The opinion
Tolman, C. J.
(dissenting) — The majority quotes from the opinion in
Brown v.
Chase, 125 Wash. 542 , 217 Pac. 23 , as follows:
“In consonance with the general needs and welfare of the state, especially in the arid and semi-arid regions, and in harmony with the legislation upon the matter, we are now prepared to declare,, instead of the mere loose and general expressions in some of our opinions, that (1) waters of non-navigable streams in excess of the amount which can be beneficially used, either directly or prospectively, within a reasonable time, on, or in connection with riparian lands, are subject to appropriation for use on non-riparian lands.”
I accept this statement as being a fair interpretation of the law, except only the words, “within a reasonable time, ’ ’ as now construed by the majority. In my judgment, riparian rights are not governed by the law of user, and can not be lost by mere non-usér. So far as the judgment appealed from is sustainable upon the theory that water can not be beneficially used either now or in the future upon the riparian lands, I concur; but I can not, as now advised, lend my assent to the principle that mere non-user, of itself, is a forfeiture of the natural riparian rights created and provided by nature. Those necessarily inhere in and adhere to the land for all time, and one owning the riparian land may use or not at his pleasure. The water which nature has
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made applicable to riparian lands can, in logic, no more be removed from those lands than can the soil itself.
I therefore dissent.