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Show THE RIPARIAN RIGHT 65 In 1908, the Washington Supreme Court rejected a contention "that a mere squatter on public land who subsequently sells out or abandons his claim acquires, or can acquire, riparian rights in a stream flowing through the land."327 The issue of trespass was raised in an Oklahoma case in which, however, the evidence tended to show permission by a riparian owner. "This being so, they were not mere trespassers, and their liability would depend upon whether the use made was unreasonable and was the proximate cause of the injury to plaintiffs land."328 It may perhaps be inferred from the language used by the court that if the defendants had been "mere trespassers," devoid of all permission, they could not assert riparian rights as against other riparian owners. However, the point was not stated specifically, even by dictum. Appropriation of water by riparian proprietor.-In chapter 7, under "Who May Appropriate Water," it is shown that in California, Texas, and Washington a person may be possessed of rights to the use of the waters of a stream both because of the riparian character of the land owned by him and also as an appropriator. There are some circumstances under which it might be advantageous for such a riparian proprietor to exercise his riparian rather than his appropriative right, such as if the appropriative right had been acquired after most of the riparian lands on the stream had passed to private ownership. Or it might be advantageous to appropriate floodflow for storage for late-season use of the water.329 It is also shown, on the contrary, that in Oregon it is competent for a riparian owner to make an appropriation of water for use on his own riparian land and in such a case he may elect to claim a right to the use of the water either as a riparian owner or as an appropriator; but he cannot be both at once.' 330 Attachment of Riparian Rights to Various Water Sources In general, in the States in which the riparian doctrine is recognized, riparian rights attach to watercourses, both surface and subterranean, and to other definite natural sources of water supply on the surface of the earth. Natural Versus Artificial Water Source The California Supreme Court expressed itself as being in accord with the general rule that riparian rights exist only in natural watercourses and in waters 327Kendall v. Joyce, 48 Wash. 489, 492^93, 93 Pac. 1091 (1908). 328Martin v. British Am. Oil Producing Co., 187 Okla. 193, 196, 102 Pac. (2d) 124 (1940). 329 As noted in chapter 7, under "Who May Appropriate Water-Riparian Proprietor- California," a person claiming water as both a riparian and an appropriator may not necessarily claim the sum of the amount of water under each of the rights. 330 In this regard, see the later discussion under "Measure of the Riparian Right-As Against Appropriators-Apportionment among riparians and appropriators." |
