r N CHAPTER I
COMMON LAW WATER RIGHTS
A. Water Law and the Hydrologic Cycle.
Scientists have long recognized that water moves in
what is known as the hydrologic cycle, the recurring pro-
cess through which water passes from atmospheric water
vapor into liquid and solid form as precipitation, thence
along or into the ground, finally returning to atmo-
spheric water vapor by evaporation and transpiration.
The law, however, has classified water as if the differ-
ent physical stages of water were separate and distinct,
rather than interrelated parts of the hydrologic cycle.
As stated in an early Florida case, this classification
has generally included the following four classes of
(1) [S]urface streams which flow in a
permanent,. distinct, and well-defined
channel from the lands of one owner to
those of another; (2) surface waters,
however originating, which, without
any distinct or well-defined channel,
by attraction, gravitation, or other-
wise, are shed and pass from the
lands of one proprietor to those of
another; (3) subterranean streams
which flow in a permanent, distinct,
and well-defined channel from the
lands of one to those of another pro-
prietor; (4) subsurface waters which,
without any permanent, distinct, or
definite channel, percolate in veins
or filter from the lands of one owner
to those of another.
These are the familiar classifications of what are com-
monly known as watercourses, diffused surface waters, dis-
tinct underground streams, and percolating ground water.
The hydrologist is quick to point out that these classes
are not distinct, but closely interrelated:
The legal classes of water, as listed
above, are now known not to be separate
and distinct, but to be interrelated
and interdependent. The minimum flow
of water in watercourses comes chiefly
from ground water, whether from "de-
fined underground streams" or "per-
colating" water. The maximum flow of
water in watercourses also comes in
part from ground water, but is likely
to include a large proportion of water
that was temporarily "diffused surface
water." "Diffused surface waters" may
include water from precipitation which
has not completed the process of in-
filtrating into the ground or which
cannot enter the ground because of
impermeability of the surface layer,
or because the ground is temporarily
full; overland flows which may either
seep into the ground elsewhere or
enter a watercourse or lake or pond;
the discharge from ground water res-
ervoirs at springs or seeps; water in
sloughs or escaped floodwaters in
"watercourses" that have been too nar-
rowly limited in their definition; and
marshes and bogs formed by ground water
where the water table rises to the
Nevertheless, we will observe the traditional classi-
fications in the following discussion of common-law
water rights while at the same time remaining aware
that these legal categories often obscure the under-
lying hydrologic relationships.
B. Contained Surface Water.
Within a country as large and diverse as the United
States, with tremendous variations in the quantities of
available fresh water, it is not surprising that differ-
ent systems of regulating water use should have developed.
While the United States, viewed in its entirety, has a
bountiful supply of water, only the eastern and particu-
larly the southeastern United States, including Florida,
is normally blessed with an ample annual rainfall. The
western United States, especially that part of the coun-
try west of the Mississippi River, is much more arid,
with the exception of a relatively narrow band along
the northwest coast, including the western edges of the
states of Washington and Oregon, and parts of Northern
As the United States developed, the more humid
East found variations of what became known as the
"riparian" system of water law suitable to its earlier
needs, whereas the arid West adopted the,system of
water law known as prior appropriation.
1. The Prior Appropriation System.
The prior appropriation system is the primary mech-
anism for water allocation in the western United States.
Priority and beneficial use are its fundamental charac-
teristics. The prior appropriation doctrine provides
that the appropriator is entitled to satisfy his water
needs before a subsequent appropriator may divert water
from the stream. The subsequent or junior appropriator
also possesses a legally protected water right, but it
is subordinate to that of the senior appropriator.
Under prior appropriation, water rights are derived
from beneficial use of the water rather than from land
ownership. Not only must the use be a beneficial one,
but the methods of diverting the water, conveying it to
the place of use, and applying it to the land or machin-
ery for which it is appropriated must also be efficient.
under the circumstances. Appropriations are made for
a definite quantity of water, usually expressed in
cubic feet per second for direct diversion or in acre-
feet for reservoir storage.10 Diversions are often
limited to specific times of the day or week. More-
over, administrative procedures for appropriating water
invariably require the applicant to designate the pro-
posed place of use for the water he desires to
appropriate.12 The place of use may be on nonripar-
In the West, water rights are perpetual in dura-
tion, although they may be lost or abandoned through
nonuse. However, several states have enacted statutes
giving certain uses preferred status for purposes of al-
locating water during times of shortage or for choosing
between simultaneous applications. In addition, some
states give these preferred uses condemnation powers.
Nowadays, appropriative rights usually operate within a
comprehensive statutory and administrative framework.
In most jurisdictions permits are issued by a state ad-
ministrative agency pursuant to some form of adjudica-
tory process. The agency often has the power to deny or
modify permit applications in order to protect senior ap-
propriators or the public interest.17
U ~ -
Despite some problems with inefficient use, over-
appropriation, and lack of transferability, the prior
appropriation system has worked relatively well in the
West. This has lead some experts to urge its adoption
in the East. Since World War II at least nine eastern
18 19 20
states including Arkansas, Georgia, Florida,
21 22 23
Michigan, Mississippi, North Carolina, South
, 24 25
Carolina, Wisconsin, and, most recently, West
Virginia,2 have considered the desirability of switch-
ing to an appropriative type system creating vested
water rights, but only Mississippi has adopted such an
approach;27 the others have all rejected it.28 Never-
theless, many eastern states, including Florida, have
modified the riparian system by adopting statutory
water allocation schemes which contain a number of prior
2. The Riparian System.
The riparian system of water law which developed in
the states east of the Mississippi River, paralleled the
development of the common law of England. It is a
system of water rights based on ownership of land abutt-
ing on surface watercourses, including both lakes and
streams. The owners of such land are referred to as
riparian owners. It continues to apply in those areas
of Florida which have not implemented the consumptive
use permit system authorized by the Florida Water Re-
sources Act of 1972.
a. Consumptive Use Rules.
There are two doctrines that govern consumptive
rights to water under the riparian system, the natural
flow doctrine and the reasonable use rule.
i. The Natural Flow Doctrine.
Under the natural flow doctrine, each riparian pro-
prietor on a watercourse is entitled .to have the stream
flow through his land in its natural condition, not per-
ceptibly retarded, diminished or polluted by others.
This doctrine is based on the principle that the law
should follow nature and that each proprietor on a
stream should be entitled to have the stream continue to
flow in its natural state through his land.
Consumptive uses are not entirely prohibited by the
rule, but ai distinction is made between "natural" and
"artificial" wants or uses. Natural uses are those
necessary to sustain life and include water for bathing,
drinking, household purposes, and watering animals.
The natural flow doctrine allows a riparian proprietor
to use as much water as he needs for his domestic or
natural uses even if this depletes the entire stream-
Artificial uses are those which increase man's com-
fort and prosperity and include irrigation, manufactur-
ing, power generation, mining operations, and large-
scale stock watering.38 Riparian landowners may divert
water for artificial uses as long as there is no
material interference with the natural flow of the water-
course, but a nondomestic use which noticeably affects
the natural condition of the stream creates a cause of
action for a downstream owner even though he is not
using the stream and suffers no actual damage. The
plaintiff is deemed to be injured by the change in the
natural flow or condition of the stream and may obtain
nominal damages or injunctive relief.40 In fact, under
the natural flow doctrine, the downstream owner is may
be forced to institute an action in order to protect his
rights against the acquisition of a prescriptive right
by an upper riparian user even though the diversion is
harmless under the existing circumstances.
In the early days of the Industrial Revolution,
when many mills and factories were powered by water,
the natural flow doctrine ensured that the water passed
down from one mill dam to the next. Under modern con-
ditions, however, the natural flow doctrine has little
utility. It prohibits many beneficial, nonharmful uses
simply because they materially diminish the natural
flow of the water. The natural flow doctrine also per-
mits a riparian proprietor to play "dog in the manager;"
that is, he does not use the water himself but deprives
the upstream owners of its use as well. Fortunately,
only four or five states still adhere to the natural
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ii. The Reasonable Use Rule.
The reasonable use rule is now the majority posi-
tion, at least in the eastern United States. The reason-
able use rule and the natural flow doctrine reflect
widely divergent attitudes about man's relation to a
watercourse: The natural flow doctrine emphasizes the
status quo of nature, whereas the reasonable use rule
seeks to promote the fullest beneficial use of streams
by adjacent riparian owners.45 Under the reasonable use
rule, each riparian proprietor may use the water for any
beneficial purpose, provided that the intended use is
reasonable with respect to the needs of other proprietors
on the stream and does not unreasonably interfere with
their legitimate water uses. Of course, the mere fact
of benefit to the user does not establish the reason-
ableness of the use. Moreover, neither the priority
of use nor the extent of riparian frontage or riparian
land are generally considered in determining reason-
ableness. Although riparian rights are regarded as
equal or correlative, each riparian user is not neces-
sarily entitled to a proportionate share of the avail-
able water. Indeed, where the water supply cannot
satisfy the needs of all riparian users, some uses,
otherwise beneficial, may be deemed unreasonable under
the circumstances and prohibited.49
The determination of the reasonableness of a use
is a question of fact and must be resolved on a case-by-
case basis. The Restatement (Second) of Torts has
identified nine factors which courts have taken into
consideration in determining whether a use is a
"reasonable use." These are: (1) the purpose of
the respective uses; (2) the suitability of the uses
to the water course or lake; (3) the economic value
Sof the uses; (4) the social value of .the uses; (5) the
| extent and amount of the harm caused; (6) the prac-
ticality of avoiding the harm caused; (7) the prac-
ticality of adjusting the quantity of the water used
by each proprietor; (8) the protection of existing
values of land, investments and enterprises; and,
(9) the burden of requiring the users causing the harm
to bear the loss.
Whether a use is reasonable depends in part upon
the purpose of that use. The Restatement (Second) of
Torts notes, "A reasonable use must be one made for a
beneficial purpose that fullfills a lawful need or de-
sire of man."5 As in the case of the natural flow
doctrine, courts examining the purpose of consumptive
use have sometimes distinguished between natural and
At common law, all uses which are not natural uses
are considered artificial uses and have no preferential
status.53 A wide variety of artificial uses, however,
are potentially "reasonable" uses. Use of water for
the purpose of irrigation has been considered both reason-
able and beneficial. Other artificial but reasonable
uses include use of water for fishing, swimming, rec-
reaction, and manufacturing.58
Many courts have recognized the suitability of the
watercourse as a factor in determining the reasonableness
of the use. Suitability refers to the reasonableness of
a use with respect to the size and character of a water-
course. Unreasonable uses may consume more water than
the stream normally delivers or may impair recreational
and environmental values. A new use may not be compat-
ible with the preexisting pattern of uses.59
Whether a use is reasonable often hinges on its util-
ity and value to the user, measured in economic terms.6
Economic value may be evident in the productivity of the
use of water in irrigation or manufacturing. Economic
value may also arise from the recreational or scenic uses
Social values, or the public interest, have weighed
heavily as a factor where considerations of public health
and welfare were at stake. The adverse impact on public
welfare of an otherwise reasonable private use may out-
weigh any economic benefit produced by the use. On the
other hand, a use which benefits the public as well as
the water user will have social value as well as private
economic value.62 Courts have held that the public good
is advanced by such uses as salinity control, water sup-
ply or sewage disposal.63
Extent of Harm
Interference with a use may range from slight incon-
venience to total destruction. Whether the interference
is reasonable requires an examination of the value of
the impeded use. If the harm suffered is insubstantial,
a court could find the use to be reasonable.64 Harm has
been found to be substantial and unreasonable, however,
where an upper proprietor attempts to reserve all of the
water for his exclusive use.6
To allow as many water uses as possible, courts
have considered whether it is practical to avoid harm
either by adjusting the manner of water use or by requir-
ing use of another water source. Efficiency and cost of
adjustment to each riparian are weighed in the balance.
A use which is unnecessarily wasteful or inefficient may
be declared unreasonable if a change in the method of
use would have avoided the harm to other riparians with-
out substantial reduction in profitableness. In contrast,
an otherwise reasonable use would be allowed to continue
where an adjustment would be prohibitively costly or
would render the use impractical.66
Adjusting the Quantity
The practicality of adjusting the quantity of water
used by each riparian has been another factor weighed by.
the courts. Where a riparian is using more water than
is needed for his purpose, the entire use need not be
deemed unreasonable. Rather, a reduced, reasonable quan-
tity may be protected.67 Similarly, courts have sometimes
divided the available water among riparians according to
their respective need.68 The question of adjusting the
quantity between users may become critical in times of
Protection of Existing Values
According to traditional riparian doctrine, priority
of use gives no superior rights in a stream.70 Thus, pri-
ority is immaterial.71 A few courts, however, have held
unreasonable a new use which destroys the value of pre-
existing uses and investments in land a d facilities.
Protection of existing values is interrelated with con-
sideration of the social and economic value of a use.
Burden of Loss (Compensation)
The final factor requiring the harmful use to bear
the burden of loss is grounded in public policy. The
United States Supreme Court has said that "later uses
with superior economic resources should not be allowed
to impose costs upon smaller water users that are be-
yond their economic capacity.74 Allocation of the eco-
nomic burden requires consideration of whether
i compensation should be paid by a new user when the deci-
sion to supplant an existing use is made. .Again, the
social and economic value factors are interwoven with
the compensation factor. A new use has usually been
viewed as unreasonable where it caused substantial, un-
avoidable harm to an existing, socially and economi-
cally valuable use and where the new user was able but
unwilling to compensate for the harm.7
b. Place-of-Use Restrictions
Under both the natural flow and reasonable use
theories, water rights are based on ownership of ripar-
ian land, a principle which prevents nonriparian land-
owners from using watercourses and which has led to
other use restrictions as well.
(i). Definitions of Riparian Land
Since surface water may be used only on "riparian"
land, 7the courts have developed several tests to
determine whether a particular tract is riparian or not.
Perhaps the most restrictive is the "source of title"
test, under which riparian rights are limited to the
smallest parcel held under one title in a chain of
title leading to the present owner. The size of a
riparian tract cannot be increased by the purchase of
contiguous nonriparian land,78 and if the back portion
of a riparian tract is sold it loses its riparian
character.79 Moreover, the subsequent reuniting of a
severed tract with the abutting tract will not
re-establish its riparian status. Thus, a riparian
tract can be decreased but never increased in those ju-
risdictions which follow the source of title rule.
This rule, which originated in California, tends to re-
strict available surface water supplies to a small group
of riparian owners and has been largely confined to the
western states. The rule supports the'western policy
of limiting riparian rights as much as possible in
order to provide more water for appropriators, but it
seems inappropriate for eastern states where more water
The more inclusive "unity of title" rule provides
that any tracts contiguous to the abutting tract are
riparian, if held in common ownership, regardless of
when they were acquired. This approach permits an in-
crease in the size of a riparian parcel by the purchase
of contiguous land even though the added land had been
nonriparian ever since its transfer from governmental
to private ownership. Given the trend toward larger
farms and landholdings in this country, application of
the unity of title theory will result in a continually
expanding quantity of riparian land. This rule has sup-
port in both eastern and western jurisdictions.
The unity of title rule appears to be a better ap-
proach for an eastern jurisdiction than the source of
title test. Often a riparian owner can use water on
land added to his riparian tract land without
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unreasonably curtailing the amount of water available for
other riparian owners. However, the failure of the unity
of title rule to impose any restriction on the amount of
added land which can become riparian when acquired by
one riparian owner may adversely affect other riparian
proprietors. Accordingly, some courts have declared
that the amount of riparian land claimed under the unity
of title rule must be reasonable.85 Under this corol-
lary, the distance of the land from the watercourse is
taken into account in deciding the reasonableness of
the particular water use.8 Arguably, this affords
other riparians some protection against monopolization
of water by one riparian owner.
(ii). The Watershed Limitation
The concept of riparian land is further restricted
in some states by the watershed limitation, which pro-
vides that any part of a tract of land which lies out-
side the watershed of a body of water is not riparian to
it even though the tract itself borders on a natural
watercourse and is otherwise riparian.87 This water-
shed limitation is followed in five western states and
a few eastern states.8
The watershed limitation is based on the assumption
that land beyond the watershed is outside the boundaries
established by nature for riparian ownership and that
water used on land within the watershed will eventually
return to the parent body of water. If water is
_1 j __ I ~ _~_II_ ~_
withdrawn from one watershed and drained into another,
downstream owners along the first watercourse would
be damaged by dimunition of the stream's flow, while
those along the second watercourse might be injured
by the effects of an excessive stream flow. This
allows a riparian owner to use water on his land to
the maximum extent while at the same time protecting
downstream owners, and protects riparians who are not
currently exercising their riparian rights by insuring
that water will be available if needed in the future.
Nevertheless, many commentators favor relaxation
or abolition of the watershed rule. In the East,
this restriction often unduly limits water use and
encourages waste of the resource. At present, few
eastern states have expressly adopted the watershed
rule,95 two have rejected it,96 and the rest have not
yet taken a position.
(iii). Effect of Nonriparian Uses
A nonriparian use is one in which water is diverted
onto nonriparian land. Land which lies outside of a
stream's watershed is also deemed nonriparian in those
states which adhere to the watershed rule. Thus, both
diversions by a nonriparian landowners and use of water
,_,, __ __ _i, .. 1I ]l i
by a riparian owners on nonriparian land are considered
a nonriparian uses.
Nonriparian uses, however, are not always prohibited.
According to one view, such uses are wrongful per se and
riparian owners may obtain appropriate judicial relief
even though they have suffered no actual damage. In
states which follow the reasonable use rule, however, a
plaintiff must usually prove actual damage before he can
enjoin a nonriparian use. A few states permit non-
riparian uses even though they cause harm to downstream
riparian owners; nonriparian use is simply one factor
that is considered in determining whether the use is
reasonable in accordance with the requirements of the
reasonable use rule.
(iv). Transfer of Water Rights
In most states riparian rights are not transferable
apart from the riparian land to which they are incident,
but a few jurisdictions have allowed severance of such
rights. In such cases the right of the nonriparian
grantee is derivative, and the riparian owner cannot
convey a greater right than he has. Moreover, while
the right of the nonriparian grantee is effective
against his riparian grantor, it is usually inferior
to the rights of other riparians.110
to the rights of other riparians.
(v). Use By Municipalities
In theory, a municipality cannot divert water for
purposes of public water supply even where it owns riparian
property. Actually, courts often refuse to prevent
municipal water utilities drawing from watercourses and
deny relief on the basis of failure to show damages
estoppel or latches, or the existence of prescriptive
right on behalf of the municipality. A few states
have expressly recognized riparian rights for munici-
palities. Of course, municipalities normally have
the power to acquire water rights by eminent domain, and
once water rights are acquired, the municipality may sell
water to nonriparians and is not bound by any of the re-
strictions of the riparian doctrine.114
(c). Prescriptive Rights
Most riparian jurisdictions allow both riparian and
nonriparian owners to acquire prescriptive rights to par-
ticular water uses. A prescriptive right constitutes
a servitude against the ownership adversely affected,1
and thus amounts to an uncompensated transfer of rights
from the adversely affected riparians to the adverse user.1
Prescription, like adverse possession, rests on the theory
that aggrieved parties should seek judicial relief within
a reasonable time or be forever barred from a remedy.
In order to ripen into a prescriptive right, the use
must be adverse, notorious, continuous and uninterrupted,
and be made under a claim of right or title. To establish
L 3 ..
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a right by prescription the use must be maintained in a
manner hostile to the right of the riparian proprietor
against whom it is claimed. An act is hostile when
it is inconsistent with the true owner's rights of
ownership; Thus, a licensed or permissive use can
never give rise to a prescriptive right because such
uses are not hostile to the titleholder.
The use must be visible, open and notorious so that
the riparian owner either knows, or should know, that
his rights have been invaded. It must also be con-
tinuous and uninterrupted for the entire prescriptive
period. Since some water uses, like irrigation, may
be sporadic rather than continuous, this requirement is
probably satisfied if the claimant uses the water as his
necessities require. Of course, the initation of a suit
puts an end to the adverse character of the use as does
any other substantial interruption during the prescrip-
tive period. Likewise, the adverse use is interrupted
if at any time during the limitation period the adverse
claimant concedes or acknowledges title in the true
owner. Finally, use of water by one claiming a pre-
scriptive right must be under a claim of right so as to
necessarily imply an ouster of the owner's exclusive
right of control. 1
Because of the transient nature of water, prescrip-
tive water rights are difficult to acquire. In those
states which follow the natural flow doctrine, there must
be an actionable invasion of the right to the stream's
natural flow, while reasonable use jurisdictions re-
quire an actionable wrong involving actual damages to
the servient owner.
The scope of a prescriptive right, once acquired,
is measured by the use originally made and actually en-
joyed during the prescriptive period. Once a pre-
scriptive right has been perfected, the water use may
be changed at any time, as long as the new use does
not increase the burden imposed on the servient estate.
Finally, prescriptive rights, once acquired, may be lost
by abandonment, although mere nonuse is only evidence of
an intent to abandon and non conclusive.
(d). Riparian Rights in Florida
The Florida Supreme Court first recognized the doc-
trine of riparian rights in Tampa Waterworks Co. v. Cline,
decided in 1896. The plaintiff in the Cline case was a
waterworks company which supplied water to the City of
Tampa from a spring-fed stream.
When the defendant, a nearby landowner, excavated
a hole on his land and exposed the spring, the plaintiff
fearing that it would be polluted by surface runoff,
brought suit to prevent further excavation. The Court
observed that same rules applied to both contained sur-
face waters and underground streams and declared that
the law of riparian rights was applicable in Florida as
part of the English common law. The Court seems to have
rejected the natural flow doctrine in favor of the reason-
able use rule since it sustained the trial court's denial
of injunctive relief when the plaintiff was unable to
The riparian reasonable use rule was also applied
more recently in Taylor v. Tampa Coal Co. which in-
volved a 26-acre fresh-water lake in-central Florida.
The plaintiff in Taylor sued to prevent the defendant
from withdrawing water from the lake to irrigate his
citrus grove. The trial court found that the lake level
was falling about 1/2 inch per day because of drought
conditions and another 1/2 inch per day as the result of
the defendant's pumping. At the time of the trial the
lake level was 49 inches below normal and, according to
the plaintiff, this condition interfered with use of the
lake for recreational purposes. The defendant argued
that the plaintiff's inconvenience was trivial in com-
parison with the possible loss to his citrus grove if he
were prevented from irrigating. Nevertheless, the trial
court granted an injunction.
On appeal, the Florida Supreme Court declared:
It is the rule that the rights of riparian
proprietors to the use of waters in a non-
navigable lake such as the one here in-
volved are equal. Except as to the supply-
ing of natural wants, including the use of
water for domestic purposes of home or
farm, such as drinking, washing, cooking,
or for stock of the proprietor, each ri-
parian owner has the right to use the
water in the lake for all lawful purposes,
so long as his use of water is not det-
rimental to the rights of other riparian
owners The fact that one riparian
owner may choose to use the water in the
lake for recreational purposes while
another may desire to divert it for an
artificial use such as irrigation, will
not give the latter a superior right to
take water to the detriment of the former,
for in this jurisdiction there is no
distinction in respect to use between a
farm and a summer residence.
The Court thus affirmed the lower coutt's decision
to prohibit the defendant from irrigating while the lake
level was below normal.
One riparian owner also sued another in Lake Gibson
Land Co. v. Lester to prevent withdrawal of water from
a lake for irrigation purposes. However, the facts in
Lester were somewhat different from those of the Taylor
decision. The lake in the Lester case was larger, about
485 acres as opposed to 26 acres. Moreover, the defen-
dant in Lester has been pumping water from the lake for
more than 20 years before the lawsuit was brought. Fi-
nally, the defendant showed that a drought rather than
his pumping was the major cause of the lowering of the
lake below its normal level. Accordingly, the Florida
Supreme Court held in favor of the defendant.
With the enactment of the 1972 Water Resources Law,
the riparian system was replaced by a statutory allo-
cation scheme in most parts of Florida. However, the
riparian system continues to remain in force in those
areas of the state which have not yet implemented the
1972 Act's consumptive use permit provisions.
1. Foley, Water & The Laws o Nature, 5 Kan. L. Rev.
492, 496 (1957).
2. Tampa Waterworks Co. v. Cline, 20 So. 780 782
(Fla. 1896), adopting the classes of water from
Frazier v. Brown, 12 Ohio St. 2^A, 29.8 (1861).
3. Thomas, Hydrology v. Water Allocation in the East-
ern United States, in The Law of Water Allocation
in the Eastern United States 164, 170 (Haber .&
Bergen ed. 1956).
4. Consumptive riparian rights have no legal status in
the eight western states which adhere to the
"Colorado doctrine." These states include Arizona,
Colorado, Idaho, Montana, Nevada|, New Mexico, Utah,
and Wyoming. Riparian rights exist along with ap-
propriative water rights in the eleven "California
doctrine" states. These include Alaska, California,
Kansas, Mississippi, Nebraska, Nbrth Dakota,
Oklahoma, Oregon, South Dakota, Texas and Washington.
In these states, generally located along the Pacific
Coast in the Great Plains area, riparian rights were
recognized before the prior appropriation system
was adopted. However, since the riparian and appro-
priative systems do not work well together, most
"California doctrine" states limit the exercise of
riparian rights in some fashion. Trelease, Coordi-
nation of Riparian and Appropriative Rights to the
Use of Water, 33 Tex. L. Rev. 24 (1954).
5. Pasadena v. Alhambra, 33 Cal.2d 908, 926, 207 P.2d
17 (1949); Bailey v. Idaho Ir-. Co., 39 Idaho 354,
358, 227 P. 1055 (1924).
6. Smith v. O'Hara, 43 Cal. 371, 375 (1872). This
protection of the junior appropriative right may
be had against unlawful acts of senior appropriators
as well as by others.
7. 1A G. Thompson, Commentaries on the Modern Law of
Real Property S 263 (1964).
8. Hutchins, Background and Modern Developments in
Water Law in the United States, 2 Nat. Res. J. 426,
417 (1962). Although the date of priority is gen-
erally established by the date of public notice or
by the date of application for a permit, the ap-
propriation is effectively secured merely be apply-
ing the water to the stated use. Davis, Australian
and American Water Allocation Systems Companred, 9
B.C. Ind. & Com. L. Rev. 647, 688 (1968).
9. 5 R. Powell, The Law of Property 735 (1973).
10. 1 W. Hutchins, Water Rights Laws in the Nineteen
Western States 491 (1971).
11. N.D. Cent Code S 61-04-04 (1960); Utah Code Ann.
S 73-3-2 (Supp. 1977).
12. 1 W. Hutchins, supra note 10, at 517.
13. Davis, supra note 8, at 688.
14. Johnson, The Challenge of Prescriptive Water Rights,
30 Tex. L. Rev. 669, 673 (1952).
15. Ariz. Rev. Stat. Ann. S 45-147 (Supp. 1978); Calif.
Water Code SS 106, 1254, 1460 (1971); Kan. Stat.
Ann. S 82a-707(b) (1969); Ore. Rev. Stat. S 540.140,
(1960); Wash. Rev. Code Ann. S 90.03.040 (1972);
Wyo. Stat. Ann. S 41-3 (1959).
16. Colo. Const. Art XVI, S 6; Neb. Const. Art. XV, S 6.
17. Davis, supra note 8, at 688-89.
18. Rejected. S.B. 69, 60th Sess., Ark. G.A. (1955).
19. Study recommendation not adopted. See Institute Of
Law and Government, A Study Of The Riparian and
Prior Appropriative Doctrines of Water Law (School
of Law, Univ. of Ga. 1955).
20. Rejected by Legislative Study Commission. See Fla.
Water Resources Study Comm'nFlorida's Water Resources:
A Report To The Governor and The 1957 Legislature
14, 15 (1956).
_Lr _U I ~
21. Study recommendation not adopted. See The Law of
Water Allocation In the Eastern United States 49-
70, 441-90 (D. Haber & S. Bergen eds. 1958) (sets
forth and disusses the proposed statute).
22. Adopted. Miss. Code Ann. S 5056-04 (Supp. 1971).
23. Rejected. H.B. 298. S.B. 153,-N.C.G.A. (1955).
24. Rejected. H.B. 1085. S.B. 43, S.C.G.A. (1956).
25. Proposal not adopted. See discussion in Coates,
Present and Proposed Legal Control of Water Resources
in Wisconsin, 1953 Wis. L. Rev. 256.
26. The veto of appropriative type legislation in West
Virginia was a topic of discussion at the Evniron-
mental Law Symposium. May 23-24, 1970. Morgantown,
27. Miss. Code Ann. 5 51-3-7 (1972). See also Champion,
Prior Appropriation in Mississippi: A Statutory
Analysis, 39 Miss. L.J. 1 (1967).
28. F. Maloney, R. Ausness & J. Morris, A Model Water
Code 76 (1972).
30. See 1 H. Farnham, The Law of Waters and Water Rights
31. A riparian owner is one who :wns land touching on
the bank of a watercourse. See Agnor, Riparian
Rights in the Southeastern States, 5 S.C.L.Q. 141,
142 (1952). As between riparian owners, the lower
owner is, of course, the one farther downstream.
33. Hanks, The Law of Water in New Jersey, 22 Rutgers L.
Rev. 621, 628-29 (1968).
34. Kinyon, What Can a Riparian Proprietor Do?, 21 Minn.
L. Rev. 512, 527 (1937).
35. Evans v. Merriweather, 4 Ill. 492 (1842).
36. Meng v. Coffey, 93 N.W. 713, 715-16 (Neb. 1903);
Crawford Co. v. Hathaway, 93 N.W. 781 (Neb. 1903);
Hough v. Porter, 89 P. 1083 (Ore. 1909); Salem
Flouring Mills Co. v. Lord, 69 P. 1033, (Ore. 1902);
Martin v. Burr, 228 S.W. 543 (Tex. 1921).
37. Spence v. McDonough, 42 N.W. 371 (Iowa 1889);
Canton v. Shock, 63 N.W. 600 (Ohio 1902); Filbert
v. Dechert, 22 Pa. Super. 362 (1903); Beuscher,
Appropriation Water Law Elements in Riparian
Doctrine States, 10 Buffalo L. Rev. 448, 452 (1961).
38. Prentice v. Geiger, 74 N.Y. 341 (1878); Pennsylvania
R. Co. v. Miller, 3 A. 780 (Pa. 1886); Lone Tree
Ditch Co. v. Cyclone Ditch Co., 128 N.W. 596
(S.D. 1910); Watkins Land Co. v. Clements, 86 S.W.
733 (Tex. 1905); Nielson v. Sponer 89 P. 155 (Wash.
39. Harvey Realty Co. v. Wallingford, 150 A. 60 (Conn.
1930); Robertson v. Arnold, 186 S.E. 806 (Ga. 1936);
Roberts v. Martin, 77 S.E. 535 (W. Va. 1913); Comment,
Development of Riparian Law in'Alabama, 12 Ala. L. Rev.
155, 158 (1959).
40. Guynn v. Wabash Water & Light Co., 104 N.E. 849
(Ind. 1914); Note, Water Rights in Indiana, 32 Ind.
L.J. 39, 42 (1956).
41. Teass, Water and Water Courses-Riparian Rights-
Diversion of Storm or Flood Waters for Use on Non-
Riparian Lands, 18 Va. L. Rev. 223, 236 (1932).
42. Restatement (Second) of Torts S 850A, Scope Note
(Tent. Draft No. 17, 1971).
43. Only Georgia, New Jersey, Pennsylvania and West
Virginia expressly adhere to the natural flow
doctrine. Robertson v. Arnold, 186 S.E. 806
(Ga. 1936); McCord v. Big Brothers Movement, Inc.,
185 A. 480 (N.J. 1936); Palmer Water Co. v.
Lehighton Water Supply Co., .124 A. 747 (Pa. 1924);
McCausland v. Jarrell, 68 S.E.2d 729 (W. Va. 1951).
_ _I ~__
44. In spite of this, the natural flow and reasonable
use rules often tend to become blended or confused
in practice. Davis, Water Rights in Iowa, 41
Iowa L. Rev. 216, 218 n.8 (1956).
45. 5 R. Powell, The Law of Real Pro~ erty, 713 (1976);
Restatement (Second) of Torts S 853, comments c, d,
& e (Tent. Draft No. 17, 1971).
46. Trelease, The Concept of Reasonable Beneficial Use
in the Law of Surface Streams, 12 Wyo. L.J. 1, 16
47. 6A American Law of Property S 28.55 (A.J. Casner, ed.
1954); but see Trelease, Alternatives to Appropriation
Law, 6 Denver J. of Int'l L. & Pol. 283, 297 (1976).
48. Haar & Gordon, Riparian Water Rights vs. a Prior
Appropriation System: A Comparison, 38 B.U.L. Rev.
207, 240 (1958).
49. Restatement (Second) of Torts S 850A, comment d
(Tent. Draft No. 17, 1971).
50. Maloney, Capehart & Hoofman, Florida's "Reasonable
Beneficial" Water Use Standard: Have East and West
Met?, 31 U. Fla. L. Rev. 253, 256-262 (1979).
51. See also Grimes, Lex Aquae Arkansas, 27 Ark. L. Rev.
429, 442 (1973).
; 52. Restatement (Second) of Torts 850A, Comment on
clause (a) (1979) [He einafter cited as "Restatement
53. Comment, Acquisition of the Right to Use Water,
29 Tul. L. Rev. 554, 5 6 (1955).
54. Ausness, Water Permits ir a Riparian State: Problems
and Proposals, 66 Ky. L.J. 191, 199-201 (1977).
55. Harris v. Brooks, 283 .W.2d 129 (Ark. 1955); Taylor
v. Tampa Coal Co., 46 o.2d 392 (Fla. 1950); Hoover
v. Crane, 106 N.W.2d 5 3 (Mich. 1960); Johnson v.
Seifert, 100 N.W.2d 68 (Minn. 1960); Bollinger v.
Henry, 375 S.W.2d 161 Mo. 1964). -
56. Water Pollution interf ring with the reasonable uses
of lower riparian owne s has been held unreasonable.
See, e.g., Stanton v. trustees of St. Joseph's
College, 254 A.2d 597 Mc. 1969). Although the
courts have considered poll-ution as a factor to be
weighed in the determi ation of whether a use is
"reasonable," it is im ortant to note that most
states, including Florida, have a separate statutory
scheme for the regulation of water pollution. See
Fla. Stat. SS 403.011-.261 (1977).
.57. Harris v. Brooks, 225 Ark. 436, 283 S.W.2d 129 (1955).
58. Reynolds Metal Co. v. Ball, 217 Ark. 579, 232
S.W.2d 441 (1950).
59. See, e.g., Stamford Extract Mfg. Co. v. Stamford
Rolling Mills Co., 101 Conn. 310, 125 A. 623 (1924)
(upper riparian's use held reasonable where dis-
charges after best available treatment neither sub-
stantially nor appreciably contaminated the water
and where many other new factories and cities were
possible sources of pollution); Hazard powder Co.
v. Sommersville Mfg. Co., 78 Conn. 171, 61 A. 519
(1905) (where upper riparian's water wheel in-
stallation found excellently arranged and adapted
to size, capacity, and varying flows of the river
and where the use was found to follow the custom
of most uses on the river, use held reasonable);
Davis v. Getchell, 50 Me. 602 (1862) (where volume
of small stream in ordinary course was found in-
sufficient for any practical use, detention for
reasonable time to make water power useful and
valuable held reasonable); Thompson v. Enz, 379
Mich. 667, 154 N.W.2d 473 (1967); Red River Roller
Mills v. Wright, 30 Minn. 249, 15 N.W. 167 (1883)
(use found unreasonable where lower riparian in-
jured and upper riparian failed to show the
character of the stream, because what might be
reasonable on one stream adapted and used for
certain purposes might not be proper upon another
stream of a different character used for different
purposes); Davis v. Town of Harrisonburg, 116 Va.
864, 83 S.E. 491 (1914) (upper riparian's hydro-
electric plant found adapted to the ordinary capacity
of the stream; therefore, dentention of water for
reasonable time during drought, held reasonable);
Timm v. Bear, 29 Wis, 25', 266 (1871) (upper riparian's
interference with stream flow held unreasonable where
his mills required 50% more than the ordinary supply
of water in the stream); Restatement.(2d), S 850A,
comment on clause (b).
60. Restatement (2d) S 850A, comment on clause (c).
61. Id. See, e.g., Taylor v. Tampa Coal Co., 46 So.2d
392 (Fla. 1950) (irrigation versus recreational
value); Higday v. Nickolaus, 469 S.W.2d 859 (Mo.
App. 1971) (value of city's investment weighed);
Borough of Westville v. Whitney Home Builders, 40
N.J. Super, 62, 122 A.2d 233 (Super. Ct. App. Div.
1956) (aesthetic impairment and recreational value
versus developer's investment).
62. Restatement (2d), S 850A, comment on clause (d).
63. Lamb v. Dade Cty., 159 So.2d 477, 479 (Fla, 3d
D.C.A. 1964) (interference with salinity control
system); Higday v. Nickolaus, 469 S.W.2d 859, 871
(Mo. App. 1971) (assurance of wholesome water supply
to public). See generally Hart v. D'Agostini,
7 Mich. App. 319, 151 N.W.2d 826 (1967)(temporary
interference with groundwater allowed where sanitary
sewer trunk line benefitted the area); 42 A.L.R.3d
426 (1972)(propriety of injunctive relief against
diversion of water by municipally incorporated public
utility); Borough of Westville v. Whitney Home
Builders, 40 N.J. Super., 62, 122 A.2d 233 (Super.
Ct. App. Div. 1956) (public policy recognizing social
importance of sewage disposal plants).
64. Restatement (2d) S 850A, comment on clause (e) (citing
Gehlen v. Knorr, 101 Iowa 700, 70 N.W. 757 (1897);
Elliot V. Fitchburg R.R. Co., 10 Cush. 191 (Mass.
1852); azard Powder Co. v. Sommersville Mfg. Co.,
78 Connj 171, 61 A. 519 (1905); Heise v. Schulz,
167 Kani 34, 204 P.2d 706 (1949); Louisville v.
Tway, 297 Ky. 565, 180 S.W.2d 278 (1944); Meyers v.
Lafayette Club, 197 Minn. 241, 266 N.W. 861 (1936);
Bollinger v. Henry, 375 S.W.2d 161 (Mo. 1964);
Monteliqus v. Elsea, 11 Ohio St. 2d 57, 161 N.E.2d
675 (1959). See also Tampa Water Works Co. v. Cline,
37 Fla. 586, 20 So. 780 (1896); Lake Gibson Land Co.
v. Lest r, 102 So.2d 833 (Fla. 2d D.C.A. 1958).
65. Scott v1 Slaughter, 237 Ark. 394, 373 S.W.2d 577
(1964); Conobre v. Fritsch, 92 Ohio App. 520, 111
N.E.2d 38 (1952).
.... I I I I I IIIII I I I I I
67. Restatement (2d), S 850A, comment on
"^^^ --- -- -- ^ ^ ^ p / i
68. Id., clause (g), comment j. See, e.g. Lingo v. City
of Jacksonville, 253 Ark. 6), 522 S.W 2d 403 (1975)
(groundwater); Harris v. Brooks, 225 Ark. 436, 283
S.W.2d 129 (1955); Half Moon Bay Land Co. v. Cowell,
173 Cal. 543, 160 P. 675 (1916); Wiggins v.
Muscupiabe Land and Water Co., 113 Cal. 182, 45 P.
Restatement (2d), S 850A, clause (f), comments h & i,
(citing Thomas v. LaCotts, 222 Ark. 161, 257 S.W.2d
936 (1953)); Rancho Santa Margarita v. Vail, 11 Cal.
2d 501, 81 P.2d 533 (1938); Colorado Springs v.
Bender, 148 Colo. 458, 366 P.2d 552 (1961) (under-
ground stream); Hazard Powdo. Co. v. Sommersville
Mfg. Co., 78 Conn. 171, 31 -. 519 (1905); Wilkes v.
Perry, 92 Iowa 417, 60 N.W. 727 (1894); Crowley v.
District Court, 108 Mont. 8,. 88 P.2d 23 (1939);
Warner Valley Stock Co. v. Lynch, 215 Or. 523, 336
P.2d 884 (1959).
More recent decisions weighing the practicality of
avoiding the harm include: Scott v. Slaughter, 237
Ark. 394, 373 S.W.2d 577 (1964) (dam lowered two
feet); Collens v. New Canaan Water Co., 155 Conn.
477, 234 A.2d 825 (1967) (other sources were avail-
able); MacArtor v. Graylyn Crest 111 iwim Club, 41
Del. Ch. 26, 187 A.2d 417 (1936) (groundwater,
adjusting method of use found impractical).
___1 ~~__ _I _1
160 (1896); Harris v. Harrison, 93 Cal. 676, 29 P.
325 (1892); Collens v. New Canaan Water Co., 155
Conn. 477, 234 A.2d 825 (1967) (groundwater); Bliss
v. Kennedy, 43 Ill. 67 (1867); Meng v. Coffey, 67
Neb. 500, 93 N.W. 713 (1903). Many of the cares
cited are from prior appropriation states in the
West because these states also recognize, or did
recognize, the riparian doctrine of reasonable use.
69. See Maloney, Capehart & Hoofman, supra note 50, at
70. Davis, Coblentz & Titelbaum, Waters and Water
Rights, S 612 at 42 (R. Clark ed 1976). (citing
Dumont v. Kellog, 29 Mich. 420, 18 Am. Rep. 102
(1874), and Bliss v. Kennedy, 43 Ill. 67 (1867).
Accord, 78 Am. Jur. 2d Waters S 285 (1975).
71. Restatement (2d) S 850A, clause (h), comment 1 (citing
McCarter v. Hudson Cnty. Water Co., 70 N.J. Eq.
695, 65 A. 489 (Ch. 1906).
72. Id. (citing Strobel v. Kerr Salt Co., 164 N.Y. 303,
58 N.E. 142 (1900); Harris v. Brooks, 225 Ark. 436,
283 S.W.2d 129 (1955).
Another commentator has stated flatly that where
"different lawful and reasonable uses are in-
herently mutually exclusive, the prior in time will
prevail...." Grimes, supra note 51, at 444.
* 73. Restatement (2d), S 850A, clause (1), comment m,
(citing Strobel v. Kerr Salt Co., 164.N.Y. 303, 58
N.E. 142 (1900)); State v. Michels Pipeline Constr.
Inc., 63 Wis. 2d 278, 217 N.W.2d 339 (groundwater),
modified, 63 Wis. 2d 278, 219 N.W.2d 308 (1974);
MacArtor v. Graylyn Crest III, Swim Club, Inc.,
41 Del. Ch. 26, 187 A.2d 417 (1963) (groundwater);
United States v. 531.13 Acres of Land, 244 F. Supp.
895 (W.D.S.C. 1965) (compensation due for public
taking of riparian right to use of river flow).
74. United States v. Gerlach Livestock Co., 339 U.S.
75. Restatement (2d), S 850A, clause (1), comment m
(citing Furrer v. Talent Irrigation Dist., 258
Or. 494, 466 P.2d 605 (1970)).
76. Farnham, The Permissible Extent of Riparian Land,
7 Land & Water L. Rev. 31 (1972).
77. Rancho Santa Margarita v. Vail, 81 P.2d 533 (Cal.
1935); L. Kinney, The Law of Irrigation and Water
Rights 789 (2d ed. 1912).
78. Title Ins. & Trust Co. v. Miller & Lux, 190 P. 433
(Cal. 1920); 5 RL Powell, The Law of Real Property,
supra note 45, at 11 714.
79. Anaheim Union Water Co. v. Fuller, 88 P. 978
80. Watkins Land Co. v. Clements, 86 S.W. 733 (Tex.
1905); Yearsley v. Cater, 270 P. 804 (wash. 1928).
81. Waite, Beneficial Use of Water in a Riparian
Jurisdiction, 1969 Wis. L. Rev. 864, 872.
82. Boehmer v. Big Rock Irrigation Dist., 48 P. 908
(Cal. 1897); Yearsley v. Cater, 270 P. 804 (Wash.
83. Levi & Schneeberger, The Chain and Unit of Title
Theories for Delineating Riparian Lands: Economic
Analysis as an Alternative to Case Precedent, 21
Buffalo L. Rev. 439, 442 (1972).
84. Clark v. Allaman, 80 P. 571 (Kan. 1905); Jones v.
Conn, 64 P. 855 (Ore. 1901); Slack v. Marsh, 11
Phila. 543 (C.P. Pa. 1875); Restatement of Torts
S 843, comment c (1939).
85. Sparks Mfg. Co. v. Town of Newton, 41 A. 385 (N.J.
1898) rev'd on other grounds, 45 A. 596 (N.J. 1900).
See also 1 Kinney, The Law of Irrigation and Water
Rights 798 (2d ed. 1912); 6A American Law of Property
S 28.55 (A.J. Casner, ed. 1954).
86. Farnham, Permissible Extent of Riparian Land, 7
Land & Water L. Rev. 31, 57 (1972).
87. Johnson & Knippa, Transbasin Diversion of Water,
43 Tex. L. Rev. 1035, 1036 (1965); Recent Important
Decisions, Waters and Watercourses-Riparian Land-
Watershed, 20 Mich. L. Rev. 123 (1921). According
to Professor Waite the source of title test and one
version of the unity of title test are not concerned
with the watershed limitation. -The other version
adds to the unity of title test the requirement that
the land lie within the watershed of the watercourse
to which it is riparian. Waite, Beneficial Use of
Water in a Riparian Jurisdiction, 1969 Wis. L. Rev.
864, 873. See also Sayles v. City of Mitchell, 245
N.W. 390 (S.D. 1932). Professor Clark declares
this to be the general rule. 1 Waters and Water
Rights S 53.5(c) (R. Clark, ed. 1967). On the
other hand, Professor Casner contends that the unity
of title definition without the watershed limitation
is the general rule. 6A American Law of Property
S 28.55 (A.J. Casner, ed. 1954).
88. Hudson v. West, 306 P.2d 807 (Cal. 1957); Clark v.
Allaman, 80 P. 571 (Kan. 1905); Sayles v. City of
Mitchell, 245 N.W. 390 (S.D. 1932); Watkins Land
Co. v. Clements, 86 S.W. 733 (Tex. 1905); Miller
v. Baker, 122 P. 604, 605 (Wash. 1912).
89. Harrell v. City of Conway, 271 S.W.2d 924, 927
(Ark. 1954); Sturtevant v. Ford, 182 N.E. 560
(Mass. 1932); Stratton v. Mount Hermon Boy's
School, 103 N.E. 87 (Mass. 1913); McCarter v.
Hudson County Water Co., 65 A. 489, 494-95 (N.J.
1906); Virginia Hot Springs Co. v. Hoover, 130
S.E. 408 (Va. 1925); Town of Gordsonville v.
Zinn, 106 S.E. 508, 511 (Va. 1921); Comment, 34
N.C.L. Rev. 247, 247-48 (1956).
90. 2 H. Farnham, The Law of Waters and Water Rights
91. Anaheim Union Water Co. v. Fuller, 88 P. 978
(Cal. 1907); Note, Limitation on Diversions from
the Watershed: Riparian Roadblock to Beneficial
Use, 23 S.C.L. Rev. 43 (1971). Most industrial and
municipal uses return up to 90 percent of the water
diverted; some water used for irrigation is also re-
turned. Johnson & Knippa, Transbasin Diversion of
Water, 43 Tex. L. Rev. 1035, 1057 (1965).
92. Murphy, A Short Course on Water Law for the Eastern
United States, 1961 Wash. U.L.Q. 93, 94-95.
93. Martz, Water for Mushrooming Population, 62 W. Va.
L. Rev. 1, 11 (1959); O'Connell, Iowa's New Water
Statute-The Constitutionality of Regulating Existing
Uses of Water, 47 Iowa L. Rev. 549, 557 (1962); Note,
-- -- - -- --- -- ^ ~ yitV -
The Riparian Rights Boc rine in South Carolina, 21
S.C. L. Rev. 757, 769 (1969).
94. Marquis, Freeman & Heath, The Movement for New Water
Rights Laws in the Tennessee Valley States, 23 Tenn.
L. Rev. 797, 832 (1955).
95. Arkansas, Massachusetts, New Jersey, and Virginia.
96. Gillis v. Chase, 31 A. 18 (N.H. 1891); Lawrie v.
Sillsby, 74 A. 94 (Vt. 1909).
97. Waite, Beneficial Use of Water in a Riparian
Jurisdiction, 1969 Wis. L. Rev. 864, 875.
98. Metropolitan Util. Dist. v. Merritt-Beach Co., 140
N.W.2d 626 (Neb. 1966); Jones v. Conn, 64 P. 855
(Ore. 1901); Texas Co. v. Burkett, 296 S.W. 273
99. Poire v. Serra, 106 A.2d 39 (N.H. 1954); Smith v.
Stanolind Oil & Gas Co., 172 P.2d 1002 (Okla. 1946);
Lawrie v. Sillsby, 74 A. 94 (Vt. 1909); Farnham,
The Improvement and Modernization of New York Water
Law Within the Framework of the Riparian System, 3
Land & Water L. Rev. 377, 413 (1968).
100. Note, Property Rights--Riparian Rights, 34 N.C.L.
Rev. 247, 251 (1956).
101. 6A American Law of Property, supra Note 47, S 28.56.
102. Metropolitan Util Dist. v. Merritt Beach Co., 140
N.W.2d 626 (Neb. 1966); Jones v. Conn, 64 P.2d
855 (Ore. 1901); Texas Co. v. Burkett, 296 S.W.
273 (Tex. 1927).
103. Lawry v. Sillsby, 74 A. 94 (Vt 1909); Poire v.
Serra, 106 A.2d 39 (N.H. 1954); Smith-v.
Stanoline Oil & Gas Co., 172 P.2d 1002 (Okla. 1946).
104. Note, 34 N. Car. L. Rev. 247, 251 (1956).
105. Trelease, Coordination of Riparian and Approp-
riative Rights, 33 Tex. L. Rev. 24, 56-57 (1954).
106. Winchell v. Clark, 68 Mich. 64, 73, 35 N.W. 907,
913 (1888); Texas Co. v. Burkett, 117 Tex. 16, 25,
296 S.W. 273, 276 (1927); Hite v. Town of Luray,
175 Va. 218, 224, 8 S.E.2d 369, 371 (1940).
107. Davis, Australian and American Water Allocation
Systems Compared 9 B.C. Indus. & Cor. L. Rev. 647,
108. Young v. City of Asheville, 241 N.C. 618, 86
S.E.2d 408 (1955); 5 R. Powell, supra note 45 at
109. 78. Duckworth v. Watsonville Water & Light Co.,
158 Cal. 206, 110 P. 927 (1910); Texas Company v.
Burkett, 117 Tex. 16, 296 S.W. 273 (1927); Note,
supra note 104, at 250.
t A I
110. Stoner v. Patten, 132 Ga. 178, 63 S.E. 897 (1909);
Roberts v. Martin, 72 W. Va. 92, 77 S.E. 535 (1913);
Heilbron v. Fowler Switch Canal Co., 75 Cal. 426,
432, 17 P. 535, 538 (1888); Kennebunk v. Maine
Turnpike Authority, 147 Me. 149, 84 A.2d 433 (1951);
Contra Gillis v. Chase, 67 ...H. 161, 31 A.18 (1891);
Lawrie v. Silsby, 82 V'.. 505, 74 A.94 (1909); Note,
Are Water Rights Marketable in Wisconsin? 1966 Wis.
L. Rev. 942, 946, n. 18.
111. Pernell v. Henderson, 220 N.C. 79, 16 S.E.2d 449
(1941); Town of Purcellville v. Potts, 179 Va. 514,
19 S.E.2d 700 (1942); Webster v. Harris, III Tenn.
668, 69 S.W. 782 (1902); Ziegler, Acquisition and
Protection of Water Supplies by Municipalities, 57
Mich. L. Rev. 349, 357 (1954); Marquis, Freeman &
Heath, supra note 94, at 813.
112. Buescher, Appropriation Water Law Elements in
Riparian Doctrine States, 10 Buffalo L. Rev. 448,
113. Canton v. Shock, 66 Ohio St. 19, 63 N.E. 600
(1902); St. Anthony Falls Water Power Co. v. St.
Paul Water Commissioners, 56 Minn. 485, 58 N.W. 33
(1894); Grogan v. Brownwood, 214 S.W. 522 (Tex. 1919);
Trelease, The Concept of Reasonable Beneficial Use
in the Law of Surface Streams, 12 Wyo. L. J. 1, 4
114. Davis, supra note 107, at 684.
115. Waite, supra note 81, at 875; Sibbett v. Babcock,
124 Cal. App. 567, 269 P.2d 42 (1954); S.O..& C. Co.
v. Ansonia Water Co., 83 Conn. 611, 78 A. 432 (1910);
Manier v. Myers & Johns, 43 Ky 514 (1844); Harmon
v. Carter, 59 S.W. 656 (Tenn. 1900), Martin v. Burr,
III Tex. 57, 228 S.W. 543 (1921); Kirk v. Hoge, 122
Va. 519, 97 S.E. 116 (1918); Town of Gordonsville v.
Zinn, 129 Ba. 542, 106 S.E. 508 (1921).
116. Northern California Power Co. v. Flood, 186 Cal.
301, 199 P. 315 (1921); 5 R. Powell, supra note 31,
at para. 720.
117. Buescher, supra note 37, at 452.
118. Harnsberger, Prescriptive Water Rights in
Wisconsin, 1961 Wis. L. Rev. 47 48-49.
119. Shellow v. Hagen, 9 Wis.2d 506, 101 N.W.2d 694
120. Harnsberger, supra note 118, at 61.
121. Stewart v. White, 128 Ala. 202, 30 So. 526
(1901); Moal v. Boyd, 116 Tex. 82, 286 S.W. 458
(1926); Rhoades v. Barnes, 54 Wash. 145, 102 P.
122. Illinois Steel Co. v. Bilot, 160 Wis. 218, 151
N.W. 258 (1915).
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is k *A to .Ar ealsp .
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1 .. -." &" I '-d t.. Ve. '"tt. lte
2 uita r to. v. ak, cal. 249,
8 4 (4na) ..
SM t.-ergrr,. nothe 116 ~C, at 45.
44. 85 .. .p2,408 (191).
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'-29". S th. der" r, 22 Ala. 342, 14' 51. f 6
S_. 56 A.. Nr Wates 337 (1947); 93 C.J.S.
... ((1956)' c a urk "an v. City of 3w
L:e 14. 56s c.- 2, 4$ MaV.Z 17 (1A4 9 l 94I)s
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131. Harnsberger, supra note 118, at 78-79.
132. Burkman v. City of New Lisbon, 246 Wis. 547, 19
N.W.2d 311 (1945).
133. 20 So. 780 (Fla. 1896).
134. 46 So.2d 392 (Fla. 1950).
135. 46 So.2d at 394.
136. 102 So.2d 833 (2d DCA Fla. 1958).
137. See Chapter 2, infra.
138. Cooper & Stringfield, Ground Water in Florida,
Fla. Geol. Surv. Info. Cir. No. 3, at 1 (1950).
139. Figure 1 is taken from Florida Water Resources
Study Comm'n, Florida's Water Resources Report
to the Governor of Florida & 1957 Legislature 36
(1956) [herinafter cited as Florida's Water
140. Figure 2 is taken from Hendry & Lavender, Final
Report on an Inventory of Flowing Artesian Wells
in Florida, Florida Geol. Surv. Cir. No. 21, at
141. Figure 3 is taken from Hendry & Lavender, Final
Report on an Inventory of Flowing Artesian Wells
in Florida, Florida Geol. Surv. Cir. No. 21, at