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Show 772 WASHINGTON the water in excess of the amount which could be beneficially used in connection with riparian lands. The court stated: We think, therefore, that his Honor, the trial judge, placed too much stress upon loose and general expressions as to the riparian owner being en- titled to the undiminished flow of a nonnavigable stream in this State. At any rate, in consonance with the general needs and welfare of the State, especially in the arid and semiarid regions, and in harmony with the legislation upon the matter, we are now prepared to declare, instead of the mere loose and general expressions in some of our opinons, that (1) waters of nonnavigable streams in excess of the amount which can be beneficially used, either directly or prospectively, within a reasonable time, on or in connection with riparian lands, are subject to appropriation for use on non- riparian lands. (2) That where the supply of water in the stream is limited the presumption is that the riparian lands require all of the waters of the stream, and the burden is upon the nonriparian appropriator of water to show that no riparian right will be injured by his appropriation. (3) That where the supply of water in the stream is more than ample for all pos- sible riparian uses, the presumption is that the diversion by a nonriparian user will not injure any riparian right, and the burden is upon the riparian owner who claims that his riparian rights are being injured by the diversion of such water, to prove substantial injury.113 Thus, the court made it clear that unless a riparian owner's right to the use of water for beneficial purposes on his riparian land is impaired or threatened by the proposed appropriation, the riparian owner cannot prevent the issuance of a permit to the surplus water of a stream. Subsequent decisions have followed this rule, and fur- ther have announced that in the appropriation of surplus water, no compensation need be paid the riparian owner.114 It is only when the riparian right, as defined and limited by the court in Brown v. Chase, is invaded that compensation must be paid.115 The question which the court left unanswered-and apparently it is still unanswered today-stems from the court's statement that water "* * * in excess of the amount which can be beneficially used, either directly or prospectively, within a reasonable time * * * is subject to appropriation." What is not clear is when a "reasonable time" begins. Various beginning dates have been suggested by writers on this subject,118 but the Washington court has yet to clarify this statement. The Legislature, in the 1967 Water Right Claims Registration Act, also declared that riparian landowners withdrawing water from the streams are subject to the beneficial use requirement: All rights to divert or withdraw water, except riparian rights which do not diminish the quantity of water remainng in the source such as boating, swim- ming, and other recreational and esthetic uses must be subjected to the bene- ficial use requirement.117 This language also appears to be a confirmation of instream ripar- ian uses. Even though riparian and appropriation rights which di- vert and use water appear to have a common denominator in the beneficial use requirement, there are a number of basic differences U3 Brown v. Chase, 22 Wash. 243, 60 Pac. 403 (1900). Ui Proctor v. Sim, 134 Wash. 606, 236 Pac. 114 (1925); Hunter Land Co. v. Langenour, 140 Wash. 558, 250 Pac. 41 (1926). nBDomre8e v. Roslyn, 101 Wash. 372, 172 Pac. 243 (1918). ua Horowitz, Riparian and Appropriation Rights to the Use of Water in Washington, 7 Wash. L. Rev. 197 (1932) ; Morris, Washington Water Rights-A Sketch, 31 Wash. L. Rev. 243 (1956) ; Johnson, Riparian and Public Rights to Lakes and Streams, 35 Wash. L. Rev. 580 (i960) ; also. Corker and Roe, Washington's New Water Rights Law- Improvements Needed, 44 Wash. L. Rev. 85 (1968). U7Sec. 90.14.020. |
