Riparian Rights from Another Standpoint [pp. 10-14]

-Riparian Rights from another Standpoint.
off in ditches during the summer months,
and conducted into the valleys. No condemnation of water-rights would be necessary, for the storing of the surplus flow of
the streams would not interfere with the use
of the waters for domestic purposes, with
the natural irrigation along the streams, and
with the water power derivable from the natural fall. The hydraulic mining companies
adopted this system for mining purposes.
They erected enormous dams in the Sierra
Nevadas, and thereby secured for themselves,
without diminishing the usual flow of the
streams, a supply for their summer operations.
The doctrine of riparian rights, as applied
to California, has been stigmatized as unjust,
unwise, and as conducing to monopolies.
But it is very questionable whether that doctrine is not eminently just and wise. The
owner of lands upon a stream does not claim
the right to divert its waters and to vend
them to the public. He claims only the
right to enjoy the natural advantages secured
to his lands by their situation. He has a monopoly of the advantages resulting from the
stream in the sense only in which a man has
the monopoly of a mine when he owns the
land upon which it is discovered, or of the advantages resulting from a fertile soil, or from a
valuable stand of timber upon his property.
He has not a monopoly in the sense that he
has the control of something which is of no
value to him except so far as he can compel
others to pay him tribute for the use thereof.
The irrigationists propose to deprive him of
an intrinsic source of value to his land, in
order that they may reap an equivalent, but
no greater, value. The many men who purchased lands upon our streams, purchased
the same from the government, with the view
of enjoying their natural advantages; and to
deprive them of that which renders their
property valuable is equally unjust and unwise. The waters flowing down our streams
during the months when irrigation is necessary are sufficient to irrigate but a small portion of the lands of the great valleys. They
now serve to naturally irrigate certain strips
of territory, in the possession of private own
ers. There is neither justice nor wisdom in
the diversion of that water to other strips
of territory, leaving the former dry and infertile. The State is not enriched thereby.
The only result is the impoverishment of one
class for the benefit of another. Were it competent for the State to declare the waters of
our streams public property, the only consequence would be a struggle to appropriate the
same, resulting in the exclusive appropriation
of the waters naturally running during the
summer months to the use of a limited territory or class. Ultimately, the method of storing the winter floods would have to be resorted to, as the only means of supplying irrigation facilities to the entire territory within
our valleys.
The riparian doctrines of the common law
are, as a matter of fact, a magnificent foundation upon which to base a State system of
water laws and irrigation rights. They determine with accuracy the rights of all parties to the natural and ordinary flow of our
streams. The particular objections urged to
the doctrines on the score of justice are more
specious than real. The case frequently cited as an instance of their unjust operation,
when carefully examined, is found to involve
no element of injustice. That case is where
an owner of lands, extending, say, ten miles
from the side of a stream, divides the land
into twenty-acre lots, and sells the same to
different purchasers. It is urged that an
injustice is done to the owners of the lots
not bordering upon the stream; but such is
not the case. It is true that the owners of
the lots adjoining the stream alone enjoy
the use of the stream for domestic purposes,
alone enjoy the water power and the opportunity to artificially irrigate their lands,
so far as they can do so without diminishing the volume of the natural flow. But
they have paid for those advantages by
paying a greater price for their lands;
while the owners of outlying lots have purchased their lands with full knowledge of the
absence of such advantages. The latter are
not debarred from the privilege of diverting the water for purposes of artificial irrigation because of the rights or for the benefit
1885.]
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