Abbildungen der Seite
PDF
EPUB

.

responsibility, for there is no more powerful agency for influencing public action than these. But the duty cannot be left to the preachers and the newspapers. Everyone has his responsibility, and organized effort should be made to stimulate sentiments of patriotism and respect for the orderly administration of the functions of government. We cannot but regret enactments showing a disposition to discriminate between classes of citizens in the punishment of crime, or in the use of the remedial processes of the courts of justice. We cannot but deplore the frequency with which legitimate and proper criticism of judicial practice and procedure, wherein it seems inadequate, is permitted to degenerate into a denunciation of the courts, and of the judges, and of the integrity of the judicial system itself.

The social revolution that is under way will bring its blessings to many. But it is idle to ignore the fact that representative government itself is on trial. New problems confront society, and the question is whether the excesses that have characterized other revolutions will here be avoided, or whether after sad experience we will finally welcome the reaction that so frequently follows a forward movement. Our republic is undergoing a supreme test not less vital than the contest over the slavery question in an earlier generation. For it is conceivable that by a division of the Union on slavery, the republican principle would still live in two separate nations, but here the root of the problem is whether republican institutions contain within themselves the great essential, the power to maintain law and order and to preserve the rights of citizens from extortionate demands, not only of monopoly and intrenched wealth, not only of the agitator and disturber, not only of the envious, but as well those of the unthinking and of those who are unwilling to accept the teachings of history and the lessons of experience.

American traditions are learned at second-hand by a considerable part of the population. In 1910, the foreign born white persons in the United States were over thirteen million in number, or nearly fifteen per cent. of the population. And out of ninety-one millions, thirty-two millions or thirty-five per cent., were either foreign born or had one or both parents foreign born. Moreover, the foreign born population is massed in certain localities, so that in the district east of the Mississippi and north of the Ohio and the Potomac there were, in 1910, seventy-five per cent. of the foreign born, and eighty-two per cent. of the recent immigrants. That section includes thirty-two cities having a population of over 100,000 each, out of fifty-two such cities in the entire United States.

These figures are suggestive, for while I would be slow to assert that those who have recently fled from oppressive conditions to come to the country where they hope for the blessings of freedom, are unappreciative of the advantages they enjoy under the republic, yet, the rapid infiltration of foreign blood, and the falling birth-rate among

those of native stock, indicate that the inherited veneration of the American people of former generations for the forms of constitutional government as exemplified here, cannot now be shared by a large portion of the population which has not imbibed these sentiments from childhood.

Let those who come to us from abroad share in the blessings of freedom regulated by law. But, remembering as we must that there is no longer an unlimited extent of free land open to settlement; that the rapid increase in our population has already reached the brim; that the congestion in the cities grows apace; that at the present rate our population will reach two hundred million by 1950; that the United States will within the near future be compelled to import its principal raw food products; and that the struggle for existence will become keener as the years go on-considering these factors, the problems of representative government in the United States may be viewed in a new light.

No graver duty ever confronted the Bar than in the times that are now upon us. Great as was the service to mankind of the lawyers that aided in shaping, and afterward setting afloat and guiding, the American ship of state; great as was their part in the solution of the important constitutional questions that involved the life of the nation in other generations, the lawyers and judges of our time have need for their best powers in behalf of their country. As Marshall, and other great expounders of the constitution, by wisdom and foresight were able to make republican government under a written constitution practicable and self-operative, so now the application of constitutional principles to the novel questions of the day, requires profound judgment and discrimination, and lofty conceptions of principles rather than the nice application of precedents. This duty is for the courts; but for the members of the Bar in general, besides their bounden duty to assist and support the courts, there is a further duty to assist in the promulgation of the teachings of the past and in the forming of popular opinion on correct lines.

In a book recently issued entitled "Social Forces in England and America," Mr. H. G. Wells gives a Socialist's criticisms and prophecies, and it is noticeable how frequently and how bitterly he alludes to lawyers in the political activities in England, speaking of their predominance in the House of Commons and claiming that they are not in accord with the spirit of the times. I do not know how much of this criticism is just, but it certainly has never been true of the American Bar. Here, although lawyers have always taken prominent place in the legislative halls, and have filled positions of trust and honor from chief magistrate of the nation down to places of minor importance, they have rarely been found wanting in patriotism or lacking sympathy with progress and with the highest ideals of citizenship.

What a roll of glorious names would be the list of the lawyers of

our country who have given of their talents to the public weal! It may be said broadly that the American lawyer, whether he ever holds political office or not, gives much to the cause of good government. But more can be done. It is when the Bar realizes the gravity of the questions in issue and appreciates that our representative institutions are fast changing, that the great influence of its members will be put forward and will be effective.

Our Republic!

Let the motto "Esto Perpetua" be made sure and true. Not a republic such as ancient Venice, ruled by an oligarchy of wealth, nor such a republic as Athens where the vote of the mob exiled the ablest of the citizens from the councils of state; but a republic of equality under the law, where special privileges are not granted to the rich nor demanded by the poor, where personal liberty is guaranteed; where oppression is banished; where industry and enterprise is entitled to its reward, and where justice is meted out promptly, impartially and without fear or favor.

RIGHT OF STATE TO REGULATE DISTRIBU

TION OF WATER RIGHTS

PROF. O. L. WALLER, PULLMAN.

It is the unanimous consensus of authority that the use of water in the arid region of the West, especially for the irrigation and reclamation of land, is a public use, in which the general public are directly interested, and that the state has authority to supervise the distribution of the waters within its boundaries and to deliver them to those having the lawful right to use the same. This is to prevent a conflict of rights and to insure to each owner of a right the uninterrupted enjoyment of his own. There can be no absolute title to the corpus of the water of a stream or other body of water, either by the public or an individual, so long as it flows naturally. It is like the air-a naturally-flowing substance, incapable of absolute ownership. However, a right may be acquired to the use of running water, or to a certain amount of running water, which the law will regard and protect as property. Further than this the law will not, be< cause it cannot, go.

"Water is the property of no one, and subject to the regulation and control of the state in its soverign capacity." 22 Idaho, 236; 43 L. R. A., 240.

Power of State.

The power of the state over public waters within its boundaries is limited to the enactment and enforcement of such reasonable police regulations as may be deemed necessary to preserve the common right of all. McLennen vs. Prentice. 85 Wis. 427. Kinney 2nd Ed., Sec. 334.

The method of acquiring the right to the use of water by appropriation is based on the civil law, ancient customs, and the method adopted by the miners in California when all the lands and the streams were in Federal ownership. By the federal statute of 1866 free access was permitted to any one over the lands of the United States for the purpose of posting a notice of the appropriation of water, the owner of the fee (the United States) waiving its rights as a riparian owner; but these rights were not waived as against lands in private ownership. Consequently, there grew up in California, and in other states adopting her system, two conflicting methods of acquiring the right to the use of the public waters. I say "conflicting" advisedly, since it took an Act of Congress to remove the cloud from the water titles of the California miners, and in every other Western state where water titles have been defined and made a matter of record, it has required the enactment of a water code that provides for a title based on use.

The leading English case-Mason vs. Hill-laid down the doctrine that the use of running water was limited to those past whose land the stream flowed, as a common benefit, to be enjoyed by them equally, with priority to none. Wiel, in his text on water rights in the Western states says: "The most essential feature of the common law, the exclusion of non-riparian owners of lands from rights to streams on private land, is not changed nor modified in California, but is in force there as in England," and cites Miller and Lux vs. Madera Canal Co., 155 Cal. 59, as authority. The rule likewise applies in Washington. "Any statement that non-riparian owners have rights in streams (except by grant, condemnation, and prescription), if meant as a statement of general principle, is not in harmony with the philosophy of the common law."

In Lux vs. Haggin the court says: "The right of any riparian owner to restrain the diversion, by other than riparian owners, of water which would, if undisturbed, flow past their lands, does not rest upon the extent to which they have used the water, nor upon the injury which might be done to their present use. Even if these plaintiffs had never made any use of the water flowing past their land, they had the right to have it continued in its customary flow, subject to such diminution as might result from reasonable use by other riparian proprietors. This is a right of property, a part and parcel of the land itself, and plaintiffs are entitled to have restrained any act which would infringe upon the right."

In Miller and Lux vs. Madera Canal Co. 155 California 59, the ruling of the court is prefaced on the facts that the river banks through the Miller and Lux property were low and that floods annually overflowed them, and deposited on such land large quantities of fertilizer and enriching materials, increasing their productiveness and enhancing their value. The defendants wished to store such flood waters for use on non-riparian lands. The court held, “That the riparian proprietor is entitled as against the non-riparian taker to the ordinary and usual flow of the stream. There is no good reason for saying that the greatly increased flow following the annually recurring fall of rain and melting snow in a region about the head of the stream is any less usual and ordinary than the much diminished flow which comes after the rains and melting snows have run off. The doctrine that the riparian owner is limited to a reasonable use of the water applies only as between different riparian proprietors. As against an appropriator who seeks to divert water to non-riparian land, the riparian owner is entitled to restrain any diversion which will deprive him of the customary flow of water, which is, or may be, beneficial to his land. He is not limited by any measure of reasonableness."

In this state the courts have followed the above California case and in the case of Still vs. Palouse Irrigation & Power Co. 64 Wash.

« ZurückWeiter »