OCR Text |
Show 590 OTHER WATERS AT THE SURFACE not take all the foreign waters in a stream by virtue of an appropriation as against an upper riparian owner who needs such water for use on his riparian land. Nothing in the Water Commission Act (Water Code), said the court, purported to enlarge the rights of riparian owners as such or to curtail the rights of appropriators. On the contrary, the evident purpose of that act was to declare the waters of the State to be subject to appropriation insofar as that can be done without interfering with vested rights. The clause excepting from that declaration waters required for reasonable beneficial purposes on riparian lands constitutes no more than an affirmation of existing rights of riparian owners in and to the natural flow. It is not to be construed, contrary to the express provisions of the act, as enlarging the rights of riparian owners so as to give them in effect riparian rights in foreign water as well as in the natural flow.133 It is important to note, in connection with the statement of the principle that riparian rights do not attach to the return flow from foreign waters, that waters diverted from one tributary of a stream, taken across a divide, and discharged into another tributary of the same stream, while foreign to the watershed into which they are introduced, are not foreign with respect to riparian lands lying on the main stream below the confluence or mouths of both upstream tributaries.134 So far as the particular riparian lands described above are concerned, this return water is still part of the natural tributary flow to which they are entitled. To illustrate, if water is brought from tributary A into the watershed of tributary B and discharged into B, riparian rights in the return flow cannot be claimed successfully for lands riparian only to B; and appropriative rights therein claimed for lands along B must defer to paramount riparian rights of lands riparian to the main stream below the mouths of both tributaries.135 To particularize, in Crane v. Stevinson,136 as in the Horst case, the claim of a riparian owner to the return from foreign waters was denied; but it was held that waters from Merced River abandoned into Bear Creek, which flowed into San Joaquin River above the point at which Merced River flowed into San Joaquin River, were foreign waters with respect to land riparian solely to Bear Creek, but not with respect to land fronting on San Joaquin River below the mouth of Merced River. The riparian rights of this latter land applied to Merced River waters abandoned into Bear Creek as well as to the natural flow in that stream. 133Bloss v. Rahilly, 16 Cal. (2d) 70, 75-76, 104 Pac. (2d) 1049 (1940). See Crane v. Stevinson, 5 Cal. (2d) 387, 398-400, 54 Pac. (2d) 1100 (1936). 134 Crane v. Stevinson, 5 Cal. (2d) 387, 399400, 54 Pac. (2d) 1100 (1936). See Holmes v. Nay, 186 Cal. 231, 240-241, 199 Pac. 325 (1921); Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 529-532, 81 Pac. (2d) 533 (1938). 135Crane v. Stevinson, 5 Cal. (2d) 387, 399-400, 54 Pac. (2d) 1100 (1936). See also Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 330-331, 88 Pac. 978 (1907). 136Crane v. Stevinson, 5 Cal. (2d) 387, 399400, 54 Pac. (2d) 1100 (1936). |