92. A consequence of the riparian system of water rights (note
above) is that the right to use of the water inheres in the very ownership of bankside realty. Unlike the prior appropriation system, where the right to water does not exist unless and until the water is actually used, the riparian system confers on the proprietor a perpetual right to the flow of water. A riparian landowner can lose his water right in only two ways: he can grant it to another proprietor; or he can suffer another proprietor to take the right away by prescription (open and long-continued usurpation). To say that a right to water may be lost by prescription is not the same thing as saying that this right may be acquired only by prescription. The first thought is entirely compatible with the riparian system; the second is wholly foreign to it, being in fact another way of expressing the doctrine of prior appropriation. In the debate which has simmered for the past half-century on the issue whether the common law was appropriative or riparian, a focus of inquiry has been the old pleadings, particularly the declarations. Compare Wiel, “Waters: American Law and French Authority,” 33
Harv. L. Rev.
133 (1919), with Maass and Zobel, “Anglo-American Water Law: Who Appropriated the Riparian Doctrine?” 10 Public Policy
109 (1960). It was argued that because so many of the old declarations used language importing prescription, the water rights involved must have depended on prescription; in other words, prior appropriation was the key to those rights. The counter-argument was that no matter how the pleadings read, the facts of the cases and the language of the judges indicated that water rights followed riparian ownership.
In the absence of reported judicial opinions, it is difficult to determine the 18th-century Massachusetts rule. The point was raised in neither the declaration nor the plea in Clark v. McCarney, Form XXII. Language in the present declaration (“from time immemorial have been accustomed and ought to have the Benefit of a certain Water or Water-Course”) sounds in prescription; another “water” case in the Wetmore Notes
, Symonds v. Traske (Essex Inferior Court? ca. 1771), likewise alleges “that a spring of Water ran thro' [plaintiff's land]
for time immemorial ... and still ought to run.” Adams Papers, Microfilms
, Reel No. 184. And all the relevant forms in Perham, American Precedents
196, 199–200, use similar language. But the Wetmore Notes
show that counsel in Symonds v. Traske, at least, knew of English forms noting that the ancientness of the watercourse need not be alleged. See, for example, 1 Mallory, Modern Entries