Document Type

Response or Comment

Publication Date

1914

Abstract

Though at one time in England there may have been some doubt as to the character of a riparian owner's rights in the waters of the stream, it must be considered as definitely settled by a series of cases that the doctrine of reasonable use by all the proprietors on the stream is the rule of the common law, and that the matter of priority of use or appropriation is, under that system, immaterial, unless, of course, a question of prescriptive right is involved. Wright v. Howard, 1 Sim. & S. 190; Mason v. Hill, 3 B. & Ad. 304, 5 id. I; Wood v. Waud, 3 Exch. 748; Embrey v. Owen, 6 Exch. 353; Sampson v. Hoddinott, 1 C. B. (N. S.) 590, Miner v. Gilnour, 12 Moore P. C. 131. The American courts have generally adopted the view of the law early expressed by Chancellor KENT, which is the view approved by the English courts above referred to. See 3 KENT, COMM. *439. The rule of law is clear, the difficulties arise in its application to particular cases in the determination of the question as to whether a certain use is reasonable or not. In the second edition of his splendid treatise on IRRIGATION AND WATER RIGHTS, Mr. KINNEY has said: "Under the common law there are three classes of uses which the riparian proprietors may or may not make of the waters of a stream flowing by their lands. These are: First, natural or primary uses for which any riparian proprietor may take the waters of the whole stream; second, artificial uses or uses which are not classified as those for natural wants; and, third; uses of the water which may not be made at all; such, for example, would be the use of water by a riparian owner upon non-riparian lands." § 486.


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