Paul Ward

“ In all our consideration of the reasonable use theory as we have attempted to explain it we have accepted the view that the benefits accruing to society in general from a maximum utilization of our water resources should not be denied merely because of the difficulties that may arise in its application. ”

“ The purpose of the law is to secure to each riparian owner equality in the use of water as near as may be by requiring each to exercise his right reasonably and with due regard to the rights of others similarly situated. ”

“ Every such proprietor is entitled to the usual flow of a stream in its natural channel over his land, undiminished in quantity and unimpaired in quality, subject to the reasonable use by upper proprietors, and with the right to make any reasonable use of the water necessary for his convenience or pleasure, including in non-navigable waters, the exclusive privilege of taking fish from the stream. ”

“ When one lawful use of water interferes with or detracts from another lawful use, then a question arises as to whether, under all the facts and circumstances of that particular case, the interfering use shall be declared unreasonable and as such enjoined, or whether a reasonable and equitable adjustment should be made, having due regard to the reasonable rights of each. ”

“ We do not understand that the two theories will necessarily clash in every case, but where there is an inconsistency, and where vested rights may not prevent, it is our conclusion that the reasonable use theory should control. ”

“ Riparian rights inhere in the owner of the soil and are part and parcel of the land itself, and are vested and valuable rights which no more may be destroyed or impaired than any other part of a freehold. ”

“ There was no testimony that fish life was endangered before July 10th but on the other hand there was positive testimony to the contrary. (b) Likewise there was no conclusive testimony showing that it was impractical to dock or run boats on the lake prior to July 10th. Moreover it would be pure conjecture to say that the same water level, whether normal or otherwise, controlled both fishing and boating. Certainly appellants made no attempt to make any distinction either in the pleadings or by the testimony between the two causes of action. ”

“ We think the conclusion we have reached is not only logical but practical. Although appellees had quit using water from the lake when this case was tried yet they testified that they intended to use water therefrom in 1955. We might assume that they would want to also use water in subsequent years, so it would seem to be to the best interest of all parties concerned to have a definite level fixed at which pumping for irrigation must cease in order to avoid useless litigation. ”

“ The determination in a particular case of the unreasonableness of a particular use is not and should not be an unreasoned, intuitive conclusion on the part of the court or jury. It is rather an evaluating of the conflicting interests of each of the contestants before the court in accordance with the standards of society., and a weighing of those, one against the other. ”

“ In this business he rents cabins, sells fishing bait and equipment, and rents boats to members of the general public who desire to use the lake for fishing and other recreational purposes. He and his lessors filed a complaint in chancery court on July 10, 1954, to enjoin appellees from pumping water from the lake to irrigate a rice crop, alleging that, as of that date, appellees had reduced the water level of the lake to such an extent as to make the lake unsuitable "for fishing, recreation, or other lawful purposes." ”

“ If it is found that appellants' rights have not been unreasonably impaired, having due regard to all the facts and circumstances and the injury which may be caused a appellees as weighed against the benefits accruing to appellants, then the injunction should be denied. ”

“ Tbe right to fish and (b) The right to conduct a commercial boating enterprise. It was incumbent upon appellants to show that one or both rights were unreasonably interfered with when the water level sank below "normal." It is difficult to tell whether the testimony establishes this fact in either instance. (a) The only testimony in the first instance is that fish quit biting somewhere about the 4th of July but there was no conclusive evidence that this was caused by the lake being below "normal" level. It is common knowledge that fish quit biting sometime for no apparent good reason. ”