no rights to the use of water by prescription, for that implies either the absence of all law on the subject, and therefore no violation of law, or else that the user has been in accordance with or in subordination to the law provided on the subject, and without adverse interference for the period of time required by law to create the right.

It was found that corporations had been organized for carrying on business under some of the heads not specified in the corporation law of 1850, and before the corporation law was extended so as to cover the topics (all of which have already been pointed out), as well as to modify or enlarge the scope of their business, it was considered by the Legislature necessary to pass a general law by means of which corporations so situated could cure such defects in their articles of incorporation. Accordingly the Act of March 1, 1870 (Stat. 1869-70, p. 107), was passed. But how many of the prematurely formed corporations availed themselves of the privilege granted? Very few indeed, for most of them considered this Act of itself curative, like the law of April 22, 1858, in its application to water companies organized to supply cities with pure, fresh water-organized before there was any law authorizing it.

The next change of law that we find bearing upon irrigation by corporations is the Act of April 2, 1870 (Stat. 1869-70, p. 660), which was an effort to make general in its application to corporations the principles of the law of 1862, and define more specifically the mode of proceeding for acquiring the right of way for canals or ditches; but it gives them no greater facilities for acquiring the use of water, nor does it point out by what process they are to acquire it, or how they are to determine the quantity of "waters not previously appropriated." No further changes occurred in the laws by which corporations could gain any control over or acquire water for irrigation until the adoption of the Codes on January 1, 1873; and this is the first time that the mode is definitely laid down by law for acquiring the use of water, except by the law of 1854, and the Acts amendatory thereof.

But the rule of the Codes is not allowed to interfere with or supersede this law of 1854 and its amendments, for they are specially retained and protected, as already pointed out, by Section 19 of the Political Code; and whoever, whether individual or corporation, desires to operate under the Codes in the counties named in the Act of 1854 (if they can at all), must come under subjection to the control of the " Board of Commissioners" in order to get any water. So far as the people or public are concerned, it makes very little difference who builds the ditches, but it would make a great difference indeed if a corporation financially strong enough to build a ditch of sufficient capacity to carry all the water of a stream, would therefore be entitled to appropriate it all by designating the size of the ditch and turning the water into it; and it is very evident, I think, that the Legislature never contemplated any such result from a fair operation of the law of the Codes, or the previous corporation laws of 1862 and 1870.

In 1872, April 1 (Statutes of 1871-2, p. 945), the Legislature attempted to provide another system for irrigation or drainage, called the district system, whereby the lands susceptible of one mode of irrigation or drainage could be managed by the owners of the property independent of other control. The operation of this law has been confined to the drainage of swamp lands, so far as known, and yet for the purpose of obtaining the necessary capital for constructing canals, dams, reservoirs, and keeping the same in repair, there has not been devised a more simple and effective mode. Its provisions for the construction of the works are far better than those of the law of 1854. But in the matter of regulating the distribution of the water, and keeping the control thereof free from individual or corporate influence, it does not begin to compare with it, and no law will compare with it which fails to recognize as a fundamental principle that the use of running water, when irrigation is necessary for the welfare and maintenance of a community, is the common property of all the people, and should not be reduced to private ownership any more than the air we breathe or the light that shines upon us.

There is no intimation in this law, any more than in the laws of 1862, 1870, or in the Codes, that this Act was intended to, or could operate in any of the counties named in the Act of 1854, conjointly with said Act. As with the other Acts, so with the law of 1872, there is too much difference to permit of harmonious operation of the two laws in the same county, and I do not think it was intended that they should so operate, or the first Act would have been repealed in express terms. But the law of 1854, so far as it related to or affected the County of Los Angeles, was repealed on the tenth day of March, 1874 (Stat. 1873-4, p. 312), and never modified before in its general application. This law was modeled somewhat after the law of 1872, for raising the funds for constructing the canals, dams, and reservoirs, that might be deemed necessary, and after the law of 1854, for the distribution of the water. But it was so loaded down with machinery for official government and management that it did not meet the favor of the people; they did not adopt it cordially, and there is not to-day an organization operating under it. It did, however, enunciate in clear and unmistakable terms the principles lying at the foundation of the law of 1854, and which must eventually govern in the distribution of water for irrigation, as provided by the Constitution of 1879, whenever the Legislature is fully aroused to the importance of the subject in preparing a comprehensive and practicable law for the future welfare of the State, viz. (p. 318): "All waters from rains, rivers, or streams, which can be applied to irrigation purposes, are hereby declared the property of the people, to be held for their use, and so utilized as to confer the greatest possible good upon the greatest number." "And to this complexion must it come at last," however our Judges may rule in the matter, or however persistently individuals or corporations may cry vested rights in an element that by nature is as free as the air which we breathe.

[Third Article.]

IRRIGATION AS AFFECTED BY AND AFFECTING RIPARIAN RIGHTS.

It is not an unusual thing to hear lawyers and even Judges say that they dislike to have anything to do with suits involving questions of State or United States land laws, because the practice is a specialty, and no one can predict with any degree of certainty what the result will be. It cannot be reduced to the certainty of a mathematical demonstration. However true this may be concerning land laws in California, there is even more uncertainty as to results when they undertake to unravel the mysteries of the laws of "riparian rights;" not as applied to the rights of owners to use and retain control over the land along the bank or banks of the stream, for as to that there is no dispute, but as to the nature or extent of their right to use and divert the water which is accustomed to flow in the streams.

The opinions of people in general on any given subject conform usually to what was regarded as the law where they came from, and are therefore as different or diversified as the climatic and topographical condition of the country; for these variations determine, in a great degree, the necessities of the people, and the laws resulting therefrom must vary to meet their demands. Uniformity of laws cannot be expected in States or localities where the natural conditions are totally different. If uniformity of climate and topography could exist all over the land, its division into different States and Territories would not be a matter of necessity but of mere convenience; a multiplicity of Legislatures would be useless; one only would be required to enact laws common for all the people, applicable alike to all parts of the country.

The term "riparian rights" is one that is in common use all over the world where the "civil law" governs, or where the "common law" prevails. Its primary signification is "right to the bank of the river, and, as an incident, to the use of the river in connection therewith:" and we find rivers or streams everywhere, and generally people living on their banks, reducing the land to private ownership and making use of the rivers-using one or both to supply the wants of nature. From this general use has arisen the expression "riparian rights," denoting a claim or a right to use the rivers in their whole length by the people who live along the banks and need them.

The first rule which obtained concerning the use of rivers was, that in order to supply the common want of water for man and beast, they must be allowed to run from source to outlet as they exist or are accustomed to run, with no more or less interruption than nature has produced. This rule was soon infringed upon, for it was found that nature's wants extended beyond the use of water for drinking purposes or cooking, and that it could be utilized, or harnessed, as it were, and made an auxiliary in supplying man's wants without detriment to any one. Hence we find in very early times that in England, France, Germany, and other northern countries, the use of the rivers for mill power was permitted, and became recognized as a "riparian right," yet so restricted as not to allow damage to be done by such use to the owners of land above or below on the same stream, or to interfere with their use of the water. But in arid countries we find the use of water extended still further, as in India, Egypt, southern Europe, and the Spanish colonies in North and South America. Wherever there is a scarcity of rain for vegetation, there the use of water for irrigation is not only permitted, but encouraged by laws which deny to the proprietors of land on the banks of the rivers the exclusive ownership of the water accustomed to flow over or through their land. The laws of these countries step in and take into consideration the general necessities of the whole people, making their interest paramount to that of the riparian owner, or of any special class.

California was one of these Spanish colonies, and it is through this channel, rather than through the English "common law," that we should look for the necessary customs, rules, and laws applicable to the wants of a people settling in a country where for six or seven months in the year there is scarcely more than a passing shower. When we investigate this subject as to the older States of the Union whose origin was English, we find a close adherence to the English "common law of riparian rights, and a marked absence of all statutory laws for the guidance of the people or the Courts; yet, in examining the decisions, we occasionally find gradual yielding from the strictness of the common law principle towards permitting the use of water of streams not navigable, for more than supplying the natural wants and mill power. In Maine. Connecticut, and Massachusetts, though not in New York, its use for watering meadows was sustained by the Courts, but not allowed for general cultivation. So, too, in Illinois its use for such purpose was permitted, on condition that a quantity of water necessary for supplying the natural wants of the people below on the same stream was left unimpaired. But even in that case the Court held that "where all have a right to participate in a common benefit, none can have an exclusive enjoyment; no rule, from the very nature of the case, can be laid down as to how much each one may use without infringing upon the rights of others."

By the Roman law, running water, light, and air were put in the same category as common property, res communes, and could not be reduced to private ownership. The only deviation from this principle in England, under the "common law," is the use of the stream for mill power, in connection with the grinding of grain or in manufactures, and a similar departure extended to all the English colonies in America. But even in the use of the stream for mill power, the claimant of such right is bound to so use it as not to interfere with a similar use by others above or below him, because each owner of land along the stream is entitled to an equal use thereof without diminution in volume or velocity, as these two factors determine its availability for mill power, and they are his to the full extent of his frontage boundary, but no

farther.

If this is a correct statement of the "common law" as to the extent to which a riparian proprietor can use a stream passing over or through his land, then it is evident that the right to use the water of a stream for irrigation is not an outgrowth of the "common law." But the "common law" is the law of the United States, except where the Constitution and statutory laws of the United States or of the State have superseded or modified it. Irrigation, therefore, as practiced in California, cannot be a riparian right or an outgrowth of the "common law," nor does it receive any countenance from it whatever.

Where, then, do we find any sanction for irrigation in California as a riparian right? We must look either to the laws and customs of the country from which our State was obtained, or else to the statutory laws of California passed since it became a State. It is true that Congress passed a law on July 26, 1866, general in its application to all territory or land owned by the United States, declaring "that whenever by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of Courts, the possessors and owners of such vested rights shall be maintained and protected in the same." But this law gives no protection or rights to those who ignore State laws already provided for irrigation as early as 1854, nor can it extend over other than United States lands. Its provisions are all in subordination to the laws provided or the customs sanctioned by the State; and it is a complete recognition of the right of the State to regulate by law, as to it may seem best, the use of water for any of the purposes named. It is legislative action, setting aside by the United States the "common law" principles governing the use of water.

California before it came into the Union as a State was not without law, as is well set forth by Brevet Brigadier-General B. Riley, Governor of California, in his proclamation of June 3, 1849, calling for a convention to form a Constitution for the State. He there says: "The laws of California, not inconsistent with the laws, Constitution, and treaties of the United States, are still in force and must continue in force till changed by competent authority." It then becomes important to ascertain what were the laws in California on the subject of irrigation when it came into the Union as a State, as well as the modifications which they have undergone since. By the laws of Spain, "water, lands, and mines belonged to the King as part of his patrimony, and to the Prince belongs the right of distribution of water-that being his right, and reserved to him, it is a legitimate inference that no one can take public waters upon his private grounds for irrigation without royal permission, more particularly in what is peculiar to New Spain." And by the decree of October 15, 1754, all the necessary instructions respecting land and water were therein set forth. (See Hamilton's Mexican Law, page 111.) This work is well worth examining on the law of water rights, the rules governing its distribution for irrigation, and the mode of measuring the water. We there learn that "when the water supply is found insufficient to meet the requirements of those interested, resortment is had to distribution by turns, some using in the daytime and others by night, or in any other way which may be agreed upon. Because what belongs to the whole public should be so controlled that all may have a share in the distribution according to the canonical regulation."

The fundamental principle of the Spanish and Mexican law concerning the use of water is, that all running water having banks, or confined within banks, whether navigable or not, is the property of the King or the State, and must remain a reservation for the common use of all the people, except where he makes a special grant of the water as such.

The Spanish and Mexican laws say, on this subject, that a "servitude of water cannot be acquired by the fact of being a natural watercourse, nor by using it, although it may have been flowing on the lower part of the land for a thousand years; and for no other reason than from the inherent right of self-preservation and the natural course of things in respect to said water. No right thereto shall be attributed unless not only the law, but the highest will (that of the King) also concur therein." (Hamilton's Mexican Laws, page 115.) Where, then, do Mexican grantees find law giving them exclusive rights as riparian owners, and where can the foundation be laid for a claim by prescription as against the law and without the sanction of the King or State?

Now, leaving the Spanish and Mexican law, let us examine the water question in a State and Territory, once Mexican but now American, as regulated by their Legislatures since they became a part of the United States, and it will be found that by legislative enactment the same principles which obtained under the former government have been perpetuated under ours, thus showing that the control of water for irrigation is not subject to the will or caprice of individuals, or that the first appropriators thereby acquire a title to it in fee over others coming after them, whose need of it may be equally as great.

The General Laws of New Mexico, Act of July 20, 1851, say:

"Section 1. All the inhabitants of the Territory of New Mexico shall have the right to construct either private or common acequias (ditches), and to take the water for said acequias from wherever they can, with the distinct understanding to pay the owner through whose land said acequias have to pass, a just compensation taxed for the land used.

"Sec. 2. No inhabitant of said Territory shall have the right to construct any property to the impediment of the irrigation of lands or fields, such as mills or any other property that may obstruct the course of the water, as the irrigation of the field should be preferable to all others." Section 9, Act of January 7, 1852: "All rivers and streams of waters in this Territory formerly known as public ditches (acequias) are hereby established and declared to be public ditches." By reading the general laws of New Mexico from pages 15 to 23 inclusive (all relating to irrigation and placed there as the first subject of legislation because of its impor

tance), our legislators may learn some lessons beneficial to themselves and to the people of the State, if adopted in principle and practice.

Now let us turn to the general laws of Colorado and we will find as follows, on page 515, Chapter 45:

"Section 1. All persons who claim, own, or hold a possessory right or title to any land or parcel of land within the boundary of the State of Colorado, as defined in the Constitution of said State, where those claims are on the bank, margin, or neighborhood of any stream of water, creek, or river, shall be entitled to the use of the water of said stream, creek, or river, for the purposes of irrigation and making said claims arable to the full extent of the soil for agricultural purposes. "Sec. 2. When any person owning claims in such locality has not sufficient length of area exposed to said stream to obtain a sufficient fall of water to irrigate his land, or that his farm is too far removed from said stream, or that he has no water facilities on those lands, he shall be entitled to a right of way through the farms or tracts of land which lie between him and the stream, or the farms or tracts of land which lie above or below him on said stream, for the purposes herein before stated.

"Sec. 4. In case the volume of water in said stream or river shall not be sufficient to supply the continual wants of the entire country through which it passes, then the County Judge of the county shall appoint three Commissioners, as hereinafter provided, whose duty it shall be to apportion, in a just and equitable proportion, a certain amount of said water upon certain or alternate weekly days to different localities, as they may, in their judgment, think best for the interest of all parties concerned, and with due regard to the legal rights of all."

Nothing could be more simple and comprehensive in its application to the wants of all the people, giving to each, wherever his land may be situated, a right to share in the use of water in common with his neighbor more favorably situated near the stream. "Mine and not thine" has no place in the laws of Colorado and New Mexico in giving exclusive right to the first appropriator of water. We trace their laws on the subject of irrigation to the same common origin as our own law of May 15, 1854, viz., to the laws of Spain and Mexico, and not through the "common law" of England; and none could know better the character of the country and the wants of the people in the southern part of our State than those who aided in passing the law of 1854, which is equally comprehensive in providing for the wants of the people for all coming time as the laws referred to.

By the term " riparian rights," as used in Colorado and New Mexico, and other countries of Mexican origin, they mean the common right of all the people living in the vicinity of the river to share equally in the use of the water, first for satisfying their natural wants, and after that for their artificial wants, such as irrigation and mill power. But no idea of exclusive control over or ownership in the water as a superior right or title in fee can be found, except where the evidence is clear that a special grant of the water, as water, and not as an accident to the land, was obtained from the King or sovereign power; and this cannot be shown, I think, in connection with any of the Mexican grants in California, except to some of the pueblos.

The substitution of the authority of the United States in California in place of that of Mexico, undoubtedly introduced and made the "common law" paramount before the State was estab lished and laws therefor were created; but by Articles 8 and 9 of the treaty of Guadalupe Hidalgo, property rights of every kind were to be inviolably respected, and therefore the change of governments neither enlarged nor diminished the rights of grant-holders to the use of water for irrigation. If, therefore, the Mexican law did not give persons living on the banks of streams any superior or special privileges as riparian proprietors, different from what they in common enjoyed with others, neither did nor could they acquire any greater rights under the "common law" during the interim between the acquisition of the country and its erection into a State; for under that law, as already shown, no right to water for irrigation was ever granted or could attach. Therefore when we find the term "riparian rights" used in any of the laws modifying the law of 1854, which did not contain any such expression, we have no authority for attaching to it any greater import than it could or did have under the Mexican law or "common law," unless some special or different meaning has been given to it by statute, and none such is found in the Codes. Those who claim superior or exclusive rights because they are riparian proprietors, must either consider themselves fully sheltered behind the general ignorance which prevails as to the meaning of the words, or they must rely upon the inability of their neighbors to fully test the extent of their meaning.

My object in writing these articles has been to call attention to the necessity of providing some general law on the subject of irrigation, and to show that no vested rights have been acquired by individuals, by corporations, or by riparian proprietors, prohibiting the Legislature from enacting, as did the Legislatures of Colorado and New Mexico, a general practical law on the subject, suitable for the wants of the people in a growing State and for all time. I fully believe that whatever doubts existed as to the authority of the Legislature to enact laws on this subject, establishing a common standard for all, that the present Constitution has brushed away all such obstacles, as pointed out in my first article. This view is strengthened by the recent decision of the Supreme Court of this State in the case of the Spring Valley Water Works vs. the Board of Supervisors of San Francisco, wherein they define the power conferred by the present Constitution over the water question in all its phases.

I have not aimed at pointing out what the legislation on this subject should be, but merely to show that the Legislature has entire control over the subject, and that its importance demands the serious consideration of the Legislature at as early a day as possible. The particular character of the legislation required comes especially within the province of the State Engineer,

Wm. Ham. Hall, and I would call particular attention to said officer's report of 1881 to the Legislature. He has therein elaborately treated the subject of irrigation, and pointed out what he considers necessary to be done as preliminary to final legislation. Whether or not his suggestions are the best that can be devised to meet the wants of the State and guard against class legislation is a debatable question, but he has furnished valuable information on the subject for the consideration of the Legislature and the public.

We agree as to what should be done were all obstacles removed, but we differ in this: He recognizes the existence of vested and exclusive rights to the use of water by prior appropriation, or that whatever the present claims may be they must first be ascertained and defined by a Board of Commissioners or the Court, then be recorded and made a servitude for the specified quantity of water so found for all time, before intelligent legislation can be had on the question; while I hold that the right to control the water question has always been a reserved power of the State, and that the use of water for irrigation is and never has in this State been more than a usufruct, a mere lease of the right to use, terminable at any time by the will of the people when expressed through legislative action. His proposed plan would merely require legislation to quiet title in the present claimants, virtually giving them control of the waters of the State; while my idea is, that legislation is required to bring all users to a common level without giving preference rights to favored classes, but giving to each cultivator of the soil in proportion to the land he cultivates, when there is water enough for all; or, when there is scarcity, then the distribution as to quantity shall be proportionately diminished, but no one excluded.

The importance of this matter as a State question is second to no other, and there is as much necessity for its settlement now on broad and sound principles, looking to the future welfare of the State, as there is for a determination of the debris problem, or as there once was for the settlement of the question whether stock should be allowed to roam at the will of the owner, regardless of the effect produced thereby on the small agriculturists.

JAMES W. SHANKLIN.

THE IRRIGATION QUESTION.

The Views of the State Engineer as Contrasted with those of the Surveyor-General. EDS. RECORD-UNION: I have read with much interest the articles on irrigation and riparian rights from the pen of our honorable Surveyor-General, as recently published in your paper, for I realize the importance of bringing the subject before the public, and am pleased to see this thing being done by one so competent as Mr. Shanklin.

Having been charged with an official investigation of the subject, I am not free to speak unofficially, except in so far as I have already reported; but as Mr. Shanklin, in calling attention to that which I have written and submitted, has, unintentionally, no doubt, misstated my position on the question, I venture to make a correction.

Toward the end of his third paper, in your issue of July thirty-first, after referring to my report of 1881 in a very graceful manner, and after saying, "We agree as to what should be done were all obstacles removed, but we differ in this," namely, the removal or manner of removing obstacles, Mr. Shanklin concludes: "His (my) proposed plan would merely require legislation to quiet title in the present claimants (to water), virtually giving them control of the waters of the State; while my idea is that legislation is required to bring all users to a common level without giving preferred rights to favored classes, but giving to each cultivator of the soil in proportion to the land he cultivates, when there is water enough for all, or when there is scarcity, then the distribution as to quantity shall be proportionately diminished, but no one excluded."

I make no criticism upon Mr. Shanklin's proposition, but desire to state my own position, seeing that the above interpretation is erroneous.

Being instructed under the laws to make "an investigation of the problems of irrigation," and to make such an examination as may appear to be necessary for the full and complete solution of these problems," I find amongst other things, in the irrigation counties, hundreds of claims to water existing without intelligible record of their extent, nature, or foundation. As Mr. Shanklin has explained, there have been a number of general, and local, or special laws on the subject of irrigation enacted in the State; and many decisions under these, the common law, and the United States statutes, affecting rights or claims which have been initiated under them or under the custom of appropriation, have been made by the Courts, until, as a result, there is a perfect hodge-podge of claims and counter-claims, active, sleeping, or perhaps dead, and no one can go into any irrigation county of the State and, from the records or the facts to be ascertained by inquiry, find out what claims exist, much less what rights have been established. Hence, there is a never-ending appeal to the Courts by water claimants for settlement of their disputes, and a very great distrust abroad in the safety of irrigation enterprise, entertained by those who would settle in the country as farmers and fruit growers.

I look upon this condition of things as the most unfortunate that could well obtain, and I honestly believe that it is doing more to retard the advancement of this State in acquiring a desirable population than any other one cause now operating; for I have had many opportunities of judging of the disappointment on this score which has met men of small capital who have come here in search of homes and investment, and I know of the feelings with which they have gone away.