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Show 78 ALABAMA A riparian owner may, however, obtain exclusive use of the stream if he obtains the consent of all other riparians affected by his use.17 A riparian owner does not acquire any "priority" in right by putting water to a reasonable use, but the courts seem inclined toward the view that a new use which would interfere with an existing use would be unreasonable,18 and so it must be concluded that existing uses have at least acquired a "more reasonable" status than proposed uses for the very same purpose. Certain rights of use may be acquired which are inconsistent with the riparian rights of others. These rights usually arise under doctrines of laches, estoppel, and prescription. In Alabama, a pre- scriptive easement to use water or overflow lands of another arises after 20 years of continuous use without the consent of, or objection by, the person adversely affected.19 After 10 years of continuous use, a "presumption" or right of title arises.20 3.2 Nature and Limit of Bights A. IN GENERAL Alabama riparian law goes back to the mid-19th century when the litigious John Burden, who operated a grist mill on Three Mile Creek near Mobile, began badgering Albert Stein with a series of water suits.21 It appeared that Mr. Stein was the lessee of the waterworks of the city of Mobile and, as an upper riparian, was di- verting water from the stream in order to supply the city's inhabi- tants. In these cases, the Supreme Court appeared to adopt the "natural flow" theory of riparian rights, and while conceding that a riparian owner might consume all the water in a stream if necessary for his personal domestic needs, the court felt that the city as such could not assert this preference as a domestic user of water. The court also held that the lower riparian (Burden) need not show actual damage as a condition of his right to sue and that, in the absence of special damage, nominal damages should be allowed in order to prevent a prescriptive right from accruing. Water diverted by an upper riparian for "artificial" purposes was required to be returned to the stream undiminished in quantity and unpolluted in quality. The growth of the iron mining industry in the last two decades of the 19th century affected the court's attitude toward the early natural flow theory. Washing of the iron pre was necessary before it could be converted into pig metal, with the result that sub- stantial sedimentation occurred in streams which were utilized for this purpose. Lower riparians were seriously affected by the pollu- tion and the deposit on the river banks of these waste materials. The first intimation that the court might shift to a "reasonable use" theory came in 1888 in Ulbricht v. Eufaula Water Co.,23 which dealt 1T Hendrick v. Johnson, 6 Port. 472 (Ala. 1838). 18 Id. 19 Stein v. Burden, 24 Ala. 130 (1854). f Alabama Gonsol. Coal & Iron Co. v. Turner, 145 Ala. 639, 39 So. 2d fiO3 (1905) B^Tn'AS^^A^^fiti)™1"v- stein>27 Ala-104 (1855);stein v- 23 86 Ala. 587, 6 So. 78 (1888). |
