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Show THE RIPARIAN RIGHT 49 right to the stream, surface and subsurface, analogous to the riparian right, which should be protected against an unreasonable depletion by an appro- priator."250 The right of an owner of overlying land in the water of a subsurface stream was thus made equivalent to and correlated with the riparian right of a holder of land contiguous to the surface stream, in a situation in which the waters physically comprise a common supply. In such a case, the right of access of an owner of land overlying the subsurface portion of the stream, but not contiguous to the surface portion, would extend downward to the ground water underlying the surface of his land.251 Frontage on stream channel.-In determining the riparian status of land that abuts upon a stream, under the California cases, the length of frontage is an immaterial factor. Rather, "it is access to the stream, and not whether all surface drainage from the area in question drains directly into the stream at the point of access, that determines the riparian status of the land." If a tract of land has any access to the stream at all, and the other requirements are fulfilled, the entire tract is riparian to the stream.252 In several cases, the California Supreme Court has recognized that a tract of land may be riparian even though it has only a short frontage on the stream.253 In one instance, a riparian right was adjudicated with respect to a 40-acre tract that was contiguous to a stream for a distance of only 250 feet, where the sharply curving bank of the stream jutted into the parcel.254 Lands in the flood plain of a stream.-In chapter 3, under "Elements of Watercourse-Channel," there is a discussion of the flood plain, which in the case of a live stream is the land adjacent to the ordinary channel that is overflowed in times of high water, from which the floodwaters drain back into the stream channel at lower points. In an ordinary situation, this bottomland is as much a part of the overall watercourse as are its beds, banks, and ordinary channel. This of course does not and cannot apply to great river valleys and great catchment areas. The court decisions in which lands in the flood plain of a stream are involved usually deal with obstructions to and control of flood flows within the flood plains, rather than with rights to the use of the water. However, in a 3S0Peabody v. Vallefo, 2 Cal. (2d) 351, 375-376, 40 Pac. (2d) 486 (1935). See also Prather v. Hoberg, 24 Cal. (2d) 549, 559-562,150 Pac. (2d) 405 (1944). "'Compare the earlier case of Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 332, 88 Pac. 978 (1907). 2S2Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 528, 533, 81 Pac. (2d) 533 (1938). Compare the earlier case of Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68, 71, 77 Pac. 767 (1904). 253See, e.g., Title Ins. & Trust Co. v. Miller & Lux, 183 Cal. 71, 85,190 Pac. 433 (1920); Omnes v. Crawford, 202 Cal. 766, 768, 262 Pac. 722 (1927). 2MJoerger v. Pacific Gas & Elec. Co., 207 Cal. 8, 30-33, 276 Pac. 1017 (1929). See also Joerger v. Mt. Shasta Power Corp., 214 Cal. 630, 635, 7 Pac. (2d) 706 (1932). |
