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Show 78 THE RIPARIAN DOCTRINE owner who by artificial means increases the flow of a spring on his land, the water being tributary to a creek, was entitled to the increased quantity of water as against a downstream claimant.392 However, if this so-called "developed" water would have eventually entered the stream by natural processes, then, according to the current water law philosophy of California, it would not be subject to the rules governing developed water, but would be considered part of a common water supply in which all rights of use are now coordinated.393 (2) Texas. The owner of a tract of land on which a spring rises and from which the spring water flows into the channel of a stream is not the absolute owner of all the spring water.394 In the opinion written in an important case in 1905, it seems implicit that the owner of the headspring site has the rights of a riparian owner, and only such rights.395 And in a more recent case-a controversy between two owners of land riparian to a creek, one of the principal sources of which was a large spring on the land of the upper owner, the Austin Court of Civil Appeals adjudicated the relative rights of the parties solely as proprietors of land riparian to the same creek.396 (3) Washington. An early statute, subsequently repealed, provided that ditches for utilization of spring waters should be governed by the laws pertaining to natural streams, but that the person on whose lands the spring waters rose had the prior right thereto if capable of use on his land.397 While this statute was in effect, the supreme court held that it had no application to a spring having a sufficient flow of water to form a watercourse,398 provided that the stream was wont to flow from time immemorial.399 All proprietors of land contiguous to such a spring have riparian rights in its flow. The person on whose land the spring arises has no greater rights in its waters than have the lower riparian owners.400 Navigable Watercourses Decisions in the Western States which recognize the riparian doctrine with respect to nonnavigable waters are not uniform in extending that doctrine to 392ChurchiIl v. Rose, 136 Cal. 576, 578-579, 69 Pac. 416 (1902); Gutierrez v. Wege, 145 Cal. 730, 734, 79 Pac. 449 (1905). 393Hutchins, W. A., 'The California Law of Water Rights" 386, 407, 517 (1956). 39ACluck v. Houston & T.C.R.R., 34 Tex. Civ. App. 452, 453, 79 S.W. 80 (1904). See the reconstruction court cases of Tolle v. Correth, 31 Tex. 362, 364-366, 98 Am. Dec. 540 (Military Ct. 1868);Flemingv. Davis, 37 Tex. 173, 194-201 (Semicolon Ct. 1872). 39SWatkins Land Co. v. Clements, 98 Tex. 578, 585-590, 86 S.W. 733 (1905). See Sun Co. v. Gibson, 295 Fed. 118,119-120 (5th Cir. 1923). 396 Great Am. Dev. Co. v. Smith, 303 S.W. (2d) 861, 862, 864 (Tex. Civ. App. 1957). 3"Wash. Laws 1889-90, ch. 21, § 15, repealed, Laws 1917, ch. 117, § 47. 39'Hollett v. Davis, 54 Wash. 326, 329,103 Pac. 423 (1909). 399Mason v. Yearwood, 58 Wash. 276, 280,108 Pac. 608 (1910). *°°Nielson v. Sponer, 46 Wash. 14,15, 89 Pac. 155 (1907). |
