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Show THE RIPARIAN RIGHT 99 purpose, the question of when the riparian irrigation use had begun and the extent of his actual use was not considered by the supreme court and was apparently deemed to be immaterial. Hence it took a position contrary to the Oregon court even without any consideration of the question of vested riparian rights based on prior beneficial use. In a recent case, the court held that unused riparian irrigation rights could be validly abrogated by the 1955 South Dakota appropriation legislation which protected, as vested rights, the rights of riparian owners "to the extent of the existing beneficial use" made shortly before or, in some cases, after its enactment.517 The court did not consider the question of whether a specific amount could be claimed as a vested riparian right as against appropriative rights. A specific amount had been awarded to a riparian landowner for irrigation purposes. The court held that the limitations on the amount awarded were not sustained by the record in the case and it should be redetermined, but the court did not question the matter of its specificity.518 Unused riparian right -This has often been a thorny problem. In California, the right of future use of water by the riparian proprietor stands as high as the right of present use. Although the riparian owner is now held, as against other riparians and appropriators alike, to reasonable beneficial use, he is not required to exercise his right to keep it in good standing, and his rights are not measured by the quantity of water he is using at the time of his action to enjoin an injurious upstream diversion.519 Regardless of whether the right is being exercised, it will be protected by declaratory judgment against the possibility of establishment of a prescriptive right.520 In the landmark decision in which the California Supreme Court accepted consideration the rights of other riparian owners. Was any such finding of the amount reasonable to use necessary as between appellant corporation and Jolly in order for the court to have been justified in its judgment as between these parties? We think not. The court found that 100 inches of water was necessary for the proper irrigation of Jolly's riparian lands. Therefore the right of Jolly to use 100 inches was lawful as against such corporation, which corporation had no rights to the water as against Jolly, save and except its right to restrain Jolly from any waste of such water." Id. at 310-311, 128 N.W. at 597. S17S. Dak. Comp. Laws Ann. § 46-1-9 (1967). 518Belle Fourche In. Dist. v. Smiley, 176 N.W. (2d) 239, 245-246 (S. Dak. 1970). In South Dakota, riparian rights for domestic purposes are unqualifiedly declared a vested right and are not limited to the amounts beneficially used before any certain water appropriation legislation. See S. Dak. Comp. Laws Ann. § 46-1-9 (1967) and the earlier quotation from the opinion of the South Dakota court in the Lone Tree Ditch case, at note 471 supra. Regarding the question of determining a specific amount of water for a riparian right to an underground stream, see the discussion of California cases at note 462, supra. sl9San Joaquin & Kings River Canal & In. Co. v. Fresno Flume & In. Co., 158 Cal. 626, 631,112 Pac. 182(1910). ""Duckworth v. Watsonville Water & Light Co., 150 Cal. 520, 531-532, 89 Pac. 338 (1907). |