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Show 118 THE RIPARIAN DOCTRINE (5) Generation of hydroelectric energy is an "artificial" use of the water. Hence, for such purpose, the right of the landowner is limited to the use of his reasonable proportion of the water of the stream.609 The determination as to what is the reasonable share of the riparian owner for such purpose is a question of fact to be decided according to the circumstances of each case, as in the case of other artificial uses of water. Municipal This feature of the riparian right has been discussed earlier under "Riparian Proprietors-Municipality." Briefly, in California, a municipality may have riparian rights in a stream by reason of its ownership of riparian land, but it has no greater right to the use of the water than a private owner of the same land would have.610 A Texas decision is sometimes cited as authority for the broad proposition that a city in its corporate capacity may be a riparian proprietor and entitled thereby to supply its inhabitants with water for domestic purposes in preference to the use of the water by other riparian proprietors. However, the actual controversy in this case was resolved on the basis of preexisting contractual relationships, and a Federal court expressed its opinion that this case did not reflect any broad rule on the subject.611 Decisions of the Washington Supreme Court do not favor inclusion of municipal use under the riparian right.612 The South Dakota Supreme Court held that a city that owned a tract of land riparian to a creek could not take water therefrom to supply its inhabitants living outside the watershed, without compensating lower riparian owners, but expressed no opinion as to what the city could do within the watershed.613 A Nebraska city that was making a noninterfering use of water was treated as an ordinary riparian owner. The question of riparian status of a municipality was not discussed in the court's opinion.614 609Callison v. Mt. Shasta Power Corp., 123 Cal. App. 247, 252, 11 Pac. (2d) 60 (1932). See Joerger v. Mt. Shasta Power Corp., 214 Cal. 630, 636-637, 7 Pac. (2d) 706 (1932); Crum v.Mt. Shasta Power Corp., 220 Cal. 295, 306-307, 30 Pac. (2d) 30 (1934). 610Antioch v. Williamslrr. Dist., 188 Cal. 451, 456, 205 Pac. 688 (1922). 6llGrogan v. Brownwood, 214 S.W. 532, 536-539 (Tex. Civ. App. 1919); El Paso County W. I. Dist. No. 1 v.ElPaso, 133 Fed. Supp. 894, 909-910 (W.D. Tex. 1955). 612 Van Disselv.Holland-Horr Mill Co., 91 Wash. 239, 241, 157 Pac. 687 (1916); Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 581, 38 Pac. 147 (1894);New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 498, 513, 64 Pac. 735 (1901). 613Sayles v. Mitchell, 60 S. Dak. 592, 594-595, 245 N.W. 390 (1932). '"Fairbury v. Fairbury Mill & Elevator Co., 123 Nebr. 588, 592-593, 243 N.W. 774 (1932). |
