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Show 644 PENNSYLVANIA interfere with other riparian owners in their corresponding right to make a reasonable use of the waters. While acquisition of riparian land is the basic means of obtaining water rights in Pennsylvania, the right to use the waters of a stream may be acquired by a nonriparian user, and a riparian user may acquire the right to use the waters of a stream in a manner incon- sistent with the riparian doctrine. Such rights might arise by pur- chase or grant, by prescription, or by condemnation.44 These methods of acquiring a right to use water will be more fully discussed in sections 3.3 and 3.4, infra. To the extent that permits are required as a condition precedent to acquiring water use rights for public water supply and public hydroelectric supply, reference is made to the earlier discussion in section 2.3.a. 3.2 Nature and Limit of Rights An owner through whose property a stream passes has no property in the water itself,45 but he does have a right to use the water, and this is a private property right which the courts will protect.48 This right has been characterized as an incorpreal hereditament, entitled to constitutional protection.47 The essence of the right is that each riparian owner on a stream may make a reasonable use of the water on his own property, but he must exercise that privilege so as not to invade the same rights of other riparian owners. Generally, the riparian owner may use only so much of the water in a stream and in such a manner, so as not to materially diminish its quantity or corrupt its quality,48 but, as will be seen, this is an oversimplification. It is impossible to state the criteria or considerations which will govern the outcome of a case where the court must determine the reasonableness of the use. These considerations vary from case to case, and each case is, as a practical matter, a law unto itself. Despite that cautionary observation against generalizations, some generali- zations will be advanced. Considerable importance is frequently attached to the size of the stream and the type of use being made of the water, although even a very small stream may be used and totally exhausted for the rea- sonable and ordinary domestic needs of a riparian owner.49 Domestic uses include not only household consumption, but also the watering of livestock, and a riparian owner may permit his cattle to drink all of the waters of a stream flowing upon his property.50 Presumably, such domestic uses are natural uses of the riparian land, and the measure of reasonableness is not a limit on the amount of water that may be taken, so long as it is for the personal use of the landowner (as dis- tinguished from commercial development which might extend "do- mestic" use to hotels or resorts). ** Palmer Water Go. v. Lehighton Water Supply Co., 280 Pa. 492, 124 Atl. 747 (1924). «Appeal of Heltman, 4 Walk. 35 (1882). 48 Appeal of Shenandoah Co., 2 W.N.C. 46 (1875). "Hough v. Boyleston Borough, 4 Brewst. 333 (1903). fWheatley v. Ghrisman, 24 Pa. 298, 64 Am. Dec. 657 (1855). «Brown v. Kistler, 190 Pa. 499, 42 Atl. 885 (1899). 60 Pennsylvania Railroad Go. v. Miller, 112 Pa. 34, 3 Atl. 780 (1886). |
