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Show NEW YORK 547 watercourse or lake situated in this State and either on or below the surface of the earth, effected by the use either on or off riparian land, withdrawal, im- poundment, or obstruction of the water in such watercourse or lake, or by the addition of water thereto, or by changes in the banks, bed, course or other physical characteristics of such watercourse or lake, is reasonable and lawful against any person, * * * having an interest in such watercourse or lake, un- less such alteration is causing harm to him or it, or would cause him or it immediate harm if and when begun. No action for nominal damages or for an injunction shall be maintainable because of such an alteration against any person or corporation, whether a riparian owner or not, on the ground that such alteration is an infringement of the plaintiff's private rights and privileges in the waters of, or with respect to, such watercourse or lake unless such alteration is causing plaintiff harm, or would cause him or it immediate harm if and when begun."9 It seems that the courts have not yet been called upon to rule on the constitutionality of this act, as to whether it unlawfully infringes on private riparian rights, but it is quite likely that the statue would be sustained since it so clearly prohibits only those actions which would be based on "harmless" grounds. Harm is defined to include any interference with a water use or with enjoyment of riparian land,140 or any decrease in the market value of riparian land.141 And there are further protections for riparian owners. These protections have to do with the old bugaboo of prescriptive rights. A prescriptive right is acquired after a period of 20 years continuous use, during which time the party whose rights are in- fringed could have taken action (including litigation) to stop the use. Since a prescriptive right cannot be acquired until the pre- scriptive period has run, it is obvious that no such right can be ac- quired if the prescriptive period does not start to run. In this regard, the statute provides: The cause of action essential to the initiation and creation of a prescriptive right or privilege against a private riparian owner to continue an alteration in the natural condition of such a watercourse or lake shall not be supplied by such an alteration until it shall have caused such riparian owner harm and then only if it is unreasonable.1** (Emphasis added.) The emphasized clause is particularly interesting. While only those actions which would attack harmless uses are barred by the act, the limitation on commencement of the prescriptive period ex- tends to harmful but reasonable uses, and the prescriptive period thus can begin to run only when the use is harmful and unreasonable. Stated another way, a riparian owner can bring suit against anyone whose water use is causing him harm, but if he fails to do so, pre- scriptive rights cannot be obtained against him if the harmful use was reasonable-but they can if the harmful use was unreasonable. A more pragmatic evaluation of this section of the statute seems to be that in the view of the legislature (whatever uncertainty the courts might have created between natural flow versus reasonable use rights), reasonable uses were lawful even though harmful to others, and harmful uses were unlawful only when unreasonable. However, if a private riparian owner wishes to contest the validity of 189 ECL sec. 15-0701.1. i«ECL sec. 15-0701.2.a. i« ECL sec. 15-0701.2.b. 142 ECL sec. 15-0701.4. 499-242-73------36 |
