Page:Harvard Law Review Volume 32.djvu/905

BOOK REVIEWS 869 make use of their interesting power to recommend legislation by proposing an amendment on this point. Their draft provides for compensation " though the injury cannot be traced to a definite occurrence which can be located in time and place; nor shall it be a defense that it is, either in whole or in part, a disease." This amendment seems to be an excellent piece of drafting. The Report as a whole may be commended as a sensible business-like presen- tation of the work of a great industrial instrumentaUty. J. H. B. Water: French Law and Common Law. A Reprint from Volume VI of the California Law Review. By Samuel C. Wiel of the San Francisco Bar. In this little book Mr. Wiel makes another real contribution to the law of waters. His "Water Rights in the Western States," now in its third edition, and which deals with the riparian and with the appropriation systems of water law is one of the masterpieces of American legal literature. In the present book of fifty-two pages, the subject of this review, Mr. Wiel discusses the origin of the riparian doctrine as that doctrine exists in the com- mon law of America and of England, and also makes a comparison between the riparian doctrine of the common law and the riparian doctrine of the French Civil Code. 1 The essence of the riparian doctrine is the principle that the riparian pro- prietors along a stream have an equal right to make reasonable use of the waters of the stream. Mr. Wiel's conclusion as to the origin of the riparian doctrine wiU prove rather starthng to American and English lawyers and jurists. With evidence apparently convincing, he shows that the doctrine referred to, as known to American common law, came not, as is usually supposed, from England, but from the French Civil Code, having been introduced into American law by Story and by Kent, and that instead of England having passed the doctrine to America it was passed by America to England. The doctrine, according to Mr. Wiel, was not known to the Roman law, and was not formulated with definiteness in the French civil law until the appearance of the French or Napoleonic Code. A principle which is to be found in the Roman law, and in the French civil law, and in the law of the riparian system of England, and in that of the riparian and appropriation systems of America, is the one to the effect that a water right in respect to a running stream is not a right in the corpus of the water itself while in the stream, but simply a right to make use of the water of the stream. This principle, however, is not to be confused with the riparian doctrine, for it is common to the riparian and to the appropriation systems, the underlying fundamental principles of which are, respectively, equality for the one and discrimination in favor of the first user for the other. After having traced the riparian doctrine from the English common law back into the American common law, and then on back into the law of the French Civil Code, Mr. Wiel compares various features of the riparian doctrine or system obtaining in America with features existing in the French civil law under the code, with the result that he finds them substantially the same. Thus, they are found to be alike in the following, among other, particulars: use of the water is confined to lands that are riparians; use does not create the water right and nonuse does not extinguish it, for the right exists by virtue of the riparian nature of the land; the right of one riparian proprietor against another is that of equality, not equality in the amount of water used, but in the right to make a reasonable use; excessive use — in other words, the use of an amount of water over and above the amount which equality of right rtiakes reasonable — is unlawful; a riparian, as against himself, may part with his water right to a nonriparian, but not as against other riparians; riparians