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Show THE RIPARIAN RIGHT 63 that Grogan v. Brownwood did not reflect any broad rule on the subject of riparian rights for municipal purposes which would be controlling in the instant case. "The general rule is that the riparian rights of a city, owning land along a river, are no different from the rights of an individual owner, and cannot be expanded to justify the use of such rights as a nucleus for supplying and selling water in great quantities to the general public in said municipality, including mainly residents of non-riparian lands." Further, "the great weight of authority agrees that the pattern of riparian rights was never cut to fit the public water requirements of a large municipality." The court of appeals did not disturb this part of the district court's judgment.318 (But compare the district court's remarks tending to confuse the riparian relationship with what was really a right to the use of return flow.319) Other States.-The Washington Supreme Court held that use of waters of a stream to supply the inhabitants of a town is in no sense the exercise of a riparian right.320 It also said that a city located on a stream must purchase or condemn the rights of downstream riparian proprietors before diverting any of the water thereof to provide for the domestic needs of its citizens.321 The City of Mitchell, South Dakota, became a riparian owner by reason of purchase of a tract of land adjacent to a creek. Foregoing any decision as to the quantity of water that the city might or might not lawfully take as a riparian owner, the South Dakota Supreme Court held that the city could not divert water from the stream to supply its nonriparian inhabitants without compen- sating the lower riparian owner.322 In a Nebraska case, a city and a mill were both owners of riparian land, the only city use of the water being for cooling its turbine engines used in connection with the municipal light and water plant, after which the water was returned to the stream. The Nebraska Supreme Court observed that while both parties were riparian landowners, both seemed in this litigation to be relying more on appropriation to beneficial use than on their rights as riparian owners. However, considering their rights as riparian owners, it was held that the city's use was reasonable and not an interference with any use which the downstream mill owner desired to make as a riparian proprietor. In other words, the city was treated as an ordinary riparian owner. Nothing in the court's opinion suggests any question as to the riparian status of a municipality. Under the 318El Paso County W. I. Dist. No. 1 v. El Paso, 133 Fed. Supp. 894, 909-910 (W.D. Tex. 1955), affirmed in part and reversed in part, 243 Fed. (2d) 927 (5th Cir. 1957), certiorari denied, 355 U.S. 820 (1957). 319133 Fed. Supp. 894, 926 (W.D. Tex. 1955). 320 Van Dissell v. Holland-Horr Mill Co., 91 Wash. 239, 241, 157 Pac. 687 (1916). See Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 581, 38 Pac. 147 (1894). 321 New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 498, 513, 64 Pac. 735 (1901). 322Sayles v. Mitchell, 60 S. Dak. 592, 594-595, 245 N.W. 390 (1932). From the demurrer it appeared that the city was located outside the watershed of the stream. The court adopted the principle that land is not riparian to a stream if not within its watershed. |
