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Show DELAWARE 197 questions with respect to whether riparian water rights could be used on nonriparian land, or on lands located beyond the watershed, in the event of such a transfer. But, again, perhaps this speculation is not too important, because the 1966 statute seems to have terminated unused riparian rights, and now requires that water uses be subject to permits, as already discussed. Water use rights derived from permits may be transferred pur- suant to application for transfer filed with and approved by the commission,70 but unless and until a transfer permit is issued, the water use must be continued for the purpose described in the existing permit and at the same location specified in the permit.71 If the transfer involves a water use subject to the jurisdiction of the public service commission, then that agency must also approve the transfer.72 3.4 Loss of Rights Under common law principles, riparian rights are not subject to forfeiture for nonuse of the water, but it has already been seen that the 1966 act had the effect of extinguishing riparian water rights not in use at that time, and requiring that subsequent uses be initiated only through permits. Section (b) of regulation 2.01 provides that "no right to the use of water can be acquired by adverse use or adverse possession." The application of this regulation is not clear. Under common law principles, riparian water rights could not be acquired by adverse use, unless title to the riparian land was concurrently acquired by adverse use, in which event the adverse user acquired title to both the land and the riparian water rights. It is very likely that this still would be the situation in Delaware, without regard to the ad- ministration regulation referred to above. However, if the regulation intends to focus on riparian water rights alone, as distinguished from title to the riparian land, then the only question would be whether the regulation has the legal effect of abolishing the common law doctrine of prescription in Delaware. That doctrine seems to be established in the case law,73 and arises when a water use by another is inconsistent with the rights and interests of the person whose right is prescribed, and when the inconsistent use continues in an adverse, open, notorious and con- tinuous manner for a period of twenty years or more. But the pre- scriptive right ordinarily is not viewed as an acquisition of the riparian water right of another, but simply as a right in the adverse user to continue a water use in a manner which otherwise would be unreasonable and harmful to the interests of the person who was adyersed. It is thus likely that prescriptive rights may still be ac- quired in Delaware, partly for the reason that the regulation might not have intended to abolish that doctrine, but primarily for the reason that administrative regulations cannot supplant existing law, unless there is a clear statutory basis for such action. 70 Reg. 201.g. 71 Id. "Id. **Delaney v. Boston, 2 Del. (Harr.) 489 (1839). |