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Show THE RIPARIAN RIGHT 31 Wrongful pollution of a stream by one riparian to the injury of others will give a cause of action to the injured parties, and will entitle them to enjoin the wrongful use and to recover damages for the injury. The maxim "sic utere tuo ut alienum non laedas" (so use your own that you do not injure that of another) must be observed by both parties.1S4 This relates to appreciable injury, not to slight inconvenience or occasional annoyance.1SS Some courts have indicated that as between riparians reasonableness of use in regard to water quality is primarily a question of fact, to be determined by consideration of all the circumstances of each particular case. The North Dakota Supreme Court said that due consideration is to be given to the character and size of the watercourse, location, uses to which it may be applied, general usage of the country in similar cases, the character and extent of the upper proprietor's use, and the use to which the lower proprietor is putting the water.156 Where invasion of the downstream right is threatened rather than actually begun, resort to the injunctive process will depend on the circumstances. A Texas court of civil appeals observed that such relief will be granted if the "threatened invasion, will be continuing, and the extent of the injurious consequences is contingent and of doubtful extent."157 On the other hand, where some salt impregnation had occurred but not yet enough to render the ls*Teelv.RioBravo OilCo.,41 Tex. Civ. App. 153, 160, 104 S.W. 420 (1907). 155Benjamin v. Gulf, C. & S. F. Ry., 49 Tex. Civ. App. 473, 477, 108 S.W. 408 (1908, error refused). iS6McDonough v. Russell-Miller Mill. Co., 38 N. Dak. 465,471^73, 165 N.W. 504 (1917). Under the circumstances of this case, it was held that the downstream riparian proprietor had wholly failed to establish his alleged cause of action against the upper owner. In Martin v. British Am. Oil Producing Co., 187 Okla. 193, 194-196, 102 Pac. (2d) 124 (1940), the Oklahoma Supreme Court held that the discharge of excess drilling water into a stream was not of itself an unlawful act; that it becomes unlawful only when done in such a way as to constitute an unreasonable use of the stream and the proximate cause of injury to the rights of other riparians; that the question of reasonableness is one of fact, to be determined in the light of all the circumstances. Plaintiff failed to sustain the burden of proof that the drilling water contained large quantities of drilling mud and sediment which when deposited in the channel so altered the course of the stream as to wash away part of his land, as against evidence of defendants that they deposited nothing more than "muddy" water in the stream, with no effect upon the flow, and that the injury to plaintiffs land resulted from the natural flow of the stream in times of flood. In States that ordinarily may adhere to the criteria of "reasonable under all the circumstances," however, stricter protection often may be accorded to domestic as against nondomestic use of water. See "Purpose of Use of Water -Natural and Artificial Uses of Water-Preferences accorded to natural uses of water," infra- Regarding nonriparian use, see "Exercise of the Riparian Right-Place of Use of Water-Nonriparian land," infra. The latter subject was considered in the Martin case. See note 711 infra. '"Houston Transp. Co. v. San Jacinto Rice Co., 163 S.W. 1023, 1027-1028 (Tex. Civ. App. 1914). |