Opinion
Appeal from the superior court of the city and county of San Francisco.
SYLLABUS
1. WATER--RIGHTS IN--HOW GAINED AND LOST--USER.
A right to water is a corporcal right or hereditament which passes by grant of the land over which it runs. It may be conveyed absolutely, or lost or acquired, either wholly or in part, by an adverse user, sufficiently long, exclusive, and notorious to furnish adequate grounds for presumption of a grant.
2. RIPARIAN PROPRIETOR--REASONABLE USE OF WATER.
Every riparian proprietor has an equal right to the unimpeded flow in its natural course and to the reasonable use of waters flowing in a natural stream over his land. What may be a reasonable use in any given case depends on the facts and circumstances of that case.
3. APPROPRIATION OF WATER--STATE GRANT
The state has power to authorize the appropriation of water running through its own lands, and such an appropriation would vest in the appropriator a right in the water thus appropriated superior to that of a subsequent purchaser from the state of the lands through which such water had previously run. But neither the state nor federal government has power to authorize the appropriation of water running through private lands for a private purpose, nor for a public purpose until just compensation is first made therefor.
4. SAME--EVIDENCE--MATERIAL ISSUES--FINDINGS.
Where the question at issue was whether lands involved in the trial were public lands at the time the right to appropriate water running over such land was acquired, the exclusion of evidence of that fact was a material error. Evidence and findings should be confined to material issues in the case, and the court should find ultimate and not probative facts.
Stetson & Houghton, for appellants.
Louis P. Haggin, for respondents.
In bank.
OPINION
SHARPSTEIN, J.
The question whether in this state one can rightfully divert and appropriate to a useful purpose any considerable part of the water flowing in a natural stream over the lands of others, who are making no use of it, and deriving no benefit from it, beyond such as it naturally confers by running through their lands, has been elaborately argued by counsel. The contention of the respondent is that "the doctrine that the owner of land upon the margin of a flowing stream has the right, incident to such ownership, that such stream shall continue to flow unaltered in quality and undiminished in quantity, is a doctrine that was unknown to the common law of England, but, on the contrary, the common law was that first in time was first in right as to the uses of the water of a flowing stream, and no action could be maintained except for a disturbance of actual use under an appropriation previously made;" and that the law of this state, in this respect, is the same as the common law of England was. But if the common law of England were otherwise, "the so-called doctrine of riparian rights, whereby a proprietor of land bordering upon a running stream is presumed to have a right to the full, free, and uninterrupted waters of such stream, is not, and never has been, the law of this state; at least, so far as appertains to state or government lands, as contradistinguished from those held by Mexican grant."
While it may be difficult and perhaps impossible to define with precision the character and extent of the right which the grantee of a parcel of land acquires in a natural stream of water running over it, all the text writers and all the cases, so far as we are advised, agree that it constitutes a corporeal right or hereditament that passes by grant of the land over which it runs. "For land," says Sir EDWARD COKE, "comprehendeth in its legal signification any ground, soil, or earth whatsoever; as arable meadows, pastures, woods, moors, waters, marshes, furzes, and heath." 1 Inst. 4; 2 Bl. Comm. 18; Woolr. Waters, 146; Ang. Water-courses, 8.
"The right to flowing water is now well settled to be a right incident to property in the land." SHAW, C. J., in Elliot v. Fitchburg R. Co. 10 Cush. 193. "But this right or corporeal hereditament, which is embraced within or appertains to the ownership of the land over and through which a water-course runs, is subject to the same incidents as all other interests in real property. It may be conveyed absolutely by grant; so, too, it may be lost or acquired, either wholly or in part, by an adverse user, sufficiently long, exclusive, and notorious to furnish adequate grounds for the presumption of a grant." Brace v. Yale, 10 Allen, 441. So that, whatever limitations there may be upon the right, it is well settled that the right itself is incident to property in land; it constitutes a real or corporeal hereditament. It is often said that the owner of land over which a natural stream of water runs has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat is the language of the law. 3 Kent, Comm. 561. "For 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." 2 Bl. Comm. 18. From the context it is quite clear that the learned commentator meant no more than that a natural stream of water must of necessity continue common as between all who own lands through which it runs. Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run, (currere solebat,) without diminution or alteration." 3 Kent, Comm. 439. And the same doctrine was laid down in nearly the same words by Sir JOHN LEACH in Wright v. Howard, 1 Sim. & S. 190, in which the vice-chancellor said:
"Every proprietor has an equal right to use the waters which flow in the stream, and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors, no proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above." With the exception of the dicta in a few cases cited by counsel for respondent, we have been unable to discover anything in the textbooks or reports which conflicts with this exposition of the common-law doctrine on the subject. And in Mason v. Hill, 5 Barn & A. 1, DENMAN, C. J., said:
"None of these dicta, when properly understood with reference to the cases in which they were cited, and the original authorities in the Roman law from which the position that water is publici juris is deduced, ought to be considered as authorities that the first occupier or first person who chooses to appropriate a natural stream to a useful purpose has a title against the owner of the land below, and may deprive him of the benefit of the natural flow of the water."
Has the common-law rule in this respect been abrogated or modified in this state? We know of no case in this state prior to Ferrea v. Knipe, 28 Cal. 341, which involved the question of the right of an owner of land to have a natural stream of water which flowed over it to continue to do so without material obstruction or diminution from artificial causes. In that case the court, "while admitting that a riparian owner to whom the water first comes in its flow has the right to use it for domestic purposes and for watering his cattle," said "that he has not the right to so obstruct the stream as to prevent the running of water, substantially, as in a state of nature it was accustomed to run." This has never been overruled or doubted, nor is it in conflict with any of the earlier reported cases.
But it is insisted by respondent's counsel that both the United States and this state have adopted a policy in respect of water flowing over their lands which is inconsistent with the doctrine of riparian rights as we construe it. As a result of that policy it is claimed that a grant of land by either of those governments must be read as if it contained a condition that any one should thereafter be at liberty to appropriate so much of the water of any natural stream running over such land as the grantee had not previously appropriated to some useful purpose other than that which it subserved by flowing naturally over such land. That would constitute a reservation of an interest in the land granted, not for the benefit of the grantor, but for that of any other person who might choose to avail himself of it. If a grant does not contain any such express reservation or condition, we ought not to interpolate one unless it is clearly implied, because the general rule is that the owner of property cannot be divested of any interest in it by the simple prior appropriation of that interest by some one else. Both the state and the United States governments have granted to private persons and corporations large tracts of land which have remained unoccupied and in their virgin state for many years afterwards. It probably never occurred to any one that the owners, by neglecting to appropriate the grasses and trees naturally growing on such lands to some useful purpose, left them open and subject to a rightful appropriation by any one else. And yet we have the same authority for holding that a simple grant of land conveys a right to have the water flowing over it continue so to flow, as we have for holding that it conveys a right to the trees and grasses growing on it, or to the soil itself. The principle that he who first appropriates property to a useful purpose is best entitled to it, applies only to cases in which none of the parties has a grant, actual or presumptive.
In an early case, which involved the question "whether the owner of a canal in the mineral region of this state, constructed for the purpose of supplying water to miners, has the right to divert the water of a stream from its natural channel, as against the claims of those who, subsequent to the diversion, take up lands along the banks of the stream for the purpose of mining," the land through which the stream ran, and through which the channel passed, being a part of the public domain to which there was no claim of private proprietorship, the court held that the common-law doctrine, which "prescribes that a water-course must be allowed to flow in its natural channel," could not be invoked in such a case, because, as the court said, that doctrine would, upon an examination of the authorities which support it, "be found to rest upon the fact of the individual rights of landed proprietors upon the stream; the principle being, both at the civil and common law, that the owner of lands on the bank of a water-course owns to the middle of the stream, and has the right, in virtue of his proprietorship, to the use of the water in its pure and natural condition." Irwin v. Phillips, 5 Cal. 140.
In Crandall v. Woods, 8 Cal. 136, where both parties had possessory rights in separate parcels of land, the title of which was in the United States, it was held that each had a right to have a stream of water, which naturally flowed over both parcels, continue to flow over the parcel in his possession substantially as it did when his possessory right first attached to it. As between themselves, their respective rights in the stream were held to be those of riparian owners. In Hill v. Smith, 27 Cal. 476, it is explicitly denied that the rules of the common law touching water-rights have been materially modified in this state, although in that case it is said that these rules do not apply to sections of the state in which water is exclusively used for mining purposes. But this was said in a case in which neither of the parties owned any land over which a natural stream of water flowed. The respective rights of prior and subsequent appropriators were alone involved. It is claimed that the same reason exists for not applying the common-law doctrine of riparian rights to the agricultural as is given for not applying to the mining regions of the state, because water is as essential to the prosecution of the one industry as of the other, in this state. But in Hill v. Smith the court says: "When the law declares that a riparian proprietor is entitled to have the water of a stream flow in its natural chaunel--ubi currere solebat--without diminution or alteration, it does so because its flow imparts fertility to his land, and because water in its pure state is indispensable for domestic uses. But this rule is not applicable to miners and ditch-owners, simply because the conditions upon which it is founded do not exist in their case." The conditions upon which it is said the rule is founded do exist in agricultural districts; and it is the rule applicable to those districts which concerns us in this case. And, after carefully examining all the cases bearing on this question, we are unable to find one in which it is held or even suggested that outside of the mining districts the common-law doctrine of riparian rights does not apply with the same force and effect in this state as elsewhere.
And the reason why it did not apply to the mining districts is given in the opinion of the court by FIELD, J., in Atchison v. Peterson, 20 Wall. 507, where he says:
"The government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common-law doctrine of riparian proprietorship with respect to the waters of those streams. The government, by its silent acquiescence, assented to the general occupation of the public lands for mining, and, to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale, and the acquisition of title by settlement. And he who first connects his own labor with property thus situated and open to general exploration, does, in natural justice, acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public lands throughout the Pacific states and territories, by their customs, usages, and regulations, everywhere recognized the inherent justice of this principle, and the principle itself was at an early period recognized by legislation, and enforced by the courts in those states and territories."
Which is, in effect, saying that the government, being the owner of all the land through which a stream of water runs, had a right to permit the diversion and use of it by any one who chose to divert and use it for mining, agricultural, or other purposes. There is not only no occasion for the application of the doctrine of riparian proprietorship to such a case, but it is one to which the doctrine could not be applied.
The provisions of the Civil Code in respect to the appropriation of water must be limited to that which flows over lands owned by this state or by the United States. It cannot affect the rights of riparian proprietors, (1) because it is expressly declared that it shall not; and (2) because an owner of land cannot be divested of any interest which he has acquired in it except for a public use, and not then until just compensation has been made for it. Grants from the state and from the United States have always been construed like other grants, and a simple grant of land by either conveys the same interest as the grant of a private owner would. We think a grant of swamp or overflowed land conveys all the corporeal rights or hereditaments that a grant of any other land conveys. Property rights are essentially the same and quite as secure here as elsewhere. The right to acquire and possess property is as fully protected by the constitution of this state as it is by that of any other state. No one can be deprived of it except by due process of law. Private property cannot be taken or damaged except for one purpose, and then only on condition that just compensation is first made. But whoever purchases land from the United States or this state after the whole or some part of the water of a natural water-course running through such land has been appropriated by some one else under the act of congress of July 26, 1866, or under the provisions of title 8 of the Civil Code of this state, takes subject to the rights acquired by such prior appropriator.
We do not doubt the power of the state to authorize the appropriation of water running through its own lands, and we think that such an appropriation would vest in the appropriator a right in the water thus appropriated superior to that of a subsequent purchaser from the state of the lands through which such water had previously run. It therefore follows, from our point of view, that the material issue in this case is whether the defendant has diverted from the land of the plaintiffs, since the title of the state thereto vested in them or their grantors, the water of a stream which otherwise would naturally have flowed over such land.
The plaintiffs allege that they are the owners of land "situated along and bordering on Buena Vista slough," which is, and, as they are informed and believe, "from time immemorial has been, a part of the natural stream or water-course known as the Kern river, and through it the waters of said Kern river flow and always have flowed on their way to Tulare lake." This is denied by the defendant. The issue is a vital one, and the finding on it is in favor of the defendant. If the finding is justified by the evidence, the order denying the plaintiff's motion for a new trial cannot be disturbed unless some material error was committed during the trial. To maintain this issue on their part, the plaintiffs introduced evidence which tended to prove the substance of said allegation: First, they introduced patents for the lands described in their complaint from the state to them, and to their grantors; second, they introduced evidence tending to prove that said lands bordered on Buena Vista slough, and that said slough formed a part of a natural water-course known as the Kern river, and that the waters of said river flowed through said slough to Tulare lake.
The defendant not only denied the material allegations of the complaint, but pleaded a prior appropriation, under the laws of this state, of a certain specified part of the water of said Kern river, and introduced evidence which tended to prove that said appropriation antedated any of the patents which the plaintiffs had introduced in evidence. After the defendant had rested, the plaintiffs sought to introduce certificates of the purchase of said lands by them and their grantors from the state prior to the date of defendant's said appropriation. To the introduction of said evidence an objection was made by the defendant, and sustained by the court. The grounds of the objection were that the evidence was "irrelevant, immaterial, incompetent, and not proper testimony in rebuttal." The materiality of it is apparent. If the appropriation was made while the state was the owner of said lands, the defendant's rights as to the water appropriated, according to the provisions of the Civil Code, would be superior to those of subsequent purchasers of said lands. Civil Code, §§ 1410, 1422. But a diversion of water, flowing in a natural stream over the plaintiffs' lands, could not be justified on the ground that it was diverted by virtue of an appropriation made subsequent to the plaintiffs' purchase of said lands from the state. Unless previously appropriated, water so flowing over said lands at the date of the plaintiffs' purchase could not afterwards be diverted without affecting their rights as riparian proprietors. And the rights of riparian proprietors are not affected by the provisions of the Code. Id. § 1422. The right to have the water which flowed over their lands, at the date of their purchase, continue to flow currere solebat, was a corporeal hereditament, of which the plaintiffs could not be deprived except in the mode and for the purpose prescribed by the constitution. The evidence was clearly admissible, and it was error to exclude it. Homestead Ass'n v. Willard, 48 Cal. 614.
The defendant also introduced evidence tending to prove that, by reason of natural obstructions, at certain points in Buena Vista slough above plaintiffs' lands, the water of said slough did not flow over any of said lands. After the defendant had rested, the plaintiffs called witnesses to prove that there were no such obstructions at those points. To the introduction of such evidence an objection was made and sustained. This ruling was erroneous. The court found that neither of the parties was a riparian proprietor. If that be the fact, there is no occasion for considering what their respective rights would be were the fact otherwise. If the plaintiffs were not riparian proprietors, they have no cause of action. If they are, and the defendant is not, it has no right to interfere in any way with the natural flow of a stream of water over the plaintiffs' land. A riparian proprietor has a right to the reasonable use of water flowing in a natural stream over his land. What may be a reasonable use in any given case depends upon the facts and circumstances of that case. But it is only as between riparian proprietors that the question can ever arise. According to the findings of the court the question of riparian rights is in no way involved in the case.
The plaintiffs must prove, by a preponderance of evidence, that there is a natural water-course running through their land, from which the defendant has diverted or obstructed the natural flow of the water, before they will be entitled to any relief; and even then they will not be entitled to any, if the defendant proves, by a preponderance of evidence, that the water so diverted was duly appropriated, in accordance with the law of the state, while said land was owned by the state or the United States. Osgood v. El Dorado Water Co. 56 Cal. 571; Broder v. Water Co. 101 U.S. 277. The only difficulty that need be experienced is in arriving at the facts. The law is plain enough. Ferrea v. Knipe, 28 Cal. 341; Wixon v. Bear River Co. 24 Cal. 367; Hill v. Smith, 27 Cal. 476; Pope v. Kinman, 54 Cal. 3; Creighton v. Evans, 53 Cal. 55; Leigh Co. v. Independent Ditch Co. 8 Cal. 323; Crandall v. Woods, Id. 136; Ellis v. Tone, 58 Cal. 289; Lytle Creek Water Co. v. Perdew, 1 West C. Rep. 866; S. C. 2 PAC. REP. 732; Learned v. Tangeman, 3 West C. Rep. 153; S. C. 4 PAC. REP 191: Osgood v. El Dorado Water Co. 56 Cal. 571; Broder v. Natoma Water Co. 101 U.S. 277.
Unless the plaintiffs were estopped--and the court does not find that they were--by reason of their acts and conduct while the defendant was constructing its works for the diversion of the water of Kern river, from complaining of such diversion, the findings that the plaintiffs knew of the intention of the defendant to divert said water before any was diverted, and of the construction of works by defendant for that purpose, but made no objection to the operations of defendant before the commencement of this action, are irrelevant. The facts found do not, in our opinion, constitute an estoppel, and if not, the plaintiffs had the full statutory period within which to commence their action. The evidence, as well as the findings, should be confined to the material issues in the case; and the court should find the ultimate and not the probative facts. Order reversed.
We concur: McKINSTRY, J.; THORNTON, J.
CONCUR BY: McKEE and MORRISON
CONCUR
McKEE, J., concurring.
In the examination of every case before a court of justice the first important inquiry is, what are the inherent facts of the case? And the second, what is the law applicable to the facts? Law, announced without reference to the facts, is the source of much error. The plaintiffs in the action in hand claimed to be, and the court found they were, at the commencement of the action, owners in fee, seized and in possession of an extensive tract of country described in their complaint, the title to which they acquired by letters patent from the state of California, issued to them in the years 1876 and 1877, and under a statute of the state entitled "An act to provide for determining the rights of parties in certain swamp and overflowed lands in Fresno and Kern counties," approved March 20, 1878. The lands, it is alleged, are situate along and bordering on a natural water-course known as "Buena Vista Slough," and along and bordering on Buena Vista lake and Kern lake, and a natural channel which connects the two lakes. Buena Vista slough is claimed to be the lower portion of a natural water-course known as Kern river, --a river which, rising in the Sierra Nevada, debouches from the mountains into the plains about 10 miles from the town of Bakersfield, in Kern county, whence it flows naturally to and through the Buena Vista slough northward into Tulare lake, and part of its waters through the natural channel connecting Buena Vista lake and Kern lake into the said lakes.
The facts as found by the court are: That the plaintiffs' lands are situated in and form part of the body of the swamp and overflowed lands known as Buena Vista swamps; that a portion of them border on that part of Buena Vista slough south of where the present lower portion of Kern river, known as New river, empties into the slough, and the water of the river, in its natural course, flows into and through the slough, and also to and into Kern and Buena Vista lakes. To the extent that the plaintiffs' lands are situate upon these natural water-courses the plaintiffs are riparian proprietors. As such they claim the right to the natural flow of the water of Kern river through the slough and the natural channel which connects the lakes, and to the use of the same for domestic purposes and irrigation. Unquestionably, the plaintiffs, as owners of lands upon which or between which there is a natural water-course, are entitled to the natural flow of the water in the channel of the water-course, and to its use for domestic purposes, for watering live-stock, and for irrigation. Such a right is a natural right existing in the soil over which the water flows; and if it did, in fact, exist in the soil at the time of the acquisition of title to the soil, it was as much a part of the estate acquired by the title as was the soil itself to which the title attached; and the owner could no more be divested of it against his consent, by the subsequent act of another, than he could be of the soil itself. Water flowing in a natural water-course upon or between a man's lands is, therefore, property in the highest sense of the term. The absolute owner of real property is entitled in law to every right appertaining to it in the condition in which it was at the time of the acquisition of his title to it, and to be protected by law in its enjoyment. In that regard the source of his title makes no difference. A grantee or patentee of land from the state of California or from the United States is certainly entitled to equal, rights in his lands, and to the protection of the law in the enjoyment of those rights as a grantee from the Spanish or Mexican governments.
But the great contention is that the right to the natural flow of the water of Kern river through the natural channels already mentioned, down to and through the lands of the plaintiff, did not exist when the plaintiffs acquired their titles to these lands, and, as it did not exist, it did not pass to the plaintiffs from the state, nor under the statute referred to; because the defendant had, under the authority and sanction of law, while the lands belonged to the state of California, acquired the right to divert the water of Kern river from its natural channel at a point, above the lands of the plaintiffs, and to appropriate it for beneficial uses. As a fact, the court finds that on the fourth of May, 1875, the grantors of the defendant did acquire the right to appropriate 74,000 inches of the water of Kern river, measured under a four-inch pressure, and that under that right they and their successors in interest actually diverted and have continued to divert, at a point in the river above the lands of the plaintiffs, that amount of water from the natural channel of the river by means of a main ditch or canal and its distributing ditches, for the purpose of irrigating lands along the route of the canal and its ditches, and supplying the owners and occupants of such lands with water. Assuming the acquisition of such a right on the fourth of May, 1875, (while the lands which might be affected by it belonged to the state,) as a valid existing right, which has passed to, and vested in, and has been exercised and enjoyed by, the defendant, it is a right superior to that asserted by the plaintiffs; for, as I understand it, it is settled law, so far as this state is concerned, that property in the water of a stream upon the public lands may be acquired by mere appropriation for mining or other beneficial purposes; and that the first appropriator is, to the extent of his appropriation, the owner as against all the world, except the government. Such will be found to be the established doctrine of this court and of the supreme court of the United States in a great number of cases, commencing with Hill v. Newman, 5 Cal. 445, and ending with Broder v. Natoma Water Co. 101 U.S. 274. In the last case the Natoma Water Company, in the year 1853, constructed upon public lands of the United States a canal through which, under a right of appropriation, it brought water from a stream flowing upon public lands for mining and other purposes. Several years afterwards the plaintiff acquired title to the lands upon which the canal was constructed,--to one portion of them by a pre-emption settlement, made under an act of congress passed in 1866, and to the other portion, by deed from a railroad company under a grant to the company. Being an owner of the land, he brought suit against the water company to abate the canal as a nuisance. But the supreme court held that the right of the prior appropriator of the water of the stream, under which the company constructed its canal upon the public lands; was a pre-existing right which the government had recognized and confirmed; and the subsequent grantee of the lands from the government took them subject to the pre-existing right of the company.
But an appropriation of the water of a stream flowing upon public lands, and upon lands held in private ownership, does not affect or destroy riparian rights existing in the stream at the time of the appropriation. Both rights--rights of appropriation and riparian rights--may be acquired by original and derivative acquisition; they may exist together and be held in common as property, and each is entitled to the protection of the law. Riparian rights depend upon the ownership of land which is contiguous to and touches upon a natural water-course. Rights of appropriation arise out of some law or agreement or grant, or the presumption of a grant, arising from the lapse of the period of prescription, or by the operation of the statute of limitations. The difference between the two rights is clearly expressed by the English supreme court of judicature as follows:
"The right to the water of a river flowing in a natural channel through a man's land, and the right to water flowing to it through an artificial watercourse constructed on his neighbor's land, do not rest on the same principle. In the former case each successive riparian proprietor is prima facie entitled to the unimpeded flow of the water in its natural course, and to its reasonable enjoyment as it passes through his land, as a natural incident to his ownership of it. In the latter, any right to the flow of the water must rest on some grant or arrangement, either proved or presumed, from or with the owners of the lands from which the water is artificially brought, or some other legal origin." 31 Eng. Rep. 771.
In the case before us the right asserted by the defendant was not founded upon prescription, nor upon adverse possession, nor the time required by the statute of limitations, nor upon a grant, nor the presumption of a grant. The source of the right is found in the fact that in the year 1875 the lands on which the right originated were public lands, upon which the grantors of the defendant were authorized by law to enter and acquire the right. According to the claim of the defendant, the right, therefore, originated in the policy of the government as to its public lands. But if the lands did not, at the time of the acquisition of the right, belong to the government, but had passed into the ownership of riparian proprietors, then such lands were not in a condition in which any rights appertaining to them, or incidental to them, could be legally appropriated by any one without the consent of the true owners. The water of a stream running upon a man's lands cannot be appropriated, without his consent, for a private use, nor can it be taken from him for a public use without compensation according to the law of the land. Whether the lands involved in the trial of the case were public lands at the time the right to appropriate the water of Kern river was acquired by the grantors of the defendant was, therefore, the question at issue in the case. The evidence before the court upon that question preponderated in favor of the defendant, because it proved satisfactorily that the right to the water had vested in its grantors by prior appropriation, before the patents were issued by the state to the plaintiffs for their lands. The rights of the plaintiffs in the lands acquired by them were therefore subordinate to the pre-existing right of the defendant to the water. But the plaintiffs offered to prove that the lands belonged to them, as purchasers from the state, under certificates of purchase which they held as evidence of ownership at the time the grantors of the defendant originated their right. But the court excluded the evidence, and that, I think, was a material error, for which the order should be reversed.
MORRISON, C. J.
I concur in the views expressed by Mr. Justice Ross, and in his dissenting opinion.
DISSENT BY: ROSS
DISSENT
ROSS, J., dissenting.
As I am unable to concur in the judgment of the court, or in the reasons given in support of it, I think it proper, in view of the great importance of the main question involved, to state the grounds of my dissent. In effect, the conclusion reached by the majority is that the grantee of any legal subdivision of the public lands of the United States or of the state, through or along which a stream of water flows, is lawfully entitled--at, least, as against any one not a riparian proprietor or previous appropriator--to have the water continue to flow in its natural channel, undiminished in quantity and unaffected in quality. In other words, that, as against such grantee, there can be no such subsequent appropriation of any of the water of such stream as will reduce the natural flow in quantity, through however much public land the stream may flow before reaching the subdivision granted. This, of course, is conceding that the court below should have allowed the plaintiffs to have put in evidence their certificates of purchase, some of which antedated the appropriation under which the defendant claims, and concedes, further, that the certificates of purchase conferred upon the plaintiffs the same rights, with respect to the water in question, as would have been conferred by patents, and that the lands of the plaintiffs border upon the stream from which the diversion complained of is made. I assume all this because, from the view I take of the main question, those matters become immaterial. The validity of appropriations made prior to the grant from the state or the United States I understand to be conceded in the opinion of the majority.
Although numerous contests with respect to water have arisen and been adjudicated by the supreme court of this state, as well as by the supreme court of the United States, neither court has heretofore been called upon to decide the precise question now at issue. But the principle which, in my opinion, should control its determination has been uniformly held by both tribunals. The doctrine that the water of a stream must continue to flow in its natural course undiminished in quantity has been so far modified in states with the climatic conditions of Massachusetts and Illinois, as to permit the diversion of water for the purposes of irrigation, where the quantity of the stream is necessarily diminished by at least the quantity absorbed in the irrigation of the land upon which it is put. Especially should this be so in California, where, in a great part of the state, water is its very life-blood. Every practical man must know that, with the dry atmosphere and porous soils of those sections requiring irrigation, but little, if any, of the water diverted and used in irrigation is or can be returned to the stream from which it is taken. To establish, therefore, as the law of this state that the water of a water-course must flow on in its natural channel undiminished in quantity, would, in effect, be to convert the fertile fields, gardens, orchards, and vineyards in many and great sections of the state into waste and desert places. Such a rule is inapplicable to the condition of things existing here. The common law is supposed and has been said to be the perfection of human reason, but it would be the very reverse of this to hold that the waters of the streams of California must continue to flow in their natural channels until they sink into the sand or waste themselves in the sea, while orchards, vineyards, and growing crops, of immense if not incalculable value, perish for thrist.
In the case of People v. Canal Appraisers, 33 N.Y. 482, the court of appeals of New York quoted with approval this language of Judge BRONSON: "I think no doctrine better settled than that such portions of the law of England as are not adapted to our condition form no part of the law of this state. This exception includes not only such laws as are inconsistent with the spirit of our institutions, but such as were framed with special reference to the physical condition of a country differing widely from our own. It is contrary to the spirit of the common law itself to apply a rule founded on a particular reason to a law, when that reason utterly fails,--cessante ratione legis, cessat et ipsa lex." And in McClintock v. Bryden, 5 Cal. 100, this court said: "The wants and interests of a country have always had their due weight upon courts in applying principles of law which should shape its conditions; and rules must be relaxed, the enforcement of which would be entirely unsuited to the interests of the people they are to govern." In the case of Atchison v. Peterson, 20 Wall. 511, the supreme court of the United States held that, as respects the use of water for mining purposes throughout the Pacific states and territories, "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 necessities of miners, and inadequate to their protection. By the common law," said the court, "the riparian owner on a stream not navigable takes the land to the center of the stream, and such owner has the right to the use of the water flowing over the land as an incident to his estate. And as all such owners on the same stream have an equality of right to the use of the water, as it naturally flows, in quality and without diminution in quantity, except so far as such diminution may be created by a reasonable use of the water for certain domestic, agricultural, or manufacturing purposes, there could not be, according to that law, any such diversion or use of the water by one owner as would work material detriment to any other owner below him. Nor could the water by one owner be so retarded in its flow as to be thrown back to the injury of another owner above him." In the subsequent case of Basey v. Gallagher, 20 Wall. 682, the court held that the views expressed and rulings made in the case of Atchison v. Peterson "are equally applicable to the use of water on the public lands for purposes of irrigation."
It has never been held by the supreme court of this state that the waters of the non-navigable streams of the state are not subject to diversion for the purposes of irrigation. On the contrary, the right so to divert them has been frequently upheld. The latest case upon the subject is that of the Anaheim Water Co. v. Semi-tropic Water Co. 12 Pac. C. Law J. 158.
In the case at bar no question arises as to the rights of grantees of Spanish or Mexican grants, or their successors in interest, through or along whose land a stream of water flows, either as between themselves or others. The question here is between a purchaser of a part of the public land of the state, derived from the United States, and an appropriator of water upon the public lands of the United States. From the foundation of the state, waters pertaining to the public lands of both the federal and state governments have been appropriated and used for mining, agriculture, and other useful purposes. Such appropriation and use was first sanctioned by custom, next by the decisions of the courts, and finally by legislative action on the part of the United States as well as the state. It thus became a part of the law of the land, of which every citizen was entitled to avail himself, and of which every purchaser from the United States, as well as the state, was bound to take notice. In protecting, therefore, the rights of appropriators of water upon the public lands of the state and of the United States, no wrong is done to the purchasers from either government. That from the very beginning it has been the custom of the people of the state to divert from their natural channels the waters of the streams upon the public lands, and appropriate the same to the purposes of mining, agriculture, and other useful and beneficial uses, is a part of the history of the state. That such diversions and appropriations have been from the earliest times recognized and sanctioned by the supreme court of the state, is equally true. Numerous cases attest this fact. Irwin v. Phillips, 5 Cal. 140; Tartar v. Spring Creek Water & M. Co. Id. 397; and Conger v. Weaver, 6 Cal. 555, are among the earliest. In Hill v. King, 8 Cal. 338, Chief Justice MURRAY, who dissented in Conger v. Weaver, used this language:
"The right to appropriate the waters of the streams of this state for mining and other purposes has been too long settled to admit of any doubt or discussion at this time. Some of the older English authorities held that a right to water might be acquired by a riparian proprietor by appropriation, and this court might, with propriety, have maintained the rights of water companies on the ground that they were riparian owners; but it has based this right on the ground that the legislation of the state has given to every one, not only a privilege to work the `gold placers,' but also to divert the streams for this and other purposes. The legislation of the state has been held to amount to a `general license to all,' (whether properly, is not for me to say, the point having been decided by a majority of the court against my own opinion, --see Conger v. Weaver, October 2, 1856,) and when these ditches have been constructed they are regarded as a franchise or easement, belonging to the proprietors, and are entitled to protection as any other property."
In Irwin v. Phillips, supra , after stating that a system of rules had been permitted to grow up with respect to mining on the public lands by the voluntary action and assent of the population, whose free and unrestrained occupation of the mineral region had been tacitly assented to by the federal government, and heartily encouraged by the expressed legislative policy of the state, the court said: "So fully recognized have become these rights, and without any specific legislation conferring or confirming them, they are alluded to and spoken of in various acts of the legislature in the same manner as if they were rights which had been vested by the most distinct expression of the will of the law-makers." The California reports abound with cases to the same effect. McDonald v. Bear River & A. W. & M. Co. 13 Cal. 232; Ortman v. Dixon, Id. 38; McKinney v. Smith, 21 Cal. 381; Smith v. O'Hara, 43 Cal. 374; N. C. & S. C. Co. v. Kidd, 37 Cal. 314; and Rupley v. Welch, 23 Cal. 455, are among them.
It is true that in none of these cases was it a question of right between a grantee of either the federal or state government, and an appriator of the waters. But the cases are cited to show that from the foundation of the state government the people of the state have been accustomed to do that which, according to the rule of the common law, they could not have done, namely, to divert and appropriate the waters of the streams flowing over the public lands for the purposes of mining, agriculture, and other beneficial uses; that this custom, which is wholly at variance with the accepted principles of the common law, has been from its very beginning acquiesced in by the state government, has been, as said by this court in 1855, in the case of Irwin v. Phillips, "heartily encouraged by the expressed legislative policy of the state," and has all along been recognized, sanctioned, and confirmed by the highest judicial tribunal of the state. Not only this, but the federal government, first by its silent acquiescence and afterwards by express statutory enactment, assented to this departure from the principles of the common law with respect to the waters upon the public lands in California. And it did so for the same reasons and in much the same way that the state of California assented to it. Allusion has already been made to the case of Atchison v. Peterson, in which the supreme court of the United States said that, as respects the use of water for mining purposes in California, "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 necessities of miners and inadequate to their protection;" and also to the subsequent case of Basey v. Gallagher, in which the same learned court declared that the views expressed and the rulings made in Atchison v. Peterson "are equally applicable to the use of water on the public lands for purposes of irrigation." In Broder v. Water Co. 101 U.S. 276, which is also a California case, the supreme court of the United States said:
"It is the established doctrine of this court that rights of miners who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches, to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged, and was bound to protect, before the act of 1866."
--Referring to the act of congress of July 26, 1866, the ninth section of which contains this declaration:
"That wherever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals, for the purposes aforesaid, is hereby acknowledged and conferred."
And the court added:
"We are of opinion that the section of the act which we have quoted (the ninth) was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one."
The court, accordingly, in the Broder Case, without regard to the act of 1866, protected the right of defendant to divert the water there in question from its natural channel, upon the ground that the government had, by its conduct, recognized and encouraged, and was bound to protect, such diversions. It seems to me, therefore, that this court, in the late case of Osgood v. Water & Mining Co. 56 Cal. 571, was entirely justified in saying, as it did, that "the principle of prior appropriation of water on the public lands in California, where its artificial use for agricultural, mining, and other like purposes is absolutely essential, which has all along been recognized and sanctioned by the local customs, laws, and decisions, was thus expressly recognized and sanctioned by the supreme court of the United States, and also by the act of congress of 1866." It was this principle, and nothing else, that secured the defendant, in the case of Broder v. Water Co., in the continued enjoyment of the water it had appropriated as against a grant from the government antedating the act of 1866; for the court in terms declares: "We do not think that the defendant is under the necessity of relying on that statute." The defendant had acquired the right to divert the water from its natural channel and appropriate it to a useful purpose, because the government, by its conduct through a long series of years, in view of the necessities of the country, which were widely different from those of the country from which the common law was taken, had recognized and encouraged such diversions and use of the waters upon the public lands. The government permitted the principle of appropriation of such waters to grow up and become a part of the law in relation to the public lands, and therefore, in construing the grant from the government, the court considered it with reference to the principle of appropriation, and protected the rights of the defendant which arose under and by virtue of that principle. The common-law doctrine of riparian rights being wholly inconsistent with and antagonistic to that of appropriation, it necessarily follows that when the federal and state governments assented to, recognized, and confirmed, with respect to the waters upon the public lands, the doctrine of appropriation, they, in effect, declared that that of riparian rights did not apply.
The doctrine of appropriation thus established was not a temporary thing, to exist only until some one should obtain a certificate or patent for 40 acres or some other subdivision of the public land bordering on the river or other stream of water. It was, as has been seen, born of the necessities of the country and its people, was the growth of years, permanent in its character, and fixed the status of water-rights with respect to public lands. No valid reason exists why the government, which owned both the land and the water, could not do this. It thus became, in my judgment, as much a part of the law of the land as if it had been written in terms in the statute books, and in connection with which all grants of public land from either government should be read. In the light of the history of the state, and of the legislation and decisions with respect to the subject in question, is it possible that either government, state or national, ever contemplated that a conveyance of 40 acres of land, at the lower end of a stream that flows for miles through public lands, should put an end to subsequent appropriation of the waters of the stream upon the public lands above, and entitle the grantee of the 40 acres to the undiminished flow of the water in its natural channel from its source to its mouth? It seems to me entirely clear that nothing of the kind was ever intended or contemplated. Of course, the doctrine of appropriation, as contradistinguished to that of riparian rights, was not intended to, and, indeed, could not, affect the rights of those persons holding under grants from the Spanish or Mexican government-- First, because the doctrine is expressly limited to the waters upon what are known as the public lands; and, secondly, because the rights of such grantees are protected by the treaty with Mexico and the good faith of the government. It is the rights of such riparian proprietors as those that are unaffected by the doctrine of appropriation, and those are the riparian rights that are excepted from the operation of the provisions of the Civil Code, in relation to "water-rights," by section 1422 of that Code, which reads: "The rights of riparian proprietors are not affected by the provisions of this title." That Code, as well as the other Codes of California, went into effect the first of January, 1873. The appellants contend, and the prevailing opinion holds, that, by the section of the Civil Code just quoted, the legislature of the state declared that the common-law doctrine of riparian rights should apply to all the streams of the state. It seems very clear to me that this is not so for many reasons. Leaving out of consideration the question whether it lay in the power of the state to nullify the doctrine of appropriation established by the United States with respect to the waters flowing over their lands,--established, too, in pursuance of the policy the state itself had previously adopted, and for the advancement of the interests of the people of the state,-- I find nothing in the Civil Code, or in any of the other Codes, to indicate any intention on the part of the legislature of the state to return to the doctrine of riparian rights with respect to the waters upon the public lands. On the contrary, the Code enacts in statutory form, in language as clear as language can be made, the theretofore prevailing law of appropriation. Title 8 of the Civil Code is headed "Water-rights." The first section of that title--section 1410 of the Code--declares: "The right to the use of running water flowing in a river or stream, or down a canon or ravine, may be acquired by appropriation."
Can anything be clearer? By the common law the water flowing in a river or stream, or down a canon or ravine, could not be acquired by appropriation, and must continue to flow in its natural channel undiminished in quantity and unaffected in quality. Could there be any clearer declaration of the fact that the common-law doctrine of riparian rights should not apply to the streams of this state, than is found in this declaration of the statute that the waters of such streams may be acquired by appropriation? The statute proceeds:
"Sec. 1411. The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose, the right ceases.
"Sec. 1412. The person entitled to the use may change the place of diversion if others are not injured by such change, and may extend the ditch, flumes, pipe, or aqueduct by which the diversion is made, to places beyond that where the first use was made.
"Sec. 1413. The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed, but in reclaiming it the water already appropriated by another must not be diminished.
"Sec. 1414. As between appropriators, the one first in time is the first in right."
Next follow sections providing the manner in which appropriations shall be made. Section 1420 provides that "persons who have heretofore claimed the right to water, and who have not constructed works in which to divert it, and who have not diverted nor applied it to some useful purpose, must, after this title takes effect, and within twenty days thereafter, proceed as in this title provided, or their right ceases;" and the last section of the title--1422--is the one already quoted, and reads: "The rights of riparian proprietors are not affected by the provisions of this title."
The construction claimed by appellants, and, in the prevailing opinion, given of this last section, in effect wipes out all the provisions of the title, to which it is but a saving clause. This is reversing the established rule of construction, as I understand it. To my mind, nothing is clearer than that, by the provisions of the Code referred to, the legislature continued in existence the pre-existing law with respect to the appropriation of waters upon the public lands; and as both the federal and state governments, in the exercise of a policy eminently wise and just, substituted the doctrine of appropriation for the riparian doctrine, so far as the public lands and the waters pertaining thereto are concerned, the only riparian proprietors to which the saving clause can apply are such as hold under grants from the Spanish or Mexican governments. In other words, that, in adopting the provisions of the Civil Code in question, the legislature did but codify the pre-existing law upon the subject.
From the views I entertain upon the main proposition in the case, the other questions discussed by counsel and in the prevailing opinion become unimportant. In my opinion, the order appealed from should be affirmed, and I therefore dissent from the judgment given here.
MYRICK, J.
I concur in the foregoing dissenting opinion.