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Show 752 VIRGINIA sion or rights of use by prescription can be proved. However, Vir- ginia has a statute which, speaking with reference to the private generation of hydroelectric power, provides that no person shall "do anything in conflict with any vested right in any waterworks erected on such watercourse."58 The court construed and applied this statute so as to give priority to the earliest user: * * * the right to the use of the water as a general rule is limited to sudh use as is not inconsistent with a like reasonable use by the other riparian owners on the same stream above and below. But in a controversy between two owners of two dams over the same stream, the proprietor who first erects his dam for a useful purpose has a right to maintain it, as against the pro- prietors above and below. And, to this extent, prior occupance gives a prior right to such use.59 Virginia adopts the general distinction between navigable and non-navigable waters,60 and riparian rights are thus more extensive in non-navigable, or private, watercourses.61 B. PURPOSE OF USE Until some diversion is made from the stream, the riparian right consists of the right to enjoy the natural amenities of the stream as flows upon or along the riparian land, and the right to make a future diversion and reasonable use when and if circumstances justify such use. The types of use recognized when diversions are made can only be classified as any use which is reasonable. The reasonableness of the use depends upon the nature and size of the stream, the business or purposes to which it is made subservient, and on the ever-varying circumstances of each particular case. Each case must, there- fore, stand upon its own facts, and can be a guide in other cases only as it may illustrate the application of general principles.62 Thus, the concept of reasonableness applies to the type of use as well as the manner of use and the amount of water used. The eco- nomic importance or unimportance of a particular use is irrelevant, at least in theory,63 although some uses of significant economic im- portance to the community have fared better than others.64 In addition to such instream uses as milling and generating hydro- electric power, the Virginia court has specifically considered and approved diversions for domestic purposes,65 for public or municipal water supply,66 and for the purpose of relocating a watercourse.67 Although, with respect to the latter, the riparian was obliged to re- turn the stream to its natural channel before it left his land.68 The term "beneficial use" is defined by statute to include domestic, agricultural, recreational and commercial, and industrial uses.69 58 Sec. 62.1-124. BaMumpower v. City of Bristol, 90 Va. 151, 17 S.E. 853 (1893). 80 See, generally W. It. Walker and W. E. Cox, Water Resources Laws in Virginia, at 57-80 (1968). 61 See sec. 5.1 of ch. 5 in pt. I of this volume. 62 Davis v. Town of Harrisonburg, 116 Va. 864, 83 S.E. 401 (1914). ^Townsend v. Norfolk My. and Light Co., 105 Va. 22, 52 S.E. 970 (1906). eiAkers v. Mathieson Alkali Works, 151 Va. 1, 144 S.E. 492 (1928). aBHite v. Town of Luray, 175 Va. 218, 8 S.E. 2d 369 (1940) ; Town of Purcellville v. Potts, 179 Va. 514, 19 S.E. 2d 700 (1942) ; Town of Gordonsville v. Zinn, 129 Va. 542, 106 S.E. 508 (1921). 66 Id '"Cook v. Seaboard Air Line Ry., 107 Va. 32, 57 S.E. 564 (1907). 68 Id. at 35. 1)0 Sec. 62.1-10(h). |