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Show THE RIPARIAN RIGHT 71 Company v. Fuller, the California Supreme Court determined that the location of land above the underflow of a stream without being contiguous to the surface flow does not carry the right to divert water from the surface stream and conduct it across intervening land to the tract separated from the surface stream and there put it to use to the injury of lands which abut upon the proper banks of the surface stream.359 In the Anaheim case, the court did not pass upon the right of the owner of the overlying land to abstract water from the underflow by pumping. That right was not in issue. The controlling point was lack of contiguity and of access to the surface stream-absence of one of the essential criteria in determining the riparian status of land, from which the right to divert water from the surface stream is derived providing the other criteria are present. Under the present water policy of the State of California as commanded by the constitutional amendment of 1928,360 the overlying landowner's right to pump water from the underflow in his land would stand as high as the right of an owner of land contiguous to the surface stream to pump water over the banks onto his land. With respect to such a situation, the California Supreme Court, in construing the amendment, said that the "riparian land owners and the overlying land owners may be said to possess a right to the stream, surface and subsurface, analogous to the riparian right, which should be protected against an unreasonable depletion by an appropriator." The court further held that the right of an overlying landowner would be the same, whether founded on a strictly percolating water right or a right in an underground stream. Whichever it might be considered to be, the right would be exercised by pumping the water from the overlying landowner's ground.361 One of the issues in another California case was the claim of a downstream riparian owner of the right to maintain underground basins in the stream full of water in order to support the surface stream flowing over them, so that cattle could be watered from the surface flow. The supreme court held that neither riparian owner was entitled, as a matter of law, to supply its needs from the surface stream if such riparian owner could economically obtain water from the underground basins. It was concluded that either or both riparian owners could be required to endure a reasonable inconvenience or incur a reasonable expense in order that water might be reasonably used by the other.362 (2) Texas. In the famous case of Motl v. Boyd, the Texas Supreme Court partitioned the waters of flowing streams into riparian and nonriparian waters and, by acknowledged dictum, included in riparian waters the underflow of streams.363 359Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 332, 88 Pac. 978 (1907). 360Cal. Const, art. XIV, § 3. ulPeabody v. Vallejo, 2 Cal. (2d) 351, 375-376,40 Pac. (2d) 486 (1935). M2Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 556-562, 81 Pac. (2d) 533 (1938). 363Motl v. Boyd, 116 Tex. 82, 111, 286 S.W. 458 (1926). |
