| OCR Text |
Show 80 THE RIPARIAN DOCTRINE South Dakota.-Owners of land on navigable streams have, in addition to rights common to the public, certain riparian rights of use and enjoyment of the stream which are incident to ownership of its banks not necessarily dependent upon title to the soil under the water. An impairment of these rights caused by pollution of the streamflow resulting from discharge of sewage into it is a taking, or at least a damaging, of the owner's property.407 Texas.- The question of attachment of riparian water-use rights to stream- flow does not depend upon the navigability or nonnavigability of the stream.408 Riparian owners have valuable rights in navigable streams.409 Washington.-Although riparian rights apply, within certain limitations, to waters of nonnavigable streams and nonnavigable lakes,410 the Washington Supreme Court held that owners of uplands bordering on navigable waters cannot assert riparian rights for irrigation as against claims of appropriators.411 Measure of the Riparian Right As Against Other Riparian Proprietors Natural flow theory versus reasonable use.- Under the natural flow theory, each riparian proprietor was entitled to have the water of the stream maintained in its natural state, not sensibly diminished in quantity or impaired in quality. Under the reasonable use theory, the riparian proprietor had a right to be free from an unreasonable interference with his use of the water. 64 N.W. 239 (1895); Crawford Co. v. Hathaway, 67 Nebr. 325, 350-351, 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); Osterman v. Central Nebr. Pub. Power & In. Dist, 131 Nebr. 356, 362-364, 268 N.W. 334 (1936). This is discussed in the State summary for Nebraska in the appendix. '"Parsons v. Sioux Falls, 65 S. Dak. 145, 150-153, 272 N.W. 288 (1937); Hildebrandv. Knapp, 65 S. Dak. 414,418419, 274 N.W. 821 (1937). ^Barrett v. Metcalfe, 12 Tex. Civ. App. 247, 254, 33 S.W. 758 (1896, error refused); Bigham Bros. v. Port Arthur Channel & Dock Co., 100 Tex. 192, 97 S.W. 686 (1906); King v. Schaff, 204 S.W. 1039, 1042 (Tex. Civ. App. l918);Motlv.Boyd, 116 Tex. 82, 111, 286 S.W. 458 (1926). 409Heard v. State, 146 Tex. 139,146,148, 204 S.W. (2d) 344 (1947). A10Brown v. Chase, 125 Wash. 542, 553, 217 Pac. 23 (1923); Proctor v. Sim, 134 Wash. 606, 612-619, 236 Pac. 114 (1925). 411 State ex rel. Ham, Yearsley & Ryrie v. Superior Court, 70 Wash. 442, 453, 126 Pac. 945 (1912). In the language of the court: "We are of the opinion that common law riparian rights in navigable waters, if it can be said that the common law recognized such rights, have not existed or been recognized in this state since the adoption of our constitution; at least so far as the upland owner having any right to occupy in any way the beds or shore lands of such waters or to take from such waters water for irrigation as against the state, its grantees, or those who have appropriated such water for purposes of irrigation in compliance with the laws of the state." See also Johnson, R. W., "Riparian and Public Rights to Lakes and Streams," 35 Wash. L. Rev. 580, 601-605 (1960). |
