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right of flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such a character that while it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it as it passes through his land; and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrongful or injurious a proprietor lower down, whose said just and reasonable use may often be a difficult question, depending on various circumstances. * * * It has sometimes been made a question whether a riparian proprietor can divert water from a running stream for purposes of irrigation. But that we think an abstract question, which cannot be answered either in the affirmative or negative as a rule applicable to all cases. That a portion of the water of a stream may be used for the purpose of irrigating land, we think is well established as one of the rights of the proprietor of the soil along or through which it passes. Yet a proprietor cannot, under color of that right, or for the actual purpose of irrigating his own land, wholly obstruct or divert the water-course, or take such an unreasonable quantity of water, or make such unreasonable use of it, as to deprive other proprietors of the substantial benefits which they might derive from it if not diverted or used unreasonably.' This is the doctrine uniformly recognized both in England and in the United States, and is the necessary result of the general principles universally recognized respecting running water. Whether the right to irrigate land can in this state be considered a 'natural want,' is a point in nowise involved in this case, and which, therefore, does not call for decision." In conclusion, the learned judge shows that the early decisions in Nevada and a series of cases in California have no bearing whatever upon the questions con

LAW W. R.-18

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cerning riparian rights, since they related exclusively to the appropriation of water of streams wholly public, by parties who were not riparian proprietors. It has already been shown that the California courts make the same distinction. As throwing

light upon the discussion, and as supporting his positions, the chief justice cites a long list of cases, which for purposes of reference I have thought proper to place in the foot-note.1

135. Modifications on doctrine of Van Sickle v. Haines.

The decision in Van Sickle v. Haines is subject to some modification, in respect to one of its conclusions, by the legislation of congress. The court expressly held that a patent granted by the United States to a private person, conveying the full legal title to a tract of what had been public land situated on the bank of a stream, although all the rest of the land on its banks was still public, ipso facto, and necessarily, so far as the patentee's riparian rights to the stream were concerned, cut off and annulled all rights to use the waters of the same stream as a

1 Mason v. Hill, 3 Barn. & Adol. 305: 5 Barn. & Adol. 1; Sampson v. Hoddinott, 1 C. B. (N. S.) 611; Embrey v. Owen, 6 Exch. 353; Wright v. Howard, 1 Sim. & S. 190; Davis v. Getchell, 50 Me. 602; Heath v. Williams, 25 Me. 209; Lick v. Madden, 25 Cal. 209; Blanchard v. Baker, 8 Greenl. 253; Davis v. Fuller, 12 Vt. 178; Snow v. Parsons, 28 Vt. 459; Tillotson v. Smith, 32 N. H. 90; Gerrish v. New Market Manuf'g Co., 30 N. H. 478; Ingraham v. Hutchinson, 2 Conn. 584; Parker v. Hotchkiss, 25 Conn. 321; Wadsworth v. Tillotson, 15 Conn. 366: King v. Tiffany, 9 Conn. 162; Elliot v. Fitchburg R. R., 10 Cush. 191; Tyler v. Wilkinson, 4 Mason,

397; Webb v. Portland Manuf'g Co., 3 Sum. 189; Gardner v. Village of Newburgh, 2 Johns. Ch. 163; Ex parte Jennings, 6 Cow. 518; Canal Appraisers v. People, 17 Wend. 570; 5 Wend. 423; Rogers v. Jones, 1 Wend. 237; People v. Canal Appraisers. 13 Wend. 355; Crooker v. Bragg, 10 Wend. 260; Arnold v. Foot, 12 Wend. 330; Commissioners v. Kempshall, 26 Wend. 404; Corning v. Troy Iron-Works, 34 Barb. 486; 40 N. Y. 204; Campbell v. Smith, 3 Halst. 140; Plumleigh v. Dawson, 1 Gilman, 544; Pugh v. Wheeler, 2 Dev. & B. 50; Board of Trustees v. Haven, 11 Ill. 554; Moffett v. Brewer, 1 Greene, (Iowa,) 348.

public stream acquired by prior appropriation, and held by parties who were not private riparian proprietors. The reasons for the conclusion were that the appropriation of the waters of streams running over the public lands was wholly permissive; the right of the appropriator could never become complete against the United States by adverse use, but it was a new license or privilege, subject to be revoked and abrogated at any time by the United States; and that a patent, by which the full legal title of the United States, with all of its incidents, was conveyed to the patentee, necessarily clothed such patentee with all rights over the land which had belonged to the United States, and conveyed to him the land entirely free from all claims to the water of the stream growing out of the prior appropriation and uses. On principle, and in the absence of contrary legislation, the correctness of this ruling cannot be doubted. It has, however, been modified within certain limits by a statute of congress referred to twice in a previous chapter. This statute provides, in substance, that the waters of public streams may be appropriated, under local customs and laws, for various purposes connected with mining; and that, when such appropriations have been made from the waters of a public stream, patents subsequently issued by the United States to private persons shall be subject to the rights of the appropriator, and conditions reserving or protecting such existing rights shall be incorporated into the patent.1 The result is that when the waters of a stream flowing wholly over the public land have been appropriated for a purpose recognized and protected by the statutes of congress, and a patent is subsequently issued by the United States to a private person conveying the title to a tract of land on the banks of the same stream, the patentee takes his title, and must enjoy his rights as a riparian proprietor subject and subordinate to the

1 Rev. St. U. S. § 2338.

already existing rights of the prior and actual appropriator. On the other hand, whenever the waters of a stream, flowing wholly over the public land, have not been appropriated at all for any purpose, or whenever they have been appropriated for a purpose not recognized and protected by the congressional legislation, and a patent is issued by the United States to a private person conveying a tract of land on the banks of the same stream, in either case the patentee obtains, as incidents of his title, the full and complete rights of a private riparian proprietor on the stream. His title to the extent of his right as riparian proprietor is paramount to any subsequent appropriation from the stream as a public stream; and his rights in the stream are as perfect and complete when he is the sole private proprietor on its banks as when all the lands on its banks are held by private

owners.

§ 136. Legitimate riparian uses.

Assuming, as has been shown, that the "riparian rights" of private "riparian proprietors" on natural running streams in this state of California are expressly excepted from the operation of the title concerning water-rights in the Civil Code, are wholly untouched by its provisions, and are left existing in every respect as though it had not been enacted, we are now in a position to ascertain, with more certainty and definiteness, the nature and extent of these rights, and what uses of the waters they confer upon or withhold from the "riparian proprietor."

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The series of decisions heretofore cited show most conclusively that all of the fundamental common-law doctrines concerning the riparian rights of private riparian proprietors, which were so fully and ably expounded in the Nevada case, have been

adopted by the California court, and recognized as forming a part of the California law. While the reasons for these doctrines have not been explained at such length in the California cases, and while the authorities upon which they rest have not been so exhaustively quoted, yet, upon a comparison of the various decisions, it will appear, beyond a possibility of a doubt, that all of the essential and important doctrines of the common law, as discussed and formulated by the Nevada court in the case of Van Sickle v. Haines, have been accepted and affirmed by the supreme court of California in repeated decisions. To present this conclusion in the clearest light, I give, even at the expense of repeating what has already been said, a brief summary of those decisions.

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It is held that the right of the private riparian proprietor is an incident of his ownership of land on the bank of the stream, and exists as a necessary consequence of such ownership, and does not in the slightest depend upon the fact of an actual appropriation of the water having been made by himself or by any other riparian proprietor on the same stream. The right to the water is not an absolute property in all the water, authorizing any riparian proprietor to consume it entirely; it is a right that the stream should continue to flow along in its natural channel as it has been accustomed to flow, and give the riparian proprietor the usufruct of the water as it passes along his land bordering on the stream; and this right belongs equally to all the private proprietors on the banks of the same stream, subject only to the advantage which position gives to those higher up the stream over proprietors lower down. The law recognizes cer

1 Pope v. Kinman, 54 Cal. 3; Creighton v. Evans, 53 Cal. 55; Ferrea v. Knipe, 28 Cal. 341.

2 Id.

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