cumstances and for reasons so different from those existing here, is not the law of this State, and never has been.

An illustration is furnished by the courts of setting aside the English common law, because the physical conditions of this country are different from those of England, as regards admiralty jurisdiction. The early decisions of the United States Supreme Court assumed that the expression "cases of admiralty and maritime jurisdiction" was used in the constitution in the same sense as in England at the time the constitution was framed; and therefore, following the restriction which the common law had imposed on admiralty in England, held that the jurisdiction was limited to matters on the high seas or tide wa ters, and not within the body of a country. The earlier cases adopted the language of the law of England, where the navigable waters are tidal; but the same court afterwards held, and still holds, the rule inapplicable in this country, which has great inland seas and long public rivers, navigable to long distances beyond the set of the tide. It recognized "the necessities of commerce," as requiring the application of the jurisdiction to all public navigable waters on which commerce is carried between different States or nations. Yet the same great tribunal has always held that the English common law, where our conditions permit its useful application, is the heritage of the people of this country; that is, that it is a minister to our prosperity, and not a drag upon it. The Act of 1850 did not, therefore, upon the principles of construction applied by other jurists, import the doctrine of riparian rights into this State. Had it been intended so to do, surely no legislature ever so little understood, or was so careless of, the heritage of its constituents and that of their children's children. That legislature met six months before the State itself had a legal existence. It was made up partly of natives who knew nothing of irrigation, who only valued land for pasturage, and watered their herds at any convenient spring. If they understood Mexican laws with regard to water, which is doubtful, they knew that this was subject to common

use, and could be kept in the natural channel, or diverted by individuals or corporations, as the government permitted. Riparianism was unknown to them. The remainder of those legislators were gold-seekers, or office-hunters, who necessarily had little knowledge of the physical geography of the State, and hence were poorly qualified to pass an intelligent judgment on this question, even if they gave it a thought, which there is no evidence that they did, and which they undoubtedly did not. They resorted to the mines from the halls of legislation, and aided to establish a custom of appropriation for mining purposes, which was illegal under the modern construction of their innocently adopted statute. But it is important that under the decisions of the Supreme Court in its early years, this system of appropriation of water for mining purposes grew up and was recognized as legal. The judges who made those decisions were near the period of enactment, and their views have the value of contemporary construction. The policy which they sanctioned was afterwards reviewed by the United States Supreme Court, and that court said: "As respects the use of water for mining purposes, 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 necessity of miners, and inadequate to their protection"; and in another case the same court said that the views expressed and the rulings made in regard to the appropriation of water for mining purposes "are equally applicable to the use of water on the public lands for purposes of irrigation. No distinction is made in those States and Territories by the customs of miners and settlers, or by the courts, in the rights of the first appropriator from the use made of water, if the use be a beneficial one.”

That tribunal recognized that the customs and necessities of the people of this coast had moulded a common law for them in this particular, and that the common law of England was inapplicable and mischievous, in that it was, as they said, "incompatible with

any extended diversion of water, and its conveyance to points from which it could not be restored to the stream."

Colorado has put into its constitution a provision recognizing the priority of right to water by priority of appropriation. Like California it is arid, and needs irrigation to fertilize its fields. It has already solved this question, as it was proposed by the recent State Irrigators' Convention to solve it, by organic law. But the Supreme Court of that State had decided that the doctrine of riparian rights had no applicability to Colorado even before the adoption of the constitutional provision; because imperative necessity, unknown to the countries in which the common law originated, compelled Colorado to recognize appropriation. The reasoning of that court is so just, its recognition of the great necessities of the State so clear, and the parallel of circumstances with those of California so exact, that it is well to cite the decision at some length :

"It is contended that the common law principles of riparian proprietorship prevailed in Colorado until 1876, and that the doctrine of priority of right to water by priority of appropriation thereof was first recognized and adopted in the Constitution. But we

think the latter doctrine has existed since the date of the earliest appropriations of water within the boundaries of the State. The climate is dry, and the soil, when moistened only by the usual rainfall, is arid and unproductive; except in a few favored sections, artificial irrigation for agriculture is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it rises, when appropriated, to the dignity of a distinct usufructuary estate or right of property. It has always been the policy of the National, as well as the Territorial and State Governments, to encourage the diversion and use of water for agriculture; and vast expenditures of time and money have been made in reclaiming and fertiliz. ing by irrigation portions of our unproductive territory. Houses have been built, permanent improvements made, the soil has been cultivated, and thousands of

acres have been rendered immensely valuable, with the understanding that appropriations of water would be protected. Deny the doctrine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed. . . . We conclude, then, that the common law doctrine, giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial

use thereof, is inapplicable to Colorado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine, in conflict therewith."

It is a matter of extreme regret that a few more of the members of our own Supreme Court could not see judicially, or give due. weight to, what the Supreme Court in Colorado so clearly sees and applies, viz: that it has been the policy of the National and State governments to encourage the diversion and use of water for agriculture; that vast expenditures of time and money have been made in reclaiming and fertilizing, by irrigation, portions of our unproductive territory; that houses and villages have been built, costly, permanent improvements made, and hundreds of thousands of acres rendered immensely valuable, which else would have. remained desert, with the understanding that appropriations of water would be protected, and that the denial of the right of appropriation destroys this vast property.

Its

The Supreme Court of Nevada, in an early case, sanctioned the doctrine of riparian rights. But it has since retreated from that ground, and approved the doctrine of appropriation, holding that priority of appropriation is a test of superiority of right. views as to the great system of anti-riparianism, built up in the early days in this State, and the sanction it received from the courts, are expressed as follows: "In all the Pacific Coast States and Territories . . . the doctrines of the common law, declaratory of the rights of riparian proprietors respecting the use of running waters, were held to be inapplicable, or applicable to only a very limited extent, to the wants and necessities of the people, whether engaged in mining, agricultural, or other pursuits; and it was decided that prior appropriation gave the better right to the use of the running waters to the extent, in quantity and quality, necessary for the use to which the waters were applied. This was the universal custom of the Coast, sanctioned by the laws and decisions of the courts in the respective States and Territories, and approved and followed by the Supreme Court of the United States."

It may, therefore, be said, on the testimony of this Supreme Court of Nevada, and the Supreme Court of the United States, that there is a universal custom or common law established in this State by the concurrence of miners, farmers, and courts, by which appropriation was established and riparianism rejected as the law of this State.

In the view of our high court, there is no public policy which can empower it to disregard or modify the common law of England, because of a benefit to many persons; and it holds it doubtful if it is to the common benefit, or benefit of many persons, to promote the appropriation of water for agricultural purposes. Upon the latter proposition, the people need no decision; they are as nearly unanimous as possible that the court is all wrong. As to the first proposition, if the principle of it had been adopted by the Supreme Courts of New York, Massachusetts, Maine, Pennsylvania, Ohio, Texas, Illinois, etc., the common law doctrine of easement in ancient lights would be the law of this country, and such structures as the Nevada Block or Safe Deposit building, and the many palaces of trade in our growing cities, could not have been built without the payment of enormous sums of smart money; or, as the court puts it, "on payment of due compensation." But these courts, and others, recognized the argument ab inconvenienti, and enforced it. Did they not "legislate in such manner as to deny citizens their vested rights?" Our Supreme Court would so characterize this action, and it refrains from imitating the example of most of the Supreme Courts of the Union in a parallel case. It is held more strictly by the tether of the common law than the other courts are. It cites authorities from those courts to justify its adherence to the common law upon riparian rights, but underrates the example of the same courts where they depart from the common law, because the reason for the law fails in their communities. But there are wide climatic differences between California and the States in question. West of the one hundredth meridian, the country is arid; east of it, the climate approximates to that of

England, and irrigation ditches are almost unknown. Regular rains, distributed through the season, obviate costly works for diversion and distribution of water, and leave no room for dissent from the English doctrine of riparian rights. Hence the courts follow the common law in that regard. They have no reason to do otherwise. What they will do where they find the common law "not adapted to the necessities of our growing communities," they have shown. Those illustrious judges would have undoubtedly as freely decided that the common law doctrine of riparian rights is on a level with the common law doctrine of ancient lights, if they had lived in a country whose prosperity depended upon diversion and irrigation; and that it could as little stand in the way of progress and civilization. We must have a common law for the region west of the one hundredth meridian, and courts which can see its necessity, and enforce it. An eminent law writer (Wharton) has discussed the proposition whether judges can or should legislate: "Judges are not legislators for the purpose of revolutionizing the law, but they are legislators for the purpose of evolving from it rules which should properly govern present issues, and winnowing from it limitations which are withered and dead. when this duty-a duty which is a necessary incident of judicial office-is frankly recognized by the judiciary, the process of legal development and of suppression will be carried on more effectively and wisely than it can be done by those who shut their eyes to the duty. For no disclaimer can relieve the judiciary from the function of gradually modifying the law, by adoption and rejection."

And

It may be respectfully suggested that our Supreme Court fails to carry its premises to their logical conclusion. It holds that the common law of England was adopted in this State, and that in that law riparian rights are entrenched. The common law upon riparian rights is substantially as follows:

"Every proprietor of lands on the bank of a stream has an equal right to use the waters which flow in the stream, and consequently no proprietor