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Show ILLINOIS 285 Similarly, a riparian owner, in order to make a use of the water, may construct and operate a dam which obstructs the watercourse and detains a portion of the water. However, the owner of the dam is only entitled to his coequal right to the water and the operation of the dam cannot deprive another riparian proprietor of his reason- able use of the water.58 b. NATURE OF THE RIPARIAN RIGHT The property right acquired in water by virtue of ownership of riparian land is the right to use the water as it flows, commonly designated as a usufructuary right, rather than ownership of the corpus of the flowing stream.59 It has already been noted that riparian rights are coequal and no riparian owner can exercise his right in such a manner as to prevent the exercise of similar rights by other riparian owners;60 that the right of the riparian proprietor extends to quality as well as quantity and he is entitled to initiate action against a pollutor for injury to the right;61 and that a riparian owner is entitled to have the stream carry its "natural" volume of water, so that another cannot unreasonably increase the flow by discharging into the stream water that would not naturally be there.62 C. LIMITATIONS ON THE RIGHT The basic limitations on the exercise of riparian rights have been discussed in connection with reasonable use limitations, pointed out in the sections above. Beyond that, and by way of summary, it has been held that while an upper riparian owner may divert the water, he must return it to its accustomed channel before it leaves his property-it would be an unreasonable use of the water to divert it around lower riparian property;63 while a riparian owner is en- titled to make a relocation of a channel on his property, the new channel must have a capacity equal to the original one, and the stream must be returned to its natural channel before leaving his land;64 a riparian landowner is entitled to make a use of water by impounding it behind a dam, but he is not entitled to back the water onto and overflow the lands of another without obtaining the right to do so,65 and a permit from the State authorizing construction of the dam does not change the landowner's responsibility in this regard;66 but the owner of a dam can obtain the right to overflow the land of an- other by grant, or by prescriptive use.67 ^Bouris v. Largent. 94 111. App. 2d 251, 236 N.E. 2d 15 (1868) ; Fink v. Board of Trustees of Southern Illinois Univ., 71 111. App 2d 276, 218 N.E. 2d 240 (1966). 69 Evans v. Merriweather. 4 111. 492 (1842). ™Bouris v. Lament, 94 111. App. 2d 251. 236 N.E. 2d 15 (1968). ^Fenwick v. Bluebird Goal Co.. 12 111. App. 2d 464. 140 N.E. 2d 129 (1957); Tetherington v. Donk Brothers Goal Co.. 232 111. 522. 83 N.E. 1048 (1908). 82 Barrington Hills Country Club v. Village of Barrington, 357 111. 11, 191 N.E. 239 (1934). 63 Plumleigh v. Bawson, 6 111. 544 (1844) ; Canal Trustees v. Haven, 11 111. 554 (1850). «* Montgomery v. Downey, 17 111. 2d 451, 162 N.E. 2d 6 (1959). os Stout v. McAdams. 3 111. 67 (1839): Hill v. Ward, 7 111. 285 (1845); City of Gentralia v. Wright, 156 111. 561. 41 N.E. 217 (1895). "«Bruce v. Blanchard. 338 111. 211. 170 N.E. 260 (1930). «Hadden v. Shouts, 15 111. 581 (1854) ; Johnson v. Bea, 12 111. app. 331 (1882). |
