Page:Harris v. Brooks, 225 Ark. 436 (1955).pdf/8

Rh. In 56 Am. Jur., page 728, it is stated that "The rights of riparian proprietors on both navigable and unnavigable streams are to a great extent mutual, common, or correlative. The use of the stream or water by each proprietor is therefore limited to what is reasonable, having due regard for the rights of others above, below, or on the opposite shore. In general, the special rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon, qualified only by the correlative rights of other riparian owners, and by certain rights of the public, and they are to be so exercised as not to injure others in the enjoyment of their rights." It has been stated that each riparian owner has an equal right to make a reasonable use of waters subject to the equal rights of other owners to make the reasonable use (U. S. v. Willow River Power Co., 324 U. S. 499, 65 S. C. 761, 89 L. Ed. 1101). 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. (Meng v. Coffey, 67 Neb. 500, 93 N. W. 713, 108 Am. St. Rep. 697).

This court has to some extent recognized the reasonable use theory (Thomas v. LaCotts, 222 Ark. 171, 257 S. W. 2d 936; Ralph R. Harrell, et al., v. City of Conway, et al., 224 Ark. 100, 271 S. W. 2d 924, but we have also said (in the City of Conway case) that the uniform flow theory and the reasonable use theory are inconsistent and, further that we had not yet made a choice between them. It is not clear that we made a choice in that case. The nucleus of this opinion is, therefore, a definite acceptance of the reasonable use. theory. 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. In embracing the reasonable use theory we caution, however, that we are not necessarily adopting all the interpretations given it by the decisions of other states,