hubert howe bancroft - Central Pacific Railroad Photographic History ...

IRRIGATION. 429
which had been or might be appropriated a public
use, subject to the control of the state in a manner to
be prescribed by law, provided that in fixing the rates
of compensation to be collected by any person or corporation
for the use of water supplied to any city,
town, or irrigation district, a net return of seven per
cent per annum upon the cost of construction and
maintenance of the necessary works should be secured
to the owners. While declaring every neutral stream
the property of the public, and dedicated to the use
of the people, subject to appropriation, diversion,
and use for irrigation and other beneficial purposes,
prior appropriation 3 * was allowed the better right,
and should be exercised under legislative regulations.
As in the Heath amendment, the courts were forbidden
to intermeddle by injunction, and all suits pending
against the diversion of water from any natural
stream were to be stayed by the passage of the
amendment until the plaintiff's right had been established
by a recovery of damages in an action at law.
These innocent-sounding sectionscontained the germ
of a mighty monopoly, and were conceived for the
benefit of a few men' 7 who had become, or meant to
become, prior appropriators of all the waters in the
southern portion of the state, for the use of which
the farmers were to pay them at the rate of not less
than seven per cent upon their expenses in perpetuity,
or until this part of the constitution should be
M According to CaL Civil Code, 1873, p. 902-3. As between appropriators,
the one first in time is the first in right. 'The rights of riparian owners are
not affected by the provisions of this title.' The supreme court followed the
old English law in deciding upon riparian rights. Vrooman, MS., 12.
11 The instigators of this movement were denounced in the public press,
persons in interest, as a matter of course, becoming greatly worked up about
it Judge McKinstry had decided some time previously that a riparian
owner was entitled to the full flow of streams traversing his property, and
could not be compelled to divide with non-riparian owners, or with owners
nearer the source of the stream (i. e.t prior appropriators). Most people
thought this bad law—it was founded on English common law—for California,
and expected a reversal of the decree whenever the supreme bench should
be changed. Meantime, the 'water-grabbers,' as they were called, had the
law on their side, but found injunctions and law-suits expensive and uncertain,
and devised this new plan of gaining control of the coveted water-supply.