simple to said lands should vest in the state, subject to the disposal of the legislature; provided, the proceeds of said lands should be applied exclusively, so far as necessary, to the purpose of reclaiming said lands by means of levees and drains.

The only title of plaintiffs to the lands in question was acquired under the "Arkansas Act," and the acts of the legislature of this state passed in pursuance thereof. Therefore they cannot deny that the lands were either swamp-lands or overflowed lands, and were therefore unfit for cultivation; neither can they deny the right of the legislature, as owner or as the law-making power, to adopt such means, by levees or by drains, as might to it seem necessary or fitting to reclaim the lands. The lands were either swamp-lands (spongy land; low ground filled with water; soft, wet ground; marshy ground away from the sea-shore; Webster's Dict,), or they were overflowed lands, lands covered with water. The lands were granted to the state because they were, in a condition of nature, unfit for cultivation, and for the purpose of having them reclaimed. The state became proprietor, with the obligation on its part to adopt the necessary means to that end. This could be done either by levees or drains, in any way to keep off or draw off the water. After the grant of Congress, and before the title of plaintiffs accrued, while the state owned the lands, the state, as proprietor, initiated a system of appropriation of water. The natural result of that system, applied to the waters of Kern River, would be to reduce the body of water flowing to the lands of plaintiffs, thus measurably accomplishing the object of the grant. It will not do to say that the plaintiffs acquired a right to the lands before the appropriation by defendant, and that by such acquisition the state lost control as proprietor," because by the terms of the grant the lands were to be reclaimed; the plaintiffs could obtain no right or title to the lands without such right or title

being subject to the power of the state to direct the method of reclamation.

The proposition that lands which, in a state of nature, were soft, spongy, overflowed, and in consequence thereof were unfit for cultivation, and were granted for the purpose of having the water kept off or drawn off, have attached to them the right to have all water flow to them which in the course of nature would flow, is, in my opinion, with, I hope, proper respect for the views of those entertaining contrary opinions, not so clearly established as it ought to be in order to entitle plaintiffs to recover.

I agree with my associates that the court below erred in its ruling as to the evidence offered by plaintiffs in rebuttal; but if I am correct in the views above expressed, the error was immaterial.

The following is the dissenting opinion of Mr. Justice Ross, above referred to, rendered in Bank on the 27th of October, 1884.

Ross, J., dissenting. As I am unable to concur in the judgment of the court, or in the reasons given in support of it, I think it proper, in view of the great importance of the main question involved, to state the grounds of my dissent.

In effect, the conclusion reached by the majority is, that the grantee of any legal subdivision of the public lands of the United States or of the state, through or along which a stream of water flows, is lawfully entitled

at least as against any one not a riparian proprietor or previous appropriator to have the water continue to flow in its natural channel undiminished in quantity and unaffected in quality. In other words, that as against such grantee there can be no such subsequent appropriation of any of the water of such streams as will reduce the natural flow in quantity, through however much public land the stream may flow before reach

ing the subdivision granted. This, of course, is conceding that the court below should have allowed the plaintiffs to have put in evidence their certificates of purchase, some of which antedated the appropriation under which the defendant claims, and concedes, further, that the certificates of purchase conferred upon the plaintiffs the same rights with respect to the water in question as would have been conferred by patents, and that the lands of the plaintiffs border upon the stream from which the diversion complained of is made; I assume all this because, from the view I take of the main question, those matters become immaterial. The validity of appropriations made prior to the grant from the state or the United States I understand to be conceded in the opinion of the majority. Although numerous contests with respect to water have arisen and been adjudicated by the Supreme Court of this state, as well as by the Supreme Court of the United States, neither court has heretofore been called upon to decide the precise question now at issue. at issue. But the principle which, in my opinion, should control its determination has been uniformly held by both tribunals. The doctrine that the water of a stream must continue to flow in its natural course undiminished in quantity has been so far modified in states with the climatic conditions of Massachusetts and Illinois as to permit the diversion of water for the purposes of irrigation, where the quantity of the stream is necessarily diminished by at least the quantity absorbed in the irrigation of the land upon which it is put. Especially should this be so in California, where, in a great part of the state, water is its very life blood. Every practical man must know that with the dry atmosphere and porous soils of those sections requiring irrigation, but little, if any, of the water diverted and used in irrigation is or can be returned to the stream from which it is taken. To establish, therefore, as the law of this state, that the water of a watercourse must flow on in its

natural channel undiminished in quantity would, in effect, be to convert the fertile fields, gardens, orchards and vineyards in many and great sections of the state into waste and desert places. Such a rule is inapplicable to the condition of things existing here. The common law is supposed and has been said to be the perfection of human reason, but it would be the very reverse of this to hold that the waters of the streams of California must continue to flow in their natural channels until they sink into the sand or waste themselves in the sea, while orchards, vineyards, and growing crops of immense, if not incalculable, value perish for thirst. In the case of People v. Canal Appraisers, 33 N. Y., 482, the Court of Appeals of New York quoted with approval this language of Judge Bronson: "I think no doctrine better settled than that such portions of the law of England as are not adapted to our condition form no part of the law of this state. This exception includes not only such laws as are inconsistent with the spirit of our own institutions, but such as were framed with special reference to the physical condition of a country differing widely from our own. It is contrary to the spirit of the common law itself to apply a rule founded upon a particular reason to a law when that reason utterly fails; cessante ratione legis, cessat ipsa lex."

And in McClintock v. Bryden, 5 Cal. 100, S. C., 63 Am. Dec. 87, this court said " The wants and interests of a country have always had their due weight upon courts in applying principles of law which should shape its conditions; and rules must be relaxed, the enforcement of which would be entirely unsuited to the interests of the people they are to govern." In the case of Atchison v. Peterson, 20 Wall. 511, the Supreme Court of the. United States held that, as respects the use of water for mining purposes throughout the Pacific states and territories, "the doctrines of the common law declaratory of the rights of riparian owners were, at an early day after

the discovery of gold, found to be inapplicable, or applicable only in a very limited extent, to the necessities of miners, and inadequate to their protection." "By the common law," said the court, "the riparian owner on a stream not navigable takes the land to the center of the stream, and such owner has the right to the use of the water flowing over the land as an incident to his estate. And as all such owners on the same stream have an equality of right to the use of the water as it naturally flows, in quality, and without diminution in quantity, except so far as such diminution may be created by a reasonable use of the water for certain domestic, agricultural, or manufacturing purposes, there could not be, according to that law, any such diversion or use of the water by one owner as would work material detriment to any other owner below him. Nor could the water by one owner be so retarded in its flow as to be thrown back to the injury of another owner above him." In the subsequent case of Basey v. Gallagher, 20 Wall. 682, the court held that the views expressed and rulings made in the case of Atchison v. Peterson "are equally applicable to the use of water on the public lands for purposes of irrigation."

It has never been held by the Supreme Court of this state that the waters of the non-navigable streams of the state are not subject to diversion for the purposes of irrigation. On the contrary, the right so to divert them has been frequently upheld. The latest case upon the subject is that of the Anaheim Water Company v. SemiTropic Water Co., 64 Cal. 185.

In the case at bar no question arises as to the rights of grantees of Spanish or Mexican grants or their successors in interest through or along whose land a stream of water flows, either as between themselves or others. The question here is between a purchaser of a part of the public land of the state, derived from the United States, and an appropriator of water upon the public