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Show PUEBLO WATER RIGHTS IN CALIFORNIA 155 Foundation of the California Doctrine The Original Pueblo Water Right The California doctrine of pueblo water rights was created by the California Supreme Court. It is contained in the opinions of this court in the cases cited earlier in this chapter.50 In reviewing these decisions, the author's attempt to find any quotations from Spanish or Mexican authorities that would unequivocally portray the policy of the sovereign respecting the pueblo's rights in the water of the stream on which the pueblo was situated met with little success. Most of the discussion of this matter is in the dicta in Lux v. Haggin.sl That the statements concerning pueblo rights were merely dicta is demonstrated beyond question by the court's statement that "We take notice that no pueblo existed on the water-course (if any there be) which is the subject of the present controversy."52 Despite that frank admission, the court declared, "By analogy, and in conformity with the principles of that decision [Hart v. Burnett, 15 Cal. 530 (I860)], we hold the pueblos had a species of property in the flowing waters within their limits," to be held in trust and exercised with respect to the common lands and inhabitants.53 The court went on to say that the laws of Mexico relating to pueblos conferred on the municipal authorities the power of distributing the waters to the common land and inhabitants, and that it would seem that a species of right to the use of all its waters needed by the settlers was vested in the authorities for the common benefit. Two sections of the Plan of Pitic (or Pictic) were quoted.54 Both dealt with water distribution within the pueblo; neither gave the pueblo the right to all stream waters as against nonpueblo users. However, the court quoted a paragraph from Escriche to the effect that owners of lands through which a nonnavigable river passes "may use the waters thereof for the utility of their farms or industry, without prejudice to the common use or destiny which the pueblos on their course shall have given them."5S [Emphasis added.] From the foregoing, said the court, it appears 50 The discussion of foundation of the California doctrine in this and the next subsection is based largely on the author's article, "Pueblo Water Rights in the West," 38 Tex. Law Rev. 748 (1960). "Lux y.Haggin, 69 Cal. 255, 326-332, 4 Pac. 919 (1884), 10 Pac. 674 (1886). "69 Cal. at 332. S369 Cal. at 328-329. Hart v. Burnett was a land case, a large part of its 100-page opinion being devoted to analysis of Spanish and Mexican laws in support of the court's decision respecting the existence of a pueblo at San Francisco and its rights to lands within its limits. Water rights were not involved. 54This was the plan decreed by the King of Spain in 1789 establishing the Pueblo of Pitic (or Pictic). "69 Cal. at 330. |