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Show NEW YORK 553 Cases in most riparian jurisdictions have held that harmless nonriparian uses are permissible but that harmful ones are not. New York courts took the position at a rather early date that even harm- less uses could be unlawful, whether on riparian or nonriparian land.177 The harmless use act effectively overruled these decisions, but harmful nonriparian uses are still unlawful, even though they would be reasonable and therefore lawful if conducted on riparian land.178 The harmful use bill, which did not become law, would have au- thorized riparians to use water on nonriparian land owned by them to the same extent that use would have been lawful on their riparian land.179 But it did not purport to authorize sales or transfers of such privileges to nonriparians. It has been suggested that transfers of riparian water use priv- ileges in New York would be enhanced by legislation which would: (1) Clarify the law by spelling out which use privileges can be severed and transferred separate from the riparian land and (2) change the law by permitting transfers for harmful nonriparian uses, so long as such uses are reasonable.180 The basic change would be that the reasonableness of nonriparian transfers would be measured by the same criteria applicable to riparian uses, rather than declaring all harmful nonriparian uses unlawful per se. The justification that has been suggested is that since the riparian owner could have made a reasonable but harmful use, he should be able to sell and transfer the same right.181 If such a legislative proposal should be drafted along the same rationale as that which prompted the harmful use bill, then the public interest would be a criterion to be used in deter- mining whether harmful nonriparian uses were reasonable.182 It should go without saying, of course, that nonriparians would be obliged to acquire access rights to the watercourse in order to ex- ercise any riparian water use rights otherwise acquired.183 Perhaps the most serious practical difficulty with a transfer of a riparian water use privilege to nonriparian use, even if it were to be legalized, is that any ensuing litigation would be extremely hypothetical and complicated. This is so because the riparian seller would be able to convey no greater rights or privileges than he owns, but would be able to convey all water use privileges which he does own. When the nonriparian purchaser exercises the water use rights so purchased, the question is whether his actual use exceeds that which would have been a reasonable use if the riparian seller had exer- cised the full measure of his water use rights on his riparian land. Thus, at the trial, the first order of business would be to ascertain the physical facts concerning the nonriparian use and its effect on the complainant; then, having made that determination, it would be necessary to have a hypothetical exploration, whereby the 177 The major cases are cited and discussed in sec. 3.2.b, supra. ™Garv>ood v. New York Oent. & H.R.R.R., 83 N.Y. 400 (1881) ; Knauth V. Erie R.R., 219 A.D. 83, 219 N.Y.S. 266 (1926). ito ^r# Farnham, note 5, p. 27, at 414. 180 Id. 181 See discussion of proposed harmful use bill, which would have broadened permissi- ble use by riparians on nonriparian land, W. Farnham, note 5, p. 27, at 413-14, and particularly note 141 at 414. 188 See discussion in W. Farnham, note 5, p. 27, at 394-96. i88 In the ordinary case this would not be a difficult hurdle. |
