RIPARIAN PROPRIETORS AND RIPARIAN RIGHTS ON PRIVATE STREAMS.

While engaged in preparing these articles I have received many interesting communications from members of the legal profession in different parts of the state, some of them containing valuable suggestions or information, others requesting an opinion upon the legal questions arising from certain specified and described conditions of fact. For the former class of letters, I desire to return most sincere thanks. In regard to the latter class, so far as it expressly appeared, or there was reasonable ground to suppose, from their statements, that the particular facts therein described, were actual cases pending in the courts, or existing controversies liable to be brought before the courts, I should, of course, most scrupulously refrain from giving any opinion upon the specific questions which could in the slightest degree tend to influence their decisions. On the other hand, so far as the facts so described are, or appeared to be wholly hypothetical, and the questions arising therefrom are entirely general, and have no immediate connection with existing controversies, there can be no objection to the expression of an opinion upon the supposed case, or to the statement of the rule which should control it.

The following communication belongs to this class, and its answer will be an appropriate illustration of the general conclusions reached in the last two numbers: "A case (not in the courts) which seems not to be covered by any of the doctrines thus far enunciated in your articles, is as follows: A natural stream, having its source in the mountains, on public lands, runs twenty miles through such lands; then enters and runs twenty miles further through private property. To what extent (if at all) are the riparian rights below the public lands protected as against prior appropriators on said (public) lands? Suppose that no appropriation. had been made on the public lands until after the owners below had acquired their titles, can any subsequent appropriation made thereon deprive them of their riparian rights? Or, even suppose that an appropriation had been made prior to the time when they acquired their titles from the government, what rights have they? Yours, &c., M. N."

The general conclusions reached by the discussions of the last two or three numbers, if correct, seem to furnish the answers to the foregoing inquiries. Unless I am radically and wholly wrong in the interpretation heretofore given to the title of the code concerning water rights, and in the force and effect attributed to the decisions of the California supreme court heretofore quoted, it seems to me that these questions are susceptible of clear, explicit and definite answers. In the first place, it should be carefully remembered, that the riparian rights of all riparian proprietors on the same stream are equal, irrespective of the times at which they acquired their titles, subject only to the natural advantage belonging to a proprietor situated higher up the stream over one situated lower down.

If, therefore, any person should at any time become owner of a tract of the land bordering on the stream in that portion which now runs through the public lands, he would at once be a riparian proprietor clothed with all the riparian rights which belong to the present proprietors through whose private property the stream runs. If all or any part of the existing public lands through which the stream now runs in the first twenty miles of its course, should come into the hands of private owners, these owners would have the same riparian rights which belong to the existing riparian proprietors through whose lands the stream runs in the lower portion of its course, with the advantages which their higher location would give them of using the water for the natural uses of watering stock, drinking, and other domestic purposes. Although this particular doctrine is not directly involved in the communication of our correspondent, it forms an appropriate introduction to the answers which should be given to his inquiries. (1) Supposing that no appropriation at all had been made of the waters of the stream on that part which still runs through the public lands-that is, the first twenty miles-before the private riparian owners on the lower portion of the stream obtained their titles, what are their rights as against a person now making such an appropriation? If such an appropriation should be made for any purpose, by a person who does not own or possess any land on the bank of the stream within the first twenty miles of its course, for the benefit of a tract which he owns or possesses away from the stream, then under the California decisions herein before cited, his appropriation would be clearly unlawful as against the private riparian proprietors below him, and any one of those private riparian proprietors could certainly maintain an action against him, even though no actual damages had been sustained by means of his said appropriation—that is, even though there was sufficient water left flowing in the channel of the stream to supply the existing needs of those private riparian proprietors. This exact point seems to have been determined by one of the recent decisions already cited. The case of an appropriator who has

actually located and taken possession of a tract of the public land bordering on the stream, although he had not yet obtained the legal title by a patent from the government, will be considered subsequently. (2.) Supposing that an appropriation had been made on that part of the stream which runs through the public land,-the first twenty miles,prior to the time when the private riparian proprietor below obtained their title, what are their rights as against such appropriator? It seems to be well settled that the period of time during which such prior appropriation continued before these private riparian owners acquired their titles from the government,-while their lands still remained in the ownership of the United States,-could not be taken as constituting an adverse user against them. The appropriator could, therefore, obtain a right to the water by prescription, only where his adverse user against these private riparian proprietors had continued for the statutory period after their own titles had been acquired from the United States. Laying out of view the question as to a right by prescription, if the prior appropriation of the public stream was made in pursuance of the laws and customs of the state, and the purpose and use of the appropriation were such as the statute of congress expressly mentions and protects, then the titles of the subsequent private riparian proprietors are, by the express provisions of the congressional legislation, subordinate and subject to the rights of the prior appropriator and the patents from the United States issued to them must except and reserve those rights.' If, on the other hand, the purpose and use of such prior appropriation were not of the kind which the statute of congress mentions and protects, then under the decision of the supreme court of Nevada in Van Sickle v. Haines,-if that decision is good law,all the rights of this prior appropriator on the public stream, as against the subsequent private riparian proprietors, would be cut off and destroyed by the patents from the United States conveying to them the legal titles. We say, if the decision in Van Sickle v. Haines is good law, because that decision upon this particular point may, perhaps, be virtually overruled by the course of reasoning adopted by the supreme court of the United States in one or two later cases' (3). Suppose a person should locate and take actual possession of a tract of the public land situated on the banks of this stream at any point within the first twenty miles of its course, and should use the water of the stream for the benefit of such tract although he has not yet obtained the legal title thereto by a patent from the United States, what would be his rights? Since a person who locates and takes possession of a tract of the public land, in pursuance of the statutes of congress, is regarded and treated

See Woodruff v. North Bloomfield etc. Co. 1 West Coast Rep. 202 per Sawyer, J.

2See especially the opinions in Atchison v. Peterson, 20 Wall. 507, and Basry v. Gallagher, 20 Id. 671.

in all respects as the lawful and legal owner thereof, against all parties except the United States, we are of opinion that, as against the private riparian proprietors holding the legal titles to tracts of land on other portions of the stream, under patents from the government, this locator would be in all respects a riparian owner with all the riparian rights of any riparian proprietor. His position as a subsequent locator of a tract of the public land bordering on the stream, would not, in our opinion, give him any right to appropriate the waters of the stream exclusively, or to such an extent or in such a manner as to interfere with the equal riparian rights of the other riparian proprietors below him. He would, at most, be a "riparian proprietor" although he had not yet obtained a legal title to his land from the United States; his rights to use the water would be the same as those held by all the other riparian owners on the stream whose title had been perfected, with the possible advantage resulting from his higher position on the stream.

J. N. P.

[TO BE CONTINUED.]

DOES AN AGREEMENT TO PAY REASONABLE ATTORNEY'S FEES DESTROY THE NEGOTIABILITY OF A PROM

ISSORY NOTE IN WHICH IT APPEARS ?

On this interesting question, there appears to be an irreconcilable conflict among the courts. In Minnesota,' Pennsylvania,' Missouri, North Carolina,' and Maryland,' the courts hold that the insertion of the attorney-fee clause annihilates the negotiability of the instrument; but the contrary doctrine is maintained by the courts of Illinois, Iowa,' Indiana,* Kansas, Louisiana," Kentucky," Arkansas," and, probably, Texas. The same divergence of view is exhibited in the rulings of the circuit courts; for, while the circuit court for the third circuit adopts the Pennsylvania rule," the circuit courts for the eighth and ninth circuits adhere to the contrary doctrine, 15

13

It is not an easy matter to arbitrate between these inharmonious views; but still, with all due respect, it is submitted that the weight of authority, as well as of logic, must be regarded as preponderating in favor of that more advanced view which upholds the negotiability of the paper. That peculiar quality of notes, which is denominated negotiability, and which indicates the capacity of the note to pass from hand to hand like coin, giving to any unobjectionable transferee a valid claim upon it against the maker, that peculiar quality of negotiability, I say, disappears at the instant that the note matures. But it is only at that instant that the attorney-fee clause acquires any dynamic force, and, therefore, the clause could not affect, much less destroy, a quality which had perished before the clause acquired vitality. The negotiability does not cease because the clause becomes operative, but the clause becomes operative because the negotiability ceases; and although the extinction of negotiability may not strictly be the efficient cause of the operation of the collateral stipulation, yet it is certainly the occasion upon which alone the stipulation ceases to be dormant; and, moreover, it seems paradoxical to hold that instruments evidently framed as bills and notes, are not negotiable during their currency, because, when they cease to be cur

10Dietrich v. Bayhi, 23 La. Ann. 767. Gaar v. Louisville Banking Co, 11 Bush (Ky.), 180.

12Overton v. Matthews, 35 Ark. 146.

13 Minor v. Paris Exchange Bank, 53 Tex. 559; but see Goldman v. Blum, Texas Sup. Ct. 29 Alb. L. J. 19.

14 Farquhar v. Fidelity Ins. Co. 18 Alb. L. J. 330.

15 Howenstein v. Barns, 5 Dill. 482; Machine Co. v. Moreno, 6 Sawy. 35; Bank v. Ellis, Id. 96.