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Show 155 that it is "as fundamental under the law of riparian rights as under the law of appropriation."20 With respect to the riparian doctrine, the Supreme Court has recently said: a The riparian system does not permit water to be reduced to possession so as to become property which may be carried away from the stream for commercial or non- riparian purposes. Correspondingly under the appropriation doctrine, a water right is only a right to use.22 Riparian and Appropriation Doctrines.-There are two basic though fundamentally divergent doctrines controlling the use of waters of natural, surface watercourses. A 1943 sum- mary of the situation in the West points out that:23 The western law of water rights embraces the com- mon-law doctrine of riparian rights and the statutory doctrine of prior appropriation. The principles under- lying these two doctrines are diametrically opposed to each other, the former being based on the ownership of land contiguous to a stream, without regard to the time of use or to any actual use at all, and the latter on the time of use and on actual use without regard to the ownership of land contiguous to the watercourse. The riparian doctrine is recognized in varying degrees in seven of the 17 Western States but has been specifically repudiated in 30 "This usufructuary right or 'water right,' is the substantial right with regard to flowing waters; is the right which is almost invariably the subject matter over which irrigation or water power or similar contracts are made and litigation arises; and is real property. It is as fundamental under the law of riparian rights as under the law of appropriation." I Wiel, Water Bights in the Western States, § 18, pp. 20-21 (3d ed. 1911). See also 56 Am. Jtjb., Waters, § 292, p. 742. n United States v. Gerlach Live Stock Co., 339 U. S. 725, 745 (1950). See also supra, n. 142, p. 35. * See, e. g., Bock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 258,17 P. 2d 1074,1076 (1933). " State Water Law in the Development of the West, Report to the Water Resources Committee by its Subcommittee on State Water Law, National Resources Planning Board, p. 5 (1943). |