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Show 296 INDIANA 3.2 Nature and Limit of Rights The riparian water right does not constitute ownership of the water itself, but rather is a usufructuary right or a right to use the water. However, the riparian right is a property right and is entitled to the same protection as other property rights.36 Every riparian owner is entitled to make a reasonable use of the water of a watercourse consistent with the coequal right of other users on the watercourse.37 What is considered to be a reasonable use is a question of fact to be determined from the facts and circum- stances of each case.38 The circumstances and factors that the Indiana Court has given consideration to in determining whether or not a specific use was reasonable include: the size, fall, volume, velocity, and prospective rise and fall of the watercourse; the needs and usage of other riparian owners on the watercourse; the subject matter, necessity, extent, duration, and manner of application of the use in question; and the established usage of the country.39 The use of water for domestic purposes is a preferred use, and is given priority over all other uses. Therefore, if there is only enough water for the domestic needs of the riparian owners of a watercourse no one may use the waters for any other purpose.40 Further, a riparian owner has the right to use all the water he needs to satisfy his domestic purposes even if that use interferes with the domestic use of the water by a lower riparian owner. Domestic purposes are defined by statute as including, but not limited to, household pur- poses and the watering of livestock, poultry, and domestic animals.41 The Court has specifically recognized that a riparian owner may also use water for manufacturing and agricultural purposes and for the generation of power, but these uses are subject to the reasonable use limitation.42 In fact, it appears that any beneficial use of water is allowable if the use, including its method and manner of appli- cation, is reasonable in light of the demands on the stream by others. The Indiana court has found some uses to be unreasonable because under the circumstances the manner or method of use unreasonably interferred with the use of the water by another riparian owner. For example, a person may obstruct or dam up the waters of a water- course in order to enhance his use but the court has stated that it is unreasonable to overflow and damage the lands of other riparian owners43 or to cause substantial diminution or irregularity of the flow of the watercourse so as to materially interfere with the use of the waters by other riparians.44 Increasing the flow of a watercourse by pumping or diverting water from other sources into it and thus 36 City of Logansport v. Vhl et al., 99 Ind. 531 (1884). 37 Muncie Pulp Co. v. Koontz, 33 Ind., app. 532, 70 N.E. 999 (1904); and City of Logansport v. Vhl et al., 99 Ind. 531 (1884). 38 City of Logansport v. Vhl et al., 99 Ind. 531 (1884). 89 City of Logansport v. Vhl et al., 99 Ind. 531 (1884) ; and Dilling v. Murray, 6 Ind. 324 (1855). ^Valparaiso City Water Co. v. Dickover, 17 Ind., app. 233, 46 N.E. 591 (1897): and sec. 27-1403(1). 41 See. 27-1403(1). 42 Muncie Pulp Co. v. Koontz. 33 Ind.. app. 532, 70 N.E. 999 (1904); and City of Logansport v. Vhl et al.. 99 Ind. 531 (18S4). *3Cory v. Silcox, 6 Ind. 39 (1854) ; and Guynn v. Waoash Water & Light Co., 181 Ind. 486, 104 N.E. 849 (1914). u City of Logansport v. Vhl et al., 99 Ind. 531 (1884). |
