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Show 224 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES Originally, there was derived the broad rule that "the doctrine of appropriation applies only to public lands, and when such lands cease to be public and become private property, it is no longer applicable."307 This was reiterated in one form or another in many decisions and was actually applied on the pleadings in Wallace v. Weitman, decided in 1958.308 In other cases decided in the meantime, however, the Washington Supreme Court rejected arguments that "a valid appropriation can be made only upon government lands."309 Finally in 1959, some 9 months after the date of the decision in Wallace v. Weitman and without reference to the opinion in that case, the Washington Supreme Court said that: "Defendants' contention that the doctrine of appropriation of water applies only to public lands has been rejected by this court."310 Notwithstanding these contradictions, it was established in a series of decisions rendered in the 1920's that the riparian owner's right of use as against an appropriator in Washington is now limited to such quantity of water as he can beneficially use on his riparian lands, either directly or prospectively within a reasonable time. All water in excess thereof may be appropriated.311 The court's thesis was that while it had recognized the common law doctrine of riparian rights, it had also modified and enlarged upon that doctrine by engrafting upon it the necessity of beneficial use by the riparian owner, the question of relief to such owner depending upon whether he was substantially damaged either presently or prospectively within a reasonable time. The common law rule of riparian rights "has been stripped of some of its rigors."312 As a result, before the riparian owner in Washington now has any rights to protect as against an appropriator he must show with reasonable certainty that either at present or within the near future, he will make use of the water for beneficial purposes.313 301Benton v. Johncox, 17 Wash. 277, 289, 49 Pac. 495 (1897). 308 Wallace v. Weitman, 52 Wash. (2d) 585, 586-587, 328 Pac. (2d) 157 (1958). 309 Weitensteiner v. Engdahl, 125 Wash. 106, 113, 215 Pac. 378 (1923);Hunter Land Co. v. Laugenour, 140 Wash. 558, 570, 250 Pac. 41 (1926). 310Drake v. Smith, 54 Wash. (2d) 57, 61, 337 Pac. (2d) 1059 (1959). 311 Brown v. Chase, 125 Wash. 542, 549, 553, 217 Pac. 23 (1923); In re Alpowa Creek, 129 Wash. 9, 13, 224 Pac. 29 (1924); Proctor v. Sim, 134 Wash. 606, 616-619, 236 Pac. 114 (1925); In re Sinlahekin Creek, 162 Wash. 635, 640-641, 299 Pac. 649 (1931); foreshadowed in State ex rel. Liberty Lake In. Co. v. Superior Court, 41 Wash. 310, 313-314, 91 Pac. 968 (1907). See also United States v. Ahtanum In. Dist., 330 Fed. (2d) 897, 904-905 (9th Cir. 1964), rehearing denied, 338 Fed. (2d) 307, certiorari denied, 381, U. S. 924 (1965). A number of conjectured alternative meanings of this limitation on riparian rights are discussed in Corker, C. E., & Roe, C. B., Jr., "Washington's New Water Rights Law-Improvements Needed," 44 Wash. Law Rev. 85, 113-128 (1968). 312In re Alpowa Creek, 129 Wash. 9, 13, 224 Pac. 29 (1924). 3i3State v.American Fruit Growers, Inc., 135 Wash. 156, 161, 237 Pac. 498 (1925). For a greater restriction regarding navigable waters, see chapter 4 at note 133. |