| OCR Text |
Show SURFACE WATERS 45 adverse use for the required prescriptive period, and commonly arise through the use of ditches, canals, and other facilities where no con- sent, grant, or right-of-way has been obtained. (5) ESTOPPEL Again, the principles of estoppel are essentially the same in both appropriation and riparian jurisdictions, and the doctrine may be applied in any circumstance where it would be exceedingly harsh and unjust not to apply the doctrine; or where a refusal to apply it would yield an unconscionable benefit to the person whose very conduct had encouraged another party to proceed with some water use or development in reliance on such conduct or acquiescence. 3.5 Storage Waters, Artificial Lakes, and Ponds In virtually every State, permits are required before dams can be placed in watercourses, and plans and specifications ordinarily must be submitted to a State agency for review and approval before construction begins. These procedures are designed to protect the public safety in life and property from dam failures, although most statutes contain exceptions for small facilities which impound small amounts of water, and for impoundments which are located entirely upon privately-owned property and where the waters impounded are not part of a watercourse. Impoundment regulations ordinarily extend to all watercourses. Other regulatory features apply only to navigable waters, such as requirements for permits from State agencies before private per- sons commence construction of wharves, piers, and other facilities which might either be used for navigation or which might serve to obstruct navigation. Aside from regulations in aid of public safety and navigation, it is common to find a considerable number of regulations designed to protect the public interest in the social values of the stream where the impoundment is to be constructed. These regulations might re- late to minimum stream flows and minimum lake levels; or for the inclusion of facilities, such as fish ladders, in the impounding struc- ture. In that regard, and as a historical note, some States declare by statute that small ponds (usually of 10 acres or more in size) are subject to public use for fishing, fowling, and other public purposes. These provisions are patterned after a Massachusetts ordinance first adopted in 1647, and which at that time applied to all ponds of 20 acres or more in surface area. Apart from regulations to protect the public interest in safety, navigation, and instream values of water, it may be said, as a gen- eral proposition, that riparian jurisdictions allow riparians to im- pound waters if it appears that the impoundment and use is reasonable. In fact, a number of older statutes expressly grant ri- parians the right to condemn private land adjacent to their own and located on the other side of the watercourse for the purpose of building mill dams, implicitly recognizing impoundments for that |
