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Show THE RIPARIAN RIGHT 91 if practicable, by decreeing to the parties the full use of the whole stream or a designated part thereof at intervals-in rotation-rather than on a basis of continuous flow of a segregated part of the stream.473 (See the later discussion, "Exercise of the Riparian Right.") (5) Apportionment decree as res judicata. In Los Angeles v. Baldwin, the California Supreme Court determined that so long as the conditions upon which a decree of apportionment is based continue unchanged, the judgment rendered in such an action operates as a bar between the same parties in a subsequent proceeding.474 But in a specially concurring opinion, it was pointed out that a judgment determining that at a certain time the parties are entitled to the waters in certain proportions is not necessarily conclusive in a subsequent action because the facts upon which rests the determination may then be materially different. Decrees that actually do purport to apportion the flow of a stream among riparian owners, according to the Oregon Supreme Court, can usually be regarded as res judicata only so long as the conditions, upon which they were rendered remain the same.475 Citing the Oregon case, the Oklahoma Supreme Court observed that if a specific apportionment of water is made as between riparians, "it should not follow that rights thereafter are fixed by the decree further than where facts incident thereto coincide with the facts at the time of such decree."476 Return of surplus water to the stream.-It is a long-established rule that after making use of the water, any surplus over the quantity which the riparian owner is entitled to consume must be returned to the natural channel of the stream.477 Some decisions concerning the place of return of riparian water are noted below under "Exercise of the Riparian Right." As Against Appropriators The question of measure of the water right of a riparian proprietor as against appropriators on the same stream is the very heart of the riparian- appropriation relationship. This subject is considered at the end of chapter 6 under "Interrelationships of the Dual Water Rights Systems." It is also treated in more detail in the State summaries for individual States in the appendix. In view of what is said in this chapter concerning the riparian rights measure as among riparians themselves, it is appropriate for purposes of comparison to 473Harris v. Harrison, 93 Cal. 676, 680-682, 29 Pac. 325 (1892); Ward County W. I. Dist. No. 3v. Ward County Irr. Dist. No. 1, 117 Tex. 10, 14-16, 295 S.W. 917 (1927). 474Los-Angeles v. Baldwin, 53 Cal. 469, 470 (1879). 475In re SilviesRiver, 115 Oreg. 27, 31-32, 237 Pac. 322 (1925). 476Smith v.StanolindOil& Gas Co., 197 Okla. 499, 502, 172 Pac. (2d) 1002 (1946). ™Haas v. Choussard, 17 Tex. 588, 589-590 (1856); Stanford v. Felt, 71 Cal. 249, 250, 16 Pac. 900 (1886); Gould v. Stafford, 77 Cal. 66, 68, 18 Pac. 879 (1888); Vernon Irr. Co. v. Los Angeles, 106 Cal. 237, 256, 39 Pac. 762 (1895); Bathgate v. Irvine, 126 Cal. 135, 144, 58 Pac. 442 (1899);Anderson v. Bassman, 140 Fed. 14, 29 (C.C. N. D. Cal. 1905). |