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Show THE RIPARIAN RIGHT 5 3 The Nebraska Supreme Court apparently agreed that the extent of a riparian holding cannot exceed the area acquired by a single entry or purchase from the government, but at first refrained from deciding whether the maximum area should be held to be 40 or 640 acres, preferring to leave the area policy to be determined according to the circumstances of the particular case.269 In a 1939 case, the area was extended to an entire section because in the locality in litigation it had been possible to acquire a section of land from the government.270 However, in a 1966 case the court held that such limitations were arbitrary and it disapproved them.271 The Kansas Supreme Court decided that certain principles of the modified riparian doctrine should control the question of what is riparian land, "irrespective of the accidental matter of governmental subdivisions of the land."272 Smallest tract held under one title.-In California, "The riparian right extends only to the smallest tract held under one title in the chain of title leading to the present owner."273 The first statement of the foregoing principle in these words by the California Supreme Court appears to have been made in 1938 in the Rancho Santa Margarita case. However, the statement is a logical summation of the results of various California decisions, including the holdings that lands detached from a riparian tract may, under certain circumstances, lose their riparian status irretrievably, but that nonriparian land cannot become riparian by being joined in ownership with riparian land. The principle is simply one of inexorable attrition.274 269Crawford Co. v. Hathaway, 67 Nebr. 325, 353-354, 93 N.W. 781 (1903). ™McGinley v. Platte VaUey Pub. Power & In. Dist., 132 Nebr. 292, 298, 271 N.W. 864 (1937): 371 Wasserburger v. Coffee, 180 Nebr. 147,141 N.W. (2d) 738 (1966), modified, 180 Nebr. 569,144 N.W. (2d) 209 (1966), discussed at note 262 supra. ™Clark v. Allaman, 71 Kans. 206, 244-245, 80 Pac. 571 (1905). See the discussion at notes 260-261 supra, regarding this case and Jones v. Conn, 39 Oreg. 30, 3941,64 Pac. 855,65 Pac. 1068(1901). ™ Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 529, 81 Pac. (2d) 533 (1938). The supreme court cited only one authority, Boehmer v. Big Rock In. Dist., 117 Cal. 19, 48 Pac. 908 (1897), which was based on the holding in Lux v. Haggin, 69 Cal. 255, 4 Pac. 919 (1884), 10 Pac. 674 (1886). 274In Yearsley v. Cater, 149 Wash. 285, 287-289, 270 Pac. 804 (1928), while the Washington court did not expressly consider the foregoing question of whether the riparian right extends only to the smallest tract in the chain of title, the court approvingly quoted a California case in the latter regard and indicated that the later acquisition of adjoining riparian land by the owner of nonriparian land did not convert the nonriparian land into riparian land, the nonriparian land having lost its riparian status by its detachment from the riparian land unless the detaching conveyance had declared the contrary. See the discussion at notes 206-210 supra. And in Watkins Land Co. v. Clements, 98 Tex. 578, 589, 86 S.W. 733 (1905), while the Texas court also did not expressly consider the smallest-tract-in-chain-of-title question, it indicated that riparians did not have the right to use the stream water on "nonriparian land which they |
