California AHGP - New California - Chapter XII




In the year 1884 a great legal war was being waged over the respective rights of riparian prorietors and those who sought to divert the water from the natural streams and apply the waters so diverted to irrigation. The agitation of this question finally culminated in the case entitled "Lux vs. Haggin," in the supreme court of this state. The question there presented was, as stated by that court, "Can a private corporation divert the waters of a watercourse and thereby deprive the riparian proprietors of all use of the same, without compensation made or tendered to such proprietors?" and the court held in answer to this question:

First: That the owners of land by or through which a watercourse naturally and usually flows have a right of property in the waters of the stream.

Second: This property may be taken for a public use, just compensation being first made, or paid into court.

Water to supply "farming neighborhoods" is a public use, and it is for the legislature to determine whether, in the exercise of the power of eminent domain, it was necessary or expedient to provide further legal machinery for the appropriation (on due compensation) of private rights to the flow of running streams and distribution of the waters thereof to public uses.

Third: But one private person cannot take property from another, either for the use of the taker or for an alleged public use, without any compensation made or tendered.

Fourth: Riparian owners may reasonably use waters of a stream for purposes of irrigation.

By the foregoing decision on riparian rights it was thought tht irrigation interests in California had severely suffered, and the best thought of the state was directed to some solution of the problem as to how waters needed for irrigation purposes might be diverted and appropriated for irrigation purposes. Such was the legal situation.

The contestants in the above entitled case, however, subsequent to the rendition of the foregoing decision, settled all their differences by compromise, which rendered any further controversy between them unlikely. The respective sides had represented contending forces, and when the plaintiffs and defendants in that case had settled their differences, those whom they had so represented respectively were at a loss to know what course to pursue in the premises. The right of the private corporation or other land owner to divert the waters of a watercourse for irrigation purposes had, by the above decision, been denied. The statutes prior to this time had apparently fully authorized such diversion. A title of our Civil Code provided that the right to the use of running water flowing in a river or stream might be acquired by appropriation, provided that the appropriations were for useful or beneficial purposes.

The simple process by which this diversion might be made consisted in the requirement that a notice of appropriation should be posted in a conspicuous place at the point of intended diversion, and that the claimant should state therein the amount of water claimed by him; the purposes for which he claimed it, and the place of the intended use; the means by which he intended to divert it, and that a copy of the notice must, within ten days after being posted, be recorded in the office of the recorder of the county in which it was posted.

After taking these preliminary steps, the claimant was required to commence work within sixty days, which work he was required to prosecute diligently and uninterruptedly to completion, unless temporarily interrupted by snows or rain.

It had been thought, prior to the decision of the case of Lux vs. Haggin, that these provisions of the statute authorized the appropriation of water for irrigation purposes in California, and that the doctrine of riparian rights, as defined in said case, had no existence. The future welfare of the state depended upon the right to use all available water for irrigation purposes. The right to have the water flow in its accustomed channel to the sea, according to the common-law doctrine, it was through, did not exist. In fact, it had become the commonly accepted belief in California that the statutory enactments to which I have called attention, were sufficient authority for the diversion and use of the waters of any stream as against any and all riparian claims. But this decision put a new phase upon the irrigation situation.

Many important irrigation enterprises had been launched; large canals and other works essential for the diversion of water had been constructed in various portions of the state. In many instances these systems had been operated for a sufficient length of time before this decision was announced as to have acquired a right to the use of the water theretofore diverted by them by prescription, or statute of limitations. Some of the largest irrigation systems of the state were so protected. But while vast amounts of money had been expended in the building up of such systems, the area covered by the water supplied by them was insignificant when compared with the entire area requiring irrigation. It might be safely said that not one-twentieth part of the irrigable land in California had been supplied with water for irrigation purposes at the time this decision was announced. When we speak of irrigable land, we mean lands that were scarcely worth having unless supplied with water for irrigation. Such is the character of the land throughout the great San Joaquin Valley, except in favored spots lying along the bottoms of certain rivers. The same may be said of the lands in the Sacramento Valley, which are for the most prt of little value in their natural state.

The conditions in southern California were even worse, because the lands in that locality are more desert-like in character than are those in the San Joaquin and Sacramento valleys. California was essentially an irrigation state. Its lands were scarcely worth the government price unless they could be supplied with water for irrigation. It is true that the coast lands, such as are found in portions of Ventura, San Luis Obispo, Santa Cruz, Santa Clara, Napa and Mendocino counties, do not in general require water for irrigation. The rainfall in these localities is generally in excess of the rainfall in the interior, and the added dampness by reason of proximity to the sea renders them reasonably profitable for agricultural purposes without the artificial use of water for irrigation, but the great preponderance in area was situated as above noted. How this might be supplied with irrigation, within the requirements of the decision of Lux vs. Haggin, was a problem to be met.

The court had decided, as we have seen, that "farming neighborhoods" were entitled to exercise the right of eminent domain. In other words, that water to supply "farming neighborhoods" was a public use, and that this public use authorized the invocation of the right of eminent domain. but how should this be accomplished? The "farming neighborhoods" consisted of an aggregation of farmers, each of whom was a private individual, and whose interests were separate and distinct from those of his neighborn, and a single farmer was not authorized to join with his neighbors in a common cause of action because their interests were distinct and separate and therefore the exercise of the right of eminent domain did not lie within the reach of either the single farmer or of the many farmers.

The court, it will also be seen, had significantly suggested that it was for the legislature to determine whether, in the exercise of the power of eminent domain, it was necessary or expedient to provide further legal machinery for the appropriation (on due compensation) of private rights to the flow of running streams and the distribution of water thereof to public uses. No other recourse seemed possible under this decision than the organization of these "farming neighborhoods" into public corporations, having the semblance of municipalities who would thereby become possessed of the right of eminent domain in behalf of any interest which they, as such public corporations, might have.

When the legislature of 1887 met such was the existing condition. Vast areas of land in the San Joaquin Valley which might be made exceedingly profitable with irrigation were without the needed supply, and without the means of acquiring it. It was absolutely beyond their reach for the reason that any attempt to take it from the streams would be met by riparian claims, and it was beyond their reach for the further reason in many instances that an organization could not be perfected which would be sufficiently powerful to command the funds with which to construct needed works. Such being the situation, the irrigation district law of California was suggested as a solution of the problem. It afforded to the farming neighborhoods the opportunity of organizing themselves into public corporations wherever the need might exist, and of uniting to the end that they might divert the waters of any stream to supply their lands with needed irrigation.

Inasmuch as this was the first attempt to meet the situation under the decision of Lux vs. Haggin, it will be interesting to note what the features of this act are, and some of the efforts that were made to apply it, and with what success.


As a means of availing themselves of the provisions of the district law, a "farming neighborhood" might present to the board of supervisors of a county a petition signed by not less than fifty freeholders who should be owners of land susceptible fo one mode of irrigation, from a common source, and by the same system of works.

It was required that this petition, together with a notice of its presentation to said board, should be published for at least two weeks before the time of its presentation, and that it should set forth and particularly describe the boundaries of the proposed district, and should contain a prayer that the same might be organized into a district, under the provisions of said act. It was also required that the petitioners should accompany the petition by a good and sufficient bond to be approved by the board of supervisors, in double the amount of the probable cost of organizing such district, conditioned that the petitioners would pay all such costs in case such organization should be effected.

This provision was of the greatest importance. The object of it was to empower the board of supervisors, whenever a petition might be presented to them, to employ all necessary engineering talent to determine the feasibility of the district asked for; as to whether it had an ample water supply; as to whether the lands were so situated that the entire area would be benefited by irrigation; whether the cost of the system would be such as the land owners would be able to meet, and generally to determine the feasibility from the standpoint of profit to be realized from the organization of the district.

The board of supervisors were thus empowered to determine every fact necessary to be determined as to whether or not the petition should be, or should not be granted, and the cost of determining this question was properly placed upon the petitioners. In case the petition should be granted of course the expense would be met by the district, if organized; but in case the petition should be denied, or if having been granted the farmers failed to organize it, the cost would be met by the petitioners.

This provision afforded ample means of avoiding any mistakes in the organiztion of any district, and if the boards of supervisors throughout the state had faithfully carried out this provision, in accordance with its spirit, no mistakes would ever have been made. No district would have been organized which had not an ample water supply. No district would have been organized, the lands of which were not susceptible of irrigation by one system, and from the same source. None would have been organized where the cost of constructing the works exceeded the amount which the farmers could afford to pay.

The act provided for the holding of an election in pursuance of an order of the board of supervisors in case they should determine that the district was feasible, and if at the election two-thirds of all the votes case were in favor of the organizatin of the district, it therby became a public corporation authorized to do the very things which it had been denied the individual to do, or the private corporation to do, by the decision of Lux vs. Haggin.

The act provided tha such a district should have a board of five directors, an assessors, a collector, and a treasurer, offices corresponding to those of any other public corporation in this state. It also provided in detail what their duties and functions and powers should be; how these offices might be filled in case of vacancies, and for regular elections for the election of officers.

The district, by means of such organization, became possessed of all powers essential to carry out the object for which it was formed. The first duty consisted, of course, in determining what works were needed as a means of diverting and supplying waters essential to be used. Having determined what works were essential, it provided that plans and specifications of such works should be prepared, and should be adopted by the board of directors of the district.

To meet the exact condition created by the decision of Lux vs. Haggin, the act provided that the board of directors should have the right to acquire, either by purchase or condemnation, all lands and waters and other property necessary for the construction, use, supply, maintenance, repair, and improvement of canals and works, including canals and works constructed and being constructed by private individuals, lands for reservoirs for the storage of needful waters, and all necessary appliances. Thus it was thought to entirely overcome the difficulty which had been met with in the decision of the case of Lux vs. Haggin.

The "farming neighborhoods" had been granted the right to organize themselves into a public corporation with the right to avail themselves of the benefit of the law of eminent domain. They had also been given the power to choose from such neighborhood five officers who should control all the affairs of the district; they had been given the power to select an assessor who should assess their property; a collector who should collect necessary assessments, and a treasurer who should be the custodian of the funds. It presented indeed a case of Home Rule to the last degree.

For the purpose of constructing irrigation works, the board of directors were authorized, as we have above seen, to cause the be prepared plans and specifications for all needed works, and to determine the cost thereof. Having determined this question, they were authorized to call an election at which should be submitted the question whether or not bonds should be issued in the amount necessary for the completion of said works. Complete provision was made for the issuance of bonds; the time for which they should run; how payment therefor should be provided, to the end that upon the final payment the district would own unincumbered a complete system of works, whereby it might for all time be provided with water for irrigation, had at the bare necessary expense of constructing its works.

In short, it provided for the organization of "farming neighborhoods" into municipal corporations with a single purpose. It differed from other public corporations in no other feature. It differed from other power; no power not exercised by other public corporations. Counties, cities and towns from time immemorial had exercised without challenge all the powers conferred on irrigation districts, and many others in addition thereto.


The law having been enacted, the people of the state in various localities proceeded to organize under its provisions. Very many districts were organized; some advisedly and other inadvisedly. The safeguards provided to insure only the formation of such districts as would be practicable in their operation were ignored by the boards of supervisors in many instances, and districts were allowed to be organized by such boards without a single inquiry as to the conditions surrounding them. In many instances districts were permitted to be organized that had no water, or the opportunity of obtaining any. In other instances impracticable shemes were allowed to be consummated whereby the lands included within the border of a proposed district were either not susceptible of irrigation at all or not susceptible of irrigation by water from the same source, or by the same system of works. Of course in such instances failure necessarily followed. These failures were charged to the district law, instead of to the mal-administration of it.

The fight against the validity of the law was vigorous and protracted. The holders of large bodies of land, as a rule, were opposed to its enforcement. Land speculators were determined not to pay irrigation assessments upon extensive bodies of land which they held for speculation only, and which they could not hope to subject to a system of irrigation. The bankers of the state, as a rule, were firmly set against the law because many of them held large bodies of land which they had been compelled to take on mortgages and trust deeds. They were in no position to provide their lands with irrigation, because they simply held them as a speculation or as a means of making good the moneys which they had loaned upon them.

In this manner almost unlimited capital was engaged in the attempt to have the law declared invalid. Notwithstanding these Herculean powers arrayed in opposition to the law, it passed through all the courts, and was finally determined to be constitutional by the Supreme Court of the United States in a remarkably exhaustive and well written opinion.

The best example of the practical operation of the law may be seen in the large districts known as Modesto district, Turlock district and Alta district. The first two named are situated mainly in Stanislaus county. They are the best examples of the practicability of the provisions of the law where proper conditions exist. In both of these districts an abundant supply of water is got from the Toulumne river, and distributed over about 256,000 acres of land. The Turlock district has an area of about 176,000 acres, and the Modesto district has an area of something over 80,000 acres. The works of the Turlock district cost a little in excess of $1,200,000. The cost per acre was a little less than $7.00 and the irrigation assessment, to pay interest on its outstanding bonds and the current expenses of conducting the affairs of the district, has not exceeded on the average thirty-five to forty cents per acre. It will thus be seen that when the principal has been paid off, the final cost of maintenance and carrying on of the system will be a mere trifle. About the same may be said of the Modesto district. There is, perhaps, no other system known by means of which water may be furnished as cheaply as the figures above indicate.

In many parts of southern California as much as $20.00 per acre per year is paid for water for irrigation. Under the private corporations a common price for a mere water right has been about $20.00 per acre, with an added annual payment for the water itself of something like $1.50 to $3.00 per acre.

It will thus be seen that water for irrigation by the district system, where conditions are right, may be had at a mere pittance compared with the price to be paid where it is obtained through the intervention of private corporations.

The California Irrigation District law is somewhat extensively discussed above, for the reason that it constituted a new departure in the field of irrigation, and was the first effort ever made to mould into form a system for farming neighborhoods, the suggestion of which grew out of the case of Lux vs. Haggin. The controversy over its validity was continued until the decision was rendered by the Supreme Court of the United States. This was decided on November 16, 1896, and it was thereby determined that the irrigation of arid lands under the California District law is a public purpose, and that the water thus used is put to public use. The great point to be gained was that of furnishing farming neighborhoods with the right of eminent domain. This was fully accomplished by the District law, since, as construed by the Supreme Court of the United States, the use of water for irrigation purposes by farming neighborhoods constituted a public use. To reach this end required over eight years of litigation, and during all of this time anything like systematic operation of the District law was impossible. Furthermore, the contention over the validity of its provisions resulted in the impossibility of selling bonds issued by districts, and work thereunder was wholly suspended until such time as confidence could be created under the final determination of the courts that such districts were valid. No general attempt to operate the districts throughout the state was ever undertaken, but in certain localities, which we have ponted out, they have been and are being operated with great success.

The District law, therefore, may be deemed an important incident in the history of irrigation in California, and its future is likely to be attended with very imporant results. As the districts already oeprating show the practicability of its provision, and its high utiity as an economic measure, it will undoubtedly grow in favor and become operative in many portions of the state, where at this time no attention is paid to it.

While controversy over this law was in progress, irrigation along other lines by no means languished in this state. Systems already begun were enlarged, and the area subject to irrigation was greatly increased. The most beneficent results followed the practice of irrigation wherever attempted. It is a most interesting study to note the great contrast brought about by the use of water for irrigation in any portion of California, when compared with adjacent lands not irrigated. In Riverside county, for example, irrigated lands have grown to enormous values, while lands immediately adjacent, for which no water supply has been provided, although equally good lands in other respects, are of practically no value whatever. There are hundreds of thousands of acres of land in southern California of the most fertile quality which are absolutely desolate-like in character, and will so remain unless a water supply can be provided for them. The vast wealth of Riverside, San Bernardino, Orange and Los Angeles counties has been almost wholly created by means of their irrigation systems. In fact, lands are scarcely habitable for agricultural purposes in any portion of southern California without the use of water for irrigation. The worthlessness of land without a water supply has resulted in most heroic efforts to promote irrigation enterprises, and milliones of money have been expended in the creation of systems under extremely hard conditions, and where irrigation in almost any other portion of the world wold not have been undertaken. The result has justified the faith of those who have made these efforts. While water, under all these circumstances, is worth almost fabulous prices, the use of it is extremely profitable. The late ex-Governor Waterman once stated, in a public address, that water for irrigation purposes in southern California had a market value of two thousand dollars per miner's inch, and while this may be in excess of present market rates, it is not greatly so.

In central California, where the water supply is much more abundant, and where the areas to be covered are largely in excess of those in southern California, water is furnished at a much cheaper rate, where furnished at all. Great systems have grown up in Kern, Tulare and Fresno counties. These are operated, in the main, by private corporations. Some of them furnish water for sale, but the greater number are merely used to supply lands owned by the corporations operating the systems. The great wealth of the last names counties is based almost wholly upon the use of water for irrigation. Lands without the artificial use of water are of very little value. Yet their fertility is such that, with the added use of water for irrigation purposes, they become highly productive, and of great value. Fresno county has become celebrated the world over as a producer of fine raisins. This product is wholly the result of irrigation systems existing in that county. The same may be said of its orchards. What has been said with respect to Fresno may be equally said as to Tulare and Kern counties. These counties have become famous as producers of all kinds of fruits. The actual results attained by means of their irrigation systems are astonishing in the extreme. And yet these systems are only in their infancy. They have been compelled, thus far, to rely wholly upon the natural flow of the streams. No water has ever been impounded for irrigation purposes in any part of the San Joaquin and Sacramento valleys. They have rivers which have an annual flow, if all their waters could be utilized, to afford an ample supply for the irrigation of all the lands in these great valleys. Kern, Kings, San Joaquin, Merced, Tuolumne and Stanislaus rivers each have an immense annual flow, which in the aggregate would easily serve all the lands in the San Joaquin valley. It is most gratifying, indeed, to those who are interested in irrigation, to know that the general government has entered upon the plan of impounding waters for irrigation purposes, and we have no doubt that this system will be carried out to the extent of utilizing all the waters of all the rivers wherever the same can be used for irrigation purposes. The government can very well afford to do this because it merely advances the necessary funds to be returned to it with absolute certainty, since the security afforded by the lands covered by the systems to be served is many times more than ample as security. It is not too much to hope that many of the present generation will live to see all the lands in California, which are so susceptible to irrigation, supplied with ample water for that purpose, by means of the impounding system, which has been entered upon by the government. Heretofore twenty times the water supply actually used in irrigation purposes passed on through the natural channels to the sea, without benefit to either the riparian owner or the appropriator. Such condition of things, it is not at all likely, will be permitted to exist.

The effects of the use of water for irrigation purposes may be studied with interest in those portions of the San Joaquin Valley where water has been recently furnished. It has not been many years since farming in those localities consisted in wheat-raising exclusively. For the support of a single family, the natural conditions existing in that valley required the use of several sections of land, and then farming had to be carried on with the utmost regard for economy. In those localities, where water has been recently furnished land has been quickly subdivided into twenty to forty acre tracts, and twenty homes may be found where but one existed before. There is, indeed, a bright future for irrigation in California, and prosperity heretofore unknown within its boundaries.

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