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Show 116 THE RIPARIAN DOCTRINE of the riparian owner to operate a mill on his riparian land with which to grind grain or to operate any other machinery with the use of the streamflow as it passes through his land.598 As stated by the Nebraska Supreme Court: "The right and reasonableness of use of water power to propel a flouring mill by a riparian owner needs no justification. It has been practiced and protected ever since English law began."599 The use of water power as a proper riparian use has continued to be recognized.600 Generation of hydroelectric power.-(1) With the development of the industrial age, a logical extension of the original riparian right to the use of waterpower on riparian land for propelling mill machinery, was its adaptation to the generation of hydroelectric energy. This use by a riparian to operate a power plant on his land "is as clearly within his rights as is his right to operate a mill thereon with which to grind grain or to operate any other ma- chinery"601 -a new application of an old rule.602 (2) Recognition of this extended riparian right appears in a number of California cases decided in the first half of the 20th century.603 The California Supreme Court elaborated on the principle as follows:604 S98Mentone In. Co. v. Redlands Elec. Light & Power Co., 155 Cal. 323, 327, 100 Pac. 1082 (1909). 599Cline v. Stock, 71 Nebr. 70, 76, 98 N.W. 454 (1904), 102 N.W. 265 (1905). The fact that this case was decided, on rehearing (71 Nebr. 79), against the mill owner does not affect the historical accuracy of this statement. In a subsequent case, the same court stated, with reference to the predecessor of one of the parties: "By virtue of the fact of his ownership of the right of way connecting with the river, he was a riparian owner, and, as such, had the right to divert the water for power purposes. This right was not bestowed upon him as a special privilege by the state or any of its municipal subdivisions, but was a common-law right applicable to every riparian owner alike." Southern Nebr. Power Co. v. Taylor, 109 Nebr. 683, 686-687, 192 N.W. 317 (1923). 600Crawford Co. v. Hathaway, 67 Nebr. 325, 338, 93 N.W. 781 (1903), overruled on different matters, Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738 (1966), modified, 180 Nebr. 569, 144 N.W. (2d) 209 (1966); Fairbury v. Fairbury Mill & Elevator Co., 123 Nebr. 588, 592-593, 243 N.W. 774 (1932); Kuehler v. Texas Power Corp., 9 S.W. (2d) 435, 436-437 (Tex. Civ. App. 1928), error refused with written opinion, 118 Tex. 224, 13 S.W. (2d) 667 (1929). 60lMentone In. Co. v. Redlands Elec. Light & Power Co., 155 Cal. 323, 327, 100 Pac. 1082 (1909). 602 In a Nebraska case, an original riparian use of streamflow to operate a grist mill was eventually converted to use of the waterpower for generating electricity for municipal and public utility consumption. Southern Nebr. Power Co. v. Taylor, 109 Nebr. 683, 686-687, 192 N.W. 317 (1923). 603See Herminghaus v. Southern Cal. Edison Co., 200 Cal. 81,109, 252 Pac. 607 (1926); Fall River Valley In. Dist. v.Mt. Shasta Power Corp., 202 Cal. 56, 71-72, 259 Pac. 444 (1927); Miller & Lux v. San Joaquin Light & Power Corp., 120 Cal. App. 589, 609, 8 Pac. (2d) 560 (1932); Crum v. Mt. Shasta Power Corp., 124 Cal. App. 90,94,12 Pac. (2d) 134 (1932); Moore v. California Oregon Power Co., 22 Cal. (2d) 725, 730, 140 Pac. (2d) 798 (1943). 604Seneca Consol. Gold Mines Co. v. Great Western Power Co., 209 Cal. 206, 215, 219, 287 Pac. 93 (1930). |