OCR Text |
Show 368 MAINE substantially impairs lower rights, it is then actionable by a lower owner.45 As a general matter, the riparian landowner complaining of dam- age to his right has the burden of demonstrating that the action of another did, in fact, harm him, before he will be entitled to recover damages or obtain injunctive relief.46 Within the framework of the reasonable use rules, it appears that a riparian landowner is allowed to use water for virtually any pur- pose so long as the method of use is reasonable. Some of the purposes recognized by the Main Court include domestic, irrigation, indus- trial, and manufacturing uses.47 3.3 Changes, Sales, and Transfers While the sale and transfer of riparian rights usually takes place as an incident of the transfer of rapirian land, it is possible to trans- fer the water right independently of the real property. In other words, a riparian owner can sever his riparian water right and trans- fer it to another party.48 Of course, the purchaser cannot exceed the right of the grantor, and is thus subject to reasonable use limitations. If a right is sought for a nonriparian use, the right must be acquired from all who would be affected by the purchase-or by the condem- nation if for a public water supply-otherwise, it will not constitute a limitation on their rights.49 In conveying his riparian right, the owner may convey only a part of it, or he may convey it subject to conditions and restrictions.50 Even though a conditional grant can be made, any limitation on the grantee's use must be clear from the language used in the deed; otherwise, the water may be used for purposes other than those recited in the deed.51 Riparian rights may be transferred involuntarily through doctrines of prescription and adverse possession,52 and, for public purposes, under the power of eminent domain.53 3.4 Loss of Bights Riparian rights are not subject to forfeiture, nor are they otherwise lost by the mere nonuse of water. In order to prove abandonment of a water right it is necessary to show an intent to abandon.54 However, the Maine Court has announced that where there has been an unin- terrupted adverse use, under claim of right, for the requisite period of time, then a right may be lost to another under the doctrine of 45 Lockwood Co. v. Lawrence, 77 Maine 297 (1885). 46 Lockwood Co. v. Lawrence, 77 Maine 297 (1885). "Davis v. Oetchell, 50 Maine 602 (1862) ; Lockwood Co. v. Lawrence, 77 Maine 297 (1885). *s Water District v. Maine Turnpike Authority, 145 Me. 35, 71 A. 2d 520 (1950) ; Kennebunk et al. Water Dist. v. Maine Turnpike, 147 Maine 149, 84 A. 2d 433 (1951). 49 Id. 60 Butman v. Hussey, 12 Maine 407 (1835). B1Hines v. RoUnson, 57 Maine 324 (1869). 62 Lockwood Co. v. Lawrence, 77 Maine 297 (1885) ; Crosby v. Bessey, 49 Maine 539 (1860). 63 Water District v. Maine Turnpike Authority, 145 Maine 35, 71 A. 2d 520 (1950) ; Kennebunk et al. Water Dist. v. Maine Turnpike, 147 Me. 149, 84 A. 2d 422 (1951). B* Pillsbury v. Moore, 44 Maine 154 (1857). |