S ~~QSDS RP & 'TD!le bavn c iai4E
Water Allocation: The Reasonable and
Beneficial Use Standards
By Susan L. Fleming environmental
In some areas of Florida, unsuitable for the support of low
consumptive water users are concentrated population. such
embroiled in a contest for access to developments indirectly pollute
water resources. Envision the fresh water resources and endanger reinforced by taxing power to fund
competing demands for fresh water native wildlife.5 Finally, Florida is a their programs,16 water manage-
in a typical Florida locale: the "hydrological island" wholly ment districts are powerful groups
municipality struggles to provide dependent on rainfall to replenish in Florida.
inhabitants with enough water to water resources. Since 1970, Florida Since 1972, a consumptive user
meet domestic needs; a nuclear has received less than the average has been required to secure a
power plant consumes large annual rainfall. Hydrologists permit from the local water
quantities of water to generate express deep concern over Florida's management district to divert,
electricity; agriculturalists and future water supply.6 withdraw, impound or consump-
ranchers need water for irrigation Alarm over Florida's water tively use water.17 To be granted a
and stock raising; industry must shortage prompted passage of permit, the applicant must establish
maintain consumptive use levels to comprehensive environmental that the proposed use is a: (1)
meet production deadlines; mining legislation in 1972.7 The state's right reasonable-beneficial use; (2) will
concerns utilize large quantities of to regulate water is rooted in the not interfere with any existing legal
water excavating minerals, state constitution,8 and provides a use; and (3) is consistent with the
Florida is a delicately balanced legal basis for implementation of an public interest.'1 In order to
ecosystem, heavily dependent on extensive plan to regulate and coordinate the granting of these
abundant water resources. Recent protect Florida's water resources. permits on a statewide-lasis, the
developments threaten this fragile, The most important of these legislature mandated development
tropical environment and water statutes are the Water Resources of a state water plan within
scarcity looms on the horizon. Act,9 the Environmental Land and the Division of State Planning of the
Several factors have precipitated Water Management Act,10 and the Department of Administration.'9
this problem. First, the state Florida Comprehensive Planning This plan, known as the "water
population, now estimated at Act." Under the Water Resources element" of the Comprehensive
8,717,334 persons continues to grow Act, the legislature mandated State Plan will promulgate
at an unprecedented rate. In 1973, creation of a t wo- tiered objectives, guidelines and water
25,000 people moved to Florida administrative structure headed at allocation standards for all of the
each month.' Growth is clustered the state level by the Department of water management districts.
around the coastal zone of Southern Environmental Regulation,'2 and However, clashes between
Florida and the region surrounding with five water management individual water management
Orlando. This added population districts designed along hydro- districts and the Division of State
has created new burdens on already logical lines.13 By means of a permit
overtaxed water resources, due to system for consumptive water
greater demands for new power use,14 governing boards"' have
plants, sewage treatment plants, statutory authority to control
and ultimately, industry. In consumptive uses of water in their
addition, the coastal zone does not districts. This procedure is Susan L. Fleming,
have access to Florida's largest desirable because it provides for Sa1maota, studied law
source of fresh water, the Floridan allocation between competing sity from August
aquifer.2 In many areas, huge users at the district level, with 1976 to June 1977
demands on secondary aquifers3 in special attention to particularized when she trans-
the coastal zone have caused salt water problems in the region, feared to the Unioe
water intrusion, rendering the Since access to fresh water College. She expects
aquifers unfit for human consump- determines future growth and to graduate in June
tion.4 Furthermore, Florida's policy development patterns within a 1979. Her B.A.
of drainage of lower wetland areas region, in essence, water degree was granted
augments our water problems. This management districts have plenary Purdue University. Sponsrof t Cbl
drainage decreases recharge of power to manipulate all growth and the Environmental Law Section, James R.
underground acquifers, and also land use. By means of this power to Brindell, chairman; Judith Kavanaugh,
encourages development in areas determine "who gets the water," editor.
VOLUME 52, NUMBER 1,JANUARY1979 25
ENVIRONMENTAL LA'" administration of the legi~ive when used simultaneously.
mandate. Utilization of these criteria to
Several solutions to the legal facilitate formulation of a
problems exist. Analysis of legislative preference system for
legislative history reveals the Florida water use may save the
components of a "reasonable- Water Resources Act from
Planning reflect a diverse approach beneficial use." Case law from constitutional attack. This article
to water allocation within the state, other jurisdictions, particularly cannot address all possible criteria,
As a result, in absence of legislative California which has adopted a but will summarize and suggest
directives, each district construes similar new standard, provide guidelines for interpretation of
the statutory provision differently clearer guidelines. In addition, Florida's Water Resources Act.
-and thus the system could be factors comprising the older The "reasonable-beneficial use"
open to constitutional attack for standards of "reasonable use" and standard combines features of two
arbitrary and capricious "beneficial use" may be helpful older standards of allocation-the
"reasonable use" standard and the
"beneficial use" standard. These
older standards developed within
the confines of two diverse systems
of water law and reflect an equally
diverse approach to water
MEDFIELD CENTER allocation.
Reasonable Use Standard
SThe "reasonable use" standard of
allocation developed within the
riparian system of water law in the
Offering specialized treatment programs for Eastern United States, promising
individuals displaying psychological, water allocation on ownership of
emotional, or related problems land abutting a surface water
course. Each riparian proprietor
was entitled to the full flow of the
Fully accredited by the Joint Commission on water course, undiminished in
Accreditation of Hospitals quality or quantity by other
riparians.20 This water right was a
Medicare and Champus approved usufructuary right-the riparian
did not own the water, but had the
right to use it. The advent of the
Complete medicolegal evaluations and Industrial Revolution and increased
reports water demands for power and
irrigation proved the natural flow
Theodore J. Machler, Jr., M.D. theory of allocation unsuitable.
Medical Director Consequently, Florida and other
jurisdictions adopted the
John H. Mann, M.D. "reasonable use" theory of
allocation,2' making reasonableness
Assistant Medical Director the measure of the riparian right: A
riparian may use only so much
Medical Staff Psychiatrists water as does not unreasonably
Alfred E. Fireman, M.D. interfere with the uses of other
Marcia Gordon, M.D. riparians. Due to ignorance of the
Paul Heim, M.D. hydrologic cycle, the reasonable
use standard was originally
Joseph B. Mitchell, M.D. confined to surface water.22
C. Ronald White, M.D. However, the "reasonable use"
For further information, contact: standard has since been extended to
Mirabel Rute, Administrator ground water, and each landowner
12891 Seminole Boulevard is restricted to withdrawal of
Largo, Florida 33540 amounts not detrimental to
(813) 581-8757 surrounding landowners.
There are several factors
determinative of a "reasonable
a private psychiatric facility use." The first of these is the
purpose. Domestic use is
universally held to be a reasonable
use per se.
26 THE FLORIDA BAR JOURNAL
.Whether this domestic t"a the period of recoupment. Due to Afirst factor is the purpose of the use.
preference extends to commerce continual readjustment of water Domestic use is considered a
and public purposes is disputed, resources, a strict "reasonable use" beneficial use per se, and is
Some jurisdictions limit the standard may discourage massive accorded high priority. At first the
preference to individual capital investment in water scarce domestic use preference was
S households.23 However, concen- areas. Also, only riparians and limited to individual households,
treated urban populations suggest adjacent landowners are protected but has since been extended by
that the better rule is to extend the from unreasonable uses of water. cases and statutes to municipal
domestic use preference to Nonriparians and the general consumptive use.36 [Ed. note: For a
commercial and public purposes.24 public have no cause of action significant and interesting judicially
"Reasonableness" of uses other than unless a use unreasonably interferes impose e d limitation on a
domestic is dependent on such with their uses of water, municipality's right to take ground
factors as social value, economic water for a "public purpose," see
value, harm and waste and whether Beneficial Use Standard Jupiter Inlet v. Village of Tequesta.,
or not the public good is advanced The "beneficial use" standard of 349 So.2d 216, (Fla. 4th D.C.A.
or protected-for example, allocation developed inthe aridand 1977).]
irrigation25 and generation of semiarid portions of the United Whether other uses are held to be
electric power. States within the confines of the "beneficial" depends on the
Additionally, "reasonable use prior appropriation system. Two circumstances of each case and
may be measured by the utility of chief characteristics of this system consideration of such factors as
the use as weighed against the of water law are priority of use3 social value, economic value and
gravity of harm caused to other and beneficial use.3 In times of waste. Case law also emphasizes
uses." For a subsequent use to be shortage, water is apportioned on social value, and declares that use of
declared unreasonable as to a the basis of priority of use, water for fishing,37 public
preexisting use, the later use must restricting the use of junior recreation,38 preservation of scenic
cause substantial harm to the prior appropriators first. However, the beauty" and conservation to fill
use.'7 In addition to the amount of chief limitation on the appropri- lakes and reservoirs is beneficial,40
harm caused to a preexisting user, active right is the beneficial use balancing the utility and social
avoidance of harm is determinative requirement.3 Absence of a benefit of the use versus the gravity
of reasonableness. A subsequent beneficial use will curtail an of the harm.
user must incur reasonable appropriation, even though prior in Economic value and waste under
expenses to avoid substantial harm time. Under the prior appropriation the 'beneficial use' standard are also
to preexisting water user." system, the usufructuary right was important. Efficiency of use is also
Waste is another factor which not restricted to riparian land, and required by statute4" so that water
may render a use unreasonable. could be diverted from natural resources are utilized to the
Excessive uses have been allowed channels as long as applied to maximum, to provide the largest.
only under normal conditions, beneficial uses34 number of beneficial uses. This
when not detrimental to definition obviously proscribes
surrounding landowners.29 The pure beneficial use system of wasteful uses of water, and the
Economic value is an integral allocation permitted appropriation courts early formulated the rule that
component of a "reasonable use." for any purpose useful to the no appropriation was valid where
Under the reasonableness standard, appropriator. This permitted the water simply went to waste.4'
a use has economic value if it has wasteful appropriation of water An advantage of the former
utility and value to the user. Uses resources. As competition for water "beneficial use" standard is the
which fulfill riparian needs and do became more fierce, the appro- more efficient utilization of water
not detrimentally interfere with the priator with the most beneficial use resources. Also, the perpetual
use of other riparians have was allotted the water, thereby nature of the water right injects
economic value, and are declared discouraging wasteful uses, and stability into the system. This
reasonable.3 encouraging an economic benefit
The "reasonable use" standard approach to water allocation. A use
has several advantages. Because had to be beneficial not only in the
allocation among users is not static, abstract sense, but had to be SCIENTIFIC ASSISTANCE
there is a continual readjustment of economical in light of other IN LITIGATION
water resources. This provides a demands for water-current
built-in emergency allocation and future.3s Subsequently, PRODUCT LIABILITY
system during times of shortage. many states enacted statutes POLLUTION
Also, the prohibitions versus declaring certain uses to be ARSON / BALLISTICS
unnecessary waste encourages beneficial, and accorded statutory
utilization of modem technological preferences to these uses. These Modern and fully equipped laboratory
developments. One disadvantage statutes reflect dissatisfaction with on premises. Qualified Analysts, Chem-
of the "reasonable use" standard of a pure "beneficial use" system of ists and Engineers. Experience prepar-
allocation is instability. A allocation, which occasioned a ing and presenting expert testimony.
consumptive user, investing large tremendous waste of water KEY LABORATORIES, INC.
amounts of capital in an enterprise, resources. 2636 Walnut Hill Lane, Suite 275
needs assurance that water Several factors are determinative oalas, Texas 75229
resources will be available during of a "beneficial use" of water. The 214-350-5841
VOLUME 52, NUMBER 1, JANUARY 1979 27
ENVIRONMENTAL LA systems.46 In 1972, these enact ats operation may be utilized. As a
culminated in the drafting of the further limitation, wasteful uses
Model Water Code.47 This Code will not be permitted in times of
"combined the best features of both excess or shortage.;
the riparian and appropriative The second feature of
systems" and formulated a new reasonableness merely incorporates
statutory standard for water the prior construction of
encourages massive capital allocation-the standard of "reasonable use" within the
investment. However, the pure "reasonable-beneficial use." framework of the new standard.
beneficial standard encouraged Subsequently, the Florida The former reasonableness
excessive use of water resources, Legislature mandated adoption of limitation is adopted as a further
since failure to appropriate the "reasonable-beneficial use" limitation on the economic benefit
occasioned forfeiture of the right to standard to govern water resources limitation. One can therefore rely
the excess. allocation.48 upon Florida's construction of
"reasonable use" to define this
Reasonable-Beneficial Legislative History element of the new standard.
Use Standard In contrast to voluminous The third feature, consistency
Dissatisfaction with the legislative history at the federal with the public interest is also
"reasonable use" and "beneficial level, legislative history is minimal clarified in the commentary. Two
use" standards prompted a new in Florida. Indeed, there is no classes of water use are listed in this
statutory approach to water recorded legislative discussion of section-beneficial uses, and uses in
resources allocation. Uncertainty the 1972 Water Resources Act to the public interest. Uses in the
and continued accommodation provide a clear test of what public interest are preferred when
between competing users under the constitutes a "reasonable-beneficial competing applications are made
"reasonable use" standard use." However, close examination for a permit. The commentary
discouraged massive capital of the Model Water Code discloses suggests that each usemustfirstbea
investment. The "beneficial use" a similar approach to management reasonable-beneficial use. The
standard encouraged wasteful, of water resources, and in following criteria are suggested for
excessive uses of water. Prompted particular, its adoption of the the board to consider in this
by these inherent weaknesses, in "reasonable-beneficial use" determination: public uses are
1958 the Legislative Research standard of allocation.49 It is preferred over private uses,
Council at the University of apparent that the Florida legislators economically more productive uses
Michigan drafted the Model Water relied on the Model Water Code are preferred, and purposes
Use Act.43 The Act advocated while drafting Chapter 373. declared to be in the public interest
creation of a state water use agency Therefore, the commentary in the are given high priority. In addition,
responsible for issuance of water Water Code may be used to clarify the board may look to the State
permits for definite periods, with 50 legislative intent behind provisions Water Plan which may have
years the suggested maximum. in the Water Resources Act. established preferred uses.
Although enacted only in Hawaii," According to this commentary, Florida has codified certain
it spurred a trend toward state the "reasonable-beneficial use" of objectives to be te
control of water resources water contains three main features: objties and also de i te lic
interest,s and also declares that in
management. In 1965, Iowa (1) economic benefit; (2) thecase of competing applications
enacted a far-reaching permit reasonableness; and (3) consistency such uses shall have preference
system regulating all existing and with the public interest. In its However clashes between water
unused water rights under the summary of the first feature, the Hwever, cashetrts teen te
quantity ,,management districts and the
broad standard of "beneficial commentary states that the quantity atment Adinistratin
Department of Administration
use. In addition, western states used must be economically have thwarted development of the
were regulating usufructuary rights efficient. Only the minimum State Water Plan. Development of
by other less comprehensive permit amount of water required for the
an established preference system
via the State Water Plan would
ECONOMIC SERVICES effectuate an allocation system
analogous to that proposed in the
Water Code. Such definitive
criteria would remedy the
HUMAN LIFE VALUES IN PI CASES constitutional weaknesses of
BUSINESS VALUATION PRODUCT LIABILITY Chapter 373 by providing a clear
FEASIBILITY STUDIES BANK / S & L APPS test of what constitutes a
ATTORNEY CLIENT REFERENCES ON REQUEST reasonable-beneficial use.
Florida Case Law Silent
NATIONAL RESEARCH CORPORATION Florida case law fails to elucidate
what constitutes a "reasonable-
1401 BRICKELL AVENUE SUITE 305 MIAMI FLA beneficial use" of water. Past
JOHN A. FORD, PRESIDENT 305/373-4100 judicial construction first revealed a
_"reasonableness" approach to
28 THE FLORIDA BAR JOURNAL
water allocation in Tati,pa Chapter 373 on a statewide basis is R. HEALY' LAND USE AND THE STATES,
Waterworks v. Cline.52 The court practicable. This will remedy the Chapter Five (1976). By digging artificial
lakes to great depths, the developers acquire
ruled that one can take reasonable Water Resources Act from the large amounts of fill dirt necessary for
quantities for domestic uses, but possible constitutional attack due to development in wetland areas. However,
prohibited' wanton diversion to arbitrary administration and environmental problems are augmented by
another place. This prohibition unlawful delegation of legislative this process. Water tables are lowered The
.natural cleansing action of a lake is
against diversion to another place power, prevented at depths beyond 10-12 feet, and
was removed in Koch v. Wick53 but As. caselaw evolves more results in pollution. This surface water,
the rule of "reasonable use" definitive guidelines to determine a unfiltered by slow soil seepage, mixes
survived. In addition, Cason v. "reasonable-beneficial use," it is to directly with water from the underground
Florida Power54 held that the be hoped that a statutory scheme of aquifer without he natural purificationis
doctrine of reasonable use was preference could be developed to For a good discussion of Florida's
specifically adopted with respect to ensure uniformity in application. environment problems see L. CARTER, THE
groundwater. This doctrine of This system will promote statewide FLORIDA EXPERIENCE LAND AND WATER
"reasonable use" has been affirmed coordination of water resources POLCY IN A GROWTH STATE (1975).
I in subsequent cases.ss management and will eliminate the z NicholsWaitin Water War, F7A
In addition to reasonableness, pressures on the water management 7 Comprehensive Planning Act, FLA. STAT.
dictum in several Florida cases districts from local interest groups. 163.160-163.3211 (1972); Water Resources
indicates support for a correlative It is the best answer to the serious Act, FLA. STAT. 373.012-373.6161 (1972);
rights approach to water allocation, water shortages that Florida faces and the Environmental Land and Water
Under a correlative rights in the future. M agem Act. FLA. STAT. 380.012-
approach, each landowner is s FLA. CONST. art. II, 7 (1968): "It shall be
entitled to the use of water I R. HEALY, LAND USE AND THE STATES, the policy of the state to conserve and protect
dependent on the amount of Chapter Five, (1976). Between April 1970 its natural resources and scenic beauty.
overlying land, such right of use of and July 1974, Florida's population grew by Adequate provision shall be made by law for
correlative with the similar rights of 1,301,000 or 19.2 percent. In 1973, one out of the abatement of air and water pollution and
correlative ith the similar rights of every seven homes built in the United States of excessive and unnecessary noise.
surrounding landowners.56 was built in Florida. 9 FLA. STAT. 373.012-373.6161 (1977).
City of St. Petersburg v. Maloney, Florida's Ground Water: Legal 10 FLA. STAT. 380.012-380.12 (1977).
Southwest Florida Water Problems in Managing a Precious Resource, 1 FLA. STAT. 163.160-163.3211 (1977).
Management District discusses the 21 U. MIAMI L. REV. 754, 754-56 (1967). 12 FLA. STAT. 373.026 (1977): "The
correlative rights approach to water Surface water seeps down to the zone of Department of Environmental Regulation,
correlative rights approach to water saturation and fills the voids in the rocks. or its successor agency, shall be responsible
allocation, but fails to rule This subsurface water is known as for the administration of this Chapter at the
definitely on the viability and groundwater, and is the source of supply for state level However, the department may
validity of the water crop freshwater springs and wells. Groundwater enter into interagency agreements with any
theory.57 Under this theory, water percolates through the ground in response to other state agency conducting programs
hydrostatic pressure and gravity. When related to or materially affecting the water
yield is determined by the amount encased in a porous, permeable limestone resources of the state."
of acreage. In absence of evidence bed, this groundwater is referred to as an 13 FLA. STAT. 373.069 (1977).
to the contrary, water crop is aquifer. The Floridan aquifer, which 14FLA. STAT. 373.203-373.249 (1977).
assumed to be 1,000 gallons per acre occupies the northern and central sections of This section of the Water Resources Act is
the state, is the largest and deepest source of entitled "Permitting of Consumptive Uses of
per day. A permit may be denied if fresh water resources in Florida. Although Water."
the amount of water consumptively near the surface in some areas, this acquifer is FLA. STAT. *473.073 (1977). This
used exceeds the water crop of is hundreds of feet deep in other areas. See governing board is composed of nine
lands owned, leased or otherwise also F. MALONEY, S. PLACER AND F. BALDwIN, members who shall reside in the district. The
controlled by the applicant. Since WATER LAW AND ADMINISTRATION: THE term of office is four years, and members
FLORIDA EXPERIENCE, 141-45 (1968). shall be appointed by the governor, subject
each landowner is presumptively 3 Secondary aquifers include; the Biscayne to Senate confirmation. Refusal or failure of
entitled to an amount of water aquifer in Dade and Broward counties, a the Senate to confirm shall create a vacancy
geared to the amount of land shallow aquifer, located in Southern Florida in the office to which the appointment was
I owned in effect, a correlative and the coastal regions along the Atlantic, made.
g o allocation is and a sand and gravel aquifer located in i1 FLA. STAT. *373.0697 (1977): "The
rights approach to allocation IS Northwest Florida. For a diagramatic respective basins may, pursuant to *9(b),
being utilized, illustration of their locations, see Nichols, Art. VII of the State Constitution, by
Waiting Water War, FLORIDA TIMES UNION, resolution request the governing board of
Conclusion Feb. 13-18, 1978 and Maloney, Florida's the district to levy ad valorem taxes within
Florida's adoption of the Ground Water: Legal Problems in Managing such basin. Upon receipt of such request, a
"reasonable-benef icial use" a Precious Resource, 21 U. MIAMI L. REV. 758 basin tax levy shall be made by the board of
(1967). the district to finance basin functions
standard proposes maximum 4 When the fresh water is excessively enumerated in *373.0695, notwithstanding
utilization of our water resources, overdrawn from an aquifer, the salt water the provisions of any other general or special
Despite the fact that the legislature may move up into fresh water resources, law to the contrary, and subject to the
has failed to clearly define this new This is illustrated by the Ghyben-Herzberg provisions of *373.503(3).
standard of allocation, legislative principle. Fresh water is lighter than salt 7 FLA. STAT. 373.203-373.249 (1977).
standard of allocation, legislative water and floats on top of it. It takes one foot 's FLA. STAT. *373.223 (1977): "Conditions
history and case law will develop an of fresh water to support a column of salt for a permit.-(1) To obtain a permit
identifiable set of factors which water 40 feet high. When too much fresh pursuant to the provisions of this Chapter,
comprise this use. When these water is removed to balance the salt water, the applicant must establish that the
factors are utilized by water salt water intrudes into fresh water proposed use of water: (a) Is a reasonable
actors are u ze y waer resources. For a detailed discussion of salt beneficial use as defined in *373.019(5); and
management districts in the water intrusion see J. M. PEARCE, SALT (b) Will not interfere with any presently
issuance of consumptive use WATER INTRUSION IN WELL FIELDS OF existing legal use of water; and (c) Is
permits, uniform application of CoASTAL FLORIDA (1953). consistent with the public interest...."
VOLUME 52. NUMBER 1, JANUARY 1979 29
ENVIRONMENTAL LA,. surface water. For a general discussion, of the Excessive diversion during a drought was
law with respect to groundwater see Moses, clearly unreasonable. Appropriation of
Basic Groundwater Problems, 14 RocKY MT. excessive quantities during normal times did
M.L. INST. 501 (1968). For a treatment of not give a prescriptive right to the excess
Florida's law on groundwater see Maloney, under abnormal conditions.
Florida's Groundwater: Legal Problems in 3 Trelease, The Concept of Reasonable
Managing a Precious Resource, 21 U. MIAMI Beneficial Use In The Law of Surface
L. REV. 751 (1967). Streams, 12 WYo. L. J. 1, 6 (1957). In his
'1 FLA. STAT. 373.036 (1977): "State water 23 Salem Flouring Mills v. Lord, 42 Ore. 82, discussion of the older "reasonable use"
use plan.-(1) The department shall proceed 69 P. 1033 (1902) (penitentiary); Purcellville standard the author states: "There is no fixed
as rapidly as possible to study existing water v. Potts, 179 Va. 514, 19 S. E. 2d 700 (1942) category of riparian uses, and almost any
resources in the state;...The department shall (City). application of water that fulfills a need or
cooperate with the Division of State 24 66 Ohio 19, 63 N.E. 600 (1902). The desire of man can be considered a proper
Planning of the Department of court held that a city located on a stream use, so long as it is reasonably exercised with
Administration to formulate, as a functional could draw water for the domestic use of its due regard to the equal rights of other
element of a comprehensive state plan, an inhabitants as could any other riparian on the riparian proprietors."
integrated, coordinated plan for the use and stream. Accord Filbert v. Dechart, 22 Pa. 31 W. HuTcHmNS, WATER RIGHTS LAWS IN
development of the waters of the state...." Super 362 (1903) which extended the THE NINETEEN WESTERN STATES, 396-400
20 F. TRELEASE, CASES AND MATERIALS ON domestic use preference to inhabitants of an (1971). Priority is an essential ingredient of
NATURAL RESOURCES 8-16, 116-35 (1965). The insane asylum. See also United States v. the usufructuary right under the law of prior
riparian system of water law was suitable to Fallbrook Public Utility Dist., 109 F.Supp. appropriation. The principle was first
the Eastern United States, due to an 28 (S. D. Cal. 1952.) In this case, the United established by California miners. Eddy v.
abundance of annual rainfall. This theory of States as proprietor of a military camp was Simpson, 3 Cal. 249, 58 A.D. 408 (1853).
law embodies the principle that all likened to a hotel or resort owner, and Rights to divert water from the stream were
proprietors on a watercourse or lake have allocated water for 5,000 men under the held to be on equal footing. When they
equal rights in respect to the use of the water, domestic use preference. conflict, they must be decided by the fact of
For a summary of riparianism in the Eastern Harris v. Brooks, 225 Ark. 436,283 S.W. priority. Priority of a particular
United States see CONSERVATION 2d 129 (1955); Taylor v. Tampa Coal Co., 46 appropriation is dependent upon the date of
FOUNDATION, THE LAW OF WATER So.2d 392 (Fla. 1952); Hoover v. Crane, appropriation. All appropriations prior in
ALLOCATION IN THE EASTERN UNITED STATES 362 Mich. 36, 106 N.W. 2d 563 (1960); date are senior, and all dates later are junior.
(1958). Johnson v. Siefert, 257 Minn. 159, 100 N.W. In times of shortage, waters appropriated to
21 Silver Blue Lake Apartments, Inc. v. 2d 689 (1961); Bolingerv. Henry, 375 S.W. 2d seniors and then juniors on the basis of these
Silver Blue Lake Home Owners Ass'n., 245 161 (Mo. 1964). These cases recognized the dates of appropriation. Between
So.2d 609 (1971); Koch v. Wick 87 So.2d 47 reasonableness of irrigation of crops under appropriators, the first in time is the first in
(Fla. 1956); Labruzzo v. Atlantic Dredging the particular facts of each case. right.
and Construction Co., 54 So.2d 673 (Fla. 26 Trelease, The Concept of Reasonable 32 Trelease, The Concept of Reasonable
1951); Cason v. Florida Power Co., 74 Fla. 1, Beneficial Use In The Law of Surface Beneficial Use In The Law of Surface
76 So. 535 (1917). For a summary of other Streams, 12 WYO. L. J. 1, 5 (1957). The Streams 12 WYo L. J. 6-7, (1957). Beneficial
jurisdictions which have adopted the reasonable use of water for power use is the basis, limit and measure of the
reasonable use standard see CONSERVATION generation has been recognized with certain appropriative right. When a use ceases to be
FOUNDATION, THE LAW OF WATER limitations. Definite quantities of water beneficial, the right to use ceases also. The
ALLOCATION IN THE EASTERN UNITED STATES couldn't be decreed in advance since the water must be put to a useful and
(1958). Uses which have been held reasonable, riparian right is premised upon reasonable nonwasteful purpose for the use to be
based on case by case factual determination, uses of other riparians. "Reasonableness is deemed beneficial. Many states have
are summarized in Trelease, The Concept not to be determined solely by reference to codified the beneficial use concept. Certain
of Reasonable Beneficial Use In The Law of the needs of one user, nor solely from the uses are declared to be beneficial, and are
Surface Streams, 12 WYO. L. J. 1, 1-6 (1957). standpoint of the person harmed." This accorded statutory preferences. See W.
22 F. RELEASE, CASES AND MATERIALS ON requires a balancing of the utility of the use HUTCHINS, WATER RIGHTS LAWS IN THE
NATURAL RESOURCES 102-06 (1965). versus the gravity of the harm. NINETEEN WESTERN STATES 438-42 (1971).
Subterranean waters are of two types: (1) Gehlen Bros. v. Knorr, 101 Iowa 800,80 33 Hufford v. Dye, 162 Cal. 147, 121 Pac.
percolating waters and (2) underground N.W. 757 (1897). In the determination of 400 (1912); Dalton v. Kelsey, 58 Oreg. 244,
streams. The underground streams were reasonableness, the court stated that the 114 P. 464 (1911). For a discussion of the
governed by the same riparian principles extent and duration of the harm was one beneficial use limitation see F. TRELEASE,
applicable to surface water. Reasonable use factor to be considered. Here, the plaintiff CASES AND MATERIALS ON NATURAL
was the measure of the riparian right, constructed a dam to form a pond from RESOURCES 28-31 (1965).
Percolating groundwater escaped the which to harvest ice. This resulted in only a 34 Coffin v. Left Hand Ditch Co., 6 Colo.
reasonable use standard. It was subject to the two to three day detention of water from the 443, 449-51 (1882). "In the absence of
English rule of absolute ownership first downstream mill owner. The court held that legislation to the contrary, we think that the
clarified in Acton v. Blundell, 12 M. & W. the harm caused was de minimus, and right to water acquired by priority of right is
324, 152 Eng. Rep. 1235 (1843). Under this therefore the use was reasonable. not in any way dependent upon the locus of
doctrine, the landowner could extract an 2 Warner Valley Stock Co. v. Lynch, 215 its application to the beneficial use
unlimited amount of percolating water from Ore. 525, 336 P. 2d 884 (1959). Here the court designed." This usufructuary right is
his land without regard to the harmful effect ruled that an irrigation system, instituted by recognized in perpetuity and since not
on surrounding land. It was based on the a subsequent user to the detriment of a restricted to use on riparian land, is a freely
maxim cujus est soluin, ejus est usque ad preexisting user, must be employed to keep transferable property right. Yellowstone
coelumet ad inferos (to whomsoever the soil pace with modern developments. Valley Co. v. Associated Mortgage
belongs, he also owns to the sky and to the Therefore, the subsequent user was required Investors, Inc., 88 Mont. 73, 84, 290 Pac. 255,
depths). This harsh rule of absolute to incur the reasonable expenses necessary to 259 (1930). "The owner of land with an
ownership was first rejected by New institute a more modern irrigation system. appurtenant water right may, by
Hampshire. Bassett v. Salisbury Mfg. Co., 43 Other jurisdictions which require avoidance appropriate conveyance, convey the land to
N.H. 569, 82 A.D. 179 (1862). The absolute of harm for "reasonable use" include: one person and the water right to another."
ownership doctrine caused hardship to Rancho Santa Margarita v. Vail, 11 Cal. 2d. M F. TRELEASE, CASES AND MATERIALS ON
surrounding landowners, and the court 501, 81 P.2d 533 (1938); Colorado Springs v. NATURAL RESOURCES, 30 (1965). The pure
adopted the reasonable use standard of Bender, 148 Colo. 458, 366 P.2d 552 (1961); "beneficial use" concept permitted any use
allocation for groundwaters. In 1956, the Hazard Power Co. v. Somersville which was useful to the appropriator,
Florida Supreme Court also adopted the Manufacturing Co., 78 Conn. 171, 61 A. 519 regardless of the present and future needs of
reasonable use standard for groundwater (1905); Willis v. Perry, 92 Iowa 417, 60 N.W. others. However, now a use must be most
allocation. Koch v. Wick, 87 So.2d 47, 48 726 (1894); and Crowley v. District Court, beneficial as between competing users.
(1956). Thus, the reasonable use standard 108 Mont. 89, 88 P.2d. 23 (1939). M Nebraska v. Wyoming, 325 U.S. 589,656
was now applicable to both ground and 67 Neb. 500, 93 N.W. 713 (1903). (1945). See also Trelease, The Concept of
30 THE FLORIDA BAR JOURNAL
Reasonable Beneficial Use in the Law of presently existing legal use of water, and (c) definitive statement of the reasonable use
Surface Streams, 12 WYo. L. J. 1, 8-9 (1957). is consistent with the public interest and concept appears in this case. Here, a riparian
7 Osnes Livestock Co. v. Warren, 102 provisions of the State Water Plan." owner erected and maintained a dam
Mont. 284, 62 P. 2d 206 (1935). 5s FLA. STAT. 373.016 (1977). The across a stream, which raised the level of the
38 Cascade Town Co. v. Empire Water & following uses are declared to be in the stream and obstructed the flow of
Power Co., 181 F. 1011 (C.C.D. Colo. 1910), public interest: management of water and percolating waters on adjoining land. These
rev'd. on other grounds, 205 F.123 (8th Cir. related land resources, conservation and higher subsurface waters injured the crops of
1913). In this case a power company utilization of ground and surface water, the adjoining landowners.
diverted a stream that flowed through a water storage for beneficial purposes, ss Koch v. Wick, 87 So.2d 47 (Fla. 1956);
resort and formed a beautiful waterfall. prevention of damage from floods, soil Labruzzo v. Atlantic Dredging &
Although the resort owner lost the case, the erosion and excessive drainage, preservation Construction Co., 54 So.2d 673 (Fla. 1951);
court declared that public health, rest and of natural resources, fish and wildlife, Taylor v. Tampa Coal Co. 46 So.2d 392 (Fla.
recreation constituted a beneficial use. promotion of recreational development and 1950).
"Places such as that described here favored navigability, and the protection of the 56 In Cason v. Florida Power, 74 Fla. 1,76
by climatic conditions, improved by the health, safety and welfare of the people of So. 535 (1917), the court stated that property
work of man, and designed to promote the state. rights relative to the passage of subterranean
health by affording rest and relaxation are 's FLA. STAT. 373.233 (1977). waters are correlative, and a landowner must
assuredly beneficial" Id at 1017. s' 37 Fla. 586, 20 So. 780 (1896). use only so much water so as not to injure the
State Department of Parks v. Idaho 53 87 So. 2d 47 (Fla. 1956). The right of a property rights of adjoining landowners.
Dept. of Water Administration, 96 Idaho county to pump percolating groundwater This language is restated in the recent case of
440, 530 P.2d 924 (1974). from land leased by the county and adjacent Labruzzo v. Atlantic Dredging &
4" Denver v. Brown, 56 Colo. 216,138 Pac. to another landowner was bounded by Construction Co., 54 So.2d 673 (Fla. 1951).
44 (1913). For a discussion of uses held reasonable use. See also, Jupiter Inlet v. 57 355 So.2d 796 (2d D.C.A. 1977). The
beneficial under case law and statutory Village of Tequesta, 349 So.2d 216 (Fla. 4th water management district issues
enactments see Trelease, The Concept of D.C.A. 1977). consumptive use permits pursuant to
Reasonable Beneficial Use In the Law of s4 74 Fla. 1, 76 So. 535 (1917). The most allocation based on the water crop theory.
Surface Streams, 12 Wo. L. J. 1, 6-14 (1957).
1 COLO. REV. STAT. 37-92-103(4) (1973)
provides: 'Beneficial Use' is the use of that
amount of water that is reasonable and
appropriate under reasonably efficient
practices to accomplish without waste the
purpose for which the appropriation is
lawfully made and, without limiting the
generality of the foregoing includes the
impoundment of water for recreational
purposes, including fishery or wildlife...."
Power v. Switzer, 21 Mont. 523, 55 P. 32
(1898). The court held that where an
appropriator diverted more than was
needed and allowed the excess to go to
waste, he acquired no right to the excess.
'3 MODEL WATER USE Acr (1958).
HAw. REV. STAT. 87A-87B (1965). FLORIA R
4' IowA CODE. 455A (1965). t FORIDA below
46 LAsKA STAT. 46.15.010-270 (1966);
ARIz. RE. STAT. ANN.. 45-142 (Supp. 1971);
CAL. WATER CODE 1225 (West 1971); IDAHO B IN
CODE ANN. 42-202 (Supp. 1969); KAN. STAT.
ANN. 82a-709 (1969); NEB. RE. STAT. ANN. Easy storage and accessibility of your Florida Bar Journal is now avail-
46-233 (1968); NEv. REv. STAT. ANN. able. Simply store your monthly issues in these attractive custom-
533.325 (1963); N. M. STAT. ANN. 75-5-1 designed binders. Voila .. at your fingertips.. any issue you need.
(1968); N. D. CENTURY CODE ANN. 61-04
(Supp. 1971); Oi. STAT. ANN. tit. 82, 21 The use of binders for monthly publications is the time honored success-
(1970); ORE. REV. STAT. ANN. 537 (1969); ful method for preserving and keeping handy, professional journals for
S. D. CODE ANN. 46-5 (1969); future reference
Ch. 58, 5.121-134  TEx. LAWS Attractive, made of imitation brc un leather with gold imprinting, these
125-29; UTAH CODE ANN. 73-3-1 (Supp. durable binders will store orne ful. year's issues. Clear pocket for labeling
1967); WASH. CODE ANN. *90.03.250 (Supp. year and volume.
1970); WYO. STAT. ANN. 41-201 (Supp.
1971). Order yours today.Only $4.16 includes tax and shipping.
F. MA.LONEY, R. AUSNESS & J. MORRIS, A
MODEL WATER CODE Wrrn COMMENTrARY
(1972). "This code was drafted to provide a" """"""'" """"""""""
vehicle for comprehensive state regulation
of water resources." Maloney and Ausness, A THE FLORIDA BAR JOURNAL
Modern Proposal for State Regulation of % TALLAHASSEE, FLORIDA 32304
Consumptive Uses of Water, 22 rHAsmrcs L. O Please enter my order for Journal Binders and send I
J. 523 (1971). This article provides an to the address below
excellent short summary of the main features
and objectives of the Model Water Code. % NAME ATTORNEY NO.___
4s Fa. STAT. 373.223 (1977). I
4 F. MALONEY, R. AUSNESS & J. MORRIms, A 1 ADDRESS I
MODEL WATER CODE WITH COMMENTARY 179 CITY STATE ZIP
(1972). "2.02 Conditions for a Permit (1) To
obtain a permit pursuant to the provisions of I
this chapter, the applicant must establish that a
the proposed use of water (a) is a reasonable-
beneficial use as defined in 1.03(4) of this
code, (b) will not interfere with any
VOLUME 52, NUMBER 1, JANUARY 1979 31