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Show 24 THE RIPARIAN DOCTRINE its findings and judgment the expression that one of the parties "owns" and is entitled to take and use water on its riparian lands. "The riparian does not 'own' the water of a stream," said the supreme court; what he "owns" is a usufructuary right-the right of reasonable use of the water on his riparian land when he needs it.104 Right of use for beneficial purposes.-Uses of the water by a riparian proprietor may be made for certain purposes that are beneficial to him, as indicated below under "Purpose of Use of Water." Although at one period the riparian proprietor in California was not constrained to avoid waste of water as against an appropriator, that incongruous anomaly was eventually corrected by constitutional amendment which the courts accepted as declaring an overriding State policy to which they must conform.105 The Texas Supreme Court commented that unnecessary waste of water was being guarded against in the decisions.106 It is a rule of general acceptance, said the Oklahoma Supreme Court, that the riparian owner has the right to make any use of the water, beneficial to himself, which the situation makes possible, so long as the holders of other rights are not substantially impaired.107 The South Dakota and Washington courts made declarations to the same general effect.108 For a broader treatment of such matters, see "Measure of the Riparian Right," discussed later. Not dependent on use of water.-Preservation of a vested riparian right does not depend upon the owner's participation in use of the water, as against other riparian proprietors.109 Where this rule is in effect-as it is in California-the right is not destroyed or impaired by the fact that the riparian owner has not yet used the water on his riparian lands, or that he has no present intention of doing so; in other words, the riparian right is perpetual, whether exercised or not.110 In such jurisdictions, regardless of whether the riparian right is being 104Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 554-555, 81 Pac. (2d) 533 (1938). 105Herminghaus v. Southern Cal. Edison Co., 200 Cal. 81,100-101, 252 Pac. 607 (1926); Cal. Const, art. XIV, § 3 (1928);Peabody v. Vallefo, 2 Cal. (2d) 351, 374-375, 40 Pac. (2d) 486 (1935); Meridian v. San Francisco, 13 Cal. (2d) 424, 445447, 90 Pac. (2d) 537 (1939); Joslin v. Mann Municipal Water Dist., 67 Cal. (2d) 132, 429 Pac. (2d) 889, 60Cal. Rptr. 377(1967). 106 Ward County W. I. Dist. No. 3 v. Ward County In. Dist. No. 1, 117 Tex. 10, 16, 295 S.W. 917 (1927). 107Smith v. Stanolind Oil & Gas Co., 197 Okla. 499, 501-502, 172 Pac. (2d) 1002 (1946). Regarding the court's later interpretation of 1963 Oklahoma legislation which, among other things, undertook to limit unused riparian rights to domestic use, see, in chapter 6, "Interrelationships of the Dual Water Rights Systems-The Status in Summary: By States-Oklahoma." 10*Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466, 475-476, 487, 128 N.W. 702 (1910);Brown v. Chase, 125 Wash. 542, 549, 217 Pac. 23 (1923). 109Parker v. Swett, 188 Cal. 474., 480, 205 Pac. 1065 (1922). 110Heilbron v. The 76 Land & Water Co., 80 Cal. 189, 193, 22 Pac. 62 (1889);Mf. Shasta Power Corp. v.McArthur, 109 Cal. App. 171, 192, 292 Pac. 549 (1930). |