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Show 156 PROPERTY NATURE OF WATER AND WATER RIGHTS statute of frauds.103 An argument of counsel that riparian rights are real property rights attached to the land does not put them beyond reach of the police power.104 There is eminent authority, said the North Dakota Supreme Court in 1896, for the doctrine that a riparian right is real estate; and that it might be condemned without also taking the fee of the land does not admit of doubt.105 Real Property: Part and Parcel of the Soil The right of a proprietor of riparian land in a riparian rights jurisdiction to have the water flow to his land to meet the requirements of his water right as recognized in the jurisdiction is annexed to the soil, not as a mere easement or appurtenance, but as part and parcel of the land itself. The essence of the statement that the riparian right is part and parcel of the soil-as a rule of the common law-has been included in the opinions of courts of a number of the Western States in which the common law riparian doctrine has been recognized.106 It has been repeated through the years in one form or another in many decisions of the California courts.107 The California Supreme Court made the statement at least as early as 1882.108 In 1927, this court reexamined the riparian right in the light of the facts of the case then before it, considered itself entirely satisfied with previous pronouncements thereupon, and specifically reasserted the right to be a vested property right inhering in the riparian land.109 103 Texas Co. v.Burkett, 117 Tex. 16, 29-30, 296 S. W. 273 (1927). 104 California-Oregon Power Co. v. Beaver Portland Cement Co., 73 Fed. (2d) 555, 567 (9th Cir. 1934). 105 Bigelow v. Draper, 6 N. Dak. 152, 161-162, 69 N. W. 570 (1896). 106 See Smith v. Miller, 147 Kans. 40, 42, 75 Pac. (2d) 273 (1938); Crawford Co. v. Hathaway, 67 Nebr. 325, 343, 93 N. W. 781 (1903), overruled on different matters by Wasserburger v. Coffee, 180 Nebr. 147, 141 N. W. (2d) 738 (1966); St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 266-267, 143 N. W. 124 (1913); Parker v. El Paso County W. I. Dist. No. 1, 116 Tex. 631, 642-643, 297 S. W. 737 (1927); Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 583, 38 Pac. 147 (1894). 107 It has been noted in more than 30 cases in the supreme court and district courts of appeal of this State. 108 St. Helena Water Co. v. Forbes, 62 Cal. 182, 184 (1882). 109 Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 65, 259 Pac. 444 (1927). |