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

Riparian Rights from another Standpoint.
of the riparian owners between them and
the stream, but because of the rights and for
the benefit of the hundreds of owners of
lands below upon the stream. Were the ripa rian owners between them and the stream
to assent, the diversion could not be accom plished, because it would involve injury to
those hundreds below. Nor are the owners
of the outlying tracts without benefit from
the riparian doctrine. So far as their lands
are in the river plain, and are naturally irri gated by the seepage or percolation through
the soil of water from the stream, they have
riparian rights. Were all the owners of lands
upon the banks of the stream to consent to
the diversion of all the water of the stream
at a point above, these owners of outlying
tracts would have a remedy, in case, through
the cessation of natural irrigation through the
soil, their lands were rendered appreciably
dry and less fruitful.
The provisions of the civil code of California (pp. I4IO, I422), while they cannot
authorize an interference with riparian rights,
and therefore cannot authorize the appropriation of waters ordinarily flowing down our
streams during the summer months, are adapted to enable the appropriation of the flood
waters of our rivers and their storage in reservoirs in the canions in the Sierra Nevadas.
The riparian owner has no property in the
water. His right is confined to the advantages he derives from the ordinary flow of
the stream. In the absence of such provisions, no company could dam up and thus
appropriate flood waters with any assurance
that they might not be deprived of the same
at any moment. If the State so desires, it
may convert the right to reservoir these
waters and to distribute them to the valley
lands into a privilege subject to conditions
imposed by the State, and subject to regulation as to water rates exacted, and as to facilities extended to the agricultural districts.
Thereby many of the abuses which might
otherwise spring from the private control of
the means of artificial irrigation may be prevented. If the State sees fit, the State may
itself proceed to build, at its own expense,
dams and ditches, and to operate the same.
But private enterprise would probably ac complish the desired end with greater cer tainty and efficiency and at less expense. In
this connection, it is to be noticed that the
abolition of riparian rights, if it could be ac complished, would leave the waters open to
appropriation, and the valuable property
would inevitably fall to the strongest, that is
into the hands of private monopolies. If the
State should attempt to manage its waters
through its governmental machinery, as
public property, a paternal element would
be introduced into the State. Such an
element is especially dangerous, when we
consider that in proportion as the adminis tration partakes of that character can the
State be converted to the purpose of com munism with greater ease. The State
would have appropriated property claimed
by individuals, and would be administering
it for the so-called good of all. What better
precedent is needed for the progressive encroachment upon the rights of individuals
for the assumed good of all? What greater
aid can be given to those who seek to use
the State to a paternal or communistic end,
than can be given by creating a large class of
government employees, engaged in the management of governmental works of great magnitude, and a large attendant class seeking
for governmental employment, and eager to
enlarge the industrial activity of the State in
order to increase the number of its employees? The unsuitableness to our country of the laws of France, Italy and other
states, relating to water, consists in the intensely paternal government required for
their administration.
The true course for the State is to protect
vested rights by recognizing the water rights
of riparian owners; to provide for their condemnation, if necessary, to the public use;
and to authorize the appropriation of the
flood waters by private companies and corporations, not in absolute property, but in
pursuance of a privilege extended by the
State and subject in its enjoyment to State
regulation. Thereby rights will be protected,
monopolies prevented, and yet all progress
towards a paternal government be avoided.
John i[ Durst.
[July,
14