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Show 554 NEW YORK parties would attempt to prove or disprove the maximum use of water which would have been reasonable on the riparian tract, taking into consideration its size, location, natural adaptation to water use, the number of conceivable uses to which the water might have been put, and the resulting consequences from hypothetical uses (such as discharge of the water back into the stream, or return flow from streamside consumptive uses such as irrigation). The difficulties in such litigation are apparent, and it perhaps is for these reasons that legislation has not yet been enacted in New York to legalize transfers of riparian privileges to harmful nonriparian uses. 3.4 Loss of Rights Kiparian rights are not dependent upon actual water diversion or use, and they continue in existence indefinitely for instream values and the prospect of future use.184 However, riparian rights which are exercised by placing the water to lawful use are valuable property rights entitled to constitutional protection,185 whereas it is not so clear that unused riparian rights are so protected against diminution, impairment, or extinction.186 Riparian rights may be lost or impaired in New York through continuous adverse use by another for the 20-year prescriptive pe- riod, although the extent of prescriptive rights has been drastically diminished by the harmless use law.187 As pointed out in sections 3.2.c, supra, the prescriptive period cannot begin to run against any riparian owner until that owner (1) is harmed by the use that is potentially prescriptive (2) the harm is unreasonable; and (3) the harm is reasonably noticeable. As a result, loss of riparian rights through prescription in New York has not been a significant matter since October 1, 1966, when the harmless use act became effective. 3.5 Storage Waters, Artificial Lakes, and Ponds Aside from collections of diffused surface water by landowners on their own lands, storage reservoirs and impoundments, whether on navigable or nonnavigable watercourses, are regulated and controlled by statute, as discussed in section 2.3, supra. It is there pointed out that there are some statutory exceptions for certain small impound- ments on watersheds smaller than 1 square mile, farm ponds, etc., but otherwise impoundments require that applications be filed with the department of environmental conservation and its approval be obtained before construction starts. In acting upon such applications, the department considers public navigation, instream values, safety of the structure, and other related factors.188 While the statutory provisions mentioned above largely preempt the effect of earlier case law, it might be noted that an impoundment on a watercourse is illegal if it unreasonably interferes with other riparian rights, either by withholding water or by altering stream- isi Townsend v. Bell, 62 Hun 306 (N.T. 1891) ; Oilsinger v. Saugertiea Water Co., 66 Hun 173 (N.Y.S. Ct. 1892), aff'd on opinion below, 142 N.Y. 633, 37 N.B. 566 (1894). I* Matter of Van Etten v. Oity of N.T., 226 N.Y. 483, 124 N.E. 201 (1919). 188 See discussion, W. Farnham, note 5, p. 27, at 423-24. 187 See discussion In sec. 3.2.C, supra. 188 See, generally, ECL sees. 15-0501 through 15-0515. |
