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Show 138 THE RIPARIAN DOCTRINE annexed to the land where it borders the stream, and not subject to transfer to other land; and that a riparian owner who takes out water for irrigation on nonriparian land becomes an appropriator and to that extent surrenders his status as a riparian owner.715 Notwithstanding such broad language, the court's holding in this respect apparently did not pertain to use of water on nonriparian land but was limited to its prohibition of a change in the place of diversion of water from a point on defendant's riparian lands lying below the lands of the plaintiff appropriator to other riparian lands of the defendant located above the plaintiffs lands.716 In an earlier opinion in 1901, rendered prior to the 1909 Oregon water code, the court had said "there is some conflict in the authorities as to whether a riparian proprietor can enjoin the use of water for the irrigation of nonriparian lands without showing damage. . . ,"717 It was unnecessary to decide this question in that case. Relation to watershed. -This question has been discussed earlier, under "Riparian Lands-Relation to Watershed." The more general rule is that riparian rights and the exercise thereof are limited to lands within the watershed of the stream to which the holdings are contiguous. Decisions to this effect were rendered by the high courts of California, Kansas, South Dakota, and apparently Washington.718 The chief reason for the rule is that the unconsumed portion of water applied to lands in the original watershed tends to return to the stream that drains it, whereas the return flow from water taken over the divide into another watershed is lost to the original one. An exception appears in an Oregon decision which took the position that one who owns land contiguous to a natural stream is a riparian proprietor and entitled to riparian rights without regard to the extent of his land. The Texas Supreme Court, while approving the general limitation that the riparian proprietor ordinarily cannot divert water outside of the watershed, suggested that conditions might exist in which a diversion beyond the watershed might be authorized so long as there would be no substantial injury to other riparian proprietors. It is also shown in the foregoing discussion that in applying the watershed principle to the use of riparian water in California, each tributary above a common junction is considered a separate stream with regard to lands contiguous thereto; but with respect to lower riparian owners below the confluence of a main stream and a tributary, the watersheds of the main stream and of the tributary stream constitute parts of a single watershed. 7I5112Oreg. 106, 114,227Pac. 1111,1113. 716227Pac. at 1111, 1113. ''"Jones v. Conn, 39 Oreg. 30, 64 Pac. 855, 860,65 Pac. 1068 (1901). 718 See note 287 supra, regarding the problematical situation in Nebraska. |