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Show REMEDIES FOR INFRINGEMENT 241 social value which the law attaches to the riparian use; (c) the time of initiation of the riparian use; (d) the suitability of the riparian use to the watercourse; and (e) the burden on the riparian proprietor of avoiding the harm. In view of the balancing of the interests in reaching the decision, it is likely that the decision will be more favorable to an upstream appropriator when the riparian right is unused. Even if the balancing process resulted in a preliminary finding favorable to the riparian owner, the factors to be considered in determining the appropriateness of an injunction may prompt a court to leave the riparian solely to an action for damages if the riparian right is unused. The factors to be considered in determining the appropriateness of an injunction constitute a comparative appraisal of all elements of the case, including the following: (a) the character of the interest to be protected; (b) the public interest; (c) the relative adequacy to the plaintiff of injunctive relief and other remedies; and (d) the relative hardship likely to result to the defendant if the injunction is granted and to the plaintiff if the injunction is denied.23S California.-(I) The most significant development in the riparian- appropriation interrelationship in California was the constitutional amendment of 1928-its adoption by the electorate and its construction by the courts.236 It contained one section, which in carefully worded sentences declared mandates governing the control and use of water which may be paraphrased as follows. The general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable; that waste or unreasonable use or unreasonable method of use of water be prevented; and that such waters shall be conserved in the public interest. The water right is limited to such quantity as is reasonably required; it does not extend to the (a) waste, (b) unreasonable use, (c) unreasonable method of use, or (d) unreasonable method of diversion of water. Riparian rights in a stream or watercourse attach to, but to no more than, the quantity of water required consistent with this section. Lawful riparian and appropriative rights that conform to the requirements of the amendment are not impaired by it. In a number of cases the California Supreme Court has had occasion to interpret the amendment. Its purpose was construed as designed to prevent the waste of waters by allowing them to flow unused to the sea, and as an effort to conserve waters without interference with the beneficial use to which they 235 Wasserburger v. Coffee, 180 Nebr. 147, 161-164, 141 N.W. (2d) 738 (1966), modified in other respects, 180 Nebr. 569, 144 N.W. (2d) 209 (1966). While the riparian was granted an injunction in this case, the riparian right was not an unused right. In regard to the significance of the 1895 irrigation act, see the discussion in chapter 10 at notes 484-489. For a critical discussion of this case, see Comment, "The Dual-System of Water Rights in Nebraska," 48 Nebr. L. Rev. 488, 497-498 (1969). Brummund v. Vogel, 184 Nebr. 415, 168 N.W. (2d) 24, 27 (1969), appears to have added some uncertainty regarding the status of domestic use of water. This is discussed in the State summary for Nebraska in the appendix. 236Cal. Const, art. XIV, § 3. |