Ruling the Waters: California’s Kern River, the Environment, and the Making of Western Water Law by Douglas R. Littlefield (review)

Douglas Littlefield’s Ruling the Waters is a tightly focused narrative of how water law enabled the massive transformation of the wetlands of the Kern River system of California’s southern San Joaquin Valley. The fulcrum of the book (chapter four) is the famous 1886 California Supreme court case of Charles Lux, of the great agribusiness partnership Miller and Lux, vs. James B. Haggin, another land giant, over riparian and appropriative water rights in the valley. Littlefield believes the case stands as a model for how water law impacted the environment of the U.S. West. For this study that runs from California statehood to World War II, the author uses contemporary newspapers, legal case files, federal and local records, business records, and legal statutes. Useful maps supplement Littlefield’s work.

Littlefield appropriately provides background (chapters one and two) by discussing the area’s early environmental history and initial development, the latter supported by Manifest Destiny and the common perception of swamplands, with their disease and lack of agricultural usefulness, as enemies. Littlefield establishes the critical fact that the San Joaquin Valley’s early development centered on transportation, not land development; such companies as the Tulare Canal and Land Company proposed to build canals to provide a transportation infrastructure for this central part of the state. California state legislative acts, such as a swamplands act in 1855 and the 1862 law creating swampland districts, supported the work of such persons as Thomas Baker (Bakersfield’s founder) to convert wetlands to farmland.

Chapter three discusses the development of both the lower and upper parts of the Kern River. Haggin and partners Lloyd Tevis and William B. Carr formed the Kern Island Irrigating Canal Company and established agreements and financial interests with other landowners of Swampland District no. 111 (upper Kern), many of whom enjoyed appropriative water rights. Their neighbors downriver, the land barons Miller and Lux, helped form—and were owners of two thirds of—Swampland District no. 121, encompassing the lower Kern River and corresponding wetlands and Buena Vista and Kern lakes. With conflicting needs for water, the stage was set for the legal contest over water rights, both appropriative and riparian, between the two landholding powers.

In chapter four, Littlefield thoroughly analyzes the legal case that became Lux v. Miller, which began in 1879 in a San Francisco lower court, was first tried in a Bakersfield court in 1881, and ended in the California Supreme Court in 1886. Legal precedents in California had never clearly established the relationship between appropriative and riparian water rights, the latter supported in English common law, which prevailed in California’s water law, according to Littlefield. (See, though, Peter Reich’s work on the influence of Hispanic jurisprudence on California water law.) Littlefield establishes the fact that the case initially involved only riparian water rights before expanding to issues over appropriative water rights. The complex irrigation and canal systems only intensified the issue; Miller and Lux, with the other plaintiff, Charles Crocker, pared down the original case to one defendant, the Kern River Land and Canal Company’s Calloway Canal, as representative of Haggin’s upstream water rights.

The California Supreme Court ruling in 1884 reversed the lower court’s ruling supporting appropriative rights, which miners and farmers supported; its 1886 rehearing remanded the case to the lower court and judged that riparian rights operated within the context of any prior appropriative rights. The costs of further litigation led the two parties to a joint agreement in 1888 dividing water usage between First Point of Measurement (Haggin) and Second Point of Measurement water users (Miller and Lux). Other parties, but not all, also received their share. The critical point in Littlefield’s view was that appropriative and riparian rights could both operate in California, establishing a precedent for water law in the West.

The...