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Show THE RIPARIAN RIGHT 129 sequestration of streamflow was not authorized in exercising a riparian right.671 Texas.- (1) General situation as to riparian storage. In a few cases in the high courts of Texas, the right of a riparian owner to utilize storage of water as a means of making the exercise of his right effective in a semiarid region, consistently with the rights of others on the stream, has been recognized.672 In 1934, the Texas Supreme Court indicated that having a vested right to the use of water, the riparian necessarily has the authority to adopt any lawful means of effectuating it, which in a semiarid region means storage; and this right the legislature cannot defeat, or unreasonably burden, "by irrevocable or uncon- trollable grants to railway companies to cross, build upon or along streams and water courses."673 In the later Valmont Plantations case, the trial court did not follow this lead, but held that the riparian right of irrigation of waters of the Rio Grande does not include the right to use waters stored in Falcon Reservoir, nor to store waters therein for future use.674 It was the trial court's view that the riparian right is a right to the normal streamflow past the riparian land, and that it appeared contrary to the whole theory of riparian law to allow riparians to have their flow stored in Falcon Reservoir to be released as they need it. However, on appeal, it was held that lands riparian to the lower Rio Grande held under Spanish and Mexican grants do not have an implied right to irrigate 671 Colorado Power Co. v. Pacific Gas & Elec. Co., 218 Cal. 559, 564-566, 24 Pac. (2d) 495 (1933). See also Moore v. California Oregon Power Co., 22 Cal. (2d) 725, 731, 734-735, 738-739, 140 Pac. (2d) 798 (1943), and note the circumstances at 22 Cal. (2d) 727-729, 733-735. In the Colorado Power Co. case, supra, after holding that seasonal storage is not a proper riparian use, the court said, "We do not find it necessary to discuss the question of whether an upper riparian owner may appropriate water when such water is in excess of all the reasonable present or prospective needs of lower riparian owners. In the present case the trial court found that the proposed storage would cause substantial damage to plaintiff." 218 Cal. at 565-566. The later Moore case, supra, dealt with a type of storage that was said to be sometimes referred to as "periodic storage," which the court said was similar in effect to seasonal storage. The court said, inter alia, that "The next contention is that the use of the waters of a stream is adverse to the rights of a lower riparian owner's rights whether or not he is damaged. A number of cases are cited in support of this contention. The cases cited are all in actions in which injunctive relief was asked and we are in thorough accord with the rulings contained therein. But our attention has not been called to any authority holding that damages may be awarded a riparian owner of lands for an interference with his riparian rights without proof on his part that he has actually been damaged by reason of such interference." 22 Cal. (2d) at 734, 738-739. 613Stacy v.Delery, 57 Tex. Civ. App. 242, 248, 122 S.W. 300 (1909). 673'Chicago, R. I. & G. Ry. v. Tarrant County W. C. & I. Dist. No. 1, 123 Tex. 432, 448, 73 S.W. (2d) 55 (1934). 674State of Texas v. Valmont Plantations, No. B-20, 791, 93rd Dist. Court, Hidalgo County, Tex. (1959). See Blalock, W. R., Judge, "Excerpts From the Opinion of the Trial Court," Proc, Water Law Conference, Univ. Tex. 16, 38-40 (1959). |
