OCR Text |
Show ALABAMA 81 3.3 Changes, /Sales, and Transfers There is no administrative procedure for changes in water use or transfers in place or purpose of use in Alabama. Since there are no water use permits, and no administration of water use or consump- tion, riparian owners presumably may change or transfer their methods of use, places of use, and purposes of use, at their will- subject, of course, to the standard limitation that governs any use: The use must be reasonable under all of the circumstances. A few cases of partial relevance might be mentioned. While ri- parian rights are attached to riparian land, and thus pass with a conveyance of the land unless reserved or otherwise restricted or limited, such rights cannot be sold or convened to a non- riparian except by conveyance of the riparian land itself.39 Such a conveyance of full riparian title vests in the purchaser title to the middle or thread of nonnavigable streams,40 to the ordinary high watermark on tidal waters, and to the line of low water on inland navigable waters.41 When a riparian owner grants a right of water use to another, it will be construed as an easement in favor of the grantee, who has the dominant estate so far as the use is con- cerned, and the land of the grantor is subservient to the exercise of the right by the grantee.42 An easement thus granted to overflow the lands of another, will, by implication, include the right of fishery in the overflow waters and the right of access on the land of the grantor to enable the grantee to reach the overflowed waters and exercise his piscatorial rights (however, the court was impressed by the fact that the grantee had exercised fishing and access rights for 31 years before the grantor complained and sought to bar any further access or fishing) ,43 Similarly, a grant to overflow lands will be protected against inconsistent uses by the grantor, such as where the grantor proposes to build a cottage on lands which are sub- ordinate and servient to the flowage easement.44 3.4 Loss of Rights The doctrine of riparian rights does not recognize a forfeiture of water rights for nonuse, because the continued validity of the right does not depend upon its exercise or on any particular water use. A particular water use might be abandoned, so that any rights acquired (such as by prescription) in connection with the use might be abandoned and lost, but this would not be an abandonment of the riparian right because the riparian owner could initiate new uses in the future. The question, of course, is whether the new use would be reasonable, and it is entirely possible that a new use for exactly the same purpose, and in exactly the same manner, as the old use would be unreasonable, whereas the old use was reasonable. The difference s9 American Tar Products Co. v. Jones, 17 Ala. App. 481, 86 So. 113 (1920). 40 Bullock v. Wilson, 2 Port. 436 (Ala. 1835) ; Tallassee Falls Mfg. Go. v. State, 13 Ala. App. 623, 68 So. 805 11915). «Mobile Transp. Co. v. City of Mobile, 153 Ala. 409, 44 So. 976 (1907). ^ Brown v. Alabama Power Co, 275 Ala. 467,156 So. 2d 153 (1963). « Hill v. Davis, 272 Ala. 166,130 So. 2d 39 (1961). ** Brown v. Alabama Power Co., 275 Ala. 467, 156 So. 2d 153 (1963). |