as "riparian rights" have been defined; they belong alike and equally to all "riparian proprietors" on the same stream, subject solely to the natural advantage belonging to the upper over the lower proprietor; they exist as a necessary incident of ownership, even though the proprietors had not as yet made any actual appropriation or diversion of the water; they entitle each "riparian proprietor" to the usufruct of the water as it flows in the natural channel of the stream, including the right to use so much of it as may be reasonably necessary for such primary purposes as watering his cattle, domestic and household uses without thereby unnecessarily or unreasonably diminishing its natural flow down to the proprietors below him on

10 7 Nev. 249.

11 Pope v. Kingman, 54 Cal. 3.

18

12 Id.; Ferrea v. Knipe, 28 Id. 341; Crandall v. Woods, 8 Id. 136.

13 Creigton v. Evans, 53 Id. 55.