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Show 188 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES The riparian doctrine has considerable significance in California. In no other Western State has the riparian owner been accorded greater privileges in respect to his water right than in California. It is a far cry from his position to. that of the owner "of an estate on the Thames."126 But exercise of the right is subjected by constitutional amendment to reasonable beneficial use under reasonable methods of diversion and use.127 Texas Unlike the situation in California, the riparian doctrine in Texas got underway gradually without the impetus of an overriding economic develop- ment in the fashioning of two competing systems of water rights and in sending them on into history. As in California, however, the decisions began to be rend- ered in the 1850's, and they were based predominantly on the common law. The first riparian case in the Texas Supreme Court was a suit by one riparian landowner against another for backing water upon his land, not a controversy over rights to the use of water.128 However, the decision was given a strong common law flavor by the court's observation that plaintiff has a right to the use of the water on his adjacent land as it flowed in its natural channel, and by the support of quotations from Kent's Commentaries on American Law. These were to the effect, inter alia, that all proprietors of lands on the banks of a stream have equal rights to the use of the water as it was wont to run, without diminution or alteration; that each proprietor may use the water while it runs over his land; that he cannot unreasonably detain it and must return it to its ordinary channel when it leaves his estate; and that without a grant, express or implied, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the waters back upon those above. Another case that did not involve the right to use water in any form contains dicta concerning both the common law and the civil law.129 The decision of Tolle v. Correth, rendered by the supreme court in 1868, is historically important, but it has no value as a precedent because it was rendered by the military court during the reconstruction era.130 It invoked the Mexican colonization laws as sources of water rights and refused to be guided by common law inhibitions. In Tolle v. Correth the court rejected the maxims "The water runs and let it run" and "Every one has a right to have the advantage of a flow of water in his 126 The United States Supreme Court, in affirming a decision of the supreme court of the Territory of Arizona, commented that adoption of the common law by the Territorial legislature "is far from meaning that patentees of a ranch on the San Pedro are to have the same rights as owners of an estate on the Thames." Boquillas Land & Cattle Co. v. Curtis, 213 U. S. 339, 345 (1909). 127 Cal. Const., art. XIV, § 3. 128Haas v. Choussard, 17 Tex. 588, 589-590 (1856). 129Rhodes v. Whitehead, 27 Tex. 304, 309-310, 315, 84 Am. Dec. 631 (1863). 130Tolle v. Correth, 31 Tex. 362, 365-366, 98 Am. Dec. 540 (1868). |