Riparian Right as Property
The riparian right is considered real property.
Title to the private riparian right is acquired by the owner of riparian land as a part of the transaction by which he acquires title to the land. The riparian right is "part and parcel" of the soil and "runs with the land." [Hill v. Newman, 5 Calif. 445, 446 (1855).]
The riparian right is held to be an incident of property in the land and is real property. [St. Helena Water Co. v. Forbes, 62 Calif. 182, 183, 184 (1882). Lux v. Haggin, 69 Calif. 255, 391, 4 Pac. 919 (1884), 10 Pac. 674 (1886). Heilbron v. Last Chance Water Ditch Co., 75 Calif. 117, 123-4, 17 Pac. 65 (1888). Shurtleff v. Bracken, 163 Calif. 24, 26, 124 Pac. 724 (1912). Palmer v. Railroad Commission, 167 Calif. 163, 173, 138 Pac. 997 (1914.)]
Normally, the riparian right passes with conveyance of the land. However, in Gould v. Stafford, 91 Calif. 146,155, 27 Pac. 543 (1891), it was said that the riparian right, while part and parcel of the land, may be severed or aggregated from it by grant, condemnation or prescription. In Lux v. Haggin, 69 Calif. 255, 392, 4 Pac. 919 (1884), 10 Pac. 674 (1886), the court stated; "We need not add that rights to the use of water may be acquired by grant, under some circumstances by assent, and by adverse use and possession."
The riparian right is not lost from disuse.
The right is not destroyed or impaired by the fact that the riparian owner has not yet used the water or has no present intention of doing so. [Lux v. Haggin, 69 Calif. 255, 391, 4 Pac. 919 (1884), 10 Pac. 674 (1886). Stanford v. Felt, 71 Calif. 249, 16 Pac. 900 (1886). Half Moon Bay Land Co. v. Cowell, 173 Calif. 543, 551, 160 Pac. 675 (1916). Fall River Valley. Irr. Dist. v. Mt. Shasta Power Corpn., 202 Calif. 56, 65, 259 Pac. 444 (1927). Hargrave v. Cook, 108 Calif. 72, 77, 41 Pac. 18 (1895). Bathgate v. Irvine, 126 Calif. 135, 141, 58 Pac. 442 (1899).]
Although riparian rights are not subject to loss by abandonment or forfeiture, they are subject to loss by prescription or adverse possession and use, and many riparian rights in California have been lost in this manner. An appropriator or riparian, who uses the water as an invasion of another's riparian right, and with his acquiescence for the period of conditions running under the statute of limitations (5 years), may acquire a vested right to continue to use that water to the detriment of the riparian owner.
The date a riparian right attaches is the date of "entry" onto public lands (private); or the date of land "reservation" (federal government).
Until public lands were either disposed of into private ownership, or withdrawn from disposal ("reserved"), riparian rights did not vest in the land. [McKinley Bros. V. McCauley, 215 Calif. 229, 231, 9 Pac. (2d) 298 (1932). It is settled, said the Supreme Court, "that riparian rights do not attach to lands held by the government until such land has been transmitted to Private ownership." Rindge v. Crags Land Co., 56 Calif. App 247, 252, 205 Pac. 36 (1922).
A land patent to an individual conferred riparian rights associated with land dating back to the date he "entered" the land, (demonstrating the intention of occupancy and possession - "homesteading",) as was recognized in the federal or State land patent. [(Federal law see: Peck v. Howard, 73 Calif. App. (2d) 308, 318, 167 Pac. (2d) 753 (1946). Haight v. Constanich, 184 Calif. 426, 430, 194 Pac. 26 (1926). State law see: Shenandoah Min. & Mill Co. v. Morgan, 106 Calif. 409, 416, 39 Pac. 802 (1895).]
When public land was withdrawn from "entry" or disposal ("reserved,") by the government, the date recognized as vesting riparian rights in such lands is the date of withdrawal. Riparian rights to these lands are subject to State water law.
The riparian right is "correlative" with that of other riparians.
A riparian right is "correlative," that is, shared equally by all riparian owners on a stream as a tenancy in common. This means that the individual riparian water use right is not "fixed" in quantity, but is shared equally as available and can be put to beneficial use. In addition, the use of water by a riparian user must be consistent with the rights of all other owners of land riparian to the same supply.
Once it is quantified, such as in an adjudication, it ceases to be a riparian right and becomes an appropriative right by nature.