which each could secure a reasonable use for irrigation purposes; as by authorizing each to stay the flow at recurring periods, or otherwise distributing it for their mutual and common benefit. The right of the riparian proprietors to a reasonable use of the water of the stream for purposes of irrigation is recognized in many of the California cases hereinbefore referred to."1 In the case of Stanford v. Felt,2 it was ruled that the question, whether or not the use and detention of the waters made by the upper proprietor for domestic and other purposes is reasonable, is a question of fact to be determined in the trial court. And in Gould v. Stafford,3 it is said that while the upper riparian proprietor may use a reasonable amount of the water of a natural stream to irrigate his riparian land, he cannot use all of it for that purpose; nor can he use any of the water for the purpose of irrigating land not riparian. In one of the latest cases in California, where the plaintiffs alleged that they were entitled to all the water of the stream, and defendants denied that they were entitled to any of it, and the court found that plaintiffs were entitled to a portion of the water only, and that, to make the water available for irrigating purposes, it was necessary that the full flow of the stream be used at once, it was held that there was no error in the decree apportioning to plaintiffs the full flow of the water during one-half of each week, and to defendants such flow during the remaining half of each week.4 In this case the court observed: "According to the common-law doctrine of riparian ownership, as generally declared in England and in most of the American states, upon the facts in the case at bar, the plaintiffs would be entitled to have the waters of Harrison canon continue to 1 Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 763. 271 Cal. 249, 16 Pac. Rep. 900. 377 Cal. 66, 18 Pac. Rep. 879. 4 Harris v. Harrison, 93 Cal. 676, 29 Pac. Rep. 325. flow to and upon their land as they were naturally accustomed to flow, without any substantial deterioration in quality or diminution in quantity. But in some of the western and southwestern states and territories, where the year is divided into one wet and one dry season, and irrigation is necessary to successful cultivation of the soil, the doctrine of riparian ownership has by judicial decision been modified, or rather enlarged, so as to include the reasonable use of natural water for irrigating the riparian land, although such use may appreciably diminish the flow down to the lower riparian proprietor; and this must be taken to be the established rule in California, at least where irrigation is thus necessary. Lux v. Haggin, 69 Cal. 394, 10 Pac. Rep. 674. Of course, there will be great difficulty in many cases to determine what is such reasonable use; and 'what is such reasonable use is a question of fact, and depends upon the circumstances appearing in each particular case.' Lux v. Haggin, supra. The larger the number of riparian proprietors whose rights are involved, the greater will be the difficulty of adjustment. In such a case, the length of the stream, the volume of water in it, the extent of each ownership along the banks, the character of the soil owned by each contestant, the area sought to be irrigated by each,-all these and many other considerations must enter into the solution of the problem; but one principle is surely established, namely, that no proprietor can absorb all the water of the stream, so as to allow none to flow down to his neighbor. In the case at bar only the rights of two riparian proprietors are to be considered. None other are involved. And the amount of water in the stream is so small that it is apparent that defendants could not use it for any useful irrigation without practically absorbing it all, and leaving none to flow down to plaintiffs' land. There was sufficient evidence to warrant the finding of the court that in order to irrigate, it is necessary that the full flow of the stream be used at once.' But defendants, as well as plaintiffs, were entitled to a reasonable use of the water for irrigation; and the rights of either could be declared or preserved by an attempted division of the flow of the water without reference to time. The only way, therefore, to preserve those rights, and to render them beneficial, was to decree to the parties the use of the full flow of the stream during alternate periods of time; and we do not see why the court could not decree a division of the use of the water according to that method, when there was no other method by which it could be done. And that the division was a just one, and not erroneously determined upon, seems clear. The evidence showed that the arable and irrigable land of each party was about equal in area; and there is no contention that the division was not equitable, provided that all the other facts were correctly found by the court." In the state of Texas, where, at least in certain portions, the same climatic and physiographical conditions exist as in some of the states of the Pacific slope, the privilege of an upper riparian proprietor, in respect to the use of the water for the purpose of irrigation, has been carried to an extent beyond that hitherto recognized in any other juris diction. In one of the earlier cases it was held that such a proprietor may divert the stream and cause it to overflow and irrigate his land, provided it resumes its natural channel before it enters the land of the lower owner; and he is not liable for injury to such lower owner, unless he uses the stream wantonly and maliciously and takes more water than is necessary for agricultural purposes. And a late decision reaffirms the rule thus stated. "It seems to be the rule of the common law," says the court, "that a riparian 1 Tolle v. Correth, 31 Tex. 362, 98 Am. Dec. 540. owner has no right to use the water of the stream for irrigating his lands, provided it interferes with the uses of the water by those who own the lands upon the stream below. That this is a proper rule in England, and in those states where the rain-fall is sufficient for the purpose of agriculture, we freely concede; but we are of opinion that in those sections where irrigation is necessary to the successful pursuit of farming, it should not apply. What is not a necessary use in one case becomes necessary in the other. It was so held in Tolle v. Correth, 31 Tex. 365; and though this decision was criticized in the subsequent case of Fleming v. Davis, 37 Tex. 173, we are of opinion that it recognizes a correct rule of law as applied to the present case. We think it a matter of common knowledge that there are portions of our state where the business of agriculture cannot be successfully prosecuted through successive years except by irrigation; and it is to be inferred from the allegations of the petition that the section where the stream in controversy is situated is of that character. We think, therefore, that the defendants had the right to divert the water which flowed in the stream along or through their lands for the purpose of irrigating them, although the effect of such use was to leave the plaintiff corporation an insufficient supply for the same purpose. Whether they had the right to divert the whole of it, and leave an insufficient supply for the ordinary use of the lower riparian owners, we need not in this case determine."]' § 159. Surplus water must be restored. [Where a riparian owner diverts the water of the stream for the purpose of irrigation, without returning the surplus into the natural channel, whereby the owner of land below, en 1 Mud Creek Irr. Co. v. Vivian, 74 Tex. 170, 11 S. W. Rep. 1078. LAW W. R.-21 (321) |