§ 15-0701 — 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\n rights or privileges; action for declaratory judgment;\n limitations of time.\n 1. An alteration (whether or not it causes water to cover or permeate\nland previously dry) in the natural flow, quantity, quality or condition\nof a natural watercourse or lake situated in this state and either on or\nbelow the surface of the earth, effected by the use either on or off\nriparian land, withdrawal, impoundment, or obstruction of the water in\nsuch watercourse or lake, or by the addition of water thereto, or by\nchanges in the banks, bed, course or other physical characteristics of\nsuch watercourses or lake, is reasonable and lawful as against any\nperson, as defined in subdivision two of section 15-0107, having an\ninterest in such watercourse or lake, unless such alteration is causing\nharm to him or it, or would cause him or it immediate harm if and when\nbegun. No action for nominal damages or for an injunction shall be\nmaintainable because of such an alteration against any person or\ncorporation, whether a riparian owner or not, on the ground that such\nalteration is an infringement of the plaintiff's private rights and\nprivileges in the waters of, or with respect to, such watercourse or\nlake unless such alteration is causing plaintiff harm, or would cause\nhim or it immediate harm if and when begun. This subdivision shall apply\nto such an action regardless of whether the alteration sought to be made\nthe basis of it was caused before or after the effective date of this\nsection.\n 2. For the purpose of this section, "harm" shall mean:\n a. Interference with a present use of the water by the complaining\nparty or an interference with the complaining party's present enjoyment\nof riparian land occurring prior to suit, or which will immediately\noccur when the alteration complained of is begun, regardless of whether\nsuch interference has caused or will ever cause such party measurable\nfinancial loss; or\n b. A decrease in the market value of the complaining party's interest\nin riparian land occurring prior to suit, or which will immediately\noccur when the alteration complained of is begun, regardless of whether\nhis use of the water or enjoyment of riparian land was interfered with\nprior to suit, or will be immediately interfered with when the\nalteration complained of is begun.\n 3. Interference with the present enjoyment of riparian land may be\nestablished by proof that the alteration complained of or sought to be\nenjoined is rendering or will immediately render riparian land owned or\noccupied by the complainant less suitable or useful for the purpose or\npurposes to which he is presently devoting it. The evidence admissible\nto establish a decrease in the suitability or utility of such land for\nsuch purposes may include, but not be limited to, evidence tending to\nshow that the act complained of has diminished, or when begun, will\nimmediately diminish, the desirability for recreational purposes, or the\nnatural beauty of the body of water to which the land owned or occupied\nby the complainant is riparian.\n 4. The cause of action essential to the initiation and creation of a\nprescriptive right or privilege against a private riparian owner to\ncontinue an alteration in the natural condition of such a watercourse or\nlake shall not be supplied by such an alteration until it shall have\ncaused such riparian owner harm and then only if it is unreasonable.\n 5. Nothing contained in this section shall, however, be construed as\ndepriving any person or corporation having an interest in such\nwatercourse or lake of any remedy either at law or in equity which he\nnow has, or may hereafter acquire, under the law of this state for harm\ncaused him by an unreasonable alteration in the natural condition of\nsuch a watercourse or lake, regardless of whether such alteration was\nharmful and unreasonable from its initiation or subsequently became so.\n 6. Any person desirous of ascertaining the extent of the rights and\nprivileges of himself and others in the water of or with respect to the\nnatural condition of such a natural watercourse or lake may maintain an\naction for a declaratory judgment defining the extent of such rights and\nprivileges. Neither proof of present harm nor of the likelihood of\nfuture harm to the plaintiff from an alteration in the natural condition\nof such watercourse or lake shall be prerequisite to the maintenance of\nsuch an action, the judgment in which shall not affect the rights and\nprivileges of any person or corporation not a party thereto. Such an\naction shall be maintainable by persons, corporations, governmental\nunits, owners of land riparian to such a natural watercourse or lake,\npersons to whom such owners have granted their riparian rights in whole\nor in part, and owners of prescriptive rights or privileges in the water\nof or with respect to such watercourses or lakes.\n 7. No statute of limitations shall begin to run against a cause of\naction for such a declaratory judgment until a plaintiff who is\nempowered by this section to maintain it has been harmed by an\nunreasonable alteration in the natural condition of such watercourse or\nlake effected by the person or his predecessor in interest against whom\nsuch an action may be maintained.\n 8. Notwithstanding any other provision of this section, if the harm\nresulting from an unreasonable alteration of the natural condition of\nsuch a natural watercourse or lake is one which would not ordinarily be\nnoticeable by an owner of land actually present thereon, no statute of\nlimitations shall begin to run against any cause of action referred to\nin subdivisions four and five of this section until the party harmed is\nfairly chargeable with knowledge that he has been harmed.\n 9. Nothing herein contained shall be construed to alter or affect the\nright to exercise any power which the state of New York or any agency\nthereof, or any county, city, town or village or any agency thereof, may\nhave to enjoin the initiation or continuance of an alteration in the\nnatural condition of a natural watercourse or lake.\n