OCR Text |
Show THE RIPARIAN RIGHT 139 Return of Unused Water to Stream A long-established requirement-Early in the history of riparian water rights law in the West it was established that the riparian proprietor's rights attach to the stream where it crosses or passes his land; that he has a simple usufruct in the water while it is there; and that he must return to the stream, when it leaves his estate, the excess water above his rightful consumption.719 Point of return of water to the stream.-This matter has been litigated in several California cases. (1) In 1895, the California Supreme Court stated that the riparian owner might exercise his usufructury right in the water of the stream "provided he returns it to the stream above his lower boundary,"720 and the court made comparable statements in subsequent cases.721 A few years after the 1895 case, however, the court pointed out that in that case the upper and lower riparian tracts joined each other so that necessarily the upper owner was required to return the water at or above his lower boundary line, whereas under the facts of the instant case it was properly found that "defendant must return the waters at the upper boundary line or above the lands of plaintiffs."722 (2) The Joerger case. This 1932 California case involved the point of return of water diverted by a riparian owner for hydraulic power development.723 Defendant power company held title to lands on both sides of a stream and also to adjacent downstream lands contiguous to the left bank of the stream, together with the riparian rights pertaining thereto. Plaintiff owned down- stream land, consisting of three parcels, contiguous to the right bank opposite defendant's lower land, together with the riparian right pertaining to only the intermediate parcel; the riparian rights of plaintiffs two other parcels were held by defendant company. Defendant diverted substantially all the water of the stream from its left bank at a point just below the upper boundary of its riparian land, conveyed it to a power house located on the left bank of the stream not far from the lower boundary of the riparian land, and there returned the water to the stream. Thus, the water was returned to the stream 719Haas v. Choussard, 17 Tex. 588, 589-590 (1856); Rhodes v. Whitehead, 27 Tex. 304, 309-310,84 Am. Dec. 631 (1863); Tolle v. Correth, 31 Tex. 362, 363, 98 Am. Dec. 540 (Military Ct. 1868); Stanford v. Felt, 71 Cal. 249, 250, 16 Pac. 900 (1886); Gould v. Stafford, 11 Cal. 66, 68, 18 Pac. 879 (1888); Anderson v. Bassman, 140 Fed. 14, 29 (C.C.N.D. Cal. 1905). "The rule is well established that the riparian owner may cause the channel of a water course to be changed upon his own premises, providing he causes the water to be returned into the original water course before it leaves his premises." Burkett v. Bayes, 78 Okla. 8,10-11,187 Pac. 214 (1918). ™ Vernon In. Co. v. Los Angeles, 106 Cal. 237, 256, 39 Pac. 762 (1895). 721 See Mentone In. Co. v. Redlands Elec. Light & Power Co., 155 Cal. 323, 328, 100 Pac. 1082 (1909);Parker v. Swett, 188 Cal. 474, 486, 205 Pac. 1065 (1922). n2Bathgate v.Irvine, 126 Cal. 135,144, 58 Pac. 442 (1899). 723Joerger v.Mt. Shasta Power Corp., 214 Cal. 630, 636-638, 7 Pac. (2d) 706 (1932). |