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Show 340 KENTUCKY doctrine is the rule in Kentucky, stated that the distinction between the two theories is a narrow one, and the court in fact seems to have applied elements of both theories in resolving water user dis- putes.85 b. EXERCISE OP THE RIGHT The court has said that water may be withdrawn from a stream by ordinary means or by artificial channels; a riparian owner may detain and use water by means of a dam, so long as the use is not unreasonable and does not injure the rights of lower riparian owners; and that it is the policy of the State to encourage the building of water mills.36 Although Kentucky has afforded some measure of statutory pro- tection to navigable waterways, any person who owns land on a watercourse is entitled to condemn sufficient land across the water- course to construct a mill or factory useful to the public.37 However, in storing water behind a dam, the owner is liable to the upper land- owner for damages caused by backing water upon another's land, unless a right has been acquired to do so. An easement to flood another's land can be acquired by prescription, and lost by abandon- ment.88 Before the owner of a dam will be held liable for injury to an- other caused by the waters from an extraordinary flood, it must be shown that he is guilty of negligence or some other wrongdoing in obstructing the channel.39 However, if a dam fails, even though as a result of an unusually heavy rainfall, the owner of the dam is liable for the resulting damages to lower landowners from the flood- ing of their property.40 A landowner may not release stored water in greater than normal quantities and thereby damage the property of a lower landowner.41 As a somewhat related matter, when a railroad maintains culverts or bridges along its right-of-way to permit a stream to pass, it has a duty to keep these openings sufficiently clear of debris to allow the passage of the ordinary flow of water.42 Also, if a landowner reroutes a stream or changes it in some manner which results in water being cast upon a lower landowner's property in a larger quantity than natural, he is liable for the damage caused to lower lands.43 As mentioned earlier, the right of every riparian owner to use and enjoy a stream extends to quality as well as quantity; and a landowner is entitled to both damages and injunctive relief when his land is damaged because of pollutants discharged into a stream by an upper landowner.44 85 Comment, Irrigation in Kentucky as Affected by the Law of Riparian Rights, 40 Ky. L.J. 423 (1952). 38 Anderson v. Cincinnati Southern Railway, 86 Ky. 44, 5 S.W. 49 (1887) ; King v. Board of Council of City of Danville, 128 Ky. 321.107 S.W. 1189 (1908). ST Ky. Rev. Stat., sees. 182.010 to 182.990; also see Smith v. Collins, 199 Ky. 770, 251 S.W. 979 (1923). 38 City of Harrodsourg v. Cunningham, 299 Ky. 193, 184 S.W. 2d 357 (1944). 88 Kentucky Electric Development Co.'s Receiver v. Wells, 256 Ky. 203, 75 S.W. 2d 1088 (1934). *» Winchester Water Works Co. v. Holliday, 241 Ky. 762, 45 S.W. 2d 9 (1931). «¦ Banks v. Frazier, 111 Ky. 909, 64 S.W. 983 (1901). 42 Chesapeake & O. Ry. Co. v. Saulsoerry, 262 Ky. 31, 88 S.W. 2d 949 (1935). ^Inland Steel Co. v. Isaacs, 283 Ky. 770, 143 S.W. 2d 503 (1940) ; Land Development, Inc. v. Louisville Gas and Electric Co., 459 S.W. 2d 150 (1970). u Anderson v. Cincinnati Southern Railway, 86 Ky. 44, 5 S.W. 49 (1887); West Kentucky Coal Co. v. Rudd, 328 S.W. 2d 156 (1959). |
