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Show 204 PROTECTION OF WATER RIGHTS IN WATERCOURSES generally exclusive and in dual system (appropriation and riparian doctrine) States. Other considerations regarding springs are discussed in chapter 18. In a State in which the doctrine of appropriation is generally recognized to the exclusion of the doctrine of riparian rights, prior appropriation of the waters of a stream gives the better right to the flow of the tributaries, including tributary spring waters; and when this right once vests, it must be protected and upheld.73 Inasmuch as a spring supplying a natural stream is itself a part of the stream, such springs in California and some other States are held to be subject to the dual doctrines of appropriation and riparian rights. (1) Appropriative rights. The owner of land that contains a spring from which a stream flows has only such rights in the spring as he may be entitled to as a riparian owner, as noted immediately below, or as an appropriator in the event that he himself has appropriated water from the spring. Such an appropriation he may make; but his appropriative right in the spring water will be limited, as against the rights of junior appropriators, by the circumstances of his acquisition and perfection of the right, just as in case of appropriations of water generally.74 In an early case the Washington Supreme Court stated that the fact that a watercourse may have its head or source in a flowing spring, as found in the instant case, in no way changes its nature. "The water from such spring is the subject of appropriation as certainly as the waters of a river."75 (2) Riparian rights. It is well settled in California that the owner of land upon which there is located a spring, the water from which flows in a natural channel across his land and thence upon or through lands belonging to others, does not have, solely by virtue of his location with respect to the spring, exclusive rights therein, but on the contrary has only the rights of a riparian owner.76 As the spring supplying the stream is a part of the stream,77 the riparian doctrine applies both to the spring and to the natural watercourse that nMalad Valley In. Co. v. Campbell, 2 Idaho 411, 415, 18 Pac. 52 (1888). In this case the testimony tended to show that the springs in litigation were in the immediate vicinity of a certain creek and that they constituted the principal and immediate sources of supply for the stream. See also Bruening v. Dorr, 23 Colo. 195, 198-199, 47 Pac. 290 (1896); Beaverhead Canal Co. v. Dillon Elec. Light & Power Co., 34 Mont. 135, 140-141, 85 Pac. 880 (1906); Campbell v. Goldfield Consol. Water Co., 36 Nev. 458,462, 136 Pac. 976 (1913); Herriman In. Co. v. Butterfield Min. Co., 19 Utah 453, 467-468, 57 Pac. 537 (1899). ™Suisun v. DeFreitas, 142 Cal. 350, 351-353, 75 Pac. 1092 (1904). 15Geddis v. Panish, 1 Wash. 587, 589, 21 Pac. 314 (1889). In this case the rights of the owner of the land on which the spring rose were held to be junior to those of an earlier appropriator of water of the stream below. n6Scott v. Fruit Growers' Supply Co., 202 Cal. 47, 52, 258 Pac. 1095 (1927); L. Mini Estate Co. v. Walsh, 4 Cal. (2d) 249, 254, 48 Pac. (2d) 666 (1935); San Francisco Bank v. Longer, 43 Cal. App. (2d) 263, 268, 110 Pac (2d) 687 (1941). "Gutienez v. Wege, 145 Cal. 730, 734, 79 Pac. 449 (1905). |