a private person, a new element enters into the problem. And when many private parties have purchased land on the bank of the stream, then we are confronted with the problem of riparian rights and what law shall define these rights; has it been left to the common law, or has that been superseded by legislative enactments ?

A brief reference to the statutory legislation of the Pacific States will aid in answering the question.

The Territory of Montana has no common law riparian rights, and its code provides that the water in all streams may be appropriated and carried across any tract of land by ditches, canals, or flumes. The statutes of Colorado also make liberal provision for irrigation, by providing for the appropriation of water and the construction of ditches over the land of others. The statutes of Idaho and Dakota make similar provisions.

In the laws of New Mexico we see the influence of the civil law in the statutes affecting water rights. The use of water for purposes of irrigation is made paramount to all others, and ample provisions are made for the construction of public and private canals. Parties are prohibited from constructing any works to the impediment of the irrigation of land or fields, such as mills, or other structures that may interfere with the flow of the

water.

In Arizona the legislation resembles that of New Mexico, except that the use of water for mining purposes is made superior to that for irrigation. The waters of streams, lakes, and ponds are declared to be public property, and can only be appropriated to exclusively private uses under certain legislative restrictions.

By the laws of Wyoming Territory, owners of land have the right to use the waters of any streams for purposes of irrigation; and provision is made for condemning a right of way across the lands of others, and the apportionment of the supply where the amount of water is limited.

The laws of Utah contain an elaborate and detailed system of regulations, in which

the waters of all streams are devoted to purposes of irrigation.

There have been in California over fifty legislative enactments respecting water rights; but so strong has been the influence of common law principles over the minds of Judges that but little has been done towards the settlement of the question. The Civil Code adopted in 1872, contained a title under the head of "Water Rights," wherein it was provided that the right to use running water in a stream or river may be acquired by appropriation; and in a series of sections is defined the method of such appropriation, the notice to be given, etc. The sections are clear and concise, and apply to all streams; but the last section of the title fixes a limitation which, under the rulings of our Courts, practically nullifies all that precedes it. It reads as follows: "The rights of riparian proprietors are not affected by the provisions of this title." As all streams of any size have riparian proprietors in greater or less numbers along their banks, whose rights are protected on common law principles, the above title has but little practical value; and it was held, in the recent case of Lux vs. Haggin, that these provisions for irrigation do not affect the common law rights of riparian proprietors.

The tendency of California courts has been to recognize the common law construction of riparian rights. In the early and leading case of Crandall vs. Woods, 8 Cal., it was held: "The property in water is in the nature of a usufruct, and consists in general, not so much in the fluid as in the advantage of its impetus. The rule is well settled that water flows in its natural channels, and should be permitted thus to flow, so that all through whose land it passes may enjoy the privilege of using. The uses to which water may be appropriated are to supply natural wants, such as to quench thirst, to water cattle, for household and culinary purposes. These must be first supplied before the water can be applied to the satisfaction of artificial wants, such as mills, factories and the like." Justice Sanderson, in the case of Hill vs. Smith, 27 Cal., says: "The notion has be

come prevalent, that the rules of the common law touching water rights have been materially modified in this State, upon the theory that they were inapplicable to the conditions found to exist here. This notion is without any substantial foundation."

In the case of Ferrea vs. Knipe, 28 Cal., the Court says: “Every proprietor of the land through or adjoining which a watercourse passes has a right to a reasonable use of the water, but he has no right to so appropriate it as to unnecessarily diminish the quantity of its natural flow." In this case it was also held that a riparian proprietor has no right to dam up a stream, because the evaporating surface would be increased to the detriment of the lower proprietor.

It is unnecessary to multiply these citations. In no case prior to that of Lux vs. Haggin has the question of the right of a riparian proprietor to use the water of a running stream for purposes of irrigation been squarely presented as an issue. It has been, however, intimated that such waters could be used for the purposes of irrigation to a limited extent. It is apparent from these decisions that we are laboring under the incubus of the common law as respects its limitation on the use of water in this State, and that some judicious legislation is necessary to protect the rights of all interests uniformly.

I do not wish to be thought lacking in respect for the principles of the common law. There is no system or body of laws that has done more to define and preserve the rights of man; but it has emanated from a country where geographical and climatic conditions differ essentially from those here, and that it is the usage and rule of action of one people is not a supreme reason why it should be sufficient for all people, in whatever surroundings they may be placed.

The land interests and water rights are necessarily intimately connected. If the latter is in the hands of irrigation companies, and the land in the hands of individual farmers, the farmers will be at the mercy of stock companies, and the monopoly will become a burden to the people.

There is one advantage accompanying irrigation, and perhaps influenced by it, that is worthy of being noted. It has been observed in many irrigated districts, that there has been an increase in the volume of the streams. Observations made in Utah Territory establish the fact there, and the cause is ascribed to the increased area being cultivated through the aid of irrigation. Twenty years ago all the waters of some streams were diverted from their channels during the dry portions of the season, and yet dependent fields suffered from drought in the dryer years. Afterwards it was found that in all years there was water enough and to spare, and operations were extended. New canals were dug and a larger area benefited; this process was repeated from time to time, and in many places the service of a stream was double, and in some instances it was increased ten, or even fifty, fold. The permanent rise of the water of Great Salt Lake has been ascribed to the effect of irrigation. Through data furnished by the Smithsonian Institute the fact is established, that in the past thirty years the lake has extended its area seventeen per cent., or three hundred and five square miles, resulting from a raising of its surface of from seven to eight feet. The most rational cause assigned for this effect is the influence of agriculture on the climate. The cultivation of the soil, the growth of vegetation, the enlarged area of surface evaporation, are supposed to have affected the rainfall through their influence on the temperature of the region. In California, Utah, Colorado, and wherever irrigation has been practised, it has been observed that the streams have increased in volume.

Professor Pomeroy, in an elaborate discussion of this question, frequently speaks of riparian rights as a "natural right." I must take issue with him on that application. We understand "natural rights" to be such rights as grow out of our nature: the enjoyment by man of certain powers of free action. President Woolsey defines "natural rights" as "those which man must be invested with, and which he ought to have realized to him in a jural society, in order to fulfil the ends of his being." The right to exist, the right of free action, the right to possess and enjoy the results of labor, are natural rights; but the general right to possess property does not give man a jural right to possess any particular kind of property, or, if land, to have it located in any particular place. A riparian right is only a jural right, and if the law by which it is maintained is founded in error, and works injustice, the right should cease.

When we permit a foreign rule of law to be applied to land tenure in California that fosters greed, favors monopolies, gives to the few what nature intended for, and the law should give, to all, we permit an injustice to our people.

If the common law is to be applied to water rights here, there are large areas that must forever remain in a state of nature. The fear of affecting vested rights on the one hand, and the greed of riparian proprietors on the other, has thus far prevented that modification of the law that equity demands.

The common law, we have seen, gives to a riparian proprietor the use of running water as it passes his land, but he must return it without substantial diminution in quantity or change in quality. This right is a restrict ed one, and the public may draw water from streams for the purposes of irrigation of large areas, and yet leave sufficient to protect the common law rights of the riparian proprietors. The latter is not vested with the right to have the stream flow past his land, "ut currere solebat," in its full volume, as against the necessities of proprietors who require the water for purposes of irrigation. The common law right has received too narrow a construction by our courts. In a country where vast areas are watered by a single stream, the question of who are entitled to be recognized as riparian proprietors is an open one. To illustrate :

If A owns a tract of land ten miles square, through the center of which there flows a stream of water sufficient to irrigate the whole tract, it will be admitted that he

has a water right which he can use upon, and which pertains to, the whole area. This is now a usufruct that accrues to the benefit of every several acre of that tract.

In time he surveys the same into 20-acre lots for purposes of sale; he first sells the tier of lots along the stream to parties who thus become riparian proprietors, and he ceases to be one. What has become of the usufruct that has attached to the rest of the domain? Where has it vanished? It has not been sold. Can the owner be divested of this valuable right by a legal fiction?

Common law did not contemplate the use of water for purposes of irrigation. If the right is extended to the bank owners, why not to all lands within the valley drained by the stream? The intricate problems of water rights cannot be solved by the existing laws of California. We must profit by the lessons of history: statutes formed on a broader basis, and more equitable in effect, must be enacted to protect the rights of all and conserve the prosperity of the State.

We conclude that it is possible to enact provisions which will provide for irrigation and yet not encroach on vested rights. The one thing needed now is the repeal of Section 1422 of the Civil Code of this State, that the formulated laws for irrigation may become operative; and when the system becomes a practical one, there will soon be developed a code of equitable rules of action.

J. W. Powell's Report to Congress, in 1878, on the "Arid Regions of the United States," says, respecting the question of water rights, that "the magnitude of the interests involved must not be overlooked. All the present and future agriculture of more than four-tenths of the area of the United States is dependent upon irrigation, and practically all values for agricultural industries inhere not in the lands, but in the water. Monopoly of land need not be feared. The question for legislatures to solve is to devise some practical means by which water rights may be distributed among individual farmers, and water monopolies prevented."

George W. Haight.

an

IN 1834, Reverends Jason and Daniel Leo, accompanied by Cyrus Shepard, T. S. Edwards, and P. L. Edwards, established "Aboriginal Mission west of the Rocky Mountains." This was the first Protestant Mission planted on the Pacific Coast. The location selected was in the Willamette Valley, near where Salem now stands. This pioneer mission and its branches, together with the missions of the American Board organized at a later date, are justly credited with preserving Oregon and Washington Territory to the American Government. Thus wrote the eminent Secretary of State:

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"From 1834, when the American missionaries first penetrated this remote region, a contest was going on as to which nation (American or English) should possess it; and that, probably, depended on the fact which could first settle it with emigrants. On the other hand were the missionaries of the American Board and the Methodist society, who had established their stations among the Indians in various parts of the country; and who attracted thither the tide of American emigration that turned the scale in favor of our government, resulting in the establishment of the 'Territorial Government of Oregon,' wholly American in interest, which continued to exercise all the functions of government over the territory, and its six or seven thousand inhabitants, until the erection of the Territory of Oregon by Congress, by the Act of August, 1848."

In 1846, Rev. William Roberts was appointed superintendent of missions, with Rev. J. H. Willbur for assistant. These gentlemen landed in San Francisco, April 24th, 1847. The next day, Mr. Willbur (now Father Willbur of the Yakima Indian Reservation), organized a class and a Sab bath school, and Mr. Roberts preached in a hotel kept by a Mr. Brown, who closed the bar and the billiard-room for the service. On the report of these gentlemen, the General

Conference, in May, 1848, directed a mission to be organized in California, and Oregon and California were organized into the Oregon and California Mission Conference.

In 1847, Rev. Elihu Anthony, a young local preacher (now Hon. Elihu Anthony of Santa Cruz), organized classes and established preaching in San Jose, Santa Cruz, and Monterey. The service at the latter place was preaching only.

The discovery of gold in February, 1848, stirred the world, and the tide began to move toward California. In June of 1849, Mr. Roberts, by Episcopal direction, revisited this State, preached, renewed classes, changed leaders, etc., in many parts, and, as far as possible, prepared the way for the coming thousands.

In the fall of 1848, William Taylor of the Baltimore Conference (now Bishop for Africa), and Isaac Owen of the Indiana Conference, were appointed missionaries for California. The first came by sea and brought a house of worship with him. The other crossed the plains. Taylor preached his first sermon in California at San Francisco, September 14th, 1849, and Owen his at Grass Valley on the same day. Rev. Asa White, a local preacher, had erected a small church in San Francisco, in consequence of which fact the material brought out by Taylor was shipped to Sacramento, and set up at the corner of Land 7th streets in that city. These two, Taylor and Owen, were the first regularly appointed missionaries of the Methodist Episcopal church in the Golden State. But they found sturdy helpers in J. W. Brier, James Corwin, Elihu Anthony, Asa White, and Warner Oliver. October 17th, 1850, S. D. Simonds, Edward Bannister, and M. C. Briggs joined the little band. At that date, Isaac Owen was presiding elder of the whole State, and felt cramped for want of room even then. The enlargement of the work was rapid, the demands urgent, and transfers were sent as