OCR Text |
Show PENNSYLVANIA 645 Other types of use are sometimes said to be "extraordinary," as distinguished from ordinary. No clear definition has emerged to indi- cate which types of use are extraordinary, but if a use falls within that category it cannot cause an unreasonable diminution of the stream supply. An irrigation use would seem to be "natural" but might be extraordinary, because, the court has said that only a rea- sonable amount of water may be withdrawn so as not to materially diminish or impair the reasonable use of the stream by lower ri- parians.61 This is consistent with the general judicial pronouncement that extraordinary uses cannot cause a material depletion.52 There are no formal preferences among or between uses, but it has already been demonstrated that domestic uses are in fact preferred over irrigation uses. Similarly, the court has said that water use for mechanical purposes is secondary to domestic use;53 and that manu- facturing uses which are not related to the natural use of the riparian land must not materially deplete the watercourse.54 The substance of the result is about the same as with irrigation water use, although, as noted above, it is more difficult to see why irrigation is not a natural use of the land. Water use for water power raises questions relating to altera- tion rather than depletion of streamflow. Initially, it may be said that a riparian owner is entitled to the use of the entire stream for water purposes,55 and thus may erect a mill on his property to take advantage of the stream; but he may not overflow or flood adjoining property, and the water, after use, must be returned to the stream.58 So far as the lower riparian is concerned, he is entitled to have the stream reach his land in its "natural" condition,57 although the natural condition is interpreted to allow reasonable upstream water power uses, even though such uses detain waters in such a manner as to cause some damage to a downstream mill owner.58 However if too much water is detained, so that the downstream owner suffers too much damage, then the upstream detention becomes unlawful.59 But, yet again, detention of water for several days during a dry season has been held to be reasonable;60 but any such detention is not reasonable if it results in overflowing or otherwise damaging lands of other riparian owners.61 If it appears that the above rules relating to water impoundment and detention are not clear, the same would seem to be true with respect to the riparian owner's interest in water quality. The initial statement of the rule must be that the riparian owner is entitled to the natural flow of the stream in its natural state of purity, subject 61 Appeal of Messinger, 4 Atl. 162, 109 Pa. 285 (1885). m Palmer Water Co. v. Lehighton Water Supply Co., 280 Pa. 492, 124 Atl. 747 (1924). 63 Id. at 749. 84 Myers & Ervlen Go. v. Philadelphia JdO By. Co., 12 Montg. 46 (1896). 55McCalmont v. Whitaker, 3 Rowle, 84, 23 Am. Dec. 102 (1831). ™Beissell v. School, 4 Doll. 211, 1 L. Ed. 804 (1800). fFricke v. Quinn, 188 Pa. 474, 41 Atl. 737 (1898). a* Whaler v. Ahl, 29 Pa. 98 (1857). MHartzall v. Sill, 12 Pa. 248, 2 Am. L.J. 191 (1849). MHetrich v. Deaehler, 6 Pa. 32, 2 Watts 237 (1849). «i Helms v. Zeiteeff, 407 Pa. 482, 181 A. 2d 277 (1962). |