ing them, and without compensation.131 In America, the revocability has been a subject of contention for some years.132

Comparison of these and of many similar matters as discussed in the French books with the rules and regulations of our water boards and commissions and of the federal departments having to do with reservoirs and canals built upon public lands or upon navigable rivers will suggest many points of common interest.

8. In the same connection, our public-service commissions have taken over the regulation of charges and conditions of distribution of water by distributors to their consumers, which step (unless recently) has apparently not yet been definitely taken in France. The companies are required to publish their charges and regulations, but it seems to be still treated as arguable whether these rates and regulations can be publicly controlled, and whether they need necessarily be followed.

As indicating public control the following statement is quoted from Labori:

"The waters of irrigation canals are considered, with their laterals, as 'res nullius,' whose use is reserved to all, and which for that reason are insusceptible of private appropriation. Consequently, while the bed of an irrigation canal or ditch may be the subject of a private property right, it is otherwise with the water which fills it; the agreements of the parties cannot prevail against the declared policy of the public authority which has distributed this water with a view to the common interest.” 133

131 “La concession règle l'exercice d'un droit préexistant; elle n'en confère aucun au concessionnaire. Il est certain que celui-ci ne peut pas s'en prévaloir comme d'un droit acquis à l'égard de l'administration; l'autorité administrative intervient toujours dans un intérêt public, et l'on ne peut jamais opposer un droit, pour mieux dire un intérêt privé à l'intérêt public; bien moins encore peut-on fonder un droit sur un acte administratif. Les autorités qui agissent dans l'intérêt public, le pouvoir exécutif aussi bien que le pouvoir législatif, peuvent toujours revenir sur ce qu'elles ont fait, en abrogeant leurs actes ou en les modifiant; il n'y a pas de droit acquis contre l'État. De là le principe que les concessions en matière de cours d'eau sont essentiellement révocables, et la révocation se fait, comme nous l'avons déjà dit, sans que le concessionnaire ait droit à une indemnité, du moins en vertu de la concession. S'il a des droits préexistants contre un co-riverain, il peut les faire valoir en justice (Ordonnance du conseil d'État du 18 novembre 1842 (Dalloz, au mot Eaux no 470, 1o)). Car il résulte encore de la nature des concessions qu'elles ne sauraient donner ni enlever un droit." 7 LAURENT, PRINCIPES DE DROIT CIVIL, 394-395.

132 See WIEL, WATER RIGHTS IN THE Western States, 3 ed., §§ 432, 434, 437. 133 "Les eaux des canaux d'irrigation sont considérées avec leurs ramifications, comme des 'res nullius,' dont l'usage est réservé à tous, et qui, à ce titre, sont insusceptibles d'appropriation privée. Si par suite le lit des canaux ou fossés d'irrigation peut

On the other hand, against public regulation of the distribution of irrigation water, another commentator says:

"Irrigation canals are not part of the public domain. The definition of this domain by article 538 of the Civil Code: 'the portions of French territory which are not susceptible of private property,' does not apply to these canals; for an irrigation canal may perfectly well belong to an individual. Their use is never public. Without doubt, the large canals are established in the general interest of the region which they serve. But there is no right for every one, nor even for all of the riparians, to use them free or to take water from them at will; it is only by virtue of private contracts that certain proprietors make use of them to irrigate their lands. The character of private property of these canals has been recognized several times in judicial decisions." 134

The same writer (the date of the work is 1896) discussed the matter further in the same vein. The schedule of rules and charges of irrigation canals, he says, requires contracts of service to conform to a pattern prescribed by the administration; but departure therefrom is allowed. The contract, and not the schedule of rates, governs. This has not been adjudged by the Council of State or by the Court of Cassation, but follows from the principle of freedom of contract. Where it does not exist, as in railways, owing to special legislation nullifying individual contracts, the latter are enenforceable in all provisions not contrary to the public order. The contract of service, and not the schedule of rates, is looked to by the courts in suits between the canal owners and the irrigators.135 être l'objet d'un droit de propriété privée, il en est autrement de l'eau qui le remplit; les conventions passées entre les parties ne sauraient prévaloir contre la destination de l'autorité publique qui a distribué cette eau au mieux des intérêts communs: Paris, 8 mars 1887 (D. 88. 2. 247)." 5 LABORI, RÉPERTOIRE DU DROIT FRANÇAIS, 459.

134 "Les canaux d'irrigation ne font pas partie du domaine public. La définition donnée de ce domaine par l'article 538 du Code civil: 'les portions du territoire français qui ne sont pas susceptibles de propriété privée,' ne s'applique pas à ces canaux; car un canal d'irrigation peut parfaitement appartenir à un particulier. Leur usage n'est jamais public. Sans doute, les grands canaux sont établis dans l'intérêt général de la contrée qu'ils desservent. Mais il n'appartient pas à tout le monde, ni même à tous les riverains, d'en user librement et d'y puiser de l'eau à volonté; c'est seulement en vertu de contrats privés, que certains propriétaires s'en servent pour irriguer leurs terres. Le caractère de propriété privée de ces canaux a été reconnu à diverses reprises par la jurisprudence (C. C., civ. 1er avril 1884, Compagnie générale des canaux et des travaux publics c. l'Administration de l'Enregistrement)." 4 PICARD, TRAITÉ DES EAUX, 2 ed., 27, 28. This author is Inspecteur Général des Ponts et Chaussées, Président de la section des Travaux publics, de l'Agriculture, du Commerce et de l'Industrie au Conseil d'État. 4 PICARD, TRAITÉ DES EAUX, 2 ed., 54, 55.

135

This subject has been much debated in the irrigation cases in America, and of recent years the voidability of private contracts has come to be generally acknowledged, wherever they conflict with public rulings or with the requirement of equal service upon equal terms and at reasonable rates and subject to reasonable regulations. The present writer has not read sufficiently upon this matter in the more recent French writers to say whether the passage represents the present French point of view. It is quoted here to show that the form of contention is identical with the stand taken in American irrigation cases until the recent acceptance of the public service doctrines.136

In conclusion, it is hoped that among those specially interested in the subject of waters this paper may stimulate a little curiosity to see what else these sources of information contain.137

If they disclose a different system than ours, casual attention satisfying curiosity, would be as much as they merited. But if found to be the system which we have, only more completely worked out than with us, they seem to offer practical value of marked extent; an available fund of information which can bring considerable light to a region of private law where there has been much groping and puzzling. It cannot, of course, be authority, nor would I wish it to be. I question the advisability of creating foreign authority even over public affairs in excess of judicial requirements. But the French learning can advance our knowledge upon this subject to-day without being authority, as it did when our law went to it for the fundamental principles in the beginning. 138 Samuel C. Wiel.

SAN FRANCISCO.

136 See WIEL, WATER RIGHTS IN THE WESTERN STATES, 3 ed., chap. 56. 137 The following French books are recommended. They are in the larger law libraries, and copies can be bought from N. A. Phemister Co., 42 Broadway, New York. Their main shortcoming is the uniform lack of proper indexing in French law books. PARDESSUS, TRAITÉ DES SERVITUDES; DAVIEL, TRAITÉ DE LA LÉGISLATION ET DE LA PRATIQUE DES COURS D'EAU (1845); DEMOLOMBE, TRAITÉ DES SERVITUDES; PICARD, TRAITÉ DES EAUX, 2 ed. (1896); BOULÉ ET Lescuyer, Code DES COURS D'EAU, 2 ed. (1900); FABREGUETTES, TRAITÉ DES EAUX (1911); 3 AUBRY ET RAU, DROIT CIVIL FRANÇAIS, 5 ed., 5 LABORI, RÉPERTOIRE DU DROIT FRANÇAIS; 7 LAURENT, PRINCIPES DE DROIT CIVIL; BAUDRY-LACANTINÉRIE ET CHAUVEAU, TRAITÉ DE DROIT CIVIL, DES BIENS, 3 ed. (1905).

138 Acknowledgment is made to Mr. Richard C. Harrison, San Francisco, for assistance in translating the French passages herein quoted.

LEGAL PREPARATION TESTED BY SUCCESS IN PRACTICE

"THI

"HINGS are to be determined, not by arguing, but by trying," said the great lawyer-philosopher, Francis Bacon, in laying the foundation for modern scientific research. In the spirit of that suggestion the effectiveness of different modes of legal preparation should be determined, not so much by a priori argument as by observation of what sort of preparation produces the greatest success in actual practice.

The question at once arises, "What is success in practice?" In the opinion of clients, success in practice means success in court. In the opinion of the bar, success in practice means success in court. With success in court follows abundance of clients, lucrative consultation practice, and financial success. With failure in court, clients vanish, consultation practice disappears, and financial returns fade away. Granting that success in court is not an ideal test of a lawyer's success, since it ignores the larger social aspects of the question, yet success in court and no other is the practical test of success applied to the lawyer in the actual world. How far

1 General agreement that success in court is the proper standard by which to measure a lawyer's success is hardly to be expected. It will be objected by some that success in court is at least sometimes, if not often, won by questionable means. It will be objected, further, that success in court bears no relation to that important but unadvertised part of every honest lawyer's practice in which he guides the affairs of clients to keep them out of litigation, and in which, when controversies arise, he procures adjustments and brings about settlements without resort to court proceedings. This feature will be especially emphasized in connection with the practice of law in the larger commercial centers, where the lawyers generally accounted the most successful are frequently office lawyers who but rarely appear in the court room.

Conceding full weight to such objections, success in court must still be recognized as one of the most important tests of success that can be applied to a member of the legal profession. It is a test of success the accuracy of which depends, in any given situation, upon the relation obtaining between court-room and office practice. As applied to general practice, at least outside of the larger centers, it is believed to be fairly representative. Even in the case of the larger centers it is admitted by some, but will no doubt be denied by others, that successful office practice is usually built upon the foundation of already achieved success in the court room.

legal preparation is reflected in success in court is therefore of great practical consequence, not only to the world of legal education, but also to the community at large, the concerns of which depend largely upon order and justice.

There are differences in aptitudes as well as differences in preparation. The greater inborn ability with which the more capable are often endowed enables them to forge ahead of their less fortunate brethren, even in spite of deficient preparation. The "personal equation" will therefore continue to play a large part in the individual lawyer's chances of success, even after the last word has been spoken regarding effectiveness of preparation. Since with "other things being equal," however, some sorts of preparation produce greater success in court than others, it is instructive to all concerned to observe how differences in legal preparation are reflected in later success in actual practice.

The estimates here submitted on the questions involved are based on the facts stated in applications for admission to the bar and on the court records of North Dakota. All the candidates admitted to the bar by examination from 1902 to 1913, inclusive, are included in the estimates, and the measure of their success is based upon the complete state Supreme Court record from the beginning of that period till the present time, supplemented by a cross-section view of district court work for one term of court covering nearly

2 Acknowledgments for much valuable assistance in the preparation of this study are due to a host of friends and helpers. Without the kindly interest of Justices Birdzell and Bruce of the Supreme Court of North Dakota in facilitating my access to the records of qualifications, this study could never have been undertaken. Mr. Howard E. Newton, Clerk of the Supreme Court, should also be mentioned in this connection. Justice Bronson, recently a member of the State Board of Bar Examiners, also assisted with several valuable suggestions. My colleague, Professor Hugh E. Willis, now Acting Dean of the University of North Dakota Law School, by his friendly interest in the subject afforded me constant encouragement. On questions of local information, identification, etc., I have had the most generous assistance from various members of the local bar. Acknowledgment should also be made for the responses by district judges, clerks of district courts, and mer. in other schools, to inquiries put to them from time to time in the course of this investigation. Further, acknowledgment is due to William H. Greenleaf, former Registrar of the University of North Dakota, for his courtesy in putting the material University records at my disposal when wanted. Lastly, acknowledgment for very welcome assistance in examination of records and recording of computations is due to my small but resourceful better half, my wife.

2 NORTH DAKOTA Reports, Vols. 14–36.