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Show 88 THE RIPARIAN DOCTRINE (2) Adjudication and apportionment of water. On the other hand, in various cases, courts have been called upon to define the extent of riparian rights pertaining to a particular stream and to apportion the stream water accordingly. Where landowners who have riparian rights have use for the water and a controversy arises as to an excessive use by one as against the others, the remedy is a division or apportionment of the water in accordance with principles of equity, taking into consideration the reasonable needs of each.458 In the absence of State administrative procedure for adjudicating riparian rights quantitatively or of a binding agreement among riparians, or among riparians and appropriators,459 a suit in equity may be brought to adjudicate the relative rights and to provide through the medium of judicial orders for the enforcement of decrees.460 In 1905, the Texas Supreme Court stated a proposition, well recognized in other riparian jurisdictions, to the effect that, "Courts have ample authority to ascertain the relative rights of riparian owners and to regulate the manner of using the water."461 (3) Problems of criteria to determine apportionment. Necessarily, when riparian rights attaching to a stream have been adjudicated with respect to specific tracts of riparian land, a determination of the quantities of water applicable to these respective tracts requires, in the first instance, adoption of sensible, practicable criteria to govern the determination. Generally, in handling this question, appellate courts have suggested criteria in greater or less degree, leaving to the judgments and decrees of the trial courts the actual application of pertinent criteria to the facts and circumstances of each individual controversy, taking into consideration the aggregate require- ments of the riparians, subject of course to appeal by any dissatisfied party. In deciding one such case, regarding an underground stream, the California Supreme Court pointed out that inasmuch as a riparian owner has no right to any mathematical or specific quantity of water as against others, but only a right in common to take a proportional share of the water, [I]t is preferable, whenever possible, to have an apportionment decreed in terms of a percentage or proportional allotment.... Al- though problems of measurement and pumping engendered by wJoerger v. Mt. Shasta Power Corp., 214 Cal. 630, 636, 7 Pac. (2d) 706 (1932);Mo//y v. Weidensteiner, 88 Wash. 398,402,153 Pac. 342 (1915). "'Compare Cal. Water Code § § 4000-4407 (West 1956). For a history of the successful administration of such an agreement respecting a California stream, written by the man who administered the agreement, see Kaupke, C. L., "Forty Years on Kings River" (1957). ^Carlsbad Mut. Water Co. v. San Luis Rey Dev. Co., 78 Cal. App. (2d) 900, 911, 178 Pac. (2d) 844 (1947). 461 Watkins Land Co. v. Clements, 98 Tex. 578, 586, 86 S.W. 733 (1905). See Hidalgo County W. I. Dist. No. 2 v. Cameron County W. C. & I. Dist. No. 5, 250 S.W. (2d) 941, 944-945 (Tex. Civ. App. 1952). |