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Show THE RIPARIAN DOCTRINE of acquiring water-use rights as against a valid appropriation, except perhaps in the case of domestic use. Hawaii (a) Riparian doctrine mentioned in early cases, beginning in 1867, but (b) riparian rights not actually adjudicated until 50 years later, (c) As a result of two Territorial supreme court decisions rendered in 1917 and 1930, the riparian doctrine applies, as between "konohiki" (major land) units, to the surplus freshet waters of a stream but not to the normal flow.43 Status: Riparian doctrine recognized in Hawaii, but of limited application. Idaho (a) Riparian water-use doctrine rejected as against lawful appropriator in 1890, (b) also in 1909, but held superior to any right of "a stranger, intermeddler, or interloper." (c) Repudiated so far as conflicts with appropriators in 1912. (d) Declared to have been abrogated in 1939. (e) In a 1963 decision, use of water by person having apparently only "rights or privileges of a riparian owner" permitted so long as it does not interfere with decreed rights of appropriator.44 Status: Doctrine repudiated to extent it conflicts with doctrine of prior appropriation. Pac. 792 (1898). The court's language appears to have been dicta in both cases, (c) Schwab v. Beam, 86 Fed. 41, 44 (C.C.D. Colo. 1898). (d) As being not in accord with State court decisions, Snyder v. Colorado Gold Dredging Co., 181 Fed. 62, 68 (8th Cir. 1910). (e) United States Freehold Land & Emmigration Co. v. Gallegos, 89 Fed. 769, 772-773 (8th Cir. 1898). The court said, inter alia, that "By the rules of the common law, the appellant has the right to restrain the diversion of the flow of the water of this river from its natural channel, as against all the world. By the constitution and statutes of Colorado, it has the same right, although it never has appropriated any of the water to a beneficial use, as against every one but lawful prior appropriators; and, as the appellees are not such, it must have this right as against them." The court also said that since the appellant owned the land on both banks of the river, "the appellees can divert no water without entering upon and leading it across this land, and committing a continuing trespass upon it." (f) Sternberger v. Seaton Min. Co., 45 Colo. 401, 402-404, 102 Pac. 168 (1909). The court said that since the defendant apparently had made a valid appropriation, "the doctrine of the case cited [United States Freehold Land & Emmigration Co. v. Gallegos, supra], that plaintiff, as a riparian owner merely, is entitled to restrain the acts of a mere trespasser, does not apply." In Colorado River Water Conservation Dist. v. Rocky Mt. Power Co., 158 Colo. 331, 406 Pac. (2d) 798, 801 (1965), the court quoted approvingly an Idaho court opinion that "there is no such thing as a riparian right to the use of water as against an appropriator. . . ." Regarding domestic use, see chapter 6, note 153. 43(a) Peck v. Bailey, 8 Haw. 658, 661-662, 670-672 (1867). (b) Carter v. Territory of Hawaii, 24 Haw. 47, 70-71 (1917). (c) Carter v. Territory of Hawaii, supra; Territory of Hawaii v. Gay, 31 Haw. 376, 394417 (1930), affirmed, 52 Fed. (2d) 356 (9th Cir. 1931), certiorari denied, 284 U.S. 677 (1931). 44 (a) Drake v. Earhart, 2 Idaho 750, 757, 23 Pac. 541 (1890). (b) Hutchinson v. Waterson Slough Ditch Co., 16 Idaho 484, 490-495, 101 Pac. 1059 (1909). (c) Schodde v. Twin |