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Show 196 DELAWARE as water use under the permits, then the riparian rights would be- come vulnerable to termination by the commission if the use was no longer reasonably beneficial. Also, such riparian rights would be subject to diminution during emergencies declared by the governor.65 3.2 Nature and Limit of Bights Because of the abundant supply of surface waters in Delaware, there have been very few conflicts in water use which have resulted in litigation. Therefore, no body of case law has developed to clarify the nature and limit of riparian water rights. It is clear that the riparian water right is usufructuary in nature,66 since it is only a right of use and does not constitute any ownership of the corpus of the water-but it is a right which is a species of property entitled to constitutional protection.67 The nature of the riparian water right protects the owner thereof in the quality 68 of the water in the stream as well as quantity;69 but these aspects of the right are subject to some dimunition, as a result of reasonable uses by upstream riparian owners. But the cases are not nearly as important as the legislation. Under the new permit system, as discussed above, the only riparian rights which now exist in Delaware are those which were in actual use on July 1, 1966, and which have continued in use since that time. It is entirely likely that those rights are limited and measured by the existing nature and method of use, and that such uses cannot be transferred to new points or places of use; nor water diversion or consumption increased, without first obtaining a permit authorizing such change. However, regulation 201.d (subsec. d, sec. 2, par. 1, regulation I) contains a curious provision which suggests that "riparian and other property owners" have standing to object to applications for water use permits: Any nonwasteful use of the surplus water resources of the State shall be considered to be a reasonable beneficial and legal use provided that sufficient and justifiable objections by riparian and other property owners are not pre- sented to and accepted by the commission, after public hearing, and no un- reasonable damage results. 3.3 Changes, Sales, and Transfers There seem to be no cases in Delaware which have specifically addressed the question of selling and transferring riparian water rights separate and apart from the riparian land. It is clear that riparian water rights may be transferred with the riparian land, because the rights are a part of the land itself. And in view of the rather unifrom holdings in other riparian jurisdictions, it must be assumed that riparian rights could likewise be conveyed and trans- ferred separately from the riparian land, or reserved by the grantor in any conveyance of such land. There still remains a number of as Id. 68 Id. & Bartholomew v. Edwards, 6 De.l (1 Houst.) 17 (1855-56). wjessup & Moore Paper Go. v. Ford, 6 Del. Ch. e2, 33 Atl. 618 (1887). ^Delaney v. Boston, 2 Del. (2 Harr.) 489 (1839) ; Beck v. Kulessa, 34 Del. 559, 156 Atl. 346 (1926). |
