OCR Text |
Show 26 THE RIPARIAN DOCTRINE rights generally.119 Nevertheless, some rather substantial limitations on riparian rights, as against competing appropriative rights, have been upheld by courts in a number of States on the points presented for determination.120 Riparian rights are incident to the ownership of upland and enter materially into the actual value of the estate.121 Although not unlimited, they are substantial rights.122 Real property.-The riparian right is an incident of property in the land, a part of the realty, and therefore real property.123 In a very early California case, it was said that the right to water must be treated as a right running with the land, "and as such, has none of the characteristics of mere personalty."124 Part and parcel of the soil-The right of the riparian proprietor to the flow of the water, as discussed in the next subtopic, is annexed to the soil, not as a mere easement or appurtenance, but as part and parcel of the land itself. This statement has been repeated in many decisions rendered by the California courts over the years, from at least as early as 1882.125 It is noted in many cases in the supreme court and district courts of appeal. Probably no other facet of this State's riparian water law has been emphasized so much.126 Decisions in other western jurisdictions have expressed the same thought.127 119 St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 266-267, 143 N.W. 124 (1913). See also Crawford Co. v. Hathaway, 67 Nebr. 325, 340-341, 346-349, 93 N.W. 781 (1903). 120 See, in chapter 6, "Interrelationships of the Dual Water Rights Systems-The Status in / Summary: By States." 121 Parsons v. Sioux Falls, 65 S. Dak. 145, 151, 272 N.W. 288 (1937). 122Greenman v. Fort Worth, 308 S.W. (2d) 553, 555 (Tex. Civ. App. 1957, error refused n.r.e.). 123Palmer v. Railroad Comm'n, 167 Cal. 163, 173, 138 Pac. 997 (1914); Crawford Co. v. Hathaway, 67 Nebr. 325, 340-341, 346-349, 93 N.W. 781 (1903);Magnolia Petroleum Co. v. Dodd, 125 Tex. 125, 128-129, 81 S.W. (2d) 653 (1935). There is eminent authority for the doctrine that a riparian right is real estate. Johnson v. Armour & Co., 69 N. Dak. 769, 776-777, 291 N.W. 113 (1940), quoting from Bigelowv. Draper, 6 N. Dak. 152, 161-162, 69 N.W. 570 (1896). lMHill v. Newman, 5 Cal. 445, 446 (1855). In 1936, for purposes of taxation, riparian rights divested by purchase or condemnation from the land of which they formed a part were held to be "land" as that term is used in Cal. Const, art. XIII, § 1. San Francisco v. Alameda County, 5 Cal. (2d) 243, 245-247, 54 Pac. (2d) 462 (1936). i25St. Helena Water Co. v. Forbes, 62 Cal. 182, 184, 45 Am. Rep. 659 (1882). 126See, e.g., Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 65, 259 Pac. 444 (1927). A Federal court stated, "The established doctrine of the California decisions is that the right to the flow of water is annexed to the soil, not as an easement or appurtenance but as a parcel * * *." Hilbert v. Vallejo, 19 Fed. (2d) 510, 511 (9th Cir. 1927). 121Smith v. Miller, 147 Kans. 40, 42, 75 Pac. (2d) 273 (1938); Crawford Co. v. Hathaway, 67 Nebr. 325, 340, 93 N.W. 781 (1903); St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 266-267, 143 N.W. 124 (1913); Parker v. El Paso County W. I. Dist. No. 1, 116 Tex. 631, 642-643, 297 S.W. 737 (1927); Methow Cattle Co. v. Williams, 64 Wash. 457, 460, 117 Pac. 239 (1911). |