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Show 550 NEW YORK bill proposed to resolve a number of uncertainties, the first of which was whether a substantially harmful use was legal if it was reason- able under all the facts and circumstances.154 This statement of the uncertainty might seem to beg the question in a sense, because most cases in riparian rights jurisdictions have decided questions of reasonableness largely in light of the facts showing substantial harm to the plaintiff. In other words, substantially harmful uses ordinarily are not reasonable. Nevertheless, the concern was that in New York proof of substantial harm might be sufficient in and of itself to declare the use unreasonable and unlawful,155 and that the public interest would be better served if the harm caused was only one element to be considered in determining reasonableness: That harm * * * should be and is an important factor when determining legality cannot be denied; but that such harm should be treated as but one of several important factors contributing to the final result seems equally clear. There may well be situations in which a use, alteration or activity should be held lawful, although causing substantial harm, because of its importance to the public and defendant's inability to avoid the harm, or because the plain- tiff's activity is unsuited to the neighborhood, or because the plaintiff could practicably minimize the harm, or because the stream comes to the defendant's tract before reaching the plaintiff's.168 Aside from harmful-but-reasonable uses, it was thought that New York case law might stand for the proposition that substantially harmful diversions, seasonal impoundments, and additions of foreign water would ipso facto be illegal. So, the second basic purpose of the harmful use bill was to provide that such activities would be legal, though substantially harmful, if reasonable, and that was thought to be justified: since the optimum development and use of water resources, whether by private persons or by government, often requires harmful diversions, impoundment or addition of foreign water.167 The third basic feature of the harmful use bill was quite interest- ing. Ordinarily, in litigation to measure the reasonableness of the use of one riparian against the complaint of another, courts compare only the relative positions and equities of the parties in light of all of the relevant facts and circumstances. The first two basic pro- visions of the bill, as discussed above, would have provided that substantial harm may be considered but will not be controlling when examining uses, diversions, impoundments, and importations of for- eign water. Since the amount of harm traditionally has been the criterion most heavily relied on in determining reasonableness, what new or additional criterion should be used to offset that measure? The bill proposed that it be the public interest.158 However, since the harmful use bill did not become law, the above-mentioned uncertainties, however undesirable they might be, still remain in New York water law. A somewhat persuasive argu- ment was made that if the bill had become law it would have been constitutional.159 151 W. Farnham, note 5, p. 27, at 389-92. iBB Id. isa Id. at 392. «t i<j. at 394. IBS Id. ibo w. Farnham, note 5, p. 27, at 396-98. |
