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Show 36 SURFACE WATERS interference by new uses. And in many cases the courts have simply concluded that it would be "unreasonable" for a new use to impair or interfere with an existing use. Riparian water rights can be exercised only for the benefit of riparian lands, at least under the traditional view. Criteria used to measure riparian land are not always consistent. In most States ri- parian owners cannot transport water outside the watershed of origin, since this would unreasonably deplete downstream flow and thus damage other riparians. There is little clarity with respect to the subdivision of riparian land, although most cases have held that a conveyance of a portion of riparian land, so that the part conveyed no longer touches upon the watercourse, will extinguish the riparian rights to the part conveyed. Some States have even taken the position that a repurchase of the conveyed tract by the original grantor will not restore riparian rights to the reacquired tract. But other States have allowed riparian owners to purchase a nonriparian tract ad- jacent to his riparian land and thereby extend riparian privileges to the newly acquired portion. All riparian rights are to be used and exercised in a "reasonable" manner. In England, riparian rights were originally described as natural flow rights, which meant that each riparian owner was en- titled to the natural flow of the stream, undiminished in quality or quantity except for domestic and household uses by upstream ripar- ian owners. Most Eastern States originally embraced some version of the natural flow doctrine, and in some States the courts persist in using "natural flow" language; but as a matter of practical fact in every riparian State the present test of legality is whether the ri- parian owner is making a reasonable use of the water. This means that the riparian use cannot destroy, materially dimin- ish or alter the quality or quantity of the water flowing to lower riparian owners. There is no precise measure to determine reasonable use, and the court considers all of the facts and circumstances of the particular case, including the size and velocity of the stream, the per- manence and evenness of the flow, the number and needs of riparian owners, the customs of the community, and the economic context of the controversy. More specifically, riparian uses have been found to be reasonable when the water is detained or impounded and then released for mill- ing and power purposes, but unreasonable when water is detained during the day and released at night when downstream riparian users could not benefit from the released flow. It has likewise been held to be unreasonable to release water suddenly, so as to cause downstream flooding, or to back up waters so as to interfere with up- stream mill operations. Most courts have held that riparian owners may make reasonable diversions for household use, watering cattle and other livestock, ir- rigating riparian lands, and taking ice; that they acquire ownership of natural accretions and relictions, and title to islands within the watercourse; that they may remove sand and gravel from the stream bed and may erect dams and piers bordering the watercourse; that they may haul and dry nets on the uplands adjacent to the water- course, and may construct seawalls for protection against tides and |
