| OCR Text |
Show LOUISIANA 353 He through whose estate water runs, whether it originates there or passes from lands above, may make use of it, while it runs over his lands; but he can not stop or give it another direction, and is bound to return it to its ordinary channel, where it leaves his estate. Under article 661, the right to use water seems to be limited to riparian owners; there is no particular indication that irrigation has any special preference over the use of water "for other purposes;" and the section is silent as to the amount of water which may in fact be used by a riparian owner. Moreover, it appears to be an open question as to whether the article applies to nonnavigable as well as navigable streams. It should also be noted that the rights granted to riparian owners are qualified by other code provisions. The riparian owner may not transfer his right to use the water to owners of nonriparian land,29 and it is possible that he may not use it on nonriparian land which he may acquire.30 In addition, there are extensive regulations relating to water pollution.31 The second paragraph of article 661 is implemented by section 38: 218 of the revised statutes, which provides that "no person diverting or impeding the course of water" from a natural drain shall fail to return the water to its natural course before it leaves his estate with- out any undue retardation of the flow of water outside his enclosure thereby injuring an adjacent estate." Fines are provided for violation of this section. Article 14, section 30, of the Louisiana constitution also guarantees to riparian owners on navigable rivers, lakes, or streams within municipalities with a population over 5,000 the right to erect such wharves, buildings, or improvements as may be necessary for com- merce, navigation, or other public purposes. Such improvements are subject to expropriation, however, upon payment of just compensa- tion where they may be erected only upon consent of the appropriate governing authorities. Article 661 does not clearly require the adoption of either the "natural flow" or "reasonable use" theories of riparian rights recog- nized in the common law jurisdictions. One writer 32 points to the case of Long v. Louisiana Greosoting Co.,33 decided in 1915, as prob- ably adopting the reasonable use approach, in water pollution cases at least. There, the court, without citing cases from other states, simply said: The question * * * whether a use that pollutes a water course is a reasonable or an unreasonable use is for the judge or jury to determine from all of the circumstances of a case, including the nature of the water course, its adapta- bility for particular purposes, the extent of injury caused to the lower riparian owner, etc. Although article 661 establishes a riparian system of water rights for the entire State, one writer34 has suggested that the importance of the system has been diminished considerably by statutes which authorize the creation of public corporations which have the exclu- sive control over the distribution of water within their territorial » Civil code, arts. 652, 653, 654. 80 Civil code, art. 777, may apply. 81 See sec. 2.2.2, infra. » Comment, 29 Tulane L. Rev. 554, 563 (1955). 83 137 La. 861, 69 So. 281, 282 (1915). 84 Comment, 16 La. L. Rev. 500, 509-10 (1956). See also the discussion of the case of Nicholson v. Holloway Planting Co., section 3.7, infra. |
