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Show 490 THE APPROPRIATIVE RIGHT been one of the most distinctive features of the appropriative right as contrasted with the riparian right.263 "Another important distinction between riparian rights and appropriation rights is that the riparian's use measure of water is elusive and shrouded in the word 'reasonable', more unknown than foreknown, while the appropriator's use measure of water is predetermined, at least the maximum."264 In a series of decisions which, in conjunction with legislative declarations, resulted in progressive modification of the common-law riparian doctrine, the Oregon Supreme Court pointed out that the right of prior appropriation was incompatible with the rule of riparian ownership. One of the distinctions between the two doctrines is that appropriation contemplates a tenancy in severalty and riparian a tenancy in common. Thus, the appropriative right excludes the idea of equality among appropriators, and contemplates the use of a definite, certain, and fixed quantity of water. On the other hand, the riparian right is correlated with a similar right of every other owner of land riparian to the same stream, and in the nature of things contemplates the right to use a variable quantity of water.265 Some Exceptions There have been cases in western courts in which appropriative rights have related to specific fractions of the total available flow of streams.266 In Utah, in the early days, prorata divisions of streamflow measured either by fractional parts or by percentages of the flow were commonly made.267 The old determinations and stipulated decrees based on proportion of available flow caused considerable trouble in water administration, but fortunately most of them were superseded by modern determinations under the special statutory procedure or in private litigation.268 In other parts of the West they do not appear to have reached any such proportions. 263 A right of appropriation is a right to a definite quantity of water, but a riparian right is not: Wallace v. Weitman, 52 Wash. (2d) 585, 588, 328 Pac. (2d) 157 (1958). 264El Paso County W. I. Dist. No. 1 v. El Paso, 133 Fed. Supp. 894, 910 (W.D. Tex. 1955). usIn re Deschutes River & Tributaries, 134 Oreg. 623, 704-705, 286 Pac. 563, 294 Pac. 1049 (1930). For futher discussion and citations of authorities, see Hutchins, Wells A., "The Common-Law Riparian Doctrine in Oregon: Legislative and Judicial Modifica- tion." 36 Oreg. Law Rev. 193 (1957). 266 See Trimble v. Hellar, 23 Cal. App. 436, 446-447, 138 Pac. 376 (1913). 267 Thomas, George, "The Development of Institutions under Irrigation," pp. 143-144 (1920). Preadministration statutes provided that a right to the use of water might be measured by fractional parts of the whole supply, or by fractional parts with a limitation as to periods of time and use: Utah Laws 1880, ch. 20, § 8; Laws 1897, ch. 52, § 34. 268 Letter to the author from Wayne D. Criddle, formerly State Engineer of Utah, April 5, 1962. Examples of such decrees and agreements are discussed in chapter 7 under "Methods of Appropriating Water of Watercourses-Statutory-Inadequacies of the Preadministrative Procedures-The Utah experience." Related old Utah statutory provisions and court decrees with respect to "primary" and "secondary" water rights |