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Show 40 THE RIPARIAN DOCTRINE riparian proprietor to the use of the water of the stream may be conveyed, but he cannot convey more than the reasonable use, nor can the grantee acquire more." Regarding the court's later interpretation of 1963 Oklahoma legislation which, among other things, undertook to limit unused riparian rights to domestic use, see, in chapter 6, "Interrelationships of the Dual Water Rights Systems-The Status in Summary: By States-Oklahoma." Loss of contact with stream by conveyance.-In an important riparian rights case decided in 1938, Rancho Santa Margarita v. Vail, the California Supreme Court stated unqualifiedly that the rule is well settled that where the owner of a riparian tract conveys away a noncontiguous portion of the tract by a deed that is silent as to riparian rights, the conveyed parcel is forever deprived of its riparian status.206 For its authority, the court cited the much earlier case of Anaheim Union Water Company v. Fuller,207 but it did not mention a later decision, Hudson v. Dailey,208 which stated a more liberal rule (regarding permanent severance of the riparian right from land thus cut off from contact with the stream) that enlarged the exceptions from the rule to include some circumstances other than express mention in the deed of conveyance. For example, the circumstances might be such as to show that the parties so intended the right to go with the detached land, or they might have been such as to raise an estoppel. Ditches leading to the land at the time of conveyance, and previous delivery of water thereto, would tend to support a presumption of intent on the part of the parties.209 As a matter of fact, in the Rancho Santa Margarita case there was no issue as to whether any particular tract had been originally riparian and thereafter cut off from contiguity to the stream by a deed silent as to riparian rights. The issue was whether the rule applicable to grant deeds, which the court approved, had application to a partition decree. (See "Preservation of Riparian Right on Change of Title to Land-Partition of land by decree," above.) The supreme court agreed that it did not apply to a partition decree, which is fundamentally distinct from a grant, and consequently held that certain tracts involved in a partition did not thereby lose their riparian status. In view of this, there is nothing in the Rancho Santa Margarita case that weakens the more liberal rule respecting grants expounded in Hudson v. Dailey. The Washington Supreme Court followed the California case of Anaheim Union Water Company v. Fuller, to the effect that an owner of riparian land 206Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 538, 81 Pac. (2d) 533 (1938). 207Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 331, 88 Pac. 978 (1907). 208Hudson v. Dailey, 156 Cal. 617, 624-625,105 Pac. 748 (1909). 209 In Strong v. Baldwin, 154 Cal. 150, 156-157, 97 Pac. 178 (1908), the intent to preserve the water right in the detached parcels was deduced from the facts that at least a part of each parcel had been irrigated from the stream and that all original deeds for the noncontiguous tracts contained provisions regarding water. In Miller & Lux v. /. G. James Co., 179 Cal. 689, 690-692, 178 Pac. 716 (1919), the intent was clearly expressed in stipulations in the deeds of conveyance. |