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Show MAINE 367 right to divert, or a title to some exclusive enjoyment. He has no property in the water itself but a simple usufruct while it passes along. This right to use, however, necessarily implies a right to exercise a degree of control over it, and even, to some extent, to diminish its volume. Thus he may apply it to domestic purposes or purposes of irrigation, but not to such an extent as unreasonably to diminish its quantity. He may apply it to purposes of manu- facture, or the arts, but may not, in so doing, corrupt it and so injure its quality as to render it unfit for use by other proprietors below. He may use it for hydraulic purposes, but may not unreasonably retard its natural flow, or injuriously accelerate its motion, by discharging it from his works in an unreasonable manner, nor suddenly and in excessive quantities, nor divert it from its accustomed channel without returning'it to the same before it passes from his own premises to those of others. Within these general limitations he may make any practicable use of streams of running water, so far as proprietors below are concerned, and incur no legal liability. The use in all these cases must be a reasonable one.88 What is reasonable depends upon the facts and circumstances sur- rounding the individual stream, taking into account such items as the size, characterj and general nature of the stream itself.39 The limitation on the right of a riparian owner runs upstream as well as downstream. For example, a lower riparian cannot dam the watercourse and back up the water to such an extent that it impairs the flow of the stream and thus destroys its use for an upper ripar- ian.40 Likewise, an upper riparian cannot unreasonably diminish the flow by obstruction or diversion, or alter the channel in such a manner that lower riparian rights would be substantially impaired.41 Since the riparian right is appurtenant to the lands which border the watercourse, water cannot be diverted by a riparian owner and used on non-riparian lands.42 A diversion of water by a riparian pro- prietor for a non-riparian use is an invasion of other riparian rights, even though there was no actual damage at the time the diversion took place.48 Continued use of the water is not requisite to the continued exist- ence of the right. In other words, a riparian right is not lost by its mere non-use.44 Further, there are no priorities among riparian own- ers. But it appears that if one owner has established his use, and if his use is reasonable, he then has an advantage over other riparian owners who may wish to initiate a use which would impair or damage his existing right. While it is said that the riparian right extends to quality as well as quantity, an upper riparian owner can deteriorate the quality to some extent by his own reasonable use of the water; but if his action in reducing the quality of the water is of such a magnitude that it as Davis v. Getchell, 50 Maine 602 (1862). a» Davis v. Getchell, 50 Maine 602 (1862). *°Heath v. Williams, 25 Maine 209 (1845), Pillsoury v. Moore, 44 Maine 154, (1857). «• Davis v. Getchell, 50 Maine 602 (1862) : Lockwood Co. v. Lawrence, 77 Maine 297 (1885) ; Card v. Nickerson, 150 Maine 89, 104 A. 2d 427 (1954). ^ Water District v. Maine Turnpike Authority, 145 Maine 35, 71 A. 2d 5i20 (1950) ; Stanton v. Trustees of St. Joseph's College, 254 A. 2d 597 (1969) ; In the Stanton case, the court enjoined the discharge of treated domestic sewage into a stream on the grounds that the discharge was by a non-riparian owner, even though the discharge was licensed by the State pollution agency. Apparently in an attempt to avoid some of the potential problems created by the decision, the Maine Legislature enacted a statute which provides that a riparian owner does not have a cause of action against a non- riparian owner who discharges wastes into a stream if the discharge has been properly licensed by the pollution control agency unless the discharge causes the stream to fall below Its statutory classification or causes actual damage to a riparian owner: 38 M.R.S.A. Sec. 415. *»Id. ** Pillsoury v. Moore, 44 Maine 154 (1857). |