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Show ALABAMA 79 simply with a diversion by an upper riparian for municipal pur- poses. The court felt constrained to add by way of dictum that a ri- parian's right to the natural condition of the stream was quali- fied "by the limitation, now well recognized," that each of such proprietors is "entitled to a reasonable use of the water for domestic, agricultural, and manufacturing purposes." The mining cases were soon to arrive. In_ these,24 the court held that before a lower riparian was entitled to injunctive relief, the damage (pollution of the water) must be weighed against the injury to the other riparians and to the public. Perhaps the most damaging aspect of these cases so far as the lower riparian was concerned was the holding that where there are several polluters, not acting in concert, their liability is several and not joint. Moreover, there was some in- dication in these cases that even damages for substantial injuries might not be recovered unless the stream had been rendered totally useless by the pollution. In Drake v. Lady Ensley Coal, Iron & By.,25 However, the court, in employing the balancing of interests measure under the reason- able use theory, permitted the lower riparian to recover for sub- stantial damage caused by industrial pollution. The result of these cases seems to be that the Alabama court is reluctant to grant in- junctive relief for industrial pollution but actual damages may be awarded. In practical effect, the mining companies were given the power of eminent domain by the judiciary. Two more recent cases indicate, however, that industrial polluters may perhaps be enjoined.26 One commentator has suggested that in cases involving only diversions or obstructions of the water, the riparian owner may still utilize the natural flow theory and be awarded nominal damages to prevent a prescriptive easement.27 Injunctive relief has been allowed against the dumping of city sewage into a watercourse or the flood- ing of lower riparian land.28 B. SOME SPECIFIC USES AND PROBLEMS The following observations with respect to specific cases and problems should be read and considered in light of the overview pre- sented in the preceding section. With respect to the rather technical "legal" nature of the riparian water right in Alabama, it has been said that it is a right to a reasonable use of the water, which is a real or corporeal hereditament, and in the very nature of an easement, but that it is not an absolute right of property because it is qualified by the equal rights of other riparian owners.29 Of course, riparian rights include more than the right to make a reasonable use of water. While rights of water use are the primary concern of this chapter, it should be noted that, in Alabama, the other riparian rights include ownership of the beds of nonnavi- 24 Clifton Iron Co. v. Dye, 87 Ala. 468, 6 So. 192 (1888) ; Tennessee Coal. Iron d R R. v. Hamilton, 100 Ala. 252,14 So. 167 (1893). as 102 Ala. 501, 14 So. 749 (1893). 23 See Elmore v. Ingalls, 245 Ala. 481, 17 So. 2d 674 (1944) ; Montgomery Limestone Co. v. Bearden, 256 Ala. 269. 54 So. 2d 571 (1951). 2? Note, 12 Ala. L. Rev. 15&, 170 (1959). ^Howell v. City of Dothan, 234 Ala. 158, 174 So. 624 (1937) ; Gulf States Steel Co. V. Law, 224 Ala. 667,141 So. 641 (1932). a9 Ulbricht v. Eufaula Water Co., 86 Ala. 6 So. 78 (1888). |
