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Show COLLATERAL QUESTIONS RESPECTING WATERCOURSES 89 injury.348 This limitation has been recognized, as a principle of equity, without reference to any statutory limitation;349 but it applies only with respect to a material injury.350 Rights of Use Under certain circumstances, riparian proprietors in States having dual systems of water rights (riparian and appropriative) have claimed and have obtained sanction of rights to the use of high flood overflows for the purpose of natural irrigation of their riparian lands, where the overflows substantially benefited the land. In the case arising in Oregon, a Federal court held that a riparian owner was entitled to the ordinary and usual flow of the stream of any beneficial use to him including, under certain circumstances, flood or overflow waters reason- ably to be anticipated in ordinary seasons.351 Here about 300 acres of low-lying land adjacent to a creek was rendered productive of wild grass and other hay crops by the natural overflow of the creek, thus adding measurably to the value of the land. The owner was entitled to have this right protected against a proposed diversion that would cause sub- stantial injury. The Washington Supreme Court held that the riparian proprietor is entitled to the use of the natural flow of stream waters in their natural and accustomed channels, including floods or freshets that occur annually with practical regularity, where the riparian owner is accustomed to spreading of the water over his land to its enrichment and would be substantially injured by deprivation of the overflows by reason of upstream storage.352 In the Longmire case, the court acknowledged that it "may be" that the rule would not apply if the floodwaters were unprecedented and extraordinary. That question, however, was moot in the Still case, where the high waters were of practically regular annual occurrence. Although the California courts have not distinguished between ordinary and extraordinary floodflows in streams with respect to rights of landowners to embank against them, they formerly did make some distinction insofar as rights of riparian owners to use the overflows were involved. Thus, in several cases, it was held that riparian landowners were not entitled to enjoin hostile diversions of flood or freshet flows that did not injure their lands or impair 348 Jackson v. Knight, 268 S. W. (2d) 773, 775 (Tex. Civ. App. 1925, error dismissed). 349 Bass v. Taylor, 126 Tex. 522, 527-528, 90 S. W. (2d) 811 (1936). 350 Knight v. Durham, 136 S. W. 591, 593-594 (Tex. Civ. App. 1911). 351 Eastern Oregon Land Co. v. Willow River Land & In. Co., 201 Fed. 203, 213-214 (9th Or. 1912). 352Still v. Palouse In. & Power Co., 64 Wash. 606, 608-610, 117 Pac. 466 (1911); Longmire v. Yakima Highlands In. & Land Co., 95 Wash. 302, 305-307,163 Pac. 782 (1917). |
