| OCR Text |
Show SURFACE WATERS 41 other. If the water impoundment continues for the prescriptive pe- riod without interruption by the person whose land is overflowed, then the owner of the dam or structure will obtain a prescriptive right to continue operation of the structure. If the riparian owner whose rights otherwise would be invaded consents to or permits the encroachment by another, whether such consent is represented by a formal contract, lease, license, or other permit, or whether given orally, prescriptive rights do not accrue. Of course, where the consent is given orally, problems of proof are more difficult, and litigation frequently arises to determine whether the use in question was with the consent of the person whose prop- erty interests were invaded or whether it was a hostile and ad- verse use. (3) ESTOPPEL Sometimes riparian water rights are limited, restricted, or lost by virtue of estoppel, which is a common law doctrine. Estoppel arises in a great variety of circumstances, but the basic requirement for application of the doctrine is that if the rule were not to be applied it would, in effect, work a fraud upon the party who relied upon the acquiescence of the complainant. For example, if a riparian owner assists another riparian owner in making a use of the water, such as assisting in surveying canals and constructing facilities, and then complains after the water is put to use that such use is unreasonable and therefore unlawful, most courts would say that the complainant is estopped because he knew about, aided, acquiesced in, or encour- aged the very conduct about which he now complains; and that to permit him to enjoin the use would have the practical effect of work- ing a fraud upon the user. b. Loss of Permit Rights in Eastern States Permit rights in Eastern States may be lost through violation of terms or conditions of the permit or through revocation or cancel- lation by the issuing agency. c. Appropriation Rights (1) ABANDONMENT Appropriation rights are dependent to a substantial degree upon continued beneficial use of the water. One way in which an appro- priation water right may be lost is when the owner of the right dis- continues use of the water with an intent to abandon his water right. No particular time period is required for an abandonment to become effective, since the only requirements for abandonment are the act of nonuse coupled with an intent not to resume use. How- ever, it is not always easy to prove the subjective intent of one who discontinues use of the water, and statutes in some States create a presumption of an intent to abandon if the nonuse persists for a specific period of time. In some States the presumption of aban- donment is conclusive. In these instances, the doctrine of abandon- ment has the same practical effect as the doctrine of forfeiture. |
