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Show 754 VIRGINIA corporal right, but an incorporeal right, which can be acquired only by grant, express or implied, or by prescription.80 3.5 Storage Waters, Artificial Lakes, and Ponds Rights in storage water, as an aspect of a riparian right, depends on the source which supplies the storage. If the source is natural stream, then the riparian who diverts water therefrom for storage is subject to the reasonable use limitation;81 whereas, if the source is otherwise, as from diffused surface water, then the one who im- pounds the water owns it, not by virtue of traditional riparian right concepts but simply because he captured the water and reduced it to his private ownership.82 Rather extensive statutory controls apply to dams and impoundments, and to encroachments and obstructions in navigable waters, as noted above. 3.6 Springs Spring waters occupy no separate status in Virginia water law. Such waters will either be classified as percolating ground water,83 as underground streams,84 as diffused surface water,85 or as surface watercourses,86 and the relevant legal rules will apply. If the spring is fed by an underground stream, for example, the upper landowner may make a reasonable use of the water.87 Similarly, if the spring is tributary to a natural surface watercourse, then diversions from the spring will be considered diversions from the watercourse, and the reasonable use limitation will be applicable.88 When the contest is not over water use, but between land use and water use, it has been held that a landowner may make reasonable use of his land even though the effect thereof is to destroy a spring on adjoining land.89 However, if a mineral lessee acts negligently, as in failing to provide reasonable lateral support in connection with mining operations, he will be liable to the surface owner for de- struction of a spring, but not if he is free of negligence.90 3.7 Diffused Surface Waters A. PHYSICAL CHARACTERISTICS Diffused surface water ordinarily is considered to be that water which spreads over the surface of the ground without confinement in a watercourse, or, as the Virginia court has said: * * * that which is diffused over the surface of the ground, derived from falling rains and melting snow, and continues to be such until it reaches some well defined channel.91 80 Kirk v. Hoge, 123 Va. 519, 97 S.E. 116 (1918). 81 See Walker and Cox, supra note 60, at 122. Cf. 98 C.J.S., Waters, sec. 145. 82 See sec. 62.1-105. 83 See section 4.c of this chapter, infra. 84 See section 4.b of this chapter, infra. 85 See section 3.7 of this chapter, infra. 80 See section 3.2 of this chapter, supra. ot Miller v. Black Rock Springs Improvement Co., 99 Va. 747, 40 S.E. 27 (1901). ss 2'0'tow of Purcellville v. Potts, 179 Va. 514, 19 S.E. 2d 700 (1942). 89 Couch v. CUnchfleld Coal Corp., 148 Va. 455, 139 S.E. 314 (1927). 00 Stonegap Colliery Co. v. Hamilton, 119 Va. 271, 89 S.E. 305 (1916). alHowlett v. City of South Norfolk, 193 Va. 564, 69 S.E. 2d 346 (1952). |
