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Show 32 THE RIPARIAN DOCTRINE water unfit for irrigation, the California Supreme Court took the view that the alleged "serious and threatening" damage of pollution, in the absence of actual pollution, would not justify a prohibitory injunction, especially when protective measures short of actual prohibition might be applied by the court.158 A grant by a North Dakota riparian proprietor to an upstream landowner of an easement over his land, for the purpose of discharging sewage and waste products into the common stream, was held binding on not only the grantor but also his successors.159 In a California case, in which the validity of an easement to pollute a stream which had been granted by a nonriparian appropriator to a mining company was sustained, the supreme court stated that, "A prescriptive right to pollute a watercourse may be acquired as against lower riparian users and their successors in interest provided the deterioration in quality is not so great as to constitute a public nuisance." The novelty of the incident was held to be no bar to its recognition as an easement if its creation violated no principle of public policy.160 Right to use water attaches only on reaching riparian land.-The right of the riparian owner to have the stream flow to his land is obviously necessary to the enjoyment of its benefits. But his right of possession and use of the water does not begin until the water actually reaches the riparian land, and it lasts only so long as the stream is flowing by or across his land. "Until it touches his land he has no title whatsoever and no right other than the protective right to see that the full flow past his land to which he is entitled is not illegally diminished."161 ""Meridian v. San Francisco, 13 Cal. (2d) 424, 451-452, 90 Pac. (2d) 537 (1939). The evidence in this case showed that some pollution of the water available to the downstream riparian plaintiff occurred as a result of return flow from upstream irrigation projects, but that the return flow in the river had not yet contained a sufficient concentration of salts to render the water unfit for irrigation on plaintiffs lands. Plaintiffs concern over the "serious and threatening" damage of pollution arose over the possibility that the city's increased storage facilities farther upstream would withhold water that otherwise would flow down the river to freshen the flow before reaching plaintiffs land. The California Supreme Court held that, in view of the availability of protective measures ordered by the court, an injunction was not justified. That is, "if the city's diversions should result in making the water of the river unfit for use at the plaintiffs location, and the release of fresh water by the city and its return down the river channel would freshen the water to the required extent, the city could by proper order of the court be required to make such releases without rendering useless the city's increased storage facilities." A finding of heavy mineral impregnation of stream water in times of low flow was the basis of an opinion by a Texas court of civil appeals that as against an upstream irrigation appropriator, a riparian owner was entitled not only to enough water for the irrigation of his land, but sufficient usable water for irrigation purposes. Biggs v. Lee, 147 S.W. 709, 711 (Tex. Civ. App. 1912, error dismissed). 159 Johnson v. Armour & Co., 69 N. Dak. 769, 776-779, 291 N.W. 113 (1940). l60Wrightv.Best, 19 Cal. (2d) 368, 382-383, 121 Pac. (2d) 702 (1942). i61Miller & Lux v. Enterprise Canal & Land Co., 169 Cal. 415, 441, 141 Pac. 567 (1915) |