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Show THE RIPARIAN RIGHT 111 The preference accorded to the use of water for watering domestic animals as one of the primary uses of water usually applies only to the number of domestic animals required for ordinary farm domestic uses.566 In South Dakota, however, the statutory definition of domestic use, quoted earlier, declares flatly that stockwatering shall be considered a domestic use and places no limitation upon the number of stock to which this pertains. And the Okla- homa definition of domestic use appears to recognize the possibility of some commercial stockwatering, "up to the normal grazing capacity of the land."567 Not associated with domestic use.- While the watering of large or small herds of stock on a commercial scale is a proper riparian use, subject to the rule of reasonableness, it usually is not a preferred use of the water, although it is a preferred use in South Dakota and perhaps Oklahoma, as noted above. Therefore, the riparian who raises stock on a commercial scale is ordinarily not entitled to exhaust the streamflow for watering his stock, nor to claim prefer- ence as against another riparian owner who uses the water for irrigation. In Lux v. Haggin, the California Supreme Court recognized that the riparian owner may consume all the water of the stream for domestic purposes and for watering cattle if he requires it therefor, but stated that "it may happen, all the conditions being considered, that the exhaustion of an entire stream by large bands of cattle ought not to be permitted."568 The question as to whether, in California, the watering of commercial herds of stock is a preferred use was directly in issue and was decided in the negative in 1930. Plaintiffs, downstream riparian owners, contended that their right as riparian owners to water their commercial herds of about 2,000 head of beef cattle from the stream was superior to the right of defendant, an upstream riparian owner, to use the water for irrigation. The court referred to several California cases cited by plaintiffs, and pointed out that in none of them was more than the ordinary number of domestic animals involved and that there was no indication in the opinions that the common law rule of preference would apply to herds larger than necessary for ordinary domestic use. It was doubted, furthermore, that any authority could be found which would favor, as between commercial livestock use and use for irrigation, one use over the other. "Under the circumstances of this case it must therefore necessarily be concluded that the plaintiffs and the defendants all are entitled to a reasonable use of the waters of the stream for irrigation and for the raising of stock for commercial purposes."569 S66Cowellv. Armstrong, 210 Cal. 218, 224-225, 290 Pac. 1036 (1930). S67 For an interpretation of the intent of the subcommittee that drafted the legislation, in using this phrase, see Rarick, J. F., "Oklahoma Water Law, Stream and Surface Under the 1963 Amendment," 23 Okla. L. Rev. 19, 37 (1970). Minutes of the subcommittee in that author's file^aie cited. 568Lux v. Haggin, 69 Cal. 255, 407, 4 Pac. 919 (1884), 10 Pac. 674 (1886). 569Cowell v. Armstrong, 210 Cal. 218, 224-226, 290 Pac. 1036 (1930). See alsoDeetz v. Carter, 232 Cal. App. (2d) 851,43 Cal. Rptr. 321, 324 (1965). |