It was never my purpose to write a treatise upon the law concerning waters of all kinds, nor even a treatise upon those doctrines and rules of this department of jurisprudence which are peculiar to the Pacific communities, and which differ from the corresponding doctrines and rules of the common law as settled in England or in the Atlantic commonwealths. The single object of this essay was to ascertain, as far as possible, the law peculiar to the Pacific states and territories concerning the waters of natural running streams, the rights of all persons, riparian proprietors and others, to use the waters of such streams, and especially, as being of paramount importance to the agricultural interests, their right to use and consume these waters for the purpose of irrigation.

Upon the foundation of existing law as thus ascertained, it was my further design to suggest such measures of just and practicable legislation as would render the waters of these streams available, for purposes of irrigation, to the largest communities of persons engaged in agriculture, with the least possible interference with the existing and natural rights of any class. The object thus proposed has been reasonably accomplished. There seemed to be a prevailing opinion among the members of the legal profession,-an opinion in which I partook when commencing these articles,-that the law of California and other Pacific commonwealths concerning the water rights in natural streams, private riparian rights, the rights of private riparian proprietors, and similar topics connected with the appropriation and use of such waters, was wholly vague, unsettled, and uncertain, to be collected only from doubtful, contradictory, and conflicting decisions. It has been shown that there is, in reality, no foundation for this opinion. In the great majority of the states and territories embraced within our review, the entire field has been occupied by elaborate systems of statutory legislation. In California and Nevada it has been shown, as it seems to me, beyond the possibility of question or doubt, that the principles and fundamental doctrines of the common law concerning the waters of natural streams flowing through or by private lands, private riparian rights, and the rights of private riparian proprietors, have been established by the courts in an unbroken series of decisions.

There are two antagonistic interests in the state, each endeavoring to control the legislature and to shape the legislation entirely in its own behalf to the complete exclusion of the other. These are the riparian proprietors, who assert their common law rights, and would exclude all other classes from any participation in the waters of the stream however abundant; and the communities of land owners away from the banks of streams, who deny any rights of the riparian proprietors, and claim a free, unrestricted access to and appropriation of all natural streams, limited only by the extent of their own needs. The latter class, being the

most numerous, has prevailed with the legislature, and shaped the legis lation exclusively for its own benefit, in most of the Pacific states and territories, whose statutes I have hereinbefore quoted.

The type of legislation which I have proposed, recognizes the just claims of both these classes; it provides for satisfying the demands of cach, so far as possible without completely sacrificing the other; but it necessarily requires that each should surrender some portion of its exclusive pretensions. I have the utmost confidence that the main elements and features of legislation which I have proposed, might, in the hands of intelligent men, who were familiar alike with the situation and topography of the larger rivers, and of the regions through which they run, and with the agricultural methods, customs, and wants of the adjacent communities, be worked up into a just, practicable, and efficient system for the regulation of irrigation throughout all parts of the state.

DISTRICT COURT, DISTRICT OF OREGON.

THE TACKLE, APPAREL, ETC., OF THE CAIRNSMORE.
Filed June 14, 1884.

DERELICT-RIGHT OF FIRST SALVORS.-The bark Cairnsmore went ashore on Clatsop beach in a thick fog, and the master and crew took to the boat and left her, without, so far as ap peared, any intention to return or hope of recovering her, but sold her as she lay within two days for the benefit of whom it might concern; but in the meantime she was taken possession of by the libellants, who proceeded at once to save her tackle, apparel, furniture, stores, and cargo: Held, that the vessel was derelict, and that the salvors who first got possession of her were entitled, for that purpose. to maintain the same, even against the owners or their vendees, so far and so long as they were reasonably able and had the means to save her or any part of her, but when it was manifest that they were unable to do so in any particular, as well and surely as others who might offer to assist in the enterprise, it was their duty so far to yield the possession to such others.

SALVAGE SERVICE-COMPENSATION OF.-Where there is neither risk of life nor property involved in a salvage service, nor any special knowledge or ingenuity required or used therein, the principal elements in the compensation of the salvor are the value of the labor and care bestowed upon the saved property, and the degree of integrity and responsibility involved in keeping it safely and duly accounting for it, together with the risk of success.

Suit for salvage. The opinion states the facts.

C. W. Fulton and Frederick R. Strong, for the libellants.
Charles B. Bellinger and Rufus Mallory, for the claimants.

DEADY, J. The libellants, J. E. Thomas, Thomas Doig, F. H. Ward, John Brown, James Lidwell, Duncan W. McKenzie, W. G. Ross, A. McKenzie, John Wilson, C. A. McGuire, William Stodard and Martin Foard, bring this suit for salvage against the tackle, apparel, and certain of the furniture, stores and cargo of the bark Cairnsmore late stranded on Clatsop beach, a short distance below Point Adams light.

The libel contains a list of the articles saved from the bark, which includes her sails, rigging, hawser, anchor and mooring chains, chronometer, compasses, boats, anchors, and twenty-nine barrels of cement, alleged to be of the value of eight thousand dollars.

The claimants, J. A. Brown and W. T. McCabe, answering the libel admit the salvage service, but allege that soon after the stranding of the vessel and before the saving of the articles in question, except the sails, they purchased the Cairnsmore and cargo from the master for the sum of four hundred and fifty dollars and demanded the possession of the same from the libellants, which was refused; whereby they lost the opportunity of saving both the vessel and cargo, which they were prepared to undertake with a reasonable prospect of success.

From the evidence, it appears that the Cairnsmore was an iron vessel bound from England to Portland with a cargo of cement of about one thousand four hundred tons.

On Thursday, September the 27th, she went ashore on Clatsop beach, in a thick fog with a light wind, a mile or two below Point Adams light. On the next day the master and crew left her in the ship's boat, and within a few hours were picked up by the steamship Queen of the Pacific near the mouth of the Columbia river and carried to Astoria.

On Friday evening McCabe, Duncan W. McKenzie and several others of the libellants, having heard of the stranding gathered in the vicinity of the wreck; and the next morning McCabe and McKenzie, by means of a small skiff which the latter had procured, boarded the vessel and took possession of her and with the aid of the rest of the libellants commenced to wreck her.

They first took off the sails, which were still set, and sent them ashore on a line from the foretop to the beach, and then commenced to remove the rigging. During the forenoon of Saturday the master of the vessel visited the beach and returned to Astoria with the local agent of Lloyd's, who had come down from there with McCabe the day before. During his short stay on the beach the master did nothing towards asserting any right to the possession of the vessel or interfering with that of the libellants or objecting to their action. On his way back to Astoria the master met a telegram from Portland, advising him that he had been appointed agent for the owners and directing him to associate some one with himself and hold a survey of the vessel and dispose of her to the best of his ability. Thereupon, the master selected his companion, Lloyd's agent, as his associate, who was also the bearer of a message from McCabe to his clerk in Astoria to buy the vessel if she was offered for sale, and they two concluding that they had already held a sufficient survey of the vessel, went on to Astoria that evening and then and there sold her and her cargo without any further notice or other bid, so far as appears, to McCabe's clerk, as a wreck, for four hundred and fifty dollars there being an understanding at the time between said agent and McCabe, that the former should have an interest in the venture, if the sale was made, as they expected it would be.

McCabe went to Astoria on Sunday and returned on Monday, when he told the libellants that he had purchased the vessel and insisted that they should cease their work and deliver the possession of the vessel and property to him-at the same time saying they should be paid for what they had done. The libellants refused to quit work or surrender possession of the property, but told McCabe he might continue to work with them as a salvor or that they were willing to stand in with him on the purchase, which they thought he ought to have made for the benefit of the whole party, as they had agreed beforehand to bid as high as three thousand dollars for the wreck, if it was sold. But they would not allow him to take exclusive possession nor put a gang of men on board to work on his

account.

McCabe would not accept their proposition, and they would not yield to his demand; and therefore the former did nothing more towards saving the property and the libellants continued their operations until about November 10, when they surrendered the vessel to the claimants. The only means they had of saving the material, besides the line from the foretop, were ox teams which they hired from the neighboring settlers. At low tide these were driven in the surf within thirty to forty feet of the vessel and loaded from the

yard arm with heavy articles which were hauled ashore. There the sails and other perishable materials were stored in a tent until they could be removed to Skipanon by wagon and thence boated to Astoria, where they are now stored. The anchors and chains were left well up on the beach, where they are now, buried in the sand.

According to the testimony of McCabe, he had the men and means at his command wherewith to have placed a donkey engine of four thousand pounds weight on the vessel by Tuesday, and taken out the cargo in a few days, and thereby enabled the vessel to come ashore out of the breakers, to a place of comparative safety, from which she might have been thereafter gotten out to sea again at some convenient time. But it does not appear that the men were on the ground, or that the engine was ever any nearer than Astoria. After the libellants gave up the wreck, McCabe employed Thomas Doig, one of the libellants, and some four or five others, who removed from the vessel for him two anchors, weighing between three and four thousand pounds each, by lowering them from the yard arm into a wagon and hauling them ashore.

It also appears from the evidence that by Monday the vessel was beginning to fill from the water pouring in at her afterlights and companionway, and that by Wednesday the whole cargo of cement was wet and ruined. The vessel remained intact until about February, when she broke up and went to pieces.

My conclusion from the circumstances is, that the Cairnsmore, when found by the libellants, had been abandoned by her master and crew without the hope of recovery or the intent to return and reclaim her. She was then derelict and liable to be taken possession of by the first comer: 2 Par. A. & S. 288; Cohen's Adm. 78. Waiving inquiry into the bona fides of the sale to the claimants and assuming that it was good, as against the libellants, the claimants only succeeded thereby to the rights and interests of the former owners. As against the latter or their vendees, the libellants had the lawful possession of the property and were entitled to keep the same, so far and so long, as was necessary to enable them to complete the salvage service in which they were engaged. But the rights of the libellants were qualified by the circumstance of their power or competency to perform this service. And if it was manifest that with their means they could not save the property, as well or as surely, as others who might offer to assist, or take part in so doing, they were bound to allow such others to engage in the undertaking: 2 Par. A. & S. 279-81.

The claimants, as owners, had also the right to participate in the saving of the property, so far as such participation was plainly necessary to that end. And it is clear that such necessity existed as to the cargo, for the libellants were not prepared to get it out with the dispatch which the circumstances required. Indeed it is very doubtful if the claimants could have gotten out one-third of it, even if they had succeeded in getting an engine on board by Tuesday. But it may be that if the dead-lights and after-companionway had been