OCR Text |
Show 646 PENNSYLVANIA only to such water quality deterioration as inevitably results from reasonable upstream uses.62 But the rule then must be qualified further. Thus, there might be a public or community interest in certain activities and enterprises, such as mining operations to develop the natural resources of the State. In such an event, the riparian owner's interest in water quality must give way to the superior economic interest of the public, even though polluted waters from the mining operations damage lower riparian owners.63 Of course, these cases relate only to common law rules ap- plied between riparians, and it must be emphasized that the water quality controls implemented by the Clean Streams Act, as adminis- tered by the department of environmental resources and as discussed in section 2.3, supra, make it unlawful to pollute any waters of the State64 and require that permits be obtained before discharging wastes into waters.65 As a final note on the nature and limits of the riparian right, it is often said (although again subject to a number of exceptions) that water may only be used on riparian land, and can neither be sold for nonriparian uses nor diverted or consumed for purposes not reasonably connected with the riparian land.66 If the foregoing discussion demonstrates nothing else, it should illustrate the difficulty experienced by the courts in framing consis- tent rules to be used as guides in resolving conflicts between riparians, and it should underscore the reason why the courts repeatedly have emphasized that each case must be determined with respect to its own peculiar facts and circumstances. 3.3 Changes, Sales, and Transfers It has already been said that riparian owners do not have owner- ship of the waters passing through their lands, and it therefore follows that they have no right to divert water and sell it to others for uses not related to their riparian land.67 However, a riparian owner can grant by deed the right to use water in the same manner or for the same purpose that he could use it himself.68 To illustrate, while a riparian right to use water is sold or pur- chased when the riparian land is sold or purchased, a person (or a water company) who acquires riparian land acquires only the rights of a riparian landowner, and does not acquire any right to use water for other purposes merely by purchasing a parcel of riparian land.69 The purchaser of lands not riparian to a stream does not acquire any water rights merely by virtue of the fact that the prior owner could 62 See Howell v. McCoy, 3 Rowle, 256 (1832) ; McCallum v. Germantown Water Co., 54 Pa. 40, 93 Am. Dec. 656 (1867) ; and Daniels v. Bethlehem Mines Corp., 391 Pa. 195, 137 A. 2d 304 (1958). 83 Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 Atl. 453 (1886) ; Long v. Trexler, 8 Atl. 620. 5 Sadler, 456 (1887) ; and Bumoarger v. Walker, 393 Pa. 143, 142 A. 2d 171 (1958). 64 35 P.S. sec. 691.401. 85 See discussion of waste discharge permits in sec. 3.2.b, supra. 66 Irvingg's Executors v. Burgess and Town Council of Borogh of Media, 10 Pa. Sup. 132 (1899). 67Philadelphia and Beading Railroad Co. v. Pottsville Water Co., 182 Pa. 418, 38 Atl. 404 (1897). *«Woodring v. Hollenoach, 202 Pa. 65, 51 Atl. 318 (1902). 89Pennsylvania Railroad Co. v. Miller, 112 Pa. 34, 3 Atl. 78 (1886). |