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Show 84 THE RIPARIAN DOCTRINE Application of the rule of reasonableness necessarily involves determinations of questions of fact,434 of which the following are significant. In determining whether a use would be unreasonable, consideration would be taken of the size and character of the stream, the quantity of water taken, and all other circumstances surrounding the case.435 Due consideration would be given, in addition to character and size of the watercourse, to location, uses to which it may be applied, and general usage of the country in similar cases; and on the question of reasonableness of use by the upper proprietor, there may be taken into consideration also the character and extent of his business, as well as the use to which the lower proprietor is putting the water.436 In 1905, the Texas Supreme Court, in summing up the riparian owner's right of reasonable use of water, included the observation that:437 It is true that oftentimes it will be found difficult to determine what is a reasonable use of water under existing conditions; however, the same difficulty is encountered by courts in the determination of questions of reasonable conduct on the part of individuals in every phase of life and in all classes of business, but that constitutes no reason for rejecting the rule which makes reasonable use the standard by which to determine conflicting claims. Courts have ample authority to ascertain the relative rights of riparian owners and to regulate the manner of using the water. (6) Reasonableness of quantity of water. What is a reasonable amount of water may vary not only with the circumstances of each particular case, but also from one year to another, "for the amount which might be reasonable in a season of plenty might be manifestly unreasonable in a season of drought."438 The reasonableness of use of water by a riparian proprietor in any particular case has thus been said by the California Supreme Court to be a subject for judicial inquiry, and not for a statewide legislative mandate.439 The United States District Court at El Paso summed up the situation by saying that "the riparian's use measure of water is elusive and shrouded in the word 'reasonable,' more unknown than foreknown."440 (7) Materiality of source of water in a slough. The source from which the water in a slough is derived is immaterial in determining that contiguous land is 434Stacy v. Delery, 57 Tex. Civ. App. 242, 247, 122 S.W. 300 (1909); Weiss v. Oregon Iron & Steel Co., 13 Oreg. 496, 498-502, 11 Pac. 255 (1886);Martin v. British Am. Oil Producing Co., 187 Okla. 193, 194, 102 Pac. (2d) 124 (1940). 435Smith v. Stanolind Oil & Gas Co., 197 Okla. 499, 502, 172 Pac. (2d) 1002 (1946). *36McDonough v. Russell-Miller Mill. Co., 38 N. Dak. 465, 471-473, 165 N.W. 504 (1917). 437 WatkinsLand Co. v. Clements, 98 Tex. 578, 585-586, 86 S.W. 733 (1905). ™Pabst v. Finmand, 190 Cal. 124, 129, 211 Pac. 11 (1922). To the same effect, Prather v. Hoberg, 24 Cal. (2d) 549, 560, 150 Pac. (2d) 405 (1944). 439Herminghaus v. Southern Cal. Edison Co., 200 Cal. 81, 117-118, 252 Pac. 607 (1926). 440 El Paso County W. I. Dist. No. 1 v. El Paso, 133 Fed. Supp. 894, 910 (W.D. Tex. 1955). |