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Show 62 THE RIPARIAN DOCTRINE upon the riparian doctrine. The general question has been involved in some litigation in the West. A good analysis of the situation is contained in a 1922 California decision discussed immediately below. California.-A municipality in this State may have riparian rights in a stream by reason of its ownership of riparian land, but it has no greater right to the use of the water than a private owner of the same tract would have. The private proprietor in California is not entitled solely because he owns riparian land to divert water for use on nonriparian land, and a city has no greater right to do so. Nor does the fact that a city borders a stream give it riparian rights therein. The California Supreme Court said that:316 The fact that the city of Antioch is situated upon the San Joaquin River is wholly immaterial in the consideration of its rights in this case. The rights in a stream or body of water which attach to land because it abuts thereon are not of a political nature, but are private rights. They are vested exclusively and only in the owner of the abutting land and they extend only to the use of the water upon the abutting land and none other. The supreme court said there were cases in some Eastern States holding that a municipality whose boundaries extend to a stream has some rights by reason of that situation to apply the water to public uses within the city-rights similar in nature to that of a riparian proprietor to use the water of the stream on his land. Regardless of the reasoning therein, the court declined to so extend the doctrine of riparian rights in California as to make it political, thereby conferring it upon cities bordering a stream but owning no land abutting thereon. Texas.- The courts of Texas have been called upon to give some consideration to the question of municipal riparianism. Grogan v.Brownwood, decided in 1919 by the Austin Court of Civil Appeals, has sometimes been cited as authority for the broad proposition that a city in its corporate capacity may be a riparian proprietor and entitled thereby to supply its inhabitants with water for domestic purposes in preference to the use of water by other riparian proprietors, parties to the suit, for irrigation purposes. However, in evaluating this case in this connection, it is of prime significance that the actual controversy was resolved on the basis of preexisting contractual relationships between the parties. There is in the opinion of the court nothing to suggest that in an ordinary situation the decision should be held to be authority for the unqualified proposition above stated.317 The United States District Court at El Paso had for consideration water rights of the City of El Paso, which in its proprietary capacity owned a few hundred acres of land riparian to the Rio Grande. It was the court's opinion 316Antioch v. Wffliamslrr. Dist, 188 Cal. 451, 456, 205 Pac. 688 (1922). 317Grogan v.Brownwood, 214 S.W. 532, 536-539 (Tex. Civ. App. 1919). |
