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Show 124 THE RIPARIAN DOCTRINE interfere with the rights of others to the waters of the stream, was sustained in a California case.640 Recovery of materials.-The Oklahoma Supreme Court has indicated that the use of a stream by a riparian owner for the purpose of recovering, for sale as building material, rock, sand, and gravel deposited by the stream on his land is a beneficial use within the riparian right.641 An early Nebraska decision was to the effect that on a nonnavigable stream the riparian owner might use water needed "for any purpose" and, specifically, to cut and remove the ice on the stream, provided he did not decrease the streamflow below what was required to successfully operate a lower mill.642 But, according to the Texas Supreme Court, the riparian right does not extend to the capture of waste oil floating downstream from producing wells. The court considered it obvious that the waste oil had no relation to the beneficial use of the land abutting on the creek, nor to a riparian right that was inherent in the land.643 Exercise of the Riparian Right Diversion of Water Historically, the right of the riparian owner to use the water of the stream to which his land is contiguous includes both the right to divert the water from the channel and the obligation to return the surplus to the stream after it has served his lawful purposes.644 Place of diversion of water.-(I) Apparently, as a general rule, the riparian owner may divert the water to which he is entitled at any point on his riparian land that is suitable for accomplishing the lawful use of the water, provided he returns the excess to the stream above the lower boundary of his riparian tract. (See "Return of Unused Water to Stream," below.)645 The California Supreme Court has indicated this may be done at the upper end of his riparian possessions if that location will contribute to the maximum utilization of his 640San Joaquin & Kings River Canal & In. Co. v. Fresno Flume & In. Co., 158 Cal. 626, 631-632,112 Pac. 182(1910). 641 Zalaback v. Kingfisher, 59 Okla. 222, 223,158 Pac. 926 (1916); Kingfisher v. Zalaback, 11 Okla. 108, 109-110,186 Pac. 936 (1920). But see the discussion in chapter 6, note 239, concerning Joslin v. Marin Mun. Water Dist, 67 Cal. (2d) 132, 142-143, 429 Pac. (2d) 889, 60 Cal. Rptr. 377 (1967), involving the effect of the 1928 California constitutional amendment in a dispute between a riparian and an appropriator. 642Eidemiller Ice Co. v. Guthrie, 42 Nebr. 238, 253, 60 N.W. 717 (1894). 643Magnolia Petroleum Co. v.Dodd, 125 Tex. 125, 129-130, 81 S.W. (2d) 653 (1935). 6AAMentone In. Co. v. Redlands Elec. Light & Power Co., 155 Cal. 323, 328, 100 Pac. 1082 (1909). MSBurkett\.Bayes, 78 Okla. 8,10-11,187 Pac. 214 (1918,1920). |