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Show 72 THE RIPARIAN DOCTRINE Subsequently, the supreme court discussed the rules governing the right of a riparian owner to contract for the use of his proportionate share of riparian water on nonriparian land and stated that: "What has been said with reference to riparian water flowing on the surface of the bed of the stream applies with equal force to riparian water, if any, which might flow through the sand and gravel beneath the surface of the bed of the stream."364 Definite underground stream.-In contrast with underflow or subflow, which is an essential part of a watercourse comprising both surface and subterranean waters, a so-called definite underground stream may exist entirely independently of a surface watercourse. Rights to the use of waters of such an underground stream were litigated as between two riparian owners in a California case. There were no other parties, inasmuch as the two parties litigant owned all the land riparian to this subterranean stream. Their chief uses of the water were for guests at summer resorts. In apportioning the water, the court held that "The question is whether under all circumstances of the case the use of water by the one is reasonable and consistent with the corresponding enjoyment of the right by the other. * * * What constitutes reasonable use is, in the first instance, a question for the trier of facts."365 An enactment of the Territory of Dakota in 1866 declared that water running in a natural stream over or under the surface might be used by the landowner as long as it remained there, but that he might not prevent the natural flow of the stream nor pursue nor pollute it.366 This was carried over into the State laws of both North Dakota and South Dakota, but it has been repealed in both States.367 The Dakota Territorial declaration was also adopted by the Territory of Oklahoma and, as amended in 1963, is still on the statute books.368 The amendment, among other things, respects existing claims of water rights based upon beneficial use, but undertakes to limit the exercise of unused riparian rights to the use of water for domestic purposes only, as defined in the statute. Excess streamflow over such domestic use becomes public water subject to appropriation.369 364 Texas Co. v. Burkett, 117 Tex. 16, 25-28, 296 S.W. 273 (1927). Compare the court's further statement, 117 Tex. at 29, concerning testimony that ground waters obtained by excavating on the banks of the stream are underground streams with defined channels. MSPrather v. Hoberg, 24 Cal. (2d) 549, 559-562,150 Pac. (2d) 405 (1944). 366 Terr. Dak. Laws 1865-1866, ch. 1, § 256, Civ. Code § 255. 367S. Dak. Code § 61.0101 (1939), repealed, Laws 1955, ch. 430, § 1; N. Dak. Cent. Code Ann., § 47-01-13 (1960), repealed, Laws 1963, ch. 419, § 7. 368Terr. Okla. Stat. § 4162 (1890), Stat. Ann. tit. 60, § 60 (1961), amended, Laws 1963, ch. 205, § 1, Stat. Ann. tit. 60, § 60 (Supp. 1970). 369 Regarding this provision and a recent case holding it did not apply to previously vested rights, see the discussion at notes 494 and 497 infra. |