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Show 156 THE PUEBLO WATER RIGHT that a riparian proprietor could not so appropriate water as to interfere with such common use or destiny, and that the pueblos had a preference right to consume the waters even as against another riparian proprietor. But the court considered it unnecessary here to decide that the pueblos had the preference above suggested, nor to speak of the relative rights of two or more municipalities on the same stream, inasmuch as there was not even one pueblo in the area. From the use of these qualified expressions, it may be surmised that the court knew that it was treading on uncertain ground, and was not too sure of the soundness of its tentative conclusions. However, whether right or wrong, these conclusions were accepted by the California Supreme Court a decade later in again adjudicating the Los Angeles pueblo right.56 It was stated in this case that counsel had furnished the court with translations of numerous ordinances, laws, rules, and regulations of Spain and Mexico relating to the subject and that, after perusing them, the court was satisfied with the conclusion reached in Lux v. Haggin that pueblos had a right to the water similar to the rights in pueblo lands, and that the inherited water right of Los Angeles was superior to that of a riparian owner on the stream. It is probable that in these early pueblo rights cases the courts were provided with many documents such as those alluded to above. As to precisely what they were, and how well translated, there is no specific mention in the water rights decisions. Apropos of this, a most illuminating comment by the supreme court appears in the lengthy opinion in Hart v. Burnett, the San Francisco land case.57 The Bench and Bar of California, generally, have not been familiar with these laws [Spanish and Mexican]; it has been exceedingly difficult to procure copies of the Mexican statutes, and sometimes impossible to procure the works of the most distinguished commentators on the Spanish civil code. And even when procured, it was equally difficult to obtain correct translations of such laws and of the works of such law writers. Add to this the fact that nearly all the Mexican orders, laws, decrees, etc., respecting California, are still in manuscript, scattered through immense masses of unarranged archives, almost inaccessible, and known, even imperfectly, to scarcely half a dozen persons, and will it appear surprising that errors have been committed by the judiciary? By contrast to the lengthy analysis of Spanish and Mexican land laws in Hart v. Burnett, the treatment of Spanish and Mexican law in the pueblo water rights cases of California is most sketchy. Whether or not well grounded in Spanish-Mexican law, the principle that a pueblo on its creation was 56 Vemon In. Co. v. Los Angeles, 106 Cal. 237, 250, 39 Pac. 762 (1895). The first such adjudication was in Feliz v. Los Angeles, 58 Cal. 73, 78-80 (1881). "Hart v.Bumett, 15 Cal. 530, 611 (1860). |
