The last article detailed the convoluted legal battle between the people of Lake County and the Clear Lake Water Company (CLWC) over the dam’s possible connection to widespread flooding. By the summer of 1868 at least two separate Lake County grand juries had ruled that the case needed to be heard in court. And each time the CLWC was able to prove that there was a conflict of interest. Finally, on July 6, 1868, the judge ordered the case to be heard in the 7th District court, which was also in Lake County.
On Tuesday November 10, 1868 both parties had the opportunity to air their grievances in the district courtroom. The judge sided with the people of Lake County and ordered that a grand jury once more be called. This is where the court records for this case end. Secondary sources relate the apocryphal story of how, the next morning, Judge Southard uttered the following: “I see no redress for the injured parties on the margins of the Lake, in civil law; but there is such a thing as a higher law.” Of course there is no evidence in the court records of the judge saying this, nor indeed of the judge even hearing more on the subject. Whether true or not, the Lakeporters used this version of the story to show that the judge himself tacitly approved of what they did next.
A large group of Lakeporters quickly moved en masse to Lower Lake. After securing any county officials who might object to their actions, the mob continued to the epicenter of the whole fiasco. Stone by stone, they dismantled the dam and mills over the course of several days. Although suit was brought against these actions, years more worth of court cases saw the Lakeporters pay only a paltry fine.
The Swerve
But like a stone tossed into a stream, these men’s actions abruptly changed the flow of Lake County’s history. If not for the decision made in 1868, Lake County — or private companies in the county — might today have the water rights to Clear Lake instead of the Yolo Water and Power Company.
That’s a bold statement to make.
Let me back up a bit. Water rights in California were — and continue to be — a contentious topic. Almost as soon as the 49ers started pulling gold from the rivers and creeks, other settlers recognized the potential value of the water itself. Seven out of every 10 years in California are dry, which soon made water in the developing agricultural state liquid gold. The question of water rights naturally followed the influx of homesteaders, as they staked claims along waterways and in fertile valleys. The question was not over the legal ownership of the water itself (the government owned that), but the ownership of the right to divert and use said water.
From the very beginning, there were two sides to this argument: those that thought appropriative water rights should be the law of the land and those arguing in favor for riparian rights. Appropriative rights were determined by the notion of “first in time, first in right.” The first person to start using a watercourse was granted appropriated rights to that water. A person maintained appropriative rights on a watercourse by continuing to use it for a beneficial use. As soon as s/he stopped using the water — like, for example, if a dam and mill were destroyed — appropriated rights were ceded to someone else.
Unlike appropriative rights, the only determining factors for getting riparian rights to a watercourse were location and mere legal possession. So, riparian rights could be bestowed on someone who simply owned property through which a river or creek flowed. They needn’t actually use the water to maintain their riparian rights over that water.
Eventually, the argument was settled with the California Supreme Court’s ruling in Lux v. Haggin in 1886. The gist of the ruling was that riparian rights were superior to appropriative rights, but with some caveats. An appropriator can possess a superior right to a riparian if the appropriator had begun to use the water before the riparian had acquired his property.
So it all came down to who was there first. And that is where the destruction of the CLWC dam — and a break in the water rights along Cache Creek — proved so detrimental to Lake County. Orrin Simmons, the on-the-ground man for the company, revealed in a letter dated eight months before the destruction of the dam that the CLWC was planning to leave Lake County for more prosperous ventures along the Putah. Had they been allowed to leave on their own volition, the CLWC would have sold the mills and dam—and associated water rights — to someone else. Whether someone within the county, or another outside company, these new owners would have become a competitor with what became the Yolo Water and Power Company over the rights of diverting Cache Creek. These new owners would have had a legitimate — and powerful — claim too, since they would have been able to point to a history of ownership going back to Fowler’s small dam in the 1850s (which the CLWC had bought and renovated into their larger dam in the 1860s). As it turns out, this is roughly the same time that the Yolo Water and Power Company’s original claim dates.
Instead, the CLWC eventually sold the property, but without the dam and mills the new owners used the property for other purposes. By destroying the dam in 1868, the Lakeporters forced the county’s hand in the 20th century. Even if they wanted to claim the waters of Clear Lake when Yolo came with plans to build Cache Creek Dam in 1912-1915, no one in the county had a strong enough claim to hold up in court against Yolo’s. The county had killed its golden goose before it even hatched!
Of course, all of this presupposes that the CLWC would have sold their dam to a local company, and that that company would have had the financial means to face Yolo in court. But that’s the nature of talking about historical swerves — those moments in the past when a single decision irrevocably alters the path of history. Would Lake County own the rights to Clear Lake if the Lakeporters hadn’t destroyed the CLWC dam in 1868? Who knows? But the thought that they might makes for a good story.
Tony Pierucci is Curator of County Museums
