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Show RIPARIAN RIGHT 197 As Against Appropriators As a result of the California constitutional amendment of 1928,33 the riparian owner's relation to conflicting appropriative rights underwent a marked change in that State. No longer was he, as against an inferior appropriator, not limited by any measure of reasonableness. On the contrary, he was commanded by the fundamental law to make reasonable beneficial use of water under reasonable methods of diversion and use. No longer could he enjoin an inferior appropriative right that interfered with his use of the water under any kind of diversion process. The amendment did not destroy the riparian right. It restricted the exercise of the right. The riparian owner remained entitled to compensation for any substantial deprivation of his riparian right, or to a physical solution. In its first major examination and construction of the amendment, the California Supreme Court held that since its adoption the technical infringment of the paramount right of the riparian owner by the exercise of an appropriative right has not been actionable, except to establish the paramount right. But even if there is not substantial infringement of the riparian right, that is, "where there is no material diminution of the supply by reason of the exercise of the subsequent right, the owner is entitled to a judgment declaring his preferential and paramount right and enjoining the assertion of an adverse use which might otherwise ripen into a prescriptive right."34 It has long been the rule in California that protection may be had against those who divert water upstream without right, to the material injury of the downstream riparian owner's right,35 and that it is equally applicable as against citing Lawrie v. Silsby, 82 Vt. 505, 74 Atl. 94, 96 (1909). Regarding the court's later interpretation of 1963 Oklahoma legislation which, among other things, undertakes to limit unused riparian rights to domestic use, see, in chapter 6, "Interrelationships of the Dual Water Rights Systems-The Status in Summary: By States-Oklahoma." 33Cal. Const, art. XIV, § 3. "Peabody v. Vallejo, 2 Cal. (2d) 351, 374, 40 Pac. (2d) 486 (1935). (See "Remedies for Infringement-Injunction or Damages or Both-Some State Riparian-Appropriation Situations-California," infra.) Prior to the adoption of the amendment, the riparian owner was entitled "to the full flow of the stream without the slightest diminution," and so the initial step in the diversion of water by an inferior appropriator was an invasion of the right of the lower riparian owner and every successive diversion was a further invasion of that right. Pabst v. Finmand, 190 Cal. 124, 132, 211 Pac. 11 (1922). It followed that the riparian owner was entitled to restrain any diversion of the water to nonriparian lands. Most California law with respect to conflicting riparian-appropriation interrelation- ships was made in controversies in which the riparian right was adjudged superior. Regarding differences, as against appropriative rights, that may arise due to the time that lands passed into private ownership, and related factors, see, in chapter 6, "Interrelation- ships of the Dual Water Rights Systems-The Status in Summary: By States- California." 35See Creighton v. Evans, 53 Cal. 55, 56 (1818);Pope v. Kinman, 54 Cal. 3,4-5 (1879). |