| OCR Text |
Show 44 THE RIPARIAN DOCTRINE not inseparably annexed to the land but may be severed from it in ways both voluntary and involuntary on the part of the landowner. Nonuse of the water by the landowner in a State in which the riparian right is recognized does not automatically, of itself, destroy or suspend his riparian right. But if an upstream diverter takes advantage of such nonuse to perfect a prescriptive right by adverse use of such water throughout the statutory period of limitation, this nonuse by the riparian landowner leads directly to the loss of his right. And in Washington, in which the supreme court stated that the riparian right is not created by use nor lost by disuse,226 the more recent policy-reached by the supreme court during the 1920's-has been that before the riparian owner has any rights to protect as against an intending appropriator of the water, he must show with reasonable certainty that either at present or within a reasonable time, he will make use of the water for beneficial purposes.227 Washington legislation enacted in 1967 regarding the loss of riparian rights because of nonuse is discussed below under "(2) Question of statutory forfeiture." (1) Question of abandonment. Strictly construed, abandonment of a water or other property right involves intentional relinquishment of possession thereof without any present intention to repossess it. The South Dakota Supreme Court has said, "The riparian proprietor's right does not depend upon use; it is an incident of ownership which can be lost only by adverse prescriptive right, grant, or actual abandonment." [Emphasis added.]228 However, no reported Western case has come to the author's attention in which an abandonment of a riparian right has been actually decreed. Samual C. Wiel declared flatly that "Riparian rights cannot be lost by abandonment. .. ,"229 In a 1902 California case, claimants under a grant of part of a riparian tract of land, which grant contained a reservation of enough water to operate a hydraulic ram, contended that all rights under the reservation had been lost by abandonment and adverse use. The fact that the successor in interest of the grantor abandoned the use of the hydraulic ram in favor of other means of use was not deemed material by the supreme court, because his right to the use of the water did not cease when he ceased to operate the ram. "As a riparian owner he is not bound to use the water, or, in case of non-user, lose his right to its use."230 226Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 583, 38 Pac. 147 (1894). 221 State v. American Fruit Growers, Inc., 135 Wash. 156, 161, 237 Pac. 498 (1925). (With respect to riparian use of navigable waters, see the discussion at note 411 infra.) The Washington court has taken a somewhat different approach to the use of water on nonriparian land by persons without appropriate rights. See the discussion at note 709 infra. 22*Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466,487, 128 N.W. 702 (1910). 229Wiel, S. C, "Water Rights in the Western States," 3d ed., vol. 1, § 861 (1911), discussed in chapter 14 at note 10. 230 Walker v. Lillingston, 137 Cal. 401,403^04, 70 Pac. 282 (1902). |
