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Show 58 THE RIPARIAN DOCTRINE cases when considered together, supply a complete picture of the rights of riparians on converging streams."296 Delta land sloping away from stream. -In delta land at the lower end of a stream, the banks and bed of the stream in places are higher than the adjacent land. This results from the long-time action of the stream in bringing soil down from higher lands in times of flood and depositing it upon the more nearly level land near the outlet of the stream. The question then is whether the riparian lands in the area comprise only those lying within the stream banks, or whether they include lands contiguous to, but outside, the stream banks from which water naturally flows away from the channel instead of toward and into it. The question has been litigated in both California and Texas. It has been long settled by high court decisions in California. In Texas, however, although decided by the judge of a trial court, appellate decisions on the main issues made it unnecessary to decide this one. (1) California. The supreme court has held that the fact that in such delta area the land slopes away from the banks and that water overflowing the banks will not return to the stream does not take such land out of the watershed of the stream nor deprive the sloping land of its riparian character.297 This "correct and salutary" rule applies to a present, existing delta, but not to mesa land many feet above the stream which in past geologic ages may have been delta land. Riparian lands are not determined by past geologic formations, but from the present natural topography.298 (2) Texas. A positive statement by a Texas court of civil appeals with respect to the measure of the extent of riparian lands-but not in connection with any question respecting delta lands-is:299 "All surveys of land which abut upon a running stream are riparian as to all that portion of the survey which lies within the watershed of the stream, and its surface drainage is into the stream." [Emphasis added.] In the final judgment of the trial court in the Valmont case there is embodied the principle that no lands that lie outside the watershed of the Rio Grande-lands the surface of which does not cast its waters therein by natural drainage-have a riparian right of irrigation from the river.300 Although to apply the Texas decisions strictly would exclude from a riparian right much intensively cultivated and highly improved land in the lower Rio Grande Valley, Judge Blalock did not believe that the California cases, invoked by 296Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 532, 81 Pac. (2d) 533 (1938). ™ Half Moon Bay Land Co. v. Cowell, 173 Cal. 543, 547-548, 160 Pac. 675 (1916). 29zRancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 547-549, 81 Pac. (2d) 533 (1938); Smith v. Wheeler, 107 Cal. App. (2d) 451,455, 237 Pac. (2d) 325 (1951). M9Matagorda Canal Co. v. Markhamlrr. Co., 154 S.W. 1176, 1180 (Tex. Civ. App. 1913). 300State of Texas v. Valmont Plantations, No. B-20, 791, 93rd Dist. Court, Hidalgo County, Texas, September 3, 1959. See Blalock, W. R., Judge, "Excerpts From the Opinion of the Trial Court," Proa, Water Law Conference, Univ. of Tex. 26-29 (1959). |
