and the public in general will be served by concluding this case in the light of the announcements hereafter made and the conclusions hereafter reached. Before attempting such conclusion it appears proper to make some general observations relative to the law regulating the use of water in lakes and streams.
TWO BASIC THEORIES. Generally speaking two separate and distinct theories or doctrines regarding the right to use water are recognized. One is commonly called the "Appropriation Doctrine" and the other is the "Riparian Doctrine."
Appropriation Doctrine. Since it is unnecessary to do so we make no attempt to discuss the varied implications of this doctrine. Generally speaking, under this doctrine, some governmental agency, acting under constitutional or legislative authority, apportions water to contesting claimants. It has never been adopted in this state, but has been in about 17 western states. This doctrine is inconsistent with the common law relative to water rights in force in this and many other states. One principal distinction between this doctrine and the riparian doctrine is that under the former the use is not limited to riparian landowners.[1]
Riparian Doctrine. This doctrine, long in force in this and many other states, is based on the old common law which gave to the owners of land bordering on streams the right to use the water therefrom for certain purposes, and this right was considered an incident to the ownership of land. Originally it apparently accorded the landowners the right to have the water maintained at its normal level, subject to use for strictly domestic purposes. Later it became evident that this strict limitation placed on the use of water was unreasonable and
- ↑ Wells A. Hutchins, U. S. Department of Agriculture in a paper presented before the Midwestern States Flood Control Conference, East Lansing, Michigan, on June 15, 1954, among other things, said:
"The effect of the repudiation of a common law system and its complete replacement by an appropriative system is to deny the right of an owner of land bordering a stream . . . to divert and make use of the water solely by reason of his ownership of the land; to declare all such waters to be the property of the state, and; to make all waters . . . open to appropriation for beneficial use. . . ."
