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Show 342 KENTUCKY of water impounded in a dam from manufacturing to the generation of electric power.57 3.4 Loss of Bights In allowing a continued use of water for a State mental institu- tion and a continuing pollution of the stream to the injury of a lower riparian owner, the Kentucky court concluded that by acqui- escing in this use of water for over 15 years, the lower landowner was stopped from obtaining an injunction to stop or modify the upstream use.68 3.5 Storage Waters, Artificial Lakes, and Ponds A riparian owner has the right to construct a dam and impound water for his domestic or primary use; and most of the Kentucky decisions have involved use of water for secondary purposes, such as manufacturing, and here any storage or use must (be reasonable and must not cause injury to the rights of other riparian owners.59 As an aid to the construction of mills, Kentucky legislation allows a riparian owner to condemn across a stream to obtain the land neces- sary for the construction of a dam.60 Also, the Water Eesources Act, in defining the rights of riparian owners, expressly provides for the impoundment of water when the impoundment will not impair existing rights or will not unreasonably interfere with a beneficial use by other water users.61 3.6 Springs The owner of the land is entitled to use water from springs arising on his property for all natural purposes, such as those common to his farm, even if his uses consume all the water. And this is so even if the spring has previously flowed from his property and been used by others, but spring water in excess of the landowner's reasonable uses which flows from his property may be used by others.62 In protecting the landowner's right to spring water, the source of supply is important. When the source of the spring is a definite underground stream, it will be protected from impairment by actions of an adjoining landowner interfering with the source of supply. But if the source of supply is percolating water, the owner of adjoining land is not liable for interference with the spring if he is putting his land to a legitimate use.63 The right to use a spring may be acquired by adverse possession if there is an open, notorious, uninterrupted use of the water under a claim of right for the prescriptive period.6* 3.7 Diffused Surface Water Diffused surface water is defined in Kentucky by both court deci- sion and statute as water which comes from rain or melting snow w Kentucky Electric Development Go.'s Receiver v. Wells. 256 Ky. 203. 75 S W 2d 1088 (1934). 68 Herr v. Central Kentucky Lunatio Asylum, 110 Ky. 282, 61 S.W. 283 (1901) • also see Stephen v. Kentucky Valley Distilling Co., 275 Ky. 705, 122 S.W. 2d 493 (1938). ' 69 Anderson v. Cincinnati Southern Railway, 86 Ky. 44, 5 S.W. 49 (1887) • Kino v Board of Council of City of Danville, 128 Ky. 321,107 S.W. 1189 (1908). 60 Ky. Rev. Stat., sees. 182.010 to 182.990; also see Smith v. Collins, 199 Ky. 770, 251 S.W. 979 (1923). 61 Ky. Rev. Stat., sec. 151.210. 62 Redman v. Forman, 83 Ky. 214 (1885) ; McCollum v. Hicks, 262 S.W. 2d 816 (1953) ^Nourse v. Andrews, 200 Ky. 467, 255 S.W. 84 (1923) ; Commonwealth v. Sebastian 345 S.W. 2d 46 (1961) ; Associated Contr. Stone Co. v. Pewee Val. San. & Hosv 376 S.W. 2d 316 (1964). M Gentry v. Piercu. 175 Ky. 174,193 S.W. 1017 (1917). |
