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Show TENNESSEE 693 3. Surface Waters Surface waters of a watercourse are those waters which flow in well-defined streams, as opposed to diffused surface waters which flow in a diffused state over the land. When diffused surface waters enter the stream channel they lose their identity as diffused surface waters and become waters of a watercourse.19 3.1 Method of Acquiring Rights The right to use surface waters in a watercourse in Tennessee is governed by ownership of land. That is, under the riparian rights doctrine as announced by the Tennessee Supreme Court, the owner of land abutting a stream has a right to use the natural streamflow by reason of his ownership of the land. However, this right of use is limited and qualified by other riparian rights on the stream. Every riparian landowner has an equal right to have the stream flow across his land undiminished in quantity and unimpaired in quality, except for a reasonable use of the water from the stream for the ordinary and useful purposes of life by those riparian owners above him on the stream.20 3.2 Nature and Limit of Rights A. REASONABLE USE The Tennessee court has said that reasonable and permissible di- version or use of water depends on the purpose for which the diver- sion is made and any other relevant circumstances of the particular case; and that if the stream has sufficient water in excess of the needs of the various riparian owners for domestic and stockwatering pur- poses, such water may be used for other purposes, such as manufac- turing and irrigation, so long as the manner of use is proper and reasonable.21 However, a riparian owner may not drain a lake or stream, or substantially reduce the flow of the stream, over the ob- jection of other riparian owners.22 Further, with respect to the concept of reasonable use, the Tennes- see court has ruled that it is permissible for a riparian owner to divert and make a reasonable use of the water from the stream, but the water must be returned to the natural channel before it leaves the user's property, undiminished in flow and unimpaired in quality-except to the extent necessary as a result of the landowner's reasonable use.23 It is permissible to construct and operate a dam across the stream if it is not unreasonable in size and has no adverse effect on other riparian owners.24 However, the owner of the dam may not release abnormally large quantities of water upon the lands of a lower land- 19 Comment, Water Rights in Tennessee, 27 Term. Law Review 557 (1960). 20 Cox v. Howell, 108 Tenn. 130, 65 S.W. 868 (1901) ; American Association, Inc. v. Eastern Kentucky Land Co., 2 Tenn. ch. app. 132 (1901) decision affirmed by the Tennessee Supreme Court. 21 Id. ^Webster v. Harris, 111 Tenn. 668, 69 S.W. 782 (1902). 23 Webster v. Fleming, 21 Tenn. 518 (1841) ; Cox v. Howell, 108 Tenn. 130, 65 S.W. 868 (1901). 24 Miller v. State, 124 Tenn. 293, 137 S.W. 760 (1911) ; Tallahassee Power Co. v. Clark, 77 F. 2d 601 (6th Cir. 1942). |
