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Show 70 THE RIPARIAN DOCTRINE loss of identity of the flow.354 In the California landmark riparian case of Lux v. Haggin, the supreme court held that while a regular channel with banks or sides is necessary to constitute a watercourse, "there may be a continuous water-course through a body of swamp lands."355 Water while opposite riparian land. -While the right of the riparian owner includes the right to have the water flow naturally in the stream to his riparian land, his right to divert the water begins only when the water naturally reaches his riparian land and extends only so long as the water is there. This facet of the riparian right has been discussed previously in the subtopics "Right to use water attaches only on reaching riparian land" and "Generally no right to water that has left the premises" under "Property Characteristics-Right to the Flow of Water." Underground Watercourse Waters in the ground, other than diffused percolating waters, are classed historically for legal purposes as "underflow of stream" and "definite underground stream." Their physical characteristics are discussed in chapters 19 and 20 dealing with ground waters, and underflow is also discussed in chapter 3. Underflow of stream.-The underflow of a surface stream is the subsurface portion of a watercourse, the whole of which comprises waters flowing in close association both on and beneath the surface. Also referred to as "subflow," it is an integral part of the watercourse. It is "well established that the underground and surface portions of the stream constitute one common supply."3S6 In an interstate case decided in 1907, the United States Supreme Court held that evidence of an alleged underflow of the Arkansas River did not warrant a finding that the subsurface water constituted a second and separate stream. It was the Court's opinion that the surface and subterranean flows constituted one stream.357 The supreme courts of both California and Texas approved the principle that underflow is riparian water to the same extent as surface streamflow. (1) California. "With respect to subsurface flow, all riparian owners share correlatively just as in the surface flow."358 However, in Anaheim Union Water 354Dement Bros. Co. v. Walla Walla, 58 Wash. 60, 64,107 Pac. 1038 (1910). 35SZ,mx v. Haggin, 69 Cal. 255,413, 4 Pac. 919 (1884), 10 Pac. 674 (1886). 3i6Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 555, 81 Pac. (2d) 533 (1938). 357Kansas v. Colorado, 206 U.S. 46, 114-115 (1907). 358Carlsbad Mut. Water Co. v. San Luis Rey Dev. Co., 78 Cal. App. (2d) 900, 911, 178 Pac. (2d) 844 (1947). Each parcel of riparian land is entitled to its proper share of the entire underflow, provided that no owner may by abstracting water from the underflow diminish the surface stream to the injury of anyone entitled to it. Verdugo Canyon Water Co. v. Verdugo, 152 Cal. 655, 665, 93 Pac. 1021 (1908). See Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 556, 81 Pac. (2d) 533 (1938). |