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Show 552 NEW YORK (2) Beneficial uncertainty. It has been argued, and realistically so, that riparian rights in New York (and elsewhere, for that matter) cannot be neatly quantified and defined in detail by statutory rules, and that the "reasonableness" standard affords desirable flexibility168 for the courts in resolving conflicts between users and uses: Because the facts involved in any particular water case more often than not fail substantially to duplicate those appearing in any other, it would seem to be impossible to formulate a set of rules by resort to which a riparian owner could, without obtaining an adjudication, ascertain the exact scope of his riparian rights and privileges in all cases. The almost infinite number of con- ceivable situations would call for an almost infinite number of rules. Experi- ence in the water field has shown that when the courts laid down rules which purported to be definite, it became necessary to recognize exceptions to them relatively soon after their promulgation, unless injustice was to be in- flicted and the public interest sacrificed for the sake of predictability. It is doubtful that detailed legislation would fare much better.189 3.3 Changes, Sales, and Transfers There has been some support for legislative reform in New York to clarify and facilitate water right transfers, and the need for such reform has been justified because: economists and lawyers are generally agreed that no system of water law can be deemed acceptable unless it makes satisfactory provision for the transfer of water rights and privileges because such provision affords one of the best means of effecting revisions in the pattern of water use in response to changes in the relative importance of various demands for water."0 Aside from the public benefit to be realized from a reallocation of water to higher valued uses, it has been further suggested that: some riparian owners, who are not in a position to engage in a water-connected activity, would be better off if they could sell their riparian privileges to non- riparians for use in connection with non-riparian land.171 Unless reserved or restricted in the instrument of conveyance, riparian rights in New York are transferred with the conveyance of riparian land, but it is not entirely clear to what extent riparian privileges can be severed and transferred separate and apart from the land.172 The right to use water for power173 and the right of access to navigable water174 may be transferred separate from the riparian land, but there is no clear authority to support the propo- sition that consumptive uses are transferable.175 What is clear, how- ever, is that harmful nonriparian uses are unlawful, and therefore riparian rights cannot be transferred for such purposes.176 las ^y. Farnham, note 5, p. 27, at 405 et seq. While the argument Is undeniably sound that statutory rules cannot effectively define reasonable use standards for uniform appli- cation, it does not follow that other forms of legislation would not be more desirable than the "flexibility" of judicially applied reasonable use rules on a case-by-case basis. For example, many Eastern States have adopted permit systems which have proved to be quite effective. 169 w. Farnham, note 5, p. 27, at 407. 170 Id. at 402. «i Id. at 413-14. 172 Id. at 401. 178 United Paper Board Co. v. Iroquois Pulp & Paper Go., 226 N.Y. 38, 123 N.E. 200 (1913) ; FPO v. Niagara Mohawk Power Corp., 347 U.S. 239 (1953). ™Oity of New York v. Third Ave. Ry., 294 N.T. 238, 62 N.E. 2d 52 (1945). 175 Farnham, note 5, p. 27, at 401-03, and particularly note 103 at 402. we The courts had even held that a number of harmless riparian uses were unlawful, prior to enactment of the harmless use act In 1966. See sees. 3.2.b and 3.2.C, supra. |
