first appropriator is, to the extent of his appropriation, the owner, as against all the world, except the government. Such will be found to be the established doctrine of this court, and of the supreme court of the United States, in a great number of cases, commencing with Hill v. Newman, 5 Cal., 445, and ending with Broder v. The Natoma Water Company, 101 U. S., 274. In the last case, The Natoma Water Company, in the year 1853, constructed upon public lands of the United States, a canal through which, under a right of appropriation, it brought water, from a stream flowing upon public lands, for mining and other purposes. Several years afterwards the plaintiff acquired title to the lands upon which the canal was constructed -to one portion of them by a pre-emption settlement, made under an act of congress, passed in 1866, and to the other portion, by deed from a railroad company, under a grant to the company. Being an owner of the land, he brought suit against the water company to abate the canal as a nuisance. But the supreme court held, that the right of the prior appropriator of the water of the stream, under which the company constructed its canal upon the public lands, was a pre-existing right, which the government had recognized and confirmed; and the subsequent grantee of the lands from the government, took them subject to the pre-existing right of the company.

But an appropriation of the water of a stream flowing upon public lands, and upon lands held in private ownership, does not affect or destroy riparian rights existing in the stream at the time of the appropriation. Both rights-rights of appropriation and riparian rights may be acquired by original and derivitive acquisition; they may exist together, and be held in common as property, and each is entitled to the protection of the law. Riparian rights depend upon the ownership of land, which is contiguous to, and touches upon, a natural water-course. Rights of appropriation arise out of some law or agreement, or grant, or the presumption of a grant, arising from the lapse of the period of prescription, or by the operation of the statute of limitations. The difference between the two rights is clearly expressed by the English supreme court of judicature, as follows: "The right to the water of a river, flowing in a natural channel, through a man's land, and the right to water flowing to it through an artificial water-course, constructed on his neighbor's land, do not rest on the same principle. In the former case, each successive riparian proprietor is prima facie entitled to the unimpeded flow of the water in its natural course, and to its reasonable enjoyment as it passes through his land, as a natural incident to his ownership of it. In the latter, any right to the flow of the water must rest on some grant, or arrangement, either proved or presumed, from or with the owners of the lands from which the water is artificially brought, or some other legal origin:" 31 Eng. Rep., 771.

In the case before us, the right asserted by the defendant was not founded upon prescription, nor upon adverse possession, nor the time required by the statute of limitation, nor upon a grant, nor the

presumption of a grant. The source of the right is found in the fact that, in the year 1875, the lands, on which the right originated, were public lands, upon which the grantors of the defendant were authorized by law to enter and acquire the right. According to the claim of the defendant the right, therefore, originated in the policy of the government, as to its public lands. But if the lands did not, at the time of the acquisition of the right, belong to the government, but had passed into the ownership of riparian proprietors, then such lands were not in a condition in which any rights appertaining to them, or incidental to them, could be legally appropriated by any one without the consent of the true owners. The water of a stream running upon a man's lands, cannot be appropriated without his consent, for a private use, nor can it be taken from him for a public use, without compensation, according to the law of the land.

Whether the lands involved in the trial of the case were public lands at the time the right to appropriate the water of Kern river was acquired by the grantors of the defendant was, therefore, the question at issue in the case. The evidence before the court upon that question preponderated in favor of the defendant, because it proved satisfactorily that the right to the water had vested in its grantors by prior appropriation before the patents were issued by the state to the plaintiffs for their lands. The rights of the plaintiffs in the lands, acquired by them were, therefore, subordinate to the pre-existing right of the defendant to the water. But the plaintiffs offered to prove that the lands belonged to them, as purchasers from the state, under certificates of purchase, which they held as evidence of ownership, at the time the grantors of the defendant originated their right. But the court excluded the evidence, and that, I think, was a material error, for which the order should be reversed.

Ross, J., DISSENTING. As I am unable to concur in the judgment of the court or in the reasons given in support of it, I think it proper, in view of the great importance of the main question involved, to state the grounds of my dissent.

In effect, the conclusion reached by the majority is, that the grantee of any legal subdivision of the public lands of the United States or of the state, through or along which a stream of water flows, is lawfully entitled-at least as against any one not a riparian proprietor or previous appropriator-to have the water continue to flow in its natural channel undiminished in quantity and unaffected in quality. In other words, that as against such grantee there can be no such subsequent appropriation of any of the water of such stream as will reduce the natural flow in quantity, through however much public land the stream may flow before reaching the subdivision granted. This, of course, is conceding that the court below should have allowed the plaintiffs to have put in evidence their certificates of purchase, some of which ante-dated the appropriation under which the defendant claims, and concedes, further, that the

certificates of purchase conferred upon the plaintiffs the same rights with respect to the water in question as would have been conferred by patents, and that the lands of the plaintiffs, border upon the stream from which the diversion complained of is made; I assume all this because, from the view I take of the main question, those matters become immaterial. The validity of appropriations made prior to the grant from the state or the United States, I understand to be conceded in the opinion of the majority. Although numerous contests with respect to water have arisen and been adjudicated by the supreme court of this state as well as by the supreme court of the United States, neither court has heretofore been cailed upon to decide the precise question now at issue. But the principle which, in my opinion, should control its determination, has been uniformly held by both tribunals. The doctrine that the water of a stream must continue to flow in its natural course undiminished in quantity has been so far modified in states with the climatic conditions of Massachusetts and Illinois as to permit the diversion of water for the purposes of irrigation, where the quantity of the stream is necessarily diminished by at least the quantity absorbed in the irrigation of the land upon which it is put. Especially should this be so in California, where, in a great part of the state, water is its very life-blood. Every practical man must know that, with the dry atmosphere and porous soils of those sections requiring irrigation, but little, if any, of the water diverted and used in irrigation is or can be returned to the stream from which it is taken. To establish, therefore, as the law of this state that the water of a watercourse must flow on in its natural channel undiminished in quantity would in effect be to convert the fertile fields, gardens, orchards and vineyards in many and great sections of the state into waste and desert places. Such a rule is inapplicable to the condition of things existing here. The common law is supposed, and has been said to be the perfection of human reason, but it would be the very reverse of this to hold that the waters of the streams of California must continue to flow in their natural channels until they sink into the sand or waste themselves in the sea, while orchards, vineyards and growing crops, of immense, if not incalculable value, perish for thirst. In the case of The People v. The Canal Appraisers, 33 N. Y., 482, the court of appeals of New York quoted with approval this language of Judge Bronson: "I think no doctrine better settled than that such portions of the law of England as are not adapted to our condition, form no part of the law of this state. This exception includes not only such laws as are inconsistent with the spirit of our institutions, but such as were framed with special reference to the physical condition of a country differing widely from our own. It is contrary to the spirit of the common law itself to apply a rule founded on a particular reason to a law, when that reason utterly fails, cessante ratione legis, cessut ipsa lex." And in McClintock v. Bryden, 5 Cal., 100, this court said: "The wants and interests of a country have always had their due weight upon

courts in applying principles of law which should shape its conditions; and rules must be relaxed, the enforcement of which would be entirely unsuited to the interests of the people they are to govern." In the case of Atchison v. Peterson, 20 Wall., 511, the su preme court of the United States held that as respects the use of water for mining purposes throughout the Pacific states and territories "the doctrines of the common law declaratory of the rights of riparian owners were, at an early day, after the discovery of gold, found to be inapplicable or applicable only in a very limited extent, to the necessities of miners and inadequate to their protection. By the common law," said the court, "the riparian owner on a stream not navigable, takes the land to the center of the stream and such owner has the right to the use of the water flowing over the land, as an incident to his estate. And as all such owners on the same stream have an equality of right to the use of the water, as it naturally flows, in quality, and without diminution in quantity, except so far as such diminution may be created by a reasonable use of the water for certain domestic, agricultural, or manufacturing purposes, there could not be, according to that law, any such diversion or use of the water by one owner as would work material detriment to any other owner below him. Nor could the water by one owner be so retarded in its flow as to be thrown back to the injury of another owner above him." In the subsequent case of Basey v. Gallagher, 20 Wall., 682, the court held that the views expressed and rulings made in the case of Atchison v. Peterson, "are equally applicable to the use of water on the public lands for purposes of irrigation."

It has never been held by the supreme court of this state, that the waters of the non-navigable streams of the state are not subject to diversion for the purposes of irrigation. On the contrary, the right so to divert them has been frequently upheld. The latest case upon the subject is that of the Anaheim Water Company v. Semi-Tropic Wr. Co., 12 P. C. L. J., 158.

In the case at bar no question arises as to the rights of grantees of Spanish or Mexican grants, or their successors in interest, through or along whose land a stream of water flows, either as between themselves or others. The question here is between a purchaser of a part of the public land of the state, derived from the United States, and an appropriator of water upon the public lands of the United States. From the foundation of the state, waters pertaining to the public lands of both the federal and state governments have been appropriated and used for mining, agriculture, and other useful purposes. Such appropriation and use was first sanctioned by custom, next by the decisions of the courts, and finally by legislative action on the part of the United States as well as the state. It thus became a part of the law of the land, of which every citizen was entitled to avail himself, and of which every purchaser from the United States, as well as the state, was bound to take notice. In protecting, therefore, the rights of appropriators of water upon the public lands of the state and of the United States, no wrong is done to the pur

chasers from either government. That, from the very beginning, it has been the custom of the people of the state to divert from their natural channels the waters of the streams upon the public lands and appropriate the same to the purposes of mining, agriculture and other useful and beneficial uses, is a part of the history of the state. That such diversions and appropriations have been, from the earliest times, recognized and sanctioned by the supreme court of the state, is equally true. Numerous cases attest this fact: Irwin v. Phillips, 5 Cal., 140; Tartar v. The Spring Creek Water and Mining Co., Id., 397; Conger v. Weaver, 6 Cal., 555, are among the earliest. In Hill v. King, 8 Cal., 338, Chief Justice Murray, who dissented in Conger v. Weaver, used this language: "The right to appropriate the waters of the streams of this state, for mining and other purposes, has been too long settled to admit of any doubt or discussion at this time. Some of the older English authorities held that a right to water might be acquired by a riparian proprietor, by appropriation, and this court might, with propriety, have maintained the rights of water companies on the ground that they were riparian owners; but it has based this right on the ground that the legislation of the state has given to every one, not only a privilege to work the 'gold placers,' but also to divert the streams for this and other purposes. The legislation of the state has been held to amount to a general license to all,' (whether properly, is not for me to say, the point having been decided by a majority of the court against my own opinion-see Conger v. Weaver, October 2, 1856), 6 Cal., 548, and when these ditches have been constructed they are regarded as a franchise or easement, belonging to the proprietors, and are entitled to protection as any other property." In Irwin v. Phillips, supra, after stating that a system of rules had been permitted to grow up with respect to mining on the public lands by the voluntary action and assent of the population, whose free and unrestrained occupation of the mineral region had been tacitly assented to by the federal government, and heartily encouraged by the expressed legislative policy of the state, the court said: "So fully recognized have become these rights, and without any specific legislation conferring or confirming them, they are alluded to and spoken of in various acts of the legislature in the same manner as if they were rights which had been vested by the most distinct expression of the will of the law-makers." The California reports abound with cases to the same effect: McDonald v. Bear River Co., 13 Cal., 232; Ortman v. Dixon, 13 Cal., 38; McKinney v. Smith, 21 Cal., 381; Smith v. O'Hara, 43 Cal., 374; N. C. and S. C. Co. v. Kidd, 37 Cal., 314, and Rupley v. Welch, 23 Cal., 455, are among them.

It is true that in none of these cases was it a question of right between a grantee of either the federal or state government, and an appropriator of the waters. But the cases are cited to show that from the foundation of the state government the people of the state have been accustomed to do that which, according to the rule of the common law, they could not have done, namely, to divert and