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Show 96 THE RIPARIAN DOCTRINE use, present and prospective.502 This was accepted by the California Supreme Court as controlling the State water policy thenceforth.503 Consequently, in a contest between a riparian and an appropriator, it is necessary that the trial court find especially the quantity of water required for the reasonable beneficial uses of the riparian owner and so used by him, after which a determination may be made as to whether there is surplus water subject to appropriation.504 In sustaining the validity of the 1945 statute limiting vested riparian rights for nondomestic purposes, discussed earlier under "Cutoff dates," the Kansas Supreme Court declared that the beneficial use of the water which the individual is making or has the right to make has become the important phase of his water rights.505 In the early 1900's the South Dakota Supreme Court approved a limitation to reasonable beneficial use of water not only as among riparians themselves, but also as against appropriators.506 At about this same period, a Texas court of civil appeals imposed a limitation of reasonable and necessary use upon riparians. The court took the position that to accord to riparian owners the right to have all the water flow past their land as against a statutory appropriator would be to destroy the statute in its entirety; that the riparian owners were entitled to quantities of water reasonably sufficient for irrigation, stockraising, and domestic purposes; but that waters in excess thereof were subject to statutory appropriation.507 In both South Dakota and Texas, as discussed above under "Cutoff dates," riparian rights for other than domestic or livestock purposes have subsequently been further restricted, as in Kansas, to beneficial use made before or around certain dates. In Nebraska, as noted above, although riparian rights in lands that passed into private ownership prior to the 1895 Nebraska irrigation act "may be superior" to a competing appropriative right, an appropriator may be liable for injury to a recognized riparian right "if, but only if, the harmful appropriation is unreasonable in respect to the [riparian] proprietor."508 The court set forth 502Cal. Const, art. XIV, § 3. 503Peabody v. Vallejo, 2 Cal. (2d) 351, 365,40 Pac. (2d) 486 (1935). S04Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 524-525, 529-530, 45 Pac. (2d) 972 (1935). Regarding the relative superiority of riparian and appropriative rights and for further discussion of the reasonable beneficial use requirement in California, see, in chapter 6, "Interrelationships of the Dual Water Rights Systems-The Status in Summary: By States-California" and in chapter 13, "Remedies for Infringement-Injunction or Damages or Both-Some State Riparian-Appropriation S ituations-California." 5O5State ex rel. Emery v. Knapp, 167 Kans. 546, 555-556, 207 Pac. (2d) 440 (1949). 506Lorn? Tree Ditch Co. v. Cyclone Ditch Co., 15 S. Dak. 519, 526-528, 91 N.W. 352 (1902); Redwater Land & Canal Co. v. Jones, 27 S. Dak. 194, 204, 207, 130 N.W. 85 (1911). 501 Biggs v. Lee, 147 S.W. 709, 710-711 (Tex. Civ. App. 1912, error dismissed). 508 Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738, 742, 743, 745 (1966), modified, 180 Nebr. 569,144 N.W. (2d) 509 (1966). |