OCR Text |
Show 110 THE RIPARIAN DOCTRINE residing on riparian land is a domestic use (sometimes called a natural use) as distinguished from a commercial use (often referred to as an artificial use). The court held that the fact that human beings are occupants of hotels, apartment houses, boarding houses, auto camps, or resorts of the character in litigation does not necessarily exclude them from the preferential class. But if swimming pools, ornamental pools, boating, and the like-which are not, in themselves, held to be domestic-are furnished as a part of the service to the guests, it may well be that the commercial character of the proprietor's business in serving his guests may be so extensive that a lower riparian whose domestic use, whether or not commercialized, would be prejudiced by the business activities of the upper riparian. In that case, the domestic preference would not be accorded to this upstream prejudicial commercial use. On the contrary, the latter commercialized domestic use then becomes an artificial use, subject to the same rule of reasonableness that applies generally to artificial uses of water. The question as to commercialized domestic use-as with irrigation and other artificial uses-is whether under all the circumstances of the case the use of water by the one is reasonable and consistent with the corresponding enjoyment of the right by the other. This is, in the first instance, a question for the trier of facts. The question of commercialized stockwatering use is discussed below. Stockwatering "Obviously the watering of cattle is a reasonable beneficial use" of water by a riparian owner.561 From the standpoint of riparian rights to the use of water for stockwatering, the weight of authority is to the effect that two classifications are involved-domestic (natural) and commercial (artificial). Associated with domestic use.- The riparian right at common law entitled the landowner to water his stock from the stream,562 a right which is generally recognized in Western States that adopted the riparian doctrine.S63 As in the case of use for household purposes, the landowner generally may take as much of the water as he needs for watering his farmstead domestic animals,564 even to the extent of consuming, if necessary, all the water of the stream for that purpose.565 561Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 561, 81 Pac. (2d) 533 (1938). S62Bathgate v.Irvine, 126 Cal. 135,142, 58 Pac. 442 (1899). S63Emporia v. Soden, 25 Kans. 588, 606 (1881); Clark v. Allaman, 71 Kans. 206, 241-242, 80 Pac. 571 (1905); Smith v. Stanolind Oil & Gas Co., 197 Okla. 499, 500, 172 Pac. (2d) 1002 (1946); Shook v. Colohan, 12 Oreg. 239, 244, 6 Pac. 503 (1885);Marfm v. Burr, 111 Tex. 57, 62, 228 S.W. 543 (1921); Petition of Clinton Water Dist. of Island County, 36 Wash. (2d) 284, 287, 218 Pac. (2d) 309 (1950). 564Smith v. Corbit, 116 Cal. 587, 592,48 Pac. 725 (1897). 565Drake v. Tucker, 43 Cal. App. 53, 58, 184 Pac. 502 (1919). See, however, the discussion at notes 557-559 supra, regarding an earlier California case and, in note 559, regarding a Kansas case that suggested such rights may be somewhat more restrictive. |