Title: Common Law Water Rights Chapter 1
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Permanent Link: http://ufdc.ufl.edu/WL00001871/00001
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Title: Common Law Water Rights Chapter 1
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Common Law Water Rights Chapter 1
General Note: Box 9, Folder 8 ( SF -State Water Policy/Property Rights Issue -Supporting Documents - 1977-1981 ), Item 7
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00001871
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text




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-
ian land.1
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
appropriation features.

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.


4;. I

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
flow doctrine.43
flow doctrine.

1 -- II^^--'i -

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-

k ~

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

artificial uses.

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


( I

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-
57 58
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

Economic Values

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
of waterbodies.

Social Values

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

II.. '


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

Avoiding Harm

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

water shortage.69

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

El"""" b

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

is available.

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





-~ --- 1111 ~-'

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 ..

-_------ L ( _-.

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

prove damages.

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
i 137
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,

W. Va.

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).

29. See

30. See 1 H. Farnham, The Law of Waters and Water Rights

278-342 (1904).

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.

32. See

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

4 '*

(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

;lause (g).

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.

725 (1950).

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

(Cal. 1907).


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

1571 (1904).

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

(Tex. 1927).

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
i i-
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,

683 (1968).

108. Young v. City of Asheville, 241 N.C. 618, 86

S.E.2d 408 (1955); 5 R. Powell, supra note 45 at

para. 719.

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,

445 (1961).

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



--i J1

-. ..ill

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.

884 (1909).

122. Illinois Steel Co. v. Bilot, 160 Wis. 218, 151

N.W. 258 (1915).


*i ,, ,, ,,,,,~ i l ll I lll II II I II III I n lll'lll ~ lll I IIu r n


11^ ,* ...* .,; ..... ..... -'-' :, rf ,*'** : ] **

'. '* -wrw un,* r r.rr w'w- .r- .r ** ..*,: .
..U .. .

statute df li tbtipno fdI Aae t9edA itW.

is k *A to .Ar ealsp .

Wt. # ie est states the prfesbir d it '

1 .. -." &" I '-d t.. Ve. '"tt. lte
n '4..

2 uita r to. v. ak, cal. 249,

8 4 (4na) ..

SM t.-ergrr,. nothe 116 ~C, at 45.

44. 85 .. .p2,408 (191).
( T.-. v e .. | *.Sa..
: ,W -l n4(1 ,2 7

S5.. w,,ter 3 .15 (,-.. 47), (; ; o .
",, -,'.' ... -: .s i irti: ,.- .J. a I su 'ia

S. .

.. t *. 1 .

'-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
; r'. .. '


t- -*^ "i ,. o, a ,"
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.::- L -' t C_ -r
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IIEMI-4Ij lIrIirfl~jJJ!rLr 1iiiiijiui II .~--- -r -

r- ------

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

10 (1959).

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

11 (1959).


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