OCR Text |
Show 792 WEST VIRGINIA riparian owner for the necessary period, and the prescriptive ease- ment included both the operation of the gristmill and general flow rights.52 3.5 Storage Waters, Artificial Lakes, and Ponds As pointed out in various sections of the foregoing discussion, the riparian's right to impound water has been protected against in- fringement by others.53 The safety of dams is the responsibility of the public service commission.54 3.6 Springs The owner of the land is generally entitled to use springs located on his property, and this right will be protected against acts of an adjoining landowner to capture and use the waters of the springs.55 However, where the springs constitute the source of supply for a watercourse, a downstream riparian landowner is entitled to have this source of supply protected, and the owner of the land where the the springs arise can only make a reasonable use of the spring, along with other riparian owners on the stream.56 With respect to the source of the supply for the spring, the West Virginia court has stated that if a spring is supplied by waters in a well-defined channel, the rights of the various landowners are determined under the same principles as are applicable to surface streams. On the other hand, if the source of the spring is deter- mined to be percolating water, each landowner is entitled to make a^ reasonable use of the supply underlying his lands.57 While this distinction exists, it is more theoretical than practical, since reason- able use considerations and restrictions apply to both classes of water in West Virginia. 3.7 Diffused Surface Waters Diffused surface water is defined as water of a casual, vagrant character, oozing through the soil or diffused over the surface, but not in a known or defined watercourse, and originating from rain or snow.58 While it does not appear that the West Virginia court has ever directly decided any question Avith respect to the right to use these waters, there are statements to the effect that a landowner may deal Avith diffused surface water while it is on his land as he sees fit, sug- gesting that he may use it all.59 With respect to the disposal of diffused surface water, the owner of lower land must accept the natural runoff of surface water from 62 McWhorter v. City of Clarksburg, 111 W. Va. 9, 161 S.B. 577 (1931). ^Pickens v. Coal River Boom & Timber Co., 51 W. Va. 445, 41 S.E. 400 (1902) ; 58 W. Va. 11, 50 S.E. 872 (1D05) ; Miller v. Shenandoah Pulp Co., 38 W. Va. 558, 18 S.E. 740 (1893). M West Va. Code, sec. 61-3-47. BB Becker v. McGraw, 48 W. Va. 539, 37 S.E. 532 (1900). 56 Roberts v. Martin, 72 W. Va. 92, 77 S.E. 537 (1913). 57 Pence v. Carney, 58 W. Va. 296, 52 S.E. 702 (1905). ™Neal v. Ohio River R.R., 47 W. Va. 316, 34 S.E. 914 (1899). 59 Jordan v. City of Benwood, 42 W. Va. 312, 26 S.E. 266 (1896) ; Uhl v. Ohio River Railroad Co., 56 W. Va. 494, 49 S.E. 378 (1902). |