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Show 548 NEW YORK a reasonable but harmful use, or to test the reasonableness of a harmful use, the statute authorizes him to do so.143 A "harmful but reasonable" use bill was considered by the legis- lature in 1968,144 but apparently was never enacted into law. The basic effect of the bill would have been to legalize harmful uses if they were reasonable, and to require consideration of the public interest and public benefits in determining reasonableness.145 Ques- tions concerning the constitutionality of the bill would have been much more serious than those which might arise in connection with the harmless use statute, but it is likely that the courts would have sustained the harmful-but-reasonable use bill if it had been en- acted.146 d. SPECIFIC RIGHTS AND USES It has been suggested 147 that the following rights and privileges are illustrative but not inclusive of those which may be enjoyed by riparian owners in New York: (1) Ordinary use of water flowing in the watercourse; (2) the privilege of taking ice; (3) ownership of natural accretions which attach to riparian lands (and, presum- ably, relictions); (4) right to take sand and gravel from the stream or lake bed; (5) ownership of islands within the watercourse; (6) right to erect dams and piers bordering the watercourse; (7) right to haul and dry nets on the uplands; (8) right to construct seal walls for protection from tide and current; (9) right to access from upland to water for boating purposes; (10) right to use waterway in common with the public for navigation and transportation; and (11) right to fish in the waters adjacent to the riparian lands. The foregoing list is not only incomplete, but it perhaps is some- what confusing and misleading. Confusing because, with the excep- tion of the first two items listed, the question of the navigability of the watercourse is of controlling importance in determining both the relevance and the extent of the rights so listed. And misleading because many statutory controls, such as those relating to removing sand and gravel from stream beds and the erection of dams and piers (all as discussed in section 2.3, supra) restrict, and in many cases may prevent, the exercise of the "rights" enumerated. Of a more general nature, it might be noted that the cases in New York do not establish preferences in water use or priorities with respect to the dates when uses were initiated. So far as prefer- ences in use are concerned, however, it is clear that natural, ordinary, or domestic uses for the personal needs of the riparian owner, con- ducted on his own land, are almost always reasonable, and therefore legal. Other types of use do not always fare so well, and as a practical matter the former uses seem to be preferred over the latter. Further, by statutory pronouncement "due consideration shall be given to the relative importance of different uses"148 of water, and that "use of i« See BCL sec. 15-0701.7-8. "* N.T. Senate No. 882-A, assembly No. 1571-A (1968) ; and see W. Farnham, note 5, p. 27, at 389 et seq. i4s w. Farnham, note 5, p. 27, at 394 et seq. 148 W. Farnham, note 5, p. 27, at 396-98. 147 A Study of Selected Aspects of the Powers of New York State Over the Waters of the State, Cornell University Water Resources Center, at 26 (Pub. No. 10, Mar. 1966). "8ECL sec. 15-0105.4. |
