hesitate. The conservative element was aroused, and said it would be better by far to submit to the decision of our highest judicial tribunal, however wrong, than to reverse it by such revolutionary methods. Immediately it was perceived that the majority of people were with the conservatives. The extra session came to naught, and the doctrines of Lux vs. Haggin remain the law of the land, with a growing feeling in the community that the Court was right after all.

I said the extra session came to nothing. That is true so far as accomplishing anything in the way of a legislative solution of the irrigation problem is concerned. But the extra session is worth much more to us than its cost, in this, that it aroused general attention to the problem and to its exposition by the Court. It is not now possible to carry through any measure connected with irrigation without the severest scrutiny and criticism being exercised. Whatever action we now take will be the result of full and intelligent discussion.

If Lux vs. Haggin

is reversed, it will not be by violent revolution or by a Court packed for that purpose. For the present it is the law of the land, and no solution of the problem can be arrived at without making that decision a most important factor in the discussion.

How will it affect irrigation? What will the law as there announced permit irrigation companies and individuals to do?

But before discussing these questions, a short sketch of the facts out of which the inevitable conflict between appropriators of water and riparian proprietors arose, is necessary. A better understanding of the facts will tend to justify the action of the Court; and also show what must be expected from our Courts and the United States Courts in any future litigation.

The American settlers in Southern Cali- . fornia, as did the Mexican settlers before them, found the climate so arid that, except in favored localities, it was necessary to lead

the waters from the streams to their gardens and orchards, if they were to obtain any adequate return for their labors. They also found that the best soils were along the streams, where, the moisture being sufficient to produce a vegetable growth, the land had, in the course of ages, become enriched by vegetable mold; while the lands farther back were sandy or rocky, and had not accumulated a soil. Therefore the only lands taken up were along the water courses; first, because water could easily be obtained from the streams for irrigation, and second, because the soil was better. Such land became very valuable. Until recent date none other in that country had any value whatever, except for sheep pastures. All settlers going into that region, all persons investing in land there, for any purpose except pasturage, bought along the streams, paying many times more therefor than

lands further back would have cost.

The same facts are true of all middle California. The present owner of a farm on a stream in the Coast valleys or in the Sacramento Valley, if he were an early settler, selected his farm because of the contiguity of that water course; and if he bought a farm with a creek running through or along its boundary, from an earlier settler or a Mexican grantee, he paid a largely increased price on account of that creek. If he sells his farm he can obtain a larger price because of the water on it.

It may not be necessary to the successful cultivation of his land that he should take the water out of the creek for irrigation, but his soil is made richer and his farm more valuable because of that water. Take any farm in California, no matter where, through or along which a stream flows, turn away the stream, and the value of that farm is greatly depreciated. The owner's property is taken from him. It is useless to argue that there can be no property in running water. Whether you call it property or not, every one must admit that it enhances, and the

taking it away depreciates, the value of the land to which it is contiguous. No process of reasoning will satisfy a man that the public ought to deprive him without compensation of the water which induced him to buy his farm, and which gives it an element of value.

Later on in the history of Southern California, and after the lands along the streams had been taken up, it was found that if water was led to the sandy and arid plains back from the water courses, in sufficient quantities to saturate them, they would yield large returns in fruits and cereals. It requires considerable capital to accomplish this result. It will not pay unless large bodies of land can be acquired, and then the nature of the porous, sandy soil is such that a great quantity of water is necessary for successful irrigation. Lands taken up along the streams, before the inauguration of those extensive schemes of irrigation, do not need anything like the quantity of water required by the lands farther back.

But there is not, ordinarily, in the streams of Southern California, under the present wasteful system, enough water to irrigate the lands of the riparian proprietors and also all the other lands to which water, by the expenditure of large capital, may be conducted. Therefore, the taking away of such a quantity of water from a stream that not enough was left for the riparian proprietor, was bound to produce a conflict. Sooner or later the interests of those along the streams, and of those who, by leading water from the stream, were making the desert to blossom as the rose," would inevitably clash. When the conflict should come, of course the riparianist would insist on his right to have the water flow in its accustomed channel whether he used it or not, and the water appropriator would say: “ My lands are a desert without water; irrigation is an absolute necessity in Southern California; you did not use the water in the stream for irrigation, and I took

it, as the first appropriator, and ought to have it."

Of course in a civilized country such a contest must get into the Courts. Society is impossible without some tribunal to which must be referred the adjudication of conflicting property interests.

It was not until such vast schemes of irrigation as have been recently started in our State, that a square, straight-out issue between the opposing parties could be precipitated. In the case of Lux vs. Haggin, the side of the appropriators was fairly represented, because the defendant appropriated the waters of Kern River before the plaintiffs used the water for any practical purpose except to water their stock, though of course their land was rendered less rich and less valuable by turning the water off. The defendant also took substantially all the waters of the river entirely away from its course to irrigate porous, sandy soil, largely taken up under the "Desert Land Act." By doing so defendant was making valuable farms, and opening up for cultivation, and ultimate sale to settlers, a large tract of country which would without the water being brought to it remain a desert. The benefit to the State of converting arid plains into a rich farming district can hardly be over-estimated. But Miller & Lux, owning lands that were watered by Kern River, naturally objected to a main element in the value of their property being taken away in order to create this farming communnity.

When the suit which they brought reached the Supreme Court, that tribunal was compelled to apply such settled rules of law to the solution of the question as have been prescribed by the legislature and their predecessors. The oath of the judges required this of them. this of them. Before judges are denounced, it should be made to appear that they have not performed their sworn duty by deciding the law as they find it. They do not make the law; they should only

Use of the water does not create the right, and disuse cannot destroy it."

All other principles of general interest announced were based on the foregoing and were, in the main, limitations upon the absolute right of the riparian proprietor to the full flow of the water in the stream.

These limitations can be separately stated. I. The announcement of the principle that " use of the water does not create the

right, and disuse cannot destroy it," produced wide-spread alarm among canal owners. The impression seemed general among what lawyers call "laymen," that under this decision any riparian proprietor could at any time, no matter how long subsequent to the appropriation of the water, enjoin its diver

sion.

This impression seems still to be quite general and is made a ground of attack upon the Court. But such is not the decision. The riparian proprietor can get no relief from the Courts unless he applies for it within five years from the actual diversion of the

water.

If A for any length of time, no matter how long, owns land on the banks of a stream, and makes no use of the water, his disuse does not forfeit or waive his right to it, and if B undertakes to divert it, A can prevent him from doing so. That is what the Court decides. But if the riparian owner takes no steps to assert his rights until the appropriator has actually diverted the water into his ditch for the period of five years, then the appropriator has acquired a right to the flow of the water by prescription, which the Courts will enforce.

In other words, the bank owner is also the owner of the water whether he uses it or not, and one taking it away is a trespasser. But what was originally a trespass ripens into a perfect right, unless the original owner within the period prescribed by the Statute of Limitations invokes the protection of the law.

Therefore, the decision does not affect

those cases where the water has been diverted for more than five years before suit brought to prevent the diversion.

This limitation of the bank owner's rights releases the large majority, in all probability, of irrigating canals in Southern California from the operation of the law of riparian ownership.

2. By Act of Congress, all patents to land issued by the United States must expressly provide that the grantee takes his land "subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under or recognized by the preceding section." (Revised Statutes, Sec. 2340). The preceding section referred to declares 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 recognized and acknowledged by the local customs and the Courts, the possessors and owners shall be protected in their rights, and the right of way for ditches and canals is confirmed to them. This provision of the statute makes an exception to the rule that a grant of land from the United States carries the right to the flow of water over it, in favor of one who has diverted the flow prior to the date of the conveyance from the United States.

same are

Under this statute, and the decisions of the Courts, any one may divert the unappropriated water from a stream, if the point of diversion is on the public land, or on the appropriator's land, and no one who subsequently acquires from the United States land along the stream has a right to complain.

The right of objecting to the diversion is limited, so far as bank owners claiming title under the United States are concerned, to those cases where the United States conveyed the land prior to the diversion.

The State of California derives its title to

all lands except tide-lands from the United States, and it is probable that the State as a riparian owner takes its title subject to the same restrictions in favor of vested water rights that an individual is bound by.

All the so-called swamp land within the borders of the State belong to it by virtue of an Act of Congress approved September 28, 1850. By this statute the Secretary of the Interior was directed to cause the swamp land in the several States to be segregated from the upland and to deliver a list of such land so segregated to the State authorities. When that is done the title of the State relates back to the date of the Act of Congress, and the State is treated in law as the owner of the land since September 28, 1850. Consequently so far as the swamp lands are concerned, (and they include a vast body of the best lands in the San Joaquin Valley), the title passed from the United States before any irrigating ditches were constructed, and therefore the State, as riparian proprietor, may legitimately prevent the diversion of

the water.

As to the school lands, lieu lands, University lands and other lands owned by the State, the same thing is quite generally true, viz. that the State acquired its title before the rights of any appropriators of water became vested.

be

But the State in prescribing a system by which the waters of flowing streams may appropriated for the purpose of irrigation has surrendered, by implication, its right of objecting, as a riparian proprietor, to the diversion of such waters. Therefore, it has been decided that the same rule applies to State lands, as by express authority of an Act of Congress applies to United States lands; viz.: that the grantee from the State takes the title to the land subject to all rights to divert water that were in existence at the date when the title, whether legal or equitable, passed from the State to him.

The Court in Lux vs. Haggin held that

though the settler, or purchaser, had not actually obtained from the State a patent to the land, yet if he had taken such steps as entitled him to the possession, and also upon making full payment to a patent, at the time of the first diversion, he would be entitled to protection.

The same rule applies to purchasers of land from the United States. The bona fide pre-emptioner or homesteader, settling on the banks of a stream, may enjoin any subsequent diversion of the water.

The Courts will undoubtedly decide, when the question arises, that where the appropriator files his notice of appropriation, and then within reasonable time prosecutes to completion his ditch or canal, and then takes the water out, that he is prior in right to the settler who did not file his declaratory statement, or his application to purchase, until after the notice of appropriation was filed, though he prosecuted matters with such diligence that he obtained his patent before the appropriator had actually turned the water into his ditch.

The United States and the State of California having both therefore surrendered their rights as bank owners in favor of the appropriators of the flowing waters of the stream, and their grantees being bound by such surrender, the practical operation of what is claimed to be the harsh rule laid down in Lux vs. Haggin is still further abbreviated.

3. The third, and probably the most important of all the limitations, is the right of every bank owner to a reasonable use of the water for irrigation, though thereby the water is taken permanently from the stream. The right of the riparian proprietor to insist that the waters of the stream shall "flow unvexed to the sea" is only applied to wrong-doers, and has no application to other riparian owners on the same stream.

Under the common law of England and of all the older States of the Union, the riparian proprietor could use the water of a stream for running his mill, or for any other