OCR Text |
Show 740 VERMONT Use of water by a riparian owner on nonriparian lands is not unreasonable per se.46 Nonriparian use must be evaluated in light of the characteristics of the stream in order to determine if it is reasonable.47 Some specific activities have been found by the Vermont Court to be unreasonable. The flow of the stream may not be increased by pumping water from other sources into it and thus causing the stream to overflow and damage the lands of other riparian owners, but even here the conduct is not unreasonable per se, and liability depends upon reasonableness, which depends upon the facts and circumstances surrounding the use.48 Damming or diverting the stream in such a manner so as to cause a substantial diminution or irregularity of flow to lower riparians has been found to be unreason- able.49 Conversely, the owner of a downstream dam cannot operate it in such a manner so as to back up water and substantially impair the operation of an upper riparian owner's dam.50 As noted earlier, the riparian right extends to quality as well as quantity, and one riparian owner cannot cause a substantial diminu- tion in the quality of the water to the injury of another riparian landowner.51 As a general proposition the riparian owner whose right is im- paired by the unreasonable use of another riparian is entitled to recover for any damage suffered, and also may obtain an injunction against any further encroachment on or impairment of his right. However, the riparian owner claiming an impairment of his right must show that the act complained of damaged him.52 Subject to the reasonable use limitation, it appears that water can be used for virtually any purpose. The right to use water for domes- tic purposes and watering livestock has been repeatedly recognized by the Vermont court,53 and a number of cases have approved use of water for industrial and manufacturing purposes.54 3.3 Changes, Sales, and Transfers The sale and transfer of riparian water rights usually takes place as a part of the transfer of title to the riparian land, unless they have been previously severed or are reserved by the owner. The Vermont court has said that: It would seem to follow that if the right to take water from a spring or a stream is an interest in the land itself, that such right is grantable as a right in gross or appurtenant, and is assignable, descendable, and devisible; and such, we think, has always been the view entertained and practiced upon in this state.55 ** Lawrie v. Silsby, 82 Vt. 505, 74 Atl. 94 (1909). «Lawrie v. Silsby, 76 Vt. 240, 56 Atl. 1106 (1909). 48 Kasuba v. Graves, supra. "Ford v. Whitlock, 27 Vt. 265 (1855) ; Ohatfleld v. Wilson, SI Vt. 358 (1858). BORoyce v. Carpenter, 80 Vt. 37, 66 Atl. 888 (1907). 61 Kasuba x. Graves, supra. 62 Laicrie v. Silsby, 82 Vt. 505, 74 Atl. 94 (1909) ; Kasuba v. Graves, supra. » Chatfteld v. Wilson, 31 Vt. 358 (1858) ; Lawrie v. Silsby, 76 Vt. 240, 56 Atl. 1106 (1903). ** Snow v. Parsons, 28 Vt. 459 (1856) ; Kasuba v. Graves, supra. ™ Lawrie v. Silsby, 76 Vt. 240, 56 Atl. 1106 (1903). |