RIPARIAN PROPRIETORS AND RIPARIAN RIGHTS ON PRIVATE STREAMS.

The following communication involves a question of importance, and for that reason it is inserted. "In your discussion of water rights you have not yet presented your views on one very important point. How does prior appropriation affect the rights of an owner of a Mexican grant confirmed and patented subsequent to the appropriation? 1. Suppose, for example, L. creek rises in public lands, and flows ten miles through such lands, then flows ten miles through a rancho granted by the Mexican government before the United States acquired the territory of California, and then flows again through public lands into the sea. Suppose that, pending the proceedings for the confirmation of this grant, the waters of the creek were all appropriated for the irrigation of farming lands other than said grant, and have been used for that purpose ten years. The grant is then confirmed, and a patent is issued,. and the owner of the grant subdivides it and sells to A, B, C, etc. What are their rights to the water? Is it possible that the doctrine of riparian rights has been lost by the prior appropriation? The title to the grant comes from the Mexican government, and hence is prior to the appropriation for irrigation. Can those riparian rights be thus cut off, and a whole stream be taken away from the grant? 2. Can a person wishing to appropriate water which runs through a patented Mexican grant, go upon the grant and put up his notice of appropriation? or would he be a trespasser? Yours, etc., Lex."

Since this communication comes from an anoymous contributor, and since it bears evident marks of relating to an existing controversy, which may perhaps be even now pending in the courts, we do not feel warranted in attempting any answer to its specific inquiries. It suggests, however, one general question upon which we may not inappropriately express an opinion. What are the rights of a private riparian proprietor who obtains his title by a grant from the Mexican government, guaranteed and protected by the treaty between the United States and Mexico, and

finally confirmed to him in the proceedings authorized by congress for the purpose of carrying into effect the stipulations of that treaty? We see no reason why the riparian rights of such a riparian proprietor should differ in any respect from those held by any other riparian proprietor who derives his title immediately or mediately from the United States by patent or otherwise. All the doctrines and rules of the law which define and regulate the water rights of private riparian proprietors upon unnavigable streams at least, even if not upon navigable streams, belong entirely and exclusively to the jurisdiction and domain of state legislation. Congress has no power to interfere directly or indirectly with matters of this kind; any attempt of congress to control them by legislation would be wholly nugatory. The stipulations of the treaty with Mexico simply referred to, operated upon, and protected the titles of those private proprietors who held tracts of land, within the territory ceded to the United States, under grants from the Mexican government. These stipulations say in substance that such actual and bona fide grantees shall continue to be owners of their respective tracts, although the territory has passed into the domain of the United States; and that their right of ownership shall be respected by the United States government.

The legislation of congress and the judicial proceedings instituted under it, were intended to carry into effect these treaty stipulations, and they operate solely upon the titles, by declaring, confirming and establishing the private ownership of the grantees as derived from the Mexican government, the original sovereign proprietor. The treaty and the legislation of congress which carries it into effect, are of course binding, not only upon the federal government, but also upon the governments of all the states which have been established within the ceded territory, and within whose boundaries the granted lands are situated. The treaty with Mexico while thus securing to the private proprietors the title and ownership of the tracts of land which had been granted to them by Mexico, did not attempt to provide that this ownership should be governed and controlled by the rules of the Mexican law, nor by any other rules of law different from those which would govern and control all private ownership of land within the territorial jurisdiction of the United States, or within the jurisdiction of any particular states. Even if the treaty with Mexico had expressly stipulated, not only that the titles of private persons holding under Mexican grants should be protected and should continue to be valid and perfect, but also that the ownership of such lands, when situated on the banks of streams, should be governed and regulated by the rules of the Mexican law concerning water and other riparian rights, such a stipulation would be completely inoperative and void as soon as the territory embracing these granted lands was

organized into a state; the whole subject matter would belong exclusively to the jurisdiction of the state; the rules concerning riparian rights would fall exclusively within the domain of the state municipal law,-whether that law adopted the common law doctines, or promulgated other rules in the form of statutes.' It seems plain, therefore, that the riparian rights of a private proprietor holding by a Mexican grant duly confirmed are exactly the same, governed by the same rules, as those held and enjoyed by any other private riparian proprietor within the state. The source of his title can make no difference as to the rights of property which accompany and flow from his ownership. The question of priority between such a grantee and a person who has appropriated the waters of the stream before his grant was confirmed by the United States authorities, must depend, we apprehend, upon the legal effect given to the confirmation. Does the confirmation relate back to the date of the treaty, so that the grantee is regarded as deriving his title directly, and holding it continuously from the Mexican government; or does the confirmation operate only from its own date, so that the grantee is regarded as deriving and holding his title immediately and directly from the United States, in pursuance of an executory agreement made with Mexico? This question we shall not examine.

We are now brought to the question, how far do the riparian rights of a private riparian proprietor, under the law of California and of Nevada, include the right to use the water of the stream for the purpose of irrigating his land? The only recent decision which deals directly with this question to any extent, or in any manner, is found in the case of Ellis v Tone,' decided in 1881. Unfortunately this case is so reported that it does not throw much light upon the general question. The action was tried before a jury, but the report does not give the entire charge of the court, so that it may be seen upon what general theory of the law, or upon what admitted doctrine the cause was tried and the recovery had. Certain detached clauses of the charge were excepted to, and certain special instructions were refused, and these alone have been given by the reporter.

The opinion of the court is also confined to an examination of the specific exceptions, and does not enter into any discussion of the general doctrines upon which the case, as a whole, must have rested. The case, however, is the most recent published decision which deals with the right to use water for purposes of irrigation, and we shall state it in substance by way of introduction to the discussion of this most important ques

This principle, and the authorities which support it, are discussed by Sawyer, J., in Woodruff v. North Bloomfield, etc., Co., 1 West Coast Rep. pp. 204-206; the same principle is discussed by Mr. Justice Field, in

delivering the opinion of the court in the case of Hagar v. Reclamation District No. 108, decided by the United States Supreme Court on the fifth of May. 1884.

258 Cal., 289.

tion. The action was brought to recover from defendants damages for diverting water from Mormon Slough, a natural water-course, by which plaintiffs were prevented from irrigating their growing crops in 1877. A verdict was rendered in favor of the plaintiffs. Defendants moved for a new trial, which was denied, and they appealed. The facts, as stated in the report, were as follows: Mormon Slough or channel heads from and runs out of the Calaveras river east of Stockton, and about four miles north-easterly from plaintiffs' land, and flows thence in a south-westerly direction to the Stockton channel, a distance of about twenty miles. The slough runs through the land of the plaintiffs in two channels. The defendants own land on the Calaveras river, below the point where the Mormon Slough runs out of that river. The slough is a natural water course, having a well-defined channel and banks. In 1850, before the channel of the Calaveras river was filled in by mining debris, it (the lower channel of said river) was from four to six feet lower than the bed of the slough, so that the waters of the river did not flow into the slough until the waters of the river had risen from four to six feet. But the channel of the river has since been so filled up by debris, that when the water is low, most, or nearly all of it, runs and has run into and through the slough. That has been the case since 1862, unless prevented by artificial means, so that in dry seasons, or in the dry season of the year, nearly all of the water ran into the slough; and during the whole of the year water was in the slough, while in the dry season little or none ran in the river below the head of the slough. In the fall of 1876 and winter of 1877 plaintiffs put in a crop of wheat and barley on their land, through which the slough ran as above stated.

The plaintiff's made arrangements to irrigate this land in the next spring (of 1877) by damming the north channel of the slough, so as to make the water flow into the south channel, on the banks of which their crop was growing. This arrangement was completed in April, 1877. They then found that defendants had stopped the entrance of the slough by digging a ditch in the bed of the river, and by damming the exit of the slough from the river, so that the water was compelled to flow down the river, instead of flowing, as had been the case for fifteen years, into the slough. In consequence of this the water was cut off from the slough, the plaintiffs were unable to irrigate, and their crop was a failure. Evidence also showed that in the spring of 1877 the defendants had purchased from the Mokelumne canal company four hundred miner's inches of water, to be furnished between April 15th and the 1st of June. This water was taken from the Mokelumne river, and was turned into the Calaveras river, at a point above the head of the Mormon slough, and flowed down that river to the lands of the defendants, so that they could use it for purposes of irrigation.

The court held that there was evidence sufficient to sustain the verdict for the plaintiff. The trial court charged the jury as follows:

"This is an action brought by the plaintiffs against these defendants, wherein the plaintiffs allege themselves to be the owners of certain lands described in their complaint, and allege that the Mormon Slough was a natural stream of water flowing through their lands. If you believe from the evidence that the Mormon Slough was a natural stream of water, and that the water would have flowed through their lands but for the diversion of the natural flow of that water by the defendants, the plaintiffs are entitled to a verdict for whatever damages they may have sustained to their crops, provided they were prepared to use the water, and had made the necessary preparations as they have alleged in their complaint. The measure of damages in this case is the amount of injury to the crops described in the complaint by the act of the defendants in diverting the natural flow of the water, if they did divert it. If, however, the plaintiffs received no damage by any act of the defendants, or they did not divert the natural waters of this stream to the injury of the plaintiffs, then your verdict will be for the defendants." To this paragraph the defendants excepted; and objected on the appeal that it assumed the fact of diversion; that it in effect directed the jury to find a verdict for damages to plaintiffs' crops, no matter from what cause the damages originated; and that it did not give the correct rule of damages.

The supreme court held that these objections were without any foundation; that the instruction did leave the question to the jury whether defendants had or had not diverted the water; and that the trial court was not bound of his own motion to state any rule of damage to the jury, but the defendants must request him to lay down such rule as they claimed to be the true one, and if he refused, then they could except to his refusal. The defendants requested the trial court to give the following instruction, which the judge refused to give: "A riparian proprietor who takes water from a channel in which it naturally flows, has no legal right to take it beyond his own land before returning it to its natural channel. So, if the jury believe from the evidence that the natural waters of the Calaveras river and Mormon channel would have flowed in the main Mormon channel (i. e., the north channel which plaintiffs dammed up) after plaintiffs had built their dams, unless diverted by said dams or other means, and if the jury further believe from the evidence that plaintiff's dam in the main channel (i. e., the north channel) of Mormon slough was not built on their own land for purposes of irrigation, but on the land of one Murphy, whose lands did not adjoin the land of plaintiffs, and unless the jury believe from the evidence that the proprietors of intermediate lands consented to the diverson of said natural water from the main