OCR Text |
Show THE RIPARIAN RIGHT 87 Determining the quantity of water.-The California Supreme Court has said that the riparian right generally does not entitle the proprietor to the use of "any specific concrete amount of water"4S4-such as 475 cubic feet per second-because,45S "No stream in a state of nature would yield any such uniformity. Indeed, the riparian right is in its nature a tenancy in common and not a separate or severable estate." In the course of its protracted modification of the common law riparian doctrine, the Oregon Supreme Court also emphasized that the right of use by a riparian proprietor is analogous to a tenancy in common with other riparian proprietors on the same stream; that it is correlated with the similar right of every other such landowner; and that in the nature of things it contemplates the right to use a variable quantity of water.4S6 Problems in apportioning water among riparian claimants have presented difficulties. (1) Adjudication of existence of rights only. Existence of riparian rights has been adjudicated in various cases in which the actual extent of the several rights was not ascertained, leaving to future determinations the settlement of controversies as to specific quantities of water to which the riparians are entitled if such disputes should arise.457 4S4While this is true in most instances, in some of the States where, by statute, the riparian right is limited to actual application of water to beneficial use, thus limiting the unused riparian right (discussed later under "As Against Appropriators-Unused riparian right"), the riparian is required to file a claim stating a specific quantity of water. And this apparently purports to apply regardless of whether the claim is considered as being against an appropriator or as against a riparian. See, e.g., Tex. Rev. Civ. Stat. Ann. art. 7542a, § 4 (Supp. 1970); Wash. Rev. Stat. §§ 90.14.041 and .051 (Supp. 1970), discussed at notes 525 and 527 infra. See also the discussion under that sub topic of the / contrasting views of the Oregon and South Dakota courts. *" Seneca Consol. Gold Mines Co. v. Great Western Power Co., 209 Cal. 206, 219-221, 287 Pac. 93 (1930). The common law doctrine of riparian rights to the use of water by riparian owners is not a doctrine of fixed rights; that is, the riparian right does not relate to a definite and certain quantity of water. Smith v. Stanolind Oil & Gas Co., 197 Okla. 499, 502, 172 Pac. (2d) 1002 (1946). AS6Caviness v. La Grande Irr. Co., 60 Oreg. 410, 420-422, 119 Pac. 731 (1911); In re Deschutes River & Tributaries, 134 Oreg. 623, 704-705, 286 Pac. 563, 294 Pac. 1049 (1930). For discussion of this phase, see Hutchins, W. A., "The Common-Law Riparian Doctrine in Oregon: Legislative and Judicial Modification," 36 Oreg. Law Rev. 193, 198-200 (1957). 457 The California Supreme Court has held that a judgment that finds only that certain parties are entitled to the flow of sufficient water down the stream for certain purposes and that does not find nor determine the specific amount to which the parties are entitled is not fatally defective on that account. Omnes v. Crawford, 202 Cal. 766, 768-769, 262 Pac. 722 (1927). The court said that in Strong v. Baldwin, 154 Cal. 150, 163, 97 Pac. 178 (1908), andBigelow v.Merz, 57 Cal. App. 613, 208 Pac. 128 (1922), it was held that if a controversy should arise as to the specific amount of water to which the parties are entitled, this might well abide the result of a future determination. |