CHAPTER XII.

THE CONSERVATION MEASURES.

Definite Provisions Made for Listing the State's Natural Resources and for Regulating Their Use-Character of Opposition at Previous Sessions.

The so-called "Conservation" bills which were considered at the 1911 session of the Legislature, dealt with conditions that were unknown when the State Constitution was adopted in 1879.

These conditions result generally from the passage of natural resources under private control, but find their most important expression in the utilization of the falling waters of California streams for power purposes. It was with this feature that the 1911 Legislature dealt principally.

When long-distance transmission of electric power had been made practical, the falling waters at once became enormously valuable.182 This value was due to an

182 Former Governor George C. Pardee stated before the National Education Association, that the power which could be developed from these falling waters, would equal the labor of 65,000,000 men.

"In California alone," said Governor Pardee, "the streams are, it is estimated, capable of generating 5,000,000 horsepower of electrical energy. The work of one horsepower of electrical energy is estimated to be equivalent to the labor of thirteen men. California's 5,000,000 water horsepower, therefore, represent the labor of 65,000,000 toiling men; and the 30,000,000 horsepower used in the United States to-day accomplish the work of 390,000,000 men.

"He who controls, then, the water powers of this country will be, in effect, the owner of an army of slaves over four times

application of electric power transmission, theretofore unheard of.

As the conditions thus suddenly brought about were entirely new, no provision to meet them had been made in the laws of the State. Indeed, Legislature after Legislature had failed to take any step toward regulating or restricting such appropriation. There was not, up to the 1911 session, any comprehensive law on California statute books for the disposition of this water wealth. Under the system of appropriation followed, any person wishing to take water from a stream, or to use such water, posted a notice of the amount he proposed to take, and took it.183

With the development of electric power transmission, water power worth hundreds of millions of dollars, its value little understood, was lying unprotected by law, at the mercy of the first to appropriate it.

This wealth, until it passed into private hands, belonged to all The People of the State. Those interested in grabbing it, kept knowledge of the situation from the public, so far as possible, and sent agents to Sacramento

greater in number than the 90,000,000 men, women and children now within the borders of this Union.

"Who shall own that army, direct the energies of that enormous power, and levy toll upon those who use the products of its labor? Shall it be a very few of our people. Shall that toll, its size set by those few, be collected from every American citizen by those whose natural and very human desire it will be to collect 'all the traffic will bear'? Give me a monopoly of a Nation's power plants and I will not care whose foot rocks its cradles, who writes its songs or makes its laws. The cradles and the songs will not interest me at all; and as for the laws, I will write myself all of them in which I have any interest, until some kind of a revolution unseats me from the throne."

183 This loose system promises to make trouble later on. It is said that in the case of many of the streams from ten to twentyfive times the amount of water which the streams carry has been "appropriated." Without regulation of appropriation such a result was inevitable.

to prevent any legislation which would tend to protect the public's interests.

Nevertheless, as early as 1903, a bill to regulate the appropriation of water was introduced. Its passage was, however, prevented. A similar measure was introduced at the 1905 session, only to meet defeat.

At the 1907 session, hopelessly dominated by the machine, no such measure was introduced, and probably none would have been at the 1909 session, had it not been for an attempt made by the special interests intent upon securing the water wealth of the State, to involve the State in active opposition to the Federal Government's conservation policies.

In carrying out these policies, the Federal Government had, in a way, been able to protect the rights of The People of California to their water power. This could be done, however, only in the case of water flowing through Government lands.

Under the law, the Government lands within the borders of the State are held by the Federal Government, not for the use of The People of California alone, but for the use of The People of the entire nation. On the other hand, the physical water of the streams within the boundaries of the State, is State property, to be conserved or dissipated by the State. Directly, the Government could do nothing for the conservation of these waters, but indirectly the Government could do much. This was done through the Government's control of the Forest Reserve.

Many of the most valuable water rights that have fallen into private hands are within Government Forest Reserves. The Federal Government could not regulate

the appropriation and taking of these waters, but it could prescribe rules for the use of the Forest Reserve from which the water was taken. This was done. In this way the Government could in a measure conserve the State's water wealth until The People of California awoke to the necessity for its protection.

This policy of the Federal Government interfered materially with the purposes of the private interests that were intent upon securing the water rights away from The People. At the 1909 session, therefore, a concurrent resolution 184 was introduced, which in effect directed the State Attorney General to defend against the Federal Government, the special interests engaged in securing water rights in Forest Reserves.

184 Senate Concurrent Resolution No. 7, Session of 1909. The Resolution in full was as follows:

"Whereas, It has come to the notice of the Legislature, that citizens of this State, engaged in lawful occupations, using, in conformity with the provisions of the State Constitution and statutes made thereunder, property and property rights owned by the State and by the people of the State, have been interfered with in said use by persons, who, declaring themselves to be officials of the United States, have asserted, and by duress have exercised, rights of regulation of use, and of taxation of use, of said properties of the State while being lawfully used by its citizens; and, "Whereas, The provision of the Constitution and statutes of this State, under and by virtue of which its citizens make use of their common property aforesaid, are not inconsistent with the Act of admission of the State into the United States, nor inconsistent with any other act or acts of Congress.

"Resolved, By the Senate and the Assembly concurring, that the Attorney-General of this State be and is hereby authorized, empowered and directed to appear in behalf of the State in any action or actions brought by the United States against the citizens of this State, to collect taxes from them for their use of property and property rights owned by the State or the people thereof, or to maintain any authority or right of regulation of use by citizens of this State of property and of property rights owned by the State or by the people thereof; and that the Attorney-General is further directed by proper legal proceeding to assert and maintain the right and title of the State to its said properties, and to assert and maintain the right of citizens of the State to use said properties free of interference from persons claiming to be officials of the United States and thereby to be authorized and empowered to make such interference."

The purpose of this resolution was exposed by the Sacramento Bee.

When its author, Senator E. S. Birdsall of Auburn, who had introduced it "by request," understood its purport, he withdrew his support, and the resolution was left in the Judiciary Committee to which it had been referred.

The discussion caused by the introduction of this resolution brought prominently before the Legislature the necessity for proper regulation of the appropriation and use of the State's water wealth.

Senator Marshall Black of Palo Alto accordingly introduced a bill 185 providing for such regulation. The

185 Senate Bill 1063, Session of 1909.

The measure declared all water flowing in known or defined channels, whether below or above ground, to be the property of the State. The water which percolates through the soil was declared to be the property of the person owning the soil through which it percolates.

Riparian rights in the waters of the streams were limited to the amount of water necessary for the beneficial uses of the riparian owners. This water could be used only to a reasonable extent and consistent with the equal use thereof by all others entitled to use the water. The surplus was required to be turned back into the stream.

Subject to vested right therein the waters of any stream could be appropriated under the provisions of the Act for any beneficial public or private use, but only in the manner in which the measure provided.

For carrying out the purposes of the measure, a board of four engineers was provided.

A person or corporation wishing to appropriate water was required to file an application with the Board of Engineers setting forth the quantity of water desired, the stream and the point thereof from which it was to be taken, and the purposes for which it was to be used. The engineers after due publication were required to grant or reject the petition in conformity with the regulations provided in the Act.

The engineers were not permitted to authorize the construction of works for the diversion of any water the capacity of which was in excess of the surplus unappropriated water in any stream nor could any permit granted affect or in any way interfere with previously vested rights.

The permit had to show the amount of water authorized to be appropriated, for what purposes, the place of use, the means by which the diversion and application of the water was to be made, and the time within which the works for the diversion and application thereof shall be completed, not exceeding a reasonable period to be fixed by the Board.

Violations of the provisions of the Act were made misdemeanors.