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Show WEST VIRGINIA 79i his dam upon the property of another.43 Though the stream and its course may be temporarily altered by a riparian owner while on his own land, the stream must be returned to its natural channel by the time it leaves his property,44 and water diverted cannot be trans- ported to and used on nonriparian lands.45 C. RELATION OF LAND TO WATER The right to use water under the riparian rights doctrine is an incident of the ownership of land underlying or abutting a stream. It is not an easement or an appurtenance, but a right annexed to the soil and a part of the land itself.46 The riparian water right passes with a conveyance of riparian land, but when the owner of property erects a milldam to power a gristmill and then conveys that portion of the land where the millpond backs up, the purchaser takes title subject to an implied easement in favor of the seller to flood the land by the millpond in the same manner as previously flooded.47 D. TYPES OF USE RECOGNIZED As previously noted, the West Virginia court has stated that a reasonable use of water may be made to supply the natural wants of the riparian landowner, but no further definition has been given as to what this might encompass; but the court did quote with ap- proval language from legal commentaries which said that use of water for domestic, agricultural, and manufacturing purposes would not be unreasonable.48 3.3 Changes, Sales, and Transfers Riparian water rights are generally transferred as an incident to the transfer of real property which borders a stream or over which a stream passes. A riparian owner has no right to convey a water privilege to a nonriparian owner for use on nonriparian lands, as this would be an infringement on the rights of other riparian own- ers.49 Where two riparian owners obtain their rights from a common grantor below established mills of the grantor, the rights will be so construed to preserve the waterpower for the established mills, unless a contrary intent plainly appears in the grant itself.50 3.4 Loss of Rights As a general rule, riparian rights are subject to loss by adverse possession, and the West Virginia court has said that the unlawful use of water will, in time, ripen into an adverse use right.51 In a subsequent decision, a prescriptive right was recognized to maintain a gristmill where there had been an adverse use against another «Bennett v. Booth, 70 W. Va. 264, 73 S.E. 909 (1912) ; Stuart v. Lake Washington ** McCausland v. Jarrell, 136 W. Va. 569, 68 S.E. 2d 729 (1951). 15 Roberts v. Martin, 72 W. Va. 92, 77 S.E. 537 (1913). "Roberts v. Martin, 72 W. Va. 92, 77 S.E. 537 (1913) ; McCausland v. Jarrell, 136 W. Va. 569, 68 S.E. 2d 729 (1951). "Bennett v. Booth, 70 W. Va. 264, 73 S.E. 909 (1912). *» Roberts v. Martin, 72 W. Va. 92, 77 S.E. 537 (1913). «Roberts v. Martin, 72 W. Va. 92, 77 S.E. 537 (1913). 6° Miller v. Shenandoah Pulpy Co., 38 W. Va. 558, 18 S.E. 740 (1893). 51 Roberts v. Martin, 72 W. Va. 92, 77 S.E. 537 (1913). |
