Irrigation and Drainage [pp. 19-32]

22 Irrzgation and Drainage. [July
one to all the people of this State to consid- ces." Unless so applicable, the common laI
er, both in economic and legal aspects. was repudiated by the Continental Congress
By the act of April 13, i850, the Califor- as England would have repudiated it if
nia Legislature enacted that "The common had ceased to be applicable to her necessities
law of England, so far as it is not repugnant The United States Supreme Court has de
to, or inconsistent with, the constitution or dclared that the common law of America i
laws of the State of California, shall be the not to be taken in all respects to be that o
rule of decision in the courts of this State." England, but that the settlers adopted onl
Upon this enactment, the structure of "ri- that portion which was applicable to the
parian rights" rests, and the right of appro- situation. The constitutions of many State
priation is denied, however destructive the contain language similar to the Statute C
consequences. The State then signed the i85o, and contain no words of exemption o
bond, giving the pound of flesh; it enacted such portions of the common law as are in
away all control, ownership, and beneficial applicable to the condition or necessities c
use of its waters, and improvidently wrote the particular community; notably in Ne
ruin upon most of its territory. So runs the York, New Hampshire, and Massachusetts
argument. It is necessary to its conclusive- and yet the courts in those States have hel
ness to insist that the common law is inflex- that the common law is not a rule of deci
ible in its provisions, unbending to circum- ion where opposed to the wants of the people
stances, uninfluenced by the necessities of As an illustration of the modification
the people, which its provisions govern.'rhe the English common law in the Unite
laws of legislatures may be changed, consti- States may be instanced tbe case of ancien
tutions be modified by amendment, or ex- lights. Blackstone says: "If one obstruc
plained away by courts; but the common another's ancient windows, the law will an
law of England is fastened on the State, madvert hereon as an injury, and protec
and may throttle it, and there is no relief, the injured party in his possession." Th
unless judges in England vary its tendencies. doctrine is as well seated in the Englis
New conditions may arise here-but they common law as is that of riparian right
must yield to it; new discoveries may be Any one passing Cheapside and other bus
made in art, science, and political economy, traffic streets in East London, will see wher
of all of which the originators of the common in the march of modern improvement, ol
law had no conception-yet they must wait buildings have been pulled down to ere
upon its teachings, and abide by its slightest finer structures. On the sqtlatty neighborin
indications. No people ever assumed meek- buildings, at little windows looking out on o
ly a more intolerable yoke, or submitted to courts or alleys, are put numerous signs bea
a more absurd bondage, if this be true. But ing the inscription, "Ancient l.ights," as