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Show VIRGINIA 753 C. PREFERENCE OP USE Virginia has no clear order of preference in use, but it does appear that domestic use (including watering livestock) is preferred use over all others, and a riparian might be entitled to exhaust totally a stream to satisfy his reasonable domestic needs.70 3.3 Changes, Sales, and Transfers Voluntary transfers of riparian water rights normally result from purchases and sales of riparian land, because such rights pass with title to the land unless there is an express reservation to the con- trary.71 The Virginia court has held that riparian rights may be separated from the ownership of the land to which they are appur- tenant, either by a grant of such rights to another, or by a reser- vation thereof in the conveyance of the land.72 Grantors who convey part of their riparian lands with appurtenant water rights, or who transfer part of their water rights separately, sometimes place re- strictions on use in the conveyance. These provisions are not binding on other riparians who are not parties to the transaction, but are binding between the grantor and grantee, and normally relate to the amount of water which the grantee shall be entitled to use under the conveyance.73 When the restrictions purport to restrain method of use or purpose of use, the courts ordinarily interpret such provi- sions as limits on amount of use: The grantee is not bound to use (the water) in the particular manner described, but may use it in a different manner, for a different purpose, or at a different place, or increase the capacity of his machinery, provided only that the quantity used in not increased.74 Water rights might also be transferred involuntarily, as when the right is taken by eminent domain,75 or lost by adverse possession 76 or prescription.77 3.4 Loss of Bights There is no forfeiture or abandonment of riparian rights, but, as mentioned above, the Virginia court has held that such rights can be lost (and, conversely, acquired) by adverse use78 and prescrip- tion.79 There seems to be no case in Virginia where estoppel has been applied in such a way as to result in a loss of a riparian right. Un- authorized uses from artificial channels may be enjoined-not be- cause any riparian rights are lost or extinguished, but because arti- ficial channels do not give rise to riparian rights. The court has said that a riparian right: * * * does not exist in the water flowng in an artificial channel. The right of those owning land bordering upon or through which artificial channels pass, to the use of the water flowing theren, is not a natural right, nor a ™Hite v. Town of Luray, 175 Va. 218, 8 S.B. 2d 869 (1940). 71 Carpenter v. Gold, 88 Va. 551, 14 S.B. 329 (1892). ™Thur8ton v. City of Portsmouth, 205 Va. 909, 140 S.B. 2d 678 (1965). 78 Walker and Cox, supra note 60, at 80-81. ™Eicklen v. Fredericksourg Power O»., 133 Va. 571, 112 S.B. 775 (1922). 75 See notes 47-49, supra. 79 See note 45, supra. 77 See note 46, supra. 78 See note 45, supra. 78 See note 46, supra. |
