CAN A RIGHT TO USE WATER FROM A STREAM SYSTEM BE LOST?

The doctrine of riparian rights in the United States has its basis in case law which first involved Tyler v. Wilkinson in 1827. This case arose out of a dispute between mill owners over the right to use the flow of a river for mill power. The opinion in the case stated that all riparians had equal rights to the water in the river and that an upper proprietor could not diminish the quantity that would naturally flow to the lower proprietor. However, the case opinion also recognized that such an absolute right would not be practical and held that an upper proprietor could make "reasonable use" of the water, including consumptive withdrawals. And it is true that the right to use water from a stream can be lost.

Riparian water rights, therefore, occur as a result of landownership. A landowner who owns land that physically touches a river, stream, pond, or lake has an equal right to the use of water from that source. This water right, however, is only a usufructuary right and not a property right in the water. The water may be used as it passes through the property of the land owner, but it cannot be unreasonably detained or diverted, and it must be returned to the stream from which it was obtained. The use of riparian water rights is generally regulated by "reasonable use." Reasonable use allows for the consumptive use of water, but what actually constitutes reasonable use has varied widely from state to state and continues to evolve.

Only certain waters are subject to riparian rights. Riparian rights only attach to water in watercourses and not to diffuse surface waters. Diffuse waters are waters that are spread over the surface, where as a watercourse has a definite natural channel and a bed with banks. Diffuse waters are generally storm or flood drainage, and these do not constitute riparian rights.

The traditional means of losing appropriative water rights are non-use or abandonment. Loss through abandonment is a consequence of the essential role that "use" plays in the definition of the right. The right does not come into existence without application of water to beneficial use and cannot continue to exist without the continuance of beneficial use. Non-use in itself, however, does not always constitute abandonment.

A finding of abandonment often requires a determination of an intent to relinquish the water right. A statutorily specified period of non-use can, in most states, serve as proof of intent to abandon. In other words, an appropriative right can be lost through non-use when intent to abandon can be demonstrated, or when the water right has not been used for a s Riparian water rights cannot be lost through non-use and are indefinite in duration. Therefore, a riparian landowner does not lose their riparian right by not putting the water to use.

However, the courts tend to provide greater protection for existing uses, than for potential future uses. Riparian rights can, however, be lost through prescription. Prescription is a process of involuntary transfer from one party to another. Under prescription, a party making open use of water for the proper time period (usually 20 years) gains title to the water right superior to that of the original holder for a specified number of years.