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Show THE RIPARIAN RIGHT 55 acquired from the United States under the Act of 1850281 or other lands derived by grant from the Government. In the instant case, the swamplands described in the complaint became the property of California only a few weeks after its admission to the Union.282 That riparian rights attach to these swamp and overflowed lands of the State as well as to other lands has been reaffirmed in other decisions.283 The Texas statute providing for the appropriation of water provides that "Nothing in this chapter contained shall be construed as a recognition of any riparian right in the owner of any lands the title to which shall have passed out of the State of Texas subsequent to the first day of July, A.D. 1895."284 This statutory declaration fixed the termination of any previous policy of granting riparian rights with State lands as of the enactment of the water appropriation act of 1895. In Motl v. Boyd, the Texas Supreme Court adopted the time of enactment of the 1889 statute as ending that policy.285 Not affected by acts of trespasser.-In an early California case, the supreme court held that use of water on riparian land by a trespasser who never acquired title to the land could not affect the right inherent in the land, even though the water was used on only a small area one-half mile or more from the stream. The entire tract being riparian, the owner's right to the use of the water was not affected by its use on only a portion of the tract, whether contiguous to the stream or not contiguous, and whether made by the owner or by a trespasser.286 Relation to Watershed Riparian right generally limited to watershed.-The general rule in the riparian States of the West is that "The land, in order to be riparian, must be within the watershed of the stream."287 This is the case, even though land Ml9Stat. 519, c. 84(1850). 382Lux v. Haggin, 69 Cal. 255, 340-341, 368, 376, 4 Pac. 919 (1884), 10 Pac. 674 (1886). 283 United States v. Central Stockholders' Corp. of Vallejo, 43 Fed. (2d) 977, 981 (S.D. Cal. 1930); California Pastoral & Agric. Co. v. Enterprise Canal & Land Co., 127 Fed. 741, 742 (C.C.S.D. Cal. 1903); Modoc Land & Live Stock Co. v. Booth, 102 Cal. 151, 152-154, 36 Pac. 431 (1894). 2MTex Rev. Civ. Stat. Ann. art. 7619 (1954). M5Motl v. Boyd, 116 Tex. 82, 108, 286 S.W. 458 (1926). The court referred to this statutory declaration, 116 Tex. at 121. 2MAlta Land & Water Co. v. Hancock, 85 Cal. 219, 229-230, 24 Pac. 645 (1890). ™Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 529, 81 Pac. (2d) 533 (1938); accord, Clark v. A llaman, 71 Kans. 206, 244-245, 80 Pac. 571 (1905); Sayles v. Mitchell, 60 S. Dak. 592, 594-595, 245 N.W. 390 (1932); apparently approved, but not the sole basis of decision, Malty v. Weidensteiner, 88 Wash. 398, 402, 153 Pac. 342 (1915); Osterman v. CentralNebr. Pub. Power & In. Dist., 131 Nebr. 356, 268 N.W. 334, 339-340 (1936). It is problematical whether or not Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738 (1966), modified, 144 N.W. (2d) 209 (1966), would |
