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Show THE RIPARIAN RIGHT 67 For matters concerned with changes of identity from artificial to natural watercourse, see, in chapter 3, "Collateral Questions Respecting Water- courses-Watercourse Originally Made Artificially." Watercourse Definite stream.-As defined in chapter 2, a watercourse may be taken for the purpose of this discussion as a definite stream of water in a definite natural channel, originating from a definite source or sources of supply. It includes the underflow. The stream may flow intermittently or at irregular intervals, if that is characteristic of the sources of water supply in the area. Most problems relating to riparian rights that have reached the high courts of the West have related to rights or claims of right to the use of definite flowing streams of water. Although the riparian right may relate to definite sources other than watercourses, nevertheless the concept of a natural flowing stream and of lands contiguous thereto is expressed or implicit in much that is written and said about the riparian doctrine. Except in contests over the existence or essential qualifications of a watercourse, or in other situations in which accurate terminology is indicated, the terms "watercourse," "stream," and "definite natural stream" are often used synonymously. In a lengthy review of the riparian doctrine by the California Supreme Court in 1886, it was stated that each riparian proprietor has a right to the "natural flow of the watercourse"; that each person "through whose land a watercourse flows" has such right; and that there may be a "continuous watercourse" through a body of swamp lands.337 The amendment to the State constitution adopted 42 years later speaks specifically of "Riparian rights in a stream or water course * * *."338 Court decisions of various other Western States have noted the relation of riparian rights to watercourses or natural streams. For example, "Riparian rights arise out of the ownership of land through or by which a stream of water flows."339 "Legally defined, a riparian owner is an owner of land bounded by a water course or lake or through which a stream flows."340 The riparian doctrine has been held by several State courts to apply to the flow of water in the natural channels of all surface streams.341 331 Lux v. Haggin, 69 Cal. 255, 391,413,4 Pac. 919 (1884), 10 Pac. 674 (1886). 338 Cal. Const, art. XIV, § 3. 339 WatkinsLand Co. v. Clements, 98 Tex. 578, 585, 86 S.W. 733 (1905). 3A0Sayles v. Mitchell, 60 S. Dak. 592, 594, 245 N.W. 390 (1932). 341 Clark v.Allaman, 71 Kans. 206, 224, 229, 80 Pac. 571 (1905); Taylor v. Welch, 6 Oreg. 198, 200 (1876); Osterman v. Central Nebr. Pub. Power & Irr. Dist., 131 Nebr. 356, 362-364, 268 N.W. 334 (1936); Chicago, R. I. & P. Ry. v. Groves, 20 Okla. 101, 111, 93 Pac. 755 (1908); Wallace v. Weitman, 52 Wash. (2d) 585, 588, 328 Pac. (2d) 157 (1958). |