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Show THE RIPARIAN RIGHT 125 lawful right of diversion.646 The water may even be diverted outside the riparian tract, provided that the rights of others to the use of the stream are not impaired, that the necessary easements are obtained, and subject to limitations noted immediately below. (2) So far as downstream riparian owners are concerned, the upper proprietor can divert the water at a point above his own land, provided no unreasonable loss of water is caused thereby.647 "So long as the riparian takes no more than his reasonable share and uses it upon his riparian land, without unreasonable waste, other riparian owners below have no right to inquire, how, or by what means, or at what place, he manages to divert his share from the stream, whether at a point on his own land, or at some point far above***."648 In 1901, the Oregon Supreme Court affirmed a decree enjoining the upstream defendant riparian proprietor "from diverting the water from the stream to the substantial injury of the present or future rights of the plaintiffs," the lower riparians.649 This inter-riparian principle applies equally with respect to upstream riparians vis-a-vis downstream appropriators.650 (3) The upstream owner, however, must have the consent of the abutting and intervening owners upstream from him, that is, owners of lands lying between the proposed point of diversion and the riparian land on which the water is to be used.651 A riparian owner may not divert his water above the riparian lands of an upstream proprietor without the consent of the latter. (4) Providing the above conditions are fulfilled, the riparian proprietor may make his upstream diversion upon another tract belonging to himself, as well as upon lands belonging to others, for use upon his downstream riparian lands.652 This use of upstream water on the lower tract is not a use permitted as an incident of the upper tract. Ownership of this upper tract is merely a convenience in the exercise of the privilege of diverting one's riparian water upstream with consent of the upper owners. (5) A further limitation upon the right to make an upstream riparian diversion is that it may not be done at a time when the natural flow of the stream is not sufficient to reach the land of the interested riparian owner. 6A6Joergerv. Mt. Shasta Power Corp., 214 Cal. 630, 638, 7 Pac. (2d) 706 (1932);Me«to«e In. Co. v. Redlands Elec. Light & Power Co., 155 Cal. 323, 328, 100 Pac. 1082 (1909). But see Miller v. Baker, 68 Wash. 19, 122 Pac. 604 (1912), where the defendants, whose land touched the stream only along its southeast corner, were not allowed to divert water across another's land to irrigate their upper lands, the return flow being diverted away from the plaintiffs' intervening land. 641Holmes v. Nay, 186 Cal. 231, 240,199 Pac. 325 (1921). 648 Turner v. James Canal Co., 155 Cal. 82, 92, 99 Pac. 520 (1909). 649 Jones v. Conn, 39 Oreg. 30, 46, 64 Pac. 855, 65 Pac. 1068 (1901). 650Redwater Land & Canal Co. v. Jones, 27 S. Dak. 194, 202, 130 N.W. 85 (1911). 651 Turner v. Eastside Canal & Irr. Co., 168 Cal. 103, 108, 142 Pac. 69 (1914); Miller & Lux v. Enterprise Canal & Land Co., 169 Cal. 415, 440,444-445,147 Pac. 567 (1915); Redwater Land & Canal Co. v. Jones, 27 S. Dak. 194, 202, 130 N.W. 85 (1911). 6" Holmes v. Nay, 186 Cal. 231, 235, 240,199 Pac. 325 (1921). |