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Show WASTE, SEEPAGE, AND RETURN WATERS 5 89 Riparians.-The courts of California and Washington have held that the return flow from foreign waters is not subject to the rights of owners of riparian lands on a stream into which these waters drain because they do not become a part of the natural waters of such stream.130 If the riparian owner wishes to obtain a right to the use of such waters, he must appropriate them. Said the California Supreme Court, "[T]he right to take surplus foreign water does not depend upon a riparian interest but is appropriate in nature."131 The foregoing principle was established in the Horst case, wherein the California Supreme Court said:132 A riparian owner has a right to the usufruct of the natural water of the stream, but an appropriator of the waters artificially added is a taker of the corpus of that which exists in the stream only by virtue of its abandonment. * * * * * * * So in the present case it may be said that as the surplus waters would not in the course of nature reach appellant's land, that corporation may not complain of being deprived thereof either by the producers of the excess, by their assignees, or by a stranger to their title who appropriated the abandoned excess for proper purposes. * * * * We are convinced that plaintiff and respondents were upon an equal footing with reference to the surplus water, and that the ones who first secured it may not be deprived of the right to the use of it, even outside of the watershed of Wolf Creek, by the person or corporation claiming as a lower riparian proprietor on Bear River. * * * The case of Davis v. Gale [32 Cal. 26 (1867)] * * * is of little value to us here, because the points decided were so different from those involved in this controversy. That was a suit between appropriators, each claiming a priority, not a controversy based upon riparian rights of either party. The principle was reasserted by the California Supreme Court in a later decision wherein it was contended by counsel that a lower riparian owner may 130E. Clemens Horst Co. v. Tan Min. Co., 174 Cal. 430, 440, 163 Pac. 492 (1917); E. Clemens Horst Co. v. New Blue Point Min. Co., Ill Cal. 631, 635-641, 171 Pac. 417 (1918); Crane v. Stevinson, 5 Cal. (2d) 387, 392-395, 399-400, 54 Pac. (2d) 1100 (1936);Elgin v. Weatherstone, 123 Wash. 429, 432-434, 212 Pac. 562 (1923). SeeBloss v. Rahilly, 16 Cal. (2d) 70, 75-76,104 Pac. (2d) 1049 (1940). The Texas Supreme Court, in holding that riparian rights attach to streamwaters that do not rise above the line of highest ordinary and normal flow, added that this includes all such waters regardless of source. This apparently might sometimes include return flows from foreign waters, but the court did not expressly consider this question. Motl v. Boyd, 116 Tex. 82, 122, 286 S.W. 458 (1926). 131 Stevinson Water Dist. v.Roduner, 36 Cal. (2d) 264, 270, 223 Pac. (2d) 209 (1950). 132E Clemens Horst Co. v. New Blue Point Min. Co., Ill Cal. 631, 637-639, 171 Pac. 417 (1918), noted previously at note 118. |