Riparian Rightsx

In addition to requirements for reasonable and beneficial use, the California riparian "right to full flow" is subject to the lawful exercise of water use rights of upstream users and demonstration of actual injury for any consequential effect of such use.

The riparian right is limited to an entitlement that stream waters flow to his land in such quantities necessary for use on his riparian land; subject to equitable apportionment of available water by all riparian users, and subordinate to appropriative use rights senior to the riparian right Aesthetic considerations for full flow were not held to be a protected beneficial use when it would deprive upstream users from putting the water to utilitarian purposes.

The downstream user, however, has the right to insist that the water not be polluted by upstream use to his real and substantial injury.

The right of the riparian owner to use water of the stream includes both the right to divert it from the channel and the obligation to return what is not lawfully consumed to the stream after it has served his lawful purposes.

Until it reaches his land, the riparian owner has no right or title to water use other than the protective right to see that the full flow past his land, to which he is entitled, is not illegally diminished. (See section on prescription/adverse possession.) [In Miller & Lux v. Enterprise Canal & Land Co., 169 Calif. 415, 441, 147 Pac. 567 (1915), the court stated "it is to be remembered that a riparian proprietor's title to the water begins only when it reaches his land and lasts only so long as it is flowing past his land. Until it reaches his land he has no title whatsoever and no right other than the protective right to see that the full flow past his land to which he is entitled is not illegally diminished."]

The riparian user also has no right to the water once it has left his premises and is powerless to prevent downstream use. Hargrave v. Cook, 108 Calif. 72, 77-79, 41 Pac. 18 (1895). Holmes v. Nay, 186 Calif. 231, 234, 235-237, 242, 199 Pac. 325 (1921). Unites States v. Central Stockholder's Corporation of Vallejo., 52 Fed. (2d) 322, 339 (C.C.A. 9th, 1931.) Akin v. Spencer, 21 Calif. App. (2d) 325, 327-328, 69 Pac. (2d) 430 (1937).

As a result of natural flow conditions, a riparian right may be in suspense during certain periods. Duckworth v. Watsonville Water & Light Co., 150 Calif. 520, 526, 89 Pac. 338 (1907). Drake v. Tucker, 43 Calif. App. 53, 58, 184 Pac. 502 (1919). Crum v. Mt. Shasta Power Corpn., 117 Calif. App. 586, 591 (1931). Crum v. Mt. Shasta Power Corpn., 220 Calif. 295, 299-302, 30 Pac. (2d) 30 (1934). McArthur v. Mt. Shasta Power Corpn., 3 Calif. (2d) 704, 711-712, 45 Pac. (2d) 807 (1935).

Point of Diversion and Return -

The riparian owner may divert the water to which he is entitled at any point on his riparian land that is suitable, provided he returns the excess to the stream above the lower boundary of his riparian tract.[Mentone Irr. Co. v. Redlands Electric Light & Power Co., 155 Calif. 323, 328, 100 Pac. 1082 (1909). Joerger v. Mt. Shasta Power Corpn., 214 Calif. 630, 638, 7 Pac. (2d) 706 (1932.)

The California Supreme Court in Vernon Ir. Co. V. Los Angeles, 106 Calif. 237, 256, 39 Pac. 762 (1895), stated that the riparian owner may exercise his usufructuary right in the water of the stream "provided he returns it to the stream above his lower boundary." This was further clarified in Bathgate v. Irvine, 126 Calif. 135, 144, 58 Pac. 442 (1899) that the riparian owner could not divert the water to a point where it would not flow back into the channel at a point above his lower boundary line.

The riparian owner may divert at a point upstream of his riparian lands as long as he does not impair the rights of others in the stream and permission and necessary easements are granted by affected users. [Pabst v. Fimmand, 190 Calif. 124, 137, 138, 211 Pac. 11 (1922). Holmes v. Nay, 186 Calif. 231. 240, 199 Pac. 325 (1921). Turner v. James Canal Co., 155 Calif. 82, 92, 99 Pac. 520 (1909). Rose v. Mesmer, 142 Calif. 322, 329, 75 Pac. 905 Turner v. Eastside Canal & Irr. Co., 168 Calif. 103, 108, 142 Pac. 69 (194). Miller & Lux v. Enterprise Canal & Land Co., 169 Calif, 103, 108, 142 Pac. 69 (1914). Miller & Lux v. Enterprise Canal & Land Co., 169 Calif. 415, 440, 444-445, 147 Pac. 567 (1915). Drake v. Tucker, 43 Calif. App. 53, 58, 184 Pac. 502 (1919). Smith v. Corbit, 116 Calif. 587, 591-592, 48 Pac. 725 (1897). 

The method of diversion (dam and headgate, pumps or buckets,) is not material, as long as the rights of others are not impaired. [ Charnock v. Higuerra, 111 Calif. 473, 480-481, 44 Pac. 171 (1896). Walker v. Lillingston, 137 Calif. 401, 403, 70 Pac. 282 (1902). Turner v. James Canal Co., 155 Calif. 82, 92, 99 Pac. 520 (1909). Rose v. Mesmer, 142 Calif. 322, 329, 75 Pac. 905 (1904).

The riparian water use right includes the right to reasonable use of the water on any portion of the tract which is legally riparian to the watercourse, but not elsewhere, for domestic, stock and irrigation purposes.x

Riparian rights are vested in the owner of the abutting land and extend only to the use of the water upon legally abutting land, and none other. [In Heilbron v. The 76 Land & Water Co., 80 Calif. 189, 194, 22 Pac. 62 (1880), the court held that the riparian owner has no right to convey the waters elsewhere to the detriment of the lower riparian owner. (See also Gutierrez v. Wege, 145 Calif. 730, 733, 79 Pac. 449 (1905). In Miller v. Bay Cities Water Co., 157 Calif. 256, 278, 107 Pac. 115 (1910), the court held that the riparian owner could not divert waters to nonriparian lands in such a manner, "so as to prevent another riparian owner to who they would otherwise be available, from using them on his lands."

In Gould v. Stafford, 77 Calif 66, 68, 18 Pac. 879 (1888), it was held that the riparian right does not entitle the proprietor to take any water away to other lands not riparian to the stream. [See also, Holmes v. Nay, 150 Calif 231, 285, 199 Pac. 325 (1921). Senior v. Anderson, 130 Calif. 290, 296, 62 Pac. 563, (1900). Anaheim Union Water Co. v. Fuller, 150 Calif. 327, 335, 88 Pac. 978 (1907). Turner v. James Canal Co., 155 Calif. 82, 91-92, 99 Pac. 520 (1909). Mentone Irr. Co. v. Redlands Electric Light & Power Co., 155 Calif. 323, 327, 100 Pac. 1082, (1909). Turner v. Eastside Canal & Irr. Co., 168 Calif. 103, 108, 142 Pac. 69 (1914). Joerger v. Mt. Shasta Power Corpn., 214 Calif. 630, 637-638, 7 Pac (2d) 706 (1932). Morgan v. Walker, 217 Calif. 607, 615, 20 Pac. (2d) 660 (1933). Parker v. Swett, 188 Calif. 474, 485-486, 205 Pac. 1065 (1922). Alta Land and Water Co. v. Hancock, 85 Calif. 219, 229-230, 24 Pac. 645 (1890). Duckworth v. Watsonville Water & Light Co., 250 Calif. 520, 526, 89 Pac. 338, (1907). Antioch v. Williams Irr. Dist,x 188 Calif. 451, 456, 205 Pac. 688 (1922). Moore v. California Oregon Power Co., 22 Calif. (2d) 725,734, 140 Pac (2d) 798 (1943). Anaheim Union Water Co. v. Fuller, 150 Calif. 327, 334-335, 88 Pac. 978 (1907). Pabst v. Finmand, 190 Calif. 124, 137, 211 Pac. 11 (1922). Gould v. Eaton, 117 Calif. 539, 543, 49 Pac. 577 (1897).