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Show 34 THE RIPARIAN DOCTRINE claim of estoppel.169 The upstream proprietor loses no part of his riparian right solely because of the long-continued use by downstream proprietors of water to which the upstream owner has been entitled but which he has allowed to pass the lower boundary of his land.170 This may be subject to the qualification that under certain circumstances the downstream use may amount to an actual interference with the upstream riparian right,171 such as the backflow of water from a lower dam. Preservation of Riparian Right on Change of Title to Land Right passes with conveyance ofland.-Title to a riparian right passes with a grant of the land to which the stream is contiguous, not as an easement or appurtenance, but as a parcel of the land172 -provided, of course, that the deed to the land does not reserve from its operation any riparian rights incident thereto.173 The title passes without mention in the deed of conveyance.174 The right also passes even if mentioned in a reservation if it is ineffective and void under the circumstances.175 135, 140-141, 58 Pac. 442 (1899). In an early Texas case, the diversion of water by plaintiff, the lower proprietor, was not inimical to the rights of the upstream defendants and hence raised no presumption against them. "The defendants could not have prevented or interrupted the use of the water by plaintiff by any legal proceedings because it in no manner affected their rights." Mud Creek Irr., Agric. & Mfg. Co. v. Vivian, 74 Tex. 170, 174, 11 S.W. 1078 (1889). See Santa Rosa Irr. Co. v.Pecos River Irr. Co., 92 S.W. 1014, 1017 (Tex. Civ. App. 1906, error refused);Fort Quitman Land Co. v. Mier, 211 S.W. (2d) 340, 344 (Tex. Civ. App. 1948, error refused n.r.e.). 169San Joaquin & Kings River Canal & Irr. Co. v. Worswick, 187 Cal. 674, 684, 693, 203 Pac. 999 (1922). 170Peake v. Harris, 48 Cal. App. 363, 382, 192 Pac. 310 (1920). See Hanson v.McCue, 42 Cal. 303, 310 (1871), with respect to the flow from a spring in an artificial channel. 171 Smith v. Nechanicky, 123 Wash. 8, 211 Pac. 880 (1923). For a case regarding backflow from a dam see, e.g., Haas v. Choussard, 17 Tex. 588 (1856). After citing authority to the effect that the riparian owner cannot throw the water back upon the proprietors above, without a grant or a prescriptive right, the Texas Supreme Court observed that "Whether an action for throwing back water will lie for merely nominal damages, where there has been no actual injury, is not free from doubt, though supported by American authorities." Id. at 590. See also, in chapter 14, "Prescription-Establishment of Prescriptive Title-Relative Locations on Stream Channel-Downstream prescriptive claimant: Actual interference with upstream property or water right." 172San Francisco v. Alameda County, 5 Cal. (2d) 243, 246, 54 Pac. (2d) 462 (1936). 173Holmes v. Nay, 186 Cal. 231, 236, 199 Pac. 325 (\92\); Benton v.Johncox, 17 Wash. 277, 281, 49 Pac 495 (1897). "It has been held that he [the riparian proprietor] may sell his riparian rights without selling the land or reserve them though the land be sold." Bigham Bros. v. Port Arthur Canal & Dock Co., 91 S.W. 848, 853 (Tex. Civ. App. 1905), reversed and remanded on other points, 100 Tex. 192, 97 S.W. 686 (1906). lwRisien v. Brown, 73 Tex. 135, 141, 10 S.W. 661 (1889). 175 See the Richter, Gibson, and Texas Co. cases cited in note 187 infra. |
