The opinion
On Motion for Rehearing.
The authorities cited in the motion for a rehearing sustain the general doctrine contended for only as between riparian owners, which substantially is that a riparian owner cannot divert water to land lying beyond the watershed and has no right to divert water from the stream to make merchandise out of it. But the authorities cited do not hold that one without riparian rights may complain. They all proceed upon the assumption of the right of other riparian owners to have the use of the full flow of the stream except whatever part of it may be applied by a superior riparian owner to uses which are strictly riparian.
A riparian owner, of course, cannot divert water from a riparian stream for nonriparian purposes in derogation of other riparian owners’ rights. This well-established proposition is recognized in our original opinion. But appellant having acquired no riparian rights or other lawful rights to the water confined in the natural channel of the stream is not in a position to call for relief, as a riparian owner of land would be. The grant from the board of water engineers did not confer any legal right whatever upon appellant to exclude appellee from making any use of the normal flow of water in the river.
Appellant copiously quotes from the case of Gould v. Eaton, 117 Cal. 539 , 49 Pac. 577 , 38 L. R. A. 181, to sustain the argument that appellee, even if it should be regarded ’as a riparian owner, has no right as against appellant, an appropriator of flood water, to divert any water from the stream and apply it to nonriparian uses. This case, as well as the other authorities cited, deals with the question solely in relation to rights as between riparian owners. The substantial effect of the holding in that ease upon the point pressed here is that a riparian owner cannot, as against an inferior riparian proprietor, confer upon another the right to divert riparian water to lands which are not riparian to the stream. The case expressly holds that as against himself or his grantee, he may contract for the diversion of the water to nonriparian lands, although a contract providing for such diversion of water will not affect the rights of an inferior riparian proprietor,
The motion for rehearing is overruled.