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Show 136 THE RIPARIAN DOCTRINE The Texas Supreme Court has taken the position that although it is the general rule that a riparian owner has no right to divert his riparian water to nonriparian land, circumstances may exist under which it is lawful to do so-such as where water is abundant and no possible injury could result to lower riparian owners. This includes the right to contract for the use of his riparian water on nonriparian land.710 The Supreme Court of Oklahoma has expressed the view that the taking of water by a riparian to nonriparian land or his contracting for its use on such land is not of itself an unreasonable use of the water, although when considered in connection with all other circumstances, including the size and character of the stream and the quantity of water diverted, it might be unreasonable.711 nonriparian owner divert the water above the riparian owner, the nonriparian owner will be enjoined so far as the water is or may be beneficial to the riparian land, though the riparian owner is not himself using it; and should the nonriparian owner be diverting the water below the riparian owner who is not using it, the nonriparian owner cannot complain when the riparian above takes it from him thereafter for his own use upon his own land." The court did not mention an earlier broad statement it had made to the effect that the upper riparian owner as such does not have the right to dispose of the water to nonriparians when there are lower riparian rights-which should probably be limited to the circumstances of that earlier case. It was a condemnation proceeding in which a suggestion was made that all the riparian proprietors might combine their rights and jointly dispose of the water to nonriparians. This was rejected by the trial court as too remote and specultative for use in fixing the value of the riparian right, and the supreme court agreed. Kirkland v. Cochrane, 87 Wash. 528, 530-531, 151 Pac. 1082 (1915). The Washington Supreme Court has taken a somewhat different approach to the question of riparian rights as against appropriative rights. See the discussion at notes 526-527 supra. In State v. American Fruit Growers, Inc., 135 Wash. 156, 161, 237 Pac. 498 (1925), the court said that "In Brown v. Chase, 125 Wash. 542, 217 Pac. 23 (1923), we stated that... 'waters of nonnavigable streams in excess of the amount which can be beneficially used, either directly or prospectively, within a reasonable time, on, or in connection with, riparian lands, are subject to appropriation for use on nonriparian lands.' In other words, the riparian owner, before he has any rights to protect, must with reasonable certainty show that either at present or within the near future he will make use of the water for irrigation purposes." With respect to riparian use of navigable waters, see the discussion at note 411 supra. 710Texas Co. v. Burkett, 117 Tex. 16, 25-26, 27-28, 296 S.W. 273 (1927); Humphreys- Mexia Co. v. Arseneaux, 116 Tex. 603, 610, 297 S.W. 225 (1927). Apparently, only a prejudicial diversion would fall within the general prohibition. See Texas Co. v. Burkett, supra at 25; Lakeside In. Co. v. Kirby, 166 S.W. 715, 718 (Tex. Civ. App. 1914, error refused). See also note 204 supra and the discussion in chapter 13 under "Remedies for Infringement-Injunction-Riparian Owners-Texas." 711 Smith v. Stanolind Oil & Gas Co., 197 Okla. 499, 501-502,172 Pac. (2d) 1002 (1946), citing Lawrie v. Silsby, 82 Vt. 505, 74 Atl. 94, 96 (1909), andMartin v. British Am. Oil Producing Co., 187 Okla. 193, 102 Pac. (2d) 124 (1940) (involving water pollution). Regarding the court's later interpretation of 1963 Oklahoma legislation which, |