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Show 68 THE RIPARIAN DOCTRINE Portion of streamflow.-(l) In the States in which the part of the natural streamflow to which riparian rights attach has been in issue, some distinction has been made between normal flow and extraordinary floodwaters. (2) Originally, riparian owners in California had a "technical right" to the full flow of the stream.342 The annually recurring spring floodflows in the major streams flowing from the Sierra Nevada into the San Joaquin Valley were held to be part of the usual and ordinary flow of the stream, so that the rights of the riparian owners included these annually recurring high waters.343 On the other hand, floodwaters that were not being used by riparian owners and could not be put to any beneficial use by them were held to be subject to appropriation as against such riparian owners.344 Since the adoption of the constitutional amendment of 1928 j345 no distinction is recognized in California between ordinary and extraordinary floodflows in a stream, and the right of the riparian owner now extends to whatever water is naturally available but only to the extent of his own reasonable and beneficial use ,346 The Nebraska Supreme Court has held that the riparian owner is entitled at most to only the ordinary and natural flow of the stream, or so much as necessary for his riparian uses, and cannot claim, as against an appropriator, the floodwaters passing down the channel in times of freshets.347 In a highly controversial decision rendered in 1926, the Texas Supreme Court expressed its opinion in Motl v. Boyd that "riparian waters are the waters of the ordinary flow and underflow of the stream; and that the waters of the stream, when they rise above the line of highest ordinary flow, are to be regarded as flood waters or waters to which riparian rights do not attach."348 For several decades, the criteria stated in Motl v. Boyd for determining this "line of highest ordinary flow" were criticized as impracticable of application; and the phraseology appeared to be wholly foreign to the understanding of expert hydraulic engineers who testified at the trial in State v. Valmont Plantations.**9 The well-established formula of the hydrologists for determin- ing "base flow" in the instant case was found by the trial judge as closest to the definition in Motl v. Boyd, and was used by him in making necessary 342 J. M. HowellCo. v. Corning In. Co., 177 Cal. 513, 519,171 Pac. 100 (1918). 343Miller & Lux v. Madera Canal & In. Co., 155 Cal. 59,63, 76-77, 99 Pac. 502 (1907). *"Chowchilla Farms v. Martin, 219 Cal. 1, 38, 25 Pac (2d) 435 (1933). 345 Cal. Const, art. XIV, § 3. "'Peabody v. Vallejo, 2 Cal. (2d) 351, 368, 40 Pac. (2d) 486 (1935);Meridian v. San Francisco, 13 Cal. (2d) 424, 445-447, 90 Pac. (2d) 537 (1939). ^Crawford Co. v. Hathaway, 67 Nebr. 325, 373-374, 93 N.W. 781 (1903), overruled on different matters, Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738 (1966), modified, 180 Nebr. 569,144 N.W. (2d) 209 (1966). 348Motl v. Boyd, 116 Tex. 82, 111, 286 S.W.458 (1926). 349State v. Valmont Plantations, 346 S.W. (2d) 853 (Tex. Civ. App. 1961), affirmed, 163 Tex. 381, 355 S.W. (2d) 502 (1962). |
