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Show 28 THE RIPARIAN DOCTRINE in its natural channel to his land.135 This, however, is not an unrestricted right; it is subject in all western riparian jurisdictions to reasonable use of the stream on the part of other riparian owners, and, in particular instances and respects, to rights of appropriators. These matters are dealt with later under "Measure of the Riparian Right." As adopted by the Kansas Supreme Court, the original theory of the common law was that the riparian owner had the right to such benefits as would result from the uninterrupted flow of a stream of water through its natural channel across or contiguous to his land, "without diminution or alteration."136 Other cases decided by this court even into the 1930's might leave the impression that the "natural flow" common law right in its original strict form prevailed consistently in Kansas; but this was not the case, because diversions that were not considered unreasonable were not held actionable. Furthermore, throughout practically this entire period modifications were being stated in one form or another.137 And in sustaining the constitutionality of the 1945 appropriation doctrine statute138 on the points presented for determination, the broad language of the previous decisions on riparianism were rejected.139 A large majority of the western riparian doctrine cases were litigated in California. In the 1850's, references to riparian rights appeared in opinions of the supreme court, but apparently the first case in which rights of only riparian owners were involved, with no question of use on nonriparian land, was decided in 1865.140 The decision, which rested wholly on the common law rights of riparian proprietors as against each other, was to the effect that the lower riparian owner was entitled to the natural flow, undiminished, except by the use of the upstream proprietor for domestic purposes and reasonable irrigation. This general approach has remained the California rule where rights of only riparian proprietors were involved. Riparian conflicts of most 135Mffler & Lux v. Madera Canal & In. Co., 155 Cal. 59, 65, 99 Pac. 502 (1907); Durkee v. Board of County Comm'rs, 142 Kans. 690, 693-694, 51 Pac. (2d) 984 (1935); Crawford Co. v. Hathaway, 67 Nebr. 325, 340, 93 N.W. 781 (1903); McDonough v. Russell-Miller Mill. Co., 38 N. Dak. 465,47M73, 165 N.W. 504 (1917); McGhee In. Ditch Co. v. Hudson, 85 Tex. 587, 592-593, 22 S.W. 398, 967 (1893); Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 582-583, 38 Pac. 147 (1894). l36Shamlefferv. Council Grove Peerless Mill Co., 18 Kans. 24, 31, 33 (1877). 137Hutchins, W. A., "The Kansas Law of Water Rights" 40-41 (1957). 138 Kans. Laws 1945, ch. 390, Laws 1957, ch. 539, Stat. Ann. § 82a-701 et seq. (1969). Under the Kansas legislation, vested rights were recognized only to the extent of their being put into beneficial use before or shortly after the 1945 enactment. Common law claimants without vested rights could be enjoined by appropriators from making subsequent diversions, although compensation could be had in an action at law for damages proved for any property taken from a common law claimant by an appropriator. 139State ex rel Emery v. Knapp, 167 Kans. 546, 555, 207 Pac. (2d) 440 (1949). U0Ferrea v. Knipe, 28 Cal. 340, 343-345, 87 Am. Dec. 128 (1865). |
