eignty from France, Spain, and Mexico. The civil law is itself native to the arid lands of southern Europe, and its construction of the law of waters is accordingly in marked contrast to that of the English law. However, a loose application of the principles of the civil law under Mexican administration was not of itself sufficient to substantiate present juristic doctrines of the arid country. Even in the cosmopolitan settlements of the early West, a dominating respect for English legal principles was apparent. The significant factor of the situation lies in the fact that, in the absence of an effective ultra-conservative element, society found itself in the position of choosing from the two historic systems of jurisprudence the parts of each best suited to its economic needs. With regard to the law of inland waters, the choice of legal principles was deliberate, and the rapid development and elaboration of these principles has been generally quite positive in the recognition of a scientific relativity of law, economic expedience, and social welfare.

8

The political divisions of the arid West, in both Canada and the United States, have abrogated the common law doctrine of rights in inland waters by constitutional provision, statute, or judicial decision. The States have been free to act for themselves upon the question of water rights within their boundaries, but the status of rights in interstate streams, especially where the States concerned are partisan in their attitude upon principles of riparian rights, presents a problem of no small significance and one whose solution is delegated to the

* In the seven arid States (see note 2), with the exception of California and Nevada, and in the Northwest Territories the abrogation of the common law doctrine was accomplished by statute or constitutional provision. California nominally retains the common law. Nevada, after having followed California's common law precedents for many years, through the supreme court, reversed all previous holdings, as being irrelevant to existing climatic conditions (Jones v. Adams, 1885, 19 Nev., 78; Bliss v. Grayson, 1889, 56 Pac., 231), which decision has since been enacted into statute. In California and the several States of the semi-arid belt, the common law of water rights has been so distorted by statute and judicial decision as to amount to a practical nullification of the doctrine of riparian rights.

The States assumed nominal as well as actual freedom in the control of natural waters within their boundaries upon the passage of the federal acts of 1866 and 1870. These acts were supplementary in making public lands, then occupied and to be occupied or appropriated, subject to prevailing local laws and customs.

future.10 The wide significance of the question at issue, in its relation to the respective fields of national economy and legal theory, justifies a brief review of the evolution of the respective doctrines of common law riparian rights and priority of appropriation and beneficial use of inland waters.

The United States inherited from Europe two systems of jurisprudence-the common law of the New England colonies from England, and the civil law which came through Florida, Louisiana, and Mexico, from France and Spain. The geographical extension of the common law, as occupation and settlement moved south and west, is familiar, as is also the nature of the corresponding decline of the civil law of the French and Spanish colonies as they gave place to federal authority.

THE COMMON LAW DOCTRINE OF RIPARIAN RIGHTS

The elementary principles of the common law doctrine of riparian rights are clearly stated in the Corpus Juris Civilis, as recorded by

10 The question of rights in inter-state streams for purposes of irrigation was recently brought before the Supreme Court of the United States in such a way as to directly involve the respective claims of the common law and the western doctrine of priorities. The case in question (Kansas v. Colorado, et al.) concerned rights in the use of the waters of the Arkansas River-an inter-state stream having its headwaters in Colorado and flowing through Kansas. Colorado, being an arid State, appropriated the waters of the Arkansas for purposes of irrigation in accordance with the so-called doctrine of appropriation. Kansas invoked the doctrine of riparian rights under the common law to force Colorado irrigators to release the waters of the stream that they might flow without diminution and in their natural channel for the benefit of the riparian proprietors of a somewhat less arid territory. The defense of Colorado rested, first, upon the question of actual diminution of the flow of the stream within the State of Kansas, and, finally, upon the natural conditions and necessities of an arid climate supported by the doctrine of appropriation, as incorporated in the constitution of the State and sanctioned by the constitutional powers of Congress together with the provisions of the national statutes as found in sections 2339 and 2340, U. S. Revised Statutes. A third contention was introduced into the suit by the filing of a petition in intervention, on the part of the United States, disclaiming the justice of the claims of either party to the suit, as affecting the rights of the government under the reclamation act and as original owner in the settlement and sale of lands belonging to the United States. After long deliberation, the court appeared unwilling to take advanced ground upon the question of water rights on inter-state streams and temporized the entire matter by dismissing both the petition of intervention and the bill of the State of Kansas without prejudice to the rights of either to renew the claims upon similar and sufficient grounds. (Kansas v. Colorado, et al., decided May 13, 1907.)

Justinian, which establishes the origin of the present law. Riparian rights, as there set forth, secured to the public certain uses of navigable streams and of their banks as against landed proprietors bordering such streams.11 The titles of the Pandects of Justinian which form the basis of the common law rights, refer only to navigable streams and the use of their waters. Their terms are prohibitory upon the proprietors of riparian lands, and recognize the right of all such uses by riparian dwellers as will permit streams to pass from their lands with their efficiency for public use unimpaired, thus granting privileges of domestic and mechanical use and inferring privileges. not at all inconsistent with irrigation.

Although certain provisions of the Roman law were resolved into an axiom of the common law of England, the fact remains that the riparian doctrine taken over by the English did not exhaust the resources of the Roman law respecting the use of water. Natural streams were widely used for irrigation, even in Roman days, and a substantial body of law pertaining thereto, having no utility under English economic conditions, was not perpetuated. The law, as preserved in the Pandects, not only demonstrates the fact that English practice has not sounded the depths of the Roman law, but that American innovations, even to the degree of abrogating the riparian right of the common law, may not reverse any Roman precedent.

Having become an English institution, the doctrine of riparian rights was further modified. The most remarkable modification was the extension of the law of navigable and tidal waters to include inland and non-navigable streams. In formally effecting this expansion, Lord Selborne, in a decision and opinion, even now cited as a comprehensive statement of the common law, said: "There is no distinction in principle between the riparian rights on the banks of navigable and tidal, and on those of non-navigable rivers." Soon there

"The language of the Roman law is as follows:

"Uses of a river for navigation or of its banks for tying boats and landing cargo are public, but banks and all thereon growing are property of those whose land they adjoin." (Justinian, Digest, 43, 12, i.)

"Whatever in a public river or on its banks you do, or whatever into a public river or upon its banks you put, whereby the landing or navigation is made worse, you shall restore the former condition." (Justinian, Digest, 43, 12, 1, 19.)

12 Lyon v. Fishmongers Co., 1 App. Case, 662.

after England extended and applied the same law to the shores and waters of inland lakes. As a result of the English transformations, the original object of the riparian right—a guarantee of public use against riparian claimants-was entirely lost, and the law became the remedy of certain private owners against other proprietors and against the public as the claimant of resources unappropriated. 13

As modified by English practice, the doctrine of riparian rights was incorporated in the organic law of the United States." For many years, what may be called an ultra-conservative defense of this doctrine has been assailed in America, especially in the western areas. In England, the chief significance of the law concerns tidal waters, although the principle is declared alike applicable to other streams. In America, the unusual size and the commercial and industrial importance of many rivers above tidal waters transfers the most important sphere of riparian rights to inland waters not tidal. American inland waters not only represent economic factors unknown in England, but streams and lakes of western America are of industrial importance not conceivable in the States of the East. Southeastern

13 Chancellor Kent's definition of riparian rights has met with universal approval within the jurisdiction of English practice: "Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat), without diminution or alteration. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above, without a grant or an uninterrupted enjoyment of twenty years which is evidence of it." (3 Kent's Comm. 439.)

14 In its generally accepted form, the doctrine of riparian rights, as applied in the United States, is as follows: "The water of permanent running streams and of inland lakes is sacred to the common use alike of all riparian proprietors upon their borders. Each proprietor may use the water for all reasonable purposes as it passes through or by his land, provided that he does not interfere with the public easement of navigation in all navigable lakes and rivers; but he must, after its use, return it without substantial diminution in quantity or change in quality to its natural bed or channel, before it leaves his own land, so that it will reach his adjacent proprietor in its full original, and natural condition. More extensive or exclusive rights than these against other riparian proprietors can only be acquired by grant from them, or by prescription which presumes a former grant." (Black's Pomeroy on Water Rights, p. 4.)

and central States have modified the letter of the doctrine to meet their physical and industrial conditions, and the federal government, through the supreme court, has acknowledged the necessity of their action.15 The use of flowing streams for lumbering and water power, comparatively insignificant in England, has been of much consideration in America, and for this reason liberal interpretations of the common law have occurred with increasing frequency and latitude of application. With the settlement of the West, still more extraordinary physical conditions were encountered and everything possible was done to control the new situation by the old law.

In the evolution of riparian rights, the redefining of significant terms of the old formula has proved a resourceful practice. "Reasonable" or "ordinary" uses of natural waters, as prescribed by the old law, was originally ascertained by the determination and satisfaction of natural as opposed to artificial wants. A reasonable use, therefore, was such as was absolutely necessary to man's existence, and unreasonable and forbidden uses ministered merely to the artificial wants of increasing comfort and prosperity. Under more recent judicial decisions, however, is observed a reconstruction of the "ordinary" use justifying, even in England, a modified legal acceptance of the term which becomes more and more flexible as the situs of its application moves westward to the Pacific States. The forbidden "diminution" of the flow or "change" in the quality of the stream has been modified by the introduction of the conveniently elastic adjective substantial, which is interpreted to infer nothing less than a measurable injury to riparian proprietors above or below, and has frequently been held to justify such use of streams as shall inflict the least possible injury to other proprietors consistent with the exigencies of the case.16

15 7 Wall., 272, 11 Federal Rep., 389.

16 Modern practice in the United States has evolved the following arid region definition of riparian rights under the common law: “Every proprietor of land on the banks of a natural stream has an equal right to have the water of the stream continue to flow in its natural course as it was wont to run, without diminution in quantity or deterioration in quality, except so far as either of these conditions may result from the reasonable use of the water for irrigation or other lawful purpose by upper proprietors. He may himself use the water for necessary purposes in a reasonable manner, having due regard to the rights and needs of other proprietors, provided he returns to its natural channel, before it leaves his estate, all the water not necessarily