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Show 390 MASSACHUSETTS land.62 However, a riparian water right may be separated from the riparian land and sold or transferred independently of the land.83 3.4 Loss of Rights Riparian rights are not subject to forfeiture and the right is not lost by nonuse of the water by a riparian owner.64 However, the right of a riparian owner may be lost by adverse possession,65 but the evidence must clearly demonstrate an open, notorious, adverse use which existed continuously and without interruption throughout the prescriptive period.66 3.5 Storage Waters, Artifical Lakes, and Ponds A riparian owner is entitled to interrupt the flow of a watercourse and store water in order to enhance his use, but any storage and subsequent use is subject to the reasonable use limitation and statu- tory regulation.67 The Massachusetts statutes provide that a person may build and maintain a mill and a dam across any nonnavigable stream,68 but no dam or mill can be built which damages or destroys any mill or mill site above or below the proposed dam.69 A person must obtain approval from the commissioner of public works before he can begin to construct the dam or reservoir.70 Further, a statutory remedy is provided to compensate adjoining landowners for damages caused by backing waters onto their lands,71 and the statutes provide that no common law action exists for the recovery of damages caused by the construction, use or maintenance of a dam or mill where a remedy is provided by the act.72 The commissioner of public works is responsible for the safety of dams and reservoirs, and is to periodically inspect all dams and reservoirs in the State. An inspection may be requested by an interested party.73 If the commissioner determines that any dam or structure is unsafe, he orders the owner to either replace or repair the structure to make it safe.74 If the owner does not take the action ordered by the commissioner, the commissioner may have the dam removed or repaired and the owner is required to pay these costs.75 The commissioner is also responsible for the control of dams and obstructions in navigable waters, tide waters and the waters of great ponds.76 aa Sawyer v. Shader, 321 Mass. 725, 75 N.B. 2d 647 (1947). 83 Tourtellot v. Phelps, 70 Mass. 370 (1855) ; Whitney v. Wheeler Cotton Mills 151 Mass. 396, 24 N.B. 774 (1890). «* Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 24 N.E. 774 (1890). «b Tourtellot v. Phelps, 70 Mass. 370 (1885). M Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 24 N.E. 774 (1890). « Mason v. Whitney, 193 Mass. 152, 78 N.E. 881 (1906). 88 Ch. 253, sec. 1. 89 Ch. 253, sec. 2. to Ch. 253, sec. 44. « Ch. 253, sees. 4 to 18. w Ch. 253, sec. 19. «* Ch. 253, sec. 45. M Ch. 253, sec. 46. 75 Ch. 253, sees. 47 and 48. to See ch. 91. |
