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Show 192 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES 1890, the supreme court recognized the existence in this jurisdiction of the common law doctrine of rights and liabilities of riparian owners with respect to watercourses.150 Most of these cases involved injuries to riparian uses of other proprietors-nuisance cases rather than controversies between riparian owners who were claiming coequal rights of use of water. Only one case involved relative rights of riparians to divert water from a common stream for beneficial Status of the Riparian Doctrine in the West Nonrecognition The riparian water-rights doctrine is not usually recognized in the eight, generally arid, interior States-Idaho, Montana, Wyoming, Nevada, Utah, Colo- rado, Arizona, and New Mexico. In these jurisdictions, rights to the use of water of watercourses usually do not accrue, by operation of general law, to the owners of lands bordering on or crossed by such watercourses solely because of the natural juxtaposition of land and water. See chapter 10. However, there are cases in some of these jurisdictions (as well as in other Western States152) which have declared or implied that a riparian owner may apply the water to beneficial use by virtue of his riparian status, so long as he does not interfere with the recognized operation of the appropriation doctrine.153 In addition, the definition of riparian rights encompasses more than just the right to use water, some features of which have been recognized by various courts in certain of these jurisdictions. For example, the common I50See Markwardt v. Guthrie, 18 Okla. 32, 34-36, 55, 90 Pac. 26 (1907); Chicago, R.I.&P.Ry. v. Groves, 20 Okla. 101, 111, 93 Pac. 755 (1908); Zalaback v. Kingfisher, 59 Okla. 222, 223-224, 158 Pac. 926 (1916); Kingfisher v. Zalaback, 11 Okla. 108, 109-110, 186 Pac. 936 (1920); Enid v. Brooks, 132 Okla. 60, 61-63, 269 Pac. 241 (1928); Martin v. British American Oil Producing Co., 187 Okla. 193, 194-195, 102 Pac. (2d) 124 (1940). 151 Smith v. Stanolind Oil & Gas Co., 197 Okla. 499, 500-503, 172 Pac. (2d) 1002 (1946). 1S2See, for example, Fitzstephens v. Watson, 218 Oreg. 185, 344 Pac. (2d) 221 (1959). 1S3See Hutchinson v. Watson Slough Co., 16 Idaho 484, 490-496, 101 Pac. 1059 (1909); Weeks v. McKay, 85 Idaho 617, 624, 382 Pac. (2d) 788 (1963); United States Freehold Land & Emmigration Co. v. Galleges, 89 Fed. 769,772-773 (8th Cir. 1898), discussed in Sternberger v. Seaton Min. Co. 45 Colo. 401, 405, 102 Pac. 168 (1909). For a somewhat confused discussion of ordinary domestic use, perhaps being treated as a recognized riparian right protected against appropriative rights in Colorado, see Montrose Canal Co. v. Loutsenhizer Ditch Co., 23 Colo. 233, 237, 48 Pac. 532 (1896); Broadmoor Dairy & Livestock Co. v. Brookside Water & Improvement Co., 24 Colo. 541, 545-546, 550, 52 Pac. 792 (1898). But the court's language in these two cases appears to have been dicta. These and related Colorado cases are discussed in the State summary for Colorado in the appendix. |