rule of action and the precedent governing in subsequent cases. The legal theory of ownership in land is that the fee owner possesses a certain superficial area which entitles him to the enjoyment of all that is comprehended within his boundaries to an infinite distance below and above the surface, or more definitely, from the center of the earth upward. It is a feature of this theory that water standing on land, flowing over or under its surface, so long as it does not form a definite stream, or water running in a definite stream, formed over or under the surface, so long as it remains there, may he used by the owner of the land; but he may not prevent the natural flow of the stream, or of the spring from which it commences its definite course, nor pollute the same.

"riparian proprietor," as understood at common law, was the owner of the land immediately along the water course; he might own but a few feet along and back from the bank, but it gave him the entire right and privileges of a riparian proprietor, and prevented the owner of land immediately in the rear from enjoying any usufruct in the running stream. Whether this is an equitable method of defining water rights, or whether in adopting the common law in California we have accepted this construction, are questions we will consider later.

Blackstone classes this right as a corporal hereditament, and says that "Water from its nature must continue common, so that one can have only a temporary, transient, usufructuary property therein."

"The waters of brooks and rivers are the gifts of nature, and the owners of land on their banks are entitled to the enjoyment of them as part of their private domain. Each proprietor has a presumptive right to the land covered with water, on his own side, and along his whole front, to the middle of the stream. The owners have a general right to receive the waters in as pure a state as nature affords them, and such owners are equally bound to transmit them to proprietors below without diminution, diversion or deterioration. For all riparian owners acquire no property in the water itself, but only the privilege of using it in its passage by reasonable interference."

Chancellor Kent says: Water is a movable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein."

It is apparent from these opinions, derived from the expounders of the common law, that water is held to be a hereditament or right, incident to property in land. A

Judicial tribunals in this country, in dealing with questions of riparian rights, have been inclined to distinguish between the uses of water, and to define them as natural and artificial: natural uses being those absolutely necessary to man's existence, such as to quench thirst, to water cattle, and for household purposes; and, in arid countries, for the purposes of irrigation; artificial uses are such as are beneficial, but not essential to man's existence. So that, in many cases, the question whether a certain use is natural or artificial, would be dependent upon circumstances.

England, the home of the common law, is a land favored by natural conditions; situated between seas, it has a humid atmosphere the year round; timber and verdure are indigenous to the soil, springs and streams are abundant; hence irrigation and the many other uses of water which give it value and render it essential to countries. having a less rain-fall are there unknown. So, when it is attempted to adapt the.common law, which has been said to be the per

thing not capable of barter or sale). The same remarks apply to running water. The space in which the brook or streamlet flows is in private ownership, but the water is not. The second subdivision of common things was "res publica," which included those things exclusively in the possession of the State; such as public thoroughfares, public streams, squares, baths, and amphitheatres. The river could be used by the public as a shipway, or for fishing, but the ownership was vested in the State. The beds of navigable rivers and all streams of the public property belonged to the State. In the case of non-navigable rivers and streams not regarded as public, the beds belonged to the riparian proprietor, to the extent that he had the right to take the fruits and cut the trees thereon, but they were public property so far as the public chose to use them in aid of navigation. The riparian owner might use the water of the river to the extent of his domestic necessities, and also for watering his land, if he did not infringe on the use or right of the general public to the water.

fection of human reason, to a class of conditions differing from those above, it is found inadequate, and results in radical changes. What may be the perfection of reason as applied to England, may work the greatest injustice when applied to the Pacific Coast. The civil law, made up of enactments of legislative bodies and the edicts of rulers, which prevails in the continental states of Europe, has taken a broader view of the law of riparian rights than that embodied in the common law. This has been necessitated by the physical condition of the states of southern Europe, whence it has emanated. The ancient world was familiar with the discussion of laws regulating water rights, and prior to the formation of the Roman Empire, irrigation had become a practical thing, and water rights in various forms were recognized as property. The Roman law, in classifying things as to ownership and use, defined, first, things "in patrimonio," capable of being possessed by persons exclusive of others; and things "extra patrimonium," those incapable of being so possessed. The latter were classed under four headings, the first of which was res communes,” things common, free to all mankind; and under this was placed air and water, which were regarded as necessaries of life, and of which every one might use what was necessary for personal requirements; but they were not capable of appropriation to exclusive ownership beyond that limit. The Justinian Code held that "by the law of nature, flowing water is a common property of all men.' "Res communes" comprehended things the property of no one in particularthe air, running water, the sea and its coasts, and wild animals in a state of freedom.

Gaius, the Roman Jurist, in discussing this character of property, says, that "when the Romans speak of the air as res omnium communis, they do not mean to include the space above the earth, but only the atmosphere." The man who owns the soil owns the space above it, and this space is a thing "in commercio" (capable of barter and sale); but the atmosphere is a "res extra commercium" (a

The history of the law of water-courses in France is one full of interest and instruction. The ownership of running water has been alternately asserted by the people, the kings, and the feudal lords. In latter years, when it was found necessary, in consequence of the increased litigation, for the government to assume control over the channels of streams and their waters, it became recognized that the latter were in reality common property, and that the bank proprietors had only a right to use them, and not a right of ownership in them. The Code Napoleon, in force at the present time, defines rivers and streams which will carry floats as parts of the public domain. A royal ordinance of 1835 enumerated the navigable or raftable streams, which act makes them part of the public domain, and the list has since been much increased. The sovereign authority to declare streams a part of the public domain "has not been disputed, either in the courts or before the Council of State; but indemnity has been awarded to riparian proprietors, who have been dispossessed of irrigation water rights

The Ownership of Streams not Navigable has been a disputed question, but De Passy says that "all authoritative writers now hold that, according to the terms of the Civil Code, water courses not navigable or raftable are common property." Several centuries of litigation over this mooted question has resulted in settling the status of the ownership of the water in this class of streams, as the property of the nation. W. H. Hall, our State Engineer, in speaking of this question in France, says: "Starting several centuries ago, with almost complete ownership and control of the waters and channels and streams not navigable nor raftable, the riparian land owners have since been restricted in their rights from time to time, and we now find them without any recognized claim of ownership in the waters, and only the semblance of ownership in the channel beds until after these shall have been laid dry; but without a preferred privilege to the use of the water." The legislation of France respecting water rights is the product of statesmanship and scientific knowledge, supplemented by the experience of an ingenious people, who for centuries have been mainly engaged in agriculture, and its kindred occupation, manufacture: both of which require an economic use of water facilities. And although her system has been mainly formed under monarchical surroundings, yet, since the establishment of the republic, there has been manifest no disposition to change its leading principles.

France is divided into 87 departments; these into 362 arrondissements or sub-departments; these into 2,683 cantons; and these into 36,056 communes or municipalities. Each of these divisions has a superior officer and an associate body of advisers chosen by election. These officers make up the administrative department, which, with the bureau of public works, control the inland waters of the country. The territory of the commune or municipality is 5.5 square miles-less than one-sixth of one of our townships and the average department is

eminent domain is extended to all navigable waters, and also to others that are required for purposes of irrigation, power, industrial, municipal, or other purposes of public utility, and they are placed under the care of supervisory agents of the government called "guards," who have charge of all locks, sluices, dams, gates, and structures in the channels of streams. These are appointed by recommendation of the Prefects, and their salaries are assessed on those benefited by the water privileges.

It is not our purpose to go more into detail respecting this system, but it has many features that commend it to our own needs. It places the control of the water in the hands of the local residents of the territory, subject to such government inspection and control as is deemed necessary for the general good. De Buffon, in discussing the system in general, says: "Water has, on riparian properties, a natural, primordial right—the right to a sufficient and proper channel in which to pass. River waters are, then, from time immemorial, in possession of canals carved out of the surface of the earth. This is possession on the part of the State. The existence of these canals, as old as the world, is a title in the State, inscribed in the ground by the hand of God for the common good. Consequently it is a sound conclusion that public authority should have the right, and that it should be its duty, to have them respected, and not tampered with by every dweller on their banks."

When water privileges are desired by individuals for their private benefit, as for power or irrigation purposes, an application is made to the Prefect of the department, setting forth. the object, location, and plan of the work, also the amount of water desired. The matter is referred to the Mayor of each commune affected by the work. It is advertised, and all objections considered. If it is approved, the plans and petition go to the engineer of the department, who examines the location of the proposed work, and if his report is favorable, the Prefect grants the petition and issues his permit for the construction

of the works. In case of water privileges being desired by individuals or companies for speculative purposes, a more formal proceeding has to be followed, and the application must be favorably considered by the Council of State before it can be granted. The safeguards are sufficient to protect the public against unjust monopolies.

The right to back water in the channel before the land of another by a dam below, or abut a dam against the land of another, the right to conduct a canal over the land of another, are questions that have caused protracted litigation in France. In 1845 a law was passed giving land owners generally the power to secure rights of way to conduct water to which they had a right of use, as a servitude over lands not their own. In 1847 a law was passed giving the owner of one bank a right to abut his dam against the bank owned by his opposite neighbor, under certain regulations and administrative sanction. This also was a step towards breaking down the exclusiveness of the riparian right to the stream.

It is now held that the slope of the channel is not the property of the land proprietors, but is part of the public domain, and common to all.

Notwithstanding these changes, the rights of the riparian proprietors are respected and preserved to them to the extent of the use of the running water, while it passes their domains. In fact, we see no essential difference between the French law, as defined by the Code Napoleon, and the Common Law of England, as construed by English jurists. De Passey, in alluding to this feature of the French laws, says, that "they require the surplus drainage of waters to be returned to their natural channels"; that they uphold ancient customs in the use of water, but enforce administrative regulations that look to wards economizing it, and other measures in the public interest.

France has a peculiar obstacle in the way of her advancement in this regard that would not exist in this country: the humble condion of her peasant land-proprietors and the minute subdivisions of the land. To illus

trate in 1845 there were 1414 subscribers to the De l'Iisle Canal, of whom 1095 desired irrigation for tracts less than 2.47 acres, 205 others for tracts less than 5 acres, and only 4 for areas greater than 24 acres. The farms of the subscribers to the St. Julian Canal average 34 acres, and those of the Crillon Canal but 24 acres.

The high price of land for right of way has also been a great hindrance to the progress of these schemes. In the regions spoken of, it commands from $300 to $1200 per acre. In California large areas of land can be purchased for from $3 to $10 per acre, which, when irrigated, will pay interest on from $50 to $200 per acre.

The earliest laws extant of the different states of Italy, have recognized the waters of streams and rivers as being common property under control of the sovereign power. Lombardy, in the tenth century, had laws regulating irrigation. A code of the Republic of Milan, dated early in the thirteenth century, contains an extended series of provisions regulating the use of water in irrigation, the right of way for canals, and the privilege of diverting it from streams. 1455 the laws of the Republic of Venice declared the ownership of running waters to be in the government, for the use of the people, and forbade the diversion of water from the streams without requisite authority. In the Kingdom of Piedmont the right of property in all running water was reserved to the State.

In

In 1865, after all Italy had been brought under one government, the Civil Code of Victor Emanuel declared that "the national roads, the shore of the sea, the harbors, bays, coasts, rivers, and torrents, form part of the public domain," and that is the law of Italy today. A "torrent" comprehended every stream of intermittent flow from rainfall or melting of snows, except the smallest.

Such has been the history of irrigation in those countries where a dense population and limited productive area required that all possible advantage should be taken of natural resources, and that the benefits of such resources should be equitably enjoyed;

and popular sentiment was accordingly in favor of government ownership and control of inland waters and water ways. Keeping in mind the common law theories respecting water rights in England, and the theories and principles worked out by the States of Southern Europe, where the necessities of the people compelled the promulgation of the most perfect codes of irrigation that exist, let us turn to the States and Territories of the Pacific Coast, and examine the legislation there respecting this question, so intimately connected with the public weal.

The physical conditions of the Rocky Mountain region, and especially of the Coast region, rendered necessary a code of laws respecting water rights differing from that adopted in the Eastern States. Here, we have a wet season, when a limited amount of rain falls, succeeded by a long, dry season. Extensive tracts of country are composed of dry plains that are incapable of producing vegetation unless aided by irrigation.

The Sierras receive an amount of snow during the winter season of between sixty and seventy feet, and it lies through the winter at an average depth of fourteen feet. This body of snow supplies the streams during the summer months. Unlike the Eastern States, we have large areas threaded by a single stream of water, which finds its supply in the mountains, and receives but few or no tributaries after it reaches the plains. If the local laws should permit these arteries of wealth and health to be monopolized by the few who chance to control their banks, to the entire exclusion of all other and adjacent land owners, they would be doing a great wrong under the shadow and protection of law.

There were many illogical and severe features of the common law, which have not found favor with the legislators of the Eastern States; and the attempt to impose its provisions respecting water rights on territories to which they are unsuited has not been a success. A slight examination of the Statutes of the States and Territories that are within the rainless belt during the summer months, will disclose the fact that a code at

variance with the common law doctrines, and better suited to the local conditions, is being promulgated.

California furnishes an example of the influence of physical conditions on the laws of a people. The discovery of gold caused mining to be the paramount industry here for many years: the mining districts were almost entirely within the public domain of the United States. They were rapidly settled by a mining population that paid little heed to any restraint beyond physical force. Under this condition of things there necessarily grew up "mining customs" at the camps and diggings, which were enforced by the public sentiment of the particular district; and these customs afterwards received sanction by the Legislatures of States and by Congress. These "mining customs" related to the method of acquiring mineral lands, and the water right necessary to work them. They defined what work must be done to maintain possession of the claim, and what would constitute an abandonment. From these conditions there emanated the doctrine of prior appropriation, by which it was held that the party who first diverted water from the streams, and dedicated it to a beneficial use, had a prior right thereto. Hence it soon became the law of the Pacific States and Territories that a prior appropriation of water from streams or lakes on the public lands of the United States, gave a permanent right of property in such waters. This doctrine, limited at first to mining operations, was subsequently extended to all other uses to which water is essential; to manufacturing, irrigating, and municipal purposes.

This right was recognized by the Federal Government by a statute passed in 1866. It will be noted that this only applies to the appropriation of waters on the public domain; and when the land was sold by the Government, the grantee took the same subject to such rights or easements as had been established. These provisions pertain only to the use of water in the streams, and have no relation to riparian rights as understood under the common law. When land bordering on the stream has been purchased by