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Show 544 NEW YORK power.118 Similarly, certain water-related activities, such as stream bed alteration, impoundments and obstructions, and excavation and fill operations, are governed by permits.119 3.2 Nature and Limit of Rights a. NATURE OF RIPARIAN RIGHTS Eiparian rights in New York, as elsewhere, are an incident to the ownership of land underlying or bordering a watercourse,120 and they are rights of use, as distinguished from ownership of the water: It is a principle, recognized in the jurisprudence of every civilized people from the earliest times, that no absolute property can be acquired in flowing water. Neither sovereign nor subject can acquire anything more than a usufructuary right therein."1 Riparian rights are property rights 122 and they cannot be taken or materially impaired or diminished without due process and pay- ment of just compensation, except through a lawful exercise of regulatory or police powers.123 Riparian rights do not depend upon actual use of the water for their continued validity, but whether "unused" riparian rights may be taken or destroyed by the State for public water supply and other water use purposes is an open question in New York124-although many States have done just that, at least to the extent of requiring riparians to apply for use permits before initiating new uses, and allowing stream depletion so as to preserve only an "average low flow" or minimum flows necessary to protect instream values and existing uses. b. NATURAL FLOW OR REASONABLE USE The New York courts have never taken a definite and specific stand with respect to whether the natural flow or reasonable use theory is extant in that State, but the results of the decisions, on the whole and on balance, seem to embrace reasonable use principles. In many cases the courts seemed quite clearly inclined toward reason- able use,125 but opposed to these cases were nine rather early de- cisions128 issued between 1886 and 1918 which seemed to support 118ECL sees. 17-0701 et seq. (waste discharges) and 15-1701 et seq. (power). 118 ECL sees. 15-0501 et seq. 120 Squaw Island Freight Term Co. v. Buffalo, 246 A.D. 472, 284 N.Y.S. 598 (1936). 121 Sweet v. City of Syracuse, 129 N.Y. 316, 27 N.E. 1081 (1819). 122 United Paper Board Co. v. Iroquois Pulp & Paper Co., 226 N.Y. 38, 123 N.H. 200 (1919). ™Squaw Island Freight Term Co. v. Buffalo, 246 A.D. 472, 282 N.Y.S. 598 (1936). 124 See discussion in W. Farnham, The Improvement and Modernization of New York Water Law Within the Framework of the Riparian System, III Land and Water L. Rev. 377, 422-26 (1968). i^Knauth v. Erie R.R., 219 A.D. 83, 219 N.Y.S. 206 (1926); Bullard v. Saratoga Victory Mfg. Co., 77 N.Y. 525 (1879) ; Pierson v. Speyer, 178 N.Y. 270, 70 N.B. 799 (1904) ; McCann v. Chasm Power Co., 211 N.Y. 301, 105 N.B. 416 (1914) ; and see W. Farnham, note 5, p. 27, at 382 et seq. 128 Smith v. City of Rochester, 38 Hun 612 (N.Y.S. Ct. 1886), aff'd 104 N.Y. 674 (1887) ; Neal v. City of Rochester, 156 N.Y. 213, 50 N.E. 803 (1898) ; Townsend v. Bell, 62 Hun 306 (N.Y. 1891) ; New York Rubier Co. v. Rothery, 132 N.Y. 293, 30 N.B. 841 (1892); Gilzinger v. Saugerties Water Co., 66 Hun 173 (N.Y.S. Ct. 1892), aff'd on opinion below, 142 N.Y. 633, 37 N.E. 566 (1894) ; Standen v. New Rochelle Water Co., 91 Hun 272, 36 N.Y.S. 92 (1895) ; Amsterdam Knitting Co. v. Dean, 162 N.Y. 278, 6 N.E. 757 (1900) ; Mann v. Willey, 51 A.D. 169, 64 N.Y.S. 589 (1900), aff'd 168 N.Y. 664, 61 N.E. 1131 (1901) ; Storm King Paper Co., Inc. v. Firth Carpet Co., 184 A.D. 514, 172 N.Y.S. 33 (1918) |