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Show 56 THE RIPARIAN DOCTRINE beyond the watershed of a river is part of an original tract that extends to the river.288 It follows that if a tract of land riparian to a stream in watershed A extends across the divide into watershed B, the portion lying in watershed B may or may not be riparian to the stream that drains it, depending upon the circumstances, but it usually is not riparian to the stream in watershed A. Some watershed tributaries questions are discussed below. Principal reason for the rule.-The rule limiting riparian rights to lands bordering the stream within the watershed thereof is based chiefly on the considerations "that where the water is used on such land it will, after such use, return to the stream, so far as it is not consumed, and that, as the rainfall on such land feeds the stream, the land is, in consequence, entitled, so to speak, to the use of its waters."289 Exception in Oregon.-In Jones v. Conn, decided in 1901, the Oregon Supreme Court took the position that a person who owns land contiguous to a natural stream is a riparian proprietor and entitled to riparian rights without regard to the extent of his land or from whom or when he acquired his title. One party had built a ditch to divert water from the stream some distance above his riparian property for the purpose of irrigating a tract he later acquired that was separated from the river by a bluff. The particular question at issue was whether such land behind the bluff was riparian, as against a claim by opposing parties that the slope of the tract prevented percolation of the water from the irrigated land, or return flow, from flowing back into the stream.290 Injury to other riparians.-The general rule in Texas is that "All surveys of land which abut upon a running stream are riparian as to all that portion of the survey which lies within the watershed of the stream, and its surface drainage is into the stream."291 In Watkins Land Company v. Clements, the Texas Supreme Court approved the general limitation that the riparian proprietor "can not ordinarily divert water to land lying beyond the watershed of the stream," but suggested that conditions might exist in which diversion beyond apply to the Osterman case on this point. See the discussion of the Wasserburger case under "Contiguity to Water Source-Acquisition by riparian of noncontiguous land," supra. In Wasserburger, the court decided questions concerning the definition of riparian land but it did not expressly discuss the watershed limitation question nor the Osterman case in this regard. 141 N.W. (2d) at 744-745. This perhaps was because all the lands in dispute apparently were considered to be within the watershed. 141 N.W. (2d) at 741-742. 288Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 330, 88 Pac. 978 (1907). 289 Id. 290Jones v. Conn, 39 Oreg. 30, 3941, 64 Pac. 855 (1901). On rehearing, 65 Pac. 1068 (1901), the court denied plaintiffs contention that it had "erred in not holding that the right of a riparian proprietor to use the waters of a stream for irrigating purposes does not extend beyond the watershed. . . ." 291 Matagorda Canal Co. v. Markhamlrr. Co., 154 S.W. 1176,1180 (Tex. Civ. App. 1913). |
