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Show RIPARIAN RIGHT 201 of the act, by or under authority of any riparian proprietor or his predecessors in interest, should be deemed to create in him a vested right to the extent of actual application of water to beneficial use, provided the use had not been abandoned for a continuous period of 2 years. It also accorded the same protection to a riparian or his predecessor if, at the time of enactment, he was engaged in good faith in constructing works and if he completed the works and diverted the water to beneficial use within a reasonable time thereafter.55 Kansas in 1945, with amendments in 1957, adopted the foregoing principle, with some variations,56 and South Dakota followed the lead of Oregon and Kansas in 1955.57 These statutes, so carefully framed in their task of (1) limiting riparian rights to actual beneficial use58 and (2) safeguarding vested rights based upon actual beneficial use, were declared constitutional by their State supreme courts (and, in the case of Oregon and Kansas, by Federal courts as well) on the several points presented for determination.59 These statutes and more recent legislation in some other States are discussed in chapter 10 under "The Riparian Right-Measure of the Riparian Right-As Against Appropria- tors.' »»6O PROTECTION OF SOURCE OF SUPPLY Stream Tributaries (1) In one of its early water rights cases the California Supreme Court held that the prior appropriator is entitled to protection against interference with the flow, into the stream on which he made his appropriation, of the water of lakes or other tributary sources of supply that discharge naturally into the ssOreg. Laws 1909, ch. 216, Rev. Stat. § 539.010 (Supp. 1955). However, under the Oregon statutory adjudication procedure, although the Oregon Supreme Court has not so stated, the implication of In re Hood River, 114 Oreg. 112, 227 Pac. 1065 (1924), and In re Deschutes River & Tributaries, 134 Oreg. 623, 286 Pac. 563 (1930), apparently is that in adjudicating water rights for specific amounts of water, no specific amount of water may be claimed as a riparian right, even to the extent of such prior beneficial use. This is discussed in chapter 10, under "The Riparian Right-Measure of the Riparian Right-As Against Appropriators-Apportionment among riparians and appropriators." As discussed there, Lone Tree Ditch Co. v. Cyclone Ditch Co., 26 S. Dak. 307,128 N.W. 596 (1910), took a contrary position. 56 Common law claimants without vested rights could be enjoined by appropriators from making subsequent diversion, although compensation could be had in an action at law for damages proved for any property taken from a common law claimant by an appropriator. "Kans. Laws 1945, ch. 390, Laws 1957, ch. 539, Stat. Ann. § 82a-701 et seq. (1969); S. Dak. Laws 1955, ch. 430, Laws 1961, ch. 456, Laws 1963, ch. 454, Comp. Laws Ann. § 46-1-9 (1967). 58 Except for riparian domestic-use rights in one or more States. 59 See cases cited and the discussion in chapter 10, notes 523-524. 60 Texas and Washington legislation has been previously discussed in this subtopic. |