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Show THE RIPARIAN RIGHT 43 but with caution.221 In other cases, on the contrary, the Texas courts acknowledged, without restraint, that the power to condemn riparian rights exists.222 In Lux v. Haggin the California Supreme Court stated that the riparian owner's right may be condemned to supply "farming neighborhoods" with water, referring with approval to a previous decision.223 The right to condemn the riparian right for public use is stated in various other California decisions. One' of these decisions from California involved the question as to whether the city of Los Angeles, in seeking to condemn the fee simple title to the littoral rights of adjacent landowners to maintain the natural level of Mono Lake-both navigable and nontidal-the water of which was so impregnated with mineral salts and alkali as to render it unfit for domestic use, might avoid the payment of substantial damages in compensation therefor. A court of appeals held that the usefulness of a riparian right for the taking of which compensation must be made was not limited to such purposes as irrigation and household needs, but included a situation such as the instant case in which the existence of the lake in its natural condition, "with all of its attractive surroundings," was the vital thing that furnished the marginal land almost its entire value, and hence came within the requirement of being "reasonably beneficial" to the land. These littoral rights could not be appropriated, even for a higher or more beneficial use for public welfare, without just compensation therefor.224 Nonuse of the right- A declaration that has been made many times over the years is that the riparian right is inseparably annexed to the riparian land by operation of law, that use of the water does not create the right, and that disuse cannot destroy or suspend it.225 That this broad statement is not literally and unqualifiedly true is evidenced by some of the situations discussed above under the instant subtopic, wherein it is shown that the riparian right is 221 Biggs v. Miller, 147 S.W. 632, 637 (Tex. Civ. App. 1912); Hidalgo County W. C. & I. Dist. v. Hedrick, 226 Fed. (2d) 1, 6 (5th Cir. 1955), certiorari denied, 350 U.S. 983 (1956);Matagorda Canal Co. v.Markhamlrr. Co., 154 S.W. 1176, 1181 (Tex. Civ. App. 1913). 222 Gibson v. Carroll, 180 S.W. 630, 632 (Tex. Civ. App. 1915); Freeland v. Peltier, 44 S.W. (2d) 404, 408 (Tex. Civ. App. 1931). In 1957, a court of civil appeals held that in the condemnation by the City of Fort Worth of land riparian to Trinity River, part of which was susceptible of irrigation and part of which was actually being irrigated, the value of the landowner's property right to take water from the river for irrigation of his riparian land was as material as any other element of value. Greenman v. Fort Worth, 308 S.W. (2d) 553, 555 (Tex. Civ. App. 1957, error refused n.r.e.). 223Lux v. Haggin, 69 Cal. 255, 302,4 Pac. 919 (1884), 10 Pac. 674 (1886), referring to St. Helena Water Co. v. Forbes, 62 Cal. 182,185 (1882). 22ALos Angeles v. Aitken, 10 Cal. App. (2d) 460, 473^75, 52 Pac. (2d) 585 (1935, hearing denied by supreme court). The requirement of reasonable beneficial use had been made by Cal. Const, art. XIV, § 3. The court construed the constitutional commands respecting flowing streams to include lakes. 22SLwc v. Haggin, 69 Cal. 255, 390-391, 4 Pac. 919 (1884), 10 Pac. 674 (1886). |