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Show 86 THE RIPARIAN DOCTRINE riparian cannot be considered unreasonable.449 As shown earlier ("Property Characteristics-Right to the Flow of Water"), a riparian can complain of the upstream interference with the flow only if it affects the stream where it passes his land. He has no right to go upstream to divert water that under natural conditions would not reach his land. Use of entire stream by riparian: When not permissible.-The foregoing paragraph relates to the use of the entire streamflow by one riparian for nondomestic purposes when others are not using or needing or demanding their own shares, or when the flow available upstream would not naturally reach them. Applying as it does only in the absence of exercise of other legitimate rights, it does not conflict with the California Supreme Court's statement late in the 19th century that "one principle is surely established, namely, that no proprietor can absorb all the water of the stream so as to allow none to flow down to his neighbor."450 The riparian owner does not have an absolute and exclusive right to all the streamflow in its natural state, but only the right to the benefit, advantage, and use of the water flowing past his land so far as it is consistent with a like right in all other riparian owners.451 Therefore, as the rights of riparian proprietors on the same stream with respect to each other are mutual and reciprocal, this necessarily follows when they wish to exercise their rights, regardless of whether one of them at such time needs the whole stream for proper irrigation of his land.452 In one of its leading riparian cases, the California Supreme Court reiterated the principle that under the riparian doctrine as applied in that State no riparian owner is entitled to the full flow of the stream as it existed in a state of nature, and held that either or both of two owners can be required to endure a reasonable inconvenience or incur a reasonable expense in order that water may be reasonably used by the other. Hence, if a diversion by an upstream proprietor depletes the surface flow at the diversion of a lower riparian owner, the upper owner-if he is to continue his existing diversion- may be required to share the expense of the downstream owner in obtaining his own share of the water from the subsurface supply.453 449 In Cowell v. Armstrong, 210 Cal. 218, 226, 290 Pac. 1036 (1930), the court said that "the plaintiffs' case falls in the absence of any proof in the record, first, that any water normally reaches the plaintiffs' lands in the summer season, and, second, that the defendants were making any unreasonable use of the waters of the stream, having due regard for the plaintiffs' rights." 450Harris v. Harrison, 93 Cal. 676, 681, 29 Pac. 325 (1892). 451 Crawford Co. v. Hathaway, 67 Nebr. 325, 373, 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). 452Parker v. Swett, 188 Cal. 474, 485, 205 Pac. 1065 (1922); Learned v. Tangeman, 65 Cal. 334, 336, 4 Pac. 191 (1884); Bameich v. Mercy, 136 Cal. 205, 206, 68 Pac. 589 (1902). A53Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 561-562, 81 Pac. (2d) 533 (1938). |