This ruling was five or six years after the publication of the opinion by Story and the Commentaries by Kent. No mention is made, in Mason v. Hill or any previous English case, of the word "riparian" in connection with the subject, and neither court nor counsel cites either these American jurists or the French Code; but if the vogue of these sources then current be assumed of no influence upon the opinion the influence of the civil law is nevertheless shown. A long discussion of other civil law sources is part of the opinion.

In any event, until Story and Kent were resorted to by the English decisions in the following decade, the English law still wavered in spite of Lord Denman's effort. The Court of Exchequer, in 1839, distinguished Mason v. Hill as inapplicable (against the party producing it) to a flow of artificial origin;47 while in 1843 percolating or underground water was also excepted from its operation.48 The latter decision was made in the Court of Exchequer Chamber, where the judges of all these courts - Common Pleas, King's Bench, and Exchequer sat together, and Chief Justice Tindal of the Common Pleas (who had decided for prior appropriation in Liggins v. Inge, supra, two years before Mason v. Hill), being again the writer of the opinion, intimated that he still held doubts of the foundation of the doctrine of Mason v. Hill. He intimates that the ground and origin of the doctrine is obscure, enumerating various possible explanations, "or it may not be unfitly treated, as laid down by Mr. Justice Story," etc. There was still this atmosphere of uncertainty when, in Wood v. Waud in 1849, the ruling in Mason v. Hill was reiterated

...

before the case of Mason v. Hill, in 1833." In another case it is said: "Upon the second trial of Mason v. Hill, a special verdict was found, on the argument of which Lord Denman delivered an elaborate judgment which . . . has always been considered as settling the law as to the nature of the right." McGlone v. Smith, 22 L. R. Ir. 568 (1888). Accord as to the effect of Mason v. Hill, see Cocker v. Cowper, 5 Tyrw. 103 (1834); Embrey v. Owen, 6 Ex. 353, 20 L. J. Ex. 212, 155 Eng. Reprint 579 (1851); Stockport W. W. Co. v. Potter, 3 H. & C. 300, 323, 10 Jur. (N. S.) 1005, 159 Eng. Reprint, 545 (1864); Chasemore v. Richards, 7 H. L. Cas. 349, 11 Eng. Reprint, 140 (1859), Wightman, J.; Pugh v. Wheeler, 19 N. C. (2 Dev. & B.) 50 (1836), Ruffin, C. J.; GALE ON EASEMENTS, 8 ed. (1908), 258; ANGELL ON WATERCOURSES, 7 ed., 133; SALMOND ON TORTS, 254.

47 Arkwright v. Gell, 5 M. & W. 203, 151 Eng. Reprint, 87 (1839). In development of this doctrine, compare the present writer's paper in 29 HARV. L. REV. 137. See also the doubtful ruling in E. Clemens Horst Co. v. New Blue Point Co., 177 Cal. 631, 171 Pac. 417 (1918).

48 Acton v. Blundell, 12 M. & W. 324, 152 Eng. Reprint, 1223 (1843).

by Chief Baron Pollock as having placed the cases for natural streams "upon their right footing." 49 The term "riparian" in reference to the subject occurs in Wood v. Waud for the first time (so far as we have discovered) in any English authority. As his main reliance, Chief Baron Pollock quotes Kent and Story. "The law is laid down by Chancellor Kent," he says (quoting Kent); "and Mr. Justice Story lays down the same law." 50 The next case, also in the Exchequer, was Embrey v. Owen,51 in 1851, which has been widely cited. Baron Parke there adopts the use of the term and repeats the statement that the law of flowing water "is now put on its right footing." He cited "the very able judgment of the late Mr. Justice Story," 52 and a late edition of "Angell on Watercourses," and quotes at length from Kent's Commentaries.53 No hesitancy appears in English decisions henceforth.54

Emphasis upon the way the English decisions bring up with Kent, Story, and thereby the French code, is furnished by the next important English ruling, which appeared in 1858. It was a Privy Council case, appealed from Canada, where French law had once prevailed. Counsel read from Story and Kent, and while the opinion cites no authority it commends counsel for having gone into the questions "with great learning and ingenuity." There occurs the following significant conclusion: "It does not appear that, for the purposes of this case, any material distinction exists between the French and the English law."55

49 Wood v. Waud, 3 Exch. 748, 154 Eng. Reprint, 1047 (1849). See the comment upon this leading case in E. Clemens Horst Co. v. New Blue Point Co., 177 Cal. 631, 171 Pac. 417 (1918).

50 Quoting 3 KENT Comm., 2 ed., 439; Story in Tyler v. Wilkinson, 4 Mason, 397, Fed. Cas. No. 14, 312 (1827).

51 6 Exch. 353, 20 L. J. (N. S.) 212, 155 Eng. Reprint, 579 (1851).

52 Webb v. Portland Mfg. Co., 3 Sumner, 189, Fed. Cas. No. 17, 322 (1838).

53 Counsel (Bramwell and Beavan) use the name "riparian proprietor" as in common use; opposing counsel cites Story in Tyler v. Wilkinson, and both sides refer to other American cases.

54 "There was a strong tendency on the part of some of the judges in earlier times to recognize a right to obtain title to water by prior appropriation or occupancy, and at one time it seemed as though that doctrine would be established." Note in 30 L. R. A. 665. "This doctrine was not established until comparatively modern times," etc. . . . "Appropriation of the water of flowing streams for purposes of utility has thus gradually changed from being considered a means of acquiring important water rights to being deemed of importance only as evidence of damage and a measure of damages to be recovered." GODDARD, EASEMENTS, 7 ed., 348.

55 Miner v. Gilmour, 12 Moore P. C. 131, 14 Eng. Reprint, 861 (1858).

We are therefore referred, by the English reports themselves, to these American jurists for the designation of the doctrine as a "riparian" one, and for the most approved expression of the doctrine, by the aid of which the English courts were enabled to lay contention at rest. The American usage arose through Story and Kent, both of whom at about the same time took the name and doctrine from the French civil law. This is far removed from the Year Books, to which it has been so often ascribed. If this presentation is correct, the common law of watercourses is not the ancient result of English law, but is a French doctrine (modern at that) received into English law only through the influence of two eminent American jurists.

The identity of the modern common law of watercourses with the civil law has been repeatedly acknowledged. Among writers the statement of Angell that the name "riparian proprietor" is taken from the civil law has already been noticed. "The owners of watercourses are denominated by the civilians riparian proprietors, and the use of the same significant and convenient term is now fully introduced into the common law."56 Speaking of the civil law regarding the use of water, Mr. Yale says: "These rights do not, as has been seen, differ substantially, so far as private property is concerned, from the common law."57 According to another writer, the common law of fishing is likewise based upon the civil law. 58 Washburn declared: "No lawyer need be told that many of the principles of the common law of Easements are derived directly from the civil law, and may be found in the Scotch and Continental systems of jurisprudence." 59

Among jurists may be cited a well-known decision of Lord Kingsdown that the French law and the common law are not materially different.60 In the Supreme Court of the United States we have recent testimony from Mr. Chief Justice White of the same nature. 61 And we have the same testimony in the

56

67

ANGELL ON WATERCOURSES, 6 ed., § 10.

YALE, MINING CLAIMS AND WATER RIGHTS, 153.

58 SCHULTES, AQUATIC RIGHTS, 1.

59 WASHBURN ON EASEMENTS, 4 ed., xiii (preface to 1 ed.).

GO Miner v. Gilmour, 12 Moore P. C. 156, 14 Eng. Reprint, 861 (1858).

61 Cubbins v. Mississippi River Commission, 241 U. S. 351, 36 Sup. Ct. Rep. 671 (1916).

reports of the supreme courts of California,62 Texas,63 and Vermont,64 among others.

The doctrine of the French code upon watercourses has spread similarly to the countries of Europe, South America, and even to Japan. The limits of this paper force it to be content with referring to others where that is more adequately set forth.65

III

The descent being indicated whereby the common law of watercourses comes to us from the French law, we may examine the doctrines of the French law with justifiable anticipation that they will have interest and profit for us in the investigation of the problems we are now meeting every day, in working under the same law of watercourses which they have, and which came to us from them.

The French system consists principally of the two Code sections already quoted, and the elaboration thereof by commentators. As so unfolded, its fundamental doctrines are: The use of a stream is confined primarily to riparian owners, that is, the owners of land contiguous to the flow of the water, excluding nonriparian owners or lands, and without preference because of priority of use, or penalty because of nonuse. The riparian owners have equal rights for reasonable use upon their riparian lands, what is a reasonable use being left to the discretion of the courts. Riparian land is defined as the land in contact with the stream, the test being applied as of the time of attempted use, so that if a change of boundary of the land occurs it affects the riparian land as follows: If the change is of the river boundary, by a permanent shift of the channel away from

62 Irwin v. Phillips, 5 Cal. 140 (1855); Lux v. Haggin, 69 Cal. 255, 334, 10 Pac. 674 (1886); Wholey v. Caldwell, 108 Cal. 95, 41 Pac. 31 (1895). On the argument in Lux v. Haggin, Mr. Hall McAllister read passages of the Spanish law from Eschriche, and the following colloquy occurred between him and Mr. Justice McKee: McKEE, J.: "What is the difference between that and the common law?" MCALLISTER: "There does not seem to be any material difference so far as I can understand."

63 "There is no material difference between the common law rule and that of the Roman and French law." Fleming v. Davis, 37 Tex. 173, 199 (1872). See also Rhodes v. Whitehead, 27 Tex. 304, 310 (1863).

64 Tuthill v. Scott, 43 Vt. 525 (1871).

65 Lobingier, "Napoleon and his Code," 32 HARV. L. REV. 114, 128; Wiel, “Origin and Comparative Development of the Law of Watercourses in the Common Law and in the Civil Law," 6 Cal. L. Rev. 245, 342. A copy of the latter paper may be had upon application to the Editor of CAL. L. REV., Berkeley, Cal.

the land (as by a sudden freshet), the former contact ceases to be of avail, as there remains no contact at time of attempted use. Similarly if a highway comes to be interposed along the river bank: If the change of boundary is on the exterior side of the land, by a shift inward, causing a contraction of area (as where an outer part of the tract is sold off), the parts cast out by the contraction cease, while so severed, to be riparian, since the parcels so detached cease to have contact with the stream at time of attempted use under such conditions. If the change of exterior boundary is by shift outward (as by a purchase of land next to the outer boundary), causing expansion of area, the united tract has contact with the stream, and the expanded area is all riparian while the union lasts. These fundamental civil law rules are subject to modification by grant, condemnation, or prescription.

In another place the present writer has set out and quoted the French authorities upon these principles at considerable length.6 They are believed to be also the correct principles of the common law. The desire of the present paper is to carry the matter into other points not gone into in the previous paper.

1. A little discussion appears in the French commentators as to whether the riparian principles apply to small rivulets; but the distinction is discountenanced. "The law could not but condemn a distinction so little justified. Moreover most authors, notably Daviel and Championnière, have refused to admit a different legal status for rivulets than for rivers." 67

In English and American law a distinction is stated, namely, that the common law distinguishes small streams in respect to domestic use. It is said that very small streams may be wholly consumed by an upper riparian owner where the water is taken only for such use.68 But it is a point in some uncertainty. For

66

6 CAL. L. REV. 245, 342. A reprint thereof will be mailed on request to the Editor of the CAL. L. REV., University of California, Berkeley, California.

67 "La jurisprudence ne pouvait donc que condamner une distinction si peu justifiée. Du reste, la plupart des auteurs, et notamment Daviel et Championnière, se sont refusés à admettre pour les ruisseaux une condition légale différente de celle des rivières." I PICARD, TRAITÉ DES EAUX, 2 ed., 250. Accord, AUBRY ET RAU, 5 ed., 2, 47, 3, 80, note I ter.

68 Miner v. Gilmour, 12 Moore P. C. 131, 14 Eng. Reprint, 861 (1858); AttorneyGeneral v. Great Eastern Ry. Co., 23 L. T. (N. S.) 344, affirmed in L. R. 6 Ch. 572 (1871); Lord Norbury v. Kitchin, 9 Jur. (N. S.) 132; 7 L. T. 685 (1863); Jones v. Tennessee, etc. Co., 80 So. (Ala.) 463 (1918); Lux v. Haggin, 69 Cal. 255, 395, 10 Pac. 674