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Show ESTABLISHMENT OF THE RIPARIAN DOCTRINE IN THE WEST 193 law riparian rights regarding accretions have been recognized and applied in Arizona.154 Likewise, the common law right of fishery has been applied in Colorado and Montana.155 Other features of the riparian doctrine which have been recognized in some of these jurisdictions include, for example, bed ownership, the right to unpolluted water, the right to protect streambanks against erosion, and the right to have access to the adjoining watercourse.156 Recognition in Varying Degree In the other generally less arid Western States-North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, and Texas on the 100th meridian, Washington, Oregon, and California on the Pacific Coast, and Alaska and Hawaii-the riparian doctrine of water rights has been recognized, but the degree of its importance and the way in which it has been recognized or curtailed varies markedly from one jurisdiction to another. The following discussion highlights some of the major approaches and developments in these States throughout the years. The order in which the States are presented is not necessarily intended to signify the relative importance of the doctrine in the dif- ferent States. (See chapter 4 for additional considerations regarding navigable waters and their tributaries.) California.-The riparian doctrine has been of major importance in this State. From the time of the earliest court decisions more than a century ago, integrity of the California riparian right has withstood repeated attacks. The right is an important property right and it may have substantial utility and value. Exercise of the right has been subjected to regulation under the police power by the State constitution, which commands reasonable beneficial diversion and utilization of water and forbids waste.157 The right is perpetual, whether exercised or not, but it may be lost by prescription. For any substantial deprivation of his riparian right, the owner is entitled to compensation, or to a physical solution. Texas.- In this State, the riparian doctrine has been of major importance for many years but with the passage of legislation in 1967 its significance has been limited.158 In many decisions rendered over a period of more than 100 years, 1S4State v. Jacobs, 93 Ariz. 336, 339, 380 Pac. (2d) 998 (1963); State v. Gunther & Shirley Co., 5 Ariz. App. 77, 423 Pac. (2d) 352, 357 (1967); State v. Bonelli Cattle Co., 11 Ariz. App. 412, 464 Pac. (2d) 999, 1005, 1006 (1970). lssHartman v. Tresise, 36 Colo. 146, 150-151, 84 Pac. 685 (1905); Herrin V.Sutherland, 74 Mont. 587, 595-596, 241 Pac. 328 (1925). Compare State ex rel. State Game Comm'n v. Red River Valley Co., 51 N. Mex. 207, 215, 182 Pac. (2d) 421 (1945). See also the dissents in this case, 51 N. Mex. at 229 et seq. 156 For a brief discussion of the protection provided these and related riparian rights by some of the courts in these jurisdictions (as well as in other Western States), see Note, "Riparian Rights in Appropriation States," 9 Wyo. L. J. 130 (1954). See also the disccussion of some of these matters in Fitzstephens v. Watson, 218 Oreg. 185, 344 Pac. (2d) 221 (1959). 1S7Cal. Const., art. XIV, § 3. 158Tex. Rev. Civ. Stat. Ann. art. 7542 ef seq. (Supp. 1970). 450-486 O - 72 - 15 |
