USA > California > History of California, Volume V > Part 24
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The impending destruction of all of California's remaining privately owned forests will result in great disturbances of and variations in the flow of the streams along which those forests are situated. Every country that has permitted its forests to be destroyed has suffered from winter and spring floods and summer and autumn low stages of their rivers because of that destruction. China, the Holy Land, parts of Spain and other countries, certain localities even of California, all show the conditions of flood and low stream-flow that follow the destruction of stream-protecting forests.
Because of her rainless summers California is dependent on her mountain streams for the irrigation of her valleys, for hydro-electric power, and for water for her great cities. Anything, therefore, that inter- feres with the steady flow of her streams will greatly retard the progress and prosperity of her people.
Fortunately, however, for California the federal government has set apart as national forests vast areas along the headwaters of her streams. From these national forests will finally come the only forest- products for the use of our citizens. And they will forever, being themselves conserved, go far toward conserving the streams on which they stand. This generosity on the part of the whole people of the United States to the people of California is all the more marked because some of the states, having given away their forest lands, are spending great sums of money to buy back such of those forests as have not yet been destroyed in private ownership. The consent of these states to the setting apart for the benefit of the people of California of the great area of national forests
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in this state amounts to a contribution to the people of California of the many millions of dollars for which the federal government could sell these lands.
In 1905 a forestry bill was introduced in the California legislature. It created an ex-officio forestry commis- sion, with the governor at its head, and an appointive state forester, with authority to compel owners of forests to adopt measures for the prevention and extinguishing of forest fires. But through the opposi- tion of the Southern Pacific Company, which wished no regulation of any of its properties, the bill was shorn of its most effective provisions before being allowed to pass. Subsequent forest legislation was passed by the legislature, but failed of signature by the governor.
WATER CONSERVATION
Mining being the only real care of the constitution- makers of 1849, no precautions were taken in our first state constitution for the conservation or regulation of use of our water resources. Agriculture was not seriously considered by a population of miners. By the year 1879, however, when the present constitution was adopted, the evils and oppressions arising from certain phases of the private ownership of the right to appropriate and distribute water had become unbear- able. The constitution of 1879, therefore, provided that the use of all water "now appropriated, or that may hereafter be appropriated for sale, rental or distribution is hereby declared to be a public use subject to the regulation and control of the state in the manner to be prescribed by law," and it provided for the forfeiture of the franchises and waterworks of any
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water company collecting water-rates other than those established by the proper legislative body. The courts, however, have several times refused to impose this penalty of foreiture upon water companies which have wilfully, continuously, and openly violated this constitutional provision.
The California legislature, at its first session in 1850, passed a measure which had great influence for evil on the conservation of land and water in this state. That enactment was to the effect that, where no statue law governed, the common law of England should, where applicable, govern. Under the English common law, water-rights are governed and regulated by the riparian doctrine. This is, in effect, that any pro- prietor of land riparian, that is bordering on, any stream may require that the water of that stream shall come down to his land undiminished in quantity and unpolluted in quality, in order that he may enjoy the rights of fishery, ferriage, domestic use, and such other rights and privileges as the position of his land upon the stream may guarantee to him. Under this doctrine, each riparian proprietor can compel all riparian proprietors whose lands are situated above his to refrain from putting any of the water of the stream to any use which will sensibly reduce its quantity or pollute its quality; and he can prohibit anyone above him, except a riparian proprietor, from using any of the water for any purpose.
The far greater part of California's lands require irrigation for the production of the best crops. It is to the interest of the whole people of California, therefore, that lands requiring irrigation shall be irrigated. But a
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strict application of England's common law riparian doctrine to this state would result in a practical turning of the far greater part of the country back to the pastoral conditions that prevailed before the conquest.
The state supreme court in its earliest decisions recognized the necessity for permitting the use of water from the streams by those who had use for it; but it also recognized the riparian doctrine, without actually declaring it to be, in all its rigorous provisions, the law of the state. The same court, however, later declared the riparian doctrine to be applicable to Cali- fornia. By this declaration the state supreme court laid the foundation for numerous ills for our people. For, as a result of that decision and subsequent ones, certain California riparian proprietors are requiring that enormous quantities of water shall annually run to waste into the ocean, which water, but for the decisions of the California supreme court, would long ago have been conserved and put to uses which would have conserved the fertility of great areas of our lands and caused them to produce valuable crops where they now produce comparatively little.
The requirements of the miners for water without reference to the riparian proprietor were early recog- nized by the supreme court of the United States, which decided that miners should be permitted to appropriate and take water from the streams when and where the lands riparian to the streams were public lands, as the government "by its silent acquiescence assented to the general occupation of the public lands for mining." It is safe to say, however, that when the supreme court made this decision, there were on every
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California stream below the mines some private riparian proprietors, whose riparian rights this decision controverted. The decision was, of course, necessary to the miners. But, recognizing the riparian doctrine, the courts, both state and federal, violated it in these decisions.
Section 1410 of the Civil Code of California reads: "The right to the use of running water flowing in a river or stream, or down a cañon or ravine, may be acquired by appropriation"-which is the direct antithesis of the riparian doctrine. And the supreme court of the state has several times declared that the riparian doctrine is not applicable to the climatic conditions in this state; and has also said that "in no case should a riparian owner be permitted to demand as of right the interference of a court of equity to restrain all persons from diverting any water from the stream above him simply because he wishes to see the stream flow by or through his land undiminished." Nevertheless, the supreme court, in 1884, by a 4 to 3 decision, in the case of Lux v. Haggin, settled upon California's unsuited, reluctant, and protesting shoulders the doctrine of riparian rights, causing irreparable damage to agriculture, and holding back the development of great areas of the state. And up to date, the court has not wiped out the bad doctrine of Lux v. Haggin.
Thus, California has the law of riparian rights, which is judge-made, and also the law of appropriation, which is legislature-made. Here we have two opposite California rules concerning the right to use water resources. Attempting gracefully to ride these two legal horses headed in opposite directions, the court
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has been compelled to check the full speed of both. One rule, that of appropriation and beneficial use, is well suited to the climatic conditions of the state. The other rule is based upon the proposition that "non riparian owners have no rights in streams at common law." And thus, because of an ill-advised decision of a court, which subsequent judges, following "precedent" and "authority," have adhered to, the conservation of California's water and lands has been very greatly interfered with.
The legislature has made repeated attempts to provide for the conservation of the arid and semi arid lands and the waters of the state. These attempts, however, have too frequently met with disaster at the hands of the courts. The result has been great loss to the agricultural interests and, therefore, to the whole people.
Besides the riparian doctrine interference with the progress and prosperity of the state, there has come down to us a perversion of the law of appropriation, under which anybody may go upon a stream and, without any supervision by competent, public authority representing the people, post his notice of appropriation for a "useful or beneficial purpose," of any portion, or of the whole, or of even more than the whole flow of that stream, and, having recorded a copy of that notice, obtain a shadow of a title to the right to use that water of sufficient substantiality to support a law suit. True, the law requires that, after posting and recording his notice, the appropriator "must prosecute the work diligently and uninterruptedly to completion." But who shall say whether the law in this respect has been
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complied with? There is but one method by which this may be tested; and that is by a suit brought and paid for by some private person whose water need is great enough, whose purse is long enough, and whose patience is enduring enough to warrant him in bringing and maintaining an expensive, uncertain suit to prevent the unlawful use of the property of the people.
The result of this condition is that much water in California is held in "cold storage" by those who neither use it themselves nor permit others to use it, but who hold it out of use to prevent competition with themselves, or for sale at high prices. These high prices, of course, become a part of the capital invest- ment of those who buy the unlawful right rather than inaugurate a law suit, and who develop the water and sell it or its products to the consumer. And upon that capitalization they very naturally demand returns from the public. The public, therefore, is compelled to pay returns on an illegal appropriation-value of its own property.
Running water in California belongs to the people or the state and cannot be alienated. But in the very beginning of things Californian, individuals were per- mitted to acquire title to the right to use such water as they appropriated, diverted, and, without protest from an inferior riparian proprietor, put for at least five years to some useful and beneficial purpose. These gifts have been made, are still being made, without any cost to the recipient; he has never been required to pay the people for the right to make private property of the right to use this valuable and necessary natural resource; and he has always acquired
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this right through his own unsupervised acts. The theory on which these and similar gifts of natural resources have been made by the public to individuals is that the public will be benefited only if the natural resources are conserved, that is, used. That theory is, of course, correct. But the public has provided no means for insuring that its gifts shall be diligently or even at all put to use.
That this right to use is enormously valuable is proven by the fact that, in the bond selling prospectuses of California hydro-electric companies, their water- rights are quoted as worth many millions of dollars; and among the properties mortgaged, or to be mort- gaged, under the bonds these water-rights are listed. The property values of one California hydro-electric company will illustrate them all. This company has demanded that its property be valued at $20,000,000 for rate fixing purposes. Of these $20,000,000, six millions represent the actual cash invested in the company's plant, which was constructed for the benefit of the public; the remaining $14,000,000 represent the present value the company puts on the water-rights which the public, giving them away for nothing, contributed to the partnership which was organized between the company and the public for the purpose of serving the public. But the company, nevertheless, demands that its patrons, the public, shall pay returns not only upon the $6,000,000 of actual investment, but also upon their gift of $14,000,000.
Worth $14,000,000 today, those water-rights will be worth $28,000,000 tomorrow, and $56,000,000 the day
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after. The public, therefore, will be called on to pay always more money on the value of its contribution to its own benefit.
It is estimated that there are 5,000,000 electrical horsepower capable of development by California's falling waters, and that about 450,000 such horsepower have been given away to and developed by private parties. Each of these horsepowers is worth at least $200. The public, therefore, has already given away property worth today $90,000,000. That property will rapidly and greatly increase in value. At the same value per horsepower, the power-value of the state's water will soon be $1,000,000,000. A future entirely probable value of $10,000,000,000 for the state's water resources, for power purposes only, can easily be shown.
The value for irrigation purposes of the California water resources has not been closely estimated. The right to use some of that water for irrigation has been sold, by one private party to another, for $2,000 per miner's inch-the public having parted with it for nothing. It is safe to assume that, taking the state through, irrigation water is now worth $200 per inch. There are, say, under present conditions, 9,500,000 irrigable acres in the state. An inch of water will, on the average, irrigate four acres. Irrigation water in California is, therefore, worth in the aggregate $600,- 000,000. Ultimately, there will easily be 15,000,000 irrigable California acres. Ultimately, also, an inch of water will easily irrigate, on the average, six acres. Ultimately, too, that water will be worth $2,000 per
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inch. The irrigation water resources of California will, therefore, ultimately be worth $5,000,000,000- very probably several times that sum.
For power and irrigation purposes, therefore, the water resources of California have a present or im- mediate future value of at least $750,000,000. An ultimate value of $15,000,000,000 is entirely within the bounds of reason.
Californians are face to face with this question: Shall public property of such great present and enor- mous future value be permitted to fall into private control, or shall the public retain control of it?
Other states, with much less valuable water resources are spending many millions to buy back that which they gave away. New York has reserved and will herself develop, for the use of her people, all her publicly-owned water power resources.
Many years ago, the question began to be discussed in California whether it is wise to permit the continu- ance of the unsupervised private-appropriation into private ownership of the right to use the water re- sources belonging to all the people of the state. A result of this discussion was the organization of the Water and Forest Association, the activities of which resulted in the appointment, by the United States department of agriculture, of a number of experts to investigate California water and water-rights. The report of these experts was published by the govern- ment in Bulletin 100, U. S. Department of Agriculture, 1901. In the legislature of 1903 there was introduced a bill for the creation of a State Water Commission to control the appropriation of water, and to represent
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the public in the disposition of the water resources of the state. The power and irrigation companies succeeded in defeating this bill; but the legislature of 19II created a Board of Control-later changed to the Water Commission of the State of California-to which, as the representative of the public, was delegated the power to see that water appropriations, for power purposes only, are made with due regard for the requirements of the law.
The same legislature created a Conservation Com- mission, charged with the duty of investigating, among other things, the water and water-right conditions of the state, and to report to the governor and legislature recommendations for the reform of the laws applying thereto. The report of the commission was trans- mitted to the governor and legislature January 1, 1913. It exhaustively discusses the natural resources of Cali- fornia and proposed a bill giving the water commission, under the provisions of the bill, power necessary for the conservation of the waters of the state and for the protection of the people from water monopolies. This bill, after a fierce fight against it by a lobby representing certain water and power companies, was passed. The opponents of the bill, however, succeeded in getting by fair and foul means sufficient signatures to a referendum petition, and the operation of the act was suspended until November, 1914, when it will be submitted to the people.
OTHER NATURAL RESOURCES
Among California's natural resources is natural oil. This has been classified by the courts as a mineral. Its
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appropriation by private parties is, therefore, controlled by federal laws. All the state may do is to regulate, under its police powers, the method by which oil may be taken from the ground. In the exercise of that power, the state has decreed that oil-wells must be so constructed as to prevent the flooding of oil bearing strata with water-which flooding may displace and cause the loss of large quantities of oil. This is an oil conservation measure.
There are also great quantities of natural gas in California. Because it is mixed with oil and there is, as yet, no sufficient market for it, great volumes of it are wasted in the operation of oil wells. Unnecessary gas wastage is also permitted from abandoned oil wells, although the legislature of 1911 passed a law making it a misdemeanor to permit such wastage. Natural gas, like natural oil and all other mineral resources, is limited in quantity. It should, of course, be conserved as much as possible. But it is generally regarded as a useless expense to cap abandoned wells merely to pre- vent the waste of gas. And so California's natural gas is being unnecessarily wasted. The annual loss from this source has been estimated at $2,000,000.
Of coal California has but little, and that of poor quality. What there is of it fell long ago into private ownership. For many years the coal was used by river boats and locomotives. Both of these are now supplied with fuel oil, and the coal mines are shut down.
In the waters of some of the outletless lakes of California there are various minerals in solution, which, extracted from the water, are used for commercial purposes. These minerals were long used without pay-
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ing any royalty to their owners, the people. The legislature of 1911 passed an act assessing a small sum per ton on the mineral output of these lakes. The amount of money thus obtained is small; but the principle established is of great importance.
There are great deposits of iron ore in this state. But, owing to the fact that there is no coking coal cheaply enough available for its reduction, nothing has yet been done with these deposits. Either when coking coal becomes cheaply available or some other method of iron-ore reduction is discovered, a new era of indus- trial activity will develop in this state. The full public benefit of these ores will not be realized, however, if they are permitted to be monopolized-if they are not conserved.
It is evident, then, that conservation of the natural resources of California demands that none of them, whether privately or publicly owned, shall be monopo- lized or unnecessarily wasted or destroyed; but that all of them shall be used at such times and in such quan- tities as the needs of the people may require. All having once been the property of the public, and enor- mous quantities of them having been given away into private ownership in order that they might be used for the benefit of the public, the latter has a right to demand that there shall be no monopoly combination among the private owners of these public necessities whereby the prices of their products shall be put so high as to pay to the investors more than a reasonable return upon their actual investments.
It is also evident that the great mass of the nservation legislation that has been passed in Cali-
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fornia has been the result of private endeavor for private gain. While such conservation is not entirely undesirable or unwelcome, it is generally only for the direct benefit of the individual and, at best, only to the indirect benefit of all the people. Such legislation leads, of course, to the increase of the total wealth of the whole people of the state; but it tends to increase the wealth of the few and to reduce that of the many. It is seriously doubted by many students of history and economics whether a body politic is in a healthy condition when a few of its members are enormously wealthy and, controlling natural resources, are able to extort monopoly prices for the use of those resources from the necessities of the many, their former owners.
The great work the University of California has done and is doing for the conservation of the soil and mineral wealth of the state is worth far more to the people than that institution has cost or ever will cost the California public. Of equal worth has been the work it has done for the conservation of the agricul- tural and allied interests of the state in crop and soil experiments at Berkeley, at the state farm at Davis, and at the several agricultural experiment stations. Great also has been its work in the defense of the deciduous, the citrus, the viticultural, and other similar industries against the many and various insect pests and blights that have threatened their destruction.
Great also have been the results of such class conservation measures as have been passed by the legislature. But of far greater importance to the whole people would be broad and effective measures for the conservation of such natural resources as the forests
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and waters of California, upon the cheap, certain, and continuous use of which the real progress and prosperity of the whole people of the state now depends and will, with a constantly increasing necessity, always depend.
Such conservation legislation has not yet been fully secured. But the fight for it will not cease until it has been won. Posterity, to be sure, has, as yet, done nothing for us. But, nevertheless, we owe something to ourselves and our posterity that can be gained only by the conservation of the undestroyed remnants of our natural resources.
Conservation, let it be remembered, has been defined as: "The use of natural resources at such times, in such quantities, under such conditions as the needs of the people, their original owners and donors, may require, but without unnecessary waste or destruction, without private monopoly of them."
Iso 1. Parder
HISTORY OF THE LAWS OF CALIFORNIA
T HE territory which now forms the state of California was formerly a part of the domains of the kings of Spain and afterwards of the republic of Mexico. The Spaniards who in- vaded Mexico under Hernan Cortes brought the laws and customs of Spain with them, just as our Anglo- Saxon ancestors brought the laws and customs of England to Jamestown and Plymouth. These laws continue to exist in Mexico, with slight modifications until the present day. In California they existed until the invasion and capture of the country by the Ameri- cans in 1846. In some respects they still remain in force, notably the laws concerning husband and wife, and the property of either or both of them, and in a modified degree the law of mines and water.
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