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Show SOME GENERAL PROCEDURAL MATTERS IN WATER RIGHTS LITIGATION 513 riparian right and the correlative percolating ground water right as they exist in the water rights laws of California. Hence in most contests between appropriators it generally is necessary that the judgment fix definitely the quantity of water to which each party is entitled. Under some circumstances in California it has been considered more practical and at the same time equitable to allot to each party a certain proportion of the total flow.390 This, however, undoubtedly is most exceptional. As a general rule, the California riparian right, as against another riparian in a private suit, does not relate to a specific quantity of water for the reason that it is normally a correlative right. However, in various cases the courts have been called upon to define the extent of riparian rights in a particular stream and to apportion the water among the owners accordingly. Furthermore, when paramount riparian rights are asserted against the exercise of appropriative rights, it is now necessary in California, under the judicial interpretation of the constitutional amendment of 1928, to ascertain the reasonable beneficial requirements of the riparian proprietors before enjoining interference with their exercise by appropriators. These matters are considered in some detail in chapter 10 under "The Riparian Right-Measure of the Riparian Right." A Texas court of civil appeals held that the trial court's decree establishing the right of a downstream riparian owner to the flow of water should be certain and definite in that it should establish the quantity of water reasonably necessary for the riparian lands and, if the owner is found to have a preference right as against an appropriator, it should adjudicate the necessary quantity applicable thereto.391 Conditional Decree Prior to 1969, provisions for conditional decrees in Colorado recognized that one who had initiated but had not consummated an appropriation had an inchoate right that was entitled to protection. The conditional decree became final on completion of the appropriation with due diligence.392 In 1969, the Colorado Legislature provided for determinations of, among other things, a conditional water right and the amount and priority thereof, including a 390 Trimble v. Helhr, 23 Cal. App. 436, 446-447, 138 Pac. 376 (1913). See Watson v. Lawson, 166 Cal. 235, 243, 135 Pac. 961 (1913). See also chapter 8 at notes 267-268 regarding some early Utah allocations. 391Biggs v. Lee, 147 S.W. 709, 709-710, 711 (Tex. Civ. App. 1912, error dismissed). A trial court decree "absolutely enjoining the appellants from taking any water to nonriparian lands under their system, except when the river is in flood and overflowing its bank at appellee's land, which is 25 to 30 miles below by the river, and at which point the banks are 14 to 15 feet high," failed to take account of the riparian's lack of right, as against an upstream appropriator, to the use of any water in excess of his reasonable needs and necessarily, therefore, was fundamentally erroneous. 392Colo. Rev. Stat. Ann. § § 148-10-6 to 148-10-9 (1963), repealed, Laws 1969, ch. 373, § 20. |
