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Show NEW YORK 543 3. Surface Waters 3.1 Method of Acquiring Rights In every riparian rights jurisdiction, a person may purchase a tract of riparian land and thereby acquire and enjoy all of the water use privileges in a surface watercourse which the seller could have enjoyed. But, as will be seen in the next section of this chapter, New York law is somewhat uncertain with respect to the nature and extent of permissible riparian uses and also with respect to the criteria by which riparian land is to be measured. It is clear, how- ever, that some use privileges may be acquired from a riparian short of purchasing his riparian land, and those possibilities are discussed in section 3.3, infra, dealing with water right sales and transfers. With respect to diffused surface water, a landowner upon whose land such water is found may capture it and thereby acquire the right to use it, without "reasonable use" restrictions, but must exercise some care in discharging it after use.114 Similarly, a landowner may withdraw and use percolating ground water from beneath his land, as incident to the ownership of such property.115 But the most interesting and intriguing way to initiate a water use (as distinguished from "right") in New York would seem to be to just go out and do it, relying on the harmless use statute to protect the use if it does not cause harm to others. That statute is discussed in some detail in the next section of this chapter, and for the present it simply need be observed that it provides that water uses, whether "on or off riparian land" and whether drawing water from "on or below the surface of the earth," are "reasonable and lawful" if riparian owners and others suffer no harm therefrom.116 Another section of the statute provides that such uses will not cause the prescriptive period to begin to run against other riparian owners unless harm is caused as a result of the water use, and, more sig- nificantly, that even if harm is caused the statute does not begin to run unless such harm is "unreasonable." 117 Of course, a water user who is not a riparian may not commit physical trespass upon lands of another to get to the watercourse, but he might contract for a right-of-way or purchase an access ease- ment and then initiate a water use. There is nothing in the statute which suggests that any such use would be as a matter of right, but only that it cannot be enjoined by others, nor can damages be awarded, unless harm is caused to them. If harm is caused, then, of course, such use may be enjoined and damages awarded. It is not known to what extent private nonriparians have instituted uses under this statute in reliance upon its protective provisions. Eights to make certain nonconsumptive uses of water are acquired through administrative processes, such as waste assimilation (pollu- tion) permits and licenses for the generation of hydroelectric 114 See sec. 3.7, infra. 115 See sec. 4, Infra. n«ECL sec. 15-0701. 117 ECL sec. 15-0701.4. |