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Show WASHINGTON 771 3.2 Nature and Limit of Rights A. INTERRELATIONSHIPS OF RIPARIAN AND APPROPRIATION RIGHTS Riparian and appropriation rights are by their nature different in many respects, but it appears that-in one area at least-they are subject to a similar limitation in Washington. Beneficial use has been used to define the extent of appropriation lights and also ripar- ian rights which divert and use water from a stream.106 Instream riparian uses do not appear to be affected by this limitation.107 The beneficial use limitation on riparian rights is rather unusual, because normally the continued existence of riparian rights is not contingent upon the water being applied to beneficial use. While the beneficial use limitation has been applied to both riparian and appropriation rights in Washington, it operates in a somewhat different manner with respect to each type of right. An appropriation right can only be perfected for the amount of water which is beneficially used and this determination is made at the time the appropriation is com- pleted. However, in the case of riparian rights, the right is acquired by the acquisition of the riparian land. But, under the existing court rulings, the right extends only to the quantity of water which is being beneficially used or which can be placed to beneficial use within a reasonable time.108 Thus, in the case of riparian rights, the right is acquired first and the beneficial use limitation is imposed at a later date to define the extent of the right. The water which is sur- plus to riparian rights is subject to appropriation. The concept of beneficial use manifests itself in a number of early court decisions involving riparian rights. For example, in one deci- sion involving an early statute which authorized a condemnation of all water except that needed by a riparian owner, the court defined need to include the water needed at the time of condemnation and within a reasonable time in the future.109 In another decision the court held that a riparian owner who intended to make a beneficial use of water at some future time could not prevent another person from condemning his right to implement an immediate use of the water.110 Another case held that a person claiming a riparian right could not defend in an action for an injunction by an appropriator when he failed to allege he was making a beneficial use of the water.111 One of the most significant decisions in defining the rights of riparian owners with respect to new appropriations was Brotvn v. Chase,112 in which the court held that an application to appropriate filed after the adoption of the water code should be approved for 108 Sec. 90.03.010; Brown v. Chase, 22 Wash. 243, 60 Pac. 403 (1900) ; In re Stranger Greek, 77 Wash. 2d 649; 466 P. 2d 508 (1970). 1("Sec. 90.14.020. 108 Brown v. Chase, 22 Wash. 243, 60 Pac. 403 (1900) ; State v. American Fruit Grow- ers, 135 Wash. 156, 237 Pac. 498 (1925). 109 State ex rel. Liberty Lake Irr. Co. v. Superior Court, 47 Wash. 310, 91 Pac. 968 (1907). 110 State ex rel South Fork etc. Co. v. Superior Court, 102 Wash. 460, 173 Pac. 192 (1918). 111 Northport Brewing Co. v. Perrot, 22 Wash. 243, 60 Pac. 403 (1900). 112 22 Wash. 243, 60 Pac. 403 (1900). 499-242-73------50 |