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Show 388 MASSACHUSETTS! is silent with respect to water use or water rights, the water right is transferred as part of the riparian land.44 3.2 Nature and Limit of Bights Although the Massachusetts court has made some general state- ments to the effect that every riparian proprietor is entitled to the natural and customary flow of a watercourse, without obstruction or change, it appears that Massachusetts has adopted the rule of reason- able use, which allows every riparian proprietor to make a reasonable use of the available water supply.45 Under this rule, every riparian owner may interrupt, change or diminish the natural flow of the stream, but only to the extent necessary and unavoidable to make a reasonable and proper use of the water.46 What is a "reasonable use" is a question of fact to be determined under the particular circumstances of each case, taking into account the size and nature of the stream, the adaptability of the stream to different modes of use, the needs and conditions attending lower riparians, and also the general wants and customs of the community.47 The right of the riparian owner extends to any artificial improve- ments which enhance the normal flow of the stream.48 The Massa- chusetts Court has stated that: As each proprietor through whose land a watercourse passes has a right to the natural flow and descent of a watercourse, subject to a like reasonable use by all others, he necessarily enjoys the benefit of any improvements made by the proprietors above him. If they increase the headwater® for useful purposes, by flowing increased areas of land, and by making reservoirs to preserve surplus waters for dry seasons, and thus increase the volume of water for hydraulic purposes, every lower proprietor necessarily enjoys the benefit of it.10 However, any increased volume in the stream may only be enjoyed by a lower proprietor as long as the upper user continues his pro- gram. The lower proprietor has no permanent right to require an upper user to maintain a particular practice for his benefit.50 Subject to the reasonable use limitation, it appears that water can be used for virtually any purpose, and no purpose or use appears to have preference or priority over other uses. The right to use water for domestic purposes, livestock watering, irrigation and mill opera- tion for industrial and manufacturing purposes has been recognized and approved by the Massachusetts court.61 As noted earlier, the riparian right extends to quality as well as quantity, and a riparian owner has no right to unreasonably pollute the waters of a watercourse. A lower riparian may enjoin another riparian owner from the continued pollution of a stream and may recover damages for past injury to property caused from pollution.52 <* Sawyer v. Shader, 321 Mass. 725, 75 N.E. 2d 647 (1947). « Mason v. Whitney, 193 Mass. 152, 78 N.E. 881 (1906). i6Ware v. Allen, 140 Mass. 513, 5 N.E. 629 (1886) ; Stratton v. Mt. Herman Boys' School, 216 Mass. 83, 103 N.E. 87 (1913). "Mason v. Whitney, 193 Mass. 152, 78 N.E. 881 (1906); Stratton v. Mt. Herman Boys' School, 216 Mass. 83, 103 N.E. 87 (1913) ; Tourtellot v. Phelps, 70 Mass. 370 (1855). *» Mason v. Whitney, 193 Mass. 152, 78 N.E. 881 (1906). <° Tourtellot v. Phelps, 70 Mass. 370, 376 (1855). «> Mason v. Whitney, 193 Mass. 152, 78 N.E. 881 (1906). « Elliott v. Fitchourg Railroad Co., 64 Mass. 191 (1852). «¦ Parker v. American Woolen Co., 195 Mass. 591, 81 N.E. 468 (1907). |
