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Show 108 THE RIPARIAN DOCTRINE "Domestic Use," the use of water by an individual, or by a family unit or household, for drinking, washing, sanitary, culinary purposes, and other ordinary household purposes; and irrigation of a family garden, trees, shrubbery or orchard not greater in area than one half acre. Stock watering shall be considered a domestic use.552 As employed by the Texas Water Rights Commission, Domestic Use is the use of water by an individual, or by a family household, for drinking, washing, culinary purposes, irrigation of a family garden and/or orchard when the produce is to be consumed by the family household, and the watering of domestic animals.553 These legislative and administrative definitions are similar in including as domestic use the use of water for normal household purposes, and also minor irrigation around the homestead or farmstead primarily for the benefit of the family. Stockwatering as a riparian use is considered later. Reasonableness of the domestic use.- The element of reasonableness has been imposed upon uses of water for domestic purposes as well as for irrigation. That is, the preference accorded to riparian owners in making use of water for domestic purposes does not entitle the riparian to the continual flow of the stream therefor as a matter of law.554 He may be entitled to only a reasonable use.555 Nevertheless, some court opinions have indicated that the riparian may take all that he reasonably needs for domestic use even though this may exhaust the entire flow.556 In an 1896 case, the California Supreme Court indicated, however, that reasonableness is a question of fact depending upon all the circumstances of the case.S57 The supreme court held that the same principles that govern an apportionment of the flow by periods of time-that is, in rotation-among riparian owners for purposes of irrigation, justify such an apportionment for domestic uses.558 But in a case decided the next year, the court appears to have applied these principles only as among S"S. Dak. Comp. Laws Ann. § 46-1-6(4) (1967). 553 Tex. Water Rights Comm'n, "Rules, Regulations and Modes of Procedure," rule 115.1(s) (1970 Rev., Jan. 1970). 554 Wiggins v. Muscupiabe Land & Water Co., 113 Cal. 182, 190-193, 45 Pac. 160 (1896). S55In Martin v. Burr, 111 Tex. 57, 62, 228 S.W. 543 (1921), the court said that "upper riparian owners cannot lawfully use the water of a flowing stream for irrigation, when such use materially interferes with the supply required to meet the reasonable domestic needs of lower riparian owners, including water for stock." (Emphasis added.) 556 Apparently as against domestic or other uses of other riparians. Lone Tree Ditch Co. v. Cyclone Ditch Co., 26 S. Dak. 307, 128 N.W. 596, 598 (1910); Cavinessv. La Grande In. Co., 60 Oreg. 410, 119 Pac. 731, 735 (1911). See also Lux v. Hoggin, 69 Cal. 255, 395,4 Pac. 919 (1884), 10 Pac. 674 (1886), discussed at note 543 supra. 557 Wiggins v. Muscupiabe Land & Water Co., 113 Cal. 182,190-193, 45 Pac. 160 (1896). ss*Id. Regarding limitations on damming the streamflow and on wastage of surplus water, see the discussion at note 544 supra. |