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Show 48 THE RIPARIAN DOCTRINE Contiguity to Water Source Necessity of contiguity.-It is essential that land, to have riparian status with respect to a stream or other water source, shall be contiguous thereto. The word "riparian" pertains to the bank of a river, or lake, or to tidewater; and so, in common parlance, "riparian rights" are rights in the banks, bed, and/or waters that are held by proprietors of lands along the banks-in other words, proprietors of contiguous lands. This association of contiguous lands and waters necessary to the founding of a riparian right is stated expressly in many high court decisions, and it is implicit in other decisions in most Western States that have recognized the riparian doctrine. "In law * * * only the tracts which border upon the stream are endued with riparian rights."245 "Legally defined, a riparian owner is an owner of land bounded by a water course or lake or through which a stream flows."246 "Riparian rights depend upon ownership of land which is contiguous to the water."247 The basis of the riparian doctrine, and an indispensible requisite of it, is actual contact of land and water; mere proximity or closeness short of contact is unavailing.248 The California Supreme Court has indicated that it is not only the portion of a tract bordering a stream that is "actually washed by the waters of the stream" that is riparian thereto. If a tract originally contiguous to a stream-and entirely within its watershed (discussed later)-has never been subdivided, it all remains riparian to the stream.249 Contiguity to underflow of stream.-In a California case in which the watercourse in litigation included both a surface and a subsurface stream, the latter extending a considerable distance from each bank of the former, "the riparian land owners and the overlying land owners may be said to possess a 2A5Gallatin v Corning In. Co., 163 Cal. 405, 416,126 Pac. 864 (1912). 2A6Sayles v. Mitchell, 60 S. Dak. 592, 594, 245 N.W. 390 (1932). 247 Woody v. Durham, 267 S.W. (2d) 219, 221 (Tex. Civ. App. 1954, error refused). Some other relevant decisions include Balabanoff v. Kellogg, 10 Alaska 11, 16-17, 118 Fed. (2d) 597, 599 (9th Cir. 1940), certiorari denied, 314 U.S. 635 (1941); Carter v. Territory of Hawaii, 24 Haw. 47 (1917); Territory of Hawaii v. Gay, 31 Haw. 376 (1930), affirmed, 52 Fed. (2d) 356 (9th Cir. 1931), certiorari denied, 284 U.S. 677 (1931); Clark v. Allaman, 71 Kans. 206, 244-245, 80 Pac. 571 (1905);McDonough v. Russell-Miller Mill Co., 38 N. Dak. 465, 471-473, 165 N.W. 504 (1917); Martin v. British Am. Oil Producing Co., 187 Okla. 193,196,102 Pac. (2d) 124 (1940); Weiss v. Oregon Iron & Steel Co., 13 Oreg. 496, 498-502, 11 Pac. 255 (1886). M*Stratbucker v. Junge, 153 Nebr. 885, 889, 46 N.W. (2d) 486 (1951). Riparian rights do not attach to any lands, however near, that do not extend to the water. El Paso County W. I. Dist. No. 1 v. El Paso, 133 Fed. Supp. 894, 909 (W.D. Tex. 1955). 249Alta Land & Water Co. v. Hancock, 85 Cal. 219, 229, 24 Pac. 645 (1890). In this case, an entire tract of 1,280 acres in single ownership, on which only a small area one-half mile or more from the stream was irrigated, was all held to be riparian. |
