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Show 352 LOUISIANA 3. Surface Waters 3.1 Method of Acquiring Rights So far as riparian rights are concerned, they are acquired when riparian land is acquired, unless the instrument of conveyance re- serves, limits, or restricts the riparian rights and privileges that otherwise are part of, and pass with, the land. Perhaps of more practical significance is the fact that in Louisiana water supplies for agricultural, domestic, municipal, and industrial purposes are largely furnished by a rather wide variety of water supply districts, as discussed in section 2.3.b, supra. In such a situa- tion, "rights" of use are acquired by subscribing to water delivery service and upon paying established rates for water received. This is, of course, essentially the same public utility-type water service which is common in metropolitan areas. 3.2 Nature and Limit of Rights a. ANALYSIS OF NATURE OF RIGHTS Section 9:1101, as quoted in section 1 of this chapter, appears to classify running water as res publioae, subject, however, to the right of all citizens to use the water. It is generally believed that this clas- sification supersedes the civil code provision. One ambiguity in the statute is the apparent recognition of private ownership of running water prior to August 12, 1910. This seems directly in conflict with the civil code which recognized no private ownership of common things. One writer suggested in 1961 that the two provisions may be reconciled on the ground that the statute intended to recognize pri- vate rights prior to August 12, 1910, only on bodies of water other than running streams.27 It is somewhat difficult to see, however, what the term "river" means unless it relates to running water. Probably the legislature, at the time the statute was originally enacted, was concerned primarily with the ownership of beds of these various bodies of water rather than the ownership of the water itself, as dis- cussed in section 3.2.b. In any event, the reclassification of running water as res publicae seems to have little practical effect since the right to freely use such water is still recognized.28 This right of pri- vate use is clearly not unrestricted since there are numerous statutes regulating such use, particularly where water pollution is involved. Turning from the question of ownership of running water to its use, there is an old provision in the Louisiana Civil Code (art. 661) which appears to adopt the riparian system. To a common law lawyer, the article may seem rather quaintly phrased. It appears in the chapter of the code dealing with predial servitudes "which orig- inate from the natural situation of the places." Since this provision is the cornerstone of Louisiana water law, it does not seem inappro- priate to quote it in its entirety: He whose estate borders on running water, may use it as it runs, for the pur- pose of watering his estate, or for other purposes. 27 A. N. Yiannopoulos, Common, Public, and Private Things in Louisiana: Civil Tradi- tion and Modern Practice, 21 La. L. Rev. 697, 702, n. 35 (1961). 28 F. Zengel, Elements of the Law of Ownership, 3 La. Civil Code 1, 9 (West 1952). |