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Show 286 ILLINOIS d. RELATION OF LAND TO WATER Since the riparian water right is an incident to the ownership of the riparian land,68 it necessarily follows that a conveyance of the real property carries with it the appurtenances, and the water right is thus presumed to be included in the grant, even though there is no mention of it in the deed.69 However, a riparian owner can sever the water right from the land and convey it for use by another inde- pendent of the sale of the land.70 e. TYPES OF USE RECOGNIZED The Illinois Supreme Court has recognized, as pointed out above, that every riparian owner has a right to supply his natural uses, which include domestic use and watering of stock; and that, in addi- tion, he may use water for artificial uses such as manufacturing and irrigation. However, all natural uses are entitled to be satisfied before water can be used for artificial purposes.71 Although it does not appear to have been directly decided, there is language in one early appellate court case which suggests that in an appropriate situation a municipality can be a riparian user.72 3.3 Changes, Sales, and Transfers Riparian water rights are generally transferred as an incident of the transfer of the real property which abuts a stream or across which the stream passes, and the right to use such water as is neces- sary for the enjoyment of the land passes as an appurtenance, even though the deed transferring the land is silent concerning the water.73 And, as mentioned above, a right to use water from a stream may be transferred independent of the land itself.74 Riparian water rights may be condemned for municipal purposes,75 and, as will be seen in the following section, may be transferred (lost) under the doctrines of prescription and adverse use. 3.4 Loss of Rights A riparian water right may be lost by adverse use, whereby the right of one riparian owner is acquired by another. Under the doc- trine of adverse use, there must be an open, exclusive, adverse, and continuous use of the water throughout the prescriptive period.76 If o*I)ruly v. Adam, 102 111. 177 (1882). 09 Jarvis v. Seele Milling Co., i73 111. 192, 50 N.E. 1044 (1898); Bouris v. Dargent, 94 111. app. 2d 251, 236 N.E. 2d 15 (1968). 70 Canal Trustees v. Haven, 11 111. 554 (1850) ; Moline Water Power Co. v. Cox, 252 111. 348. 96 N.E. 1044 (1911). ™ Evans v. Merriweather, 4 111. 492 (1842). ™ Elgin v. Elgin Hydraulic Co., 85 111. app. 182 (1902). ™Ja'rvia v. Seele Milling Co., 173 111. 192, 50 N.E. 1044 (1898) ; Bouris v. Largent, 94 111. app. 2d 251. 236 N.E. 2d 15 (1968). 74 Canal Trustees v. Haven, 11 111. 554 (1850) ; Moline Water Power Co. v. Cox, 252 111. 348, 96 N.E. 1044 (1911). 75 Smith-Hurd Illinois Ann. Stat., ch. 24, sees. 11-126-3 and 11-126-4. sec. 11-61-1. 76 Indian Refining Co. v. Amhraw River Drainage Dist., 1 F. Supp. 937 (1932); Leonard v. Pearce, 348 111. 518, 181 N.E. 399 (1932). |
