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Show THE RIPARIAN RIGHT 109 competing irrigation uses, after first stating that each riparian could take as much water as necessary for domestic purposes before any could be used for irrigation.559 Commercialized domestic use.- In California, the commercialization of domestic use of water by serving the needs of paying guests on riparian land does not necessarily make it an artificial use. But extensive commercialization to the prejudice of a lower riparian owner cannot be considered a natural use entitling it to preference. This matter was litigated between the owners of two California resorts that drew water from the same underground stream to which the resort lands were riparian. These two resort proprietors owned all the land riparian to the stream.560 The court was aware of no authority directly in point in answering the question as to what extent the use of water by paying guests 559Smith v. Corbit, 116 Cal. 587, 592, 48 Pac. 725 (1897). See alsoDeetz v. Carter, 232 Cal. App. (2d) 851, 43 Cal. Rptr. 321, 323 (1965); Drake v. Tucker, 43 Cal. App. 53, 184 Pac. 502, 505(1919). In an early Kansas case the court said that "each riparian owner may, without subjecting himself to liability to any lower riparian owner, use of the water whatever is needed for his own domestic purposes and the watering of his stock." Emporia v. Soden, 25 Kans. 588, 606, 37 Am. Rep. 265 (1881). And the court stated in the syllabus to a 1936 case that each riparian has a primary right to all water needed for domestic use and watering stock, after which all proprietors are equally entitled to share for irrigation purposes what remains in the stream. Frizell v. Bindley, 144 Kans. 84, 58 Pac. (2d) 95 (1936). See also Campbell v. Grimes, 62 Kans. 503, 505, 64 Pac. 62 (1901); Clark v. Allaman, 71 Kans. 206, 241, 80 Pac. 571 (1905); Atchison, Topeka & S.F. Ry. v. Shriver, 101 Kans. 257, 258, 166 Pac. 519 (1917); Wallace v. Winfield, 96 Kans. 35, 40, 149 Pac. 693 (1915); Wallace v. Winfield, 98 Kans. 651, 653-654, 159 Pac. 11 (1916). In a 1949 case, the court said and repeated in its syllabus that "an upper riparian proprietor may impound water for beneficial use for domestic purposes as long as he does not commit waste, and does not unreasonably use or divert the water away from the lower riparian owners." (Emphasis added.) Heise v. Schulz, 167 Kans. 34, 41, 204 Pac. (2d) 706, 710 (1949). This language appears to be somewhat more restrictive than the court's earlier language regarding domestic use, but the court did not expressly negate its earlier language and quoted its previous statement in Clark v. Allaman, supra, 71 Kans. at 241, that "The restrictions upon the use of water for irrigation, after the primary uses for quenching thirst and for domestic requirements are subserved, are those which justice and equity suggest." Also, in noting that the reasonable use theory had been extended to irrigation in Frizell v. Bindley, supra, the court quoted its statement in that case, 144 Kans. at 93, to the effect inter alia that the use of water for irrigation is "subject to its primary uses of lavandum and potandum." See also Weaver v. Beach Aircraft Corp., 180 Kans. 224, 303 Pac. (2d) 159 (1956), which may shed some further illumination on the matter. By virtue of Kansas legislation in 1945, amended in 1957, although domestic use is exempt from appropriation permit requirements, domestic use initiated after the cutoff date shall constitute an appropriative right. Kans. Laws 1945, ch. 390, amended by Laws 1957, ch. 539, Stat. Ann. §§ 82a-705, -705(a), and -7O7(b) (1969). Regarding this and other aspects of this legislation, see the subtopics "Cutoff dates" and "Unused riparian right" under "Measure of the Riparian Right-As Against Appropriators," supra. S60Prather v. Hoberg, 24 Cal. (2d) 549, 560-562, 150 Pac. (2d) 405 (1944). |