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Show WATER RIGHTS IN NAVIGABLE WATERWAYS 125 It may further be added that the policy of the state with respect to the waters flowing in non-navigable streams, or even in navigable streams where the use of the waters thereof for purposes other than navigation may be had without material interference with the navigability of such streams, is that such waters shall be so utilized as to produce the greatest amount of good to the industries of the state that they are capable of.114 The court in its dicta regarding navigable streams did not expressly specify whether its words "without material interference with the navigability of such streams" had reference to applicable Federal or State laws, or both.115 The California Supreme Court has said the effect of an appropriative diversion from a navigable stream upon its navigability is the concern of the Federal or State governments.116 In the absence of governmental action, the matter is not subject to litigation in a private suit between claimants of water rights who are unaffected by the effect on navigability. Provisions of the water appropriation statutes of North Dakota and South Dakota exempting navigable waters from appropriation were deleted in 1939 and 1955, respectively.117 None of the current water appropriation statutes in the West include this exemption. Riparian Rights In a discussion of riparian rights in the water of navigable streams, it is necessary to distinguish (1) rights in the flow of the stream itself from (2) rights in the bed of the stream and (3) rights in the fast land contiguous to the channel.118 It is to the first-named category-commonly termed water rights-that this discussion relates. 114 Waterford In. Dist. v. Turlock In. Dist., 50 Cal. App. 213, 220,194 Pac. 757 (1920). 115 The court's dicta appears to have been intended to apply to appropriative rights because the case dealt with such rights. 116Miller & Lux v. Enterprise Canal & Land Co., 142 Cal. 208, 213-214, 75 Pac. 770 (1904). The court indicated some skepticism as to the practical value of navigation on the San Joaquin River. In commenting upon the fact that the State had allowed the maintenance of the dam in litigation for a long period of time, the court said that the State "may never conclude to interfere to inquire into its lawfulness in the interest of a mere potential navigability which is apparently of little consequence, when such interference might destroy what, in this instance at least, seems to be a much more valuable public use of the water of the stream for irrigation." In any event, the decision in the instant case was to be made in accordance with the rights of the individual parties as against each other, "leaving the state or the federal government to determine whether or not it will initiate proper proceedings" to inquire into what was alleged to be a public nuisance. 117 N. Dak. Comp. Laws § 8235 (1913), amended by Laws 1939, ch. 255; S. Dak. Code § 61.0101 (1939), repealed by Laws 1955, § 1. 118See, for example, Curry v. Hill, 460 Pac. (2d) 933, 936 (Okla. 1969), discussed at note 99 supra. |