| OCR Text |
Show 124 ARKANSAS is not changed, and the new or modified channel has the capacity to carry the water.44 The Arkansas Supreme Court has ruled by way of limitation on riparian rights that a riparian owner cannot take water beyond the limits of the watershed and sell it commercially.45 C. RELATION OF LAND TO WATER Under the riparian theory of water rights, the right to use water is an incident of the ownership of land abutting a stream. As earlier noted, the Arkansas Supreme Court has stated that riparian rights inhere in the owner of the soil and are a part and parcel of the land itself.46 D. TYPES OF USE RECOGNIZED Under the reasonable use theory of riparian rights, the Arkansas Supreme Court has held that the use of water for domestic purposes is superior to other uses of water, and some of the secondary uses recognized are fishing, swimming, recreation, and irrigation.47 The court, in discussing the nature of the reasonable use theory, also in- dicated that it believed that future economic progress depended upon the utilization of the water resources of the State-taking particular note of water requirements for manufacturing purposes, although use of water for manufacturing has generally been a recognized use in those riparian States which have adopted the reasonable use theory. 3.3 Changes, Sales, and Transfers Since riparian rights are an incident of ownership of the soil abutting or across which a stream flows, such rights pass with trans- fer of the land.48 Where a deed to land abutting a nonnavigable stream specifically limited the grant to the low watermark, the court held that the grantee could not claim to the center of the stream, and that he was not a riparian owner.49 3.4 Loss of Rights A. ADVERSE USE It is generally recognized that riparian rights may be lost under the doctrine of adverse use. It appears that the Arkansas court has recognized that one riparian owner could acquire another's right if all the necessary elements were present to establish that the use was-in actual fact-adverse to other users. But in cases where this has been considered, the court has found that the party claiming such adverse right failed to meet his burden of proof.80 Further, the "Boone v. Wilson, 125 Ark. 364, 188 S.W. 1160 (1916) ; Solomon v. Gongleton, 245 Ark. 487, 432 S.W. 2d 865 (1968). « Harrell v. City of Oonway, 224 Ark. 100, 271 S.W. 2d 924 (1954). *« Meriwether Band & Gravel Go. v. State. 181 Ark. 216, 26 S.W. 2d 57 (1930) ; Harris v Brooks, 225 Ark. 436, 283 S.W. 2d 129 (1955). « Harris V. Brooks, 225 Ark. 436, 283 S.W. 2d 129 (1955). **Kilgo V. Cook, 174 Ark. 432, 295 S.W. 355 (1929). « McKee v. Gay, 226 Ark. 585, 293i S.W. 2d 4,50 (1956). bo Harrell v. City of Oonway, 224 Ark. 100, 271 S.W. 2d 924 (1954) ; Harris v. Brooks, 225 Ark. 436, 283 S.W. 2d 129 (1955). |
