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Show NEW HAMPSHIRE 493 3.5 Storage Waters, Artificial Lakes, and Ponds In order to make a reasonable use of the water to which he is entitled from a stream, a riparian owner may construct a dam and impound water. But, in so doing, there must not be such a substantial alteration or diminution in the flow of the stream that other riparian rights are impaired.62 If the dam of a lower riparian owner obstructs a stream and causes water to flood the land of the owner above him, he is liable for the damage caused and nominal damages may be recovered even though no actual damage is shown.63 A proper easement must be obtained as a part of any storage project which causes water to overflow the lands of another.64 As a part of the common law, and by statute, any natural, fresh- water pond of 10 acres or more is considered a "great pond" and a public water of the State.65 Any riparian owner's reasonable use therein is subject to the superior rights of the public in the water for such benefits as swimming, fishing and boating.66 A similar re- striction on a riparian owner's use prevails relative to navigable waters, although the Supreme Court of New Hampshire has held that title to the bed of navigable streams remains in the riparian owner.67 There is some State regulation governing the construction of dams to insure the safety of the general public, and also providing for inspection and repair of existing dams to assure that they are safe, as discussed in section 2.3, supra. 3.6 Springs Although there have been very few cases in New Hampshire dis- cussing the right to use spring water, it appears that the landowner has the right to make a reasonable use of a spring arising on his property, whether the spring flows into and becomes a part of a stream, or whether it remains on his property.68 This is a consistent holding, because New Hampshire has uniformly applied the doctrine of reasonable use to all waters, without regard to the source of the water. 3.7 Diffused Surface Waters Diffused surface waters are generally considered to be water formed from falling rain or melting snow and diffused over the surface of the ground prior to entering into and forming a part of a watercourse.69 82 Oerrish v. New Market Man. Co., 30 N.H. 478 (1854) ; Norway Plains Co. v. Bradley, 52 N.H. 86 (1872). «Lancaster & Jefferson Electric Light Co. v. Jones, 75 N.H. 172, 71 Atl. 871 (1909) ; Gerrish v. New Market Man Go., 30 N.H. 478 (1854). "Cummings v. Keene Ice Go., 77 N.H. 81, 87 Atl. 250 (1913). <*Dolbeer v. Suncook Waterworks, 77 N.H. 562, 58 Atl. 504 (1904) ; Witcher v. State, 87 N.H. 405, 181 Atl. 549 (1935) ; sees. 271:20, 21. ««Id. 87 N.H. Water Resources Board v. Lebanon Sand & Gravel Co., 108 N.H. 254, 233 A. 2d 828 (1967). 88 Johnson v. Labonibard, 94 N.H. 417, 55 A. 2d 874 (1947). MSwett v. Gutts, 50 N.H. 439 (1870). |