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Show THE RIPARIAN RIGHT 27 In various western decisions it was stated that the riparian right is "inseparably" annexed to the land.128 Despite the often careless use of this term, it was recognized in early court opinions,129 and it is still the law, that the riparian right may be separated from the land in various ways. See the later discussion, "Severance of Riparian Right From Land." The relation of the riparian right as a part of the land to claimed interferences appears in some California cases. As parcel of the land, it enables the owner to join an injurious interference with the stream when the stream is affected where it touches his land.130 The riparian owner is entitled to judgment against acts of others that will deprive him of a right of property, a valuable part of his estate.131 As in a legal sense the riparian right is an inherent part of the land, deprivation of the water is a detriment to the real property as distinguished from a mere trespass.132 However, it is a usufructuary and intangible right, so that neither a partial nor a complete taking produces a disfigurement of the physical property.133 As riparian rights can exist only as part and parcel of specific tracts of land, "any contract relating thereto would be void for uncertainty and of no avail unless it describes or refers to the land in a manner sufficient for identification."134 Right to the Flow of Water Quantity ofWater.-The water right to which a riparian proprietor is entitled, in the jurisdictions in which this right is recognized, is to have the stream flow 128St. Helena Water Co. v. Forbes, 62 Cal. 182,184 (1882);McDonough v. Russell-Miller Mill. Co., 38 N. Dak. 465, 471472, 165 N.W. 504 (1917); Norwood v. Eastern Oreg. Land Co., 112 Oreg. 106, 114, 227 Pac. 1111 (1924); Wrightv.Best, 19 Cal. (2d) 368, 382,121 Pac. (2d) 702 (1942). 129In Lux v. Haggin, 69 Cal. 255, 4 Pac. 919 (1884), 10 Pac. 674 (1886), the California Supreme Court discussed the riparian right at common law and said, 69 Cal. at 391, that it "is inseparably annexed to the soil," and yet the court said, "We need not add that rights to the use of water may be acquired by grant, under some circumstances by assent, and by adverse user and possession." 69 Cal. at 392. In Gould v. Stafford, 91 Cal. 146, 155, 27 Pac. 543 (1891), it is said that the riparian right, while considered part and parcel of the land, may be severed or "segregated" from the land by grant, condemnation, or prescription. 130San Joaquin & Kings River Canal & In. Co. v. James J. Stevenson, 164 Cal. 221, 241, 128 Pac. 924(1912). 131 Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68, 74, 77 Pac. 767 (1904). Such an action may be maintained by a reversioner. Heilbron v. Last Chance Water Ditch Co. 75 Cal. 117, 123-124, 17 Pac. 65 (1888). 132Martin v. Western States Gas & Elec. Co., 8 Cal. App. (2d) 226, 230,47 Pac. (2d) 522 (1935, hearing denied by supreme court). 133 Collier v. Merced In. Dist., 213 Cal. 554, 571, 2 Pac. (2d) 790 (1931). 13ATitleIns. & Trust Co. v. Miller & Lux, 183 Cal. 71, 81, 190 Pac. 433 (1920). |
