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Show THE RIPARIAN RIGHT 81 The evolution of the riparian owner's right from natural flow to reasonable use is exemplified by the experience in Kansas. The original theory adopted by the Kansas Supreme Court was that the riparian owner had the right to such benefits as would result from the uninterrupted flow of a stream of water through its natural channel across or along his land "without diminution or alteration."412 Statements in some other decisions rendered as late as the 1930's might, if taken alone, leave the impression that the natural flow theory in its original strict form prevailed consistently in Kansas.413 This was not the case. Diversions that were not considered unreasonable were not held actionable. And throughout practically the entire period during which statements were being made by the court concerning the riparian owner's right to the natural flow of the stream, modifications were stated in various cases in one form or another.414 In 1949, the Kansas Supreme Court discussed the two theories and came out strongly in favor of the reasonable use theory.415 Prevalence of reasonable use theory. -Recognition of the natural flow theory was limited to a few early cases in western jurisdictions. It was discarded as impracticable in developing communities wherein need for water for consumptive uses caused the courts to turn to a more rational concept. In 1909, it was said by the California Supreme Court that the "alleged common-law rule" that a riparian proprietor is entitled as a right to the full flow of the stream in its natural course through his land is not subject to the conditions of a climate as dry as that of California, hence such rule is subject to the common right of all to a reasonable share of the water.416 Actually, as noted immediately below, this reasonable share rule had been adopted earlier by the California courts in an 1857 case.417 And as stated by the Oregon Supreme Court in an early case, to hold that there could be no diminution whatever in the streamflow as a result of the proprietor's use of the water 4l2Shamlefferv. Council Grove Peerless Mill Co., 18 Kans. 24, 31, 33 (1877). *13Dougan v. Board of County Comm'rs, 141 Kans. 554, 562, 43 Pac. (2d) 223 (1935); Durkee v. Board of County Comm'rs, 142 Kans. 690, 51 Pac. (2d) 984 {1935), Frizell v. Bindley, 144 Kans. 84, 91-92, 58 Pac. (2d) 95 (1936); Smith v. Miller, 147 Kans. 40, 42, 75 Pac. (2d) 273 (1938). *14Emporia v. Soden, 25 Kans. 588, 606 (1881); Campbell v. Grimes, 62 Kans. 503, 505, 64 Pac. 62 (1901); Clark v. Allaman, 71 Kans. 206, 241, 245, 80 Pac. 571 (1905); Wallace v. Winfleld, 96 Kans. 35,40,149 Pac. 693 (1915), 98 Kans. 651, 653-654,159 Pac. 11 (1916); Atchison, T. & S.F. Ry. v. Shriver, 101 Kans. 257, 258, 166 Pac. 519 (1917). In Frizell v. Bindley, 144 Kans. 84, 91-92, 58 Pac. (2d) 95 (1936), the court stated that there had been no departure from the natural flow rule; yet the syllabus by the court contradicts this by including a paragraph stating that the rights of riparian owners holding under valid titles antedating the appropriation statute of 1886 were prescribed and governed by the doctrine of reasonable use. *"Heise v. Schulz, 167 Kans. 34, 4143, 204 Pac. (2d) 706 (1949). The reasonable use doctrine was applied in Weaver v. Beech Aircraft Corp., 180 Kans. 224, 303 Pac. (2d) 159 (1956). "'Turner v. James Canal Co., 155 Cal. 82, 94-95, 99 Pac. 520 (1909). 417Hill v. King, 8 Cak336, 338 (1857). |
