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Show 196 PROTECTION OF WATER RIGHTS IN WATERCOURSES resulting in actual damage to the lower riparian proprietor;27 failure of the upstream owner to return to the stream the surplus water remaining after his reasonable use;28 wastage of water by an upstream riparian owner;29 or use of water on nonriparian land (discussed below). In most cases relief is sought by riparian proprietors against those who make upstream diversions of water. A downstream diverson under ordinary circum- stances is not injurious to the upstream riparian owner.30 "It is unnecessary to cite authorities upon the general proposition that the wrongful pollution of a stream by one riparian owner to the injury of others will give a cause of action to the parties so injured * * * ."31 The question of pollution will be given attention later under "Quantity and Quality of the Water." Chapter 10 contains a discussion of the question of use of water on nonriparian land. (See "The Riparian Right-Exercise of the Riparian Right- Place of Use of Water.") It is there brought out that the decisions are in some conflict. Some western decisions have been to the effect that the riparian right does not entitle the proprietor to use water on lands not riparian to the stream as against the rights of lower riparian proprietors. Some other decisions have indicated that circumstances may exist under which it is nevertheless lawful to take the water elsewhere-such as when water is abundant and no possible injury could result to lower riparian owners. This may include the riparian's right to contract for the use of his riparian water on nonriparian land, apparently only prejudicial diversions being proscribed. Moreover, even though a diversion to nonriparian lands is actionable by lower riparians, the contract may be binding against the grantor. The Supreme Court of Oklahoma has expressed the view that the taking of water by a riparian to nonriparian land is not of itself an unreasonable use of the water, although when considered in connection with all other circum- stances, including the size and character of the stream and the quantity of water diverted, it might be unreasonable.32 "Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 555, 558, 561-562, 81 Pac. (2d) 533 (1938). 28Stanford v. Felt, 71 Cal. 249, 250, 16 Pac. 900 (1886). 29Holmes v. Nay, 186 Cal. 231, 242, 199 Pac. 325 (1921). 30 As stated by a Federal court, "Under the decisions of the state of California a lower riparian owner, or appropriator, gains no title to the water by prescription or use as against an upper riparian owner or appropriator, for the reason that the use of the water after it leaves the lands of the riparian owner is in no sense an interference with the rights of an upper riparian owner which are fully satisfied at the time the water leaves his lower boundary line." United States v. Central Stockholders' Corp. of Vallejo, 52 Fed. (2d) 322, 339 (9th Or. 1931). But see chapter 10 at note 172, regarding such actions as flooding of upstream lands. 31 Teal v. Rio Bravo Oil Co., 47 Tex. Civ. App. 153, 160, 104 S. W. 420 (1907). M Smith v. Stanolind Oil & Gas Co., 197 Okla. 499, 501-502,172, Pac. (2d) 1002 (1946), |