THE physical features of California are such, that if the law governing the State does not sanction the appropriation of water by diversion to beneficial uses, as opposed to what are called riparian rights, it is a matter of serious regret. It is more. It is a pressing question whether there be not apt and judicious means by which the law may be brought into harmony with public interests.

The waters of this State are irregularly and scantily supplied by precipitation. Aside from the bays and principal rivers, not available for irrigation, these waters, in their natural state, run through steep, crooked, and rocky cañons to the plains, where they become broad, shifting, shallow streams, often dry, and spread out into swamps, or shallow lakes, the surfaces of which are ordinarily so far below the surrounding country as to be unavailable for reservoirs. The water in these lakes and swamps becomes fetid, fever-breeding, generating swarms of noxious insects, and their neighborhood uninhabitable. These depositories of slimy water can only be drained. by intercepting the water which flows toward them in the shallow, scanty streams, which the California vocabulary, for want of a better term, names rivers. These lakes and swamps, to be found in our great plains, are the mere overflow of the streams in the high water of Spring, when the snows on the mountains melt with the increasing heat of the sun. At other seasons, they shrink in their beds underexcessive evaporation and from absorption, uncovering their dish-like approaches for miles, on which rank tules grow and rot. The air is poisoned by the exhalations, during the hot season, for miles around; the water turns a light coffee color, and the neigh borhood becomes frightfully unwholesome for man and beast.

If the supply of water from precipitation were greater, and regular, lasting through the year, as in England, the inlets to these lakes would be strong, navigable rivers; the

lakes would be deep, clear, and unvarying in size; the swamp would cut out into deep outlets, carrying sparkling waters to the ocean, and freighted with inland commerce. The present nuisances would disappear, for the region about the lakes and swamps would be changed from its natural pestilential condition to salubriousness.

But we cannot have this greater and regular supply of water from rain and snow. Our climatic conditions forbid it, and will do so for all time. We depend for the little precipitation we get upon the trade winds, which, when conditions, uncertain as the winds, are favorable, send to us in grudging quantities the moisture which tends to make the State habitable. Whatever the direction of the wind in England, it traverses high seas ordinarily in commotion from storms. The isle is drenched at all seasons, except occasionally in some of the Spring months, and is liable during those months to rain enough to make a feature in a California "wet season."

In consequence of this feature of our climate (so strongly in contrast with that of England, whence comes the doctrine of riparian rights), when our people began to settle the valleys of this State, they found these swamps and swampy lakes, which Nature had already fashioned. In the progress of settlement, the question has arisen, Is it necessary or right to keep forever these polluting areas, or can engineering science and public necessity obviate them? The soil under the thin layer of water in the lakes is rich; may it be made cultivable? Homes may be made in the region now too unhealthy for any population; shall the State be allowed to improve? Enterprise stands ready to create taxable property there; is there a law which forbids

The method of redemption is plain, if there is not something in the law to prevent its use. We repeat, that the problem is to get the water out of depressions in the val

leys too low for ordinary drainage. Thus, Tulare Lake is the overflow from King's River. It has no outlet, unless the overflow from King's River becomes so great that the surface of the lake rises high enough to send the water back through the same river to an outlet in the San Joaquin. Kern and Buena Vista Lakes are the overflow from Kern River, a sumpage ground in Spring. The water, when there is enough of it, flows into Buena Vista Slough, and thence south into the lakes. If the lakes get full enough, the water flows back through Buena Vista Slough to Buena Vista Swamp, where it is spread out and lost. Under such conditions, it is obvious that there can be no drainage of Tulare Lake through King's River, or of Kern or Buena Vista Lakes through the Buena Vista slough or swamp. The great body of the water is condemned to fester and dry up in the hot sun of that region, with the effects described. But the waters of King's River, on their way to Tulare Lake, and those of Kern River, on their way to Kern and Buena Vista Lakes, may be intercepted, and the water be used for irrigation on the parched plains; and then the lakes and swamps will permanently dry up, their beds be given to fertility and man, their noxious insects disappear, their fevers vanish, and prosperity take the place of desolation.

This is one side of the problem; but there is another and more important one. The great valley of California lies between latitude 34° 50′ near Fort Tejon, and 40° 40′ near Shasta, giving an extreme length of four hundred and fifty miles, and an average width of forty miles, including the foothills. It lies between the Coast Range and the Sierra Nevadas, and within the cup of the mountains lies an area of fifty-two thousand two hundred square miles, equal to half of all the Middle States. In this great valley are millions of acres of land, possessing all elements of fertility except moisture, a climate agreeable in winter, hot and desiccating in summer, and yet not enervating nor unfavorable to industry. Under the stimulus of water, from fifty to eighty bushels of wheat per acre have been produced, and forty-five

bushels of barley as a volunteer crop. Five crops of alfalfa have been grown in one year, yielding an average of fifteen tons per acre. From the farthest bound of the Colorado desert to the headwaters of the Sacramento, is a region to be benefited by irrigation; and one-half of it, approximating in fertility to that above described, is absolutely sterile without it. This part lies, year after year, as it has done since the mountains took their present form, dreary, dead, and forbidding, except in comparatively limited areas, where a system of irrigation has been adopted, changing sightless deserts into scenes of perennial loveliness. The traveler through Tulare, Fresno, Kern, Stanislaus, Merced, Los Angeles, and other southern counties, may see, lying side by side, desert tracts, parched and burnt like the Sahara, and oases of wondrous beauty, whereon tropical fruits flourish in the vicinity of grain crops; where rich meadows feed innumerable herds of cattle, horses, and sheep. A few years ago the oasis was desert. What magician has changed so much for the better? Redemption was effected by bringing the fugitive and scanty water of the streams to these lands, and thus quickening them into life. As the area of irrigated land has extended, all branches of business have become enlarged. A great wool clip, raisins, wine, and brandy, oranges and other tropic fruits, countless herds of cattle fattened for home and foreign markets, growing villages and cities, pleasant and numerous homes, all attest the benefits accruing from irrigation. A great trade has sprung up, to the advantage of Los Angeles, San Francisco, and the whole State. This is the result from the irrigation of a few hundred thousand acres of land, to water which ditches and canals thousands of miles in length have been constructed and maintained at a cost of some $100,000,000. It is calculated by engineers that the water of our rivers, available for the purpose, will be sufficient to extend irrigation to many millions of acres which now are absolutely useless, but which will then be as fertile as the Nile Valley after a swelling of the sacred river.

These facts show the relation of irrigation,

or the appropriation of water to useful purposes, to the problem of draining the pestilential lakes and marshes of the State. By constructing reservoirs in the mountains to catch the surplus water, and by intercepting the water on its way to the stagnant pools which naturally receive it, and where it is wasted by evaporation, and by spreading it out over desert lands, the swampy lakes and morasses are dried up. and become the scenes of agricultural prosperity, while thriving farms are created on the deserts to embellish and enrich the State. Works of irrigation and for reclaiming marsh lands go together in all old countries where either are needful.

If it be true that the Legislature has been so improvident in its laws that the people of the State are powerless to dry up their swamps and fertilize their deserts, then the population of the State is too large, and its prosperity is built on so insecure a basis that a collapse is impending. If this be true, the colonies of Fresno, Anaheim, Riverside, etc., have chosen the wrong State for their settlements. The farmers who have created cultivable land in Tulare Lake must soon see their possessions engulfed in the returning waters. The prosperous farms in the deserts must return to their original sand heaps. The verdant crops that beautify a broad region must die, and the herds that feed there must die with them, or be driven away. Towns must dwindle to villages, and villages and homesteads disappear. All industries built upon irrigation must perish when irrigation ceases, and future improvements conditioned upon irrigation be denied. These propositions are so simple that they are axiomatic. They are founded in the experience of all arid countries. All our libraries contain shelves full of books illustrating them.

It may well be supposed that this people will not submit to such consequences without an earnest attempt to avert them. It can hardly be anticipated that they will accept the destruction of such solid interests, upon the fiat of four Supreme Judges, when three other members of the same respectable tribunal dissent, and say the majority is mis

taken in its law. By our form of government, there is an appeal to the people from all executive or judicial action. By making the judiciary elective, the Constitution devolves the duty upon the people of determining as to the fitness of judges, and makes these directly responsible to the people. Many old school thinkers have objected to this feature of modern constitutions, but it has survived all attacks, and is now firmly rooted in public policy. By that policy, the people have opportunity to confirm or reverse the decisions of their judges, and may reasonably be expected to exercise this power in a case where public interests are put at hazard, and the decision of the court meets with general popular non-concurrence.

The effects of the decision in question are not localized to the great valleys of the State. The mountains are seamed with water ditches, constructed at immense cost for mining purposes, in defiance of riparian rights. Some of these canals are already utilized for irrigation, and more will be in the future, if it is permissible. For this purpose they need to be greatly extended, and new ditches to be taken out below the present points of diversion. Is the miner, driven from his occupation by the action of courts, to be prevented by the courts from maintaining his means of diversion, or creating new ones, to fertilize the vineyards and orchards he is planting in the foothills? The few dwellers along the rocky cañons are the riparian proprietors, and they are the ones who can compel the appropriators to turn the water back into the streams, that it may run unused by their solitary cabins.

The question, therefore, whether what has been heretofore held as the common law of California-viz: the right of the first appropriator of water for beneficial use, to enjoy it to the extent of his appropriation-or whether recognition as conclusive of the inapplicable common law of England (which gives to the proprietor on the banks of a water course the right to have all water naturally flowing by or through his land, continue so to flow, unused, undisturbed and undimished) shall prevail, becomes a vital

one to all the people of this State to consider, both in economic and legal aspects.

By the act of April 13, 1850, the California Legislature enacted that "The common law of England, so far as it is not repugnant to, or inconsistent with, the constitution or laws of the State of California, shall be the rule of decision in the courts of this State." Upon this enactment, the structure of "riparian rights" rests, and the right of appropriation is denied, however destructive the consequences. The State then signed the bond, giving the pound of flesh; it enacted away all control, ownership, and beneficial use of its waters, and improvidently wrote ruin upon most of its territory. So runs the argument. It is necessary to its conclusiveness to insist that the common law is inflexible in its provisions, unbending to circumstances, uninfluenced by the necessities of the people, which its provisions govern. The laws of legislatures may be changed, constitutions be modified by amendment, or explained away by courts; but the common law of England is fastened on the State, and may throttle it, and there is no relief, unless judges in England vary its tendencies. New conditions may arise here-but they must yield to it; new discoveries may be made in art, science, and political economy, of all of which the originators of the common law had no conception-yet they must wait upon its teachings, and abide by its slightest indications. No people ever assumed meekly a more intolerable yoke, or submitted to a more absurd bondage, if this be true. But it is not true. One of the leading principles of the English common law is, that it is flex-. ible, and may be modified to suit the varying wants of the community. Were this otherwise, it would never have been taken by English colonists to their new homes. The declaration of rights made by the first Continental Congress in 1774, declared that "the respective colonies are entitled to the common law of England, and to the benefit of such English statutes as existed at the time of their colonization, and which they have by experience found to be applicable to their social, local, and other circumstan

ces." Unless so applicable, the common law was repudiated by the Continental Congress, as England would have repudiated it if it had ceased to be applicable to her necessities.

The United States Supreme Court has declared that the common law of America is not to be taken in all respects to be that of England, but that the settlers adopted only that portion which was applicable to their situation. The constitutions of many States contain language similar to the Statute of 1850, and contain no words of exemption of such portions of the common law as are inapplicable to the condition or necessities of the particular community; notably in New York, New Hampshire, and Massachusetts; and yet the courts in those States have held that the common law is not a rule of decision where opposed to the wants of the people.

As an illustration of the modification of the English common law in the United States may be instanced the case of ancient lights. Blackstone says: "If one obstructs another's ancient windows, the law will animadvert hereon as an injury, and protect the injured party in his possession." This doctrine is as well seated in the English common law as is that of riparian rights. Any one passing Cheapside and other busy traffic streets in East London, will see where, in the march of modern improvement, old buildings have been pulled down to erect finer structures. On the squatty neighboring buildings, at little windows looking out on old courts or alleys, are put numerous signs bearing the inscription, "Ancient Lights," as a warning to the neighbor not to build his new building so high or in such shape as to obstruct the light through these old peep-holes. The same author defines the common law to be general customs which are the universal rule of the whole kingdom, and are ascertained and their validity determined by the judges of the several courts of justice. This common law, he says, protects these ancient lights. The lead in repudiating the common law doctrine of ancient lights in the United States, was taken by the courts of New York, the constitution of which State makes the common law the rule of decision to the