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Show 130 THE RIPARIAN DOCTRINE with the river waters.675 Hence, the Texas Supreme Court had no occasion in this case to reconsider its views on riparian storage as expressed in its 1934 opinion. (2) Limitations on the riparian right of storage. In acknowledging the right of the riparian owner to store water when it can be done consistently with the equal rights of others, the Texas Court of Civil Appeals took occasion to declare, and to hold, that the action of an upstream riparian owner in damming the stream and taking the entire flow, thereby allowing none of the water to get down to the lower owner who was prepared to capture and store at least a part if not all of the flow, would obviously not be a reasonable use of a stream consistent with the lower owner's equal right to use the water.676 Furthermore, while one with proper authority, including a riparian owner, may construct dams in streams for the purpose of creating reservoirs, nevertheless in so doing he is not permitted to flood the lands of others, or to back the water past the line of other owners of the streamway, without permission or condemnation. A violation of this inhibition is a direct trespass.677 (3) Permit exemption for small reservoirs. A Texas statute as amended in 1959 provides that anyone may construct on his own property a dam or reservoir to impound or contain not to exceed 200 acre-feet of water for domestic and livestock purposes without the necessity of securing a permit therefor.678 The Texas Attorney General issued an opinion to the effect that on streams that are "watercourses," an appropriative permit is required if the water stored in the reservoir is to be beneficially used for irrigation, or for purposes other than domestic or livestock, even if the storage capacity is less than 200 acre-feet.679 The final section of the article in question provides "This Act shall in no way alter, affect or change the status quo of riparian rights or rights in diffused surface waters."680 Washington situation as to riparian storage.-Decisions of the Washington Supreme Court are to the effect that the privilege of storing water to the use of which a riparian owner is entitled is not within the riparian right if the detention results in unreasonable injury to other riparian proprietors, but may be lawful if such injury does not follow. Thus, it was held that water may not be gathered into reservoirs for the future use of one riparian owner when it 6nsValmont Plantations v. State of Texas, 163 Tex. 381, 355 S.W. (2d) 502 (1962), affirming 346 S.W. (2d) 853 (Tex. Civ. App. 1961). Nevertheless, see chapter 7, at notes 656-659, regarding "equitable" rights recognized in a 1969 Texas Court of Civil Appeals case. 616Stacy v. Delery, 57 Tex. Civ. App. 242, 248, 122 S.W. 300 (1909). 671Humphreys-Mexia Co. v.Arseneaux, 116 Tex. 603, 612-614, 297 S.W. 225 (1927). 678 Tex. Rev. Civ. Stat. Ann. art. 7500a (Supp. 1970). 679Tex. Atty. Gen. Opinion No. WW-97, May 17, 1957. 680 See also chapter 6, note 269 for a discussion of Oklahoma legislation regarding such matters. |