/// iiiiiiiiiiigiiiMiiiiigBi^ .. .. ..^ r ^j^^gt^^^ . J Nos. 8587-8588. 1~^-*-* 9 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA. IN BANK. CHARLES LUX et al. VS. JAMES B. HAGGIN et al.. Opinion Filed April 26, 1886. STETSON & HOUGHTON, Plaintiffs' Attorneys. McAllister & beegin, Of Counsel. LOUIS T. HAGGIN, Defendant's Attorney. GARBER, THORNTON & BISHOP, FLOURNOY & MHOON, Of Counsel. 16 5 1 6 Cl L^ ^ San Francisco, August 9, t886. The decision of the Supreme Court in Lux v. Haggi/i, although filed four months ago, has never been printed in such form as to se- cure its being read by members of the Bar even. Very few persons have read the opinion, and there is a general misunderstanding as to just what views the Supreme Court expressed, in that case, on the important question of riparian rights. The Governor of the State, in a public proclamation, has mis- stated what was decided by the Court in that case, and we can hardly expect that persons less interested in the question will do other than accept his statement as made after a careful reading of the opinion to and a full understandmg of its purport, and as giving a correct ^ exposition of the views expressed by the Supreme Court. >r To every attorney at least, who has read the lengthy opinion in g Lux V. Haggin, it will be ap[)arent that Governor Stoneman either did ^ not carefully consider the statements contained in the proclamation 3= calling the special session of the Legislature, or that he had not read ^ the opinion in that case. "^ As the opinion will not appear in a regular report for some months at least, we have had it printed in such form that it may be read by any one who is interested in the important questions consid- ered and decided in the case. STETSON & HOUGHTON. aiiiM)*) INDEX. I. Page. As tJie case loas presented in the Court heloiu the plaintiffs were not estopped from seeking relief by injunction, by reason of their laches or delay 3 II. The plaintiffs are not estopped from maintaining this action by reason of their assent to and approval of certain acts of a third person — Tlie Kern Valley Water Company 20 III. While the argument ab inconvenienti should have its proper weight in ascertaining what the laiu is, there is no "Public Policy " ivhioh can empower the Courts to disregard the law; or because of an asserted benefit to many persons (in itself doubtful) to overthroio the settled laiv. This Court has no power to legislate; especially none to legislate in such manner as to deprive citizens of their vested rights. The riparian doners property in the ivater of a stream may (on payment of due compensation to him) be taken to supply "farming neighborhoods " loith water. In case further legislation shall be deemed expedient for the distribution of water to public uses (the private right being paid for) the validity of such further legislation is to be determined after its enactment, if its validity shall then be questioned 29 11 IV, By the law of 3Iexico the running loaters of California luere not dedicated to the common use of all the inhabitants, in such sense that they could not be deprived of the common use Page. 39 V. Upon the admission of California into the Union, this State be- came vested with all the rights, sovereignty and jurisdiction in and over navigable loaters, and the soils under them, lohich were possessed by the original States after the adoption of the Constitution of the United States. Since the admission of California into the Union, the public lands of the United States (except such as have been re- served or purchased for /o7is, navy yards, public buildings, etc.), are held as are the lands of private persons, except that they cannot be taxed by the State, nor can the primary disposition of them be inteifered ivith 56 Since, if not before the admission of California into the Union, the United States has been the oioner of all innavigable streams on the public lands of the United States, luithin our borders, and of their banks and beds. A grant of j^ublic land of the United States carries with it the common-law rights to an innavigable stream thereon, unless the waters are expressly or impliedly reserved by the terms of the patent, or of the statute granting the land, or unless they are reserved by the congressional legislation au- thorizing the patent or other muniment of title 57 rii. The State of California became the oiuner of the swamp lands, described in the complaint herein, on the 28^A day of Sep- tember, 1850 60 Ill VIII. It has never deen held by the Siqweme Court of the United States, or by the Supreme Court of this State, that an appropria- tion of loater on the p)uhlic lands of the United States (made after the Act of Congress of July 26, 1866, or the Amenda- tory Act of 1870) gave to the appropriator the right to the water appropriated as against a grantee of riparian lands, under a grant made m^ issued prior to the Act of \^QQ; except in a case luhere the luater so subsequently appropriated ivas reserved by the terms of such grant 63 IX. The rights of the Stcde under the grant of September 28, 1850, do not depend upon, nor are they limited by the decisions of the State courts ivith respect to controversies upon the public lands of the United States. Those decisions do not enter into nor operate upon the subsequent legislation of Con- gress, in such manner as to require that the legislation (or its affirmance of rights recognized by the State courts as ex- isting betioeen occupants upon the public lands of the United States) must be construed as an attempt to deprive the State of its vested rights. If the decisions mentioned can be referred to for any pur- pose, semble : That the occupant of a tract of riparian land (arable or grazing) on the public domain is by such decisions presumed to have received a grant of the floiving tvater, to the extent of the common-laio right to the use of such loater as itfloivs through the land. And if the doctrine as to adverse claims upon the public lands as declared by these decisions be extended to lands granted to the Stcde, it cannot effect the title or estate of grantees of the State (the tvater not being reserved in the grants or in the legislation authorizing the grant). The doctrine is applicable alone to actions in lohich both parties claim only by possession 67 IV X. Page. TJie common laiv as to the riparian rir/his was not ahrogated by certain statutes of the State, applicable to a district of coun- try ivithin ivhich is included the County of Kern; nor was the State estopped by such statutes from asserting its right to the flow of a natural stream, from that district, to and over the lands granted to the State by the Act of Congress of 1850 76 XI, Section 1,422 of the Civil Code {^^Tlie rights of riparian proprietors art not afftcted by the provisions of this title'') is protective, not only of riparian rights existing lohen the Code ivas adopted, bid also of the riparian rights of those who acquired a title to land from the State, after the adop- tion of the Code and before an appropriation of tvater in accordance loith the Code provisions. Neither a grantee of the United States nor the grantee of a private person, luho ivas a riparian owner when the Code loas adopted, need rely for protection on Section 1,422. Such persons are protected by constitutional principles. The State might have reserved from her grants of land the tvaters foiuing through them, for the benefit of those ivho should subsequently appropriate the waters. But the State has not made such reservation. The water rights of the State, as riparian owner, are not reserved to the State by Section 1,422, because (ivhe^-ever the State has not already j^arted ivith its right to those who have acquired from her a legal or equitable title to riparian lands) the py^'o visions of the Code confer the State rights to the fLoiv on those approp)riating ivater in the manner prescribed by the Code 82 XII, Tlie statute of April l^th, 1850, adopts the common law of Eng- land, not the civil law, nor the *' ancient common law " of the civilians, nor the Mexican law. . . Page. In ascertaining the common law of England we may and slioidd examine and iveigh the reasoning of the decisions, not only of the English courts, but also of the courts of the United States and of the several States, down to the prtseid time. We are not limited to the consideration of the Eng- lish decisions rendered 'prior to July 4, 1776. The possessory rights of occupants of portions of the public lands, or of waters thereon {recognized by the Cali- fornia courts) are protected by the common law 91 XIII, 21ie doctrine of "appropriation,''^ so called, is not the doctrine of the common law .... 97 XIV. Riparian Eights. By the common law the right of the riparian proprietor to the flow of the stream is inseparably annexed to the soil, and passes with it, not cts an easement or appur- tenance, but as part and parcel of it. Use does not create the right, and disuse cannot destroy or suspend it. The right in each extends to the natural and usual fiow of all the ivater, unless where the quantity has been diminished a^ a consequence of the reasonable application of it by other riparian owners, for purposes hereafter to be mentioned. . . 99 XV. By our law the riparian proprietors are entitled to a reasonable use of the ivater s of the stream for the purpose of irrigation. What is such reasonable use is a question of fact, and de- pends upon the circumstances appearing in each particular case. 102 XVI. On behalf of the defendant certain witnesses gave testimony tending to prove that, after the commencement of the action and issue joined, and daring the trial of this action, there VI Page. was no tvatercourse as claimed and no channel through which ivater could have flowed. The Court aired in reject- ing evidence offered by the plaintiffs^ in reply, tending to prove that after tJie dates mentioned by said loitnesses for de- foidant there teas a watercourse and channel 114 XVII, The Court below erred in rejecting all or some of the certificaies of purchase offered by the plaintiffs in reply 123 In the Supreme Court OF THK STATE OF CALIFORjYIA. IN BANK [Filed April 26, 1886.] CHAELES LUX and OTHERS vs. V Nos. 8587-8588 JAMES B. HAGGIN and OTHERS. _/ The question being — Can a private corporation divert the waters of a watercourse and tliereby deprive the riparian proprietors of all use of the same, without compensation, made or teadered, to such proprietors, Held : 1. The owners of land by or through which a watercourse naturally and usually flows have a Tight of property in the waters of the stream. 2. This property may be taken for a public USE, just compensation being first made, or paid into Court. Water to supply ^^ farming neighborhoods " is a public use. And it is for the Legislature to determine whether, in the exercise of the power of eminent domain, it is necessary or expedient to provide further legal machinery for the ap- propriation (on due compensation) of private rights to the flow of running streams and the distribution of waters thereof to public uses. 3. But one private person cannot take Ids property from another, either for the use of the taker or for an alleged public use, without any compensation paid or tendered. (Constitution, Art. I, Sec. U). 4 Riparian owner sniay reasonably use water of the stream for purposes of irrigation. 5. The Court below erred in rejecting certain evidence offered by the appellants. This action was commeuced by Charles Lux, Henry Miller, James C. Crocker and others, as plaintiffs, against James B. Haggin and many individuals and corporations, as de- fendants. By dismissals and amendments Lux, Miller and Crocker became the onl}' plaintiffs, and the Kern Kiver Land and Canal Company the solo defendant. Since the amended complaint was filed, the suit has been prosecuted to obtain a decree enjoining the defendant, the Kern River Land and Canal Company, from diverting waters of Kern River, which, it is alleged, had flowed down a watercourse known as Buena Vista Slough, through lands of the plaintiffs described in the com[)laint, and Avhich (if not diverted) would have continued so to flow. Plaintiffs have appealed from a judgment in favor of the defendant and from an order denjing a new trial. Before proceeding to decide what are the respective rights of riparian proprietors and appropriators of water, or to inquire into certain alleged errors of the Court in rejecting evidence offered by the plaintiffs at the trial below, we propose to consider points made by respondent which, if well taken, demanded an affirmance of the judgment, even though the "common law" as to riparian rights now prevails, or formerly prevailed, in this State. I. As the case was presented in the Court below the pkdntiffs luere not estopped from seeking relief hy injunction, by reason of their laches or delay. Asa conclusion of law from certain facts found the Court below declared "that the plaintifi's have been guilty of such laches and neglect as disentitle them to any relief in this action." And it is insisted in this Court, by counsel for respondent, "that plaintiffs have been guilty of such laches as disentitles them to any relief in equity." First — They are estoppels in pais, as where a defendant is induced to act by the declarations or conduct of a plaintiff — which are a defense both at law and equity. Here we cannot discover the elements of such an estoppel. The de- fendant has acted with full knowledge of all the facts, and, as must be presumed, with full knowledge of the law con- trolling the rights of the parties. To constitute the estoppel the party claiming the benefit of it must be destitute of knowledge of his own legal rights and of the means of acquiring such knowledge. {Biddle Boggs\. 3Ierced, 14Cal., 279; Stockman v. Riverside, 64 Id., 57; 3IorriUy. St. Anthony Falls, 26 Minn., 229.) To constitute such an estoppel it must also be shown, that the person sought to be estopped has made an admission or done an act, ivith the intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, inconsistent with the evidence he proposes to give, or the title he proposes to setup; that the other party has acted upon or been in- fluenced by such act or declaration; that the party so in- fluenced will be prejudiced by allowing the truth of the ad- mission to be disproved. {Brown v. Bowen, 30 N. Y., 519; Plumb V. Cattaraugus, 18Id. , 392.) In the case before us the fact relied on as proving the estoppel is that plaintiffs had knowledge of the expensive canals and other works of defendant, while they were in progress, and did not object to them. The bare fact that ditches, etc., weie constructed with the knowledge of the plaintiffs, though at great ex- pense, without objection by phiintitfs is not snfficient to constitute (such) an estoppel. (^Sfockmcoi v. Biverside, supra.) Second — Where an express statute of limitations applies to a suit in equity mere delay to commence the suit for a pei'iod less than that of the statute of limitations, is never a reason for dismissing the proceeding. And when the defendant relies on mere delay and his own adverse use, the statutory period having expired, he must plead the statute. A ]^arty claiming the right to use water by adverse possession for the statutory time, must set up the same as a defense in his answer. {American Co. v. Brad- ford, 27 Cal., 360.) Appellants contend that they had five years after their cause of action accrued within which to bring this action. It may be conceded, however, for all the purposes of this case, that the Code of Civil Procedure limited them to four years. It has been repeatedly decided in this State that Section 343 of the Code of Civil Procedure ("An action for relief not hereinbefore provided for must be commenced within four 3'ears after the cause of action shall have accrued ") applies as well to suits in equity as to actions at law. The same effects, positive and negative, follow from Section 343 as from other sections of the Code prescribing the periods within Avhich actions may and must be commenced. With reference to other limitations a party cannot be refused a hearing if he shall bring his action within the period named; and as to suits to which Section 343 is applicable, mere lapse of time, less than four years, is not ground for de- fence. Throughout the Code suits in equity are called " actions." Sections 34r) and 347 expressly relate to certain snits in equity. Section 307 declares " there is but one form of civil action," etc. That section does not abolish the distinction recognized by the Constitution between law and equity, but it indicates the legislative intent that the subsequent ])rovisions of the Code sliould be applicable to legal and eqnital)lc proceedings. The word "hereinbefore," in Section 343, has never been held to limit its operation to actions at law, but it has often been held to the contrary. Third — It is said that when a court of equity is asked to exercise its jurisdiction, by means of injunction, it will decline to intervene, when there has been laches, although the statutory period of limitation has not expired. It would seem that the discretion of a court of equity in dismissing suits for unreasonable delay (in view of the facts appearing in each particular suit) was originally exercised, and has generally been employed, where there is no statute of limitations directly applicable; or where the statute has been held generally applicable by analogy — courts of equity reserving the power to recognize exceptions to the general rule. And in exercising its prudent discretion in the last class of cases, the court, as the equities demanded, Avould sometimes dismiss a bill before the corresponding period at law had run, and sometimes entertain a cause long after the running of the time prescribed in the statute. Thus the power to entertain or to refuse to entertain a cause was said to be exercised "independent of any statute of limitations." Mr. Wood in his work on Limitations, remarks: "It is generally held by our couris that, except in the single case of concurrent jurisdiction" (where the statute, like a statute in terms relating to suits in equity, operates ex vicjore siio) "courts of equity may act by analogy or not as the ends of justice and the strict equity of the case may require. " (See. 59.) It was said by Lord Camden: "From the beginning there lias always been a limitation to suits in this couit. ■^ * * But .IS the Court has no legislative authority it could not properly define the time of bar, by a positive rule, to an hour, a minute, or a year. It was governed by circumstances. " Sir Thomas Plummer spoke thus of courts of equity: " They have refused relief to stale demands even when no statutory limitation existed," etc. (Cholmondeley\. Clinton, 2 Jac. and Walk., 141.) It is said by Mr. Daniell: " When there is no positive limitation the question whether the Court will interfere or not depends upon whether, from the facts of the case, the Court will infer acquiescence, confirmation or release." (1 Ch. Pr., 560-61.) And Judge Story says that, in cases where equity adopts the statutory rule by analogy, it will often treat the lapse of a less period as a presumptive bar, on the ground of discouraging stale claims, or gross laches, or unexplained acquiescence. (Eq. Jur., 1920.) The writer " On Limita- tions" already quoted, says that where the claim is purely equitable and there is no express statute barring it, the rights of the party will be enforced without reference to any statute. (Wood, Sec. 59.) It might be claimed on principle that, inasmuch as the conduct of equity, with respect to laches, etc., and the stat- ute of limitations, are both based on public policy designed to discourage stale demands and to protect against possible loss of evidence, when the Legislature — the peculiar expon- ent of the policy of the Stute — has spoken (by adopting a positive rule of limitation expressly to suits in equity, in which lapse of time alone is the controlling condition) the limitations applied by equity, to cases not previously within the statute, should be regarded as no longer existing or en- forceable. It must be conceded, however, that the weight of authority is to the effect that, where the statute of limitations is di- rectly applicable to a suit in equity, a court of chancery may properly refuse to grant relief by injunction, when the plaintiff' has assented to the acts complained of and their consequences; and that such assent may, in proper cases, be inferred from the plaintiff's acquiesceiice with full knowl- edge of all the facts. Further, the acquiescence, proving assent, may bar relief in equity, although it may not be ac- companied by all the circumstances which would make'it an estoppel at law. Each of the words "delay," "laches" and "acquiescence" has its appropriate meaning. Laches would strictly seem to imply neglect to do that which ought to have been done; ac- quiescence a resting satisfied with or submission to an ex- isting state of things. Laches (at least with other facts) may be evidence of acquiescence, and acquiescence may be evidence of consent. In the decisions of the reported cases, however, "laches" has sometimes been employed as the equivalent of mere delay, and sometimes "laches" or " gross laches" as the equivalent of " acquiescence." It is, therefore, important to consider the context, in connection with which either of these expressions has been used by a Judge, in order to ascertain in what sense it is employed. Speaking of the distinction between laches and acquies- cence, Wood remarks: " While the words 'laches' and ' ac- quiescence ' are often used as similar in meaning, the dis- tinction in their import is both great and important. Laches import a merely passive, while acquiescence implies active assent; and while, when there is no statutory limitation ap- plicable to the case, courts of equity would discourage laches, and refuse relief after great and unexplained delay, yet, Avhen there is such a statutory limitation, they will not anticipate it, as the// imiji when acquiescence has exlste I. Laches, in fact, amount only to that inferfor species of ac- quiescence described in the following terms by Lord Kindess- ley — in Rochdale v. Kinrj, 2 Simon, N. S. 89 — ' mere ac- quiescence (if by acquiescence is to be understood only ab- staining from legal proceedings) is unimportant; where one party invades the right of another, tliat other does not in general deprive himself of the right of seeking redress luerel}^ because he remains passive, unless indeed he con- tinues inactive so long as to bring the case within the pur- view of the statute of limitations.'" (On Lim., Sec. 62.) In cases of concurrent jurisdiction, or where the statute is express, equity will sometimes refuse relief before the statute has run. "But," says the same writer, "this is only in rare and exceptional cases where the party can be said to have aajuiesceci in the wrong of which he complains" (Sec. 59), and the same is said in effect in Beed v. West, 47 Texas, 240. It may fairly be deduced from the authorities we have consulted that the acquiescence, which will bar a complain- ant from the exercise in his favor of the discretionary jurisdiction by injunction, must be such as proves his as- sent to the acts of tlie defendant, and to the injuries to him- self which hive flowed or can reasonably be anticipated to flow, from those acts. If a degree of acquiescence less than establishes such assent has been regarded, in any decision, it will be seen that it has been treated merely as tending to prove some oJher fact which rendered it inequitable to grant a prevent- ive order. We have tried to look at all the vast number of books re- ferred to by counsel, and have not found any asserted doctrine which directly conflicts with what has just been said. The granting or refusing a decree of specific performance of contracts for the purchase of lands — when there has been more or less delay — depends on principles somewhat different, f Green v. Covilland, 10 Cal., 317; Delevan v. DiDican, 49 N. Y., 485.) When the purchaser has not com- plied wi;h his contract, he must show^ why. He must ac- count for his failure in a reasonable manner; must make out a cle ir case, and show that the relief he asks is equit- able. He comes into court with an admission that he has not done all he agreed to do. (Frinh v. Parker, 49 N. T., 1. See also Kirby v. Jacobs, 13 B. Mon., 435 ; JVebber V. Marshall, 19 Cal., 447.) Nor will equity decree specific performance of a contract when its terms and conditions are^^uucertain or indefinite. (Harnett v. Yielding, 2 Sch. & Le Froy, 552.) In Person v. Sanger (Davies' C. C, 264) Ware, District Judge, held that the plaintiif was too late in seeking dam- ages in equity for an alleged fraud in the sale of land . 8 Some of the cases cited relate to applications for a " pre- liminary " injunction, where, the equities being doubtful, the preliminary order was denied. (Societ// v. Hdlsman, 1 Halst., 126; Attorney General v. Sheifield, 3 De Gex, M. k G., 304:.) In the last case Sir Knight Bruce observed " what is now done is not to be considered as deciding what will be done at the hearing of this cause, when pos- sibly an injunction may be granted." xA.ud the Lord Chan- cellor, Cranworih, added — he was not prepared to say it would be discreet for the Court to interfere " interlocutor- ily '' before the fact had been established one way or the other, by atrial. Afterward, when the application came be- fore the Chancellor he denied it on the ground that the plaintiff would be subjected to no serious injury by reason of the temporary obstruction of a street by a gas company. And so in Great Western v. Tlie Oxford (3 De Gex, M. & G. 341), Sir Knight Brace commences by saying — "It is not now to be determined what order or decree it will be proper to mak ) if these cases shall be before the court forbearing. We arc now dealing with interlocutory motions only." A learned writer on injunction says: "While delay may not amount to acquiescence in the wrong for which com- plainant seeks redress, it may yet suffice to prevent his ob- taining relief by injunction." (High, Sec. 7.) In support of this view he refers to the Attorney General v. She^dd, supra, and to Dnlin v. Caldwell (28 Ga., 47.) But the Geor- gia case was an attempt to enjoin referees from making an award, on the ground that the plaintitif (plaintiff also in the cause referred) had been defrauded by reason of the fact that the adverse party, in the cause before the referees, had not fully answered. The Chancellor said the plaintiff ought to have made himself acquainted with the contents of the answers, and ought to have excepted to them if insufficient. He had had his day in court. Wood V. SutcUffe (2 Sim., N. S., 163), was a suit by a man- ufacturer to enjoin the owner of dyeing Avorks above from fouling the water. The j)l.nntiff had stood by for nearly five years wliile the defendant was constructing and using his works. Before defendant commenced to turn his dye- stuffs into the stream the sewage of a dense popul ition had rendered the water unfit for plaintiff's purposes, who had in fact ceased to use it. The fouling of the water was an inci- dent to the occupation of the large population, of which (said the Chancellor) the plaintiff" could not conjplain. He therefore suffered no injury from the acts of the defendant, and by his long acquiescence had assented to them. 9 One cannot read the case of W/jcky. Hunt, (Johnson 372,) without perceiving that it did not turn on mere delay, or imperfect acquiescence. The complainant had a complete remedy at l.iw, and the Court said the English chancery in- terfered, notwithstanding the existence of a plain legal rem- edy, o)df/ "by granting an injunction to prevent irreparable damage before a trial, or on a bill of peace after one or more trials at law." Then there were grave doubts whether the plaintiti' had suffered any injury; and Wood, V. C. said: "Under these circumstances it is impossible to interfere un- til the right has been tried, whatever the mode of trying it may be." And the Judge said: "If there was no injury (as was contended) from such floods as occnrred during the two and a half years of the plaintiff's delay, a serious question might arise on the merits how far the possibility of an injury once in twenty or thirty years would justify the Court in in- terfering with defendant's works." Equitable relief in many cases depends upon the discre- tion of the Chancellor, and it is true, as said by Bispham, that the laches of the complainant is often "one of the most important elements" which is taken into consideration. But laches — in the sense of delay only — is not important, except as it constitutes with other circumstances evidence of ac- quiescence. 3Ieredith v. Sayre (32 N. J. Eq. , 557) was not decided upon mere delay or laches in the sense of delay. The complainants w.iited for a year after a tramway' was com- pleted on a street in front of their lots, and this fact was in view of the circumstances treated as evidence of acquies- cence. The Court said: "The proj)erty is in an unimproved part of the city. No inconvenience of any account is inflicted on the plaintiffs by the obstruction," etc. In the two cases last cited, as in Wood v. Sidcliffe, supra, and other cases, it will appear on examination that the fact that the plaintiff' had suffered and would probably suffer but slight injury', as compared with that to which the defendant would be subjected if the injunction was granted (or the fact that it remained doubtful wdiether the plaintiff' would suffer injury of any account), was considered — with the delay — in reaching the conclusion that acquiescence was proved. It is perhaps more probable that one will assent to a slight or temporary than to a grave, serious and permanent injury. In C. and 0. R. v. Bohhit (5 W. V., 138) a bill to enjoin a diversion of waters was held to be insufficient because it neither alleged the insolvenc}' of the defendant, nor set forth facts showing that a judgment for damages would not be am- ple redress; and in Huff v. Doylston (-1 Brewster, 333) it is 10 said that iujuuction will not issue "if the injury be doubt- ful, eveutful or contingent." Varneij v. Pope (60 Maine, 192), decides that injunction to restrain a nuisance cannot be resorted to, unless the right of the complainant has been settled at law, or long enjoyed, or the defendant's acts will result in irreparable injury, HeisMl V. Gross {1 Phihi., 317), that equity will not relieve by injunction, where the right is disputed, until a trial at law, unless the injury is irreparable, and the necessity ur- gent, and there is no adequate remedy at law. Creu//i(on v. Evans (53 Cal., 551, was an action at law to recover damages for a diversion. The plaintifi' was a riparian proprietor, and, as the defendant was not, the Court held that in the absence of proof of damages, the ])laintiff was entitled to a verdict for nominal damages. In B'^iseij v. Gallwjlier (20 Wall., 267), no question was involved as to delay, laches or acquiescence. Nor was there such a question in Atchison v. Patterson (Id., 507), which was an issue as between appro- priators on the public lands. The Supreme Court of the United States there said, "whether a court of equity will interfere by injunction will depend upon the extent and character of the injury alleged, whether it is irremediable in its nature, whether an action at law will afford adequate remedy, whether the parties are able to respond for the damages vesulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction." Sprarjue v. Stcnre (1 Pi. I., 267), holds that acquiescetice may be a bar to the Court's interference by injunction; the cases therein considered are to the same effect. The order was refused in Bridson v. Benel'e (1 Beavan, 1), because the complainant had not proceeded with due celerity to estab- lish his right at law. In Slade v. SnUiva)i (17 Cal., 105), the Supreme Court refused to reverse the decree of the Dis- trict Court, dismissing a bill to enjoin miners from working a ravine, a short distance in front of the plaintift"s improve- ments on the public lauds, holding that some of the damage anticipated by the phiiutiff was very slight, and the rest a "mere matter of speculation." Catching v. Basselt (32 L. J. Ch., 286), was an extinguish- ment of an easement by assent. In Birmingam v. LIo//d (18 Ves., 515), the plaintiff" sought to restrain the defendants from draining water from their own coal mine. The legal rights of the respective parties were disputed. Lord Eldon refused an interlocutory order for an injunction until the plaintiff's right to damages had beeu established at law. In 11 Parrott v. Palmer (3 Myl. and Keen, 631), chancery refused to enjoin, in the face of long continued acquiescence in the act of defendants and its consequent injuries; but turned the complaint over to liis action at law. Maxwell v. Hogg and Hogg v. 3IaxiueU, were cross applications for an injunc- tion order by rival promoters or publishers of magazines, both to be called the "Belgravia." Each was refused the order, under circumstances which justified the action of the Court. (L. E. 2 Ch. App., 319.) It appeared in Bassett v. Tlie Coiiiiyonj (47 N. H., 347), that while the injury done to a small portion of the plain- tiff's land (caused by increasing the height of defendants' dam) was trifling, the defendants had expended $850,000 in enlarging their works so that the additional water-power could be put in requisition. Under these circumstances it was held that the fact that the plaintiff stood by for seven or eight j'ears without objection, was sufficient evidence of acquiescence to prevent an intervention by injunction. Grei/ V. The Ohio (1 Grant's Cases, 412), was a bill to restrain the defendant from using its railroad across the common in Alleghany City. Lewis, J., said: " The property taken is hardly of any appreciable value; the right of complainant is at best doubtful; his acquiescence until the road was com- pleted renders it impossible to grant the relief applied for without doing irreparable injury to the defendant, while no benefit would be conferred on the complainant which he could not obtain by an action at law." Two of the Judges dissented, and the injunction was refused "on an equal division." In Diuin v. Spurrier (7 Ves. Jr., 235), Lord Eldon remarked: "I fully subscribe to the doctrine that this Court will not permit a man knowingly, though but pas- sively, to encourage another to lay out money under an erroneous opinion of title; and the circumstance of looking on is in many cases as strong as terms of encouragement. Still it must be put upon the party to prove that case hij strong an I cogent evidence: leaving no reasonable doubt that he acted upon that sort of encouragement." Mr. Wait observes (6 Actions and Defences, 281) that while a court of equity will restrain a party in the use of water in a manner injurious to another, yet the Court will not exercise the summary authority "where the right is doubtful, or the facts are not definitely ascertained." This need not be disputed. He adds: "A complainant who asks the Court to restrain by injunction mn-^t make a strong prima facie case in support of the title he asserts, and show 12 that he has been guilty of no delay in applying for the inter- position of the Court." In support of the whole of this statement he cites Bliss v. Kennedy, (-IS 111., 67); Barnhnm V. Kcnipton, (44 N. H., 78); Shield!^ v. Armlt, (3 Green, N. J. Ch.,234.) In Bliss V. Kennedy, however, the Court, after saying that by Wie law of Illinois, the right of a riparian proprietor must ordinarily be established at law before equity will interfere by injunction, holds that equity will restrain, until a decision at law. only wher*e the plaintitf has not been guilty of improper delay in bringing his action. And the Court observes: "We do not think such a case has been made out by the comphiinants. They do not allege in their bill that they have commenced, or are about to commence legal proceedings to establish their right, but call upon a court of chancery to establish it in the first instance." Tiie ci\se in 44 New Hampshire only holds that equity will not take jnrisdiction when the parties have a plain and perfect remedy at law, and have neglected to seek it. And the case in Green, that, where the right is doubtful, it should usualW first be established at law. Mr. Wait also says that equity will refuse to inter- fere "when the damage is not serious," or when it ap- pears that the renewal of the watercourse will still leave it impossible for the party claiming it to derive any benefit from it. " But," he adds, " if tiie injuries by diversion are continuous, or the right to continue them is set up und persisted, in by the defendant, a court of equity, if the facts be prop- erly established, Avill interfere bj' injunction effectually to protect the complainants; and, if the diversion of water complained of is a violation of the plaintift's right, and may permanently injure that right, and become b}' lapse of time the foundation of an adveise right in the defendant, there is no more fit case for the interposition of a court of ecpiity, by way of injunction, to restrain the defendant from such in- jurious act." (6 A. and D., 282.) In Nasser v. Seeley (10 Neb., 460) the plaintiff "solicited employment " in the work he afterwards sought to enjoin. This was a strong evidence of assent. The Supreme Court of Michigan said: "Excejit in very clear cases it is better to leave the parties to their legal remedy in the recovery of dcimages." Huxsie v. Haxsie, (38 Mich., 77.) Parks V. Kilham (8 Cal., 77), was an action at law to re- cover certain water and damages, tried by a jury, who rend- ered a general verdict. The Court held that an instruction 13 in the following terms was '' substantially correct:" "That if those from and through whom the plaintiffs claim had the prior right to the waters, and they stood by and saw those from wliom the defendant derives his title to the ditch, and the right to the waters of the creek, appropriate the water of the creek at great expenditure of money and labor, un- der the mistaken idea that the defendant's vendors were obtaining the first appropriation, and did not inform them of the mistake, they, plaintiffs' vendors, and the plaintiffs who claim under them, are estopped from setting up their prior right at this time." In the light of the subsequent decisions it can scarcely be claimed that the facts recited in the instruction con- stituted an equitable estoppel which could be relied on as a defense at law. It may be that the defendant had the better right. In fact, the defendant's grantors seem to have appropriated the water before the plaintiffs' grantors even " located " the mining claim. Is does not appear that the plaintiff's predecessors ever took actual possession of the mining claim; and even if tije " location " of the claim preceded the defendant's appropriation, it does not appear that the manner of the location was such as that defendant's grantors were bound to take notice of it. But, whatever the facts, we cannot assent to the proposition — apparently recognized by the Court — that the mere silence of plaintiffs' grantors, disconnected from other circumstances in evi- dence, created an estoppel at law. In Edwards v. Allouez (38 Mich. 46), the Court said : " The writ is not ej: dehilo justUice for ani/ injury threatened or done, but the granting of it must always rest in sound discretion governed by the na/ure of the case ;" and, as the injury threatened to the plaintiff was small, for which dam- ages at law would be full compensation, the injunction was refused. Trophagan v. The 31ayor (29 N. J. Eq., 208), was a case where the city authorities had already opened a street. The plaintiffs had'permitted the authorities to oust them (with- out seeking to recover the possession at law) and to ex- pend a large amount of public funds. The Vice Chan- cellor said the complainants " had encouraged or santioned" the action of the public authorities, and " by laches if not acquiescence " had lost the right to have the use of the street forbidden." Demarest v. Hardham (34 N._ J. Eq., 469), was a bill to enjoin the use of a steam engine by a book-binder in an adjoining building. The Vice Chan- cellor refused a general injunction, but enjoined the de- 14 fendant from operating his engine so as to produce a vibra- tion in plaintiff's building, etc. He said an injunction to restrain a lawful business should never be granted, except a plaintiff shows an invasion of a clear legal right, which cannot adequately be redressed by damages, but remarked " equity takes cognizance of a nuisance which is permanent in its character, or which produces a constantly recurring grievance, more readily tlian any other." The Supreme Court of the United States has said that a bill for a private nuisance should show that the plaintiff' is without adequate legal remedy; but that equity w'ill inter- fere by injunction, where the injury is irreparable, or from its continuance must occasion a constautlv recurring grievance. And to justify an injunction until a trial at law can be had, no improper delay in resorting to a court of law must be shown — three years or more of delay, precluding a party from relief in equity, until he ha^ vindicated his rirjhl at laic. Parker v. Woolen Co., (2 Black, 545.) Brown v. Carolina: The injury to plaintiff" Avas trifling and susceptible of adequate compensation in damages. (83 N. C. 128.) Fidler v. InhahitoMs: A case of acquiescence. The appli- cation was to restrain the appropriation of monej', alleged to have been collected bj- a town under an illegal tax lew. (1 Allen, 166.) Del Monte v. Pond: An appeal from an order refusing to dissolve a preliminary injunction. (23 Cal., 84.) Royal Bank v. Grand Junction: The facts are very com- plicated. While the terms "laches" and "unreasonable de- hiy" are employed wdth reference to the conduct of the plain- tiff, the case shows that these expressions are used to denote an a quiescence or assent, which the plaintiff afterwards sought to withdraw. (125 Mass., 490.) Brown v. County: X bill by the county to enjoin the col- lection of a judgment against it. The Supervisors of the county made two sevei'al tax levies for the payment of the judgment, after they were expressly notified of its existence, and for what it was recovered. (95 U. S., 157.) Godden V. Kininiel: Clifford j' said: "Where there has been gross laches and an unexplained acquiescence in the operation of an adverse right, courts of equity frequently treat the lapse of time, eveu for a shorter period than that specified in the statute of limitations, as a presumptive bar to the claim. (99 U. S., 201.) Blnnchard v. Doeriw/: Clear case of acquiescence. (23 Wis., 203-4.) 15 Sheldon v. Rockwell: "The jjlaintiff bv his sileuce and acquiescence" (for more than nineteen years, during most of which time the acts done by defendan's were protected and fostered by express statute) "has invited and encouraged the defendants to expend their money," etc. (9 Wis., 161.) Angell says: "No single proprietor, without consent, has the right to use the flow of the water in such manner as Avill be to the prejudice of any other." (On Water-courses, Sec. 340.) In Cobb V. Smith (16 Wis., 696) the Court holds tliat an acquiescence by the plaintiffs of several years, in the flowing of their lands, was such evidence of assent as would author- ize the refusal of an injunction. "If the plaintiffs have suffered damage, they have their common law remedy." "When ajiersonrtc^/^a'e.sces -^fr * * a court of equity Avill not interfere by injunction, but his remedy at law remains." (Wood on Nuisances, Sec. 360.) Escourt v. Escourt: Biil to enjoin the use of a trade-mark. The "hop essence" was an article used by brewers only. The plaintiff waited seven months after advertisement of de- fendant asserting its rights, and then brought suit. He was unable to show that a single brewer had been misled — a cir- cumstance on which Lord Cairns lays some stress. But tlieie was a conclusive reason why equity should not intlaiiiant to liave had his right establislied at law, have no apositeness here. Here the plaintili' must indeed clearly make out his right in equity and show that money damages will not give him adequate compensation. If he fail to do this, relief in equity will be denied. But, if he j^roves his case, relief will be granted, although he has not demanded damages at law. In the case at bar the plaintiflfs do not ad- mit that damages would constitute compensation, and ask for an injunction until they shall recover such compensation in an action for damages. The decisions which bear on tliat class of cases, and which require of the plaintiff to show that he has promptly sought redress at law, have little ap- plicability. In considering the question whether, in tlie case at bar, the plaintiffs assented to the acts of the defendant, and the injuries caused b}' those acts, we are bound to assume that the waters of Kern River, in their natural course, ordinarily flow to the lands described in the complaint, or to a consid- erable part of them, because there was a substantial conflict in the evidence as to that matter, and the Court below erred in rejecting certain testimony bearing on that issue. We must also assume that plaintitis were the owners or entitled to the possession of such lands, when the defendant's alleged right to appropriate the waters began, because (if the certi- ficates hereinafter spoken of had been admitted in evidence) the certificates of purchase woidd have proved the right of exclusive possession. Moreover, we must assume, that the injury to the plaintiffs was of the character and extent which the evidence tended to prove, because, if any injuries flowed to plaintifts from defendant's acts, there was no conflict as to the nature of those injuries. The injury to the plaintifts, so far as it had already ac- crued, was, perhips, such as could have been compensated in money damages. But even if this should be conceded, the defendant has asserted its right to continne its diversions, and throughout these proceedings has persisted in that assertion. The entire injur}', already accrued and future, is irremediable at law; since a judgment for damages would not constitute complete and adequate redress, within the meaning of the decisions. We cannot so hold, in view of the nature and extent of the injuries, unless Ave hold that the liparian proprietor can never ask for an injunction when future diversicns of waters are threatened; and the adjudi- cations to the contrary are very numerous. So to hold would be to cast upon the plaintiffs the burden of bringing and maintaining a multiplicity of suits at law. The continu- 19 ation of tlie diversions must result in constantly renewed grievances, and might result in the acquisition of an adverse right by the defendant. And while the defendant has ex- pended ver}' large sums of money, the evidence tends to prove that neither the injury already inflicted on the plain- tiffs, nor that to be anticipated, is slight or trivial, but that it is great and substantial. Under these circumstances we must decline to hold that by their omission to biing this action sooner than it was brought (with actual or presumed knowledge of the things done by the defendant) the plaintifts are shown to have acquiesced in the defendant's diversion of the water, and the consequences theieof, in such manner as that the asser- tion of their rights in this action is to be treated as an attempt to ignore or to recede from a previous assent. The finding of unreasonable laches often assumes the ex- istence at one time of a cause of action. But the facts found by the Court below^, on which is based the conclusion of laches, do not show assent, unless the plaintiffs must be held to have assented, because they ought to have ascertained that the necessary consequences of the projected works of the defendant would be to deprive them of water which natur- ally flowed to their lands; or, unless the delay to sue after the water ceased to flow, as a consequence of defendant's work, was, under all the circumstances, evidence of assent. The facts from which the conclusion of laches, and neglect is drawn, if sustained by the evidence, are sustained only by evidence of silence on the part of the plaintiflFs with knowl- edge proved or presumed from the notoriety of the acts and claims of defendant. The inherent ditficulty of anticipating, in the fall of 1875, when "a small quantity of water" was used by the defend- ant, what would be the results of the completed canal, or when a considerable progress should be made in its con- struction, is a sufficient answer to the suggestion that the plaintiffs should then have known those results. If imme- diately after the work done in 1875, the plaintiffs had ap- plied for an injunction, would a court of equity have granted it upon facts Avhich would have shown a possible or con- tingent serious injury V It would have been obligatory on the plaintifts, atleasf, to establish clearly that the threatened acts, if. consummated, would result in grave injury to them; and in view of the many streams in that region, the various currents of some of them, and the other natural features of the country, it would have been extremely difficult, if not impossible, to prove that such injury would follow. And, 20 although the Court found that the defenchmt contiuuously prosecuted its works, it does not appear from the findings iiow far those Avorks were extended, or what were their con- sequences, at tin}' point of time before tlie phiintiffs began to sutler the real, serious and substantial injuries of wliich they complain. The conclusion of law cannot be treated as a finding of fact. It is called a "conclusion of law" in the decision, and is in the form of a proposition of law — "such laches and neglect as disentitle the plaintifit's,' etc. It does not respond to facts pleaded, nor is it a direct finding of the fact of assent. But, if it weie a finding of fact, the evidence does not sustain it. The evidence, altliough it may be cir- cumstantial, must affirmatively /jvore the assent. It is urged, however, that the defendant was not bound to plead, nor (since the findings need respond only to the. material issues made by the pleadings) was the Court bound to find the ])laintiifs' consent, or the latches or acquiescence which would prove consent. That the matter of hiches or neglect, or acquiescence arises out of the evidence: and that a court of equity may and ought, sue/ sponte. to deny relief, where an appeal is made to its discretionary power of grant- ing or refusing an injunction, when there has been unreasonable dela}- (which in view of the circumstances shows assent; in seeking its preventive process. If all this were conceded, the question would become an original one in this Court, and the rule (if it were applicable otherwise) that this Court will not interfere to set aside a finding when there is a substantial conflict in the evidence, would not be applicable. As an original question the evi- dence sent here does not prove assent. We are convinced that if the question were submitted to a jury upon that evidence a verdict of assent could not be upheld. II. The plaintifffi are not estopj^ed from maintaining this action by reason of their assent to and approval of certain jcts of a third person — The Kern VaUeij Water Company. The next question is cognate to the one just discussed. It arises on certain findings from which, respondent contends, it appears plaintift's lost their right to complain of any di- version of water, before the commencement of this action. The Court below found : 21 " That the waters of Kern river do not and never did nat- urally and usually flow to, through, along, by, over or upon the said lands of plaintifls, or any part thereof; and that until the year 1876, whatever of the water of Kern river flowed to or reached the said lands or any part thereof, was from the unusual and extraordinary overflow of said river, or of Kern and Buena Vista Lakes, or from the percolation and seepage in these findings mentioned. "That in December, 1875, one Souther commenced, and in Januar}', 1876, completed a dam across Buena Vista Slough, at a point designated on the map hereto annexed, as Cole's Crossing, on or about section Ave (5), township thirty- one (31) south, range twenty-five (25) east. Mount Diablo base and meridian, and south of where the waters of New river enter Buena Vista Slough, and thereby at said point, checked the natural flow of the waters of said river through said slough into Buena Vista and Kern Lakes, and caused the waters there flowing to take a northward course and away from the said lakes. That in March, 1876, the pres- sure of the waters against said dam broke through the same, and said river resumed its natural flow to Buena Vista and Kern Lakes. That during the said interval of its flow northward, the waters of said New river flowed along said Buena Vista Slough and the adjacent country, to and over Buena Vista Swamp, " That in the fall of 1876, certain parties commenced the construction of two certain canals, which are correctly laid down on the map hereto annexed and marked respectively 'East Side Canal' and 'Kern Valley Water Company's Canal.' The said 'East Side Canal' commences on section fourteen (14), township thirty (30) south, )ange twentj-four (2-4) east, and extends thence some three (3) miles north, on the eastern side of said Buena Vista swamp, and does not touch any of said lands of the plaintiffs. The other canal heading on section fourteen (14), township thirty (30) south, range twenty-four (24) east, as at present constructed, ex- tends northward some twenty-four miles, is one hundred and twenty feet wide on the bottom, one hundred and forty feet wide on the top, and ten feet deep, with a fall of one foot per mile, and capable of carrying more than twelve hundred cubic feet of flowing water per second, and terminates at a point outside of said lands of plaintiflfs. That in June, 1877, the Kern Valley Water Company, a corporation organ- ized and existing under the laws of California, for the pur- pose of acquiring canals and water rights in said county of Kern and elsewhere within this State, to be used or dis]iosed 22 of for ivrigatioii, trausportatiou, domestic, mechauical and other pin-i)oses, took possession and control of said canals, and thenceforth coiitinned the construction thereof north- ward toward the lake known as Tnlare Lake, designated on said map. That, in the fall of the year 1877, the said Kern Valley Water Company reconstructed the said dam at Cole's Crossinjjj; and, in connection therewith, constructed a levee extending westward to the bluffs on high ground, and run- ning eastward from said dam about one and one-quarter miles, as shown on said map, tl.'ereby preventing the waters of Kern river from flowing to Buena Yista Lake and turning the same northward to their said two canals. That, at the head of said canals, and in conjunction therewith, the said Kern Valley Water Company, in 1877, constructed a certain other dam and levee extending completely across the said Buena Vista swamp, as shown on said map, and thereby completely obstructed and prevented the natural flow of any water into, through, or over said swamp northward of said last mentioned levee, and appropriated and took possession and control of all the Avaters reaching said levee, and turned the same inio the said canals. That the said dam and levee last mentioned are some distance southward from the south- ernmost part of the said lands of the ])laintiffs, and from and after their construction no water has naturally flowed, or could naturally flow, beyond the head of said canals, or to or upon the said lands of the plaintiffs, or any part thereof. "That the construction of the canals, dams and levees described in the preceding finding, was undertaken and prosecuted with the knowledge, consent and approval of tJie plaintiffs. " That the levee last described in said preceding finding was constructed for the purpose of diverting all the water reaching said levee, into the said canals, and such levee does entirely obstruct, and since its construction has obstructed the natural flow of any water northward in said Buena Vista swamp, beyond said levee, and diverts the same into said canals, and that the plaintiffs, at and before the time of the commencement of the construction of the said levee, knew of the purposes thereof, and approved the same, and knew of the beginning and prosecution of the construction there- of, and consented to and approved of such construction. That said canals and levee were constructed at great ex- ])ense, and because of and in reliance upon the said approval and consent of the plaintiff's, and hut for snch approval and consent luould not have been conslr acted." The notice of appropriation of 74,000 inches of water was 23 posted and filed for record by defendant's assignors May 4, 1875. Their subsequent acts (it may here be conceded), rehited back to the posting and filing of tlie notice. It may Avell be doubted whether the evidence sustains the finding that the plaintifts consented to and aj^proved of the canals and dams mentioned in the foregoing findings. We shall assume, however, that there was a substantial conflict in the evidence in that regard. The building of the two dams, and the assent of the plaintifi's thereto, as found by the Court, intervened between the appropriation by defendant's assignors and the com- mencement of this action. The construction of the dam at Cole's Crossing, with or without the plaintiffs' consent, is unimportant (with refer- ence to the question we are about to consider), if the waters of Kern river have never naturidly or usuallj- flowed to their lands. The plaintiffs did not become riparian proprietors by reason of a diversion of the waters of Kern river toward their land (caused by the dam at Cole's Crossing), with any right to complain of an appropriation made by the defend- ant, or its assignors, ahove Cole's Crossing, and he/ore the dam was constructed at that place. And, on the other hand, if part of the waters of Kern river, in their usual and natural flow, reached the lands of plaintiffs (and they Avere deprived of it by defendant), it is immaterial that more water was turned in their direction by the dam at Cole's Crossing. It is said by appellants, that since the Court found the waters of Kern river never naturally and usually flowed to the lands of the plaintifls, the findings last recited must be read as a finding that the levee near the head of the canals was built for the purpose of diverting, and did divert into the canals of the Kern Valley Water Companj', only the waters turned toward plaintifls' lands b}' the dam at Cole's Cross- ing and the waters of extraordinary overflows. But as the Court foimd that the levee last mentioned pre- vented the passage of ami water to the northward thereof, the respondejit is entitled to the benefit of the findings in the alternative, that is as declaring that, even if the waters of Kern river, in their natural and usual flow, would reach the plaintiff's' laud, the plaintiffs had consented to the erection of a dam or levee by the Kein Valley Water Com- pany, which diverted all such waters from their lauds. Section 811 of the Civil Code provides that the servitude may be- extinguished b}' the performance of any act by the owner of the servitude, or with his assent— upon either the dominant or servient tenement — which is inconsistent with 24 its nature or exercise. This seems to be :i recognition and statutory declaration of the rule which Prof. ^Yasllburn sajs has become well settled, that if the owner of a dominant estate do acts thereon which permanentl}^ prevent his enjoy- ing an easement the same is extinguished, or if he authorize the owner of the servient estate to do upon the same that which prevents the dominant estate from any longer enjoy- ing the easement, the effect will be to extinguish it. (Ease- ments and Servitudes, 560.) The same writer says that, as forming the subject of prop- erty in connection with realty, water may be viewed in two lights; one, as one of the elements of which an estate is com- posed; the other, as being valuable alone for its use, to be enjoyed in connection wdth the occupation of the soil. " In the latter sense it constitutes an incorporeal hereditament to which the term easement is (has been) applied." (Id. 207.) The liow of the water to and over tiie riparian lands is not a mere easement. (/S'/o^-fj- v.>S'/»r/ey, 8 Kllis and B., 30.) But the riparian right, while more than an easement, may be said to include the qualities of an easement. In Section 801 of the Civil Code, among '-land burdens or servitudes upon land," are enumerated " the right of re- ceiving water from land," and "the right of having water flow without diminution or disturbance of any kind" — Avhicli last includes the right to have a natural Avater-course flow, subject to such diminution as results necessarily from a rea- sonable use by a superior riparian proprietor. It has been held that when the lower proprietor licenses the upper to divert water which w'ould flow- to the lands of the licenser, and the licensee has executed the license, the licenser does not (/nott the servitude within the prohibition of the statute of frauds, but rather is estopped from assert- ing any right in it. It is not necessary to enter into that question. Whether the executed license would or would not be an executed contract: whether the transaction would or would not operate a transfer from the licenser to the licensee; Section 811 of the Civil Code declares that the effect is to " extinguish " the servitude. The Legislature had as much power to make this enactment as to pass a statute of frauds. The possession of the Kern Valley Water Company, at the points where water was taken, was perhaps some evidence of its riparian owner.ship. But if the act is to be done by the licensee, on a third person's estate, and the license be exe- cuted, it cannot be levoked. (Washburn E. & S., 568.) Ajjpellaiits claim that the evidence with respect to the con- sent of plaintiffs to the diversion by the Kern Valley Water 25 Compan}^ was not admissible under the allegatioDS of the answer, because defendant did not plead therein the facts establishing license and its execution. Counsel refer to Humphreys v. McCaU (9 Cal. 59), where it was held, in an action for damages for the diversion of water appropriated by plaintiffs on the public lauds — the defendants having pleaded the general issue only — that it was not competent for the defendants to prove that a prior claim to the water existed in a third person, but that such defense should have been specially pleaded. Th it case turned on a priority of occupation, as between the plaintiffs and defendants, and even if a still earlier occupation, by a third person, had been pleaded, it would have constituted no defense to an ac- tion brought for a diversion of water appropriated by plaintiffs previous to any appropriation by the defendants, unless the defendants connected themselves with the third person — the first appropriator. In the case now before us, it was for the plaintiffs to show that they were entitled to the flow of the stream, or of some part of it, when this action was com- menced. If their right to the flow was legalh' extinguished prior to the commencement of the action, we cannot perceive why defendant was not entitled to prove the fact under the denials of the answer. If, therefore, the findings last above referred to are sus- tained by the evidence, or there is a substantial conflict in the evidence with respect to the matters set forth in those findings, the judgment and order must be affirmed. It is to be observed that plaintiffs count upon their owner- ship of the banks of Buena Vista Slough. If they licensed the Kern Valley Water Company permanently to divert the waters from the slough, and by expenditures on the part of the Company the license was executed, plaintiffs cannot re- cover, whatever the purposes of the diversion, although these included a purpose to benefit the lands of plaintifls by draining them, and the conduct of the water to a point be- low such lands, or even a purpose to irrigate the plaintiffs' lands through gates in the canals of the Company at points separated from the channel of the slough. However it might be (supposing plaintiffs had counted on their owner- ship of the banks of one of the canals), if it appeared that all the stock of the Kern Valley Water Company ws owned by the riparian proprietors below the places of diversion of water from the slough — so that the corporation might be treated as the mere instrumentality through which the riparian proprietors carried out a design, agreed upon among themselves, to change the channel of the slough in 26 such maimer as to provide more effecciially for the irriga- tion of their lands— here such facts do not appear from the findings or evidence. The corporation was a distinct entity in which the phiintiifs were in no way interested, except tliat there was evidence tending to prove that one (perhaps all) of them was a stockholderlu it. Besides, as we have seen, the plaintiffs do not base their claim for relief on the state- ment in their bill of complaint, that they are riparian pro- prietors on the new or nrtificial water-course. If, however, it should be conceded that all the plaintiffs consented to and approved of the construction by the Kern Valley Water Company of the dam or levee across the swamps immediately below the east side and Kern Valley Water Company's canals, this fact of itself would not en- tirely extinguish the rights of plaintiffs to the flow of the Avater-course, unless the dam — as built and consented by plain tiffs^ — obstructed and prevented the natural tiow^ of every portion of the water (except, perhaps, mere leakage), through Buena Vista Slough to land of the plaintiffs. The Court below found that the levee made by the Kern Valley Water Company prevented " the natural flow of any water into, through or over said sw^amp northward of said levee," and that after the construction of said levee or dam, " no water has naturally flowed or could flow northward and beyond the head of said canals to or upon said land of the plaintifls, or any part thereof." But there was uncontradicted testimony that there was a head-gate in the dam or levee, at a place designated b}^ the witnesses as the place wdiere the levee crossed the slough, which was at times open, and through which, when open, water flowed in the slou|.^h. The Court did not find the existence of the head-gate, and there i- neither finding nor definite and distinct evidence from which can be ascertained what Mas the arrangement or agreement between the plaintifls and the w^ater company, if any, with reference to the control and management of the head-gate. The Court found that the plaintifls consented to the building of the dam, and found that, as built, the dam entirely obstructed the flow of the water. It is urged by appellants that the very fact of the exist- ence of the head-gate in the slough, unexplained, proves that plaintifls retained a right to the water flowing there. But it is enough if the facts proved do not affirmatively es- tablish that the easement was entirely extinguished The levee as constructed did not permanently and continuously stop the flow of all the Avater, and the license of plaintifls was no broader than its execution. 27 Although the defendant was not bound to plead a license given and execute-;] prior to the commencement of the suit, the buj'den was on the defendant of proving that plaiutiflfs had assented to acts of the Kern Valley Water Company which permanently deprived them of all the water. It was hy such assent only that they could estop themselves from claiming the benefit of any of the water. It may be contended, on behalf of respondent, the pre- sumption is that the gate built by the Kern Valley Water Company, as part of its work, was under the control of the company, and in the absence of evidence of a reservation by plaintifis of a right to enter upon the possession of the com- pany and open the gate — or of a right to demand that the Kern Valley Water Company should open it whenever plain- tiffs might choose to exercise the right, or open it at definite times or for certain periods — the Court below was justified in finding that plaintiffs consented to a permanent occlusion of all the waters; and that such finding included and im- plied a finding that the license was not limited or restricted. The question is not free from difliculty. It is apparent the Court below considered the facts that the head-gate was there; that it was at times open, and that when open water flowed through it, as immaterial factors in the evidence on which it based its conclusion that the dam, as erected and assented to, entirely obstructed the flow of the stream. The Court in effect held that it Avas for the plaintiffs to prove affirmatively the reservation of a right to the flow, at their option or at specified limes. Doubtless the conclusion that plaintiffs licenced a diversion of all the waters was based in part upon the presumption (in the absence of evidence to the contrary) that it was intended the water company should have entire Ciutrolof its own head-gate; but this, it is argued, is a presumption of fact which the Court could properly indulge. Suppose the single issue between these parties was, whether the license was general, extending to all the waters, or was limited, the burden of showing its general character being on the defendant. In such case, it might be asked, would not the defendant have made out its case, iirima facie at least, by prin-ing the consent of the plaintiff's to the con- struction of the levee, although it was built Avith a gate through Avhicli A\^aters might flow if it should be opened? Would iheiiossibU fact — not proved — that plaintiffs may have reserved the right to have the gate opened when they de- manded it, or for a definite part of future time as time should pass, be considered as overcoming the presumption that the 28 Kern Valley Water Company has the control of its own property. If so, it may be claimed, the case must constitute an exception to the general rule that the burden of proof is cast upon the opposite party, when the party having the af- firmative has established the issue on his part, prima fade. But here the burden Avas on the defendant of proving that the right of the plaintiffs to the How of all the Avater was ex- tinguished. It would not have been sufficient that it was made to appear that plaintiffs had assented to a diversion of a portion of the Avaters, any more than it Avould have been sufficient to prove that plaintiffs had granted a portion of the waters. In either case the plaintiffs would not have lost nor parted Avith the right to be protected in the enjoyment of the waters they retained Until it was made to appear that plaintiffs had lost the right to the flow of any part of the stream, the presumption would be that they retained a right to all. And in presence of the fact that the Avork they assented to did not actually deprive them of all the water, their right to the Avater Avhich floAved through the gate, either continuously or at intervals, was not extinguished. To apply the presumption that every man has a right to control his OAvn property for the benefit of the defendant alone, is to assume, not only that the gate belonged to the Kern Valley Water Company, but that the ivafer also (or its exclusive use) Avhich floAved through the gate belonged to that company, in entire disregard of the presumption that the plaiutiiis retained every right to the floAv of the stream Avhicli Avas not affirmatively shown to have been lost. Thus a disputable presumption (applicable to the use of the gate) Avould be made to overthroAV a pre- sumption applicable to the use of the Avater. The defendant could not establish that plaintiffs Avere estop- ped from asserting that they had a right to the flow of any part of the Avater — either prima, facie or conclusively— ex- cept by })roving facts Avhich necessarily precluded the reten- tion by plaintiffs of any part of it. The defendant could not rely upon a presumption draAvn from facts Avhich did not necessarily exclude a retention by plaintiff's of a right to the flow of some of the waters, in opposition to the legal prop- osition that plaintifis had lost only the right Avhich Avas afiirmatively proved to have been extinguished. Of course, on a retrial of this cause, the evidence may es- tablish an extinguishment of the plaintiffs' rights — if they ever had an}- — to the floAv of every portion of the Avaters of Bueua Vista Slough to their lands. On this appeal Ave con- fine ourselves to the findings and testimony in the transcript now here. 29 III. While the arg}iment ah inconvenienti should Iicive its proper iveujht in ascertaining ivhat the law is, there is no ' 'Public Policy " which can empower the Courts to disregard the laiv; or because of an asserted benefit to many persons (in itself doubtful) to overthroiv the settled laiv. This Court hcts no power to legislate; especially none to legislate in such manner as to deprive citizens of their vested rights. The riparian, owner s property in the water of a stream may (on payment of due compensation to him) be taken to supply "farming neighborhoods " with ivater. In case further legislation shall be deemed expedient for the distribution of loater to public uses (the private right being paid for) the vcdidity of such further legislation is to be determined after its enactment, if its validity shall then be questioned. The respondent contends that it is entirely immaterial what errors were committed by tlie Court below upon the supposition that plaintiffs, as riparian proprietors, have some rights to the flow of the stream through tlieir lands — since the plaintiffs have in fact no right to the use of the waters as against the defendant, which has appropriated them in accordance with the provisions of the Civil Code; and this, notwithstanding the btatute of 1850, adopting the common law as "the rule of decision," and the section of the Civil Code providing that "the rights of ripariiin pro- prietors are not affected " by the provisions relating to ap- propriations of waters. (Sec. 1422.) ' This Court has held that the property of a riparian owner in the waters flowing through his land may, upon due com- pensation to him, be condemned to the public use by pro- ceedings initiated by a corporation organized to supply a town with water. [St. Helena. Co. v. Forbes, 62 Cal., 182.) In the learned opinions of Justices Ross and Myrick in that case, the right of the riparian proprietor to the use of the water is designated "property" — an "incident of prop- erty in the land inseparably annexed to the soil" as part and parcel of it; "an incorporeal hereditament app(ii;aining to the land." The main question in the case was whether the Code provided for a condemnation of that species of 30 property to public uses. The question was answered in the affirmative. And it has been held in New York that the taking of a stream of water (on due compensation) for the supply of a town, was a proper exercise of the power of eminent do- main {Gaychter V. Newberru, 2 Johns. Ch., 162.) On like principles the same property right may be taken for any public use. In every case, however, the provisions of the statute, as t > the mode and manner of conducting the con- demnation proceedings, must be strictly pursued. Private property m.iy be taken or damaged for public use, due com- pensation being mado, or paid into court. (Constitution, Art. I, Sec. 14.) But another provision of the supreme law is equally operative: "No person shall be deprived * * * oi propert// without rf?(e process of law'" (Art. 1, Sec. 13.) A legislative Act declaring the necessity for taking the property for public use, or the judgment of a Court that the necessity exists, when the statute puts the power in a Court, is "the law of the land." (Cooley's Const. Lira., p. 528.) Section 1001 of the Civil Code provides: ^'Aiiy person may, without further legislation, acquire private property for any use specified in Section 1238 of the Code of Civil Procedure, either by consent of tlie owner or by proceedings had under the provisions of Title VII, Part III, of the Cotlo of Civil Procedure; and any person seeking to acquire property for any of the uses mentioned in such title 'is an agent of the State, 'or a 'person in chai'ge of such use,' within the meaning of those terms as used in such litle. This section sh ill be in force from and after the 4th day of April, 1872." And Judge Cooley observes that either a corporation or individual may be made the agent of the State to prosecute proceedings for condemnation. The same writer says: "The question what is a public use is always a question of law. Deference will be paid to the legislative judgment, as expressed in enactments providing for the appropriation of property, but it will not be conclu- sive." {Id., p. 536. See also note.) With respect to the subject in hand the judgment of the Legislature of this State lias been expressed. Among the public uses, in behalf of which the right of eminent domain may be exercised, are, "canals, ditches, flumes, aqueducts and pipes, for public transi^ortation and for supplying mines and farming neigh- borhoods with water." (C. "C. P., 1238.) Chancellor Kent has written: '^ If the public interest can. b" ill any way promoted by the taking of private property, it must rest in the wisdom of the Legislature to determine whether 31 the benefit to the public M'ill be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose." (2 Comm., 840.) Upon this principle the power has been employed for many objects. Not only the direct agents of the government, but indiviouals and corporate bodies, have been authorized to take private property for the purpose of making public high- ways, turnpike roads and canals; of erecting and construct- ing wharves and basins; of establishing ferries; of draining swamps and marshes, and of bringing water to cities and villages. In all such cases the object of the legislative grant oi i>owei' is the public he))efit deiixed from the contemplated improvement, whether such improvement is to be effected directl}^ by the agents of the government, or by individual enterprise. (Cooley's Cons. Lim., p. 532; citing Chancellor Walworth in i^eeA-^/^H v. Boilroad, 3 Paige 45-73; and Wilson V. Blackbird, 2 Pet., 245.) With reference to the phrase of Chancellor Kent "where the public interest can in any way be promoted," Cooley says, "It would not be entirely safe to apply it with much liberality." He adds, that that private property may not be taken for objects which may merely "tend to give an aspect of beauty, thrift and comfort to the country, and thereby to invite settlement, increase the value of lauds and gratify the public taste; * * * the com- mon law has never sanctioned an appropriation of property based on these considerations alone; and some further ele- ment must therefore be involved before the appropriation can be regarded as sanctioned by our constitutions. The reason of the case, and the settled practice of free govern- ments must be our guides in determining what is and what is not a public use; and that only can be considered such when the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience or welfare, which, on account of their peculiar character, and the difficulty —perhaps impossibility — of making provision for them otherwise, it is alike proper, useful and needful for the government to provide." Now the drinking of water is everywhere spoken of as a "natural," or at least primary use. Yet when water is en- tirely ttiken away from the riparian proprietor to supply a city or town — the use of it has never been limited to that which may be required merely for the support of the lives of the citizens; but the water, thus appropriated to the "public use," may be consumed also for lavation, and for all other purposes to which the element is ordinarily applied ; as for 32 irrigating private plats or yards, and public squares and parks; the watering of the streets, etc. It would seem utterly impracticable to limit the uses to which the citizens or vilhigers may apply it; or to the quantity to be used by each, except by reference to the quantity introduced. In such cases the riparian proprietor may be deprive 1 of its use ioY primary purposes that it may be devoted to such as have generally been deemed secondary. Why then may he not be deprived of the water when the law-makers decide that its application elsewhere for irrigation is a public use? It is the rule that where there is any doubt whether the use to which the propert}' is proposed to be devoted is of a public or private character, it is a matter to be determined by the Legislature; and the courts will not undertake to disturb its judgment in that regard. (S. V. R. Co. v. Stock- ton, 41 Cal., 147.) To this yielding to the legislative judg- ment there is but one exception; that is when the property of the citizen is taken or sought to be taken, for a use in no sense public; or in the language of Chancellor Walworth, (5 Paige, 159), "where there is no foundation for a pretoise that the public is to be benefited thereby." {Con. Chan. Co. V. C. R. Co., 51 Cal., 269.) We are not prepared to say that the supply of water to "farming neighborhoods " for irrigation (and the Code evi- dently means for irrigation) may not be for a public use. Indeed, in view of the climate and arid soil in parts of the State (for this object climate and soil may properly be con- sidered) it is safe to say that the supply for such use may be that which the Legislature has decided it to be — a public use. The judgment of the Legislature that it is such ought not, therefore, to be disturbed by the courts. It is apparent that in deciding whether a use was public the Legislature was not limited by the mere nnniher of per- sons to be immediately benefited as opposed to those from whom property is to be t;iken. It must happen that a pub- lic use (as of a particular wagon or railroad) will rarelj^ be directly enjoyed by all the denizens of the State, or of a county or city; and rarely that all within the smallest politi- cal subdivision can, as a fact, immediately enjoy ever}' pub- lic use. Nor need the enjoyment of a public use be uncon- ditional. A citizen of a municipality to which water has been brought, by a person or corporation, which, as agent of the government, has exercised the power of eminent do- main, can demand water only on paj'ment of the established rate, and on compliance with reasonable rule- and regula- tions. 33 While the Court will bold the use private where it appears that the government or public camiothave any interest in it, the Legislature, in determining the expedieucj of declaring a use public, may no doubt properly take into consideration all the advantages to follow from such action; as the ad- vancement of agriculture, the eu'-onragment of mining and the arts, and the general though indirect benefits derived to the people at large from the dedication. It may be that, under the pln'sical t-ouditions existing in some portions of the State, irrigation is not, theoretically, a "natural want" — in the sense that living creatures cannot exist without it. But its impoitance as a means of produc- ing food from I he soil makes it less necessary, in a scarv-ely appreciable degree, from the use of water by drinking it. The government would seem to have not only a distant and consequential, but a direct interest in the use; therefore a public use. The words "farming neighborhoods" are somewhat in- definite ; the idea sought to be conveyed by them is more readily conceived than put into accurate language. Of course " farming neighborliood " implies more than one farm ; but it wouhl be difficult to say that any certain number is essen- tial to constitute such a neighborhood. The vicinage may be nearer or more distant, reference being had to the popn- lousness or spareness of population of the surrounding country ; but the farmers must be so near to each other — relatively to the surrounding settlers — as to make what in popular parlance is known as a "farming neighborhood.'* A very exact definition of the word is not, however, of paramount importance. The main purpose of the statutes is to provide a mode by which the State, or its agent, may conduct water to arable lands where irrigation is a necessity, on payment of due compensation to those from whom the water is diverted, The same agent of the State may take water to more than one farming neighborhood. It must always be borne in mind that under the Codes no man (or set of men), can take another's property for his own exclusive use. Whoever attempts to condemn the private right must be prepared to furnish (to the extent of the water he cousum-^s and pays for), every individual of the community or com- munities, farming neighborhood or farming neighborh )ods, to which he conducts it, the consumers being required to pay reasonable rates and being subjected to reasonable regulations. And whether the quantity sought to be con- 34 demued is reasonably uecessury to supply the public use in a neigbborliood or iieigliborlioods, must be determined by tlie court in which tlie proceedings are brought for condem- nation of the private right. lu proceedings brought to secure the appropriation of private property to a public use, as in all other legal pro- ceedings, a pretense cannot be set up as a fact — a shcun for a reality. The facts, it must be presumed, will always be fairly determined in such particular case. Of course, in each case, the question whether the use to which by statute the water is to be devoted is a public use, is a judical question ; but the lule is that the courts hold it to be such whenever the Legislature has declared it to be public, unless it clearly appears that it is only private, and that the attempt to take it is therefors a violation of the Constitution. From what is said above no inference is to be drawn as to the exact limits, in every respect, of the legis- lative power to declare a use public. We are only called on to sav that sections of the Codes which provide for tak- ing water from riparian proprietors (on due compensation) to supply "farming neighborhoods" are constitutional and valid. Whether, in any supposable instance, the public has such interest in a use, which can be directly enjoyed only by an individual for his profit, and without any concomitant duty from him to the public, as that the government may be justified in employing the eminent-domain power for the use — as for a public use — is a question somewhat startling, but Avhich is not involved in the decision of (he present action. In case further legislation shall be deemed ex- pedient lor the distribution of waters to public uses, we leave its validity to be determined after its enactment, if its invalidity shall then be asserted. The Civil Code authorir-ies any person, for purposes use- ful to himself alone or for the benefit of himself and others, to divert the waters of a stream, the rights of riparian pro- prietors not being affected. The claim of respondent is that, under the [)rovisions of the Code, any person may divert all the waters of a stream from the lower lands, conduct them to a distant place beyond the watershed, and whatever the additional loss b}' seepage and evaporation caused by a change of the channel, apply them either to his own purposes or sell them to others, the only conditions being that he shall appropriate ihem in the manner prescribed by the Code, and that they shall be used for an object beneficial to somebod3^ (C. C, 1411.) It may be intimated that the Court should avoid too nar- 35 row a view of tlje important question involved. It may be suggested that Judges m this State should rise to the ap- preciation of the fact that the physical condiiions here ex- isting require an "appropriator" to beauthorized to deprive, without indemnification, all the lower riparian proprietors, however numerous, on the course of an innavigable stream, of every natural advantage conferred on their lands by the running water. A "public policy" has been appealed to which has not found its expression in the statutes of the State, but rests apparently on the political maxim, "the greatest good to the greatest number;" on the claim that by permitting such deprivation of the enjoyment of the stream by the riparian proprietors more persons, or a larger extent of territor}^, will be benefited by the waters. The proposi- tion is simply that, by imperative necessity, the right to take or appropriate water should be held paramount to every other right with which it may come in contact. But the policy of the State is not created by the judicial department, although the judicial department may be called upon at times to declare it; it can be ascertained only by reference to the Constitution and laws passed under it, or (which is the same thing") to the principles underlying and recognized by the Constitution and laws. The contest here is between persons who, as in every other litigation, may be said indirectly to represent oilier persons or classes of persons having interests like those of the respective parties, since the decision in this case may establish a rule which shall determine the rights of other persons holding positions, relatively to each other, like those of the plaintiffs and defendant herein. Even if the greater number whom it is assiiniecl will be benefited by making the interests of non-riparian takers or appropriators paramount, shall also be assumed to constitute "the pub- lic" — w^hile riparian proprietors, however numerous, shall be treated merely as individuals having interests adverse to the public —this consideration, if it should ever have weight with judicial tribunals, should have weight only in very doubtful cases. As was said by Lewds, V. J., in Vansickle V. Haines: "That the interests of the public should receive a more favorable consideration than those of any individual, or that the legal rights of the humblest person in the State should be sacrificed to the weal of the many, is a doctrine which it is to be hoped will never receive sanction from the tribunals of this countiy. The public is in nothing more interested than in scrupulously protecting each individual citizen in every right guaranteed to him by the law, and in 36 sacrificing none, not even the most trivial, to further its own interests." (7 Nevada, 259.) If the law is settled, we cannot override the established rule to secure some conjectural advantage to a greater num- ber. If, however, we were permitted to do this the inquiry would still remain whether the recognition of a doctrine of appropriation (such as is contended for by respondent) would secure the greatest good to the greatest number. Observe, if that be the true rule, the appropriator does not necessarily act as the agent of the State employing the power of eminent domain for the benefit of the public, but by his appropriation makes the running water his own, sub- ject only to the trust that he shall employ it foi some useful purpose. It would hardly be contended that while he con- tinues to use it for a useful purpose, a statute would be valid which should take it from him, without indemnifica- tion, under a pretext of regulating the "common use" of the water more profitably, or of providing for its distribu- tion so as to benefit a greater nuoiber of persons. He would have a vested right to the use of the water, although the riparian proprietors Avould have none. If, indeed, one who has appropriated the water of a stream since the adop- tion of tije present Constitution has appropriated it ' 'for sale, rental or distribution" to others, the rates he may charge consumers must bo fixed by local authority. (Const., Art. XIY, Sec. 1.) But if he shall consume the water himself, one may thus, for his own benefit, arbitrarily deprive many of an advantage which, whether technicalh' private property or not, is of great value, and thus secure to himself that which, by every definition, is a species of private proi)ertv i)) him. Riparian lands are irrigated naturally by the waters percolating through the soil and dissolving its fertil- izing properties. This is sufficiently apparent from the consequences wliich ordinarily follow from a continual ces- sation of the flow of a stream. If, in accordance with the law, such lands may be deprived of the natural irrigation, with- out compensation to the owners, we must so hold; but we fail to (lis over the principles of "public policy" which are of themselves of paramount authority and demand that the law shall be so declared. In our opinion it doos not require a prophetic vision to anticipate that the adoption of the rule, so-called, of " ap- propriation " would result in time in a monopoly of all the waters of the State by comparatively few individuals, or combination of individuals, controlling aggregated capital, who could either apply the water to purposes useful to 37 themselves, or sell it to " those from whom they had taken it away," as well as to others. Whether the fact that the power of fixinj^ rates would be in the Supervisors, etc., would be a sufficient guarantee against overcharges, would remain to be tested b}' experience. Whatever the rule la d down, a monopoly or concentration of the waters in a few hands, may occur in the future. But surely it is not requir- ing too much to demand that the owners of lands shall be compensated for the natural advantages of which they are to be deprived. It is admitted that a single riparian proprietor would stand on the same footing as one not such. But the con- cession would still leave the rule in force, "first come, first served." It has been assumed that there is no medium between the rule contended for and what has been said to he tin; rule of the common hiw, which recpiires that the stream shall flow "undiminished in quantity" past the lands of all the riparian proprietors. And it has sometimes been gravely argued that, unless the doctrine of appropriation shall prevail, the owner of lands near the mouth of a stream may not only fail to use the waters himself, but will have power to refuse to permit any other person to employ them. We have already said that the right to the water of the riparian proprietor may be taken for a public use, on due compensation to such proprietor. And it will be noted (since the defendant is not a riparian proprietor, unless made such by the mere fact of its appropriation), that tiie exigencies of the present case do not imperatively demand that we shall liere determine the respective rights of riparian owners as between themselves. But even if the defendant is to be treated as a riparian proprietor with reference to the specific tract in which is the head of its canal, we enter- tain no doubt, upon principles of the common law, as ap- plied to the conditions here existing, that each riparian proprietor is entitled to a reasonable use of the water for irrigation. This statement has its bearing on the alleged public policy, which, it is claimed, should control when the alternative is presented between "appropriation"' and the non-use for irrigation, or like purposes, by any person. What is a reasonable use by a riparian occupant — reference being had to the use required by the others— must depend upon the circumstances of each particular case. This cause was not tried on the theory that defendant was a riparian owner. There is no pretense that the water diverted was necessary for, or was used for, the reasonable irrigation of the specific tract at the head of defendant's canal. 38 Couusel do not seem to agree as to the natnve and per- vading force of the "public policy" relied on. While, on the other hand, it has been suggested that policy demands the recognition of the doctrine of "appropriation," so- called (a doctrine which would give to the prior appropriator the right to divert, without compensation, all the waters flowing to inferior riparian owners), throughout the State; counsel appearing as cnuici cnrice. urge that different public policies obtain in different portions of the State. In view of this assumed fact, it is said, it should be held that the streams in the more arid portions of California may be en- tirely diverted by the prior appropriator, as against those below, and that the common-law rights of riparinn pro- prietors should prevail in the regions in which the climate more nearly resembles that of other States where the com- mon-hiw rule is enforced. The aridity of the soil and air being made the test, the greater the aridity the greater the injur}^ done to the riparian proprietors belosv by the entire diversion of the stream, and the greater the need of the riparian proprietor the stronger the reason for depriving him of tlie water. It would hardly be a satisfactory reason for depriving riparian lands of all benefit from the flow, that they wouUl thereby become entirely unfit for cultiva- tion or pasturage, while much of the water diverted must necessarily be dissipated. No precise line of separation between the regions so characterized is pointed out, and the attempted classification is itself somewhat uncertain and in- definite. It w^ould seem tiiat there could be no doubt that the law, derived/roiii the scnne sinirces, is the same everywhere in California. Were the theory of counsel accepted, would the courts take judicial notice of the physical conditions, in an undefined district, which would compel the adoption of one rule rather than the other? Or would the matter be submitted to the trial court or a jury upon evidence to be de- termined as a question of fact'? If the theory were ac- cepted, parties to a litigation would be subjected to one or another law, as it might be deemed by court or jury, in the particular case, that it was for the interest of the neigh- borhood (or large "region," as the case might be) that the rights of the parties should be settled by one law or the other. Perha;is, too, the law with res[iect to appropriators and bank-ow^ners on the same stream would vary with the changing seasons. And if the issue as to the applicability of one law or another were submitted as a question of fact, two different laws might obtain and determine the rights of parties in different suits, as the evidence adduced with 39 respect to physical conJitious of the "region,'' should briug home to the nnnds of the triers one conviction or another. Certainly, a judgment in a particular case (if the question would be one of fact) would not be binding upon all the residents of the region, nor determine what law prevailed therein. We can conceive of no " public policy" Avhich should compel us to abandon the rights of the citizen to the whim or caprice, or to the deliberate and honest judgment of the arbiter in each separate case. Whatever is the gen- eral law bearing on the subject it is the same everywhere within the limits of the State. It is for the court to applj', or to direct a jury to apply, the appropriate rule to the facts proved by the evidence bearing upon tbe issues made by the pleadings, but neither court nor jury can say that it is expedient to declare that a law shall bo operative in one portion of the State which differs from the law in other portions, or to decide that there is no general law bearing on the subject. JF. By the law of 3Iexico the running waters of California loere not dedicated to the common use of all the inhabitants, i)i such sense that they could not he deprived of the common use. We have been warned lest in approaching the subject we shall assume that, in the very nature of things, running waters are inseparably connected with the riparian lands. It may be conceded that if riparian owners have any right in the waters (or in the lands themselves) it is such as is created or recognized by the law of the land. It is at least equallj^ true, however, that every inhabitant of a State or district does not possess a potential right, inherent in his habitancy, to divert so much of the waters of a stream as he may have occasion to employ. The whole matter depends upon the law of the country, written or unwritten. Counsel for respondent announce the proposition: "The fundamental principle upon which all the laws of the former governments of this territory upon this subject (waters and their uses) were based, will be found to be that the flowing waters of the streams'and rivers of the country ivere dedi- cated to the common use of the inhabitants, subject to that legis- lative control which is the equivalent of the exercise of that legislative power which we know as the police power of the State." 40 We understand this to mean that "the inhabitants" of the territory, or, at least, the occupants of h\nds in each valley or water-shed capable of irrigation from a stream flowing in it, had, under the Mexican law, a vested interest in the common use fur irrigation and like purposes to which the waters were "dedicated," w^hich could not be taken away by the legislative power. That the dedication con- tinues to the present hour; that the JState of California has no power to restrict the use to riparian proprietors; that the statute of 1850, adopting the common law " as the rule of decision," is not to be construed as an attempt so to restrict the use, and, if it must be thus construed, it is invalid to that extent, since the power of the State is limited to the mere regulation of the common use. In support of the proposition above recited, counsel refer to New Orleans v. 2he United Slates. (10 Peters, 662.) In the year 1717 a charter was issued by the King of France to a corporation, styled the Western Company, whereby were granted to the company the lands, coasts, har- bors and islands in Louisiana. Under its auspices the ground where the city of New Orleans now stands was se- lected as the place of the principal settlement of the prov- ince. In 172i and 1728 maps of the town were made, on which a space on the margin of the Mississippi was desig- nated as a qiniii. This space was continually used for the purposes to which it was devoted. These, with other cir- cumstances, w^ere held jjrorf of a dedication to the public, in New Orleans v The United States. The case is in accord with established principles both of the civil and common law. It ma}' be conceded that when, under the former govern- ment property was dedicated to the public use, either by a private person or the nation, the people comprising the pub- lic and their successors acquired a vested interest of which they cannot arbitrarily be deprived — to the extent of the common use to which the property was dedicated. But it would seem to be difficult to derive the right to the exclu- sive use of the whole or portions of the waters of a stream from their dedication to the common use of all. We shall see that the laws of Mexico authorized the diversion of wa- ters for the exclusive benefit of corporations and individu- als, under some circumstances. The jirovisions of our Civil Code authorize such diversions for exclusive use. It cannot be successfully argued that laws authorizing such exclusive appropriations are less an infringement of the ' ' common use " to which rivers were devoted than a law limiting the use of the waters to riparian proprietors. 41 And this leads to an inquiry as to the nature of the com- mon use of running waters under the Mexican law. In the Institutes of Justinian it is deckired concerning thin'/s: "They are the propert}' of some one or no one." ("Vel in nostro patrimonio vel extra nostrum patrimonium.") "Some are, by natural right, common to all ; some are pub- lic ; some are of corporate bodies (cities — municipal) ; and some belong to no one. Many are the property of individ- uals, acquired in divers ways," etc. (Lib. 2 tit. 1.) The things, which by natural law are common to all, are these: air, running water (agua proflneus), the sea, and as a con- sequence, the shores of the sea." (Id., 8ec. 1.) "Flumina autem omnia et portus publicasunt.'' (Sec. 2 ) The Eoman law distinguished between res-communes and res-publicae. The sea was included amongst the former, the rivers amongst the latter. (Halleck Inter. L., p. 147; notes.) h.\\ perennial rivers were public. (Dig- 4-^, 12, 3.) Such rivers were of the class of things "publico usui destinatae" like ports and roads. (Mojle's Ed. Insts., p. 181; n.) The same distinction is recognized by Spanish writers. "Bienes coraunes" being those which, not being as to prop- erty of an3% pertain to all as to their use — as the air, rain, waier, the sea an 1 its beaches; "bienes pubJicos" those which, as to propertj', pertain to a people or nation, and as to their use, to all the individuals of the territory (or dis- trict) such as rivers, shores, ports and public roads. (Es- criche. See also the word "Cosa.") In Febrero Novisimo cosas conianes are defined as those "qui sirven a los hombres y demas vivientes, coino el aire, cl agua Uovedizci, el mar y sus riberas." (T. 1, lib, 2, tit. 1.) Both writers cite law 3, tit. 28, Part 3. In Hall's version of the law referred to there are included in the things belonging, as to property, to none, and as to use to all living creatures, "air, rain, icater, the sea and its shores." (Hall's Mex. Law, -I-IT.) This is probably a mistake of the printer. The words of the law are "el ayre, e el mare elas aguas de la Uuvia.' Lord Den- man remarks that Fleta enumerating res-communes, (miits "agua prolluens." (Jilason v. Hill, 5 B. and A , 23.) By the Mexican law the property in rivers pertained to the nation, the use to the inhabitants. The nature of this use will be considered hereafter. The modern doctrine as to the sea-shores, even in coun- tries where the civil law prevails, seems to be that they be- long to the State. {Pollard's lessee v. Hogan, 3 How. U. S., 212 ) It has been suggested that the claim of ownership by the English crown to the ocean beaches is the remnant of 42 the broader claim once asserted to the narrow seas adjoin- ing the British islands. (Angell on Water-courses.) But the modern doctrine which attaches to the sovereignty the prop- erty in the sea-shores seems to be derived from Celsus. (Dig. 4, 3, 8, 3. Moyle"s Lists., p. 183.) By the Mexican laws the shores of the sea include the space covered by the flux aud reflux of the waters at their greatest altitude, whether in winter or summer. Escriche calls the ijloya "la ribera del mar," and remarks: "The laws of the Partidas place the playa amongst the common things which all men can use, but it cannot be intended to ti'eat it as independent of the nation to which it may pertain." And under the head "ribera" he says: "The shores of the sea pertain as to property to the nation of whose territury they are a part, and as to use to all," etc. It is unnecessary, however, here to declare whether by the Mexican law the ocean beaches were proprietas mullius, or pertained as to property to the nation. Whatever the common use to wliich rivers, harbors and public roads were subjected the enjoyment of such use would exclude the notion of an exclusive use or occupation which must interfere with a like use by others. "Com- munis omnium est harum rerum usus ad quem natura com- paratae sunt, tum siquid earum rerum per naturam occupari potest, id eaten us occupantis flt, quatenus ea occupatione usus ille promiscuus non laeditur."' The common use of rivers would seem to be such as all could enjoy who had access to them «s risers. Vinnius says: "Uuicuique licet in flumine publico navigare et piscari," and adds, with re- spect to running water generally, "Aqua profluens ad lavan- dutii et potanduiit unicuique jure naturali concessa. (Cited by Lord Denman in jVaso)! v. Hill, 5 Barnew all and Adol- phus, 1.) In Blamii v. Hill, the learned Judge speaks of a distinction mentioned by the civilians between a river and its waters; the former being as it were a perpetual body, and under the dominion of those in whose territor}' it is con- tained; the latter continually changing and incapable, "whilst it is there," of becoming the subject of property. He adds: "It seems that the Eoman law considered running water not as a bonum vacans in which any might acquire a property, but as public or common, in this sense only, that all might drink it or apply it to the necessary purposes of supporting life; and that no one had any property in the water itself, except in that particular portion which he might have abstracted from the stream and of which he had the possession, and during the time of such possession only." 43 The common use of the waters, it would seem, existed only while they continued to flow iu, and constituted a por- tion of the river. But under the Mexican law an exclusive use of parts or the whole of the waters of a river might be legally acquired by individuals. The oceans "proi)ter immensitatem" may be used to their fullest benefit without any exclusive appropriation, and such appropriation is not necessary for the purposes of so- ciety or of advantage to mankind. "'Moreover, the use of the sea may be said to be matter of necessity to all those na- tions who have anj' jjart of their territories bounded by it; and as no nation can possibly assert that it is unable to en- joy the fullest use of the sea without the exclusion of others, so no nation can have any just ground for excluding others from an advantage which all may enjoy, together with equal- ly full utility to each. This legal doctrine is thus admirably summed up by a German civilian: 'The great sea is a thing, the use of which is inexhaustible, consequently, as no one can acquire the dominion of things, the utility of which is unbounded and inexhaustible, no one (even were it possi- ble in fact) can subject the great sea to his dominion with- out violating natural law. And the same must be under- stood of several nations, wh(^ cannot, for the same reasons, divide the dominion of the great seas among them. Conse- quently no nation can, without infringement of natural law, subject to its dominion the great sea.' " (Boyer's Com. on the Modern Civil Law. p. 64; citing the Pandects, Grotius, Pufendorf, Bynkershock, Wolf's Jus.: Gent.) The same writer says: "Both Grotius and Pufendorf de- duce the appropriation of things which must probably have been common to all men, from the very constitution and organic rules and necessities of the social state, as well as from the objects for the furtherance of which that state is intended. But it follows from the same principles that those things, the exclusive appropriation of which, cither to a portion of mankind or to certain individuals and purposes, is unnecessary for the objects of the social state (that is for the furtherance of the welfare of mankind) must remain by natural law common to all men. Thus air and light cannot be brought under the power of any one person." "Upon these principles running waters are held by the Roman jaris-consulti to be common to all men. But it also follows that this decision does not apply to waters, the ap- propriation of which (to the exclusion of the common enjoy- ment) is necessary for a certain purpose, as water included in a pipe or other vessel for certain uses. The common a right to the use of running water therefore applies only to those cases where the quantity of water is so great that its entire exchisive appropriation is not necessar\, having re- gard to the general objects of the institution of property. Gro. Droit de hi Guerre, Puf. Droit de hi Nature." (Bow- yer, p. 61.) " Thus running water is capable, indeed, of a qualified appropriation as property, but subject to a common right by natural law where it is cajmble of being f'lUt/ enjoyed iritJiout exclusire possession.'" (Id. i3. 62) Viunius, in his commentary on the institution above re- ferred to, says these things are common which by nature are devoted to the use of all, and which in "nullius adhuc diti- onem aut dominium perveneruut," which seems to imply that some things hitherto common may become the property of an individual. And this is true with reference to things the ultimate property of which is in the State, the use of which is com- mon until the exigencies of the social state require that they sh.all be subject to the exclusive use of individuals. Inas- much, however, as the property is in the nation such ex- clusive use can be acquired onlv with the nation's consent. By the Mexican Civil Code of 1S70, it is provided: "The property in waters which pertains to the State does not pre- judice the rights which corporations or private individuals may have acquired over them b}- legitimate title, according to what is established in the special laws respecting public property. The exercise of prop( rfy in waters is subject to what is provided in the following articles." (Art. 1,066.) " In Guerra's El Codigo Civil, in Forma Didactica," the word " private " is inserted after the word property, so as to make the last sentence of the article read " El ejercidio de la prDpiedad privada de las aguas, esta sujeta," etc. If, as is suggested by counsel, the presumption is that the pro- visions of the Codo are declaratory of the pre-existing law, the right which could be acquired under the laws, to the separate use of the portions of a stream, constituted an ex- clusive usufruct of the nature of private property, which did not and could not co-exist with a common use of such waters by all. As we have seen running water is capable of appro- priation as private property, imlependent of any common use, where the quantity of water is so small as to be in- capable of being fully enjoyed without exclusive possession. The exclusive appropriation is put in opposition to the com- mon use. (Bowyer, supra.) Article 789 of the Civil Code defines private property: "All thiugs the dominion of which pertain legally to private persons, and those which cannot 45 be used Avithout the consent of the owner, are private property." The Mexican Government prohibited any diversion or ob- struction of the waters of a river, by riparian proprietors or others, which shoukl interfere with navigation. Escriche says: " No puede ningun particuLir hacer en los rios ni en sus riberas casa 6 otro edificio que embarace hi navagaci^n, * ^ porque la utilidad de todos h)s hombres no se ha de impedir por hi de uno solo," etc. It has been said that riv- ers may be used for purposes of navigation, not only by the denizens of the land where they are found, but by strangers, unless some municipal ordinance, law or custom coniines their use to a certain class of persons. (Febrero.) This of course implies that the sovereign may limit the right of nav- igation to particular classes. ' 'Notwithstanding the banks of rivers are as to dominion or ownership of those Avhose lauds adjoin, all navigators may use them, by tying their vessels to the trees growing there, landing their merchandise there- on," etc. General Halleck says that, by the Eoman law, the right to navigate rivers carried with it the right to moor ships to the banks. (Inter. Law, supra.) Thus it was the policy of Mexico to foster and protect navigation; the rivers naturally adapted to the passage of water craft were devoted to the common use for purposes of navigation. It would seem to be in the power of the sover- eign (except so far as the power is limited by the constitu- tion of government) to authorize such diversions as shall interfere with navigation. It was never doubted that an Act of Parliament would operate to extinguish any public right to passage. (Woolrych's Law of Waters, p. 289.) While, however, a river remained a navigable river the navigation was, by the civil law, common to all, unless the privilege was limited to a class. Interference with the appropriate common use of innavi- gable rivers was not thus absolutely prohibited by the Mex- ican law. The common use of the waters of such rivers by all who could legall}- gain access to them, continued only while the waters legally flowed in their natural channel. And the power of determining whether the public good — the pur- poses for which the social state exists — demands that the use of the whole or portions of the waters should pass as an ex- clusive right to one or a class of individuals remained in the sovereign. Whether the power is an incident to the ultimate domain or right of disposing of the property of the State, or is to be referred to some other source or principle, the Mexican Government employed the power of permitting the '!G diversi()ii of waters from inuavigable rivers by those not ri- parian proprietors, upon sucli terms and conditions, and with such limitations, as were established by hiw, or by usages or customs which had the force of hiw. That Gov- ernment saw fit to cf supervision over matters political and ecoiioaiical in pueblos and district^) and superior (ap- pointed) alcahles, they were directed, in order to promote the utility of the fields by the use of all the water that could be applied for their benefit, to adopt measures for the con- struction of acequias from the rivers, draining them in the parts most convenient, w'dhout prejudice lo their course and to the hncer districts, and taking care also to discover subterran- ean waters in order to use them, "as well us for fiour mills, fulling mills and other necessary and convenient machinery for grinding," etc. (Nov Eecopilacion, T. 3, tit. 11, lib. 7, law 27, Sec. 48; Hall's Mex. Law, Sec. 1,402.) By the royal decree of the 31st of August, 1819, favors were extended to tiyuutamientos, communities, companies and individuals who, " with the previous corresponding per- mission of the Government," should construct at their own cost ditches or canals for new irrigations, taking water from rivers which afford an ahundant supply, or carry much water (caudalosos) collecting at one place the waters of the arroyos or springs, or conducting them from the bosom of a high mountain, etc. The favors extended by the decree are enu- merated by Escriche, and consisted in the main of remis- sion of tithes, first fruits, etc. It is doubtful whether this decree was in force when California passed from under the sway of the Mexican rule. But, if so, Escriche adds: "Not- withstanding what h;is been said, no individual or corpora- tion can withdraw from their source, or on their course, the waters of springs or rivers that from ancient times have ir- rigated other lands lower down, which cannot be despoiled," etc. The last statement is based by the author upon the royal order of 1834, which, as is suggested, was never operated in Mexico. Upon principles recognized by the Mexican law, however, no one could be deprived of a right to the use acquired by pre.sc/-i/9efully applied on the public lands of the United States, such rights have always been claimed to be deraigned by private persons under the Act of Congress; from the recognition accorded by the Act; or, from the acquiescence of the Gen- eral Government in previous appropriations made with its presumed sanction and approval. If the United States, since the treaty with Mexico, has been the owner of the innavigable streams and their beds (in trust for the State or absolutely), or has been the owner thereof as a consequence of the Act admitting the State into the Union, or of the State Act of 1850, or as a conse- quence of both those statutes taken together, the same is true as to other riparian proprietors; at least, since the date of the first-named Act. They have been recognized as such owners by our Courts. Prior and subsequent to the enact- ments of the Civil Code with respect to appropriations of water, the rights to the use of water by private riparian pro- prietors, as between themselves, have repeatedly been ju- dicially determined by reference to the common-law rules on the subject, which — as is said by counsel— differ some- what from those of the Mexican law\ And, if the United States, since the date of the admission of the State, has been the owner of the innavigable streams on its lands, and of the subjacent soils, grants of its lands must be held to carry with them the approi)riate common- 60 law use of the waters of the innavigable streams thereon; except where the flowing waters have been reserved from the grant. To hold otherwise would be to hold, not only that the lands of the United States are not taxable, and that the primary disposal of them is beyond State interference, but that the United States, as a riparian owner within the State, has other and difterent rights than other riparian owners, including its own grantees. The Government of the United States has the absolute and perfect title to its lands. {U)iited States v. Gear, 3 How., 20: Jordan v. Barrett, 4 Id., 185; U. S. v. Hwihes, 11 Id., 508; Irwin v Marshdl, 20 Id., 561; Bag nelly. Broad n ill, 13 Peters, 450; U. S. v. Gratid, 14 Id., 526.) Unless, there- fore, running waters are reserved, they pass by grant or patent of the United States. It was so held in Vansiclde v. Haines, supra. The Supreme Court of Nevada cite Cook v. Foster, 2 Gilman, 052; Wilson v. AIcGhee, 12 111., 381, and Calvin v. Burnett, 2 Hill, 620; and quote with approval the language of Mr. A.ngell, who says: "The onl}' mode by which a right of property in a water- course above tide water can be withheld from a person who receives a grant of the land, is by a reservation directly ex- pressed, or clearly implied to such effect. If the intention of the grantor is not to convey any interest in the water, he Ciin exclude it by the insertion in the instrument of con- veyance of proper words for the purpose of doing so; but, in the absence of such words, the bed, and consequently the stream itself, passes b}' the conveyance." (7 Nevada, 266.) Whatever mnj be the weight as authority of Vansicle v. 'Haines in other respects, the statements that the grantee or patentee acquires from the United States — the absolute and unqualified owner of the public lands — common-law rights in the waters flowing through the land granted (except where the waters or a portion of them are reserved) has never been disputed. VII. The State of California became the oivm-r of the swiuiip lands, described i)i the complaint herein, on. the 28^/i day of Sep- tember, 1850. The State of California having been admitted into the Union on the 9th day of September, 1850, on the 28th of the same September the Congress passed an Act, "to enable the State of Arkansas and other States to reclaim the swamp and overflowed lands within their limits," which reads: 61 "Be it enacted by the Senate and House of Eepresenta- tives of the United States of America, in Congress assem- bled, That to enable the State of Arkansas to construct the necessary levees and drains to reclaim the swamp and over- flowed lands therein, the whole of those swamp and over- flowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this Act, shall be, and the same are hereby, granted to said State. " Sec. 2. That it shall be the duty of the Secretary of the Interior, as soon as may be practicable after the passage of this xAct, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the Governor of the State of Arkansas, and, at the request of said Governor, cause a patent to be issued to the State therefor; and on that patent the fee simple to said lands shall vest in the said State of Arkansas, subject to the dis- posal of the Legislature thereof; provided, however, that the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid. " Sec. 3. That in making out a list and plats of the land aforesaid, all legal subdivisions, the greater part of which is 'wet and unfit for cultivation,' shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom. " Sec. 4. That the provisions of this Act be extended to, and their benefits be conferred upon, each of the other States of the Union in which such swamp and overflowed- lands, known and designated as aforesaid, may be situated." (9 Stats, at Large, p. 519). The lands claimed by the plaintiffs herein are admittedly swamp and overflowed, and no point was made by de- fendant that the lands had not been duly listed to the State prior to the certificates of purchase offered in evidence. Even if it had been made to appear that the lauds had not been listed, the fact that they are swamp and overflowed would have shown that the State acquired a present vested right in them as of the date of the Act of Congress of Sep- tember 28, 1850. {Railroad Company v. Smith, 9 Wall., 95). It is true that case turned in part on the language of the grant to the railroad company which reserved lands " pre- viously sold or disposed of." (See Bnilroad Company v. Free- rnonl County, 9 Wall., 89). But the case clearly recognizes the Act of 1850 as a grant to the State in prcasenti of the 62 lands which should subsequently be listed as swamp and overflowed, by the Secretary of the Interior, or which should be proved to be snch. In the subsequent case, French v. Fyan (93 U. B., 173), it was expressly said that nothing was decided in conflict with'Rdi/road Company v. Smith; the Supreme Court say- ing that in the opinion in the last-named case there is the strongest implication that if the Secretary had made "an adverse decision," the evidence that the land there in con- troversy was in fact swamp and overflowed should have been rejected. In French v. Ft/an, it was held that the determ- ination of the Secretary that certain land was swamp and overflowed, and the patent, issued thereon, were conclusive of the fact, and that the opposing party could not be per- mitted to prove that the land was not swamj) laud. Further, that the patent — the evidence that the land described in it had been identified as swamp and overflowed — related back and gave certainty to the title of the date of the grant. The Supreme Court of the United States said: "This Court has decided more than once that the Swamp Laud Act was a grant in proesenti, by which the title to those lands passed at once to the State in which they lay." The certificate or listing of the Secretary, like the formal patent, relates back to the date of the Act granting the lands. And so, when the character of the land appears from the evidence identi- fying it as swamp and overflowed, it is established that the title to the particular land was vested in the State, Septem- ber 28, 1850 — the date of the Act granting all the swamp and overflowed lands. But snch evidence that the land is swamp and overflowed is admissible in ejectment onlij where the Secretary of the Interior has failed to act, and is not admis- sible to overcome the eflect of a patent issued to a settler under the pre-emption laws. (Ehrhardl. v. HogahHllv a condition suhseqiwnt, the faikire to perform which would authorize a forfeiture of the grant. That, however, would be a question between the United States and the State- a controversy in which the defendant here would have no interest. The State's grantee of swamp lands takes the full title, subject to the powder of the State to reclaim the land, and for that object to impose and collect assessments upon it; subject also (perhaps) to a forfeiture of his own and the State's title, in a proceeding inaugurated by tlie United States, if the land should not be reclaimed by the State. It may be added there are very grave doubts whether, upon a fair interpretation of the State statutes providing for recla- mation, the barring of the flow of a regular and defined stream from lands below, not swamp, is contemplated; or whether the State would have poAver, by any statute, to authorize such a proceeding. The statute seems to have in view levees along the sides of watercourses and not across them. VIII. It has never been held by the Supreme Court of the United States, or by the Supreme Court of this State, that an appropria- tion of water on the public lands of the United States (made after the Act of Congress of July 26, 1866, or the Amenda- tory Act of 1870J ga,ve to the appropriator the right to the ivater apjjropriated as against a grantee of riparian lands, under a grant made or issued prior to the Act of 1866; except in a case ivhere the lo.der so subsequently approjyriatcd toas reserved by the terms of such grant. Since, as before, September 28, 1850, the United States has been the owner of lands in California with power to dispose of the same in such manner and on such terms and conditions (not interfering with vested rights derived from the United States) as it deemed proper. But neither the legislation of Congress with respect to the disposition of the public lands, nor its apparent acquiescence in the ap- propriation by individuals of waters thereon, subsequent to the Act of September, 1850, granting the swamp lands to the State, can affect the title of the State to lands and waters granted by that Act. Neither the Supreme Court of the United States nor the Supreme Court of California has ever held in opposition to this view. 64 In Vansicldew Haines (lie plaintiff had diverted oiie-foiutli of the water of Daggett Creek in the year 1857. He made the diversion at a point then on the public land, but which in 1864 was patented by the United States to the defendant Haines. In 1865 Yansickle obtained a patent for his own land where he used the water. In 1867 Haines constructed a wood flume on his land and turned into it all the water of the stream, thereby depriving the plaintiff of that part of it which he had been using. The Supicme Court of Nevada held that the })laintiff by his appropiiation of water /jr/or to the date of defendant's })ateut acquired no right which could affect that grant, and that while the Act of Congress of July, 1866, protected those who at that time were diverting water from its natural channels on the public lands, and while ail patents issued or titles acquired from the United States since that date are obtained subject to the rights of Avater by appropriation ex- isting at that time, yet with re-pect to patents for riparian lands issued before the Ad of Congress, the patentee had al- ready acquired the right to the flow of water Avith which Congress could not interfere. In Broder \. Water Conqxtny' (101 U. S. , 274) it appeared: In the year 1853 the defendant completed a canal through Avliich it had continuouslj' conducted waters and distributed them for mining, agricultural and other uses; that a portion of the land through Avhich the canal ran Avas included in the land granted to the Pacific Railroad (under whom plain- tiff claimed) by the Act of July 2, 1864. That the plaintiff also claimed as a pre-emptor, the inception of his claim as such being a declaratory statement filed August 6, 1866. The Court held that ihe plaintiff was not entitled to haA^e the canal running through his land, abated as a nuisance, by re.. son of his pre-emption right, because, preA'ious to the initiation of proceedings to secure pre-emption (on the 26th of July, 1886 — 14 Stats, at L., 2G1) Congress had enacted a statute, the ninth section of Avhich contained the declaration: "That AvhercA'er, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vtsted and accrued, and the same are recog- nized and acknoAvledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested lights shall be maintained and |.)rotected in the same; and the right of way for the construction of ditches and canals, for the purposes aforesaid, is hereby acknowledged and con- firmed." The Court also held that the plaintiff* Avas not entitled to 65 relief under his deraignment of title from the railroad com- pany, because the grant to the company of July -', 1864, containetl the following reservation : "Any lands granted by this Act, or the Act to which this is an amendment, shall not defeat or impair any pre-emption, homestead, swamp-land, or other lawful claim, nor include any Government reservation or mineral lands, or the im- provements of any bona fide settler on any lands returned or denominated as mineral lands, and the timber necessary to support his said improvements as a miner or agriculturist." In the opinion of the Court the section of the Act of 1866 above quoted "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, "and that the claim of the defendant to the right of way was such a "lawful claim" as was unaftected by the grant to the rail- road company made before the Act of 1866 was passed. Broder v. Water Company m;iy appear to be in conflict with Vmisickle y. Haines. But is there any real conflict? It will be observed that the Broder case turned (so far as the plaintiff's title from the railroad company was concerned) on the reservation clause in the Act constituting the grant to the companv, and the Court held that "a lawful claim " within the meaning of the reservation in the Act of 1864, was " any honest claim evidenced by improvements and other acts of possession." The construction given to the language of the reservation, of course, implies that those who appropriated lands or waters on the public lauds, prior to the Acts of 1864 or 1866 had not been treated by the Gov- ernment in those Acts as mere trespassers, but as there by license. It does not imply that they had acquired any title, which could be asserted against the United States or its grantees, except so far as their occupations of land or water were protected and reserved to them, by Acts of Congress. In Broder v. The Water Compan!/ the claim of the appro- priator was recognized in the grant to the railroad company, and prior to the initiation by the plaintiff of proceedings to secure a pre-emption. In the case at bar the grant of the lands to the State (containing no reservation of the waters of flowing streams expressed or to be implied from its terms) was made nearly thirty years before the first appro- priation of water by the defendant, which was after the Act of Congress of July, 1866, and the Amendatory Act of 1870. (Copp's Mg., Dec, 1873-74, 296.) In Osgood V. Water Company (56 Cal., 571), it was held that where a person acquired a right by appropriation to 66 water upon the public lands of the United States, before the issuance of a patent to another for lands through which the stream ran, the patentee's rights were " by express statu- tory enactment, subject to the rights of the appropriator.'' The Court cited the Amendatory Act of Congress, above referred to, the seventeenth section of which reads: "That all patents, granted, or pre-emptions or home- steads all "wed, shall be subject to any vested and accrued water rights, or lights to ditches and reservoirs used in con- nection with such water rights, as m;iy have been accpiired under or recognized by the ninth section of the Act of which this is amendatory." At the trial of Osgood v. lVate7- Conqxiny in the lower court the plaintift" testified that he filed his declaratory state- ment as a pre-emptor, June 18, 1868, but the Court found that defendant's appropriation was prior to that date. There is nothing in that case which precludes us from holding that a pre-emption claim relates to the pre-emption certificate so as to give the pre-emptor the better right as against an ap- piopiiatiou of water, made after the certificate is given to tlie pre-emptor. The late Professor Pomeroy, in one of a series of able articles published in the Wed Coast Reporter, questions vvhetlier the occupant of public lands, with the qualifications of a pre-emptor, can be deprived of the flow of the stream by an apjnupriator who commences the acts leading to apiiropriation after the occupation of the other begins. It is not necessary to consider this proposition in the present case. Two of the members of this Court dissented from the conclusion reached in Osgood v. Water CoriijKiiiy, on the ground that the waters had not in fact been appropriated in accordance with the local rules or regulations, cr with the rulings of the courts. (See Pacific Coast L. J., Vol. 2, p. 322.) Both Broder v. Water Company and Osgood y. Water Co)n- paiuj are (by strongest implication) authority for the state- jneut that one who acquired a title to riparian lauds fioni the United States prior to the Act of July 26, 1866, could not (in the absence of reservation in his grant) be deprived of his common-law rights to the How of the stream by one who appropriated its waters after the passage of that Act. Much stress is Laid by counsel on the language used in Broder v. Water Conrpauy (sapra) with reference to the clause in the Act of 1866 that water rights recognized or acknow- ledged by the local customs, etc., "shall be maintained and 67 protected" "was rather a recognition of a pre-existing right of possession; constituting a valid claim to its continued use, than the establishment of a new one," But this language is to be interpreted in view of the context. The language can- not be construed as a recognition by the Court of vested rights in appropriators of water, created by mere appropria- tion and independent of statute. The case proceeds on tlie assumption that neither the phiintiff nor the defendant had any rights except such as were granted or recognized by Acts of Congress. It holds that appro[)riators of water from streams on (or flowing to) the lands granted the Act of 1864 were ' 'recognized" or admitted to have rights, which were pro- tected by that Act; because the Act by its terms reserved from the grant to the railroad company every "lawful claim;" that one who had been permitted to divert water from those lands had a claim which was not in itself unlaw- ful, and that the reservation included ^ 'every honest claiiii, evidenced by acts of possession. There is no statement in the opinion in Broder v. Water Conipauy, that except for the reservation found in the Act of 1864, and the provision in the Act of 1866, the defendant would have any right to the water as against tlie grantees named in the Act first named, or their successors in interest. The Court holds that Broder acquired no right by virtue of his pre-emption, because his proceedings to secure it were begun after the Act of 1866 — which recognized the prior appropriation of the water as being a right in the appropria- tor— and that Broder acquired no right under the railroad grant, because the water previously appropriated was re- served in that grant. IX, The rights of the State under the grant of September 28, 1850, do not depend iqmn, nor are they limited by the decisions of the Slate courts loith respect to controversies npon the public lands of the United States. Those decisions do not enter into nor operate upon the subsequent legislation, of Con- gress, in such manner as to require that the legislation (or its afjUrmance of rights recognized by the State courts as ex- isting betiveen occupants upon the public lands of the United States) must be construed as an attempt to deprive the State of its vested rights. If the decisions mentioned can Ix' referred to for any pur- 68 pose, semhle : Ihat the occupant of a tract of riparian land (arable or grazing) o)t the public domain is by such decisions presumed to have received a grant of the flowing loaier, to the extent of the common-law right to the use of such Wider as it flows through the land. And if the doctrine as to adverse claims upon thep)ublic lands as declared by these decisions be extended to lands granted to the State, it cannot effect the title or estate of grantees of the State (the wcder not being reserved in the grants or in the legislation authorizing the graut). The doctrine is applicable alo)ie to actions in lohich both parties claiin only by possession . It is insisted that, the "doctrine of appropriation" is not, and never was applicable to public lauds — State or United States — in California. It raaj be conceded that while lauds continue public lands — and in controversies between occupants of laud or water thereon — ^the common-law doctrine of riparian rights liMS no application. Bat where one or both of the parties claim under a grant from the United States (the absolute owner, whose grant in- cludes all the incidents of the land and every part of it) it is difficult to see how a policy of the State - or a general prac- tice — or rulings of the State Court with reference to adverse occupants on public lands — can be relied on, as limiting the effeci of grants of the United States, without asserting that the State, or people of the State, may interfere with "the primarv disposal of the public lauds." It has been urged that the courts of this State should adopt the doctrine of apjpropriation. as it is accepted iu Colo- rado. But, if it be conceded that the Colorado decisions can be sustained on any legal principle, the legal conditions here are different. The Gth and 7th Sections of Article XVI of the Constitution of that State read: " Sec. 6, The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better rightas between those using the water for the same purpose; but Avlien the waters of any natural stream are not sutficieutfor the service of all those desiring the use of the same, those using the water for domestic purposes sliall have the preference over those claiming for any other purpose, and those 69 using the water for agricultural purposes shall have prefer- ence over those using the same form anufacturing purposes." " Sec. 7. All persons and corporations shall have the right of way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands and for mining and manufacturing pur- poses, and for draimige, upon payment of just compensation." In Coffin V. Left Hand Company (6 Col., 447), Schill'mg v. Romiiiger (4 Id., 102), is referred to apparently as authority for the statement that, in the absence of express statute to the contrary, the first appropriator of a natural stream, has the better right as against a subsequent patentee of the lands below. But Schilling v. Bominger was a contest be- tween appropriators of laud and water on the public hinds, none of whom had any title other than possession. In Coffin V. Left Hand Company, both the appropriation of the water and the patent to the riparian land preceded the Act of Congress of 1866, and of course the adoption of the State Constitution, in 1876. The appropriation of the water was prior to the patent. So far as the decision does not de- pend upon the statutes of the Territory of Colorado, it is in conflict with VansicJde v. Haines; the learned Court being of the opinion that the Nevada case was overruled by Broderv. Water Company. But as we have seen (supra') in Broder v. Water Company it was held that in the grant of lands to the railroad company the water was reserved for the benefit of the prior appropriator. And even if the case last mentioned could be held to have decided that the right acquired by one who appropriated water on the public lands prior to a grant to anothe'r of land over which the stream would flow (made before the Act of 1866) was a vested right, protected although not mentioned nor referred to in the grant, still there is nothing in that case which would give preference to an appropriation of water made (as in the case at bar) long after the grant of the land. If, by the Act of Congress admitting Colorado into the Union, with a Constitution containing the provisions above recited, the United States could abandon the primary dis- posal of its lands to the extent that not only every subse- quent, but every prior grant of land, would be subject to an appropriation of water made prior to the grant, this would not affect the question as applied to the facts of the case now before us, since our Constitution does not contain provisions like those in the Constitution of Colorado, and here the grant of the land preceded the appropriation. 70 Aud so, if the Uuited States is bound by the Territorial statutes, as construed by tlie Supreme Court of Colorado. In Coffin V. Left Hcaid Coitipan//, the appropriator was given tlie preference, by virtue of certain statutes of the Territory of Colorado, JDassed in 1861, 1862 and 1861. It m;iy be that, in interpreting these statutes, the Court was somewhat influenced by Ihe general proposition already laid down or assumed in its opinion, that, in the absence of ex- press statute, the prior appropriator of water had the bet- ter right as against all the world. But the Territorial Statutes were so construed as to give the right to the prior appropriator. It would seem clear, however, that the rights of parties who claim title under grant from the United States of parts of the public domain, must be determined by reference to laws ol the United States relating to the disposition of its domain. And this fact is recognized by the Supreme Court of Coloratlo, which appeals to Broder v. Water Company us supporting its interpretation of these laws. It may he suggested, however, that the rulings of the courts of California with reference to possessory rights on public mineral lands; enter into and, in some manner, limit the effect of grants of land by the Government of the United States, made, as is assumed, under statutes enacted in view of the local law, and of the varying rules and regulations of mining districts. The statutes passed long afterwards can- not afiect rights acquired by the State by virtue of a grant made in 1850; nor can the subsequent policy of the United States (which is supposed to be indicated by a failure, by express laws, to prohibit the occupation of portions of its lands for mining, etc., and by the omission of the executive ofhcers to attempt to remove miners and other occupants by force) be held to afiect the rights acquired by the State through the grant of 1850. The law of California, with reference to priority of poses- sion on the public lands has been so long established that we are apt to forget the whole system was built upon a pre- sumption, entertained by the courts, of a permission from the United States to occupy. It was said by Hydenfeldt, J., in 1856: "One of the favorite and much-indulged doctrines of the common law is the doctrine of presumption. Thus, for the purpose of settling men's difi'erences a presumption is often indulged where the fact presumed cannot have ex- isted. In support of this proposition I will refer to a few eminent authorities. * -5^ * In these cases presumptions were indulged against the truth — presumptions of Acts of 71 Parliament and grants from the Crown. It is true the basis of the presumption was length of time— but the reason of it \v;is to settle dispntesand to quiet the possession. If, then, l.ipse of time requires a Court to raise presumptions, other circumstances, Avhich are equally potent and persuasive, must have the like efi'ect for the purposes of the desired end; for lapse of time is but a circumstance or fact Avhich calls out the principle, and is not the principle itself. "Every Judge is bound to knoAV the history and the lead- ing tr its which enter into the history of the country Avheie he presides. This Ave have held before, and it is also an ad- mitted doctrine of the common law. We must therefore know that this State has a large territory ; that upon its acquisition by the United States, from the sparseness of its population, but a small comparative proportion of its land iias been granted to private individuals ; that the great bulk of it was laud of the Government ; that but little as yet has been acquired by individuals by purchase ; that our citizens have gone u}>on the public lands coutinnmisl}', from a period anterior to the organization of the State Government to the present time ; upon these lands they have dug for gold; ex- cavated mineral rock; constructed ditches, flumes and canals for conducting water; built mills for sawing lumber and grinding corn; established farms for cultivating the earth; made settlements for the grazing of cattle; laid off towns and villages; felled trees; diverted water courses; and, indeed, have done, in the various enterprises of life, all that is useful and necessary in the high condition of civil- ized development. All of these are open and notorious facts, charging with notice of them not only tlie courts who have to apply the law in reference to them, but also the Govern- ment of the United States, which claims to be the proprietor of these lands; and the Government of the State, within whose sovereign juiisdictiou they exist. "In the face of these notorious facts, the Government of the United States has not attempted to assert any right of ownership to any of the large bodv of lands Avithin the mineral region of the State. The State Government has not only looked on quiescently upon the uniA-ersal appropriation of the public domain for all of these purposes, but has studiously encouraged them, in some instances, and recog- nized them in all. " NoAv, can it be said, Avith any propriety of reason or common-sense, that the parties to these acts have acquired no rights? If they have acquired rights, these rights rest upon the presumption of a grant of right, arising either froui the tacit assent of the sovereign, oi* from expressions of her will in the course of her general legislation, and, in- deed, from both. " Possession gives title only by presumption; then, when tiie possession is shown to be of public land, why may not any one oust the possessor? Why can the hitter ])roiec'this possession? Only upon the doctrine of presumption, for a license to occupv from the owner will be presumed." (Con- ger \. Weaver, 6" Cci\, 55^-7.) Both the right to appropriate water on the public lands and that of the occupant of portions of such lands are de- rived from the imj)lied consent of the owner, and as l)et\veen the appropriator of laud or water the first possessor has the better right. The two rights stand upon an equal footing and when they conflict they must be decided by the fact of priority. (Irwin v. Phillips, 5 Cal., 140.) Since the United States, the owner of the land and water, is presumed to have ])ermitted the appropriation of both the one and the other, as between themselves the prior possessor must prevail. None of the early cases intimate that the occupant of laud, bordering on a stream, was presumed to have any less rights in the usufruct of the water than the absolute owner of the land so situated, or that the presumption in his favor was limited to the land, without the water, except where the Avater had been already appropriated. It was said by Chief Justice Murray, in Cranchdl v. Woods, 8 Cal., 143: "If the rule laid down in Irwin v. Phillips, is correct as to the location of mining claims and water ditches for mining purposes and prioriii/ is to determine the rights of the respective parties, it is difficult to see why the rule should not apply to all other cases where laud or water had been appropriated. The simple question was, that as between persons appropriating the same land, or land and water both, as the case might be, that the subsequent appropriator takes, subject to the rights of the former. "But an appropriation of land carries with it the water on the land, or a usufruct in the water, for in such cases the party does not appropriate the water, but the land covered with water. If the owners of the mining claim, in the case of Irwin v. Phillips had first located along the bed of the stream, they would have been entitled, as riparian proprie- tors, to the free and uninterrupted use of the water, without •my other or direct act of appropriation of the water, as con- tradistinguished from the soil. If such is the case, why would not the defendant, who has appropriated land over 73 whii.'h a natural stream Howed, be held to have appropriated the water of such stream, as an incident to the soil, as against those who sabsequently attempt to divert it from its natural channels for their own purposes. "One who locates upon public lands with a view of appro- priating them to his own use, becomes the absolute owner thereof as against every one but the Government, and is en- titled to all the privileges and incidents which appertain to the soil, subject to the single exception of rights anteced- ently acquired. He may admit that he is not the owner in fee, but his possession will be sufficient to protect him as against trespassers. If he admits, however, that he is not the owner of the soil, and the fact is established that he acquired his right subsequent to those of others, then, as both rest for their foundation upon appropriation, the sub- sequent locator must take subject to the rights of the former, and the rule qui prior est i)i tempore potior est injure, must apply." The learned Judge then proceeds to speak of the al- leged evil consequences of the rule he had laid down, say- ing: "Let us examine the effect of such a rule for a moment and see if the consequences which the respondent predicts, viz: the destruction of the use and value of ditch property in the mines, Avill necessarily flow from it. A has located mining claims along the bed of a stream, before any water ditch or flume has been constructed; will any one doubt that he should have the free use of the water, as against subse- quent locators of either mining claims or canals'? Or, sup- pose he had located a farm, and the water passing through his land was necessary for the purposes of irrigation, is not this purpose just as legitimate as using the water for mining? It may or may not be equally as profitable, but irrigation for agricultural purposes is sometimes necessary to supply natural wants, while gold is not a natural, but an artificial want, or a mere stimulant to trade and commerce. '"If it is understood that the location of land carries with it all the incidents belonging to the soil, those who construct water ditches will do so with reference to the appropriations of the public domain that have been previously made and the rights that have been already acquired, with a full know- ledge of their own rights as against subsequent locators." (Id., 143-1.) Crandallx. Woods very distinctly decides that as between an occupant of riparian land (part of the public lands of the United States) and a subsequent appiopriator of the 74 waters of the stream the former may assert the riparian right. It is claimed, however, that so far as that case decides that the riparian occupant may, under such circumstances, assert a right to tlie flow of the water, beyond the extent to whicli he has actually appropriated the same for irrigation or other useful purposes, it has been reversed in later adju- dications, if not expressly yet by necessary implication. In some of the subsequent California cases, Avhere the riparian owner claimed in his pleading, and relied at the trial on an actual appropriation of water, the Court con- tined its inquiry to the existence or non-existence of the facts alleged. Thus in McDoitald v. Bear Elver (13 Cal., "220), one of the parties, although in possession of a tract through Avhich the water course ran, claimed an actual prior appropriation of water for turning his mill. It may be ob- served, however, that at the common law, the extent of the mill-owner's right might depend in part on the actual erec- tion and size of his dam, etc. And, since the exercise of the particular right might depend on affirmative acts, the case of Avater for a mill might differ perhaps in its nature, or extent rather, from that of the riparian owner whose lauds are naturally irrigated by the flow. American Com- j^atit/ \. Jinni/'ord {2('i Cal., 360), was an action at law for damages in which the plaintifl" claimed as an appropriator of water through a ditch. The defendants answered that long prior to the location of plaintiff's ditch and dam, they had located and worked in the creek certain mining claims whereby they became entitled to the use and posses-ion of the waters of the creek, or so much thereof as might be- come necessary for their mining claims — as prior appropri- aiorsof the icattr. Moreover the general verdict in favor of the plaintifl" included a tiudiug that the mining claims were not located and worked prior to the plaintiii"s appropria- tion. In Yankee Jim v. Crart/ (25 Cal., oO-l), it was said that the use of a water course on the public mineral lands may be held, granted, abandoned or lost by the same means as a right of the same character issaiHf/ unl of Jands to ivJiich a private title exists. In Kinij v. Hill (8 Cal., 33), and Bear liiver v. York (Id., 339), it was held that, where the constructor of a ditch had diverted water he could not complain of the muddying of it by the working of a mine above. To permit this, the Court said, would be practically to deprive the miner of the use of the water in his business; and any injury from the inci- 75 dental fouling of the water was damnun absque injuria. But in Hill V. Smith (27 Cal., 476), where water was appropriated through a ditch, and a mining claim was afterwards woiked above, it was decided that the miner had. no right to work his claim in such manner as to mingle mud and sediment with the water so as to fill up the ditch and reservoirs, and thus to lessen their capacity and increase the expense of cleaning them out; that the prior appropriator of the water was entitled to its use and enjoyment /or the purposes for lohicli he claimed it. Pope V. Kiuman (54 Cal., 3), was an action to quiet title to the flow of a stream, the plaintiti' being the owner of riparian lands by grant from Mexico. Held: that the plain- tiff had an interest in the living stream which flowed over his land, called the "riparian rigiit;" and that the defendant, by mere diversion could not deprive him of that interest or usufruct. Zimler v. San Luis Company {pi Cal., 221), not only rec- ognizes the riparian right, the land not being public land, but holds that a recital in a deed that the grantee is about to divert the waters of a certain creek (which flows through the grantor's land) and to appropriate the same, followed by a grant of a right of way to conduct water over the land of the grantor, does not estop the grantor from denying the right of the grantee to divert the water. As we understand Ferrea v. Knipe (28 Cal., 340), the ap- pellant made the claim that the doctrine of *' appropria- tion," applicable to controversies on the public lauds, was also the controling doctrine in a suit between private owners on the samestream. The Court held that the common-law rule obtained, and that the inferior riparian proprietor was en- titled to the natural flow, undiminished, except by the use of the superior proprietor for domestic purposes and rea- sonable irrigation. So far as the cases cited relate to the adverse claims of possessors of land or water on the public lands, no one of them by its terms or by necessary implication overrules Crandall v. Woods. It is intimated, however, that that case should now be overruled as not in harmony with the reasons which in- duced the Courts to adopt the rule giving the preference to the prior possessor. It^is said that the right acquired, with great expenditure of money and labor, by the ditch-owners, ought not to be restricted by the occupant of a tract of arable or grnzing land. The suggestion repeatedly returns that the amount of money invested by the respective parties 76 should liave its influence iu determining their rights, or at least, in fixing the rule by which their rights are to be de- termined. The same suggestion (timt the amounts ex- pended under the implied license of the United States should control in fixing the rule of right), was urged in the "debris cases,"' but seems to have received little considera- tion in the courts of the State or of the United States. In the case of an occupant of land, as in the case of an appro- priator of water, the decisions are based upon the presump- tion that the United States has made a grant which, in fact, it has not made. The effect of the presumed grant of land, over which water flowed, was logically ascertained (in Craii- dall V. Woods) by reference to the principles of the common law; according to which every part of the land and all its incidents passed by the grant. If we were prepared to say that CraadaU v. Woods was wrongly decided, still there is good reason why, if wrongly decided, it ought not to be overruled in this case. The rulings of the State courts, with reference to controversies on the public lands while they remain such, cannot of themselves operate to deprive tlie State of the benefit of the grant of the waters of streams flowing over the land granted by the Act of September 28, 1850; nor operate upon subse- quent legislation of the Congress of the United States so that such legislation shall retroact and deprive the State of its vested rights. If the decisions referred to are applicable (o lands be- longing to the State, yet, since they are applicable only to controversies between adverse claimants to the possession they do not limit the right or title of the grantees of the State. The title of the State's grantees depends upon the State laws providing for the disposition of its lands. The comiiwii law as to the riparian rights was not abrogated by certain statutes of the State, applicable to a district of coun- try within ichich is included the County of Kern; vor was the Stcde estopped by such statutes from asssrting its right to the flow of a naturcd stream, from tlnd district, t<> ami over the lands granted to the State by Hie Act of Congress of 1850. From what has been said it appears that the respondent has not derived from tlie United Stales a right to divert the 77 water of a flowing stream from the lauds granted to tlie State in 1850, or from the premises of a grantee of the State to a portion of those hinds. It is in order to inquire whether the State itself has authorized such diversion. It is claimed that, so far as the territory comprised within Kern County is concerned, the common-law doctrine of riparian rights — if it ever existed — does not exist, but has been repealed and the law of "appropriation" adopted by certain statutes. The County of Kern was created by the Act of ApvW 2, 1866, which took effect June 2, 1866. It was formed of por- tions of Tulare and Los Angeles counties. On the 15tli d'.\y of May, 1851, an Act was passed (Stats. 1854, p. 76) pro- viding for the election in each township of certain counties (including Tidare and Los Angeles) of a Board of three " Water Commissioners" and an overseer. The Commis- sioners were to examine streams and apportion their waters "among the inhabitants of their district;" on petition to lay out and construct ditches, etc. The overseers were to execute the orders of the Commissioners, superintend works directed by them, and see that the water was kept clear and the ditches in repair. Section 14 of the Act pro- vided : "No person or persons shall divert the waters of any river, creek or stream from its natural channel to the detri- ment of any other person or persons located below them on any such stream.''' February 19, 1857, April 28, 1860, and again February 21, 1861, the Act of May 15, 1854, w^as amended, but not so as to affect any question involved in the present case. (Statutes 1857, p. 29; Stats. 1860, p. 385; Stats. 1861, p. 31.) The 2d, 3d, and 14th Sections of the Act of May, 1854, were amended by the Act of April 10, 1862. (Stats. 1862, p. 235). The 2d Section, as amended, provided that the Super- visors, instead of the County Judge, should order the elec- tion of the Commissioners, etc. The 3d Section gave the Commissioners power to determine what watercourses ought "to be appropriated to the public use," to apportion the water, etc. And the 14th Section, as amended —the 3d Sec- tion of the amendatory Act — declared : "No person or persons shall divert the waters of any river, creek or stream from its natural channel, to the detriment of any other person or persons located below them on any such stream unless previous com- pensation be ascertained and paid therefor, under the pro- visions of this Act, or under the provisions of other laws of this State, aiUhorizing the taUny of private property for public uses.''' 78 It would be difficult to invent a combination of words which would more explicitly recognize a property to the flow of the stream in the riparian owners below the point of di- version. The Statutes of 1854 and the amendments authorized (or attempted to authorize) the Commissioners to decide whether a water course should be condemned or " appro- priated" to the i3ublic use, and to divert and apportion the waters of the stream so a[)j)ropriated. Evidently by the persons who are not to be detrimented, without compensa- tion, is meant the inferior riparian proprietors, whose prop- erty in the waters may be taken for the "public use" on payment of due compensation, according to the laws of the State " authorizing the taking of private pyoperty for pub- lic uses.'' If not they wliom else? The scheme, if valid, necessarily excludes any diversion at all by a private per- son of waters of a stream "appropriated to the public use" by the Commissioners, and any diverson or appropri- ation through ditches other than those made under the di- rection of the Commissioners. The persons then who are prohibited from diverting water to the injury of those be- low, except on due compensation, are the Commissioners and those acting under command of the Commissioners. Nor can it be said that everybody else might be made to suffer detriment, without compensation, by diversion of water by the Commissioners, except only those persons who had "appropriated" waters of the stream prior to the Act of 1854, and who continue to use the same. If the inten- tion had been to protect or rather to recognize the rights of that class only (if any such class existed) we cannot but be- lieve that tiie purpose would have been expressed in ap- propriate language. The language of the provision is sweep- ing, and while perhaps broad enough to include non-riparian proprietors who had diverted water prior to the Act, is pe- culiarly applicable and certainly includes those who had acquired tiie title to riparian lands prior to a diversion, and also iu3ludes prior riparian occupants --"No person or per- sons s/ioZ/ divert" etc. The term "location" has been very generally applied to occupations of portions of the public domain, while diverters of waters have been called, and throughout the elaborate briefs of counsel herein, are called "appropriators." The amendatory statute not only recognizes the riparian rights of those in possession of lands through which the stream "appropriated to public use" may pass, but is a legislative construction of the words (if any such construction were needed) found in the 14th 70 Section of tlie origiual Act of 1854— "to the detriment of any person or persons located below them in sucli stream." The Act of April 4, 1864 (Statutes of 1863-64, p. 375), provided for the election of three Water Commissioners in the County of Tulare, etc. It also contains the clause "ISo person or persons shall divert the waters of any river or stieam from its natural channel, to the detriment of anv person or persons located below them on the same stream." l^Sec. 10.) March 20, 1866, certain sections of the Act of 1864 were amended. (Statutes of 1865-66, p. 313.) By the amend- ments the Water Commissioners and overseers were shorn of their powers and duties. For the first time water "com- panies," and the " President or authorized agents " of such, are spoken of. The Commissioners were no longer required, upon the petition of " those interested," to lay out ditches and apportion the water "among the persons using the same," in proportion to the amount of land "each person may wish to irrigate;" no longer empowered to levy a labor tax on such persons, and no longer required or permitted to publish a schedule of the number of hours during which each of such persons should be entitled to use water. Their duty was simplified, and was limited to the appointment, as overseer of a ditch, of the person designated hij the oivners of sueh ditch. The services of the Commissioners, instead of being paid for as provided in the Act of 1864, out of a tax collected of those supplied in proportion to the quantity of water used by each, were to be compensated "by the par- ties requiring their services." (Sec. 4.) And, in this con- nection, it may be remarked, it was piudeutly provided: "No ditch shall hereafter be taken out of any stream, in the waters of which different persons have an interest, without leave of said Commissioners." And by the amendments (Sees. 3, 4), the overseers no longer had the duty imposed upon them of examining ditches, or of estimating the labor necessary to put them in repair, or of reporting the same to the Commissioners, together with the capacity of the ditches and the (piantity of ground irrigated by each, or of ascertaining that the Avater was used as apportioned, and that the required hibor Avas properly expended. Instead of all this the overseers were simply to execute the orders of the persons employing them, by whom they were to be paid "such compensation as may be agreed upon." Thus by the amendatory act the Commissioners and Over- 80 seers became the mere agents of the owners of ditches or of "companies." For Section 5 of the Act of 1864 was substituted matter foreign to the original section, the sub- stituted matter being: "Each overseer shall every three months (each counting from the date of his appointment) make up a statement in writing of the number of days that he has been engaged in (he discharge of his duties, to- gether with the amount due him as compensation tiierefor, and upon tlie approval of the same by the President or aiifhorked agent of the company employing him, shall appor- tion the same to the different members of such company, juo rata, in jjroportion to the interest of each therein; and thereupon shall have the right of action against each owner in the ditch for which he is overseer for the amount so ap- portioned to such owner." (Stats. 1865-6, p. 313.) And by Section 6 of the xAct of 1866 (amending Section 7 of the Act of 1864) it is provided: " Whenever a majority in interest uf the owners in any ditch company, or their authorized agent, shall deem it neressary to repair, enlarL/t or extend their ditch, they shall cause a notice, either written or verbal, to be served upon each owner therein, specifying a time to commence work thereon; and any owner therein neglecting or refusing to perform his pi oportion of such labor or pay his proportion of the cost thereof, .shall forfeit his right to the use of any water from such ditch until such time as he pays the same to the person or persons performing his proportion of such labor, together with 10 per cent, per month thereon addi- tional. The number of hours constituting a day's labor and the value thereof shall be determined by the respective water-ditch companies in the rules and regulations they may severally adopt," etc. (Stats. 18(15-66, p. 314.^ The Act of 1864 tben, as amended by the Act of 1866, de- clares the law which, as claimed by counsel, has been sub- stituted for the common law. But the Act as amended (if it be conceded to be valid) does not adopt any general rale of appropriation. It seems to have been studiously prepared in the interest of the companies then existing, with a proviso th >t the Commissioners — employed and paid by those of such companies as might choose to employ ihem— may permit new ditches to be dug. If the Act of 1866 is in force it should at least be made to appear that the defendant has acquired rights under it. If the Act could be construed as declaring the assent of thj State to the diversions of watt-r then existing, or to such di- versions as might subsequently be made, with the consent 81 of the Commissiouers named iu the Act, the assent of the State was limited to such diversions. It nowhere appears that the respondent obtained the consent of the Commis- siouers to the construction of its works; and as we have seen, the Act expressly prohibits any new ditch or canal " with(an by an intent arbitrarily to take from the liparian proprietors a valuable right or to deprive a whole cla.-s o.'' a right they had previously enjoyed. And the omission slould thus be construed even if it might be held as matter of law that the deprivation of the right could not constitutionally b enforced against those who had already located on the stream when the statutes were passed. In ascertaining the meaning of the law we find that the pro- tection accorded was clearly intended to apply to locations already made when each of the statutes was passed, and to locations which should be made prior to any subsequent appropriation. 82 XI. Section 1,422 of the Civil Code ("Tlie oighfs of riparian 'proprietors are not affected hy the provisions of this title'') is protective, not only of riparian rights existing when the Code ivas ad<>pte(t, hut also of the riparian rights of those who acquired a title to land from the State, after the adop- tion of the Code and before an appropriation of loater 171 acc< rdance ivith the Code provisions. Neither a grantee of the United States nor the grandee of a private person, loho loas a riparian oioner tchen the Code was adopttw of the stream those who shall have obtained fiom the State a title to or right of possession in riparian lands, before proceedings leading to appropriation shall be taken. Such is the meaning of the words employed. The right to the use of the Avaters as part of the laud once vested in its private grantee the State has no power to divest him of the right except on due compensation. It is for those who claim that, since the Co le enactments, ripar- ian rights have never vested in the State's grantees, to point to the statute which expressly so declares, or which by necessary implication operates a reservation of all the waters on the State lands for the benefit of subsequent appropriators. Such reservation cannot be assumed, nor be based on any doubtful interpretation of language. The use of the present tense — "the rights of riparian proprietors a?'e not effected" is not sufficient to justify a finding of a reservation by the State of all its waters. _ It is difficult to believe that the section, so far as it aj)- plies to riparian lands not those of the State, is other than declaratory of the pre-existing law. It certainly was in- tended to be declaratory in so far as it announces the pro- tection of all private persons who had acquired riparian rights from any source before the provisions of the Code went into operation, since (if the common-law right existed) .such persons were protected independent of the section. We cannot presume that it was intended to limit the pro- tection to those private persons who had then acquired riparian rights from the United States (but not through the State), or from S])ain or Mesict>, and to deprive the subse- 88 queut grantees ofsucli of their rlp:iiian rights. The Legislature had uo power to deprive of their right to water the subse queut giautees or successors of those private persons in whom the right had vested prior to the Code. The attempt would have been violative of constitutional principles. As the language of Section 1,422 will bear a reasonable inter- pretation which will render it applicable everywhere withiu the limits of the State, and to all classes of riparian pro- }irietors (without impiujiug upon the vested interests of any) wo ought not to so construe it as ihat, if enforced with re- spect to all, it would deprive any man of his constitutional Our conclusion on this branch of the case is, that Section 1,422 Selves and protects the riparian rights of all those who, under the laud laws of the State, shall have acquired from the State the right of possession to a tract of riparian land, prior to the initiation of proceedings to appropriate water in accordance with the provisions of the Code. If Section 1,422 of the Civil Code were interpreted as saving ali riparian rights actually vested before the section took effect, the mere appropriator could acquire no rights to water by virtue of the provisions of the Code, but would be left to the enjoyment of such as he might secure by con- vention with the riparian proprietors. If all riparian rights existing when the section was adopted were preserved by Section 1,422, then inasmuch as both the State and the United States were at that time riparian owners the lands of neither Government would be affected by the other sections relating to water rigiits; nor, of course, would any subse- quent grantee of either Government be affected by those ]novisions. It is contended by counsel for cqjpelluufs that the rights of the State to the flow of the waters on her lauds were not ati'ected by the Code, for the further reason that the Code provisions were intended merely to continue or supply a rule for deciding disputes "on the public lands of the United States." But we think it was the manifest purpose of the Legisla- ture — derivable from Title 8, as a whole, read in view of the judicial and legislative history of the State — that the rule should be the same whether applied to mere occupants of the lnnds of ihe State or of the United States ; and that the riparian rights of the State, as owner of lands, were not pre- served by Section 1,422. As we have seen, by resort to the presumption of a grant or license from the owner of the paramount title, our courts 89 from an early day have delermiuecl controversies between occupants of waters or of lauds and Avaters — on the public domain of the United States, holding the prior possessor to have the better right. And, during its fiist session, the State Legislature provided a mode hy which one might ac- quire a constructive or statutory possession of a portion of the unsurveyed, and as yet unsalable, public lands of the United States, to be accepted by the courts as proving a right to the possession against all but the Government. (Act "prescribing the mode of maintaining and defending possessory actions on lands belonging to the United States." Stats. 185 ), p. 20-3.) The validity of such Acts so far as they affect mere intruders on the public lands, or those en- tering thereon with the tacit consent of the Government, has not heretofore been questioned. The right of the prior occupant of the land or water on the public domain of the United States being recognized by the courts, it cannot be doubted that the Legislature had power to establish or change a rule of evidence, according to which the prior oc- cupation is to be proved. With reference to appropriations of waters on public lands, for example, the Legislature had power to require that the notice of appropriation should contain certain statements; that work should be commenced within a definite time, and be completed within a named ])eriod, etc. Neither the State Legislature nor the State courts have any inde|)endent power to interfere with the primary dis- posal of the public lands of the United States, nor to de- tract from the estates in such lands granted under the laws of the United States. Nevertheless, whilst a body of land and the waters thereon shall remain a portion of the public lands of the United States, the rights of mere possessors, or asserted possessors thereon, will continue to be deter- mined, as between themselves, by the law applicable to such controversies as the same was laid down by our Courts pre ■ vious to the Code enactments, except so far as it may have been modified by the provisions of the Code. The legisla- tion of the State (with reference to occupations on the pub- lic lauds), like the judicial decisions, is based on the pre- sumption that the General Government has permitted the occupation of water, or of land with the water thereon as the case may be. But this (so far as the operation of the State law is concerned), necessarily excludes the United States, although a riparian owner Avhen the Code w^as adopted, from the saving clause of Section 1,422. The doctrine of presumption is enforced, however, not only on lands of the United States, but on lands of the State 90 and of private persons. This Las been the rule applied in every action of ejectment where the plaintiff has recovered on his prior possession. In such cases it has repeatedly been held that the defendant cannot be permitted to prove title in a third party, unless he connects himself with it. The prior possessor is ]iresumed to have acquired that title as af^ainst the mere intruder on his possession. In contro- versies upon the IState lands the courts have not heretofore permitted the title of the State to be proved, by one not de- raignin}!^ from the State, for the purpose of destroying the asserted right of the pricjr possessor. Even where a court should be called on to take judicial notice of the State title, and that no law had been passed for the disposition of the State lands, it would, in tl:e interest of peace and good order, presume " contrary to the fact''- — as was said by Mr. Justice Heydenfeldt — not only that the prior possessor had entered and occupied with the consent of the State, but that he had accpiired the State title. Prior to the adoption of the Code there can be little doubt that in coutroversieo between persons upon the lauds of the State as i)i like controversies upon lands of the United States (where neither of the parties had derived title from the Government), the doctrine of priority of appropriation of water alone, or of water as a part of land appropriated, would prevail. These considerations create a very strong ])resumpti()n that the riparian rights of the ^^itate as a landed ])roprietor, existing when the sections of the Code went into operation, were not intended to be reserved by Section 1.422. Inasmuch as the sections of the Code relating to water rights (so far as they relate to appropriations of water on the public lands of the State or of the United States) are in furtherance and recognition of the previous doctrine of the courts of tin; State (according to which, as it would seem, the prior ap])ropriator of land, and the water thereon, had the better right as against the subsequent appropriator of the water alone), it may be contended that Section 1,422 recognizes and reaffirms that part of th ; rule, and protects the ripariau occupint on the public lands of the State from a subsequent appropriation of water on or above those lauds. Either so (it may be argued) or Section 1,422 has no meaning or application when the controversy is between mere occupants of the public lands. But however this might be where both parties were mere possessors on public binds of the United States the title eight of the Civil Code, so far as it relates to waters flowing 91 to the lands of the State, is more than an acknowledgment of the doctrine of prior appropriation on public lands. It is plainly a concession to those who may comply with its conditions, which operates as a grant of the servitude a hen the conditions are fully performed, rel iting back to the date of the commencement to erform. It is a concession, how- ever, only of the rights to the water which the State shall not already have parted withal, when the appropriation shall be made. XII, The statute of April IWi, 1850, adop/s the common law of Eation; provided, it is not unreasonably de- tained, or essentially diminished." In Gilbert v Johnso)i (30 Conn., 180) Butler, J., speaks of the right of a defendant to irrigate as Ihinted. " She was bound to ap[)ly tlie water in such a reasonable m inner and quantity as not to deprive the plaintiff of a sufficient sujoply for his cattle. The claim of the defendant was that she had a right to divert the tvhole for the purposes of irrigation re- gardless of the rights of the plaintiff'. Such diversion was unreasonable and therefore illegal." And in Arnold \. Foote (12 Wend., 330): " The defendant has a right to use so much as is necessary for his family and cattle, but he has no right to use it for irrigating his meadow, if he thereby deprives the plaintiff of the reasonable use of the M'ater in its natural channel." The Supreme Court of Massachusetts has said: "Every man through whose land the water passes may use it for irrigating his land; but he must so use it as to do the least possible injury to his neighbor who has the same right." {Anthony v. Lupham, 5 Pick., 175.) In Neiohall v, Ireson (8 Cush., 595) Chief Justice Shaw says: "Even in cases " (which AWAaZ? v. Ireson does not necessarily overrule) " Avhere it has been considered that a riparian proprietor had authority to make use of a stream for purposes of irrigation, and thus, by that use, divert a 109 portion of it, it has been held under the condition that such diversion was, under all the circumstances, a reasonahle use of the stream, and that the surplus of the water thus used must be returned into its natural channel." The same learned Judge and luminous writer has very fully considered the matter of irrigation in Elliott v. Fitchhurg R Co. (10 Gushing, 193, 4, 5.) "This appears to have been a small stream of water; but it must, we think, be consid- ered that the same rules of law apply to it, and regulate the rights of riparian proprietors, through and along whose land it passes, as are held to apply to other water-courses, sub- ject to this consideration, that what would be a reasonable and proper use of a considerable stream, ordinarily carrying a large volume of water for irrigation or other similar uses, would be an unreasonable and injurious use of a small stream, just sufficient to furnish water for domestic uses for farm- yards and watering-places for cattle. "The instruction requested by the plaintiff is, we think, founded on a misconception of the rights of riparian proprie- tors in water-courses passing through or by their lands. It presupposes that the diversion of any portion of the water of a running stream, without regard to the fitness of the pur- pose, is a violation of the right of every proprietor of land Ij'ing below on the same stream, so that without suffering any actual or perceptible damage, he may have an action for the sole purpose of vindicating his legal right. " The right to flowing water is now well settled to be a right iiicident to propertj^ in the land; it is a right publici Juris, of such chai-acter that whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it as it passes through his land; and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reason- able use, it cannot be said to be wrongful or injurious to a proprietor lower down. What is such a just and reasonable use may often be a difficult question depending on various circumstances. To take a quantity of water from a large running stream for agriculture or manufacturing purposes would cause no sensible or practicable diminution of the benefit to the prejudice of a lower proprietor; whereas, taking the same quantity from a small running brook passing through many farms would be of great and manifest injury to tho^e below, who need it for domestic supply or Avatering cattle; and therefore it would be an unreasonable use of the no water, and an action would lie in the latter case and not in the former. It is, therefore, to a considerable extent a qti&stion of degree; still, the rule is the same that each pro- prietor has a right to a reasonable use of it for his own benefit, for domestic use andior manufactnring and agricultural pur- poses. "It has sometimes been made a question whether a riparian proprietor can divert water from a running stream for pur- poses of irrigation. But this, we think, is an abstract ques- tion, which cannot be answered either in the affirmative or negative, as a rule applicable to all cases. That a portion of the water of a stream may be used for the purpose of irri- gating land we think is well established as one of the rights of the proprietors of the soil along or through which it passes. Yet a proprietor cannot, under color of that right, or for the actual purpose of irrigating his own land, loholly abstract or divert the water-course, or take such an un- reasonable quantity of water or make such unreasonable use of it, as to deprive other proprietors of the suhstantial benefits which they might derive from it if not diverted or used un- reasonably. The point may, perhaps, be best illustrated by extreme cases. One man, for instance, may take water from a pereunial stream of moderate size, by means of buckets or a pump — for the modr is not material — to water his garden. Another may turn a similar current over a level tract of sandy soil of great extent, which in its ordinary operation will nearly or quite absorb the whole volume of the stream, although the relative position of the land and stream are such that the sur})lus water, when there is any, is returned to the bed of the stream. The one might be regarded as a reasonable use, doing no percejjtible damage to any lower proprietor, whilst the other would nearly deprive him of the whole beneficial use, and yet, in both, the water would be used for irr-igation. We cite a few of the leading cases in Massachusetts on this subject: Weston v. Alden, 8 Mass., 136; Colburn v. lUchards, 13 Mass., 420; Cook v. Hidl, 3 Pick., 269; Anthony v. Lapham, 5 Pick., 175. "This rule, that no riparian proprietor can wholly ab- stract or divert a water-course, by which it would cease to be a running stream, or use it unreasonably in its passage, and thereby deprive a lower proprietor of a quality of his property, deemed in law incidental and beneficial, necessar- ily flows from the principle, that the right to the reasonable and beneficial use of a running stream, is common to all the riparian proprietors, and so, each is bound so to use his com- mon right as not essentiall}- to prevent or interfere with an Ill equally beneficial enjoymeut of the common right, by all the proprietors. Were it otherwise, and were it an inflexible rule that each lower proprietor has a right to the lull and entire flow of the natural stream, without diminution, accel- eration or retardation of the natural current, it would follow that each lower proprietor would have a right of action against any upper proprietor, for taking any jjortion of the water of the stream for any purpose; such a taking would be a disturbance of his right; and if taken by means of a pump, a pipe, a drain or otherwise, though causing no sub- stantial damage, it would be a nuisance, and warrant the lower proprietor iu entering the close of the upper, to abate it. (Colhurn v. Rkliards, 13 Mass., 420). " It would also follow, as the legal and practicable result, that no proprietor could have any beneficial use of the stream, without an encroachment on another's right, subjecting him to actions toties quoties, as well as to a forciable abatement of the nuisance. If the plaintift* could, in a case like the present, have such an action, then, every proprietor on the brook to its outlet in Nashua river, would have the same, and because the quantity of diminution is not material, every riparian proprietor on the Nashua would have the same right, and so every proprietor on the Merrimac river to the ocean. This is a sort of reductio ad ahsurdinn, which shows that such cannot be the rule as was claimed by the plaintiff." In Evans v. Merriweatlier (3 Scam. 496), the Supreme Court of Illinois said: " The use must be a reasonable one. Now the question fairly arises, is that a reasonable use of running water by the upper proprietor, by which the fluid is entirely consumed ? To answer the question satisfactorily it is proper to consider the wants in regard to the element of water. These wants are either natural or artificial. Nat- ural are such as are absolutely necessary to be supplied in order to his existence. Artificial such only as, by supply- ing them, his comfort and prosperity are increased. To quench thirst and for household purposes, water is abso- lutely indispensable. In civilized life water for cattle is also necessary. These wants must be supplied or both man and beast will perish. The supply of a man's artificial wants is not necessary to his existence; he could live if wa- ter was not employed in irrigadng his lauds, or in propelling his machinery. In countries differently situated from ours, with a hot and arid climate, water doubtless is indispensa- ble for the cultivation of the soil, and in these water for irrigation would be a natural loarit.'" 112 There cau be little doubt, under the authorities, that for a riparian proprietor entirely to consume water (except ordinarily for domestic uses, etc.) is to use it unreasonably, as is said in Evans v. Merriweather, and that was the question involved in that case. The distinction between natural and artificial "wants" seems to be derived from a distinction previously recognized, and which has sometimes been desig- nated as a difference between the use of water for " ordinary" and "extraordinary" purposes. Thus Lord Kingsdown (in Miner v. Gilman, 12 Moore, P. C, 156) said: "By the general law applicable to riparian proprietors, each has a right to what may be called the ordinary right of a use of water flowing past his land; /or instance, to the reasonable use of the water for domestic purposes and for his cattle; and this, without regard to the efl'ect that such use may have, in case of dedciency upon the proprietors lower down the stream. But, further, he may have the use of it for any purpose, or loliat may he li emed the extraordinary use of it, provided he does not thereby interfere with the lawful use of it by other proprietors either above or below him. Subject to this condition a riparian proprietor may dam up a stream for the purpose of a mill, or divert the water for the purpose of irrigation. But he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water b}* other proprietors, and inflicts on them a sensible injnri/." The real difference here pointed out between the classes of uses is that (as is assumed) water may be used for ordinary purposes, without regard to the effects of such use, in case of deficiency below; while with reference to extraordinary uses the effects on those below must also be considered in determining its reasonableness. Lord Kingsdown's " instances" indicate that he was using them as illustrations of the relative importance of the uses by him mentioned. It may perhaps be doubted whether an arbitrary classification can be made which is applicable everywhere where the common law prevails. Even the use of water of a stream for potation may not be of paramount importance, when the stream is small, and the particular proprietor is well supplied with water for such purpose by living springs independent of the creek. And it may happen, all the conditions being considered, that the exhaustion of an entire stream by large bands of cattle, ought not to be permitted. Or, indeed, it might be that a flouring-mill would be of more relative consequence than the cultivation of the ground. (See Escriche with 113 respect to riparian rights in Mexico.) This hist, however, is hardly a supposable case since the general introduction of steam as a propelling power. The distinction between natural and artificial "wants," would be, under supposable conditions, somewhat fanciful. The urgent and pressing necessity of a particular use, as distinguished from another, may itself depend on circumstances. We cannot say that it is ahvays reasonable, in a "hot and arid climate," to elevate irrigation to the rank of primary uses, to which drinking usually belongs. If that should be adopted as the uniform rule, the upper proprietor might perhaps exhaust all the water for irrigation to the entire exclusion of those below him, "a proposition inconsistent with the doctrine universall}' admitted that all proprietors have the same right." (rati Haesen v. Coventry, supra.) The reasonable usefulness of a quantity of w^ater for irrigation is alw.iys relative; it does not depend on the C()nvenience ol or profitable results to the particular proprietor; but upon the reasonable use, reference being had to the needs of all the other proprietors on the stream. It depends, in other words, on all the circumstances. We anticipate the objection that this is not an absolute rule at all, but, as said by the Judges in the opinions quoted from, the verj' nature of the common right is such that a precise rule as to what is reasonable use by any one propri- etor for irrigation cannot be laid down. A stream may be so small that any use for irrigation may deprive all the others of any like use; and the same may be true of a larger stream where the use is by several of a large number of proprietors. The effect might be that while there might be sufficient wa- ter to supply several for irrigation, there would not be enough for all, and so all might be deprived of the benefit. But the private interests of all would in most cases, if not in every case, lead to an avoidance of the supposed evil. It is not to be doubted that the riparian proprietors w'ould set- tle by convention upon a plan by wdiich each could secure a reasonable use for irrigation purposes; as by anthoiizing each to stay the flow at recurring periods; or otherwise dis- tributing it for their mutual and common benefit. The right of the riparian proprietors to a reasonable use of the water of the stream for the purposes of irrigation is recognized in many of the California cases hereinbefore re- ferred to, and in (Anaheim Company v. Semi-lVop. Company, 64 Cal., 185.) 114 XV J. On behalf of the defendcmi certain witnesses gave testimony tending to prove that, a/ter the commencement of the action and issue joined, and during the trial of this action, there ivas no watercourse as claimed and no channel through which water could have fioived. The Court erred in reject- ing evidence offered hy the plaintiffs, in reply, tending to prove that after the dates mentioned hy said ivitnesses for de- fendant there ivas a watercourse and channel. The Court below found — as its findings are construed by both parties — that no watercourse (connected with Kern river or otherwise) runs by or tlirough any of the lands of the plaintiffs, ^e cannot say but there was a substantial conflict with respect to that matter, and in accordiince with the established rule, must affirm the judgment and order, unless at the trial the Court erred in rejecting or admitting evidence, bearing, or claimed to bear, on the question of the existence of the watercourse. The Court below refused to permit the plaintiffs to intro- duce certain evidence, after the defendant had closed on the ground that the same was merely cumulative. One exception saved by the plaintiffs related to an offer of testimony as to a place spoken of as De Weher road- crossing. With regard to that exception we think it may fairly be argued from the record that the defendant intro- duced evidence tending to prove there was no channel at any point where the De Weber road crosses the swamp, at a lime several yetirs before the commencement of this action. But we also think that the ])laintiffs had already given evi- dence that at the time and subsequent to the time mentioned by defendants witnesses, the De Weber road did cross a channel. We cannot say, therefore, that the Court erred ill refusing to permit further evidence in reply, with respect to that matter. The plaintiffs, in making out their case, introduced wit- nesses, who stated that at various times prior to the diver- sion of water by the defendant, they had passed along Baena Vista Slough, and that there was a channel through- out its alleged length. As to several of these witnesses, it might be questioned whether their inspection was not broken and interrupted. Crocker said that, as he passed along, the channel was in places concealed from his vision; McCrary, that the slough or channel existed at each section line; SHU, 115 that he had crossed through nearly every quarter section of the swamp. fa argnmeiit, however, counsel for phiiutiffs have insisted, that in opening their case, they proved a continuous slough from Bueua Vista Lake to Tulare Lake, not merely as an inference from its existence in diflt'erent places, but as a physical object, visible to their witnesses from one lake to the other. Assuming, as claimed by plaintiffs' counsel, that some of their witnesses pursued the alleged slough throughout its entire length, viewing each and every portion of it, it would be diflficult to sa}' on what ])rinciple plaintiffs could demand the absolute right, by way of reply, to contradict the declarations of witnesses for the defendant that, at or about the times when the plaintiffs' witnesses had stated there was a channel from Bueua Vista Lake to a point below the plaintiffs' lands, there was in places )io channel between the lake and that point. Defendant called as witnesses Murray F. Taylor and others, who testified that, after the commencement of the action, and after answer filed herein and the trial was com- menced, they had [)assed from one side to the other of the swamp (avoiding disconnected sloughs and ponds), with- out crossing a channel. Plaintiffs offered to prove by McCrary that he subsequently ran a certain line through portions of township 27 south, range 22 east, and "what natural objects" he found on the line he ran. As no wit- ness on the part of the defendant had testified with respect to such a line, in the township named, the Court properly sus- tained an objection to the offer. But the plaintiffs also offered in reply to show by the wit- ness McCrary " that at each one of the lines Avhere the wit- nesses for defendant testify they have crossed, not only has this line been run where they testified to, but that the line has been run by this witness from one-half a mile to three- quarters of a mile on each side of that line, and that an ex- amination has been made between these lines as to all chan- nels and natural features of the country between the lines on each side of the line," etc. And plaintiffs offered to prove the same things by Mr. Harold ""who accompanied Mc- Crary;" and bv Huntley, Beard, Noble and others. Defendant might have insisted on the offer being made more definite; that plaintiffs' counsel should name the wit- nesses whose testimony they intended to rebut, and specify the exact fact they disputed; as the fact that there was no channel where defendant's witnesses crossed. The offer to prove by McCrary " in case he found sloughs or channels or 116 awjtliiug of tliat kind they were leveled and their width ascertained" did not absolutely exclude the idea that he found no slough or channel. But no such specific objection to the oflfer was made, and it sufficiently ai>])ears from the transcript that both the learned Judge (who ruled that the oflfer was of cumulative testimony) and counsel understood the evidence on the part of the defendant against which the offer was directed. The defendant's witness, McMurdo, testified tliat in April, 1881 (after suit brought and answer), there was no water flowing at points in the alleged slougli above the lands of the plantiffs, and his testimony tended to prove that at the same time no water was flowing and no channel existed at another point also above such lands. After defendant rested plaintiffs oflfered to prove that within thirty days prior to June 1, 1881, the witness McCrary, with Beard and Huntley, had gone from Headquarters (a place above the points where McMurdo had stated no water flowed) in a hoat to the Bone- stell House, which is below certain lands of the plaiutiflfs. Taylor, Jastro, Cross and Barker, witnesses for the de- fendant, testified to crossing the swamp on t!ie 14th of April, 1881 (after the commencement of this action), and to the ab- sence of a channel on the route they pursued. One Estee conducted the party from a point near his house, on the west side of the SAvamp, to the Round Corral near the east side. Estee was not examined by the defendant. In reply the plaintifl's called him and asked, " What did you see when making that crossing as regards sloughs or channels?" The Court sustained an objection to the question and the plain- tiflfs excepted to the ruling. Witnesses for defendant, McMurdo and Fillebrown, testi- fied to the running of the line (after the trial had com- menced) across the body of swamp land, ascertaining levels along that line; and to the making of a profile of the same. They also testified that, in running the line, they came to a pond which constituted no part of a continuous slough or channel, but was without inlet or outlet. One G. AV. Smith was called by plaintiffs who testified that he fol- lowed the same line; that he also came to a pond, as to which there was evidence tending to prove it was the pond mentioned by defendant's witnesses, to which there was both inlet and outlet. Other oflf'ers, similar in character, were made by pLiin- tiflfs, to which defendant objected. To the ruling of the Court sustaining the objection of defendant to the several offers plaintiffs duly excepted. 117 We think the first question presented bj these rulings may fairly be stated thus: Defendant gave evidence tend- ing to prove that, during the trial, there were places along the line of the alleged slough and channel Avhere there was in fact no channel — breaks in the continuity. The question to be considered is not modified by the claim of respondent that the effect of its evidence was to establish the absence of any channel through which the water was wont to flow, and to prove that, on the extraor- dinary occasions when the w;iter came into the slough, it soon ceased to flow in a defined channel, but spread through- out the swamp. If the water did not flow with regular periodicity, or if, flowing periodically, it had no defined channel (other than the whole swamp), the plaintiffs had no cause of action; in the first case, because there was no watercourse; in the second, because there was no such watercourse as described in the complaint; and perhaps, also, because the plaintifi's, being owners only of swamp lands (even conceding the water in the swamp might consti- tute a stream), were owners merely of the bed of the stream, and were not riparian proprietors. (Gould on Waters, 148; Lyon V. Fishmongers Co., 1 App. Cases, 662; L. R., 10 Ch. , 679.) But the testimony, to contradict which the offers of the plaintiffs were made, was testimony that the swamp land had been crossed on divers lines without the persons so crossing it coming into contact with any defined channel, or distinct evidences of such. There may be a continuous watercourse through a body of swamp lands. The plaintifi's had given evidence tending to establish the existence of such a watercourse. The evidence of defendant was to es- tablish that I here was no such watercourse by proof that there was none at places where its witnesses crossed the swiimp. That such testimony tended to prove, oi', if true, proved, that there was no watercourse touching the plaintiffs' lands, is not an objection to the counter testimony ofl'ered. Testimony in reply is directed against the precise facts tes- tified to by defendant's witnesses, not against the inferences which may be drawn from them. The witnesses testified that they crossed the swamp on certain lines and found no channel. Did the Court err in disallowing the offer of plaintiffs to prove that at such places there was in fact a channel at or subsequent to the times mentioned by de- fendant's witnesses? All agree that it is within the discretion of the trial court to adinJi additional evidence in support of the plaintiff's case after the defendant has rested. Of course, it is always 118 safer to admit evidence claimed to be in reply, if the Court entertains doubt of its admissibility. Nevertheless the re spondent here has a right to insist that it is for the appel- lants to point ont plain error in the rejection of evidence. The rules as to the transfer of the l)urden of proof are not always determinative of the rules as to testimony in reply. The burden of proof is .shifted bj* every species of evi- dence strong enough to establish a jjrima facie case. (2 Best Ev., 473.) But this only means that there is a necessity of evidence to answer the /9ri>?ia /rtcie case, or it will prevail. (Heineman v. Heard, 62 N. Y., 455.) A party on whom is the atfii-mative cannot reserve a portion of his evidence un- til the opposite party has exhausted his evidence to nega- tive that ojffered in the first instance. (Taylor on Ev., Sec. 386.) Questions as to the admissibility of evidence in reply, offered by the plaintiff, arise ordinarily where the answer consists of denials of the atfii'mations of the complaint. Where the answer avers new matter which it is for the de- fendant to prove, evidence on the part of plaintiff to meet the evidence given by the defendant in support of his affirm- ative plea, is not given in reply or " rebuttal," as the term is used in this connection. Rebutting testimony is ad- dressed to euid'iiice produced by the opposite party, not to his pleading. It seems, indeed, at one time to have been held in Eng- land that when two pleas were tendered — as the general is- sue, and another plea of atfirmntive matter constituting a defense — the plaintiff" was compelled to prove in advance the non-existence of the affirmative matter. Lord Ellenborough held the general rule to be " where, b}' pleading or by means of notice, the defense is hnoivn, the counsel for the plaintiff is bound to open his whole case in chief, and cannot proceed in parts." {Beese v. Smith. 2 Stark, N. P. C, 31; Delanney V. Mitchell, 1 Stark, N. P. C, 439). The practice seems long to have been settled in the English courts, however, that where the general issue is pleaded, and the plaintiff is also notified of a special defense, he has his option to give all the evidence he intends to offer to rebut the averments of the special plea or notice, in the first instance, or to give none of such evidence, and lo reserve all to be given in re- ply. {Brown, v. Murray, Ryan & Moody, 254). In this coun- try the right of the plaintiff to reserve all his evidence, to meet the evidence of the defendant in support of his special or affirmative plea, has always been recognized. And so where the plea or answer consists of denials alone, 119 under whicb, however, affirmative matter is provable which may constitute a defense, the plaintifi" is entitled to rebut the defendant's evidence of such affirmative matter. In a uote to Gresicald v. Kemp (Carr & M., G35) the reporters say: "One test whether the plaintiff is entitled to call witnesses in reply to the defendant's proofs seems to be whether the defendant's defense is disclosed by the plea. ^ * * jjg cannot reasonably be called on to give contradictory evi- dence by anticipation of proof which the defendant might never give, or which if given the plaintiff could not foresee." As was said by Bronson, J., in HoUisler v. Bender, "The substance of the allegation to be fried, rather than the par- ticular form of the pleading, must determine where tlie onus lies; particularly where the defendant is not required to plead the particular matter on which he intends to rely." (1 Hill, 153). In that case the action was assumpsit; the plea non- assumpsit, under which, by the New York practice, the de- fendant, without actually controverting the promise, might prove payment, release, accord and satisfaction, etc. If, said Judge Bronson, any of these defenses were pleaded specially, the defendant would clearly have the affirmative of the issue " and the burden of proof is the same when the defense is affirmative matter sought to be proved under a denial of the promise." The rule is not that the plaintiff must anticipate all evi- dence that may be admitted under the denials of an answer. The rule assumes that evidence may be admitted which he cannot reasonably be expected to anticipate. Mr. Croswell, in his note to Section 469 of Gi-eenleaf on Evidence (14th ed.), says: "There is considerable conflict in the decisions in regard to the order of proof and the course of trial in the different States. In some of the States the party is only required to make a prima facie case in the opening, and may reserve confirmatory proof in support of the very points made in the opening, till he finds upon whit points his open- ing case is attacked, and then fortify it upon those points. (Clayes v. Ferris, 10 Vt., 112.) But, in this State (Massa- chusetts) the defendant must put in all his evidence in the first instance, and the plaintiff in his reply is confined to fortifying those points in his case which are attacked by defendant. And, in some of the States, it is understood, that this process of making and answering the plaintiff's case is allowed to be repeated an indefinite nuni- ber of times. But, at common law, the plaintiff puts in his 120 whole evidence upon every point which he opens, aud the defendant then puts in his entire case; aud the plaiutilf's reply is limited to new points, first opened by defendant. " Investigation shows that the preponderance of autiiority is in favor of what Mr. Croswell calls " the common law rule," aud it has never been suggested that any other rule obtains in California. The rule has beeu expressed in different terms b}- writers aud Judges. Mr. Croswell says the evi- dence to rebut may be contined to "new points first opened by the defendant." Mr. Taylor states it negatively (On Evi- dence, Section 386). In Hastings v. Palmer, Cowen, J., said: "Strictly speaking the plaintiff or party holding the affirmative is bound, in the first instance, to introduce all the evidence on his side, except that which operates merely to answer or qualify the case as it is sought to be made out by his adversary's proofs." (20 ^Yend., 225.) And Starkie wrote: " After the defendant has adduced his evidence the plaintiff"s counsel at once proceeds, without an}- observations, to tender any evidence ho may have in reply; but this must be confined by negativing specific acts sworn to by defen- dant's witnesses which he could not be expected to have anticipated." (On Evidence, side p. 609, 10th ed.) We are brought back to the proposition that where the plaintiff is not informed by tiie answer of new matter which constitutes a defense, he is entitled to addm e evidence in reply to the evi- dence given to establish such matter. It is admitted that it is no objection to evidence in reply to an affirmative defense that it may strengthen the plaintiff's original case. And, upon just principles, it would seem that if the new matter offered by the defendant may consti- tute an affirmative defense, the plaintiff is not precluded from replying to it, because such new matter may also have a tendency to weaken or negative plaintiff's case as originally presented. A watercourse has been s .id to consist of " bed, banks and water." The water need not flow continually, but it would seem the flow must be periodical, such as ma}- be expected during a portion of each year. It must be made to appear that the water usually flows through a regular channel with banks or sides. (Angell, Sec. 4.) It may be conceded that it was for the plaintitis here to establish a natural stieam flowing, at least periodically, up to the time of the diver- sion, and that to justify a permanent injunction the Court must have been satisfied that the water would have contin- ued to flow, except for the diversion. The Court would be authorized to deny the decree prayed for if the evidence 121 showed tlmt the cliannel proved to exist when the diversion occurred, had disappeared (and ceased to exist), as the re- sult of natural causes, and not as a consequeuce of any acts of the defendant, or of interference by others. Evidence that there were no indications of a channel at a certain date would perhaps tend to prove that there was no channel at a previous date. Bnt — unless we can say as law that the channel could not have gone out of existence — such evidence would not establish conclusively that the channel never existed. Nor would it cieate the disputable presump- tion that a "thing once proved to exist continues as long as is usual with things of that nature." (C. C. P. 1,963,) The presumption that a thing existing in the present existed at any time in the past — if it could be considered to be a pre- sumption — would be the reverse of the Code presumption. The efiVet of the evidence must, of course, depend upon the permanent or transitory nature of the thing itself. Apply the Code presumption to the case before us. Let us sup- pose a watercourse was proved at or before the commence- ment of the trial. The disputable presumption is that it continued "as long as is usual with things of that nature." We can not say how long a channel for water will continue. It is not essential to a watercourse that the banks shall be unchangeable, or that there shall be everywhere a visible change in the an-^le of ascent, marking the line between bed and banks. The law cannot fix the limits of variation in these and other particulars. As was said, in effect, by Curtis, J. (Hoivardx. Ingersoll, 13 How., U. S., 428), the bed and banks, or the channel, is in all cases a natural object, to be sought after, not merely bj' the application of any abstract rules, but "like other natural objects to be sought for and found by the distinctive appearances it presents." Whether, however, worn deep by the action of the water, or following a natural depression without any marked erosion of soil or rock; whether distinguished by a difference of vegetation, or otherwise rendered perceptible — a channel is necessary to the constitution of a watercourse. Of course we cannot judicially declare that a channel is of such a nature that it can never cease to exist. Both the evidence and findings herein show that, as a result of the action of water, channels have been closed and new chan- nels formed. We cannot say but the indications of a chan- nel may be removed by other natural forces. We cm con- ceive that along the course of a stream there may be shallow places where the water spreads, and where there is no dis- tinct ravine or gully. Two ascending surfaces may rise 122 from the line of meeting- very gracluallj^ for an indefinite distance on each side. In such case, if water flowed pe- riodicallj at the lowest portion of the depression it flowed in a cl];inne], notwithstanding the fact that, the water being ivithdraioi, the " distinctive appearances " that it had ever flowed there would soon disappear. Causes are ordinarily tried with reference to the condi- tion of things prior to and when an action is commenced. The j)leadings (except supplemental) relate to that date, and the evidence is confined to the averments or denials of the pleadings. A plaintiff seeking the peculiar relief here sought must satisfy the Court that, unless the injunction be made perpetual, he will be deprived of water in the future. But the continuation of tlie status quo, at the commence- ment of the action, is an hi/ereuce. The plaintifis here were not bound to prove by independent evidence that the channel continued to exist after suit brought. The i>sue was, had they a cause of action when the suit was com- menced. If they had it was because of conditions exist- ing when the water of Kern river was diverted and when tliey commenced their proceedings, and this is none the less so because, in order to secure the decree they prayed for, the conditions must be such as would authorize the Court to infer that they would continue in the future. The infer- ence would always have to be drawn, whether educed from facts proved to exist prior to suit brought, or from facts ex- isting at the time of the trial. It was not the dut}' of plain- tifis under the pleadings, in the first instance, to prove the continued existence of a channel after the action was begun, except so far as it might be implied from its existence pre- viously. Even, therefore, if the evidence of the defendant as to the al)sence of a channel at times after the action and after the trial was commenced, be treated merely as evi- dence tending to prove its non-existence before, the plain- tififs were not bound to anticipate it by contradictory proofs. The pleadings gave no notice that such evidence would be ofi'ered. But the evidence given by the defendant also tended to prove that the channel or the distinctive appearance of it, had ceased. It is not ///*/30.s.si7>/fi that they had ceased be- tween the dates testified to by the plaintifis' witnesses and those of the examinations made by the witnesses for the de- fendant. If the channel had so ceased to exist that fact would constitute an affirmative defense. The defense was not pleaded in terms, and, as the evidence tended to prove that a channel had never existed, it was admitted without 123 objection. That fuct ought not to deprive tlie plaintiffs of their right to reply to the new matter constituting an af- firmative defense of which the answer had not informed them. They could not reasonably have been expected to anticipate that the defendant would offer evidence of new matter of which the answer did not give them notice. Further, the testimony of certain witnesses for the de- fendant was not merely to the bald fact that there was no cliannel at a certain time. The facts to which they testified were that, on an occasion, they passed from one side to the other of the lauds through which the slough had been said to run, without crossing or coming to any slough or chan- nel. The Court refused to permit the plaintiffs, in repl}^ to produce evidence tending to prove that on the occasion re- ferred to the defendant's witnesses ilid meet with a slough or channel. Thus, the defendant having called some of those who made the trip together, the Court rejected the plaintiffs' offer to call another of the same party to contra- dict the statement of those examined b}' the other side. It is difficult to distinguish this from the other offers made, but it presents the question sharply. In this instance there can be no possible doubt that the offered testimony related to the matter testified to by the witnesses for the de- fendant. Our conclusion is, that the Court below erred in sustain- ing the defendant's objections to offers of evidence, with respect to the existence of a slough or cliannel, made by plaintiffs after the defendant had rested. XVII The Court heloiv erred in rejecting all or some of the certificates of purchase offered by the plaintiffs in rephj. In their amended complaint, the plaintiffs allege: "That plaintiffs w^ere, at the commencement of this action, the owners in fee, seized and possessed (and for more than a year theretofore they and their grantors were such owners) of all those lauds situate in the County of Kern, in the State of California, and particularly described (according to the survevs bj the authority of the United States of Amer- ica, and referred to the Mount Diablo base and meridian) in a certain schedule which is hereto annexed, marked 'Schedule M,' and made a part of this complaint. That said lands are swamp and overflowed lands, and, as such, belonged to the State of California until the year 1876 and 124 later, in which year, and at various times afterward, and before the commencement of this action, they were granted by the State to the plaintiffs and their grantors." The action was commenced September 2, 1880. In its answer to the amended complaint the defendant avers: "That heretofore, to wit: on or about the 4tli day of May, A.D. 1875, defendant's grantors, acting in the full faitli and a bnnafde belief that a large portion, to wit: more than seventy-four thousand (74,000) inclies, measured under a 4-inch pressure, of the waters of said Kem river were un- used, vacant, unappropriated, and free and open to appro- priation and use, posted a certain notice of appropriation of water on the north bank of said river in Kern count}'. State of California, at a point on or about tlie southwest quarter of section thirteen (13), in township twenty-nine (29) south, range twenty-seven (27) east, Moun; Diablo base and merid- ian, according to the United States surveys, wherein they claimed and whereby they notified plaintiffs, plain liffs' grant- ors, and all persons whomsoever it might concern, that they claimed and appropriated and proposed and intended to take out and divert, use and consume, a large part and portion, to wit: seventj'-four thousand (74,000) inches, measured un- der a 4-inch pressure, of the flowing waters of said Kern river, for the purpose of irrigating certain lands in said no- tice described, and of supplying thereunto and thereon for other purposes in said notice set forth. That within ten days after the posting of said notice, to wit: on the 4th day of May, A.D. 1875, the said notice was duly recorded in the ofiice of the County Recorder of said Kern county, in Book 1 of Water Rights, ]iage 37, to which said record ref- erence is here made, and which said record is made a part hereof. That defendant's said grantors thereby appropri- ated and acquired the said amount of flowing waters of said Kern liver, with the right to take out, divert, use and consume the same for the uses and purposes in said notice mentioned, all of wdiich appropriations, rights and proper- ties they (defendant's said grantors) on, to wit: the 18th day of May, A.D. 187), granted, bargained and sold, trans- ferred, assigned and conveyed to this defendant. That, within twenty da3"s after the posting of said notice as afore- said, to wit: on or about the day of May, a.d. 1875, defendant, for the purpose of utilizing said \vaters of Kern river, in the manner and at the places in said notice men- tioned, commenced the construction of that certain ditch, or canal, known as the Calloway Canal, and being the same as in said complaint described, and thereafter and thenceforth de- 125 fendant continuously and diligently prosecuted the work on said canal until the same was completed, and expended there- on in the construction thereof large and vast sums of mon- ey, amounting in the aggregate, to wit: ninety thousand (890,000) dolhirs. Tliat duriiig the constrncti'on of said canal, defendant diverted and used the aforesaid amount of water in irrigating and fertilizing the lands in said notice described, and for stock and other beneficial purposes on said described lands, and defendant has continued so to use said amount of water from and after the completion thereof." At the trial, the plaintiffs, as part of their evidence in chief, produced patents from the State of California grant- ing to the plaintiffs, or their grantors, certain of the lands described in the complaint. The several patents are dated January 18, 1876, February 17, 1876, September 11, 1876, and June 15, 1877. And the plaintiffs also gave in evidence the judgment-roll in an action brought by the People of the State of California against John Center and others, by the judgment in wliich action it was decreed that the plaintiffs herein have certain of the lands described in the complaint in the present action, and that they were entitled to patent for the same as provided in " An Act lo provide for determining the rights of parties to certain swamp and overflowed lands in Fresno and Kern counties, approved March 20, 1878." The decree in the said action, Ihe People, etc., v. John Center et al., was entered September 17, 1878. We are about to consider whether the Court below erred in rejecting, when they were offered by plaintiffs, all or any of the certificates of purchase issued by the State Land Office to assignors of the plaintiffs. The Court below held that there was no stream. As we have seen, iiowever, the Court erred in refusing to admit certain evidence bearing on that issue. In deciding the question as to the admission of the certificates, we must assume that there was evidence of a stream running from Kern river to some of the lands de- scribed in the complaint, and to a tract described in at least one of the certificates. It does not follow, however, ihat all the certificates would, in any event, have been admis- sible. It is to be borne in mind that, if the Court below had found a watercourse to, through, or past any one or more of the tracts described in the complaint, only such of the certificates of purchase would have been admissible as showed the purchase of tracts s> found by the Court to be touched or traversed by the watercourse. If at the trial the Court found, on sufficient evidence, that no watercourse 126 existed, or that none of the hinds described in the com- plaint bordered on it, and had committed no error with respect to tlie admission of evidence rehiting to tliese mat- ters, it is very ch;ar that no material error would have been committed by rejecting all of the certificates of purchase. It is asserted by counsel for respondent that, in any view of the case, no evidence was given tending to prove that the stream ran through or touched the lauds described in any of the certificates of purchase offered, except one. If the Court erred in rejecting one of the certificate:^ the consequence', so far as it should inflnence the action of this Court, is the same as if all were erroneously rejected. But in case there shall be a letrial in the Superior Court, it is perhaps important, and it is certainly proper, to limit any general statement in such manner as that it may be made applicable to the evidence as it -hall be presented to that court when the case shall be retried. If we shall say in general terms that the certificates of purchase ought to have been admitted, this must be understood in a limited sense, and to apply only to the certificates with reference to the lands described which there is evidence that they are lauds by or through which the watercourse passed. All the sec- tions or fractional sections mentioned in any one certificate constitute a single tract of land. If, however, lands have been granted by patent, and the patent was issued on the cancellation of more than one certificate, the patent can operate by relation (for the purpose of this suit) to the date of those certificates o?i7// the lands described in which border on the stream. The defendant having given evidence to prove the matters so as aforesaid pleaded in its answer, the plaintiffs as evi- dence in reply oftered cerlificales of purchase, dated Septem- ber 30, 1872, for sections and portions of sections (being part of tiie lands described in the complaint) in township 25 south, range 21 east, portions of sections in township 26 south, range 21 east; sections and portions of sections in township 25 south, range 22 east; sections and portions of sections in township 26 south, range 22 east; each of said certificates being signed and issued by the Register of the State Land Office, and the same appearing to have been can- celed by issuance of patent; also like certificates for por- tions of the lands described in the complaint, one dated February 5, 1877, and thiee March 2, 1874. By the 1st Section of the Act of March 27, 1872, "to put in effect the provisions of the Civil Code relative to water rights," Title 8 of Part IV, of Division 2 of the Civil Code, 127 went into full force ami operation on the first day of May 1872. (Stats. 1871-2, p. 622.) All the certificates of pur- chase above mentioned were therefore issued after the title of the Civil Code became operative. It is manifest that if, as contended by counsel for appel- lants, the State is a "riparian proprietor" within the mean- ing of Section 1422 of the Civil Code, the defendant could acquire no rights to Avater by appropriation, as against the grantees of tiio lands from the State, even as against those who became such after the appropriation was made. But, in that case, no injury was done to the appellants by the re- jection of all the certificates of purchase, since the appel- lants, as part of the evidence in chief, had given in evi- dence their patents issued after the appropriation. In order, however, to meet inferences Avhieh may be diawn from the assumption that the State is a "riparian proprietor," within the meaning of the section, it is proper to consider that matter. It is urged by counsel that the title of the Civil Code onl}' relates to the right to appropri- ate waters upon public lands of the United States; the same right growing out of priority of appropriation, recog- nized by the Courts for many years past, and recognized and confirmed by the Acts of Congress of 1866 and 1870. That the State, in the exercise of its police power, and of a trust assumed on its part, has only regulated the conduct of its subjects, going on lands of the United States (under an implied or express license), with reference to this matter of appropriation. It is admitted the State may give the right to appropriate water on its lands, but it is contended the State has not done so, and, on the contrary, has reserved the rights of all riparian proprietors, of whom it is one. The grant, however, is general. "The right to the use of flowing water, etc., may be acquired by appropriation." (C. C, 1410.) No class of lauds is mentioned from which water may be diverted, yet, as to its lands, the Uinted Slates is a riparian proprietor. True, the United States had al- ready recognized the right of appropriation on its lands, but if the Acts of 1866 and 1870 had never been passed it cannot be doubted that Section 1422 of the Civil Code would have been held not to apply to public lauds of the United States. This would have been necessary to give effect to the title, and to carry out the apparent intention of the Leg- islature in the light of the history of the countiy to which reference has been made. Thus by implication the United States, as a riparian proprietor, is excluded from the bene- fit of the sectiou. "The rights of riparian proprietors are 128 not aftecied bj the provisious of this title." (C. C,, li'1'2.) The citizens of the State liave never been prohibited from entering upon the public lauds of the State. The courts h.ive always recognized a right in the prior possessor of lauds of the State as against those subsequently intruding upon such possession. The same principle would protect a prior appropriator of water against a subsequent appropria- tor from the same stream. It is not important here to in- quire whether as against a subsequent appropriation of ■water, a prior appropriator of land, through which the stream may run, would have the better right. It is enough to say that, as between two persons, both mere occupants of land or water on the State lands, the courts have deter- mined controversies. The implied permission by the Gen- eral Government to private persons to enter upon its lands has been assumed to have been given by tlie State, wath ref- erence to the lands of the State. And the State, for the maintenance of peace and good order, has protected the citizen in the acquisition and enjoyment on its lands of cer- tain property rights obtained through possession — perhaps the mode by which all property was originally ac- quired. In view of these facts, we feel justified in saying that it was the legislative intent to exclude, as well the State as the United States, from the protection which is extended to riparian proprietors by Section 1422 of the Civil Code. We have elsewhere had something to say with reference to the class of persons whose rights are protected by Sec- tion 1422. For the present, we shall assume that it includes those who may become riparian proprietors at any time be- fore an appropriation of water is actually made in accord- ance with the provisions of the Civil Code. .A-ssuming this, the certificates of purchase above men- tioned were admissible in evidence, if the other certificate-;, which were of a date anterior to the enactments of the Civil Code, were admissible. To the introduction of each of the certificates of purchase, when otiered, counsel for defendant objected on the grounds that it was " irrelevant, immaterial and not proper testimony in rebuttal." It has been suggested that the plaintiffs were precluded from showing title in themselves prior to 1876, by reason of their allegation in the complaint "that the lands belonged to the State of California until the year 1876, and later." If they were estopped by that allegation, they would have been equally estopped if the certificates had been ofi'ered as part of their evidence iu chief. But we think they were 129 uot so esto^jped. The lauds are swamp lauds, and are al- leged to liave beeu giauted by the State. If the averment hiid uot beeu inserted that the lands belon<,'ed to the State up to the grants — the presumption would have been that they belonged to the State up to the date of the patents, or, at least, up to the initiation of the proceedings which euded in patents. Yet, notwithstanding tlie presumption, the plaintifis would have been entitled to prove that tlteij owLed them at a date previous to tliat at which the complaint alleges they became the owuers. The averments are, in effect, that the lauds belonged to the State until they were grauted to plaintiff's. The dates of the grants, as pleaded, are imma- terial, if they were in fact granted before the diversion of water. As to the averment of previous ownership by the State, it is an averment of a fact of which we would take judicial notice, and may be disregarded. If the complaint iiad simply stated that the plaintiffs had become the owners at a certain date, by virtue of grants, would it be an objec- tion to the admission of a grant of an earlier date that the State then owned the lands"? Under our system, that which the law^ presumes need not be alleged, and, if alleged, ought not to determine the rights of parties, unless the presump- tion, independent of the allegation, would determine them. The certificates, in connection with the patents, would have been admissible as part of plaintiffs' evidence in chief under the averment of ownership in fee. In connection with the patents they would have proved a title to every intent, as against the State and its grantees, as of the dates of the certificates. In Union Mill v. Dangherry (2 Sawyer, 215) Hillyer, J., said: "It is settled that the entry and payment and certificate thereof convey the equitable title. Thereafter the land ceases to be public, and the Government has no right to sell it again, but holds the legal title in trust for the purchaser. * * '^ As possessors and equitable own- ers they (the holders of certificates) are entitled to enjoy all the incidents to the land and its ownership, as well as the land itself. The patent, when issued, relates back to the original entry, the inception of the title, so far as is neces- sary to prote"^ct the purchaser's title to the land." Gibson v. Chouteau, 13 Wall., 92; 4 Wall., 410; Id., 232; 30 Cal., 648; 3 How., 441.) The certificates offered by the plaintiffs herein were evi- dence of a right of entry by the assignors of the plaintiffs and of the receipt by 'the State of part of the purchase monev; in the last respect differing from certificates issued to pre-emptioners under the laws of the United States, which 130 evidence the receipt of tlie whole of the purchase money. The right to the possession might have been terminated by a failure to pay the balance of the purchase money. But the patents issued when the certificates were canceled proved payment of the balance of the purchase money and related to the dates of the certificates. The certificates and patents would have proved that plaiutifis and their assignor-^ had been entitled to the possession of the lands iu law and equity, from those dates. They certainly would have shown them to have been the owners so far as the fact of ownership could have been maile the basis for relief in an action like the present. There can be no doubt but the equitable owner in posses- sion of a tract of laud bordering a stream is entitled to re- lief in a court of equity against the wrongful diversion of water of the stream. Even at law, as between parties claiming, under patents from the general or State Govern- ment for the same land, the junior patent wmII prevail if the proceedings to secure it were commenced before those cul- minating in the senior patent. Here the plaintifl's have patents which relate back to the certificates (the contracts of the plaintiffs antl their assignors having been fully per- formed) so as to protect them in their title to the lands, Avith all I heir incidents. Assuming that the rights of these parties are to be determined by the decision of the ques- tion — Did the plaintiffs acquire aright to their lands he/ore the defendant appropriated the waters — the patents of the ])laintifts related to the certificates of purchase as against the defendant's appropriation. Inasmuch as a sale of lands includes a sale of the coi- poreal hereditament, a right to the flow of the water, it is c'early the intentien of the statutes providing for sale of the State lands, that the purchaser shall be protected from a de- |)rivation of any of the valuable incidents of ownership, un- til he shall lose his right to purchase by failure to complete jjis contract; to reserve and withdraw such lands from the privilege accorded to appropriators to divert waters from State lands. To hold otherwise, and so to construe the Code as that he who has made part payment for land, and entered into possession under a contract with the State guaranteeing to him a complete title in case he shall pay the balance, can be deprived of the benefit of that which is a valuable incident of ownership (notwithstanding he shall subsequently have fulfilled his contract according to its terms) would operate manifest injustice. We are not now speaking of the power of the State. Doubtless it may 131 sell its lauds with such limitations as it may deem propei'. But if the Code provisions aud the statutes providing for tlie disposition of State lauds can be held to meau that the purchaser shall have riparian rights as against subsequent appropriators, it would lead to iniquitous results to con- strue the provisions in such manner as that he shall not se- cure the benefit of those rights in case he performs his con- tract; in other words, that his patent shall not relate to his certificate of purchase. So far as the certificates merely tended to prove title in the lands at and prior to a wrongful 'liversion of water b}' defendant they were not admissible in reply. !*roof tint they were owners at the time of the diversion complained of, that is, the diversion which occurred after they became owners as alleged, was part of their original case. The plaiutift's were fully informed by the answer that defendant relied upon a right to appropriate water acquired from the State prior to the dates of the patents. But that was an atfirmative plea, the averments of which it was for the de- fendant to establish. If when the plaintifl's rested they had proved title hy patent, the existence of a watercourse run- ning through the lands, and diversion by defendant subse- quent to the patents, they had proved their case, not merely prima facie, but conclusively, in tho absence of proof of the affirmative matter set forth in the answer. They were not bound to disprove in advance the appropriation pleaded. Having made out, or attempted to make out, their case in the first instance, the plaintiti's would not have been entitled, in contradiction of evidence given on the part of the defend- ant, under the denials of the answer, that the plaintiffs were not the owners at the time of the alleged diversion, to pro- duce further evidence in support of their title. But, after tiie defendant rested, the plaintiff's were authorized to meet the evidence in support of the plea that the water was ap- propriated by evidence that the waters were never legally appropriated by the defendant. If the waters could be ap- propriated, as against the lands described in the complaint, only while they remained the lands of the State, then evi- dence that, when the appropriation was made, the lands were not the lands of the State was admissible, and none the less admissible because it also proved that the plain- tiff's or their assignors were then the owners. Such evidence was not evidence in reply to new matter proved under the denials of the answer, but was evidence relating to an issue made by the plea of the defendant; an issue as to which the defendant had the affirmative. It was evidence which by 132 every interpretation of the rule the plaintift's had a right to re-erve uutil after the defendant had closed. It has been suggested that the phiintitis gave some evi- dence in chief tending to prove theiv possession prior to the appropriation. We are not aware that the Eaglisli rule, which at one time prohibited a plaintiff, in case he gave any evidence tending to negative an affirmative defence in the first instance, from giving farther like evidence in reply, was ever enforced in this country, or in eqaifi/. Moreover, the mere prior occupation of lands of tlie State cm consti- tute no reason for preventing the diversion of water flowing through them by one expressly authorized by the State to divert the water from the occupant. In opposition to these views, and as adjudications that the certificates of puridiase, and possession under them, gave tlie plaintiffs no riparian rights, and that tlie certificates, as against the defendant, were not evidence even pi inia facie of the payment of an}- portion of the purchase money, the counsel for respondent