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Show 504 NEW JERSEY ceeded the right of reasonable use even though it had very little effect on the other riparian owners' use of the waters.81 A riparian owner may not divert and sell any of the water for use on nonriparian lands, and such a use may be enjoined by other riparian owners on the watercourse even though they have not suf- fered any actual damages by the diversion.82 The riparian owner is entitled to have his right protected as to quality as well as quantity.83 The nature of use which is causing the pollution, the steps taken to prevent the pollution and the effect of the pollution on the uses of other riparian landowners are all considered in determining whether or not the use is reasonable.84 The court has held that a riparian owner may bring an action against individual pollutors even though other persons are also responsible for a portion of the pollution.85 A person may make a nonconsumptive use or diversion of water for power or other purposes so long as he does not unreasonably inter- fere with the other riparian owners' use of the water.86 However, there is some question as to the extent of the riparian owner's right to retain and store waters in order to enhance his use. In one case, the court stated that a riparian owner is entitled to the natural and undiminished flow of a stream at all seasons of the year and that the right cannot be interfered with by an upstream dam.87 However, in that case, the reservoir completely stopped the flow of the stream during the dry season of the year and it is believed that the reason- able use rule applies to the storage of waters.88 3.3 Changes, Sales, and Transfers Water rights based on permits from the Water Policy and Supply Council cannot be transferred to a new owner except with the ap- proval of the Council.89 Riparian water rights are normally sold or transferred by the sale or transfer of lands contiguous to a watercourse. It is not clear in New Jersey whether or not a riparian water right may be severed from the riparian lands for use on other riparian lands, but it does not appear that a riparian right cannot be severed from the riparian land for transfer and use on nonriparian lands.90 3.4 Loss of Rights There are no provisions in the statutes for the loss of water rights based on a permit from the Water Policy and Supply Council. How- 81 McCord v. Big Brothers Movement, Inc., 120 N..T. Eq. 446, 185 Atl. 480 (1936). 82 McCarter v. Hudson County Water Co., 70 N.J. Eq. 695, 65 Atl. 489 (1906) ; Mai/or of Paterson v. East Jersey Water Co., 74 N.J. Eq. 49. 70 Atl. 472 (1908) ; Exton v. Glen Gardner Water Co., 3 N..T. Misc. 613, 129 Atl. 255 (1925). saHolsman v. Boiling Spring Bleaching Co., 14 N.J. Eq. 335 (1862). 84 Borough of Westville v. Whitney Home Builders Inc., 40 N.J. Super. 62, 122 A. 2d. 233 (1956). 85 Beach v. Sterling Iron & vine Co., 54 N.J. Eq. 65, 33 Atl. 286 (1895). MHigginsv. Flemihgton Water Co., 36 N.J. Eq. 538 (1883). 87 Cozy Lake Inc. v. Nyoda Girls' Camp, Inc., 99 N.J. Eq. 384, 131 Atl. 892 (1925). 88 Hanks, Eva Morreale, The Law of Water in New Jersey, p. I, 28 Rutgers L.R. 621 666 (1968). 86 Sec. 58:1-41. 90 McCarter v. Hudson County Water Co., 70 N.J. Eq. 695, 65 Atl. 489 (1906) ; Exton v. Glen Gardner Water Co., 3 N.J. Misc. 613, 129 Atl. 255 (1925). |
