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.