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Show 82 ALABAMA would result from intervening uses which arose between the date of discontinuance of the old use and commencement of the new use. The Alabama cases illustrate this problem. In one case it was proclaimed that the riparian right does not depend upon water use, and that mere nonuse of water by a riparian owner will in no way operate to impair his title, diminish his rights, or confer any right on another, since the riparian has a standing and continuing legal right to have the stream continue to flow upon his land irre- spective of whether he may need it for any special purpose or not.46 In another case an upstream proprietor proposed to Duild a dam and operate a mill, but the adjacent downstream riparian owner had already constructed a dam and mill, and the impounded water and overflow substantially diminished the value of the dam site of the upland owner. So the upland owner brought suit, asking the court to order the dam of the lower proprietor removed. The court de- clined, saying to the plaintiff-in substance and effect-the lower proprietor built his dam first and it did not unreasonably interfere with anyone's use, and so you cannot come along now and say^ that it interferes with your proposed or intended use; if you had built your dam first you would be protected against a subsequent dam by your downstream neighbor which damaged or impaired your use, but since you didn't, your present proposed use cannot impair his existing use.46 It will be noted that the effect of the above holding is akin to the appropriation doctrine of priority-in-time of initiating a water right, but courts in riparian jurisdictions do not talk in terms of pri- ority, or that first-in-time is first-in-right; but rather that it is un- reasonable under all of the facts of the particular case to allow a new use to impair or divest an existing use. Of course, an existing use which is continued for a sufficient length of time might create vested property rights in the user, even if the use is unreasonable or invades property rights of others. In Alabama a prescriptive easement may be acquired after 20 years of continuous use,47 and after 10 years of continuous possession and use there will be a presumption of right and title in favor of the pos- sessor and user.48 3.5 Storage Waters, Artificial Lakes, and Ponds With respect to impounding and storing water, the court has said that the riparian owner nearest the source (or highest on the watercourse) may erect any dam he pleases, so long as it does not unreasonably affect riparian owners situated on the lower reaches of the stream.49 And further, that a riparian owner may maintain a dam across a natural stream for any reasonable purpose, but that he cannot detain or impound water in such a manner as to overflow or flood lands of others.50 A dam will have some effect on others, but it is within the reach of the riparian right so long as such effect is in Ulbricht v. Eufaula Water Go., 86 Ala. 587, 6 So. 78 (1888). « Hendrick v. Johnson, 6 Port. 472 (Ala. 1838). « Stein v. Burden, 24 Ala. 130 (1854). « Alabama Consol. Goal c6 Iron Go. v. Turner, 145 Ala. 639, 39 So. 603 (1905). 49 Hendrick v. Johnson, 6 Port. 472 (Ala. 1838). 60 Gulf States Steel Co. v. Law, 224 Ala. 667, 141 So. 641 (1932). |
