OCR Text |
Show 20 THE RIPARIAN DOCTRINE was merely declaratory. He says further that while Lux v. Haggin was pending, numerous unsuccessful attacks were made on this section in the legislature.78 However, section 1422 was repealed in the year following the decision in Lux v. Haggin, with the proviso "that the repeal of this section shall not in any way interfere with any rights already vested."79 (2) According to the Texas Supreme Court, riparian rights attached to lands granted by the Republic of Texas after 1840-the year in which the common law was adopted-and to lands granted by the State prior to the enactment of the first appropriation statute in 1889.80 According to the Texas Legislature's own policy declaration in enacting the appropriation law of 1913-from which policy it has not receded-nothing contained in the act was to be construed as a recognition of any riparian right in the owner of any lands the title to which passed out of the State after July 1, 1895.81 (3) In 1903 the Washington Supreme Court held that certain lands reserved by the Act of Congress from the public domain for school lands were not segregated from the public domain until statehood was granted in 1889; that whatever rights the State had in the water annexed to the school land did not pass to any grantee until the school lands were sold by the State in 1909; and that riparian rights attached at the time of such sale.82 In a second decision in 1925, in which the court felt that it was faced by two apparently conflicting parts of the State constitution, the court held that the State's rights in the school lands for the purpose of irrigation had been granted to the public, so that its riparian rights in such lands were waived so long as title remained in the State, but that they attached to the lands by transfer from the State to private ownership.83 However, in a recent case the court reevaluated its reasoning in the 1923 and 1925 opinions and held that "the state may establish riparian water rights in its trust lands, to the same extent that such rights could be established by a private owner. ... To the extent that the Doan Creek and Crab Creek cases are inconsistent with this holding, they are overruled."84 78Wiel, supra note 63, § 113. "Cal.Stat. 1887, p. 114. wMotl v. Boyd, 116 Tex. 82,107-108, 286 S.W. 458 (1926). "Tex. Laws 1913, ch. 171, § 97, Rev. Civ. Stat. Ann. art. 7619 (1954). The Texas Supreme Court has said that grantees of public lands from 1840, when the common law was adopted in Texas, to the passage of the first water appropriation act in 1889, became vested with riparian rights in the waters of contiguous streams. Motl v. Boyd, 116 Tex. 82,107-108, 286 S.W. 458 (1926). *2InreDoan Creek, 125 Wash. 14, 23-24, 215 Pac. 343 (1923). 83/« re Crab Creek & Moses Lake, 134 Wash. 7, 24-25, 235 Pac. 37 (1925). 84/« re Stranger Creek & Tributaries in Stevens County, 77 Wash. (2d) 649, 466 Pac. (2d) 508, 513 (1970). The court said that while in the Crab Creek case it had been influenced by a desire to limit feared obstructive effects of the old riparian natural flow rule, "judicial and legislative developments have firmly established the preference for beneficial usage in concepts of both riparian and appropriative rights to water." The court stressed that by leasing its trust lands for grazing and forestry the State would |