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Show 22 THE RIPARIAN DOCTRINE The Supreme Court of Washington agreed that riparian rights date from the first step taken to secure title from the Government,90 but emphasized that while the rights of the patentee relate back to the very inception of his title, yet they do not and cannot vest until patent issues.91 In other words, the riparian right attaches to the riparian land by virtue of a patent to the original owner,92 and not before, whereupon the doctrine of relation is invoked to fix its date of beginning. Early in the 20th century, this court rejected the contention "that a mere squatter on public land who subsequently sells out or abandons his claim acquires, or can acquire, riparian rights in a stream flowing through the land."93 Riparian right acquired by owner as part of land acquisition.-Thus, whether at the initial acquisition of riparian land from the Government94 or on acquisition of the land from a private owner,95 the riparian water right becomes possessed by the landowner as a part of the transaction by which he acquires title to the land. This water right is "part and parcel" of the land itself.96 (See "Property Characteristics-Right of Property," below.) It became so at the time the land was transferred from public to private ownership, and the right remains with the land unless divested by circumstances noted later under "Property Characteristics-Severance of Riparian Right From Land." Whether the (1922), concluded to have been in error in another respect, Platt v. Rapid City, 67 S. Dak. 245, 248-250, 291 N.W. 600 (1949); Redwater Land & Canal Co. v. Jones, 27 S. Dak. 194, 130 N.W. 85 (1911). See Stun v. Beck, 133 U.S. 541, 547-548, 551 (1890), affirming 6 Dak. 71, 50 N.W. 486 (1888). The South Dakota court indicated that the inception of the riparian rights could not precede the time the lands were opened to entry by settlers. Cook v. Evans, supra, 45 S. Dak. at 37. See also Redwater Land & Canal Co. v. Jones, supra, 130 N.W. at 89. The Nebraska Supreme Court, in deciding questions regarding the significance of the 1895 irrigation act (see the discussion at note 263 infra) noted that a few of the land patents in dispute "had been initiated by entries filed prior to March 27, 1889. All other patents were initiated after April 4, 1895," the effective date of the 1895 act. Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738, 742 (1966), modified in other respects, 180 Nebr. 569, 144 N.W. (2d) 209 (1966), in which the court again spoke of the dates that entries were filed. The question of the effect, if any, of any settlement prior to the filing of an entry was not expressly considered. 90In re Alpowa Creek, 129 Wash. 9,13, 224 Pac. 29 (1924). 9lBenton v. Johncox, 17 Wash 277, 288,49 Pac. 495 (1897). 92Petition of Clinton Water Dist. of Island County, 36 Wash. (2d) 284, 287, 218 Pac. (2d) 309 (1950). 93Kendall v. Joyce, 48 Wash. 489, 492-493, 93 Pac. 1091 (1908). "Crawford Co. v. Hathaway, 67 Nebr. 325, 357, 93 N.W. 781 (1903), overruled on different matters, Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738 (1966), modified, 180 Nebr. 569,144 N.W. (2d) 209 (1966). 95San Francisco v. Alameda County, 5 Cal. (2d) 243, 246, 54 Pac. (2d) 462 (1936). 96Fall River Valley In. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 65, 259 Pac. 444 (1927); Parker v. El Paso County W. I. Dist. No. I, 116 Tex. 631, 642-643, 297 S. W. 737 (1927). |
