2006 New York Code - Harmless Alterations In Watercourses And Lakes; Prescriptive Rights Or Privileges; Action For Declaratory Judgment; Limitations Of Time

 
  § 15-0701. Harmless  alterations in watercourses and lakes; prescriptive
               rights or  privileges;  action  for  declaratory  judgment;
               limitations of time.
    1.  An alteration (whether or not it causes water to cover or permeate
  land previously dry) in the natural flow, quantity, quality or condition
  of a natural watercourse or lake situated in this state and either on or
  below the surface of the earth, effected by the use  either  on  or  off
  riparian  land,  withdrawal, impoundment, or obstruction of the water in
  such watercourse or lake, or by the addition of  water  thereto,  or  by
  changes  in  the banks, bed, course or other physical characteristics of
  such watercourses or lake, is  reasonable  and  lawful  as  against  any
  person,  as  defined  in  subdivision  two of section 15-0107, having an
  interest in such watercourse or lake, unless such alteration is  causing
  harm  to  him or it, or would cause him or it immediate harm if and when
  begun. No action for nominal damages  or  for  an  injunction  shall  be
  maintainable  because  of  such  an  alteration  against  any  person or
  corporation, whether a riparian owner or not, on the  ground  that  such
  alteration  is  an  infringement  of  the plaintiff's private rights and
  privileges in the waters of, or with respect  to,  such  watercourse  or
  lake  unless  such  alteration is causing plaintiff harm, or would cause
  him or it immediate harm if and when begun. This subdivision shall apply
  to such an action regardless of whether the alteration sought to be made
  the basis of it was caused before or after the effective  date  of  this
  section.
    2. For the purpose of this section, "harm" shall mean:
    a.  Interference  with  a  present use of the water by the complaining
  party or an interference with the complaining party's present  enjoyment
  of  riparian  land  occurring  prior  to suit, or which will immediately
  occur when the alteration complained of is begun, regardless of  whether
  such  interference  has  caused or will ever cause such party measurable
  financial loss; or
    b. A decrease in the market value of the complaining party's  interest
  in  riparian  land  occurring  prior  to suit, or which will immediately
  occur when the alteration complained of is begun, regardless of  whether
  his  use  of the water or enjoyment of riparian land was interfered with
  prior  to  suit,  or  will  be  immediately  interfered  with  when  the
  alteration complained of is begun.
    3.  Interference  with  the  present enjoyment of riparian land may be
  established by proof that the alteration complained of or sought  to  be
  enjoined  is rendering or will immediately render riparian land owned or
  occupied by the complainant less suitable or useful for the  purpose  or
  purposes  to  which he is presently devoting it. The evidence admissible
  to establish a decrease in the suitability or utility of such  land  for
  such  purposes  may  include, but not be limited to, evidence tending to
  show that the act complained of has  diminished,  or  when  begun,  will
  immediately diminish, the desirability for recreational purposes, or the
  natural  beauty of the body of water to which the land owned or occupied
  by the complainant is riparian.
    4. The cause of action essential to the initiation and creation  of  a
  prescriptive  right  or  privilege  against  a private riparian owner to
  continue an alteration in the natural condition of such a watercourse or
  lake shall not be supplied by such an alteration  until  it  shall  have
  caused such riparian owner harm and then only if it is unreasonable.
    5.  Nothing  contained in this section shall, however, be construed as
  depriving  any  person  or  corporation  having  an  interest  in   such
  watercourse  or  lake  of any remedy either at law or in equity which he
  now has, or may hereafter acquire, under the law of this state for  harm
  caused  him  by  an  unreasonable alteration in the natural condition of
  such a watercourse or lake, regardless of whether  such  alteration  was
  harmful and unreasonable from its initiation or subsequently became so.
    6.  Any  person  desirous of ascertaining the extent of the rights and
  privileges of himself and others in the water of or with respect to  the
  natural  condition of such a natural watercourse or lake may maintain an
  action for a declaratory judgment defining the extent of such rights and
  privileges. Neither proof of present  harm  nor  of  the  likelihood  of
  future harm to the plaintiff from an alteration in the natural condition
  of  such watercourse or lake shall be prerequisite to the maintenance of
  such an action, the judgment in which shall not affect  the  rights  and
  privileges  of  any  person  or corporation not a party thereto. Such an
  action shall be  maintainable  by  persons,  corporations,  governmental
  units,  owners  of  land riparian to such a natural watercourse or lake,
  persons to whom such owners have granted their riparian rights in  whole
  or in part, and owners of prescriptive rights or privileges in the water
  of or with respect to such watercourses or lakes.
    7.  No  statute  of  limitations shall begin to run against a cause of
  action for  such  a  declaratory  judgment  until  a  plaintiff  who  is
  empowered  by  this  section  to  maintain  it  has  been  harmed  by an
  unreasonable alteration in the natural condition of such watercourse  or
  lake  effected by the person or his predecessor in interest against whom
  such an action may be maintained.
    8. Notwithstanding any other provision of this section,  if  the  harm
  resulting  from  an  unreasonable alteration of the natural condition of
  such a natural watercourse or lake is one which would not ordinarily  be
  noticeable  by  an owner of land actually present thereon, no statute of
  limitations shall begin to run against any cause of action  referred  to
  in  subdivisions four and five of this section until the party harmed is
  fairly chargeable with knowledge that he has been harmed.
    9. Nothing herein contained shall be construed to alter or affect  the
  right  to  exercise  any power which the state of New York or any agency
  thereof, or any county, city, town or village or any agency thereof, may
  have to enjoin the initiation or continuance of  an  alteration  in  the
  natural condition of a natural watercourse or lake.