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Show THE RIPARIAN RIGHT 89 reason of the underground character of the flow may have impelled the specific allotment in this case, it may be possible upon the retrial to decree an apportionment in a proportional or some other more equitable form. The apportionment should be measured in the "manner best calculated to a reasonable result," and the court may adopt any standard of measurement "that is reasonable on the facts to secure equality."462 The question of apportionment criteria has had the attention of California courts in a number of cases. Leading statements in court opinions over the years have been to the effect that: Where many riparian proprietors are involved, consideration must be given to the length of the stream, volume of water, extent of each landownership, character of soil on each tract, and area sought to be irrigated.463 The area of irrigable land, rather than the area under cultivation, would be properly a controlling element.464 The relative value of possible uses of riparian tracts may be taken into consideration.465 The standard of profitable irrigation was applied in one apportionment.466 And in the well known Herminghaus case, it was said that the relative extent of reasonable requirements of the riparian lands may depend upon "location, aridity, rainfall, soil porosity, responsiveness, adaptability to particular forms of production, and many other elements."467 In Texas, a court of civil appeals observed that in any controversy between upper and lower riparian owners having equal rights, "the use of the water for irrigation would be proportioned in accordance with the number of acres of ™Prather v. Hoberg, 24 Cal. (2d) 549, 559-560, 150 Pac. (2d) 405 (1944), citing Wiel, S.C., "Water Rights in the Western States," 3rd ed., vol. 1, § 741, pp. 820-821 (1911). In an earlier case, the court had indicated that as to a surface stream, the apportionment could take the form of fixing fractions of the whole stream but that as to wells pumping from an underground stream, in view of difficulties in ascertaining the total amount of available water, the apportionment should be in terms of a positive quantity of water as one's proper share of the whole. Verdugo Canyon Water Co. v. Verdugo, 152 Cal. 655, 93 Pac. 1021, 1034-1035 (1908). (The case dealt with complexities of apportioning the water of surface streams and underground flows in their vicinity. In this regard, see also Peabody v. Vallejo, 2 Cal. (2d) 351, 375-376, 40 Pac. (2d) 486 (1935), discussed at note 250 supra.) Moreover, in 1947 a district court declared, "As to subflow or underground waters, a definite capacity should be fixed, for it is said to be impracticable to give a proportion of the stream." Carlsbad Mut. Water Co. v. San LuisReyDev. Co., 78 Cal. App. (2d) 900, 911, 178 Pac. (2d) 844 (1947). Nevertheless, the supreme court in Prather v. Hoberg, supra, did not concede such impracticability. While acknowledging the practical difficulties of measurement, the court suggested the possibility on the retrial of basing the decree on a proportional or "some other more equitable" basis. 463Harris v. Harrison, 93 Cal. 676, 681, 29 Pac. 325 (1892). 464 Wiggins v.Muscupiabe Land & Water Co., 113 Cal. 182,195,45 Pac. 160 (1896). •"Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68, 71, 77 Pac. 767 (1904). 466Half Moon Bay Land Co. v. Cowell, 173 Cal. 543, 549-550,160 Pac. 675 (1916). wHerminghaus v. Southern Cal. Edison Co., 200 Cal. 81,117-118, 252 Pac. 607 (1926). |