ENGLISH COMMON LAW DOCTRINE
v. CALIFORNIA DOCTRINE
The English common law riparian right was described by Norris Hundley, Jr., Water and The West - The Colorado River Compact and the Politics of Water in the American West, University of California Press, c1975, pg. 66:
"[T]he riparian doctrine guaranteed to the owner of land bordering a river the full flow of the river, less only a reasonable amount taken by those upstream to satisfy domestic needs and to water livestock. An owner's right was strictly usufructuary - that is, he had a right to use the water, but he did not own the stream itself. Most important, however, he had a right to the full flow, undiminished in either quantity or quality, and he was enjoined from impairing the similar right of other riparians. Use was not necessary to create his right, nor did nonuse terminate it. Location alone was paramount, and the water right simply resided in the ownership of the land."
The California application of this right has been determined by the courts to include the following principles:
Lands having riparian status are determined by three criteria:
They must be contiguous to the stream;
The right extends only to the smallest tract held under one title in the chain of title; and
The land must be in the watershed of the stream.
It is not only the portion of a tract bordering upon a stream "actually washed by the waters of the stream" that is riparian; if a tract originally riparian has never been subdivided, it all remains riparian to the stream [Alta Land & Water Co. v. Hancock, 85 Calif. 219, 229, 24 Pac. 645 (1890).] The length of the frontage of the land that abuts the stream is immaterial. The point that there is access to the stream at some point on the land makes it riparian. [Ranch Santa Margarita v. Vail, 11 Calif. (2d) 501, 528, 533 81 Pac. (2d) 533 (1938.) Title Insurance & Trust Co. v. Miller & Lux, 183 Calif. 71, 85, 190 Pac. 433 (1920) Omnes v. Crawford, 202 Calif. 766, 768, 262 Pac. 722 (1927). Joerger v. Pacific Gas & Electric Co., 207 Calif. 8, 30-33, 276 Pac. 1017 (1929); Joerger v. Mt. Shasta Power Corpn., 214 Calif. 630, 635, 7 Pac. (2d) 706 (1932).]
Riparian lands are those lands that abut the banks of the stream that contain its flow. The law does not distinguish between the riparian right established through "bottom lands" to a stream, even if these lie between higher bluffs that contain the stream during flood. [Anaheim Union Water Co. V. Fuller, 150 Calif. 327, 328-329, 88 Pac. 978 (1907).]
Mere contiguity of tracts to each other cannot extend the riparian right inherent to one section to another - not touching the stream, even though both become owned by the same person at the same time. [Boehmer v. Big Rock Irr. Dist., 117 Calif. 19, 26-27, 48 Pac. 908 (1897). Lux v. Haggin, 69 Calif. 255, 424-428, 4 Pac. 919 (1884), 10 Pac. 674 (1886).]
The riparian right may not extend to more land than that embraced within the single original patent that established the initial riparian title. [Title Insurance & Trust Co. v. Miller & Lux, 183 Calif. 71, 82, 190 Pac. 433 (1920).]
Lands that were originally swampland or marshland, but were reclaimed, are as much subject to riparian rights as any other lands. [California Pastoral & Agriculture Co. v. Enterprise Canal & Land Co., 127 Fed. 741, 742 (S.D. Calif., 1903). United States v. Central Stockholders' Corporation of Vallejo, 43 Fed. (2d) 977, 981 (S.D. Calif., 1930. Lux v. Haggin, 69 Calif. 255, 340-341, 368-376, 4 Pac. 919 (1884), 10 Pac. 674 (1886). Modoc Land & Live Stock Co. v. Booth, 102 Calif. 151, 152-154, 156-158, 36 Pac. 431 (1894).]
In addition, in order for land to be "riparian" to a stream, it must be in the watershed of a stream.
In Anaheim Union Water Co. v. Fuller, 150 Calif. 327, 330, 88 Pac. 978 (1907), the court stated; "Land which is not within the watershed of the river is not riparian thereto, and is not entitled, as riparian land, to the use or benefit of the water from the river, although it may be part of an entire tract which does extend to the river."
The "rules" regarding watersheds of a main stream and those of its tributaries are that each tributary is considered a separate stream with regard to lands contiguous thereto above the junction, so that land lying within the watershed of one tributary above that joint is not riparian to the other stream. As against lower riparians located below the confluence of a main stream and tributary, the watersheds of the main stream and the tributary constitute parts of a single watershed. American Union Water Co. v. Fuller, 150 Calif. 327, 330-331, 88 Pac. 978 (1907). Holmes v. Nay, 186 Calif. 231, 240-241, 199 Pac. 325 (1921). Crane v. Stevinson, 5 Calif. (2d) 387, 399-400, 54 Pac. (2d) 1100 (1936).
Domestic purposes (natural use) are entitled to preference in use of water over commercial (artificial use.)
"Domestic purposes" or "natural uses" include those integral to the sustenance of human beings:
Water for household convenience;
Water for domestic gardens/orchards; and
Water for the care of livestock.
[Watering of "farmstead" livestock is a reasonable and beneficial domestic or "natural" use with preference. Rancho Santa Margarita v. Vail, 11 Calif. (2d) 501, 561, 81 Pac. (2d) 533 (1938). Bathgate v. Irvine, 126 Calif. 135, 142, 58 Pac. 442 (1899). Ferrera v. Knipe, 28 Calif. 340, 343-344 (1865). Hale v. Mclea, 53 Calif. 578, 584 (1879). Smith v. Corbitt, 116 Calif. 587, 592, 48 Pac. 725 (1897). Cowell v. Armstrong, 210 Calif. 218, 224-225, 290 Pac. 1036 (1930). Lux v. Haggin, 69 Calif. 255, 395, 4 Pac. 919 (1884), 10 Pac. 674 (1886). Stanford v. Felt, 71 Calif. 249, 250, 16 Pac. 900 (1886). Drake v. Tucker, 43 Calif. App. 53, 58, 184 Pac. 502 (1919).]
Recognized "commercial" or "artificial" riparian uses with secondary preference include:
The watering of commercial herds of livestock;
The use of stream for power; and
Recovery of gravel for commercial sale. [Los Angeles County Flood Control District v. Abbot, 24 Calif. App. (2d) 728, 734, 76 Pac. (2d) 188 (1938).]
Riparian uses in California were also held to include the irrigation of lands riparian to a watercourse as an "artificial" use.
Because of California's arid climate, the courts specifically modified the English doctrine of the riparian right to include irrigation of riparian lands. As with commercial livestock use, the irrigation right is subordinate and applies only to the surplus of water above the quantities required for primary natural uses.