| OCR Text |
Show MINNESOTA 415 rights, since a remedy for their infringement is available." 41 Even though a private "remedy" does exist to settle disputes between per- mittees and between permittees and riparians, in that the courts afford a forum, no one seems to know exactly what rules of substan- tive law govern the rights of the parties. These questions will even- tually arise as there becomes a greater competition for use of water. and they will be exceedingly difficult to answer.42 The statutes contain a few miscellaneous provisions which to some extent affect the nature of rights acquired under water permits. The permit is required to specify the time within which the construction or the diversion shall be completed, which in no event shall exceed 5 years from the date of the permit.43 In both 1965 and 1969, the section dealing with the granting of permits was amended to require permit- tees to keep records of the quantity of water they use or appropriate. The commissioner may require a permittee to install a flow meter for measuring the amount of water used,44 or the commissioner, at his option, may authorize the installation of a timing device which re- cords the time intervals when water is being used m lieu of requiring a flow meter. Monthly meter readings and timing device records as well as the total amount of water used are required to be reported to the commissioner annually before January 15th. One amendment pro- vided that the owner of any "installation" for appropriating or using either surface or ground water must file with the commissioner not later than January 1,1966, a statement showing its location, capacity, and the purposes for which it is used.45 No specific penalty is pro- vided for failure to report, and presumably the section was adopted to check on water users who were appropriating water without permits. B. RIPARIAN AND LITTORAL RIGHTS Although the Minnesota permit statute preserves riparian rights in existence on July 1, 1937, there is some disagreement, previously noted, as to whether the statute extinguishes unused riparian rights. The "reasonable use" rule, utilized to resolve conflicts between ripar- ian owners, became firmly established in Minnesota water law as early as 1883. The State supreme court described the rule as follows:46 His [riparian owner's] enjoyment must necessarily be according to his opportunities, prior to those below him, and subsequent to those above him, and liable to be modified or abrogated by the reasonable use of the stream by others. Where the use of the stream by one riparian interferes with the reasonable use by a lower riparian owner, to his injury,47 by the inter- ruption, diversion, abstraction, or pollution of the water, the burden of proof is on the former to show that his use is in fact reasonable.48 What is "reasonable" is a question of fact. It is virtually impossible 41 See State v. Kuluvar, 266 Minn. 408, 123 N.W. 2d 699, 706 (1963). 42 Of. Wasserourger v. Coffee, 180 Neb. 149, 141 N.W. 2d 738 (1966) codified in part in 180 Neb. 569, 144 N.W. 2d 209 (1966). « Sec. 105.46. "Sec. 105.41(2). « Sec. 105.41(2). «30 Minn. 249, 15 N.W. 167 (1883). *7 Pinney v. Lucey, 44 Minn. 367, 46 N.W. 561 (1890), denied relief where the riparian could show no damage. « 30 Minn. 249, 15 N.W. 167 (1883). |
