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Show ESTABLISHMENT OF THE RIPARIAN DOCTRINE IN THE WEST 187 court regarding a contiguous mining claim as a tract of riparian land, despite the true landowner's absence from the litigation, rights of use of the water to be decided according to principles of the common law riparian doctrine. These water rights served their purpose for the time being during that formative period; but they were not permanent riparian rights in the full sense of that term, for they could not survive the "working out" of the claims and their abandonment by the trespassing miners. A better designation of them is "rights analogous to riparian rights." Regardless of the value of expediency in creating a class of analogous water rights, the pattern of a riparian system was thus set in the mining area by the common-law-conscious court.121 Fifteen years after the attainment of state- hood, the supreme court decided in an agricultural area what appears to have been its first case in which rights of riparian proprietors only were involved, with no question of use of water on nonriparian land.122 Plaintiff used the water of a creek for irrigating a commercial vegetable garden. Some 7 or 8 years after this project was begun, defendant diverted the entire flow upstream for watering stock. Although the supreme court decision purported to be based on the common law rights of riparian proprietors as against each other, it recognized that irrigation in Solano County was a proper riparian use of the water. The court held that each proprietor had a right to the use of water for domestic, stockwatering, and reasonable irrigation, and that neither one had the right to so obstruct the stream as to prevent running of the water substantially as in a state of nature it was accustomed to run; that the maxim each one was bound to respect, while availing himself of his right, is sic utere tuo ut alienum non laedas (use your property so as not to injure that of others). Thus, the court applies a modification of the strict original common law rule in holding that plaintiff "had the right to the water of the creek in the natural flow, subject only to the use thereof by the defendant in a reasonable manner, without unnecessary obstruction or diminution.'" [Emphasis supplied.] During the ensuing two decades the California Supreme Court rendered several decisions in which the rights of riparian proprietors were recognized and matters respecting them were actually litigated.123 Then came the landmark case of Lux v. Haggin, in which the supreme court unequivocally established the principle that the riparian owner in California is entitled to a reasonable use of water for irrigation in relation to the reasonable needs of all other riparian proprietors on the same stream.124 The principle has been restated in numerous court decisions.125 121 See Irwin v. Phillips, 5 Cal. 140, 145-146 (1855); Hill v. Newman, 5 Cal. 445, 446 (1855); Kelly v. Natoma Water Co., 6 Cal. 105, 108 (1856); Hill v. King, 8 Cal. 336, 338 (1857); Kidd v. Laird, 15 Cal. 161, 180 (1860). 122Ferrea v. Knipe, 28 Cal. 340, 343-345 (1865). 123The cases are cited by Hutchins, supra note 75, p. 53, n. 7. 124Lux v. Haggin, 69 Cai. 255, 408-409, 4 Pac. 919 (1884), 10 Pac. 674 (1886). 125 For some examples see Hutchins, supra note 75, p. 241, n. 46. |