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Show 750 VIRGINIA 3. Surface Waters By statute a surface watercourse is defined as "a natural channel having a well defined bed and banks and in which water flows when it normally does flow." 41 The court's definition is: A stream, or watercourse, consists of bed, banks and water, and to main- tain the right to a watercourse, it must be made to appear that the water necessarily flows in a certan direction, and by regular channel, with banks or sides, and having a substantial existence, but it need not be shown that the water flows continually, as it may be dry at times.42 3.1 Method of Acquiring Rights Riparian rights arise by virtue of ownership of land riparian to to the watercourse, and extend to that part of such land as is situ- ated within the natural watershed of the stream.43 However, riparian rights may be separated from the land, and it is thus possible for one to acquire such rights by purchase and deed or other form of grant and conveyance.44 If title to land is acquired by adverse pos- session, the water rights riparian thereto are also acquired.45 Riparian rights can be acquired by prescription if water is adversely, openly and continuously used for a period of 20 years.46 In addition, water rights can be acquired through eminent domain exercised for public water use purposes by the State and its political subdivisions, and by public service corporations.47 Parties constructing mill dams are entitled to utilize eniment domain procedures,45 as are private indi- viduals who, subject to certain conditions, need to acquire drainage rights on lands of others.49 3.2 Nature and Limit of Bights A. MEASURE OF RIGHTS The reasonable use measure of riparian rights, as applied in Vir- ginia, entitles each riparian to: * * * an equal right to the reasonable use of the water running in a natural course through or by his land for every useful purpose to which it can be applied, whether domestic, agricultural or manufacturing, providing it con- *lSec. 62.1-104(4). ^Heninger v. McGinnis, 131 Va. 70, 108 S.E. 671 (1921). « Town of Gordonsville v. Zinn, 129 Va. 542, 106 S.E. 508 (1921). uThurston v. City of Portsmouth, 205 Va. 909, 140 S.E. 2d 678 (1965). 46 The court requires strict compliance with adverse possession requirements. See Taylor v. Burnside, 1 Gratt. (42. Va.) 165 (1844) ; Whealton v. Doughty, 112 Va, 649, 72 S.E. 112 (1911); Turyin v. Saunders, 32 Gratt. (73 Va.) 27 (1879), Provi- dence Forge Fishing and Hunting Club v. Miller Mfg. Co., 117 Va. 129. 83 S.E. 1047 (1915) ; Austin v. Minor, 107 Va. 101, 57 S.E. 609 (1907) ; Harmon v. Ratliff, 93 Va. 249, 24 S.E. 1023 (1896) ; and Woody v. Abrams, 160 Va. 683, 169 S.E. 915 (1933). "Kirk v. Hoge, 123 Va. 519, 97 S.E. 116 (1918) ; Nichols v. Aylor, 7 Leigh (34 Va.) 546 (1836) ; Coalter v. Hunter, 4 Rand. (25 Va.) 58 (1826). Virginia had a statute which provided that no person could obtain a prescriptive right against the State to pollute waters (Sec. 62-12 in the 1950 code, then codified as 62.1-16 in the 1968 amendment, then repealed by the 1970 State water control law, 62.1-44.2 et. seq.) However, it has been held that prescriptive rights cannot be acquired against the State (Grenshaw v. State River Co., 6 Rand. (27 Va.) 245 (1828)) and the repeal of that statute probably has no material consequence. This is not to say that, as between private parties, prescriptive easements to pollute cannot be acquired, so long as the polluting activity is not a nuisance and the use is reasonable. Prescriptive cannot, however, operate upstream because the "upper owner cannot be injured by such diver- sions and therefore has no legal ground to object thereto." Town of Gordonsville v. Zinn, 129 Va. 542. 106 S.E. 508 (1921). « See Sees. 25-46.1 through 25-234 ; 62.1-98. «Sec. 62.1-119. «Sees. 21-428 through 21-432. |