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Show OVERVIEW d 1.3 Surface Water a. The English Legacy The water law concepts adopted early in the history of this coun- try were patterned after the law in England. England recognized a public interest in those waters which were affected by the ebb and flow of the tide, because the public customarily used these waters for navigation and fishing. All other waters-the fresh water inland lakes and streams above tidewater-were classified as private waters, in which there were no public rights. The English Crown owned the navigable (public) waters and their beds, and held the same in trust for public use. Private waters were owned and controlled by those who owned riparian land, which was that land located adjacent to the stream or upon which the stream flowed. Each owner of ri- parian land owned the bed of the stream which crossed his land, and was entitled to have the stream continue to flow in its natural condition by or upon his land, and could make certain uses of the water while it was upon his land, so long as the stream remained un- diminished in quantity and quality when it left his land. Riparian rights also attached to navigable waters, but these rights were more restricted than in private waters, because they were subordinate to the public's right of navigation and fishing, and because the beds and ticlelands were owned by the Crown. While the above principles of English law found early favor in the United States, it will be seen that some of those principles were revised or modified, and some were rejected. The departures from the English law were not too surprising, since the physical characteristics of England, as a small country with abundant rain- fall, were quite different from much of the United States, a large country with arid and humid regions, with large inland lakes, and with many rivers that flowed hundreds of miles before reaching tidewater. b. Riparian Bights The Eastern States rather uniformly adopted the basic principles of the English system of riparian rights as they applied to surface waters. However, rights of riparian use were liberalized. Riparian owners were entitled to make reasonable uses of the water for any purpose for which their land was naturally adapted, even though it caused some diminution in the quantity or quality of the water in the stream. Under the "natural flow" doctrine as it originally de- veloped in England, such a diminution was not allowed, but the "reasonable use" relaxation of the rule permitted those uses which did not "unreasonably" interfere with the rights of other riparians. Another departure from the English law related to the distinc- tion between public (navigable) and private (nonnavigable) waters. This departure evolved as a consequence of Federal jurisdiction over interstate waterways. The U.S. Constitution granted to the Federal Government admiralty jurisdiction and regulatory power over interstate and foreign commerce, which was construed to include navigation. The exercise of this jurisdiction and power was limited to tidewaters for over 60 years, since the U.S. Supreme 499-242-73------2 |
