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Show THE RIPARIAN RIGHT 105 Natural and Artificial Uses of Water Distinguished in many riparian jurisdictions.- A distinction between so- called "natural" or "ordinary" uses of water and "artificial" or "extraordi- nary" uses was made in many American and English cases. It was generally recognized in the Western States that accepted the riparian doctrine.538 Natural uses of water, as the term is used in the riparian cases, are uses to support life, and artificial uses are business or commercial uses. Natural uses of water generally include only the use of water for domestic purposes and for the watering of a garden and relatively small numbers of domestic animals. Artificial uses of water generally include the watering of larger herds of stock, irrigation, development of hydroelectric power, mining, manufacturing, industrial, and various other comparable business uses dis- sociated from domestic connotations.539 These distinctions are discussed below. Preferences accorded to natural uses of water.-(I) Wiel's summary. An excellent summary by Wiel as to the distinction between natural and artificial uses of riparian water, and of the preferences accorded to the natural uses, may be paraphrased as follows.540 Natural uses of water are those arising out of the necessities of life on the riparian land, such as household use, drinking, and watering domestic animals. As discussed below, for these purposes the riparian owner often may be allowed to take the whole flow of the stream if necessary, leaving none to go down to lower riparian proprietors. Artificial uses, on the other hand, are all those that do not minister directly to the necessities of life upon the land. Such uses are primarily for the purpose of improvement, trade, 53*Lux v. Haggin, 69 Cal. 255, 395, 407, 4 Pac. 919 (1884), 10 Pac. 674 (1886); Wong Leong v. /win, 10 Haw. 265, 270-272 (1896); Carter v. Territory of Hawaii, 24 Haw. 47, 70 (\9n);Clarkv.Allaman, 71 Kans. 206, 241-242, 80 Pac. 571 (1905); Crawford Co. v. Hathaway, 67 Nebr. 325, 353, 93 N.W. 781 (1903);S/zoo&v. Colohan, 12 Oreg. 239, 244, 6 Pac. 503 (1885); Lone Tree Ditch Co. v. Cyclone Ditch Co., 26 S. Dak. 307, 311-313, 128 N.W. 596 (1910); Watkins Land Co. v. Clements, 98 Tex. 578, 585-590, 86 S.W. 733 (1905); Hunter Land Co. v.Laugenour, 140 Wash. 558, 571-575, 250 Pac. 41 (1926). In 1955, the North Dakota Legislature declared that the several and reciprocal rights of a riparian owner, other than a municipality, comprise "the ordinary or natural use of water for domestic and stockwatering purposes," but repealed the declaration in 1963. N. Dak. Laws 1955, ch. 345, § 2, Cent. Code Ann. § 61-01-01.1 (1960), amended by Laws 1963, ch. 419, § 1, to delete the language of the declaration completely. 539Throughout a 42-year period extending into the 20th century, various decisions of the high courts of Texas announced conflicting points of view as to whether irrigation was a natural or an artificial use of riparian water. In this confused state of the law, the Texas Supreme Court in 1905 examined prior opinions, sorted out the dicta and actual authoritative holdings, and rendered a definitive decision to the effect that irrigation is an artificial use of water, subject to the right of natural use for domestic purposes by other riparian proprietors. Watkins Land Co. v. Clements, 98 Tex. 578, 585-590, 86 S.W. 733 (1905). s40Wiel, S. C, "Water Rights in the Western States," 3d ed., vol. 1, § § 740-744 (1911). |
