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Show WEST VIRGINIA 789 (3) Soil conservation districts.30 (4) Watershed improvement districts.31 3. Surface Waters The West Virginia court has characterized a watercourse as a channel with a bed and banks which contains a flow of water, al- though the water need not flow continuously.32 3.1 Method of Acquiring Rights Riparian water rights in West Virginia, as in other riparian juris- dictions, derive from ownership of land through which the stream flows or by which it is bounded. Riparian rights are acquired when riparian land is acquired, and unless specifically reserved, terminate when the riparian land is sold or title thereto is otherwise conveyed, as discussed in section 3.2.c below. 3.2 Nature and Limit of Rights A. BASIS OF THE RIGHT The West Virginia court has stated that, while the riparian land- owner has no property right in the water itself, his right to reason- able use of the natural flow is regarded and protected as property, sometimes referred to as a usufructuary right in flowing water. The landowner's right of reasonable use is coequal with all other riparian owners and there is no priority accorded the first owner to place the water to use. However, the right of reasonable use does not include a right to impair a reasonable use already being made by another riparian owner.33 The right acquired extends to quality as well as quantity, and an upstream pollutor is frequently held liable for damage caused to lower land.34 B. EXERCISE Or THE RIGHT The common law "natural flow" rule entitled every riparian owner to have the stream flow across his property undiminished in quantity and unimpaired in quality, and to have the stream enter his land at its natural place without alteration of the channel, or of the rate or volume of flow. The West Virginia court has modified the common law rule in favor of the reasonable use rule, which permits riparian owners to use the water to satisfy their natural wants. What "nat- ural wants" may encompass has not been spelled out in any detail by the court, but it has quoted with approval language from com- mentaries which says that lawful riparian uses include domestic, agricultural, and manufacturing.35 80 W. Va. Code, sees. 19-21A-1 to 19-21A-13b. 31W. Va. Code, sees. 19-21B-1 to 19-21B-13. **Neal v. Ohio River R.R., 47 W. Va. 316, 34 S.E. 914 (1899) ; McGausland v. Jarrell, 136 W. Va. 569, 68 S.E. 2d 729 (1951) ; also see Uhl v. Ohio River Railroad Co., 56 W. Va. 494, 49 S.E. 378 (1904). «Roberta v. Martin, 72 W. Va. 92, 77 S.E. 537 (1913) ; McOausland v. Jarrell, 136 W. Va. 569, 68 S.E. 2d 729 (1951) ; Miller v. Shenandoah Pulp Co., 38 W. Va. 558, 18 S.E. 740 (1893). 34 Farley v. Crystal Goal & Coke Co., 85 W. Va. 595, 102 S.E. 262 (1920). ** Roberta v. Martin, 72 W. Va. 92, 77 S.E. 537 (1913). |