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Show 126 THE RIPARIAN DOCTRINE Under such circumstances he has not, as a riparian owner merely, the right to go on the land of an upper proprietor and divert water there.653 This is because the title of a riparian owner to use the water begins only when the water reaches his land-it does not exist during such time as the water naturally cannot flow that far down the channel. Until the water actually gets there, the riparian has "no right other than the protective right to see that the full flow past his land to which he is entitled is not illegally diminished."654 (6) The riparian owner may change the point of his diversion of the water so long as the rights of others are not injuriously affected thereby.655 Means of diversion of water.-(I) "And the momentum of the stream may be resorted to as a power for making it available, or it may be turned by a proprietor on his own land by a dam, or by any other means which he may find appropriate for the purpose." So said the Texas Supreme Court in discussing riparian rights at the common law and the civil law in a very early case.656 In many decisions, the theme has been that the method of diverting water from the stream for use on riparian land was not a factor for consideration so long as the rights of others were not thereby impaired.657 In 1893, the Oregon Legislature enacted a statute-still extant-giving the owner or possessor of land adjacent to a lake or natural stream the right to employ "wheels, pumps, hydraulic engines, or other machinery" for lifting water to the level required to irrigate any land belonging to him, provided that the use should not conflict with the "better or prior right" of anyone else.658 (2) Inherent in the right of the riparian owner to divert water from the stream for use on his land is his right to make such changes in the natural channel as are necessary to effectuate his diversion but without impairing other rights in the stream.6S9 (3) The question whether natural overflow of a stream served a useful and beneficial purpose in contributing to the productivity of the riparian lands aroused much contention in California over a considerable period of time. 653Drake v. Tucker, 43 Cal. App. 53, 58, 184 Pac. 502 (1919). 6MMiller & Lux v. Enterprise Canal & Land Co., 169 Cal. 415, 441,147 Pac. 567 (1915). '"Osborn v. Chase, 119 Wash. 479, 205 Pac. 844 (1922); Smith v.Corbit, 116 Cal. 587, 591-592, 48 Pac. 725 (1897). As against appropriates, see Norwood v. Eastern Oreg. Land Co., 112 Oreg. 106, 227 Pac. 1111,1113 (1924), discussed at note 716 infra. 656Rhodes v. Whitehead, 27 Tex. 304, 310, 84 Am. Dec. 631 (1863). See the facts in Kuehler v. Texas Power Corp., 9 S.W. (2d) 435, 436-437 (Tex. Civ. App. 1928), error refused, 118 Tex. 224,13 S.W. (2d) 667 (1929). 6snCharnock v. Higuerra, 111 Cal. 473, 480481, 44 Pac. 171 (1896); any suitable means, Shook v. Colohan, 12 Oreg. 239, 244, 6 Pac. 503 (1885); whether by ditch or hydraulic engine immaterial, Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466, 476, 128 N.W. 702 (1910); by dam and headgate, or by pumps and buckets, Turner v. James Canal Co., 155 Cal. 82, 92, 99 Pac. 520 (1909); pumps or other similar appliances, Charnock v. Higuerra, supra. 658Oreg. Laws 1893, p. 150, Rev. Stat. § 541.410 (Supp. 1955). "'Compare Garrett v. Haworth, 183 Okla. 569, 572-573, 83 Pac. (2d) 822 (1938). |