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Show COLLATERAL QUESTIONS RESPECTING WATERCOURSES 93 river cut a new channel across the neck of an oxbow and through what was admittedly at that time territory of Nebraska. This change of channel was not only sudden, but was permanent. The result was that land within the oxbow which previously had been west of the river was now east of it. The Supreme Court held that the midchannel of the river according to its course prior to the avulsion-around the oxbow-remained the true interstate boundary. The Court cited its decision in Nebraska v. Iowa as authority for holding that a cutting of this river across the neck of an oxbow came within the law of avulsion, not that of accretion, and quoted therefrom: " 'Accretion, no matter to which side it adds ground, leaves the boundary still the centre of the channel. Avulsion has no effect on boundary, but leaves it in the centre of the old channel.'"366 Protection of Land Against Change of Channel In a very early California case, it was held that a riparian owner has the right to protect his land against a threatened change of the original channel-which if not prevented would probably cut across his land-by building a bulkhead as high as was the original bank before it was washed away.367 A prompt reconstruction of the bank to its original height would not violate the principle that a riparian owner is entitled to have the stream flow as it was wont to flow. Hence, this does not conflict with the principle that a riparian owner may make changes in the stream channel that benefit him, provided the changes do not work a material injury upon other riparians. (See "Obstruction, Alteration, Diversion of Flow-The limitation to noninjurious changes," below.) This is recognized in a Nebraska decision in observing, in effect, that the riparian owner would be entitled to keep the stream in its original channel, provided the work is done in a reasonable time and without violating the principle that all riparian owners are entitled to have the stream run as it is wont to run according to natural drainage.368 Restoration of Original Channel A riparian owner may restore to its former channel a stream which erosion has caused to flow in a new channel upon his land, provided he does so within a reasonable time after the new channel formed and before the interests of lower riparian proprietors along the course of the old channel would be injuriously affected by such action on his part.369 A California district court of appeal has stated this rule and applied it to the facts of the case under consideration as follows:370 Without doubt a riparian owner, having lost his rights as such by avulsion, may ditch the water back to its original channel if he does not 366 Id. at 35. 367 Barnes v. Marshall, 68 Cal. 569, 570-571, 10 Pac. 115 (1886). 36BStolting\. Everett, 155 Nebr. 292, 301, 51 N. W. (2d) 603 (1952). 369 Ballmer v. Smith, 158 Nebr. 495, 499, 63 N. W. (2d) 862 (1954). 370McKissick Cattle Co. v.Alsagp, 41 Cal. App. 380, 388-389, 182 Pac. 793 (1919). |