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Show THE RIPARIAN RIGHT 113 Cultivated and uncultivated land.-The riparian right for irrigation applies to cultivated land in probably most instances.576 It is not uncommon to find references to regions in which irrigation is necessary to successful cultivation of the soil.577 However, the riparian right is not limited, so far as the use of water for agricultural purposes is concerned, to the irrigation of cultivated land that is producing tilled crops. It has been held in California to be equally effective with respect to uncultivated areas of riparian land, including lands that benefit from natural overflow from the stream.578 With respect to natural overflow, the constitutional amendment of 1928 did not negate the right; it limited exercise of the right to reasonable beneficial use under reasonable methods of diversion and use.579 The California Supreme Court held that the statutory limitation of the term "useful or beneficial purposes," as used in the statute580 (defined as not more than 2lA acre-feet per acre in the irrigation of uncultivated land not devoted to cultivated crops), was not applicable in the exercise of a riparian right.581 Some restrictions upon riparian irrigation.-The following matters have been referred to in various connections at various other places in this chapter. For the purpose of completion, they are briefly summarized here. (1) The Oregon Supreme Court construed the Congressional legislation of 1866, 1870, and 1877582 as depriving all public lands entered after March 3, 1877, of riparian rights for all purposes other than domestic use.583 The United States Supreme Court approved, holding that public lands entered after such date carried, of their own force, no common law riparian rights, and left to each State to determine for itself whether or not riparian rights should attach to such tracts upon passing to private ownership.584 The Oregon water code of 1909 undertook to recognize and limit the vested right of a riparian owner who had actually applied water to beneficial use prior to the enactment, to the extent thereof, and to recognize a similar right ^Ferrea v. Knipe, 28 Cal. 340, 341-345 (1865), which appears to have been the first case in the California Supreme Court that involved riparians only, upheld the right of a riparian owner to use water for irrigation of a commercial vegetable garden. ™ Harris v. Harrison, 93 Cal. 676, 681, 29 Pac. 325 (1892). snHerminghaus v. Southern Cal. Edison Co., 200 Cal. 81, 116-118, 252 Pac. 607 (1926); United States v. Gerlach Live Stock Co., 339 U.S. 725, 729-730, 752, 755 (1950), discussed in chapter 6 at note 215 and at the end of note 239. S79 Cal. Const, art. XIV, § 3. See the discussion at notes 660-662 infra. s80Cal. Water Code § 1004 (West 1956). 581 Herminghaus v. Southern Cal. Edison Co., 200 Cal. 81,116-118, 252 Pac. 607 (1926). 58214 Stat. 353, § 9 (1866); 16 Stat. 217 (1870); 19 Stat. 377 (1877), 43 U.S.C. § 321 et seq. (1964). "3Hough v. Porter, 51 Oreg. 318, 383^07, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). s84California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 158, 160-164 (1935). |