ing appropriators' rights correlative, carrying apportionment in times of deficiency, is going on in conservative courts without causing disturbance, and, rather, with approval.

Conceding then, as it seems we must, that the idea of apportioning deficiency among existing users has nothing inherently dangerous, a serious question arises whether it would not, in practice, work back to the basis of priority of its own accord. A cogent illustration might be put. Assuming that the reader favors correlative apportionment on the lines just discussed, this case may be put. Suppose a water supply enough in dry years for 1000 acres. Suppose, for illustration, riparian rights did not exist. One hundred men take out the water and use it on 1000 acres. They plant trees and vines, and after six or seven years they have profitable farms and support their families in comfort. A few wet seasons ensue and the supply doubles. Along come 100 more men, who take the increase and use it on 1000 acres. The result would be that when the dry years come they would continue to take half of the water, depriving the first-comers and killing half their trees. After half their trees are killed again there would be but 1000 acres watered, but now divided among 200 families, twice the former number. None of them would again plant more acreage in trees, even in wet years; one loss of half their fortune would be lesson enough. So that where, before, there were 100 families with 10 acres each, there are now simply 200 families with 5 acres each. Assuming that originally it required 10 acres to support a family, then the 5 acres each now has would not do it. There would be a struggle for existence, the weaker would sell out, and in a few years 100 men would again have 1000 acres wet and 1000 acres would be dry. Human nature is so constituted and the strife for land is so fierce that this discounting process would inevitably take place. It is simply a matter of time until the scheme of apportionment defeats itself in practice.

This is a serious consideration. The picture is a true one and the conclusion cannot be denied. But, as put, it is not a normal case, and hence not an illustration of general application. It is not normal because it involves two assumptions that are out of the normal; that is, first it assumes unusually wet years to

Pac. 1039 (1911); Cantrall v. Sterling Mining Co., 61 Ore. 516, 122 Pac. 42 (1912); McCoy. Huntley, 60 Ore. 372, 119 Pac. 481 (1911).

begin the illustration, and second a cycle of dry years to finish it. For a general illustration it should begin with assuming normal years rather than unusually wet years. We will then be considering only the users of water who were drawn there by the normal supply. The number of users would not be swollen by unusual conditions. We should also finish without assuming a prolonged cycle of dry years, as shortages do not go over a year or two as a rule. We have had cycles of dry years, lasting ten years or so, but that is exceptional. Apportionment may still effectually carry over a single dry year, or even two dry years. I rather think the movement of farm ownership is not so quick as that, and in the ordinary run of cases the normal supply will have returned before much change of ownership has resulted; so that I think apportionment of deficiency would work out as intended, oftener than it would defeat itself, among appropriators from streams, just as much as among riparian owners, users of percolating water, and consumers from public-service canals, in all of which cases the rule of apportionment is now the law of California, at least.

For the purpose of this discussion, however, I do not undertake to further press either side of the matter. It has served to bring out the first aspect of the difference between the system of prior appropriation and the common law system of riparian rights, namely, that between existing users the former gives exclusive prior rights to the prior appropriator and his descendants and successors, while the latter is a system of correlative rights between all landowners along the stream without regard to priority.

To pass on, I assume, for the purpose of carrying the matter to new ground, that the correlative system is taken as preferable upon full-settled streams, and that the law of prior appropriation is being modified to enforce a pro-rating of the supply among existing users in times of deficiency. By this modification, the idea of 'common right" in water with which the law of prior appropriation started out, but seemed to contravene in times of deficiency, is to a considerable extent revived and given continued force, but yet not to the fullest extent of the matter, because it has still left out the idea of new parties getting new rights in the stream. Even if existing users are placed upon an equality instead of priority, the water will still be devoted to only a comparatively small part of the community living within the drainage region. If the water

is common to all, then, to carry out the idea of common right consistently, newcomers would have to be admitted to the use of the common supply, even though the supply is already in full use by others. The others would have to give up pro rata, and apportion some to newcomers. This has never, so far as I can now recall, been advocated, as between appropriators, anywhere in the West. On the contrary, it has been strongly condemned and ruled against, both in the courts and by others." It would be bare socialism if it were extensively done. Nevertheless, the idea of "common right" in water is not complete unless it is done, and for developing the discussion I will consider what would be the result if it were done.

Suppose that we intend to force an apportionment of the supply of existing users, in order to admit new users into an already fully used supply. We immediately meet the obstacle that the newcomer, desiring to exercise the common right in water, must have some means of getting at the water. If he owns no land bordering thereon, he must cross the bordering land of others to get there. Streams, of course, are wholly enclosed from source to mouth by somebody's land. There is no land in the state without some owner.

11 "To compel such a subdivision and distribution of water supplies as this construction would entail, would destroy the value of all water-rights. In this state the water supply is so small that large areas must go without irrigation entirely. Such water as there is must be applied, so far as it will go, in quantities sufficient to make the lands profitably productive. The principal benefit of irrigation comes from its use in growing vineyards and orchards. These require a large expenditure and a permanent water supply to make them profitable. If those engaging in such enterprises know that they must be ready always to divide their water supply with those in the vicinity who may subsequently choose to engage therein, such enterprise would be discouraged, the development, growth and progress of the state would be much retarded, and its productive capacity greatly decreased." Thayer v. California Development Co., 164 Cal. 117, 128 Pac. 21 (1912).

"This commission should take good care that, until these applicants improve their system, they admit no new domestic consumers except on the terms indicated, and that they admit no more irrigation consumers whatsoever. This is the kind of priority to which (we have heretofore held) being a member of a class for which a public use of water is created entitles such member of such class, and he should be absolutely protected and his supply never diminished by additions to the class, but merely by necessary and unavoidable failure of supply." In the matter of the application of Murray and Fletcher, 2 Cal. Ry. Com., 464 at 524.

The Railroad Commission had a statute passed thereafter confirming its power to make such order. Cal. Stat. 1913, Ch. 80, § 5. See Mordecai v. Madera Canal Co., Cal. R. R. Com. Dec. No. 1116, decided December 5; 1913.

That owner may be a farmer, or landed estate. It may be the United States, whose public domain covers one-half of California. Consequently the newcomer, demanding to be admitted into the use of the stream, if he owns land separated from the stream by the land of some other person, must get permission from that other person to cross the intervening land to get at the water that is to be apportioned to him. He must buy a right of access to the water in order to be admitted into a share of the common supply. To hold otherwise would mean not only "common right" in water, but common right to build ditches over anyone's land, and would mean common right in land as well as water. So long as there is individual property in land, this must be absolutely repudiated, and although it was once flirted with in Colorado, it is now disallowed there and in all other states, even those such as Colorado and Idaho, which have talked most of an ideal system of absolutely free enjoyment and appropriation of water. As a late example merely, I quote from the Supreme Court of Idaho:

It is the appellant's right, by reason of his ownership of the land, to have exclusive possession of said land, and said owner is protected against any right that is attempted to be acquired by trespass thereon in the way of an attempt to appropriate the water running across said land, and neither the respondent nor any other person can divert such water without entering upon and leading it across the lands of the appellant, or using the lands of the appellant in distributing the power created by the use of such water, and committing a continuing trespass upon the premises of the appellant." 12

Therefore, no matter what the law of waters may try to give, persons owning no bordering land of their own rest for an essential (the right of access) upon what they can buy, not upon common right. What they have is inextricably bound in with purchase; the law of common right in water is helpless to include them of its own force.

But the people bordering upon the stream are under no such impediment. They have natural access by force of their natural situation itself. The stream is right there for them to get at, and the common right in water is available to all of them without hindrance. As a system of law of "common right," then, carried to

12 Marshall v. Niagara etc. Co., 22 Idaho, 144, 125 Pac. 208 (1912).

its conclusion, the owners of the enclosing bordering lands must be admitted as of common right at any time, and they exhaust the persons for whom admission can be demanded as of common right.

This is what takes place under the riparian system. The riparian system, regarding all landowners bordering upon the stream as upon an equal footing, enforces the admission of riparian owners, into the use with other riparian owners, although the one to be admitted never before used the water, and no matter how long he had failed to use the water (except, of course, in cases of prescription). And likewise the common law excludes non-riparian owners no matter how long the opposing riparian owner has failed to use the water himself. The common law keeps out non-riparian owners because there is no common right in land to give them access to the stream, and it forces the admission of riparian owners at any time, even though the supply is already in full use by other riparian owners, because they are on an equality with each other, and non-use is in either case immaterial. The riparian owners get the water as of common right, and what is of common right may, of course, be enjoyed at any time.

Is the riparian law socialism? The riparian law not only apportions deficiency among all existing users, but also forces admission into the use of future new riparian users at any time. It places all users upon an equality. Prior appropriation, on the other hand, is every man for himself, and is individualism in the highest degree. Is the riparian doctrine socialism? It certainly presses the idea of "common right" to its completion, and could not extend further in that direction so far as the water is concerned. It could be extended only by introducing "common right" in land too.

The riparian system has met with a flood of denunciation in the West. Half the Western courts, under what is called the "Colorado doctrine," have rejected it absolutely, calling it a "phantom" and the like, and part of the water bill now pending in California aims at abolishing it. Part of this loathing, one might almost call it, is due to its distortion when applied in an unsettled region, especially where there are large holdings of bordering land in a few hands, as in the case of Mexican grants in California. Such abnormal situations twist the system and make it as exclusive for a few owners, even though not using the water, as prior appropria