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Show 90 THE RIPARIAN DOCTRINE riparian land owned by each of the parties."468 The South Dakota Supreme Court, on the other hand, held in one case that the actual quantity of water to which a particular riparian owner may be entitled for irrigating his land may and usually does differ for different crops.469 In another case, that court held that the quantity of water required for irrigation is not necessarily determined by the size of the tract, for the fact of equal acreage does not raise a presumption that the riparian rights of several parties are equal.470 The South Dakota court in another case said: [T] he amount of water, in inches, to which a riparian owner may be entitled for irrigation as against other riparian owners, is absolutely impossible of estimation, as it must continually vary, not only from the varying volume of water flowing down the stream at different times of the year or during different years, but also from the amount of land that may have been settled upon; and the extent of the use of water for the so-called ordinary or natural purposes which in itself varies with the population of the riparian district and the number of domestic animals kept thereon. The trial court was therefore in error in adjudging that defendant Jolly had any rights superior, to use of water for irrigation, over those plaintiffs who possessed riparian lands, either to the extent of 100 miner's inches or to any extent whatsoever.471 The court also said, however, that: It is the established law of riparian rights that the riparian owner whose land lies the nearer the source of the stream has as against those riparian claimants whose land lies lower down, the right to use, for domestic purposes and watering of his stock, if he needs it, all of the water of the stream to the exclusion of the others. . . ,472 (4) Apportionment of water by rotation. It is held in both California and Texas that a court may solve the problem of apportionment of riparian water, ™Matagorda Canal Co. v. Markham In. Co., 154 S.W. 1176,1180 (Tex. Civ. App. 1913). "'Redwater Land & Canal Co. v. Jones, 27 S. Dak. 194, 205-206, 130 N.W. 85 (1911). 470Henderson v. Goforth, 34 S. Dak. 441, 452^53, 148 N.W. 1045 (1914). The court thus determined that it was error for the trial court to conclude, as a matter of law, that because the acreages of five claimants were substantially equal, their riparian rights were equal and that each was entitled to one-fifth of the total water supply for irrigating his land. 471 Lowe Tree Ditch Co. v. Cyclone Ditch Co., 26 S. Dak. 307, 313, 128 N.W. 596, 598 (1910). Oregon courts have emphasized difficulties in making an equitable apportionment inherent in the nature of riparian rights-analogous to a tenancy in common-in contrast to appropriative rights, which contemplate a tenancy in severalty. This subject is discussed later under "As Against Appropriators-Apportionment among riparians and appropriators." 472Id. at 312, 128 N.W. at 598. See "Purpose of Use of Water," infra, regarding domestic use. |