Графични страници
PDF файл
ePub

use of the water of the stream. They are derived entirely from the ownership of the land, and not from its area or the source of its title. Mr. Angell remarks: "The owners of water courses are denominated by the civilians riparian proprietors, and the use of the same significant and convenient term is now fully introduced into the common law." Ang. Water Courses (6th Ed.) § 10. Gould says: "Riparian rights proper depend upon the ownership of land contiguous to the water." Gould, Waters (3d Ed.), § 148. And Kinney says that "the rights of riparian proprietors are such as grow out of, or are connected with, their ownership of the bank of the streams and rivers." Kin. Irr. § 57. And, again (section 58): "Whether riparian rights attach or not, the principal question depends upon the ownership of the land, which is contiguous to and touches upon the water. And as to whether the land is in actual contact with the flow of the stream, whether that contact be lateral or vertical, it is necessary that it should exist." Bouvier defines riparian proprietors as "those who own land bordering upon a water course." Mr. Long, in his recent work on Irrigation, in discussing this question, says: "Some questions have been raised as to what lands are to be considered riparian, within the sense of the preceding section. Literally, of course, riparian lands are lands bordering upon a stream, but it is sometimes a question as to how far back from the stream the land may be considered riparian. There is very little judicial authority on the question. It is plainly not possible to define the distance to which the riparian proprietor's right to use the water for irrigation or other purposes extends, but this will depend upon the circumstances of each case. The only general rule that can be laid down is that the distance and use should be reasonable." Long, Irr. $ 14. It would seem, therefore, that any person owning land which abuts upon or through which a natural stream of water flows is a riparian proprietor, entitled to the rights of such, without regard to the extent of his land, or from whom or when he acquired his title. The fact that he may have procured the particular tract washed by the stream at one time, and subsequently purchased land adjoining it, will not make him any the less a riparian proprietor, nor should it alone be a valid objection to his using the water on the land last acquired. The only thing necessary to entitle him to the right of a riparian proprietor is to show that the body of land owned by him borders upon a stream. This being established, the law gives to him certain rights in the water, the extent of which is limited and controlled less by the area of his land than by the volume of water and the effect of its use upon the rights of other riparian proprietors. By virtue of the ownership of land in proximity to the stream, he is entitled to a reasonable use of the water, which is defined as "any use that does not work actual, material, and substantial damage to the common right which each proprietor has, as limited and

qualified by the precisely equal right of every other proprietor." Kin. Irr. § 276. In the determination of what will be considered such a use in a particular case, the character and extent of the land, its location, and the time of acquiring the title may all become, and are, no doubt, important factors to be considered; but they are not controlling, and each case must depend entirely upon its own facts and circumstances. The case of Boehmer v. Irrigation Dist., 117 Cal. 19, 48 Pac. Rep. 908, would seem to make the extent of riparian rights depend upon the source of title, rather than the fact of title; but in Water Co. v. Hancoc85 Cal. 219, 24 Pac. Rep. 645, it was expres held that all land bordering upon a stream which is held by the same title-in that instance consisting of 1,280 acres-is riparian, and no distinction was made on account of the source of title. Again, in Wiggins v. Water Co., supra, and Bathgate v. Irvine, 126 Cal. 135, 58 Pac. Rep. 442, the right of a riparian proprietor to use the waters of a stream for irrigation was limited to the water shed. But, as we understand these cases, the court in each instance was determining the rights of the parties then before it, and not attempting to lay down an inflexible rule as a guide in all cases. Nothing more was held or decided than that under the claim alone of riparian rights the owner of land cannot, to the injury of another riparian proprietor, take the water beyond the water shed, or onto lands held by a title different from the title of those through which the stream flows; and this all will concede. The right to make a reasonable use of the water of a stream is a right of property, depending on the ownership of the land abutting on or through which a stream flows; and whether a given use is reasonable or not is a question of fact, to be determined under the circumstances of each particular case. The right to use the water belongs to the owner of the land, and the extent of its exercise is not to be determined by the area or contour of his land, but by its effect upon other riparian proprietors.

A reference to a few of the adjudged cases will illustrate this principle. In Norbury v. Kitchin, 9 Jur. (N. S.) 132, the defendant, a riparian proprietor, erected pumps and conduit pipes to conduct the water of a stream across a hill into a reservoir, to await the use of a house built by him on property he had acquired subsequently to his riparian property. It was held that the question whether his use of the stream was reasonable under all the circumstances was properly left to the jury. In one of the opinions it is said: "The defendant has built himself a house on the side of a hill, and he formed a reservoir to supply his house with water from the stream. This exercise of his right seemed somewhat strong, and the plaintiff's counsel were at one time inclined to rely upon the distance of the house from the stream, but, probably, on reflection, they found it immaterial. The real question in the case is whether a man who has 321,000 gallons of water

coming down to him, can complain if 10,000 are taken before." Elliot v. Railroad Co., 10 Cush. 191, was an action to recover damages for the diversion of water by a railroad company, an upper proprietor, for the use of its locomotives, engines, and other similar purposes. It was contended at the trial that, if the jury were satisfied of the existence of the stream and the diversion of the water by the defendant, plaintiff | was entitled to a verdict for nominal damage, without proof of actual damage; but the presiding judge instructed the jury that, unless plaintiff suffered actual perceptible damage in consequence of the diversion, the defendant was not liable in the action, and this direction was held to be right by the entire court. In the course of the opinion, Mr. Chief Justice Shaw says: "The right to flowing water is now well settled to be a right incident to property in the land. It is a right publici juris, of such character that, whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it, as it passes through his land; and, so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrongful or injurious to a proprietor lower down. What is such a just and reasonable use may often be a difficult question, depending on various circumstances. To take a quantity of water from a large running stream for agriculture or manufacturing purposes would cause no sensible or practicable diminution of the benefit to the prejudice of a lower proprietor; whereas, taking the same quantity from a small running brook passing through many farms would be of great and manifest injury to those below, who need it for domestic supply or watering cattle; and therefore it would be an unreasonable use of the water, and an action would lie in the latter case, and not in the former. It is, therefore, to a considerable extent, a question of degree. Still the rule is the same, that each proprietor has the right to a reasonable use of it, for his own benefit, for domestic use, and for manufacturing and agricultural purposes." In Garwood v. Railroad Co.. 83 N. Y. 400, a riparian proprietor was allowed to maintain an action to recover damages against a railroad company for diverting the waters of a stream and conveying them by pipes to reservoirs where its locomotives were supplied with water, the proof showing that the water so diverted was sufficient to perceptibly reduce the volume of water" in the stream, and to materially reduce or diminish the grinding power of plaintiff's mill," in consequence of which he sustained damage to a substantial amount. In Gillis v. Chase, 67 N. H. 161, 31 Atl. Rep. 18, it is held that a riparian owner is not liable for a reasonable use of water passing his land-whether for his own purposes or for sale to others, and the reasonableness of his use is a

question of fact. In this case it is said: "Each riparian proprietor having the right to a just and reasonable use of the water as it passes through and along his land, it is only when he transcends his right by an unreasonable and unauthorized use of it that an action will lie against him by another proprietor whose common and equal right to the flow and enjoyment of the water is thereby injuriously affected. And as the reasonableness of the use is, to a considerable extent, a question of degree, and largely dependent on the circumstances of each case, it is to be judged of by the jury, and must be determined at the trial term as a mixed question of law and fact." In Fifield v. Waterworks (Cal.), 62 Pac. Rep. 1054, it was held by the Supreme Court of California that a lower riparian proprietor, who is not injured by the diversion of water by a corporation conducting and carrying on the business of supplying the inhabitants of a city with water, cannot restrain such diversion. In Ulbright v. Water Co., 86 Ala. 587, 6 South. Rep. 78, 4 L. R. A. 572, a riparian proprietor filed a bill to enjoin the diversion of water from the stream by an upper riparian proprietor, a water company, for the use of its waterworks, constructed to supply the inhabitants of a city with water. The testimony in the case established that the diversion of water for the purpose mentioned would result in a sensible diminution in the flow of the stream itself in the dry season or summer months, but that the complainant was making no particular use of the stream, and therefore suffered no special damage by the act of the defendant; and it was held that, as the defendant was taking the water for the purpose of supplying the wants of a neighboring town, and not returning it to its natural channel, the plaintiff was entitled to an injunction in vindication of his rights, without any special proof of damages; but, as he was not making any particular use of the water, the injunction should be so framed as only to restrain its use "to the sensible injury or damage of the complainant for any purpose for which he may now or in the future have use for it."

It is apparent, therefore, that the rule, so often stated and reiterated in the books, that a riparian proprietor is entitled to have the entire flow of the stream to come down to his premises, is subject to the important limitation that an upper riparian proprietor may make such a use thereof as does not work any actual, material, and substantial damage to the common right which each proprietor has; and, whether a proposed use is of the character referred to, and therefore reasonable, does not depend so much upon the area of the land of the offending proprietor, or the place of the use, as upon the effect it has upon the correlative rights of the other proprietors. Under this doctrine the defendant was not a wrongdoer when he used the waters of the stream for the purpose of irrigation, nor does the fact that his land lies above the level thereof, so that it cannot be irrigated by means of ditches wholly on his

own premises, affect his right to the use of the water (Charnock v. Higuerra, 111 Cal. 473,44 Pac. Rep. 171, 32 L. R. A. 190), although it might have a material bearing upon the reasonableness of the use, if that question was here for decision. Gould, Waters (3d Ed.), § 217. But there is no ⚫ reason shown by this record why the defendant should be confined in the use of the water to any particular portion of his land. The amount of water taken and used by him before the trial was not sufficient to materially injure the plaintiffs, or to interfere in any substantial way with their rights as riparian proprietors. There seems to have been abundant water left in the stream after his diversion for the use of all the other riparian proprietors. There is some conflict in the author. ities as to whether a riparian proprietor can enjoin the use of water for the irrigation of nonriparian lands without showing damage (Live Stock Co.v. Booth, 102 Cal. 151, 36 Pac. Rep. 431; Gould v. Eaton, 117 Cal. 539, 49 Pac. Rep. 577, 38 L. R. A. 181; Fifield v. Waterworks, supra); but it is clear that a court of equity will not restrain the use of water by a riparian proprietor to irrigate his lands unless it is shown that such use will injure the other riparian proprietors. Gould, Waters (3d Ed.), § 214. The plaintiffs, therefore, were not entitled to an injunction restraining the defendant from using the waters of the stream for the purpose of irrigation, because such use was no injury to them. But, as the defendant has set up in his answer, and attempted to maintain by his testimony, the absolute right to sufficient water to irrigate his land, regardless of the effect it may have upon the other proprietors, the plaintiffs are entitled to such a decree as will prevent his use from ripening into an adverse title. Gould, Waters (3d Ed.), § 214; Kin. Irr. § 229; Ulbricht v. Water Co., supra; Newhall v. Ireson, 8 Cush. 595.

It is suggested that the court ought to ascertain and determine the rights of the respective parties, and fix them in the decree, so that hereafter there may be no controversy concerning the matter. In the very nature of things, however, it is impossible in a case of this character to make such a decree. The rights of the several riparian proprietors are equal, each being entitled to but a reasonable use of the water for irrigating purposes, and what constitutes such use must necessarily depend upon the season, the volume of water in the stream, the area and character of the land which each riparian proprietor proposes to irrigate, and many other circumstances: so that

on Waters, "upon both navigable and unnavigable streams, are entitled, in the absence of grant, license, or prescription limiting their rights, to have the stream which washes their lands flow as it is wont by nature, without material diminution or alteration." The right of a riparian owner to use the water of a stream is divided into the right to use it for ordinary purposes, such as cooking, washing and drinking and for his stock, and the right to use it for extraordinary purposes, such as irrigation and manufacturing. In the former use the riparian proprietor may practically consume all the water of the stream. In the latter use he may only use so much as will not materially injure the right of a lower riparian owner to use the stream either for ordinary or extraordinary purposes. In other words, the use of each riparian proprietor must be reasonably taken into consideration, the number and necessities of other riparian owners, together with the size of the stream and the quantity of water usually flowing therein. These are general rules of the common law which need no citation of authority. But the use and diversion of a stream for irrigation purposes is a subject of quite modern origin, at least so far as its legal aspect is concerned.

Irrigation may be said to be the application of water to lands for agricultural purposes. Platte Water Co. v. Irrigation Co., 12 Colo. 525. The right of a riparian proprietor to use the water of a stream for that purpose being an extraordinary use of the stream, is limited, and can be exercised only with a reasonable regard to similar rights of other proprietors. Gillett v. Johnson, 30 Conn. 180. A riparian owner may therefore be enjoined from diverting the water of a stream for irrigation purposes, so as to interfere with the right of lower proprietors to use the water for supplying their natural wants and for domestic use. Mastenbrook v. Alger (Mich.), 68 N. W. Rep. 213. The fact that the land of a lower riparian owner is made less productive does not deprive the upper riparian pro prietor of the reasonable use of the stream for irrigation purposes. Weston v. Alden, 8 Mass. 136. What constitutes a reasonable and what an unreasonable use, however, is a question sometimes difficult of determination, and must rest for decision upon the facts of each particular case. Of course the use of a stream for irrigation purposes must not unreasonably injure the lower riparian proprietors. Thus one riparian owner cannot dam up a stream for irrigation purposes, so as to stop the running of a mill of a lower riparian proprietor. Colborn v. Richards, 13 Mass. 420. But in an action by a mill owner against an upper riparian proprietor for diverting the water of a stream for irrigation, it was held that the defendant was entitled to a reasonable use of the water and that its use at intermittent periods, when the stream was full, and without damage to the working of the mill or sensible diminuition of the water was a reasonable use. Embrey v. Owen. 6 Exch. 353. The total

con

Nevada the common-law doctrine of riparian rights has been abrogated and the water of natural streams declared to be public property. In California, Nebraska, Idaho, North Dakota, Montana, Oregon and Washington the doctrine of riparian rights is recog nized although it is declared by constitutional pro visions in some of these states that the use of water for irrigation purposes is a public use. In the states that follow the lead of Colorado, therefore the use of water for irrigation purposes is recognized as a natural use and one proprietor may use as much as he needs for that purpose without regard to its effect upon lower riparian owners. In the states that fol low the lead of California, the doctrine of riparian rights is the same as at common law, except that the decisions evidence a more liberal construction of what is meant by a reasonable use of water for irrigation purposes.

The case of Lux v. Haggin, 69 Cal. 255, is one of the leading and most thoroughly considered cases on this important subject. The entire subject in many of its phases is exhaustively discussed by McKistry, J., in an able and interesting argument covering one hundred pages of the California Reports. One of the first points decided was that a riparian owner is not estopped from objecting to the unlawful diversion of the waters of a stream flowing through his land, by reason of the mere fact that the ditches used in diverting the water were constructed at great expense, with his knowledge and without objection by him. The court then states the common law on the question of riparian rights as relating to irrigation to be as follows: "By the common law, the right of the riparian proprietor to the flow of the stream is in separably annexed to the soil, and passes with it, not as an easement or appurtenance, but as a part and parcel of it. Use does not create the right, and dis use cannot destroy nor suspend it. The right in each extends to the natural and usual flow of all the water, unless where the quantity has been dimin ished as a consequence of the reasonable application of it by other riparian owners." This statement of the common-law rule will be observed to be slightly more liberal than the same rule as it is stated in cases cited from the Eastern states and from England. But the doctrine as stated in that case is practically the rule in all the Western states where the common law on the subject has not been abrogated. Thus, in Oregon, where water flows in a well defined channel through the lands of several persons, each riparian owner has a right to have it continue to flow in its natural course, without diminution except so far as it may be legally used by the others, while passing through their respective premises, for irrigation and other purposes. Coffman v. Robbins, 8 Oreg. 244.

It is of course the rule that an upper riparian owner cannot use the water to irrigate non-riparian lands. Chauvet v. Hill, 93 Cal. 407. And the mere contiguity cannot extend a riparian right which is appurtenant to one tract of land to another, although both are owned by the same person. Thus, where a purchaser of riparian lands subsequently acquires other land contiguous thereto, but not on the stream, and held under a different patent from the original tract, the second tract does not become riparian be cause contiguous to riparian lands belonging to the same owner. Boehmer v. Irrigation District, 117 Cal. 19.

The only case which the writer could find which states a rule defining how far riparian lands may extend from the bank of the stream, is that of Bathgate

v. Irvine, 126 Cal. 135, which holds that lands beyond the water shed of a stream are not riparian.

JETSAM AND FLOTSAM.

CONTRACTS-A CRITICISM.

The title, Contract, embraces a very important branch of the law. Hence the necessity to both the practicing lawyer and the student, of having a clear conception of the term in its legal and proper sense. The idea or element of mutuality is of the very es sence of a contract. A must promise B, and B must promise A, before A and B can be said to have formed a contract. It is this element of mutuality of promise or agreement that is the source of all the obligations or legal consequences that flow from the contractual relation. When two or more parties mutually prom. ise or agree with one another that each shall do or not do a specified act or acts, and intend thereby to affect their legal relations toward one another, the law steps in, seals the agreement, and says to each, "what thou hast promised thou shalt perform." In other words, the law attaches obligations of perform ance to agreements of this kind, and calls them contracts. Properly speaking, all contracts are execu tory; by which I mean that the parties thereto always contemplate the performanee of their respect ive promises as a matter lying wholly within the future. Upon this point there is much confusion in the text books. Matter that pertains wholly to the discharge or performance of a contract is treated as if it fell within the scope of the information of a contract; and senseless distinctions are made in the books, based upon this jumbling together of things that ought to be kept separate. The formation of a contract is one thing, the performance of a contract is another, and quite a different thing. A contract is a perfect contract, perfectly formed, weighed with all its obligations, before a single act is done by either party to it, toward the performance of their respective promises. Let me illustrate what I am trying to make clear. Mr. Anson in his very able work on Contracts, in speaking of the manner in which a contract may be formed, says: "Before & contract can be formed there must be a distinct offer on the one hand and an acceptance of the same on the other. This offer may consist of an act, or a promise. In other words, a contract may be formed in the fol lowing three ways: 1. A promise for an act. 2. An act for a promise. 3. A promise for a promise." I respectfully inisist that a contract may be formed in but one way, viz.: A promise for a promise. Here is an example of what Mr. Anson terms a "promise for an act." A tells B he will pay him a certain sum of money for a day's work. B accepts the offer by doing the work. Now, according to the theory of this writer there is no contract formed, that is, there is no acceptance of the proposal or offer of A until after B has performed the day's work. I submit that the contract is formed, necessarily, before B com. mences the day's work. B does the work in fulfillment of his promise (express or implied) to do it. The doing of the work by B is clearly the perform ance or discharge of his part of a contract previously entered into or formed. To form a contract and perform it at the same time, and by the same act is a logical absurdity. The contract is formed when A says "for a day's work I promise to pay you so much money," and B says "for so much money I promise to

do the work." B's promise may not be express, but in contemplation of law the promise is made, and it is made, anterior in point of time to the doing of the work. So it is with all contracts. A contract is completely formed when mutual promises have been given and accepted. Subsequent events may discharge the parties from the performance of their respective promises, but the original perfection or validity of the contract is in no way impaired thereby. So the promise of one party to a contract may condition his performance thereof by requiring the other party to perform his promise in a certain way, or at a certain time, before the former shall be required to perform his. All such conditions relate to the discharge of a contract and not its formation.

C. L. V. MULKEY.

BOOK REVIEWS.

BRANDENBURG ON BANKRUPTCY, SECOND EDITION. This is a very timely publication which the profession will welcome, especially those engaged in bankruptcy practice. The first edition of this work met with the very favorable reception which it deserved. While the first edition was intended merely as a guide to the construction of the law by the aid of decisions rendered under the act of 1867, the present edition is based on the law of 1898 as interpreted by the federal and state courts, and the author has also in this volume undertaken to elucidate questions yet undecided by the courts which have arisen in his mind. Such opinions coming from one so eminently qualified by long experience as an instructor and author to investigate them will be highly appreciated by lawyers seeking information on subjects not yet passed upon by the courts. These questions, including many dif ficult ones, the author has discussed thoroughly and ably, sustaining his conclusions by numerous citations to decisions under the act of 1867, and he has reason to feel complimented from the fact that the Supreme Court of the United States has recently rendered sev. eral decisions on bankruptcy questions, the conclusions of which arrived at by the court being the same as arrived at by Professor Brandenburg in his discus. sion of the question decided; among which may be mentioned the subjects of preferential payments on account under section 57c (Carson, Pirie & Scott v. Chicago Title & Trust Co.), and on the question of provability of alimony in Re Schufaldt. The author has treated each section and subdivision of the law separately, and paralleled his discussion of its provisions with the decisions under the act of 1867, and wherever applicable has also made reference to rules of the supreme court. The rules, forms and orders of the supreme court and the state exemption laws are printed in full in the back of the book. The chapter on definitions as construed by the courts will be found especially useful. Chapter three on acts of bankruptcy is very full and complete. We commend this treatise on bankruptcy as being the most full and complete that has yet been offered to the profession. The table of cases contains about 3,000 citations. The index is very full and complete. The book contains 1,040 pages, printed on excellent paper, bound in law sheep. The author is Edwin C. Brandenburg, L. L. M., author of the digest of bankruptcy decisions; professor of procedure in bankruptcy in Columbia University and in charge of bankruptcy matters in the department of justice. Published by Callaghan & Company, Chicago.

to

HUMORS OF THE LAW,

THE LAST STAMP.

And so, mi senor, you're the last

The one long sought, so long in vain. 'Tis joy to know your days are past

And we have done with licking Spain. The number must be billions, quite,

Now gone before until the string Would reach in rainbow colors bright

Around the world, an endless ring. We've licked the red, the brown, the blue, The halves, the quarters, twos and ones; And sadly have we licked a few

That cost a plunk to wad the guns. We've licked until our taste is spoiled And comes in streaks of green and brown, But still we have the tyrant foiledWe've helped to put the Spaniard down. We've always had to stop and think With every policy we wrote,

If we should use a blue or pink

Or brown to make the blamed thing float. We've had to learn much we'd forgot

About the ways of fractions strange; And really we have lost a lot

Of time and been close run for change.

How glad I am I cannot tell

You are the last one I must stick; I'm pleased to bid you now farewell With one last long and lingering lick. -Rough Notes.

A SWISS YANKEE.

In Constance, Switzerland, is a tailor smart enough have been born in Connecticut. He adver tised, not to get good customers, but to be warned against bad ones. To this end he published the fol lowing:

"A young lady, good looking and very wealthy, wishes to meet with a gentleman of good family; view marriage; age no object. The lady will not object to pay the debts (amount of which should be stated) of her future husband. Inclose photo and reply to X. Z., care of this paper."

Every bachelor for miles around, who was hard up, replied. The tailor had copies made of the photographs and pasted them in a book, with the written name and addresses. Then he returned the originals with profuse apologies. He probably has as few debts as any tradesman in Constance.

Judge-How old are you? Witness (a lady)—Thirty. Judge-Thirty? I have heard you give the same age in this court for the past three years.

Witness-Yes; I am not one of those people who say one thing to-day and another thing to morrrow.

Arkansaw Justice (to spectator who has just entered)-Huck Buckley, fine you ten dollars for contempt of court!

Buckley-Huh, 'squire! I hain't said a word yet! Arkansaw Justice-I know it, but that thar hos you traded to me last week has got a spavin, and this is probably the only chance I'll have to git even with you. Fork over, or go to jail!

« ПредишнаНапред »