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~)ca.. 560]; Stat. 0' Conn. v. Commonw.a/t. 0' .!Ir-O 0 213!'> Ath t d f d I .. - :wr'tts, 282, U.S. 660, 670 [51 Sup. Ct. 286, 75 LEd. - ~ e ~ta 8. an e era constitutions. as the"e of 602])." . deCISIons In thiS state. [Stats. 1850, p. 219] THE LEGAL ASPECTS The common law of England provided for the doctrine The formulation of the above plans and others, and ~ut- of riparian rights, but there Were no specific common ting them into operation, bringing them to successful fru- law rules that had ever been applied to the conditions ition requires some knowledge of what can legally be uniq~e to west~rn United States. ["Riparian" means be. accomplished. What is the legal framework within which long.ng. or relating to the bank of a river, thus a riparian this State must work in addressing itself to this male of com- owner IS one who owns lands on the bank of a river or plicated water problems? Constitutionally, how far can the. stream.] Legislature now go if it. wants to as a matter of sound The miners were later followed by the agriculturalists public policy? What are the equitable legal principles that who needed water for irrigation and it was inevitable protect those who have vested water rights? What are that the appropriation systam and the English common vested water rights? These things we must know, in order law rula of riparian rights eventually came into conflict. to make progress in solving California's water problems. The climax came in 1886. Earlier Henry lvIi11er and his The evolution of the "'wof waters has gone hand and partner Lux, known llS lvIi11er and Lux, acquired a large hand with the progress of the State, each stage being ac- amount of land in the San Joaquin Valley. James B. Haggin companied by a restatement of such law in the light of and Lloyd Tevis also owned large holdings, llnd began to new needs for water. [See Imperial Water Co. No.5 v. construct irrigation canals up the Kern River from the Holahird, 197 Fed. 4, IS, 116 C.C.A. 526]. lands of lvIi11er and Lux. The importance of the issue, As observed by Chief Justice Shaw, and the wealth and influence of the parties centered public 'flh. development of the -law [of water] In California attention on the ease. The ease reached the Supreme Court I. port of the hl"o~y of the development and growth 0' in 1886 under the names of Lux v. Haggin, [69 Cal. 255 the state. The first Industry pursued here, that of placer (1886)] mining, required the liberal us. of water to separate the bl gold from the soil, sand, and gravel in wfiich If wall im.. Proba y no case that ever came before the Supreme bedded. It was confined to the mining region.. The latter Court of Ca.lifornia was more fully argued by more dis- and more wid-:spread-Industty of agriculture require. stili tinguished counsel. In the longest opinion to be found in larger quantihes of water to grow the annual crop., th d .. f th 5 C . trees, and vines to which the climate and the soil w.... e eCISJons 0 e upreme ourt extendIng 126 pages, so well adapted. Th. recent use of water to produce elee- the court split 4 to 3.. The malority, in an opinion writ. trieal-energy adds another'valuable use to 'hat element. ten by Justice McKinstry, declared that the rights The i~crea.e .in p~pulati~n and the corresponding increase of riparia., owners to the use of waters f_ the in the.. varlOu, Industries have produced Cl! demand for b . - 0 water which hall taxed all possible source. of supply. The a uu,ns. stream were paramount to those of the controversies arising from the.e conditions have been appropriator, that this water right was a IIparcelll taken, to the court and have compelled decision. upon of the land likened to the land itself. various p~~s.. of the law, of wa'ers. Our reports contain With a judicial recognition of 5 h sf' d ri... more _deCISions on that .ubiect than any o'her/' [Addres. . h . b . uc ve e prope, ., prlnt.d In 189 Car. 'TY9-Y9Y 1922)]" "g ts, It acame obVIously apparent that such rights could LEGAL. HISTORY not be taken without compensation. The policy of protect- The gold miners who came to this territory in the sum- ing such rights is declared in our constitution and has been mer of 1849 found that there were few streams, and most adhered to throughout our national history. of those. existing had little water. The land belonged to In.J 926 the State Supreme Court went so far in protect- the United States, but the Federal government had no ing riparian rights .of any kind as. against any extent of real control Over it. There was no real government no benefit to an approp"ator that publrc concern was aroused. established law, and no authority. The rights of the ;"in- The historical case i~volve.d was that of Her,!,inghaus v. e.rs were those of the possession, only, and such posses- South~n Califo~n!a Ed,so~ Co. reportad In 200 Cal. 81 Sian was the sole foundation and evidence of their title (1926). The plaintiff, Hermlnghaus and others. owned to land they occupied, to the water they used in mining. 18,000 acres of land !>ordering on the San Joaquin River. and the gold they obtained thereby. Overflow from the river at annual flood stage naturally Prior to the treaty with lvIexico in 1848, rroperty rights irri~ate~ this !and and deposit.e~ silt u,?on it. The Southern were governed by lvIexican law. On Apr; , 3, 1850, the Cal,fornia EdISon Company deSired to .mpound and divert legislature of the infant state enacted a statute adopting s~me of the water on upstream lands for generating elec- the common law of England, so far as it was in harmony trlC power. . . . Justice Richards writing for the court reaffirmed the 11 It IS Interesting to note that the above stetement from Chief Justice ' . . I f L ' H . . d ' Lucien Shaw is taken not from on official cose decided by the prlnclp es 0 ux v. agg,n, pomte out that the rights Supreme Court of Colifornia but wos on oddress on woter low pre- U Eminent counsel represented 0 thO . I d d Ed d F T d pared by Judge Show ond printed as on appendix to the Official "R V R d G n IS rase bn.c u e war . rea. foe~~;~$ of the California Supreme Court, 189 Cal. at pages 779 a:d Joh~ w. p~~lc;n~Jam:soF:ep;~k, r~;d r~~be~re:hHa'i:~f~~tthS~ Respondent. 8 9