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Show 104 THE RIPARIAN DOCTRINE preventing or avoiding the harm. The following factors were considered as entering the balancing process on the side of the riparian owner: (a) the extent of the harm involved; (b) the social value which the law attaches to the riparian use; (c) the time of initiation of the riparian use; (d) the suitability of the riparian use to the watercourse; and (e) the burden on the riparian proprietor of avoiding the harm. In view of the balancing of the interests in reaching the decision, it is likely that the decision will be more favorable to an appropriator when the riparian right is unused. Even if the balancing process resulted in a preliminary finding favorable to the riparian, the factors to be considered in determining the appropriateness of an injunction may prompt a court to leave the riparian to only an action for damages if the riparian right is unused. The factors to be considered in determining the appropriateness of an injunction constitute a comparative appraisal of all elements of the case, including the following: (a) the character of the interest to be protected; (b) the public interest; (c) the relative adequacy to the plaintiff of injunctive relief and other remedies; and (d) the relative hardship likely to result to the defendant if the injunction is granted and to the plaintiff if the injunction is denied.535 Purpose of Use of Water All Useful Beneficial Purposes In the historically important case of Lux v. Hoggin, the California Supreme Court expounded the nature of the riparian owner's right in water, stating that each such owner has, in common with those in like situation, an equal right to the "benefit" of the water as it passes through his land "for all useful purposes to which it may be applied."536 The same court subsequently said he has the right to make "any use beneficial to himself on the riparian land," subject to the rights of other riparian proprietors.537 535 Wasserburger v. Coffee, 180 Nebr. 147, 161-164, 141 N.W. (2d) 738 (1966), modified in other respects, 180 Nebr. 569, 144 N.W. (2d) 209 (1966). While the riparian was granted an injunction in this case, the riparian right was not an unused right. In regard to the significance of the 1895 irrigation act, see the discussion at notes 484-489 supra. For a critical discussion of this case, see Comment, "The Dual-System of Water Rights in Nebraska," 48 Nebr. L. Rev. 488, 497-498 (1969). Brummund v. Vogel, 184 Nebr. 415, 168 N.W. (2d) 24, 27 (1969), appears to have added some uncertainty regarding the status of domestic use of water. This is discussed in the State summary for Nebraska in the appendix. S36Lux v. Hoggin, 69 Cal. 255, 391, 4 Pac. 919 (1884), 10 Pac. 674 (1886). The right extends to irrigation "or other necessary purpose." Van Bibler v. Hilton, 84 Cal. 585, 588, 24 Pac. 308 (1890). s*nMentone In. Co. v. Redlands Elec. Light & Power Co., 155 Cal. 323, 327, 100 Pac. 1082 (1909); to the same effect, Smith v. Stanolind Oil & Gas Co., 197 Okla. 499, 501-502, 172 Pac. (2d) 1002 (1946). In an early Nebraska case the court said that "the riparian owner has the right to use all the water which it is necessary for him to employ for any purpose." Eidemiller Ice Co. v. Guthrie, 42 Nebr. 238, 253, 60 N.W. 717 (1894). |