OCR Text |
Show ESTABLISHMENT OF THE RIPARIAN DOCTRINE IN THE WEST 181 law water rights," although the latter may comprehend a certain class of ground water rights as well.97 The courts of California base their judicially sponsored riparian principles on the common law of England, which was adopted by the legislature in the year of admission to the Union.98 In the comprehensive, detailed examination of the subject in Lux v. Haggin (the opinion is 200 pages in length), the California Supreme Court declared unequivocally that the legislature had adopted the common law of England-not the civil law, nor the Roman "law of nature", nor the Mexican law, nor any hybrid system.99 In Texas, which while a Republic adopted the common law a decade earlier than did California,100 the judicial law of riparian water rights grew up in a predominantly common law atmosphere. However, the civil law and Spanish-Mexican law were cited by the Texas Supreme Court in certain cases, and the situation was further complicated by the long opinion in Motl v. Boyd101 which contained references to the Mexican origin of the doctrine which, although dicta, were cited with approval in subsequent decisions. The courts of other Western States that adopted the riparian doctrine (Hawaii, Kansas, Nebraska, Nevada, North Dakota, Oklahoma, Oregon, South Dakota, and Washington) likewise invoked the common law.102 Disagreement as to earlier history. -Researchers differ, not as to the fact that the riparian doctrine became a part of the common law of England, but as to when it occurred. As the disputed period antedates adoption of the riparian doctrine in the Western States, the matter there is probably stare decisis. In other areas, it is considered to be of practical as well as historical significance. This is the subject of the immediately succeeding discussion. French Civil Law Wiel's thesis. -Probably the chief controversy centers upon the thesis of Samuel C. Wiel, best known for his scholarly works of more than a half-century ago on western water law.103 The thesis in question was advanced in law review articles published in 1918 and 1919.104 97 The present water appropriation statutes of Kansas and Alaska make provision for "common law" claims of vested rights in surface or ground waters, without using the term "riparian": Kans. Stat. Ann. § 82a-701 et seq. (1969); Alaska Stat. § 46.15.060 (Supp. 1966). 98Cal. Stat. 1850, p. 219. "Lux v. Haggin, 69 Cal. 255, 384, 4 Pac. 919 (1884), 10 Pac. 674 (1886). 100Tex. Act of January 20, 1840, p. 3. 101Motl v. Boyd, 116 Tex. 82, 99-108, 286 S. W. 458 (1926). 102 Decisions are cited under "Interrelationships of the Dual Water Rights Systems," below, 103His major text is "Water Rights in the Western States" (3d ed. 1911). 104 Wiel, Samuel C, "Origin and Comparative Development of the Law of Watercourses in the Common Law and in the Civil Law," 6 Cal. Law Rev. 245, 342 (1918); "Waters: American Law and French Authority," 33 Harvard Law Rev. 133,147 (1919). |