OCR Text |
Show THE RIPARIAN RIGHT 131 might best suit his convenience, if the result is to deprive other riparian owners of their use of the stream in its natural condition, unless such right be exercised under a valid prior appropriation.681 Lawful detention of the entire flow of a stream for 14 hours out of every 24 would require consent of lower riparian owners or condemnation of their rights, inasmuch as they might require use of the stream at all times.682 On the other hand, an upstream detention of water that does not cause unreasonable interference with downstream riparian uses may not necessarily be unlawful. The Washington Supreme Court believed that to strictly apply the rule of riparian entitlement to steady natural streamflow would preclude the best use of flowing waters, particularly where power development is desired. Such use was considered proper and lawful when made in good faith and for a useful purpose, "with as little interference with the right of other proprietors as is reasonably practicable under the circumstances."683 (See "Purpose of Use of Water-Water Power-Generation of hydroelectric power," discussed earlier.) Kansas legislation.-A statute enacted in 1891 and amended in 1957 provides that, subject to prior appropriation and vested rights, any person entitled to use water for beneficial purposes may collect and store the same for use thereafter, so long as such collection, storage, use, and times of use thereafter are consistent with reasonable storage and conservation practices. Failure to apply or use such water during the period of collection and storage does not impair the right.684 Other legislation provides that it shall be unlawful for anyone to construct any dam or make any change or addition thereto without permission from, and subject to conditions imposed by, the Chief Engineer, Division of Water Resources, State Board of Agriculture. But this shall not prohibit the placing in a "purely private stream" of any dam not more than 10 feet high and not impounding more than 15 acre-feet of water.685 Rotation in Use of Water Among Riparians (1) The question of rotation in use of water among claimants of rights 681 Still v. Palouse In. & Power Co., 64 Wash. 606, 609-610, 117 Pac. 466 (1911). It appeared here that the contemplated detention of spring floodflows would deprive downstream riparians of the accustomed natural spreading of the floodwater over their lands to the enrichment thereof. W2Tacoma Eastern R.R. v. Smithgall, 58 Wash. 445, 452, 108 Pac. 1091 (1910). Intermittent operation of an upstream dam to facilitate the owner's floating of shingle bolts was adjudged a nuisance to a lower riparian owner. Monroe Mitt Co. v. Menzel, 35 Wash. 487,496-497, 77 Pac. 813 (1904). ***Sumner Lumber & Shingle Co. v. Pacific Coast Power Co., 72 Wash. 631, 640-641,131 Pac. 220 (1913). Under such circumstances it was held to be not unreasonable nor unlawful to detain surplus waters not used in the wet season and to discharge them in proper quantities in the dry season. Under the facts of the instant case, the interruption was held to be not unreasonable. M4Kans. Stat. Ann. § 42-313 (1964), enacted, Laws 1891, ch. 133. 68SKans. Stat. Ann. § § 82a-301 to -305 (1969). |