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Show 596 ohio of the water, but, rather, it is a usufructuary right or a right to use the water.31 With respect to the nature and limit of the riparian right, the Ohio court has adopted the rule of reasonable use for all uses of water except domestic purposes.32 The primary right and pre- ferred use of water among riparians is for domestic purposes with all other uses being secondary. As a result, the use of water by a lower riparian for secondary purposes is always subject to the superior right of all upper riparians to use the quantity of water necessary for domestic purposes.33 Further, the lower riparian is servient to future domestic uses by upper riparians. If the upper riparian domestic uses become so numerous that most or all of the water is consumed, a lower riparian owner may not complain about a diminution of water for secondary uses, since the growth and development of the country is to be reasonably expected.34 This preferred status of domestic uses takes on an added dimension in Ohio, since the court has ruled that an incorporated municipality situated on a natural stream is a riparian proprietor and may supply water to all of its inhabitants.35 This right to supply all of the inhabitants of a municipality as though each of the inhabitants were riparian owners is contrary to the position adopted by most other States and it greatly expands the scope of riparian domestic uses. The Ohio court has ruled that a municipality's right to supply and use water for domestic purposes includes not only the customary household and stockwatering uses, but also fire protection, street cleaning and other public uses.36 It appears that the only limitation on the riparian's right to use water for domestic purposes is that the waters not be wasted and that any unused water must be returned to the stream.37 Thus, as a practical matter, in highly populated areas the measure and extent of a riparian owner's right depends upon his location on the stream. Subject to the superior use of water for domestic purposes, every riparian owner is entitled to make a reasonable use of the water in a stream as it flows through his property. But the use by one riparian cannot result in such a substantial and material diminu- tion or alteration of the flow of the stream that it prejudices the use by other riparian owners.38 What is a "reasonable" use of water is a question of fact to be determined from the facts and specific cir- cumstances of each case.39 There are no precise or absolute standards by which the reasonableness of a particular use will be judged, but the Ohio court has stated that in determining what is reasonable the trial court should evaluate such items as the needs of other « Akron Oanal & Hydraulic Oo. v. Fontaine, 72 Ohio App. 93, 50 N.E. 2d 897 (1943). ™City of Oanton v. Shock, 66 Ohio St. 19, 63 N.E. 600 (1902). «3 Id. 8* Id. as Id. said. 87 Callahan, Charles C, Principles of Water Rights Law in Ohio, State of Ohio, Depart- ment of Natural Resources, Division of Water (1957). 88Akron Oanal & Hydraulic Go. v. Fontaine, 72 Ohio App. 93, 50 N.E. 2d 897 (1943). *>City of Canton v. Shock, 66 Ohio St. 19, 63 N.E. 600 (1902). |