OCR Text |
Show DECLARATIONS OF POLICY 11 Texas declares by statute that the use of water under an appropriative right shall not exceed in any case "the limit of volume to which the user is entitled and the volume which is necessarily required and can be beneficially used for irrigation or other authorized uses;" and it spells out the definition of beneficial use as "the use of such a quantity of water, when reasonable intelligence and reasonable diligence are exercised in its application for a lawful purpose, as is economically necessary for that purpose."59 The Supreme Court of Oklahoma in an early case held it necessary to the completion of an appropriation that the water shall have been actually applied to beneficial uses.60 Finally, on the Pacific Coast: The earliest water rights statute of California, enacted in 1872, declared that the appropriation of water must be for some useful or beneficial purpose, and that when the appropriator or his successor in interest ceases to use the water for such purpose, the right ceases.61 Twelve years earlier, the California Supreme Court had stated that a claim of appropriative right to be valid must be for some useful or beneficial purpose, or in contemplation of a future appropriation therefor.62 To the essential requirement of beneficial use have been added the qualifications of "economi- cal use" and "reasonable use";63 and eventually the qualifying phrase became "reasonable beneficial use" as commanded in 1928 by the State constitution.64 This mandate applied not only to appropriative rights, but expressly to riparian rights as well. By necessary implication it applied also to ground water rights and "to the use of all water, under whatever right the use may be enjoyed."65 This represented a marked change in the attitude of the California judiciary toward the riparian right. Previously, as against the owners of lands contiguous to the same stream, the riparian owner was held to reasonable use of the water for a useful or beneficial purpose, but-by contrast to the courts of the Pacific Coast neighbors Oregon and Washington,66-as against an appropriator he was "not limited by any measure of reasonableness."67 5yTex. Rev. Civ. Stat. Ann. arts. 7542 and 7476 (1954). 60 Gates v. Settlers'Mill., Canal & Res. Co., 19 Okla. 83, 89, 91, 91 Pac. 856 (1907). 61 Cal.Civ.Code § 1411 (1872). This was repealed by Laws 1943, ch. 368, pt. 12, p. 1895, Water Code § 150001 (West 1966), and replaced without change in language by Laws 1943, ch. 368, pt. 2, ch. 1, art. 4, § 1240, p. 1615, Water Code § 100 (West 1956). "Weaver v. Eureka Lake Co., 15 Cal. 271, 275 (1860). Compare Ketchikan Co. v. Citizens'Co., 2 Alaska 120, 124 (1903). 63Hufford v. Dye, 162 Cal. 147, 159, 121 Pac. 400 (1912); California Pastoral & Agricultural Co. v. Madera Canal & In. Co., 167 Cal. 78, 84-86, 138 Pac. 718 (1914). 64Cal. Const., art. XIV, § 3. "Peabody v. Vallejo, 2 Cal. (2d) 351, 367-369, 383, 40 Pac. (2d) 486 (1935); Joslin v. Mann Mun. Water Dist., 67 Cal. (2d) 132, 134-140, 429 Pac. (2d) 889, 60 Cal. Rptr. 377 (1967). 66In re Hood River, 114 Oreg. 112, 116, 191, 207, 211-212, 227 Pac. 1065 (1924); Brown v. Chase, 125 Wash. 542, 553, 217 Pac. 23 (1923). "Miller & Lux v. Madera Canal & In. Co., 155 Cal. 59, 64, 99 Pac. 502 (1907, 1909). See Pabst v. Finmand, 190 Cal. 124, 132, 211 Pac. 11 (1922); Herminghaus v. Southern California Edison Co., 200 Cal. 81, 100-101, 252 Pac. 607 (1926). |