RIPARIAN RIGHTS.

Mount Ida Chronicle, Volume VIII, Issue 443, 11 October 1877, Page 3

RIPARIAN RIGHTS.

The state of the law in regard to the position of riparian rights in this Colonyis hot by any means definite. Tho peculiar circumstances attending the delivery of the judgment in the case of Borton and M'Master v. Howe, which we do not care to further allude to in this article, deprive the interpretation of law as then delivered of the weight anticipated from a test case specially sent to the Court of Appeal. Again, in the case which arose at Tinkers between Glassford and Stephen Eead, a verdict was given by the Jury almost in the teeth of the Judge's direction. The only other case, that of Guffie v. Christian, has ben decided on common law principles. It is of interest while our Courts are thus trying to create a law of precedent, in the absence of any direction by the Legislature, to truce out tho way in which the difficulty has been ! grappled in the United States. The exact circumstances attending the cases which have found their way into our Courts do not appear to have arisen in America. Water has not been demanded for sheep washing, neither has a pastoral tenant claimed riparian rights for a small freehold. There the question has been the rights to water in streams as b«tween tho first appropriators an.d locators upon the lands below, either before or subsequent to the appropriation. Holders of mining claims have frequently appealed to the Courts on the ground thatasthe State has granted the franchise of digging gold it has also granted all the incidents necessary to that purpcie wood, water, &c. It, has, however, been held that the appropriation of the water prior to the location of the mining ela'in is a sufficient bar to any claim to riparian rights; that the right to mine for the precious metals carries with it the incidents of the use of water, &c, but prior appropriation of these incidents' estab- ; lishes a quasi-private ownership entitled I to protection against all the world but the true owner. The decision in one j case—Tartar v. the Spring Creek Company—will explain this. The controversy was between the plaintiffs, mill-owners, on the one part, and a Mining Company on the other, for the use of the water of Spring Creek in Shasta County. The creek was about sixteen miles long, running through a mineral region of the public domain. In 1852 the plaintiffs' grantor built his dam for the use of the water for saw-mills. In 1853 tlie defendants constructed a .dam about five miles above the saw-mill in order to divert the water of the creek to mining lands in the immediate vicinity. The Court 'held that the current of decisions went to establish the policy of the State (as derived from her legislation) to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner. This policy extends to all pursuits, and no partiality for one over another except in thesingle case where the rights of the agriculturist are made to yield to those of the miner where gold is discovered in his land._ _ Apart from this, the legislation and decisions have been uniform in according the right of peaceable enjoyment to the first occupant either of the land or of anything incident in the iand. The Judges went on to say: "In previous decisions we have shown that there is nothing sufficiently expressive in the character of our legislation which warrants an interference with the already acquired rights of individuals except in the single case of agricultural lands. This departure from the earlier decisions, which were based strictly upon the common law, was gradual. A leading decision— Irwin v. Phillips—has in an especial manner marked the turning point. The question in this case, as stated in the opinion of the Court, to be settled was this: "Whether the owner of a canal in the mineral regions of this State, constructed for the purpose of supplying water to the mines, has the right to divert the water of a stream from its natural channel as against the claims of those who, subsequent to the diversion, take up lands along the hanks of the stream for mining purposes ?" The Jury found that the plaintiff was in possession prior to the defendant, and, under the instruction of the Court, found for the plaintiff. Since this decision a special, property has been recognised in. water, not in the sense in which the word " water" is ordinarily used, but the right to water as a usufruct may be acquired by appropriation as against a subsequent proprietor who shows no title to the soil; and it is also that by the appropriation of the ] water, and the' .construction of a canal, an easement or franchise is acquired to be enjoyed as property. The Chief-Justice declared: .-" If this is an innovation upon • the old rules of law upon this subject, it is such an one as the peculiar circumstances of the country and the immense importance of out mining, interests- will justify."' Yale, an American commentator, from whose treatise we derive our information, explains that if the owners of the mining claims in Irwin v. Phillips had first-located on the bed of the stream they would have been entitled as riparian proprietors to the free and interrupted use of the water, without any other direct appropriation of it, direct irom the soil. One who locates upon public land with a view of appropriation becomes the absolute owner thereof as against every one but the Government, entitled to all the privileges and incidents whic!> appertain ! to the soil, subject to rights antecedently acquired which stand upon the same foundation, and the rule of. priority governs. Judge Bruson, in another case, gave the following interpretation : " It is understood that the location of land carries with/'it all the incidents belonging to the. soil. Those who construct water ditches will do so with reference to the of- the-public domain that have been previously made, and the rights that have been already acquired, with a" full knowledge of tliei; own rights as against subsequent locators." These various decisions have been practically incorporated into the Act of Congress, 1865,' now in force. Section 9 of that Act is as follows : " That whenever, by priority of possession rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognised and acknowledged by the local customs, laws and decisions of Courts, the possessors andowr.ers of such vested rights shall be maintained and • pro'te'eted in the same; and the right-of-way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed : Provided, how- ', ever, that whenever after the passago of this Act any person or persons shall in the construction of any ditch or canal

injure or damage the possession of any settlers on the public domain the party committing such injury or damage shaij be liable to the party injured for such injury.or damage."