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Show THE RIPARIAN RIGHT 57 the watershed would be authorized, such as existence of an abundant supply of water and no deprivation to other riparian proprietors.292 Thus, in the Texas case, the concept that diversion of riparian water to land without the watershed, to be upheld, depends on noninjury to other riparians, is consonant with the application of this rule in Texas to diversion to nonriparian land within the watershed. (See the later discussion, "Exercise of the Riparian Right-Place of Use of Water-Nonriparian land.) In the Oregon case, on the other hand, the court saw no objection to extending the riparian right to land without the watershed. On the facts of the case, it reached a result similar to that of the Texas court, by affirming a decree restraining a diversion out of the watershed that would result "in substantial injury of the present or future rights of the other riparian proprietors. But the court explained it did so because, since the defendant was asserting "the absolute right to sufficient water to irrigate his land, regardless of the effect it may have upon other proprietors, the plaintiffs are entitled to such a decree as will prevent his use from ripening into an adverse title."293 Relation to watersheds of tributaries.-The rules developed by the California Supreme Court governing relationships of the watersheds of a main stream and those of its tributaries, so far as they bear upon riparian rights within the respective watersheds, are as follows: (1) Each tributary is considered a separate stream with regard to lands contiguous thereto above the junction, so that land lying within the watershed of one tributary above that point is not riparian to the other stream.294 (2) As against lower riparian owners located below the confluence of a main stream and a tributary, however, the watersheds of the main stream and of the tributary stream constitute parts of a single watershed.295 The holdings in both the Anaheim Union and Holmes cases were more recently approved by the California Supreme Court, which said that: "The two 392 Watkins Land Co. v. Clements, 98 Tex. 578, 585, 86 S.W. 733 (1905), citing Jones v. Conn, 35 Oreg. 30, 4041, 64 Pac. 855, 65 Pac. 1068 (1901). See also In re Metropolitan Util. Dist. of Omaha, 179 Nebr. 783, 140 N.W. (2d) 626, 637 (1966), regarding reasonable use. 293 Jones v. Conn, 39 Oreg. 30, 39-41, 64 Pac. 855 (1901). On rehearing, 65 Pac. 1068 (1901), the court added, "It was to prevent any future contention that this claim or the use of the water thereunder had ripened into an adverse right as against the plaintiffs that the decree was so framed." In its original opinion, the court said that each riparian is limited to a reasonable use of water, "which is defined as 'any use that does not work actual, material, and substantial damage to the common right which each proprietor has, as limited and qualified by the precisely equal right of every other proprietor.'" 294Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 330-331, 88 Pac. 978 (1907). See Crane v. Stevinson, 5 Cal. (2d) 387, 399-400, 54 Pac. (2d) 1100 (1936). 295Holmes v. Nay, 186 Cal. 231, 240-241, 199 Pac. 325 (1921). See Crane v. Stevinson, 5 Cal. (2d) 387, 399-400, 54 Pac. (2d) 1100 (1936). |