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Show 134 THE RIPARIAN DOCTRINE receives benefits and increased usufructuary value by reason of its location with respect to the stream, its direct access to the water, and the right to use the water on or in connection with the land.696 Hence, basically, the place of use of riparian water is on the riparian land;697 and that is where the use is customarily made.698 (2) The water may be used at any place on the riparian parcel.699 The right is not affected by use of the water on only a small part of the tract some half-mile or more away from the stream.700 (3) An owner of two tracts of land riparian to a stream may divert the water on the upper tract and convey it to the lower tract for use thereon, if rights of way across intervening lands are obtained and there is no impairment of rights of others in the stream.701 And it has been said that the riparian proprietor has the right to contract with other riparians for the use of his proportionate share of the water on their riparian lands.702 Nonriparian land.-The decisions have been in some conflict in this regard. Some western decisions, notably in California, have been to the effect that the riparian right is limited to the riparian land and does not entitle the proprietor to take any of the water away to other lands not riparian to the stream.703 Following this view-that riparian rights are vested exclusively in the owner of the abutting land and "extend only to the use of the water upon the abutting land and none other"-the California Supreme Court in a 1922 case indicated that a city, the boundaries of which extend to a stream of water, is not a riparian owner by virtue of the fact and has no right by reason of that situation to apply the water of the stream to public uses within the city.704 The trend of other cases is to relate the privilege of using riparian water on nonriparian land to the effect that it has upon other riparian owners. Thus, the California Supreme Court indicated in a 1907 case that the use of water of a 696Magnolia Petroleum Co. v.Dodd, 125 Tex. 125, 129, 81 S.W. (2d) 653 (1935). 697 Watkins Land Co. v. Clements, 98 Tex. 578, 585, 589, 86 S.W. 733 (1905). 698See Crawford Co. v. Hathaway, 67 Nebr. 325, 353, 93 N.W. 781 (1903); Norwood v. Eastern Oreg. Land Co., 112 Oreg. 106, 114, 227 Pac. 1111 (1924); Fitzstephens v. Watson, 218 Oreg. 185, 344 Pac. (2d) 221 (1959); Martin v. British Am. Oil Producing Co., 187 Okla. 193, 195, 102 Pac. (2d) 124 (1940). 699Parker v. Swett, 188 Cal. 474,485486, 205 Pac. 1065 (l922);Holmes v. Nay, 186 Cal. 231, 235, 199 Pac. 325 (1921). Note the facts in Joerger v. Mt. Shasta Powe.r Corp., 214 Cal. 630, 632-635, 7 Pac. (2d) 706 (1932). 700 Alta Land & Water Co. v. Hancock, 85 Cal. 219, 229-230, 24 Pac. 645 (1890). 701 Holmes v. Nay, 186 Cal. 231, 235, 240, 199 Pac. 325 (1921). ™Texas Co. v. Burkett, 117 Tex. 16, 27, 296 S.W. 273 (1927);Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 610, 297 S.W. 225 (1927). 703 Gould v. Stafford, 77 Cal. 66, 68, 18 Pac. 879 {!%%%); Osterman v. Central Nebr. Pub. Power & In. Dist., 131 Nebr. 356, 365-366, 268 N.W. 334 (1936). But see In re Metropolitan Util Dist. of Omaha, 179 Nebr. 783, 140 N.W. (2d) 626, 637 (1966). 1MAntioch v. Williams In. Dist., 188 Cal. 451, 456, 205 Pac. 688 (1922). See the earlier discussion under "Riparian Proprietors-Municipality," regarding this and other cases dealing with related questions of water use by municipalities. |
