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Show 42 THE RIPARIAN DOCTRINE land that is no longer submerged. See, in chapter 3, "Collateral Questions Respecting Watercourses-Change of Channel." Prescription.- Adverse possession and use of water that has ripened into prescription is a generally recognized method of tbsing title to a riparian right, and it has been so for a long time. It was recognized in the leading California riparian case of Lux v. Haggin, and has been restated or actually decided in many cases in that State.216 In an address before the American Bar Association at San Francisco, August 9, 1922, Chief Justice Shaw of the California Supreme Court stressed the fact that a very general use of streamflow had been made on nonriparian land, despite the existence of vested riparian rights up and down the streams of early California.217 Of several causes that made this possible, he said, the most important and effective cause of a legal nature was the rule enabling the acquisition of a prescriptive right by adverse use. The same general rule has been stated in a number of other States in which there is or has been substantial recognition of riparian rights.218 The South Dakota Supreme Court has said, "The riparian proprietor's right.. . can be lost... by adverse prescriptive right."219 In some States the possibility of establishing a prescriptive water right as against riparian as well as other water rights appears to have been negated or questioned by legislation or one or more reported court decisions. See the later discussion in chapter 14 under "Prescription-Establishment of Prescriptive Title-Possibility of Establishing Prescriptive Water Right Negated or Ques- tioned." Various aspects of the effect of prescription on rights of riparian proprietors are also discussed in chapter 14. Condemnation.-In various States, it is well settled that the riparian right may be acquired and severed from the land of which it is a part by condemnation for public use pursuant to the statutes relating to exercise of the power of eminent domain. In an early North Dakota case, a railroad company, through its receivers, was allowed to condemn riparian rights in a stream for the purpose of improving its railway lines, without taking also the fee of the lands through which the river flowed.220 In some Texas court decisions, the possibility of severing the riparian right by condemnation from the land to which it inheres has been acknowledged, 216Lux v. Haggin, 69 Cal. 255, 392, 4 Pac. 919 (1884), 10 Pac. 674 (1886). SeePeabody v. Vallejo, 2 Cal. (2d) 351, 374,40 Pac. (2d) 486 (1935). 217 Shaw, L., "The Development of the Law of Waters in the West," 10 Cal. Law Rev. 443, 455456 (1922). ^Crawford Co. v. Hathaway, 67 Nebr. 325, 374-375, 93 N.W. 781 (1903); Meng v. Coffee, 67 Nebr. 500, 520-521, 93 N.W. 713 (1903); Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466, 487, 128 N.W. 702 (1910). 219Redwater Land & Canal Co. v.Reed, 26 S. Dak. 466, 487, 128 N.W. 702 (1910). 220Bigelow v. Draper, 6 N. Dak. 152,161-162, 69 N.W. 570 (1896). |