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Show 106 THE RIPARIAN DOCTRINE or profit. For these business uses, the riparian owner cannot take all the water to the exclusion of other riparian owners; he can take only what is reasonable with due regard to the uses of others on the same stream. In considering the matter in Lux v. Haggin, the California Supreme Court thus summarized the effect of this distinction:541 The real difference here pointed out between the classes of uses is, that (as is assumed) water may be used for ordinary purposes without regard to the effects of such use in case of deficiency below; while with reference to extraordinary uses, the effects on those below must always be considered in determining its reasonableness. (2) Upper and lower natural uses of water. The California Supreme Court observed further, in Lux v. Haggin,542 the limitation that the upper riparian owner "may, if necessary, consume all the water of the stream for those purposes. * * * Indeed, in case of a small rivulet, the necessary consequence of using it at all, by one or more upper owners, for these 'natural' or 'primary' purposes, must often be to exhaust the water." The lower riparian owner is without remedy in such case.543 But the upper owner has no right to dam and obstruct the flow unreasonably nor to waste surplus water above his needs.544 And reasonableness has sometimes been said to be a question of fact depending upon all the circumstances. (See the later discussion under "Domestic Use of Water-Reasonableness of the domestic use.") (3) Natural and artificial uses on the same stream. When natural and artificial uses conflict, the natural uses generally have preference. The California Supreme Court said that irrigation "must always be held in subordination to the rights of all other riparian proprietors to the use of the water for the supply of the natural wants of man and beast."545 Domestic Use of Water A long established part of the riparian right-The use of water by the riparian owner for domestic purposes was one of the original rights recognized by the common law.546 This purpose has been specifically held to be a part of 541 Lux v. Haggin, 69 Cal. 255, 407,4 Pac. 919 (1884), 10 Pac. 674 (1886). 542 69 Cal. at 395. 543Ferrea v. Knipe, 28 Cal. 340, 343-344 (1865). S44/d at 343-345; Hale v.McLea, 53 Cal. 578, 584 (1879). SeeBernick v. Mercy, 136 Cal. 205, 206, 68 Pac. 589 (1902). M5Alta Land & Water Co. v. Hancock, 85 Cal. 219, 230, 24 Pac. 645 (1890); accord, Smith v. Corbit, 116 Cal. 587, 592,48 Pac. 725 (1897), restated in Drake v. Tucker, 43 Cal. App. 53, 58, 184 Pac. 502 (1919). 546Wiel, S. C, supra note 540, § 740; Bathgate v. Irvine, 126 Cal. 135,142, 58 Pac. 442 (1899); Honaker v. Reeves County W. I. Dist. No. 1, 152 S.W. (2d) 454,455 (Tex. Civ. App. 1941, error refused). |