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Show THE RIPARIAN RIGHT 127 In the Herminghaus case, decided in 1926, the California Supreme Court held that as against an appropriator, the use of artificial appliances instead of natural overflow in getting stream water over its banks to irrigate adjacent riparian land was unnecessary.660 This decision, that the use of the floodflow of a stream for natural irrigation of riparian lands by overflow was reasonable, even though it required the entire flow of the stream to lift the water over the banks and thereby deprived upstream appropriators of its use, led to the adoption of a constitutional amendment in 1928 limiting the riparian right, among other things, to a reasonable method of diversion of water.661 As a result of the constitutional amendment, the riparian owner is now limited in the exercise of his right to reasonableness as against appropriators as well as against other riparian owners.662 There appears to be no basis in present California law for asserting that the diversion of water by natural overflow, without the use of artificial appliances, is, of itself, an unreasonable means of diversion. Whether, in a particular case, the diversion of water by natural overflow is reasonable or unreasonable will undoubtedly depend upon all the circumstances of that case. Conveyance of water from diversion point-(1) The fact that in diverting water above one's riparian land, with consent of intervening owners, the water must be taken from the river over intervening nonriparian lands belonging to other persons is of no consequence. The latter may of course object; but other riparian owners have no privity with such third parties and cannot avail themselves of their rights should the latter fail to object.663 Thus the fact that in making a legitimate riparian use of a stream by the construction and operation of a hydroelectric plant, a tunnel, or conduits were constructed through or across nonriparian lands, is immaterial.664 (2) The fact that a riparian owner lawfully diverts water from a spring tributary to a creek and conveys it to his land through "a pipe, flume and ditch," instead of letting the water flow naturally down the creek to the riparian land, does not destroy the character of the water as riparian water or the rights of the landowner therein as a riparian owner.665 (3) In an early riparian case, the Washington Supreme Court agreed that allowance must be made for some loss in transmission of water to the land, but cautioned that the irrigator must take reasonable means to lessen it.666 660Herminghaus v. Southern Cal. Edison Co., 200 Cal. 81,107-108, 252 Pac. 607 (1926). Compare Miller & Lux v. Madera Canal & Irr. Co., 155 Cal. 59, 64, 99 Pac. 502 (1907). '"Cal. Const, art. XIV, § 3. See United States v. Gerlach Live Stock Co., 339 U.S. 725, 749-756 (1950). 662Peabody v. Vallejo, 2 Cal. (2d) 351, 367, 368, 40 Pac. (2d) 486 (1935). See also the discussion at notes 578-579 supra. 663 Turner v. James Canal Co., 155 Cal. 82, 92, 99 Pac. 520 (1909). 664Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 71-72, 259 Pac. 444 (1927). 665Eckel v. Springfiled Tunnel & Dev. Co., 87 Cal. App. 617, 622, 262 Pac. 425 (1927). 666Shotwell v. Dodge, 8 Wash. 337, 341, 36 Pac. 254 (1894). The court was sharply |
