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Show 198 PROTECTION OF WATER RIGHTS IN WATERCOURSES those who do so under claims of right which by lapse of time may ripen into prescriptive rights.36 The unlawful taking of water to nonriparian lands is not an ordinary trespass; it is a permanent taking which, if allowed to continue, may produce a material injury to the right of the downstream riparian owner. Regardless of whether the riparian right is being exercised, it will be protected by declaratory judgment against the possibility of development of a prescrip- tive right.37 Two decades after the constitutional amendment had been adopted, a Federal court noted that under the California cases an intending appropriator has no right to disregard the rights of riparian owners and other holders of prior or permanent rights to make use of all waters of a stream which they can put to reasonable beneficial use under reasonable methods of use. If one seeks to appropriate water wasted or not put to any beneficial use, it is obligatory that he find some physical solution at his own expense for preserving existing prior rights, if such solution can be found. If this cannot be done, the riparian owners and other holders of prior and paramount rights must be compensated for the value of the rights taken by the United States as appropriator under the law of eminent domain.38 The Texas courts acknowledged the coexistence of the dual riparian and appropriation doctrines, that they are in conflict, and that conflicts that reach the stage of litigation must be reconciled. They took the position that the riparian doctrine is underlying and fundamental, formerly without regard to segments of streamflow,39 but in Motl v. Boyd in 1926 as to only the normal flow and underflow of the stream.40 An important limitation to reasonable and necessary use was imposed in 1912. It was recognized that to accord to riparian owners the right to have all the water flow past their land as against a statutory appropriator would result in destroying the statute in its entirety; that the riparian owners were entitled to protection in their rights to quantities of water reasonably sufficient for irrigation, stockraising, and domestic purposes; and that waters in excess thereof were subject to statutory appropriation.41 36Gould v. Eaton, 117 Cal. 539, 543, 49 Pac. 577 (1897); Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 333-334, 88 Pac. 978 (1907). 37Pabst v. Finmand, 190 Cal. 124, 132, 211 Pac. 11 (1922); Peabody v. Vallejo, 2 Cal. (2d) 351, 374-375, 40 Pac. (2d) 486 (1935). The riparian owner's rights are not measured by the quantity of water he is using at the time of his action. San Joaquin & Kings River Canal & In. Co. v. Fresno Flume & Irr. Co., 158 Cal. 626, 631, 112 Pac. 182(1910). MGerlach Livestock Co. v. United States, 76 Fed. Supp. 87, 94-95 (Ct. Cl. 1948), affirmed, 339 U.S. 725 (1950). See particularly 339 U.S. 752-755. 39Biggs v. Miller, 147 S.W. 632, 636-637 (Tex. Civ. App. 1912); Matagorda Canal Co. v. Markhamlrr. Co., 154 S.W. 1176, 1180-1181 (Tex. Civ. App. 1913). "Motlv.Boyd, 116 Tex. 82, 111, 121-122, 286 S.W. 458 (1926). "Biggs v. Lee, 147 S.W. 709, 710-711 (Tex. Civ. App. 1912, error dismissed). |