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Riparian rights arise from land ownership, attaching only to those lands, which touch the stream. A riparian interest, though one in real property, is not absolute or exclusive; it is usufructuary in character and subject to the rights of other riparian owners. A riparian right is neither constant nor judicially quantifiable in futuro. Under the natural flow doctrine, the riparian owner is entitled to have the water of the stream flow in its natural channel without diminution or alteration. The riparian owner has the right to the natural benefits of the stream irrespective of his need to put the water to use even if he suffers no tangible harm by a diminution of the stream. The natural flow doctrine, which prevents any consumptive use, was early modified to allow for "natural" or domestic uses such as bathing, drinking, gardening, and stock watering.
Mill Creek is a spring-fed dry weather creek in the Upper Clear Boggy watershed within the Muddy Boggy River Basin. Byrd's Mill Spring flows directly into Mill Creek which in turn flows into Clear Boggy Creek. Clear Boggy Creek is joined by Buck Creek and flows downstream as Clear Boggy Creek where it joins Muddy Boggy Creek to form the Muddy Boggy River. The latter is a tributary of the Red River. In August of 1980 the City of Ada [City] made application, pursuant to 82 O.S. 1981 § 105.9 to increase its appropriation of water from Byrd's Mill Spring from 3,360 acre feet per year to 11,202 acre feet per year to meet a projected annual need of 10,523 acre feet per year by the year 2020. The City straddles two watersheds with approximately 80 percent in the South Canadian Stream Basin and 20 percent in the Clear Boggy Stream Basin. Riparian owners and in-basin appropriators objected to the City's application for additional stream water. The OWRB determined that the average yield of Byrd's Mill Spring is 9,820 acre feet per year. Prior appropriations, including that of the City and some appellee riparian owners, total 3,776 acre feet per year. Allowing 584 acre feet to supply domestic needs down to Buck Creek and 120 acre feet for unavoidable loss, the OWRB found the amount available for appropriation was 5,340 acre feet, 2,502 acre feet less than the 7,842 acre feet requested by the City. The City amended its application to conform to the finding. The OWRB then granted all 5,340 acre feet available for appropriation to the City, requiring the City to release at least 1,120 acre feet of water per year downstream. The OWRB order also required the City to meter and record monthly the amount of water taken from Byrd's Mill Spring. In-basin riparian owners and appropriators appealed from the administrative decision to the District Court, Coal County
Do the in-basin riparian owners have a vested right to the reasonable use of the stream?
"Natural flow" language has been used by this court when the plaintiff challenged an obstruction causing too much water in the stream to the plaintiff's injury. But a careful reading of previous decisions involving the taking of water from a stream revealed that, even when the natural flow doctrine is mentioned in dicta, the reasonable use doctrine is actually applied. The accepted rule allows a riparian owner the right to make any use of water beneficial to himself as long as he does not substantially or materially injure those riparian owners downstream who have a corresponding right In Baker v. Ellis, a case relied on by the trial court in holding that the natural flow doctrine controls the case at bar, the court affirmed a decree granting a permanent injunction against the defendant's construction of a dam which threatened the supply of water to a downstream riparian owner. Though the court noted that the defendant was about to stop the stream "where the water, left alone, would run as it ought to run, and was used to run from time immemorial," we carefully added that the defendant could still properly use the water even impounding some as long as he does not cause substantial damage to the plaintiff. From these decisions and of the co-existence of appropriative with riparian rights in this state since 1897, it follows that the modified common-law riparian right to the reasonable use of the stream is the controlling norm of law in Oklahoma. Further, consistently with the California Doctrine, the statutory right to appropriate stream water coexists with, but does not preempt or abrogate, the riparian owner's common-law right.