Lux v. Haggin

McKinstry, J.

The question being, Can a private corporation divert the waters of a watercourse, and thereby deprive the riparian proprietors of all use of the same, without compensation made or tendered to such proprietors? held:—

1. The owners of land by or through which a watercourse naturally and usually flows have a right 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 appropriation (on due compensation) of private *265 rights to the flow of running streams and the distribution of waters thereof to public uses.

3. But one private person cannot take his property from another, either for the use of the taker or for an alleged public use, without any compensation paid or tendered. (Const., art. 1, sec. 14.)

4. Riparian owners may 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 commenced by Charles Lux, Henry Miller, James C. Crocker, and others, as plaintiffs, against James B. Haggin and many individuals and corporations, as defendants. By dismissals and amendments, Lux, Miller, and Crocker became the only plaintiffs, and the Kern River Land and Canal Company the sole 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 complaint, and which (if not diverted) would have continued so to flow. Plaintiffs have appealed from a judgment in favor of the defendant, and from an order denying 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.

1. As the case was presented in the court below the plaintiffs were not estopped from seeking relief by injunction, by reason of their laches or delay.

*266 As a conclusion of law from certain facts found, the court below declared “that the plaintiffs 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. There 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 defendant has acted with full knowledge of all the facts, and, as must be presumed, with full knowledge of the law controlling 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 v. Merced etc. Co., 14 Cal. 279 ; Stockman v. Riverside, 64 Id. 57; Morrill v. 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, with 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 set up; that the other party has acted upon or been influenced by such act or declaration; that the party so influenced will be prejudiced by allowing the truth of the admission to be disproved. (Brown v. Bowen, 30 N. Y. 519 ; S. C., 86 Am. Dec. 406 ; Plumb v. Cattaraugus County Mut. Ins. Co., 18 N. Y. 392 ; S. C., 72 Am. Dec. 526 .) 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., were constructed with the knowledge of the plaintiffs, though at great expense, without objection by plaintiffs, is not sufficient to constitute (such) an estoppel. (Stockman v. Riverside, supra.)

*267 Second. Where an express statute of limitations applies to a suit .in equity, mere delay to commence the suit for a period 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 party 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. Bradford, 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 years 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 which 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 defense. Throughout the code suits in equity are called “actions.” Sections 346 and 347 expressly relate to certain suits 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 provisions of the code should be applicable to legal and equitable 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.

*268 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, would 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 courts that, except in the single case of concurrent jurisdiction ” (where the statute, like a statute in terms relating to suits in equity, operates ex vigore suo), “ courts of equity may act by analogy or not, as the ends of justice and the strict equity of the case may require.” (Sec. 59.) It was said by Lord Camden: “From the beginning there has always been a limitation to suits in this court.....But as 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 v. Clinton, 2 Jacob & W. 141.) It is said by Mr. Daniell: “ When there is no positive limitation, the question whether the. *269 court will interfere or not depends upon whether, from the facts of the case, the court will infer acquiescence, confirmation, or release.” (1 Daniell’s Ch. Pr., 560, 561.) 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. (Story’s Eq. Jur., 1920.) The writer on limitations 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 on Limitations, sec. 59.)

It might be claimed on principle that inasmuch as the conduct of equity, with respect to laches, etc., and the statute 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 exponent of the policy of the state—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 enforceable.

It must be conceded, however, that the weight of authority is to the effect that where the statute of limitations is directly 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 acquiescence with full knowledge of all the facts. Further, the acquiescence, proving assent, may bar relief in equity, although it may not be accompanied 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 *270 have been done; acquiescence a resting satisfied with or submission to an existing 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 acquiescence,-Wood remarks: “While the words ‘laches’ and ‘acquiescence’ are often used as similar in meaning, the distinction 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 applicable to the case, courts of equity would discourage laches, and refuse relief after great and unexplained delay, yet, when there is such a statutory limitation, they will not anticipate it, as they may when acquiescence has existed. Laches, in fact, amount only to that inferior species of acquiescence described in the following terms by Lord Kindersley, in Rochdale etc. Co. v. King, 2 Sim., N. S., 89: ‘Mere acquiescence (if by acquiescence is to be understood only abstaining from legal proceedings) is unimportant; where one party invades the right of another, that other does not in general deprive himself of the right of seeking redress merely because he remains passive, unless, indeed, he continues inactive so long as to bring the case within the purview of the statute of limitations.’” (Wood on Limitations, 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 acquiesced in the wrong of which he *271 complains” (sec. 59); and the same is said in effect in Reed v. West, 47 Tex. 240 .

It may fairly be deduced from the authorities we have consulted that the acquiescence which will bar a complainant from the exercise in his favor of the discretionary jurisdiction by injunction must be such as proves his assent to the acts of the defendant, and to the injuries to himself which have 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 other fact which rendered it inequitable to grant a preventive order.

We have tried to look at all the vast number of books referred 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. (Green v. Covillaud, 10 Cal. 317 ; S. C., 70 Am. Dec. 725 ; Delevan v. Duncan, 49 N. Y. 485 .) When the purchaser has not complied with his contract, he must show why. He must account for his failure in a reasonable manner; must make out a clear case, and show that the relief he asks is equitable. He comes into court with an admission that he has not done all he agreed to do. (Frink v. Parker, 49 N. Y. 1 . See also Kirby v. Jacobs, 13 B. Mon. 435 ; Webber v. Marshall, 19 Cal. 447 .) Nor will equity decree specific performance of a contract when its terms and conditions are uncertain or indefinite. (Harnett v. Yielding, 2 Sch. & Lef. 552.)

In Ferson v. Sanger, Daveis, 264, Ware, district judge, held that the plaintiff was too late in seeking damages in equity for an alleged fraud in the sale of land.

*272 Some of the cases cited relate to applications for a “preliminary” injunction, where, the equities being doubtful, the preliminary order was denied. (Society v. Halsman, 6 N. J. L. 126; Attorney-General v. Sheffield, 3 De Gex, M. & 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 possibly an injunction may be granted.” And the Lord Chancellor, Gran worth, added, he was not prepared to say it would be discreet for the court to interfere “ interlocutorily ” before the fact had been established, one way or.- the other, by a trial. Afterward, when the application came before 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 etc. Co. v. The Oxford etc. Co., 3 De Gex, M. & G. 341, Sir Knight Bruce commences by saying: “ It is not now to be determined what order or decree it will be proper to make if these cases shall be before the court for hearing. We are now dealing with interlocutory motions only.”

A learned writer on injunctions says: “While dela” may not amount to acquiescence in the wrong for whic, complainant seeks redress, it may yet suffice to preven his obtaining relief by injunction.” (High on Injunctions, sec. 7.) In support of this view he refers to th Attorney-General v. Sheffield, supra, and to Dulin v. Caldwell, 28 Ga. 117 . But the Georgia case was an attempt to enjoin referees from making an award, on the ground that the plaintiff (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.

*273 Wood v. Sutcliffe, 2 Sim., N. S., 163, was a suit by a manufacturer to enjoin the owner of dyeing-works above from fouling the water. The plaintiff had stood by for nearly five years while the defendant was constructing and using his works. Before defendant commenced to turn his dye-stuffs into the stream, the sewage of a dense population had rendered the water unfit for plaintiff’s purposes, who had in fact ceased to use it. The fouling of the water was an incident to the occupation of the large population, of which (said the chancellor) the plaintiff could not complain. He therefore suffered, no injury from the acts of the defendant, and by his long acquiescence had assented to them.

One cannot read the case of Wicks v. Hunt, John. 372, without perceiving that it did not turn on mere delay, or imperfect acquiescence. The complainant had a complete remedy at law, and the court said the English chancery interfered, notwithstanding the existence of a plain legal remedy, only “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 plaintiff had suffered any injury; and Wood, V. C., said: “Under these circumstances, it is impossible to interfere until 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 occurred 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 interfering with defendant’s works.”

Equitable relief in many cases depends upon the discretion 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 cir *274 cumstances, evidence of acquiescence. Meredith v. Sayre, 32 N. J. Eq. 557, was not decided upon mere delay or laches in the sense of delay. The complainants waited for a year after a tramway was completed on a street in front of their lots, and this fact was, in view of the circumstances, treated as evidence of acquiescence. The court said: “The property 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. Sutcliffe, 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 injuncr tion was granted (or the fact that it remained doubtful whether 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. & O. R. R. Co. v. Bobbett, 5 W. Va. 138 , a bill to enjoin a diversion of waters was held to be insufficient because it neither alleged the insolvency of the defendant, nor set forth facts showing that a judgment for damages would not be ample redress; and in Huff v. Doylston, 4 Brewst. 333, it is said that injunction will not issue “if the injury be doubtful, eventful, or contingent.”

Varney v. Pope, 60 Me. 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; Heiskell v. Gross, 7 Phila. 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 urgent, and there is no adequate remedy at law. Creighton v. Evans, 53 Cal. 55 , was an action at law to recover damages for a diversion. The plaintiff was a *275 riparian proprietor, and as the defendant was not, the court held that, in the absence of proof of damages, the plaintiff was entitled to a verdict for nominal damages.' In Basey v. Gallagher, 20 Wall. 267 , no question wás involved as to delay, laches, or acquiescence. Nor was there such a question in Atchison v. Patterson, 20 Wall. 507 , which was an issue as between appropriaters 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 resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction.”

Sprague v. Steere, 1 R. I. 267, holds that acquiescence 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. Beneke, 1 Beav. 1, because the complainant had not proceeded with due celerity to establish his right at law. In Slade v. Sullivan, 17 Cal. 105 , the Supreme Court refused to reverse the decree of the District Court dismissing a bill to enjoin miners from working a ravine a short distance in front of the plaintiff’s improvements on the public lands, holding that some of the damage anticipated by the plaintiff was very slight, and the rest “ a mere matter of speculation.” Cotchin v. Bassett, 32 L. J. Ch. D. 286, was an extinguishment of an easement by assent. In Birmingham v. Lloyd, 18 Ves. 515, the plaintiffs 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 plaintiffs’ right to damages had been established at law. In Parrott v. Palmer, 3 Mylne & K. 631, chancery refused to enjoin, in the face of long-con *276 tinued acquiescence in the act of defendants and its consequent injuries, but turned the complainant over to his action at law: Maxwell v. Hogg and Hogg v. Maxwell were cross-applications for an injunction 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. R. 2 Ch. 319.)

It appears in Bassett v. Salisbury etc. Co., 47 N. H. 426, that while the injury done to a small portion of the plaintiff’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 he put in requisition. Under these circumstances, it was held that the fact that the plaintiff stood by for seven or eight years without objection was sufficient evidence of acquiescence to prevent an intervention by injunction. Grey v. Ohio etc. Co., 1 Grant Cas. 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 least doubtful; his acquiescence until the road was compléted 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 Dann 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 hut passively, 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 by strong and cogent evidence, leaving no reasonable doubt that he acted upon that sort of encouragement.”

*277 Mr. Wait observes (6 Wait on Actions and Defenses, 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 must make a strong prima facie case in support of the title he asserts, and show that he has been guilty of no delay in applying for the interposition of the court.” In support of the whole of this statement he cites Bliss v. Kennedy, 43 Ill. 67 ; Burnham v. Kempton, 44 N. H. 78; Shields v. Arndt, 4 N. J. Eq. 234.

In Bliss v. Kennedy, supra, however, the court, after saying that, by the 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 where the plaintiff 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 complainants. 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.” The case in 44 N. H. (Burnham v. Kempton) only holds that equity will not take jurisdiction 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 usually first be established at law.

Mr. Wait also says that equity will refuse to interfere “when the damage is not serious,” or when it appears 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 the injuries by diversion are continuous, or the right to continue them is set up and persisted in by the defendant, a court of equity, if the *278 facts be properly established, will interfere by injunction effectually to protect the complainants; and if the diversion of water complained of is a violation of the plaintiff’s right, and may permanently injure that right, and become by lapse of time the foundation of an adverse right in the defendant, there is no more fit case for the interposition of a court of equity, by way of injunction, to restrain the defendant from such injurious act.” (6 Wait on Actions and Defenses, 282.)

In Nasser v. Seeley, 10 Neb. 460 , the plaintiff “solicited employment ” in the work he afterwards sought to enjoin. This was strong evidence of assent.

The Supreme Court of Michigan said: “Except in very clear cases, it is better to leave the parties to their legal remedy in the recovery of damages.” (Hoxsie v. Hoxsie, 38 Mich. 77 .)

Park v. Kilham, 8 Cal. 77 , S. C., 68 Am. Dec. 310 , was an action at law to recover certain water and damages, tried by a jury, who rendered a general verdict. The court held that an instruction 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 whom 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, under 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 constituted 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 *279 plaintiffs’ grantors even “located ” the mining claim. It does not appear that the plaintiffs’ predecessors ever took actual possession of the mining claim; and even if the 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 evidence, created an estoppel at law.

In Edwards v. Allouez M. Co., 38 Mich. 46 , the court said: “ The writ is not ex debito justitise for any injury threatened or done, but the granting of it must always rest in sound discretion governed by the nature of the case”; and as the injury threatened to the plaintiff was small, for which damages at law would be full compensation, the injunction was refused.

Traphagan v. Mayor, 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 (without seeking to recover the possession at law), and to expend a large amount of public funds. The vice-chancellor said' the complainants “had encouraged or sanctioned” 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 bookbinder in an adjoining building. The vice-chancellor refused a general injunction, but enjoined the defendant from operating his engine so as to produce a vibration 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 *280 produces a constantly recurring grievance, more readily than any other.”

The Supreme Court of the United States has said that a hill for a private nuisance should show that the plaintiff is without adequate legal remedy; but that equity will interfere by injunction where the injury is irreparable, or from its continuance must occasion a constantly 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 has vindicated his right at law. (Parker v. Woolen Co., 2 Black, 545 .)

Brown v. Carolina: The injury to plaintiff was trifling, and susceptible of adequate compensation in damages. ( 83 N. C. 128 .)

Fuller v. Inhabitants: A case of acquiescence. The application was 4o restrain the appropriation of money alleged to have been collected by a town under an illegal tax levy. ( 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 complicated. While the terms “ laches ” and “unreasonable delay” are employed with reference to the conduct of the plaintiff, the case shows that these expressions are used to denote an acquiescence or assent, which the plaintiff afterwards sought to withdraw. ( 125 Mass. 490 .)

Brown v. County: A bill by the county to enjoin the collection of a judgment against it. The supervisors of the county made two several 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. Kimmel: Clifford, J., said: “Where there has been gross laches and an unexplained acquiescence in the operation of an advers0e right, courts of equity fre *281 quently treat the lapse of time, even for a shorter period than that specified in the statute of limitations, as a presumptive bar to the claim.” ( 99 U. S. 201 .)

Blanchard v. Doering: Clear case of acquiescence. ( 23 Wis. 203, 204 .)

Sheldon v. Rockwell: “The plaintiff, by his silence and acquiescence ” for more than nineteen years, during most of which time the acts done by defendants 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 will be to the prejudice of any other.” (Angell on Watercourses, sec. 340.)

In Cobb v. Smith, 16 Wis. 696 , the court holds that an acquiescence by the plaintiffs of several years, in the flowing of their lands, was such evidence of assent as would authorize the refusal of an injunction. “If the plaintiffs have suffered damage, they have their common-lav/ remedy.”

“When a person acquiesces, .... a court of equity will not interfere by injunction, but his remedy at law remains.” (Wood on Nuisances, sec. 360.)

Estcourt v. Estcourt Hop Essence Co.: Bill 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 defendant asserting its rights, and then brought suit. He was unable to show that a single brewer had been misled,—a circumstance on which Lord Oairns lays some stress. But there was a conclusive reason why equity should not interfere. The “hop essence” was introduced, recommended, and sold to enable brewers to supply to the public a liquid which they might represent as being made of pure hops, when it was not in fact so made. The chancellor said: “It is not the province of the court to protect speculations of this kind.” (L. R. 10 Ch. App. 276.)

*282 Wendell v. VanRenssalaer: A case of complete estoppel. ( 1 Johns. Ch. 344 .)

In Ware v. Regents, 3 De Gex & J. 230, the plaintiffs’ lands had been temporarily flooded, but there was no threatened future injury. The weight which may possibly be given to mere delay is suggested by the remark of the chancellor, who said that although the delay did not amount to absolute proof of acquiescence, yet “ it was calculated to throw considerable doubt upon the reality of the plaintiffs’ injury.”

Goodin v. Cincinnati: Held, in effect, that one who permits “a public railroad to be constructed over his land” cannot, after large expenditures, made on the faith of his apparent acquiescence, enjoin its use. There remains only the right' of compensation. ( 18 Ohio St. 169 .)

Wiggin v. Mayor: An attempt to enjoin the collection of a local assessment for improving a street in New York City. Held, after the report of the commissioners of assessment was approved by the Supreme Court (in accordance with the statute), equity would not interfere to correct their estimates. Further, if the proceedings of the common council were void, a sale of the complainant’s property would not cast a cloud on his title. ( 9 Paige, 24 .)

The master of the rolls said that acquiescence in the erection of noxious works, while they produce little injury, does not warrant the subsequent enlargement of them to an extent productive of great damage. (Bankart v. Houghton, 27 Beav. 425.)

Mr. Spence writes: “The Court of Chancery will therefore in many cases refuse to give its aid in favor of an equitable claim, though a less period than the corresponding statutory period shall have elapsed, if the length of time, and circumstances of the case shall require the application of that principle.” (Spence’s Eq. Jur. 61.)

In the Matter of Lord: For the peace of society, equity *283 will refuse to interfere when there has been gross neglect in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse rights. ( 78 N. Y. 112 .)

Grant v. Tynney: The court refused injunction when a trifling though continuous trespass had been submitted to for six years, but left the plaintiffs to their rights at law. (L. R. 8 Ch. App. 14.)

Fullwoodv. Fullwood: The chancellor said: “Mere lapse of time, unaccompanied by anything else, has just as much effect and no more in barring an injunction, as it has in barring an action for deceit. ... In saying this I do not shut my eyes to the possible existence of a purely equitable defense, such as acquiescence,” etc. (L. R. 9 Ch. Div. 176.)

In Burden v. Stein, 27 Ala. 104 , S. C., 62 Am. Dec. 758 , it was held: 1. A riparian proprietor may enjoin in equity without first establishing his right, at law; 2. That while in cases where the plaintiff’s right is not clear until established at law, equity will refuse to enjoin if it is shown that he has been guilty of improper delay, the principle has no application where his right is clear, and of such a character as entitles him to ask for the interference of equity without resorting to law in the first instance.

Thomas v. Woodman: The only injury complained of by plaintiff was an offensive odor arising from the decay of grass accumulating in the bed of a stream near his premises. The plaintiff knew the “full consequences ” for two years before applying for relief. ( 23 Kan. 277 .)

In Corning v. Winslow, 40 N. Y. 191 , the Court of Appeals was divided. The judges agreed, however, that equity will interfere, by mandatory injunction, to compel the restoration of running water to its natural channel; and that since the code it is not necessary that plaintiffs’ right should be first established at law., A minority of the judges thought the circumstances—in view of the great loss and injury to the defendant, the *284 slight advantage to be "gained to the plaintiff by a restoration of the water, the assent of plaintiff’s grantor to the building of permanent and expensive works during the lease, and the delay of the plaintiff after the expiration of the lease—rendered the issuing of an injunction improper. The majority held these conditions did not deprive the plaintiff of his right to equitable relief.

In Corning v. Troy, 39 N. Y. 313 , the court said: “In order to estop the owner of a water right in equity from enforcing his right on the ground of his knowledge and acquiescence in the making of expenditures and improvements thereon by another, the consent and agreement of such owner thereto ought to be established by the clearest and most satisfactory evidence.”

This statement is said to be a mere dictum, but it appears to us to be substantially a correct exposition of the rule. In the light of the authorities, it seems clear that the acquiescence of the plaintiff, which will deprive him of his right to appeal to equity, must be such as proves his intelligent assent.

It may be that delay in seeking relief may tend in some appreciable degree to strengthen the probability that plaintiff has assented to a slight injury; or tend, in connection with the other evidence, to show that ho has suffered no real injury,—as suggested in Ware v. Regents, supra. But in every case the question returns, Has the plaintiff assented to the acts of the defendant? We see no error in the statement (Corning v. Troy, supra), that the “consent and agreement” of the plaintiff must appear. It perhaps adds no force to this statement to say that the consent ought to be established by “the clearest and most satisfactory” evidence; although similar language was used by Lord Eldon. (Dann v. Spurrier, supra.)

Under our codes the riparian proprietor is not required to establish his right at law by recovering a judgment in damages before applying for an injunction. The decis *285 ions (in cases of alleged nuisances) based on the failure of the complainant to-have had his right established at law have no appositeness here. Here the plaintiff 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 proves his case, relief will be granted, although he has not demanded damages at law. In the case at bar the plaintiffs do not admit 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 that class of cases, and which require of the plaintiff to show that he has promptly sought redress at law, have little applicability.

In considering the question whether, in the case at bar, the plaintiffs assented to the acts of the defendant, and the injuries caused by 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 considerable 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 plaintiffs 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 certificates hereinafter spoken of had been admitted in evidence) the certificates of purchase would 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 plaintiffs from defendant’s acts, there was no conflict as to the nature of those injuries. •'

The injury to the plaintiffs, so far as it had already accrued, was, perhaps, such as could have been compensated in money damages. But even if this should be conceded, the defendant has asserted its right to continue *286 its diversions, and throughout these proceedings has persisted in that assertion. The entire injury, 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 we hold that the riparian proprietor can never ask for an injunction when future diversions of waters are threatened; and the adjudications 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 continuation of the 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 expended very large sums of money, the evidence tends to prove that neither the injury already inflicted on the plaintiffs, 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 bring this action'sooner than it was brought (with actual or presumed knowledge of the things done by the defendant), the plaintiffs are shown to have acquiesced in the defendant’s diversion of the water, and the consequences thereof, in such manner as that the assertion of their rights in this action is to be treated as an attempt to ignore or to recede from a previous assent.

A finding of unreasonable laches often assumes the existence 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 naturally flowed to their lands; or unless the delay to sue after the water ceased to flow, as a con *287 sequence of defendant’s works, 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 plaintiffs, with knowledge proved or presumed from the notoriety of the acts and claims of defendant.

The inherent difficulty of anticipating, in the fall of 1875, when “a small quantity of water ” was used by the defendant, what would be the results of the completed canal, or when a considerable progress should be made in its construction, is a sufficient answer to the suggestion that the plaintiffs should then have known those results. If, immediately after the work done in 1875, the plaintiffs had applied for an injunction, would a court of equity •have granted it upon facts which would have shown a possible or contingent serious injury? It would have been obligatory on the plaintiffs, at least, 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 although the court found that the defendant continuously prosecuted its works, it does not appear from the findings how far those works were extended, or what were their consequences, at any point of time before the plaintiffs began to suffer the real, serious, and substantial injuries of which 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 plaintiffs,” etc. It does not respond to facts pleaded, nor is it a direct finding of the fact of assent. But if it were a finding of fact, the evidence does not sustain it. The *288 evidence, although it may be circumstantial, must affirmatively prove 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 plaintiffs’ consent, or the laches or acquiescence which would prove consent; that the matter of laches or neglect or acquiescence arises out of the evidence; and that a court of equity may and ought, sua sponte, to deny relief, where an appeal is made to its discretionary power of granting or refusing an injunction, when there has been unreasonable delay (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 evidence 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 plaintiffs are not estopped from maintaining this action by reason of their assent to and approval of certain acts of a third person,—the Kern Valley Water Company.

The next question is cognate to the one just discussed. It arises on certain findings from which, respondent contends, it appears plaintiffs lost their right to complain of any diversion of wafer before the commencement of this action.

The court below found: —

“That the waters of Kern River do not and never did naturally and usually flow to, through, along, by, over, or upon the said lands of plaintiffs, or any part thereof; and that until the year 1876, whatever of the water of Kern River flowed to or reached the said lands, *289 or a.ny 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 J anuary, 187 6, completed, a dam across Buena Vista Slough, at a point designated on the map hereto annexed as Cole’s Crossing, on or about section five (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 pressure 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, range twenty-four (24) east, and extends thence some three (3) miles north, on the eastern side of the 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, extends 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 *290 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 plaintiffs. That in June, 1877, the Kern Valley Water Company, a corporation organized and existing under the laws of California, for the purpose of acquiring canals and water rights in said county of Kern and elsewhere within this state, to be used or disposed of for irrigation, transportation, domestic, mechanical, and other purposes, took possession and control of said canals, and thenceforth continued the construction thereof northward toward the lake known as Tulare 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 Crossing; and in connection therewith constructed a levee extending westward to the bluffs on high ground, and running eastward from said dam about one and one quarter miles, as shown on said map, thereby preventing the waters of Kern River from flowing to Buena Vista 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 waters reaching said levee, and turned the same into the .said canals. That the said dam and levee last mentioned are some distance southward from the southernmost .part of the said lands of the plaintiffs, 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 *291 described in the preceding finding was undertaken and prosecuted with the knowledge, consent, and approval of the 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 thereof, and consented to and approved of such construction. That said canals and levee were constructed at great expense, and because of and in reliance upon the said approval and consent of the plaintiffs, and but for such approval and consent would not have been constructed.”

The notice of appropriation of seventy-four thousand inches of water was posted and filed for record by defendant’s assignors May 4, 1875. Their subsequent acts (it may here be conceded) related back to the posting and filing of the notice.

It may well be doubted whether the evidence sustains the finding that the plaintiffs consented to and approved 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 plaintiffs thereto, as found by the court, intervened between the appropriation by defendant’s assignors and the commencement of this action.

The construction of the dam at Cole’s Crossing, with or without the plaintiffs’ consent, is unimportant (with reference to the question we are about to consider) if the waters of Kern River have never naturally or usually *292 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 defendant or its assignors above Cole’s Crossing and before 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 were 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 plaintiffs, 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 Company, only the waters turned toward plaintiffs’ lands by the dam at Cole’s Crossing and the waters of extraordinary overflows.

But as the court found that the levee last mentioned prevented the passage of any water to the northward thereof, the respondent is entitled to the benefits 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 plaintiffs’ lands, the plaintiffs had consented to the erection of a dam or levee by the Kern Valley Water Company which diverted all such waters from their lands.

Section 811 of the Civil Code provides that the servitude may be extinguished by 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 its nature or exercise. This seems to be a recognition and statutory declaration of the rule which Professor Washburn says has become well settled, that if. the owner of a dominant estate do acts thereon which per *293 manently prevent his enjoying 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 enjoying the easement, the effect will he to extinguish it. (Easements and Servitudes, 560.)

The same writer says that, as forming the subject of property in connection with realty, water may be viewed in two lights: one, as one of the elements of which an estate is composed; the other, as being valuable alone for its use, to be enjoyed in connection with the occupation of the soil. “In the latter sense it constitutes an incorporeal hereditament, to which the term easement ’ is [has been] applied.” (Washburn on Easements and Servitudes, 207.) The flow of the water to and over the riparian lands is not a mere easement. (Stoker v. Singer, 8 El. & B. 36.) 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 receiving water from land,” and “the right of having water flow without diminution or disturbance of any kind,”—which last includes the right to have a natural watercourse flow, subject to such diminution as results necessarily from a reasonable use by a superior riparian proprietor.

It has been held that when the lower proprietor licenses the upper to divert water which would flow to the lands of the licenser, and the licensee has executed the license, the licenser does not grant the servitude within the prohibition of the statute of frauds, but rather is estopped from asserting 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 *294 811 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 ownership. But if the act is to be done by the licensee on a third person’s estate, and the license be executed, it cannot be revoked. (Washburn on Easements and Servitudes, 563.)

Appellants claim that the evidence with respect to ti p consent of plaintiffs to the diversion by the Kern Vail f Water Company was not admissible under the allej ¡- tions of the answer, because defendant did not pie! ¡I therein the facts establishing license and its executio |. Counsel refer to Humphreys v. McCall, 9 Cal. 59 , whe, p it was held, in an action for damages for the diversion of water appropriated by plaintiffs on the public lands, — 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. That 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' action 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 commenced. If their right to the flow was legally 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.

*295 If, therefore, the findings last above referred to are sustained 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 ownership of the banks of Buena Vista Slough. If they licensed the ICern 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 recover, whatever the purposes of the diversion, although these included a purpose to benefit the lands of plaintiffs by draining them, and the conduct of the water to a point below 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 ownership of the banks of one of the canals), if it appeared that all the stock of the Kern Valley Water Company was 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 such manner as to provide more effectually for the irrigation of their lands,—here such facts do not appear from the findings or evidence. The corporation was a distinct entity, in which the plaintiffs were in no way interested, except that there was evidence tending to prove that one (perhaps all) of them was a stockholder in it. Besides, as we have seen, the plaintiffs do not base their claim for relief on the statement in their bill of complaint that they are riparian proprietors on the new or artificial watercourse.

If, however, it should be conceded that all the plaintiffs consented to and approved of the construction by *296 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 entirely extinguish the rights of plaintiffs to the flow of the watercourse, unless the dam — as built and consented to by plaintiffs—obstructed and preyented the natural flow 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 swamp north-, ward 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 plaintiffs, or any part thereof.”

But there was uncontradicted testimony that there was a head-gate in the dam or levee, at a place designated by the witnesses as the place where the levee crossed the slough, which was at times open and through which, when open, water flowed in the slough.

The court did not find the existence of the head-gate, and there is neither finding nor definite and distinct evidence from which can be ascertained what was the arrangement or agreement between the plaintiffs and the water company, if any, with reference to the control and management of the head-gate. The court found that the plaintiffs 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 existence of the head-gate in the slough, unexplained, proves that plaintiffs retained a right to water flowing there. But it is enough if the facts proved do not affirmatively establish that the easement was entirely extinguished. The levee as constructed did not permanently *297 and continuously stop the flow of all the water, and the license of plaintiffs was no broader than its execution.

Although the defendant was not bound to plead a license given and executed prior to the commencement of the suit, the burden was on the defendant of proving that plaintiffs had assented to acts of the Kern Valley Water Company which permanently deprived them of all the water. It was by 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 presumption 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 plaintiffs of a right to enter upon the possession of the company and open the gate,—or of a right to demand that the Kern Valley Water Company should open it whenever plaintiffs 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 implied a finding that the license was not limited or restricted.

The question is not free from difficulty. 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 was for the plaintiffs to prove affirmatively the reservation of a right to the flow at their option or at specified times. Doubtless, the conclusion that plaintiffs licensed 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 control of its own head-gate; but this, it is argued, *298 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, prima facie at least, by proving the consent of the plaintiffs to the construction of the levee, although it was built with a gate through which waters might flow if it should be opened? Would the possible fact—not proved—that plaintiffs may have reserved the right to have the gate opened when they demanded it, or for, a definite part of future time as time should pass, be considered as overcoming the presumption that the 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 affirmative has established the issue on his part prima facie.

But here the burden was on the defendant of proving that the right of the plaintiffs to the flow of all the water was extinguished. It would not have been sufficient that it was made to appear that plaintiffs had assented to a diversion of a portion of the waters, any more than it would 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 with 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 jmesence of the fact that the work they assented to did not actually deprive them of all the water, their right to the water which flowed through the gate, either continuously or at intervals, was not extinguished. To apply *299 the presumption that every man has a right to control his own 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 water also (or its exclusive use) which flowed through the gate belonged to that company, in entire disregard of the presumption that the plaintiffs retained every right to the flow of the stream which was not affirmatively shown to have been lost. Thus a disputable presumption (applicable to the use of the gate) would be made to overthrow a presumption applicable to the use of the water. The defendant could not establish that plaintiffs were estopped from asserting that they had a right to the flow of any part of the water,—either prima facie or conclusively,—-except by proving facts which necessarily precluded the retention by plaintiffs of any part of it. The defendant could not rely upon a presumption drawn from facts which did not necessarily exclude a retention by plaintiffs of a right to the flow of some of the waters, in opposition to the legal proposition that plaintiffs had lost only the right which was affirmatively proved to have been extinguished.

Of course, on a retrial of this cause, the evidence may establish an extinguishment of the plaintiffs’ rights—if they ever had any—to the flow of every portion of the waters of Buena Vista Slough to their lands. On this appeal we confine ourselves to the findings and testimony in the transcript now here.

III. While the argument ab inconvenienti should have its proper weight in ascertaining what the law is, there is no “public policy ” which can empower the courts to disregard the law; or because of an asserted benefit to many persons (in itself doubtful) to overthrow the settled law. This court has 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 water.

*300

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.

The respondent contends that it is entirely immaterial what errors were committed by the court below, upon the supposition that plaintiffs, as riparian proprietors, have some rights to the flow of the stream through their 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 statute of 1850 adopting the common law as “ the rule of decision,” and the section of the Civil Code providing that “the rights of riparian proprietors are not affected” by the provisions relating to appropriations 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 compensation to him, be condemned to the public use by proceedings 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 B.o?'' And Myrick in that case, the right of the riparian proprietor to the use of the water is designated “property,” an “incident of property in the land inseparably annexed to the soil,” as part and parcel of it, “an incorporeal hereditament appertaining to the land.” The main question in the case was whether the code provided for a condemnation of that species of 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 domain. (Gardner v. Newburgh, 2 Johns. Ch. 162 ; S. C., *301 7 Am. Dec. 526 .) On like principles the same property-right may be taken for any public use. In every case, however, the provisions of the statute as to the mode and manner of conducting the condemnation proceedings must be strictly pursued. Private property may be taken or damaged for public use, due compensation being made or paid into court. (Const., art. 1, sec. 14.) But another provision of the supreme law is equally operative: “Ho person shall be deprived .... of property without due process of law.” (Id., 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. Lim. 528.)

Section 1001 of the Civil Code provides:—

“ Any 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 the owner or by proceedings had under the provisions of title 7, part 3, of the Code 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 charge of such use,’ within the meaning of those terms as used in sucli title. This section shall be in force from and after the fourth 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 conclusive.” (Cooley’s Const. Lim. 536. See also note.) With respect to the subject in hand, the judgment of the legislature of this state has been expressed. Among the public uses in behalf of which the right of *302 eminent domain may be exercised are “canals, ditches, flumes, aqueducts, and pipes, for public transportation' and for supplying mines and farming neighborhoods with water.” (Code Civ. Proc., sec. 1238.)

Chancellor Kent has written: “If the public interest can be in <my way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will 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 Kent’s Com. 340.) Upon this principle the power has been employed for many objects. Not only the direct agents of the government, but individuals and corporate bodies, have been authorized to take private property for the purpose of making public highways, turnpike roads, and canals; of erecting and constructing 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 of power is the public benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government or by individual enterprise. (Cooley’s Const. Lim. 532, citing Chancellor Walworth in Beckman v. Railroad, 3 Paige, 45 -73, and Wilson v. Blackbird Creek Marsh Co., 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 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 lands, and gratify the public taste; .... the common law has never sanctioned an appropriation of property based on these • considerations alone; and some further element must *303 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 governments, 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 entirely taken 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 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 villagers 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 deprived of its use for 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 property 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. *304 (S. V. R. Co. v. Stockton, 41 Cal. 147 .) To this yielding to the legislative judgment 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 pretense that the public is to be benefited thereby.” (Con. Chan. Co. v. C. P. R. Co., 51 Cal. 269 .)

We are not prepared to say that the supply of water to “farming neighborhoods” for irrigation (and the code evidently 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 considered), 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 number of persons to be immediately benefited as opposed to those from whom property is to be taken. It must happen that a public use (as of a particular wagon or railroad) will rarely be directly enjoyed by all the denizens of the state, or of a county or city; and rarely that all within the smallest political subdivision can, as a fact, immediately enjoy every public use. Nor need the enjoyment of a public use be unconditional. 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 domain, can demand water only on payment of the established rate, and on compliance with reasonable rules and regulations.

And while the court will hold the use private where it appears that the government or public cannot have any interest in it, the legislature, in determining the expediency of declaring a use public, may no doubt properly *305 take into consideration all the advantages to follow from such action; as the advancement of agriculture, the encouragement 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 physical conditions 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 importance as a means of producing food from the soil- makes it less necessary, in a scarcely appreciable degree, than 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 indefinite; the idea sought to be conveyed by them is more readily conceived than put into accurate language. Of course, “farming neighborhood” implies more than one farm; but it would be difficult to say that any certain number is essential to constitute such a neighborhood. The vicinage may be nearer or more distant, reference being had to the populousness or sparseness 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.

*306 Whoever attempts to condemn the private right must be prepared to furnish (to the extent of the water he consumes and pays for) every individual of the community or communities, farming neighborhood or farming neighborhoods, 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 condemned is reasonably necessary to supply the public use in a Neighborhood or neighborhoods must be determined by the court in which the proceedings are brought for condemnation of the private right.

In proceedings brought to secure the appropriation of private property to a public use, as in all other legal proceedings, a pretense cannot be set up as a fact,—a sham for a reality. The facts, it must be presumed, will always be fairly determined in each 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 judicial question; but the rule 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 therefore 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 legislative power to declare a use public. We are only called on to say that sections of the codes which provide for taking 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 which is not involved in-the decision of the present action. In case further legislation shall be *307 deemed expedient for the distribution of waters to public uses, we leave its validity to be determined after its enactment, if its invalidity shall then he asserted.

The Civil Code authorizes any person, for purposes useful to himself alone or for the benefit of himself and others, to divert the waters of a stream, the rights of riparian proprietors not being affected.

The claim of respondent is, that under the provisions 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 water-shed, and, whatever the additional loss by 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 them in the manner prescribed by the code, and t' 't they shall be used for an object beneficial to somebody. (Civ. Code, sec. 1411.)

It may be intimated that the court should avoid too narrow a view of the important question involved. It may be suggested that judges in this state should rise to the appreciation of the fact that the physical conditions here existing require an “ appropriator ” to be authorized 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 territory will be benefited by the waters. The proposition 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 conflict.

But the policy of the state is not created by the judicial *308 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 other 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 assumed will be benefited by making the interests of non-riparian takers or appropriators paramount shall also be assumed to constitute “the public,"—■■while riparian proprietors, however numerous, shall be treated merely as individuals having interests adverse to the public,—this considera-" tion, if it should ever have weight with judicial tribunals, should have weight only in very doubtful cases. As was said by Lewis, C. 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 country. 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 sacrificing none, not even the most trivial, to further its own interests." ( 7 Nev. 259 .)

If the law is settled, we cannot override the established rule to secure some conjectural advantage to a greater number. 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 *309 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, subject only to the trust that he shall employ it for some useful purpose. It would hardly be contended that while he continues to use it for a useful purpose a statute would be valid which should take it from him, without indemnification, under a pretext of regulating the “ common use ” of the. water more profitably, or of providing for its distribution so as to benefit a greater number of persons. He would have a vested right to the use of the water, although the riparian proprietors would have none. If, indeed, one who has appropriated the water of a stream since the adoption of the present constitution has appropriated it “for sale, rental, or distribution” to others, the rates he may charge consumers must be fixed by local authority. (Const., art. 14, 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 technically private property or not, is of great value, and thus secure to himself that which, by every definition, is a species of private property in him. Riparian lands are irrigated naturally by the waters percolating through the soil and dissolving its fertilizing properties. This is sufficiently apparent from the consequences which ordinarily follow from a continual cessation of the flow of a stream. If, in accordance with the law, such lands may be deprived of the natural irrigation without compensation to the owners, we must so hold; but we fail to discover the principles of “public policy” which are of themselves of paramount authority and demand that the law shall bo so declared. In our opinion, it does not require a prophetic vision to anticipate that the adoption of the rule, so called, of “ appropriation ” would result in time in a monopoly of all the waters of the state by comparatively *310 few individuals, or combinations of individuals controlling aggregated capital, who could either apply the water to purposes useful to 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 fixing rates would be in the supervisors, etc., would be a sufficient guaranty against over-charges would remain to be tested by experience.- Whatever the rule laid down, a monopoly or concentration of the waters in a few hands may occur in the future. But surely it is not requiring 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 concession 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 be the rule of the common law, which requires 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 the exigencies of the present case do not imperatively demand that we shall here 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 *311 is the head of its canal, we entertain no doubt, upon principles of the common law, as applied 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.

Counsel do not seem to agree as to the nature and pervading force of the “public policy” relied on. While on the one 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 amici curise 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 entirely diverted by the prior appropriator, as against those below, and that the common-law rights of riparian proprietors should prevail in the regions in which the climate more nearly resembles that of other states where the common-law rule is enforced. The aridity of the soil and air being made the test, the greater the aridity the greater the injury done to the riparian proprietors below by the entire diversion of the stream, and the greater the need of the riparian proprietor the stronger the reason for depriving him of *312 the water. It would hardly be a satisfactory reason for depriving riparian lands of all benefit from the flow, that they would thereby become utterly unfit for cultivation 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 indefinite. It would seem there could be no doubt that the law, derived from the same sources, 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 determined as a question of fact? If the theory were accepted, 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 neighborhood (or large “region,” as the case might be) that the rights of the parties should be settled by the one law or the other. Perhaps, too, the law with respect to appropriators and bank-owners 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 respect to physical conditions of the “region” should bring home to the minds 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” which 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 *313 eral law bearing on the subject, it is the same everywhere within the limits of the state. It is for the court to apply, or to direct a jury to apply, the appropriate rule to the facts proved by the evidence bearing upon the issues made by the pleadings, but neither court nor jury can say that it is expedient to declare that a law shall be 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.

IV. By the law of Mexico the running waters of California were not dedicated to the common use of all the inhabitants in such sense that they could not be 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 equally 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 were dedicated to the common use of the inhabitants, subject to that legislative control which is the equivalent of the exercise of that legislative power which we know as the police power of the state.”

We understand this to mean that the “inhabitants” of the territory, or at least the occupants of lands in each valley or watershed capable of irrigation from a stream *314 flowing in it, had under the Mexican law a vested interest in the common use for irrigation and like purposes to which the waters were “ dedicated,” which could not be taken away by the legislative power; that the dedication continues to the present hour; that the state 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. United States, 10 Pet. 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, harbors, and islands in Louisiana. Under its auspices the ground where the city of New Orleans now stands was selected as the place for the principal settlement of the province. In 1724 and 1728 maps of the town were made, on which a space on the margin of the Mississippi was designated as a quay. This space was continually used for the purposes to which it was devoted. These, with other circumstances, were held proof of a dedication to the public, in New Orleans v. United States, supra. The ease is in accord with established principles, both of the civil and common law.

It may be conceded that, when under the former gov-eminent property was dedicated to the public use, either by a private person or the nation, the people comprising the public 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 exclusive use of the whole or portions of the waters of a stream from their dedication to the com *315 mon use of all. We shall see that the laws of Mexico authorized the diversion of waters for the exclusive benefit of corporations and individuals under some circumstances. The provisions 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.

And this leads to an inquiry as to the nature of the common use of running waters under the Mexican law.

In the Institutes of Justinian it is declared, concerning things: “ They are the property of some one or no one.” (“Vel in nostro patrimonio vel extra nostrum patrimoniurn.”) “ Some are, by natural right, common to all; some are public; some are of corporate bodies (cities— munieipia); and some belong to no one. Many are the property of individuals, acquired in divers ways,” etc. (Lib. 2, tit. 1.) “The things which by natural law are common to all are these: air, running water (aqua profluens), the sea, and as a consequence, the shores of the sea.” (Id., sec. 1.) “ Flumina autem omnia et portuspiA lica sunt” (Id., sec. 2.) The Roman law distinguished between res-communes and res-publicee. The sea was included amongst the former, the rivers amongst the latter. (Halleck’s International Law, p. 147, notes.) All perennial rivers were public. (Dig. 43, 12, 3.) Such rivers were of the class of things “publico usui destinatee,” like ports and roads. (Moyle's Ed. Insts., p. 184, note.)

The same distinction is recognized by Spanish writers. “ Bienes comunes ” being those which, not being as to property of any, pertain to all as to their use,—as the air, rain-water, the sea and its beaches; “bienes públicos,” those which, as to property, pertain to a people or nation, and, as to their use, to all the individuals of the territory (or district),—such as rivers, shores, ports, and public roads. (Escriche; see also the word “Cosa.”) In Feb *316 rero Novísimo cosas comunes are defined as those “ qui sirven á los hombres y demas vivientes, como el aire, el agua llovediza, el mar y sus riberas.” (T. 1, lib. 2, tit. 1.) Both writers cite law 3, tit. 28, pt. 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, water, the sea and its shores.” (Hall’s Hex. Law, 447.) This is probably a mistake of the printer. The words of the law are “ el ayre, e el mar, las aguas de la lluvia.” Lord Denman remarks that Fleta, enumerating res-communes, omits “ aqua profluens.” (Mason v. Hill, 5 Barn. & Adol. 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 countries where the civil law prevails, seems to be that they belong to the state. (Pollard’s Lessee v. Hagan, 3 How. 212 .) It has been suggested that the claim of ownership by the English crown to the ocean beaches is the remnant of the broader claim once asserted to the narrow seas adjoining the British Islands. (Angelí on Watercourses.) But the modern doctrine which attaches to the sovereignty the property in the sea-shores seems to be derived from Oelsus. (Dig. 4, 3, 8, 3; Moyle’s Insts., p. 183.) By the Mexican law the shores of the sea include the space covered by the flux and reflux of the waters at their greatest altitude, whether in winter or summer. Eseriehe calls the playa “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 treat 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 territory 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 *317 beaches were proprietas nullius, or pertained as to property to the nation.

Whatever the common use to which 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. “Communis omnium est harum rerum usus ad quern natura comparatse sunt, turn siquid earum rerum per naturam occupari potest, id eatenus occupantis fit, quatcnus ea oecupatione usus ille promiscuas non bed i tur.” The common use of rivers would seem to be such as all could enjoy who had access to them as rivers. Vinnius says: “ Unicuique licet in ilumine publico navigare et piscari”; and adds, with respect to running water generally: “Aqua profluens ad lavandum et potandum unicuique jure naturali concessa.” (Cited by Lord Denman in Mason v. Hill, 5 Barn. & Adol. 1.) In Mason 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 territory it is contained; the latter continually changing and incapable, “whilst it is there,” of becoming the subject of property. He adds: “It seems that the Boman 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.”

The common use of the waters, it would seem, existed only while they continued to flow in and constituted a portion 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.

*318 The oceans “propter immensitatem” may be used to their fullest benefit “without any exclusive appropriation, and such appropriation is not necessary for the purposes of society or of advantage to mankind. “Moreover, the use of the sea may be said to be matter of necessity to all those nations who have any part of their territories bounded by it; and as no nation can possibly assert that it is unable to enjoy 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 equally 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 possible in fact) can subject the great sea to his dominion without violating natural law. And the same must be understood of several nations, who cannot, for the same reasons, divide the dominion of the great seas among them. Consequently, no nation can, without infringement of natural law, subject to its dominion the great sea.’” (Bowyer’s Com. on the Modern Civil Law, p. 64, citing the Pandects, Grotius, Puffendorf, Bynkershoek, Wolf’s Jus. Gent.)

The same writer says: “Both Grotius and Puffendorf deduce 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, either 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.”

*319 “ Upon these principles, running waters are held by the Homan juris-consulti to be common to all men. But it also follows that this decision does not apply to waters, the appropriation of which (to the exclusion of the common enjoyment) is necessary for a certain purpose, as water included in a pipe or other vessel for certain uses. The common right to the use of running water therefore applies only to those cases where the quantity of water is so great that its entire exclusive appropriation is not necessary, having regard to the general objects of the institution of property: Grotius, Droit de la Guerre; Puffendorf, Droit de la Nature.” (Bowyer, 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 capable of being fully enjoyed without exclusive possession.” (Bowyer, p. 62.)

Vinnius, in his Commentary on the Institutes above referred to, says those things are common which by nature are devoted to the use of all, and which in “ nullius adhuc ditionein aut dominium pervenerunt,” 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 common until the exigencies of the social state require that they shall be subject to the exclusive use of individuals. Inasmuch, however, as the property is in the nation, such exclusive use can be acquired only with the nation’s consent.

By the Mexican Civil Code of 1870, it is provided: “ The property in waters which pertains to the state does not prejudice the rights which corporations or private individuals may have acquired over them by legitimate title, according to what is established in the special laws respecting public property. The exercise of property in waters is subject to what is provided in the following articles.” (Art. 1066.) In Guerra’s El Codigo Civil, in *320 Forma Didáctica, the word “private” is inserted after the word “ property,” so as to make the last sentence of the article read: “El ejercicio de la propiedad privada de las aguas, esta sujeto,” etc. If, as is suggested by counsel, the presumption is, that the provisions 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 exclusive 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 appropriation as private property, independent of any common use, where the quantity of water is so small as to be incapable of being fully enjoyed without exclusive possession. The exclusive appropriation is put in opposition to the common use. (Bowyer, supra.) Article 789 of the Civil Code defines private property: “All things, the dominion of which pertains legally to private persons, and those which cannot be used without the consent of the owner, are private property.”

The Mexican government prohibited any diversion or obstruction of the waters of a river, by riparian proprietors or others, which should interfere with navigation. Escriche says: “ No puede ningún particular hacer en los ríos ni en sus riberas casa ó otro edificio que embarace la navegación; .... porque la utilidad de to-dos los hombres no se ha de impedir por la de uno solo,” etc. It has been said that rivers 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 confines their use to a certain class of persons. (Febrero.) This of course implies that the sovereign may limit the right of navigation to particular classes. “Notwithstanding the banks of rivers are as to dominion or ownership of those whose lands adjoin, all navigators may use them, by tying their vessels to the trees growing there, landing their mer *321 chandise thereon,” etc. General Halleck says that, by the Roman law, the right to navigate rivers carried with it the right to moor ships to the banks. (International 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 sovereign (except so far as the power is limited by the constitution 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 in-navigable rivers was not thus absolutely prohibited by the Mexican law. The common use of the waters of such rivers by all who could legally 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 purposes for which the social state exists—demands that the use of the whole or portions of the waters should pass as an exclusive 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 diversion of waters from innavigable rivers by those not riparian proprietors, upon such terms and conditions, and with such limitations, as were established by law, or by-usages and customs which had the force of law. That government saw fit to concede private rights to the exclusive use of the waters of such streams. It had power *322 to do this even if the consequence should be the entire deprivation of the common use.

It may be said that the Mexican laws which provided for such concessions to individuals or corporations did not provide for grants to such persons, but were themselves a recognition of a right in all to a use of the waters. But a system which provided for the mode of acquisition of private, separate, and exclusive rights, by individuals or corporations, cannot be said to be merely in regulation of a common use. The common right of passage over a public road, or of navigation of a river, may be regulated by laws which facilitate the general enjoyment of the common use. But under pretense of exercising the common use, where it exists, no one can interfere with its enjoyment by others. Article 803 of the code of 1870—except perhaps with reference to some of the penalties prescribed declaratory of the preexisting law—provides: “ Those who obstruct the common use of public property are subject to the established penalties, to pay all damage and injury caused, and to suffer the loss of the works they shall have made.”

Those who appropriated and diverted the waters of an innavigable river in accordance with the laws obstructed pro tanto its common use. Nevertheless, they acquired an exclusive right to the use of that which they diverted, because, if they complied with the established conditions, their rights were acquired under and in accordance with law., and the waters they diverted were no longer portions <of the waters of a river, or subject to the common use.

No one .of such .had any right in or to the water until .he had complied -with the conditions which authorized him to appropriate it. Every one of such who complied with the conditions, and appropriated water, acquired a vested .right in such water, at least while he continued to use at, except in the single-case where he acquired a right merely conditional,, under'.laws which reserved the power *323 in the agents of the state or municipality to deprive him of it without indemnification. It may be conceded that one who had acquired the right to the exclusive use of a portion of the waters of a river under the Mexican regime could not be deprived of his right by a law of California. But can it be said that all the inhabitants of the state, or of a valley through which a stream flows, have such a vested right in the use of the waters which some of them (on performance of the conditions prescribed by Mexican law) might have appropriated, but never did appropriate?—this on the theory that the waters had been dedicated to the common use of all. It would be a dedication never accepted by those to whom it was made, and a dedication to a common use which could never be enjoyed in common.

Those who had not appropriated waters iii the mode prescribed had no right or property in the water or its use, of which they would be deprived by subsequent legislation conferring the use of the waters on riparian proprietors alone. And it would seem very clear that those who actually appropriated water, in compliance with the conditions prescribed, acquired a proprietary interest of which they could not be deprived—at least while they continued its use—except on sufficient indemnification. It cannot be presumed that, under a constitution which declares, in as distinct terms as does our own, that private property shall not be taken, except on due compensation, the legislature attempted to authorize an arbitrary deprivation of property rights acquired by expenditures invited by the laws themselves. At common law if a navigable river should happen to change its course, the right of navigation extends wheresoever the channel should run. (Woolrych, 288.) And by the Civil Code of 1870 rivers and their beds (álveos) are declared to be public property of common use. (Sec. 802.) But the property of the nation in the space subjacent to the river ceases when that space ceases to be *324 the bed. “When a river varies its course, the owners of the fields or estates newly covered by the waters lose the space which the river occupies, and the riparian proprietor of the abandoned bed acquires the part in front of his land to the middle of the bed,” etc. (Civil Code 1870, art. 897; see also Escriche, Aguas and Rio.) “The islands which are formed in rivers not navigable or flotable, belong to the proprietors of both banks proportion-ably with the extension of the front of each estate along the river, drawing a dividing line through the middle of the bed,” (Art. 900.)

Thus the property of the nation is in the river and its bed, while it is the bed of the river; the common use continues while the water is the water of a river. But a private right to the exclusive use of the waters could be acquired under the Mexican law by prescription, or on compliance with the established conditions; and the general property of the nation in running waters did not prejudice such special private rights.

Conceding the provisions of the Civil Codes of 1870 and 1884 to be declaratory of the law as it existed when California was ceded to the United States, they do not confer nor recognize any inherent vested right, enforceable in the courts, in others than riparian proprietors, to the use of any portion of the waters of a stream, nor any right, except as to those who actually appropriate waters in the manner and on the conditions prescribed by the laws. It may be that the Mexican system implies a recognition of an imperfect obligation or moral duty on the part of the government to provide for the distribution of the waters in such manner as to encourage the settlement of the country, develop manufactures, and benefit agriculture. In this view it would seem that the laws were inspired with a liberal spirit, and were well calculated to advance those objects.

By the codes the owner of an estate in which there is a natural spring may use or dispose of its waters, subject

*325 only to condemnation for public use on compensation to the owner. (Art. 1056 of, the code of 1870.) Such was the law previously, —the spring was his as part of his land. (Escriche, Aguas.) By article 1066 of the same code the property of the state does not prejudice the rights over waters acquired by individuals or corporations, “by legitimate title, according to what is established by the special laws.” That article declares that the exercise of private property in waters is subject to what is provided in articles 1067, 1068, and 1069. The two first of these prohibit any diversion which shall interfere with navigation. Article 1069 declares: “The owner (el propietario) of water, whatever may be his title, cannot impede the use (el abasto) that may be necessary for the persons or cattle of a possession or rural estate, nor oppose the construction of indispensable works to satisfy this necessity in the manner least injurious to the owner, but he shall have a right to indemnification” (“ por los perjuicios que por tal motivo se le causen ”—Guerra), “ save that the inhabitants shall have acquired the use of the water by prescription or other legal title. ”

Article 966 of the code of 1884 is a substitute for articles 1067-1069 of the code of 1870. In that article it is said: “He who, in conformity with the preceding article” (he who has acquired a private property to waters, by legitimate title, according to what is established in the special laws ?), “ may be using the waters of a river cannot impede,” etc. Article 1073 of the code of 1870 is: “Every one wh'o wishes to use the water of which he can dispose has a right to cause it to pass through intermediate grounds, with the obligation of indemnifying their owners, as well also as those who own the lower lands on or through which the waters may filter or fall.” (“Asi como también á los de las predias inferiores sobre que se filtren ó caigan las aguas.”) We understand the last class to be those whose lands are injured by the water after it has been diverted.

*326 The article treats of a legal servitude which without agreement or prescription, hut simply as a consequence of the respective positions of the estates (art. 1056), is imposed on lands situated between the river and the tract or place to which the water is conducted. It does not purport to give the absolute right, without regard to the conditions provided by laws, or administrative regulations under the laws, to divert waters of a river by one separated from it by other lands, nor define the mode by which rights thus to divert may be gained.

The laws of Mexico relating to pueblos conferred on the town authorities the power of distributing, to the common lands and to its inhabitants, the waters of an innavigable river on which the pueblo was situated. It is not necessary to say that the property of the nation in the river, as such, was transferred to the pueblo, but it would seem that a species of right to the use of all its waters necessary to supply the domestic wants of the pobladores, the irrigable lands and the mills and manufactories within the general limits, was vested in the pueblo authorities, subject to the trust of distributing them for the benefit of the settlers.

A translation of the plan of Pitic is annexed to Dwinelle’s Colonial History of San Francisco. (Addendum, No. 7.) The original is not before us. Whether the plan of Pitic is or is not a scheme in all. respects applicable to every pueblo created after the date, November 14, 1789 (as is claimed by counsel), it may be conceded the provisions therein contained were, in substance, those having force in the pueblos established in California while it was part of the territory of Mexico.

The plan authorized a commissioner, after the measurement of the exterior lines of the four leagues, to set apart the ejidos, poprios, etc:, and to distribute the remaining lands to the settlers in separate tracts.

The nineteenth and twentieth sections of the plan read:—

*327 “ Nineteenth—The advantage of irrigation being the principal means of fertilizing the lands, and the most conducive to the increase of the settlement, the commissioner shall take particular care to distribute the waters so that all the land that may be irrigable might partake of them, especially at the seasons of spring and summer, when they are most necessary to the cultivated land in order to insure the crops, for which purpose, availing himself of skillful or intelligent persons, he shall divide the territory into districts (partidos) or hereditaments, marking out to each one a trench or ditch, starting from the main source, with the quantity of water which might be regulated as sufficient for its irrigation, at the said periods and at the other seasons of the year that they may need them, by which means each settler shall know the trench or ditch by which his hereditament shall be irrigated; and that he cannot and shall not have the power to take the water of another, nor in a greater quantity than that which may fall to his share, for which purpose and that it may not increase in injury to the owners situated on the land beyond or still lower, it shall be proper for the trenches or partitions to be constructed in the main ditch made of lime and stone at the cost of the settlers themselves.

“ Twentieth — In order that these (the settlers) might enjoy with equity and justice the benefit of the waters in proportion to the need of their respective crops, there shall be named annually by the ayuntamiento one alcalde (or mandador) for each trench, to whose charge shall fall the care of distributing them in the estates (heredades) comprised in the ‘ partido ’ or hereditament, which shall be irrigated by them in proportion to their need for this benefit, designating by a list which he shall make out the hours of day and night at which each owner (here-dado) shall irrigate his lands sown with grain; and in order that by the carelessness or indolence of the owners (dueños), those (the lands) that may need them shall not *328 remain without irrigation, nor the crops be lost, whereby independent of the private injury may also result that of the public and community, produced by the want of provisions and supplies, it shall also come within the duty of the alcalde, or mandador, for each trench to have a servant (peon) or day laborer, knowing the hour of the day or night designated for the irrigation of each tract of land or corn-field, who, in default of its owner, shall take care to irrigate it; the just price of his labor, which shall be caused to be paid to him by the owner of the land or estate (heredad) irrigated, to be thereafter regulated by the commissioner or by the justice.”

In Hart v. Burnett, 15 Cal. 530 , it was held that the pueblo had a “certain right or title” to-the lands within its general limits, notwithstanding the fact that the Mexican government retained the power to make grants within those limits; that the pueblo authorities were more than mere agents of the government to dispose of the lands as public lands, but the pueblo itself had a vested interest in the lands, and that the portions of such lands not set aside or dedicated to common uses, or for special purposes, could be granted in lots by the municipal officers to private persons in full ownership; that the city of San Francisco succeeded to the right or title of the pueblo, and that the municipal lands to which it thus succeeded were held in trust for the public use of the city, and were not subject to seizure and sale under execution issued on a judgment against the city; that the property and trusts were public and municipal in their nature, were within the supervision and control of the state sovereignty, and the federal government had no such supervision or control; that the act of the state legislature of March, 1858, confirming the so-called Van Ness Ordinance, was a legal and proper exercise of this sovereign power.

By analogy and in conformity with the principles of that decision, we hold the pueblos had a species of prop *329 erty in the flowing waters within their limits, or “ a certain right or title ” in their use, in trust to be distributed to the common lands, and to the lands originally set apart to the settlers, or subsequently granted by the municipal authorities. It may be conceded that such authorities were not authorized to make concessions to individuals of the perpetual and exclusive use of portions of the waters, without reference to the needs of the other inhabitants; or that such concessions would be an abuse of the trust. But they had a species of right or title in the waters and their use, subject to the public trust of continuously distributing the use in just proportion. The trust is within the supervision and control of the state. Thus the legislature has provided for the mode and manner in which shall be exercised the trust of distributing the waters by the city, the successor of the pueblo of Los Angeles. The inhabitants of the former pueblo who were using water when this territory was transferred to the United States had not acquired a vested right to any particular quantity of water. And the occupants of lands within the city, the pueblo’s successor, are beneficiaries only to the extent that they are entitled to the use of such water and at such times as accords with the laws regulating the public and municipal trust.

Each pueblo was quasi a public corporation. By the scheme of the Mexican law it was treated as an entity, or person, having a right as such, and by reason of its title to the four leagues of land, to the use of the waters of the river on which it was situated, while as a political body, it was vested with power, by ordinance, to provide for a distribution of the waters to those for whose benefit the right and power were conferred.

Escriche deduces from law eight, title twenty-eight, and law eighteen, title thirty-two,—partida three,—and from writers basing their opinion on those laws and the Homan laws, that any inhabitant of. a pueblo through which *330 passed an innavigable river might extract a part of its waters, and construct an acequia in order to irrigate his land, or to run his mill, provided he could do so “without prejudice to the common use or destiny which the pueblo shall have given the waters; with the understanding that if the acequia shall cross the land of another, or the crown lands, or the land common to the inhabitants of the pueblo, a license from the private owner, or from the king, or from the town council is indispensable.” (“Bajo el supuesto de que si la acequia hubiese de atravesar suelo ajeno, realengo ó concejil,” etc. Escriche, “Acequia.”)

Thus by virtue of the laws each person having land within the pueblos was permitted to conduct water to it (obtaining the consent of the owners of the lands between his and the river), provided, by so doing he did not violate the municipal ordinances giving destination or distributive use to the waters.

By its terms this permission was-accorded only to the inhabitants of the pueblo, and could be acted on only in such manner as should not interfere with municipal ordinances.

After speaking of springs rising in a man’s land, which are his property, Escriche says: “Waters belong to the public which are not and cannot [thus?] be private property. Such are the waters of rivers which, by themselves, or by accession with others, pursue their course to the ocean.' They may be navigable or not navigable. If navigable no one can avail himself of the waters so as to embarrass or hinder navigation. If not navigable, the owners of the lands through which they pass may use the waters thereof for the utility of their farms or industry, without prejudice to the common use or destiny which the pueblos on their course shall have given them, and with the modifications provided in the laws, orders, and decrees which are spoken of under the word “acequia.” (“Aguas”—“De las aguas que pertenecen al publico.”)

*331 And in treating of “ waters which pass by the side or through an estate,” the same writer says: “ The use of waters of which no one can avail himself without a license from the authority is to be regulated (debe arreglarse) by municipal ordinances, or by the usages and customs of the country.” (Los usos y costumbres,— general and long-continued practices which have acquired the force of law.) “ But in default of ordinances and customs, equity, and the interests of agriculture, dictate the following rules.” He proceeds: “ The waters of fountains and springs are the property of the owners of the lands on which they rise; .... but as they go out from thence they become running waters, aqua profluens, and pertain like common things (cosas comunes) to the first who occupies them, so far as he has need of them. The first who can occupy them are the owners of the estates which they bathe or cross.” He then treats of the rights of riparian proprietors to the use of the waters as between themselves.

From the foregoing it appears that the riparian proprietor could not appropriate water in such manner as should interfere with the common use or destiny which a pueblo on the stream should have given to the waters; and semble* that the pueblos had a preference or prior right to consume the waters even as against an upper riparian proprietor. The common use here spoken of is the use for the benefit of the community or inhabitants of the pueblo, whose interests as a whole were to be considered in the distribution of the waters by the officers of the pueblo. (Plan of Pitic, sec. 20.) It is not necessary here to decide that the pueblos had the preference above suggested. Nor is it necessary here to speak of the relative rights of two or more municipalities on the same stream. In such case (whatever the standard by which were to be determined the relative rights of the pueblos respectively as to quantity of water), it would seem clear that the municipal regulations of each, with *332 respect to the application and distribution of water, would be of force only within its own boundaries. But there could be no municipal ordinance of a pueblo regulating or distributing the waters of a stream amongst its inhabitants, or other persons, until a pueblo was estab-' lished. We take notice that- no pueblo existed on the watercourse (if any there be) which is the subject of the present controversy. No portion of its waters were therefore dedicated or devoted to the use of the inhabitants of a pueblo by virtue of the laws giving to pueblos the power of distributing waters.

Turning now to the “laws, orders, and decrees,” under the word “ acequia,” to which we are referred by Escriche:-—-

In the instructions of May 15, 1788, to corregidores (magistrates with a species of supervision over matters political and economical in pueblos and districts) and superior (appointed) alcaldes, 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 construction of acequias from the rivers, draining them in the parts most convenient, without prejudice to their course and to the lower districts, and taking care also to discover subterranean waters in order to use them, “ as well as for flour-mills, fulling mills, and other necessary and convenient machinery for grinding,” etc. (Nov. Recopilacion, tom. 3, tit. 11, lib. 7, law 27, sec. 48; Hall’s Mex. Law, sec. 1402.)

By the royal decree of the 31st of August, 1819, favors were extended to ayuntamientos, communities, companies, and individuals, who, “with the previous corresponding permission of the government” should construct at their own cost ditches or canals for new irrigations, taking water from rivers which afford an abundant 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 *333 favors extended by the decree are enumerated by Escriche, and consisted in the main of remission 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: “Notwithstanding what has been said, no individual or corporation can withdraw from their source, or on their course, the waters of springs or rivers that from ancient times have irrigated 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 operative in Mexico. Upon principles recognized by the Mexican law, however, no one could be deprived of a right to the use acquired by prescription to waters actually employed by him, and it would appear also by the Mexican code no owner of water, “whatever his title,” can entirely deprive of water a lower estate. Besides, the decree permitted the construction of ditches for “new irrigations,” and speaks of rivers carrying great quantities of water. We are not prepared to say but that, even where the common law prevails, provision may be made for the storing and distribution of waters, the result of extraordinary floods caused by the melting of the snows, or long-continued and heavy rains in the mountains or near the source of a river, since such an extraordinary freshet would not be the ordinary flow of the stream. However this may be, water could not be diverted — under the decree referred to—by an ayuntamiento, community, company, or individual, not a riparian proprietor, without “the previous corresponding permission of the government.”

Thus the waters of innavigable rivers, while they continued such, were subject to the common use of all who could legally gain access to them for purposes necessary to the support of life, but the Mexican government possessed the power of retaining the waters in their natural *334 channel, or of conceding the exclusive use of portions of them to individuals or corporations, upon such terms and conditions, and with such limitations, as it saw fit to establish by law.

The respondent here is not the successor in interest of an individual or corporation which acquired a property in the exclusive use of waters by compliance with the conditions prescribed by the laws of Mexico, or in accordance with municipal ordinances or regulations, or under any custom of the country. No city or pueblo existed on the alleged stream, and at the trial hereof no evidence was given of any special or general custom with respect to-the particular stream or with respect to all rivers in California. No general custom existed. Moreover, if it had ever existed it would have continued only until abrogated by legislation.

It has sometimes been claimed that, by the modern civil law, the proprietor of land in which is the source of a stream may capture and absolutely control the waters, even after they have flowed beyond his boundaries, in a natural stream. But Lord Kingsdown (in Miner v. Gilmour, 12 Moore’s P. C. 131) said it did not appear that, as to riparian rights, any material distinction exists between the French law (prior to the Code Napoleon) and the English law. Sir James Colvile refused to admit that, by the Dutch-Roman law which governs in the Cape of Good Hope Colony, the riparian right of a lower proprietor would not attach upon water which flowed, in a known and definite channel, beyond the boundaries of the land within, which its fountain arose. (Breda v. Silberbaur, L. R. 3 P. C. 94.) In a very late case before the Privy Council, on appeal from the Supreme Court of the Cape of Good Hope, it was said to be probable, that, by the Dutch-Roman law, the dominion of the owner of the source of a stream was subject, to the rights which the English law recognizes in riparian proprietors to water flowing in a known and definite channel. (Comm’rs of Hoek v. Hugo, L. R. 10 Ap. 345 .)

*335 V. Upon the admission of California into the Union, this state became vested with all the rights, sovereignty, and jurisdiction in and over navigable waters, and the soils under them, which 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 reserved or purchased for forts, 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 interfered with.

Between the transfer of California to the United States, by the treaty of Guadalupe Hidalgo, and the admission of this state into the Union, no territorial government was here established. The purely municipal law of Mexico continued in force within this territory until modified or entirely changed by appropriate authority.

By the treaty, the public property of Mexico passed to the United States. It would seem that the latter accepted the cession of the property and sovereign rights in trust (arising out of the very nature of our government) to hold for the state or states which might be subsequently formed out of the territory. Whether so or not, California was admitted into the Union, “ upon an equal footing" with the original thirteen states, and from that date she became seised of all the rights of sovereignty, jurisdiction, and eminent domain which those states possessed.

When the Revolution took place, the people of each state became themselves sovereign, and in that character held the absolute right to all their navigable waters and the soils under them, subject only to the rights since surrendered by the constitution to the general government. (Martin v. Waddell, 16 Pet. 410 .)

The navigable waters and the soils under them were not granted to the United States by any of the original states, but were reserved to the states respectively; and *336 the new states have the same rights, sovereignty, and jurisdiction over this subject as the original states. (Pollard’s Lessee v. Hagan, 3 How. 212 .)

The lands of the United States (not reserved or purchased for fortifications, etc.) are held, since the admission of the state into the Union, as are held the lands of private persons, with the exception that they are .not taxable, by reason of the contract to that effect. Of course the state cannot interfere with the primary disposition of such lands by their owners.

September 9, 1850, the act of Congress was approved, admitting the state of California into the Union “on an equal footing with the original states in all respects whatever,” with the conditions that the state should never interfere with the primary disposal of the public lands within its limits, nor tax them, and that the navigable rivers should be public highways as to citizens of all the states. (9 Stats, at Large, p. 453.)

VI. Since if not before the admission of California into the Union, the United States has been the owner of all innavigable streams on the public lands of the United States, ivithin our borders, and of their banks and beds.

A grant of public 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 authorizing the patent or other muniment of title.

The original states only retained property in the navigable rivers (subject to their free navigation by the citizens of all the states) and the subjacent soils, because, by the common law which prevailed in those states, innavigable streams were private, and their beds the property of riparian proprietors. By the Mexican law, however, innavigable streams were public property. It might be claimed that, as this property of the Mexican nation in non-navigable rivers and their beds was an incident to *337 the sovereignty, it became vested in the state of California when the state was admitted into the Union. If this were admitted, it would follow that the United States has had no property in innavigable streams, their beds and waters, and all attempts to deraign a title from the United States to waters appropriated on public lands —under the act of Congress of 1866, or otherwise — must fail.

It may be maintained, at least plausibly, that the admission of California into the Union, “on an equal footing with the original states,” of itself operated an immediate transfer of the property in the innavigable rivers to the federal government, so that the property of the state was momentary. However this may be, on the 13th of April, 1850, the legislature of California had passed an act “adopting the common law,” which reads: “The common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of the state of California, shall be the rule of decision in all the courts of this state.” (Stats. 1850, p. 219.) The validity of the acts of the first legislature of California, or of rights acquired under them, even prior to the admission of the state, has never been questioned. Certainly, when constitutional, those acts became valid and in operation for every purpose from the date of the admission of the state into the Union.

It is urged that the statute quoted was designed and intended simply to furnish a rule of decision for the courts as to rights vested under other laws. We have endeavored to show that during the Mexican rule “ all the inhabitants” of the territory did not acquire a vested right to the use of all the waters by virtue of their dedication to common use. If such right had vested, the peculiar language of the statute would not have affected the question. If there is any ambiguity, arising out of the use of the words “rule of decision” in the body of the act, we can refer to its title, “An act adopting the common law.” And *338 reading the act, “the common law of England is hereby adopted,” etc., the act did not and could not operate to divest property rights previously acquired by private persons, nor any right of common use fixed by previous dedication.

But while vested rights could not be taken away, yet if the innavigable rivers and their beds belonged to the state when admitted into the Union, the state could grant or surrender them to the riparian proprietors, of whom the United States was one. Giving full force to the propoosition that a grant by the state should be construed more strongly against the grantee, we think in view of the purpose of the act (to adopt the appropriate rules of the common law as determinative rules when not in conflict with the constitutions and statutes), and of the subsequent judicial history of the state, the act of April 13, 1850, should now be held to have operated (at least from the admission into the Union) a transfer or surrender to all riparian proprietors, of the property of the state—if any she had—in innavigable streams and the soils below them.

It has often been held by this court and its predecessors that a grant of a tract of land bounded by a river or creek not navigable conveys the land to the thread of the stream. And from a very early day the courts of this state have considered the United States government as the owner of such running waters on the public lands of the United States, and of their beds. Recognizing the United States as the owner of the lands and waters, and as therefore authorized to permit the occupation or diversion of the waters as distinct from the lands, the state courts have treated the prior appropriator of water on the public lands of the United States as having a better right than a subsequent appropriator, on the theory that the appropriation was allowed or licensed by the United States. It has never been held that the right to appropriate waters on the public lands of the United States *339 was derived directly from the state of California as the owner of innavigable streams and their beds. ■ And since the act of Congress granting or recognizing a property in the waters actually diverted and usefully 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 general 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 consequence 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 enactments of the Civil Code with respect to appropriations of water, the rights to the use of water by private riparian proprietors, as between' themselves, have repeatedly been judicially determined by reference to the common-law rules on the subject, which—as is said by counsel—differ somewhat 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 appropriate common-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 different *340 rights than other riparian owners, including its own grantees.

The government of the United States has the absolute and perfect title to its lands. (United States v. Gear, 3 How. 120 ; Jourdan v. Barrett, 4 How. 185 ; U. S. v. Hughes, 11 How. 568 ; Irvine v. Marshall, 20 How. 561 ; Bagnell v. Broderick, 13 Pet. 450 ; U. S. v. Gratiot, 14 Pet. 526 .) Unless, therefore, running waters are reserved, they pass by grant or patent of the United States. It was so held in Vansickle v. Haines, 7 Nev. 259 . The Supreme Court of Nevada cite Cook v. Foster, 2 Gilm. 652 ; Wilson v. McGhee, 12 Ill. 381 ; and Calvin v. Burnett, 2 Hill, 620 ; and quote with approval the language of Mr. Angell, who says:—

“The only mode by which a right of property in a watercourse above tide-water can be withheld from a person who receives a grant of the land is by a reservation directly expressed or clearly implied to such effect. If the intention of the grantor is not to convey any interest in the water, he can exclude it by the insertion in the instrument of conveyance of proper words for the purpose of doing so; but in the absence of such words the bed, and consequently the stream itself, passes by the conveyance.” (Vansickle v. Haines, 7 Nev. 266 .)

Whatever may be the weight as authority of Van-sickle v. Haines in other respects, the statement 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 owner of the swamp-lands described in the complaint herein, on the twenty-eighth day of September, 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 en *341 able the state of Arkansas and other states to reclaim the swamp and overflowed lands within their limits,” which reads:—

“ Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that to enable the state of Arkansas to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed 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 act, 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 disposal 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 purposes 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 *342 defendant that the lands had not been duly listed to the átate prior to the certificates of purchase offered in evidence. Even if it had been made to appear that the lands 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 September 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 “ previously sold or disposed of.” (See Railroad Company v. Fremont County, 9 Wall. 89 .) But the case clearly recognizes the act of 1850 as a grant to the state in prsesenti of the lands which should subsequently be listed as swamp and overflowed, by the Secretary of the Interior, or which should be proved to be such.

In the subsequent case, French v. Fyan, 93 U. S. 173 , it was expressly said that nothing was decided in conflict with Railroad Company v. Smith; the Supreme Court saying 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 controversy was in fact swamp and overflowed should have been rejected. In French v. Fyan it was held that the determination' 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 permitted to prove that the land was not swamp-land. 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-land act was a grant in prsesenti, 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, *343 relates back to the date of the act granting the lands. And so when the character of the land appears from the evidence identifying it as swamp and overflowed, it is established that the title to the particular land was vested in the state September 28, 1850,—the date of the act granting all the swamp and overflowed lands. But such evidence that the land is swamp and overflowed is admissible in ejectment only where the Secretary of the Interior has failed to act, and is not admissible to overcome the effect of a patent issued to a settler under the pre-emption laws. (Ehrhardt v. Hogaboom, 115 U. S. 67 .)

The state then had the title to the lands described in the complaint herein from the date of the act referred to until the sale of the same to the plaintiffs or their assignors.

Note.—We have deemed it unnecessary to consider (under a separate head) the suggestion either that there cannot be a watercourse through swamp-land, or that the defendant was empowered to drain the plaintiffs’ lands for them, and in doing so, to divert a flowing stream from the lands of plaintiffs, and from all the lands lying on the stream above or below the plaintiffs’ lands. The state took the swamp-lands with the political obligation to reclaim them after they were sold. It may be doubted whether the implied promise on the part of the state, to apply the proceeds of sales of such lands exclusively to their reclamation, was legally a condition subsequent, the failure 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 power 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 the United States, *344 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 reclamation, the barring of the flow of a regular and defined stream from lands below, not swamp, is contera- * plated; or whether the state would have power, 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 appropriation of the water on the public lands of the United States (made after the act of Congress of July 26, 1866, or the Amendatory Act of '1870) gave to the appropriator the right to the water appropriated, as against a grantee of riparian lands under a grant made or issued prior to the act of 1866; except in a case where the water so subsequently appropriated was 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 appropriation 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.

In Vansickle v. Haines, 7 Nev. 259 , the plaintiff had diverted one fourth of the water of Daggett Greek in the . year 1857. He made the diversion at a point then on the public land, hut which in 1864 was patented by the *345 United States to the defendant Haines. In 1865 Van-sickle 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

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