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Show TENNESSEE 695 encourages and assists in the construction of the dam, he is subse- quently estopped to deny the right of the owner of the dam to flood his property.84 Even though a substantial interference with the flow of a stream is illegal, the Tennessee court has adopted the "balancing of con- veniences" rule and restricted the relief available to the injured riparian owner to damages rather than injunctive relief.35 D. RELATION OF LAND TO WATER As noted earlier, the right to use water under the riparian doc- trine is an incident of ownership of land abutting a stream, and a conveyance of the real property carries the riparian water rights with it. In one early case, it was held that the conveyance of a mill carried with it all the easements and appurtenances necessary to its operation, and that the grantor had no right to disturb the water supply for the mill.36 E. TYPES OF USE RECOGNIZED In discussing the nature and extent of the water right in the ripar- ian landowner, the Tennessee Supreme Court has stated that every riparian owner has the right to use the stream for domestic pur- poses, which also seems to encompass stockwatering. The court fur- ther stated that in addition to domestic use, if the flow of the stream was sufficient, water could be used for manufacturing or the irriga- tion of land.37 However, it does not appear that a case directly in- volving irrigation has ever been presented to the Tennessee Supreme Court. One early Tennessee case sustained the right of a municipal- ity to use waters of a stream.38 3.3 Changes, Sales, and Transfers Riparian water rights are normally transferred as an incident to the transfer of the real property on which the stream is located or borders. In one case it was stated that everything necessary to the enjoyment of a right passes with the conveyance of the right. There- fore, the right to use a dam passes with a conveyance of the land upon which the dam is located.39 The sale and conveyance of a part- owner's interest in a mill carries with it his interest in the water required to operate the mill as a necessary appurtenance.40 3.4 Loss of Bights Riparian rights are subject to loss by adverse possession and use. A tenant-in-common, in possession of land and a mill adverse to his cotenants, acquired the right to the mill and the land, and also the ^Heiskell v. Cooo, 58 Tenn. 638 (1889). ^Talley v. Baker, 3 Tenn. app. 321 (1926) ; Hurley v. American Enka Corp., 93 F. eupp. 98 (E.D. Tenn. 1950). s»Oo<d v. Bovoell, 108 Tenn. 130, 65 S.W. 868 (1901) ; Wall & Go. v. Cloud, 22 Tenn. 181 (1842). *>Cox v. Howell, 108 Tenn. 130, 65 S.W. 868 (1901). 88 American Association, Inc. v. Eastern Kentucky Land Co., 2 Tenn. ch. app. 132 (1901). s*Wall d Co. v. Cloud, 22 Tenn. 181 (1842). *°Cox v. Howell, 108 Tenn. 130, 65 S.W. 868 (1901). |
