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Show THE RIPARIAN RIGHT 41 who conveys to another a part of the land not contiguous to the stream thereby cuts off the riparian rights of such conveyed tract unless the conveyance declares the contrary, and that land thus severed from the stream can never regain the riparian right even though thereafter reconveyed to the person who owns the part touching the stream.210 In Texas, apparently, there has never been a clear-cut pronouncement as to whether tracts cut off and sold from a riparian tract can keep their riparian rights. In several cases, the decisions clearly reflect what the courts deemed to be the intent of the granting parties.211 At the trial in the Valmont case, which went to the Texas Supreme Court,212 Judge Blalock noted the absence of any such clear pronouncement as to the effect upon the riparian right, if any, of the existence of railroads, streets, highways, canals, flood control levees, and drainage canals separating a part of an original grant and a navigable stream, or as to the effect of conveyances that separated lands from the river.213 On appeal, the San Antonio Court of Civil Appeals did not deal with the trial court's holding that riparian status was retained notwithstanding loss of access. Courts in some other States have indicated, contrary to the California approach discussed above, that severed land may regain riparian status upon being reunited and held in common ownership with contiguous riparian land. This is discussed later.214 Loss of contact with stream by avulsion.-The riparian right may be lost by avulsion-a sudden natural change in the course of the stream that results in separating the new channel from contact with the former riparian land. A California court stated that without doubt a riparian owner, having lost his rights as such by avulsion, may ditch the water back to its original channel, but under two conditions: (a) He must not delay doing so beyond a reasonable time, and (b) in making the restoration, he must not disturb the rights of appropriators, nor go upon the lands of others without their consent or acquiescence to build dams and ditches thereon.215 The riparian right is not lost by accretion, which is a gradual natural change in the course of the stream resulting in the withdrawal of the water from the land along one side of the stream. The riparian ordinarily acquires title to the 210 Yearsley v. Cater, 149 Wash. 285, 287-289, 270 Pac. 804 (1928). 211Stratton v. West & Bennett, 27 Tex. Civ. App. 525, 529, 66 S.W. 244 (1901, error refused); Gibson v. Carroll, 180 S.W. 630, 632-634 (Tex. Civ. App. 1915); State v. Arnim, 173 S.W. (2d) 503, 508-509 (Tex. Civ. App. 1943, error refused want merit). 212 Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S.W. (2d) 502 (1962), affirming 346 S.W. (2d) 853 (Tex. Civ. App. 1961). 213 Blalock, W. R., Judge, "Excerpts From the Opinion of the Trial Court," Proc, Water Law Conference, Univ. Tex. 16, 30-32 (1959). 214 See "Riparian Lands-Contiguity to Water Source-Acquisition by riparian of non- contiguous land." MMcKissick Cattle Co. v.Alsaga, 41 Cal. App. 380, 388-389,182 Pac. 793 (1919). |