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NEW YORK 549 water for domestic and municipal purposes shall have priority over all other purposes." 149 These statutory provisions might well be inter- preted to apply only to the department of environmental conserva- tion and to subordinate units of government or public corporations which allocate water to various uses under the act. So far as priority in time of use is concerned, it must be observed that prescription serves to give prior rights to those whose uses have continued for 20 years or more prior to the time when other riparian owners develop inconsistent or conflicting uses. And this version of "priority" is what caused the confusion that prompted enactment of the harmless use statute. e. SOME REMAINING UNCERTAINTIES By their very nature, riparian rights are uncertain as to the per- missibility of a present use as well as insecure with respect to future conditions and developments which might alter the measure of reasonableness. Even if a riparian user prevails in litigation when his use is challenged by another riparian, the judgment settles the matter only as between them and is not binding on others who are not parties to the suit. Thus, another riparian could file suit at any time challenging the use as it affects him, and the court would be obliged to consider the new "facts and circumstances" of such case. One highly qualified expert on New York water law has offered the following summary: If a New York riparian owner asks his attorney how much water he could lawfully withdraw from a stream for irrigation, industrial use, or for some other worthy purpose, his attorney will probably feel constrained to tell him that he can use an amount which is reasonable under all the circumstances. Should the riparian owner inquire whether, having invested in equipment or structures necessary for his water-based activity, he might have to reduce the amount of his withdrawals if the number of riparians using the stream sub- sequently increases, his attorney will doubtless give him an affirmative answer. If the riparian owner should ask whether the amount he could lawfully take initially might be reduced in the future, despite a substantial investment by him, should it appear that due to changes in economic and social conditions, the public interest would be better served if he took less water and the other riparians took more, his attorney would probably again feel obligated to give a discouraging reply."0 The author of that quotation then goes on to defend some of those uncertainties on the ground that they provide a degree of flexibility which produces benefits that outweigh the disadvantages of the un- certainties,151 but suggests that a number of uncertainties should be clarified and resolved by legislation.152 Some of these will be noted briefly below. (1) Undesirable uncertainties As mentioned earlier, a "harmful use" bill was considered but not adopted by the New York legislature in 1968, introduced at the re- quest of the joint legislative committee on the conservation, develop- ment and equitable use of the water resources of the State.168 That i«ECL sec. 15-0105.5. mo w. Farnham, note 5, p. 27, at 406. 161 w. Farnham, note 5, p. 27, at 407 et seq. 162 \y, Farnham, note 5, p. 27, at 399 et seq. ""See note 2, p. 33. |
