The right of a riparian proprietor to use the water for irrigating purposes has been held not to be limited to the tract of land bordering on the stream as first segregated and sold by the government, but to extend to lands lying back of such tracts and purchased by him from other persons; Jones v. Conn, 39 Or. 30, 64 Pac. 855, 65 Pac. 1068, 54 L. R. A. 630, 87 Am. St. Rep. 634, where it was said the only thing necessary to entitle one to the right of a riparian proprietor is to show that the body of land owned by him borders upon a stream. This being established, the law gives him certain rights in the water, the ex tent of which is limited and controlled less by the area of his land than by the volume of water, and the effect of its use over the rights of other riparian proprietors. He is entitled to a reasonable use of water which is defined as any use that does not work actual, ma terial and substantial damage to the common right which each proprietor has, as limited and qualified by the precisely equal right of every other proprietor; Kinney, Irrigation, § 276.
Among other rights to which such an owner is entitled are access to the navigable part of the river from the front of his lot; the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules or regulations as the legis lature may impose; Potomac Steamboat Co. v. Steamboat Co., 109 U. S. 672, 3 Sup. Ct. 445, 4 Sup. Ct. 15, 27 L. Ed. 1070.
An injunction will lie to restrain land own ers on one side of a stream from maintaining a levee upon the bank thereof whereby the flood waters of the stream are made to over flow unnaturally the land of others on the op posite side of the stream; Jefferson v. Hicks, 23 Okl. 684, 102 Pac. 79, 24 L. R. A. (N. S.) 214. One proprietor cannot for his own bene fit change or obstruct the ordinary course of water in a stream to the injury of other pro prietors; O'Connell v. Ry. Co., 87 Ga. 246, 13 S. E. 489, 13 L. R. A. 394, 27 Am. St. Rep. 246; and he may not deflect the stream into a new channel; Yowler v. Wood, 73 Kan. 511, 85 Pac. 763, 6 L. R. A. (N. S.) 162, 117 Am. St. Rep. 534. Such owner may construct an em bankment to protect his land from flood wa ter but not so in times of ordinary floods, as to cause an overflow and injure other proprie tors; Crawford v. Rambo, 44 Ohio St. 279, 7 N. E. 429. A railroad company in construct ing such an embankment is bound to antici pate and provide not only for the ordinary blow, but for floods at long periods; Ohio & M. Ry. Co. v. Ramey, 139 Ill. 9, 28 N. E. 1087, 32 Am. St. Rep. 176 ; see to the same effect West v. Taylor, 16 Or. 165, 13 Pac. 665; Illi nois Cent. R. Co. v. Bom, 76 S. W. 352, 25 Ky. L. Rep. 709; Sullivan v. Dooley, 31 Tex. Civ. App. 589, 73 S. W. 82.
The owner's right of access is subordinated to the power of Congress over interstate com merce; Slingerland v. Contracting Co., 169 N. Y. 60, 61 N. E. 995, 56 L. R. A. 494; Scranton
v. Wheeler, 179 U. S. 141, 21 Sup. Ct. 48, 45 L. Ed. 126; Gibson v. U. S., 166 U. S. 269, 17 Sup. Ct. 578, 41 L•Ed. 996; and to changes in the condition of the public property made under a paramount authority of the govern ment in the interest of better navigation; Home for Aged Women v. Com., 202 Mass. 422, 89 N: E. 124, 24 L. R. A. (N. S.) 79; Sage v. New York, 154 N. Y. 61, 47 N. E. 1096, 38 L. R. A. 606, 61 Am. St. Rep. 592.
Where a canal company was authorized, but not required by statute, to divert the wa ters of a stream, which they did for forty years, it was held that the lower riparian proprietors had no right to insist that the diversion should be continued for their bene fit; Gould, Waters § 340; Lake Drummond C. & W. Co. v. Burnham, 147 N. C. 41, 60 S. E. 650, 17 L. R. A. (N. S.) 945, 125 Am. St. Rep. 527, where the doctrine was said to be that where the proprietor of an upper tenement constructs and maintains for his own benefit an artificial waterway or any artificial struc ture affecting the flow of water, and such structure invades no rights of the lower pro prietor, and gives indication that it is for a temporary purpose or a specific purpose which may at any time be abandoned, the upper proprietor is under no obligation to maintain the structure and the conditions produced from it by lapse of time, though the inci dental effect has been to confer a benefit on the lower owner. Nor in such case does the lower proprietor acquire any right which rests only on prescription. But, contra in Kray v. Muggli, 84 Minn. 90, 86 N. W. 882, 54 L. R. A. 473, 87 Am. St. Rep. 332, where a mill company acquired a right to maintain a dam by prescription, it was said that during the time such right was maturing a reciprocal right in the riparian owners to insist that it be maintained, or at least that no overt act be taken for its removal, was also maturing, which ripened and became equal to the right of the mill company upon the comple tion of the prescriptive period. The recipro cal right thus created was not merely a per sonal one, but a right appurtenant to the lands. Where the owners of a dominant tene ment established an artificial channel so as to divert water naturally flowing upon the servi ent tenement, and such diversion was con tinued for more than twenty years, mutual and reciprocal rights were held to have been acquired by prescription, exempting the domi nant owner from restoring the water to its original course, and releasing the servient estate from the burden of the drainage; Cleve land, C., C. & St. L. R. Co. v. Drainage Dist., 213 111. 86, 72 N. E. 684.
Riparian rights are abrogated in Nevada and the doctrine of prior appropriation pre vails; Anderson Land & S. Co. v. McConnell, 188 Fed. 818.
A riparian, proprietor owns driftwood ; Yuba Consol. Goldfields v. Hilton, 16 Cal. App. 228, 116 Pac. 712.
See RIVER; LAKES; LOGS; WATERCOURSE ; WATERS ; IRRIGATION.