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Show 16 THE RIPARIAN DOCTRINE requirements of riparian land ownership. It extends to all rights in all waters on all lands within its domain, subject to whatever lawful method of disposal may be authorized by its constitutional and legislative law, and except for such rights as it has granted to the public at large or to specific individuals. Congress has made such grants, as noted below. But in the absence of expressed consent, the Government is not bound to observe riparian doctrine principles of State water law in handling waters on its own public lands through which or contiguous to which streams of water flow. Of course, if the sovereign purchases or condemns private riparian land, it could also acquire whatever water rights are incident thereto and thereby become a riparian proprietor on the same basis as private proprietors. Lands in Spanish and Mexican grants.-The only parts of the former Mexican territory in which the riparian water-use doctrine has had extensive recognition in American courts are California and Texas. (1) California. Lands held in Spanish and Mexican grants contiguous to streams in California are recognized as having riparian rights, but neither greater nor less than those of lands acquired from the United States Government. The California courts did not trace the water rights of pre-American land grants solely to Mexican law, although they did note it without particular emphasis in the landmark riparian case of Lux v. Haggin62 and in a few other cases. The prompt acceptance of the riparian doctrine as a part of the common law in the early judicial history of California served to clothe the proprietors of riparian lands granted prior to statehood with the identical water privileges that it accorded to early possessors on the public domain of the United States and to subsequent grantees thereof.63 It is true that some important features of the present California riparian doctrine were decided in controversies arising on lands originally granted by Spain or Mexico. But this was not because the land titles were so derived, nor by reference to Spanish-Mexican law, but solely because these privately owned lands, regardless of the source of private title, were contiguous to flowing streams or were traversed by them.64 (2) Texas. After several decades of controversy-resulting from dicta in a 1926 Texas Supreme Court opinion-over the relationship of riparian rights to Spanish and Mexican land grants, the issue was squarely presented to the Texas Supreme Court in a true adversary proceeding to determine it, and it was 62Lux v. Haggin, 69 Cal. 255, 317-334,4 Pac. 919 (1884), 10 Pac. 674 (1886). 63 AD land that passed to private ownership in fee simple is protected in its riparian rights against subsequent appropriates, whether the fee was obtained by virtue of a Mexican grant or under a land law of the United States. Wiel, S. C, "Water Rights in the Western States," 3d ed., vol. 1, § 260 n. 76 (1911). 64See Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 331-332, 88 Pac. 978 (1907); Frazee v. Railroad Comm'n, 185 Cal. 690, 693-694, 201 Pac. 921 (1921); Holmes v. Nay, 186 Cal. 231, 235, 199 Pac. 325 (1921); Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 526, 81 Pac. (2d) 533 (1938). |