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Show VIRGINIA 751 tinues to run, after such use, as it is wont to do, without material diminution or alteration and without pollution; but he cannot diminish its quantity ma- terially or exhaust it (except perhaps for domestic purposes and in the watering of cattle) to the prejudice of the lower proprietors, unless he has acquired a right to do so by grant, prescription or license.50 Riparian rights are deemed to be valuable and vested, whether diverted for actual use or not, and they are "in no sense easements, but are qualified property rights incident to the ownership of the soil through or by which the waters of the stream flow." 51 A common limitation on a riparian right is that it extends only to the riparian land situated within the natural drainage basin or watershed of the stream.52 Thus, when a riparian owned two parcels of land, both riparian to the stream but situated some distance from each other, he could not divert water upon the first parcel for the purpose of conveying and using it on the second parcel, because the riparian right which attached to the first parcel was limited to that parcel and any use of water on the second parcel would have to be diverted from the stream at the point where it flowed by the second parcel.53 Similarly, a city which has one acre of riparian land is not entitled to divert water for use by municipal inhabitants on land that is not riparian,54 and the sale of water by a municipality to its consumers has been held to be beyond the "traditional right of a riparian owner to make a reasonable domestic use of the water." 55 A further limitation commonly applied is that when a riparian conveys a part of his land so that the parcel conveyed does not touch upon the stream, the riparian right is extinguished as to the part conveyed, and cannot be revived, even by a repurchase of the tract by the riparian who made the conveyance. While the Virginia court has not been required to decide whether this limitation is applicable, there is some mild dictum to suggest that it would be applied in a proper case.56 A general qualification on riparian rights, whether viewed with the respect to a riparian use or a riparian who complains of a use by another, is that the one complaining must show that he is suffer- ing actual damage or that there is a real and probable threat that he will suffer damage. Stated another way, a riparian use will not be enjoined, nor will damages be awarded, even if the use is un- reasonable, or even if water is applied to nonriparian land, or if the use causes pollution, or if the use is otherwise illegal or im- proper-unless the complaining riparian can show that he is directly damaged by such illegal use.57 As a general proposition, the concept of priority of right to use water based upon the time the use was initiated is not applicable to riparian rights, other than with reference to equitable considerations which might work an estoppel against the party objecting to an earlier use, or unless facts necessary to show title by adverse posses- ™Hite v. Town of Luray, 175 Va. 218, 8 S.E. 2d 369 (1940). 51 Id. at 226. 62 Town of Gordonsville v. Zinn, 129 Va. 542, 106 S.E. 508 (1921). ¦aid. 6(1 Id. at 562. mTown of Purcellville v. Potts, 179 Va. 542, 106 S.E. 508 (1921). 68 See Town of Oordonsville v. Zinn, 129 Va. 542, 106 S.E. 508 (1921), particularly the quote at 555 from Anaheim Union Water Go. v. Fuller, 150 Cal., 327, 88 Pac. 978. 67 Id. See also Virginia Hot Springs Co. v. Hoover, 143 Va. 460, 130 S.E. 408 (1925). |
