Title: A Study of the Riparian and Prior Appropriation Doctrines of Water Law
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 Material Information
Title: A Study of the Riparian and Prior Appropriation Doctrines of Water Law
Physical Description: Book
Language: English
Publisher: The Institute of Law and Govnmnt, School of Law, Univ. of Ga
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - A Study of the Riparian and Prior Appropriation Doctrines of Water Law
General Note: Box 12, Folder 2 ( Water Resources Reports - Various States - 1955 - 1957 ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00002934
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text






















































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*

A STUDY OF


THE RIPARIAN AND PRIOR APPROPRIATION DOCTRINES

OF WATER LAW


With Particular Reference To


The Situation in Georgia


THE INSTITUTE OF LAW AND GOVERNMENT


cf the


SCHOOL OF LAW



THE UNIVERSITY OF GEORGIA


Athens, Georgia


October, 1955


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During recent years a number of states in the eastern half of the

nation have deemed it wise to conduct an examination of their law

applicable to the conservation and utilization of water. In some

states official commissions deriving their existence from legislation

or fror executive order have made studies of local water problems and

have considered the desirability of water law revision. Similar tasks

in other states have been undertaken by voluntary associations of

public-spirited citizens--domestic, municipal, agricultural, industrial,

recreational, and other users representing broad and divergent

interests in water. The importance of this natural resource, so

vital to the life and economy of a region, justifies a legitimate

concern for its proper conservation and use in the interest of the

greatest common good.

Solutions to our water problems in Georgia require as a starting

point a careful analysis of the problems as they exist. The present

Georgia water law must be reviewed before one may fairly determine

its adequacy under modern conditions. The comparable law of other

jurisdictions and the experiences of other states with respect to

similar problems will provide a helpful background upon which to base

our efforts to determine water law as it ought to be. Comprehensive

water legislation for Georgia must, of course, be calculated to fit

the local situation, the economic, hydrographic, and geographic

conditions which may be peculiar to this State.

The following stuQI contains a treatment of the two basic

doctrines of water law and the nature of the rights of water users in


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the jurisdictions following each of the two doctrines. Of particular

concern to the lawyer and the legislator will be the chapter on the

constitutionality of legislation concerning water rights.

The water law study was begun by Nr. E. Ben R. Lancaster,

Assistant in the Institute of Law and Government, who prepared

materials on the riparian doctrine and the constitutionality of

legislation concerning water rights. Mr. Bryan H. Storey, Assistant

in the Institute of Law and Government, has continued the stud* of

water law and has prepared this stu4y in its present form. The

Institute is well pleased with what has been accomplished and feels

that this study will prove of much help to all agencies and groups

interested in the best solutions to the water problems that confront

the State of Georgia at this time.

The Institute is designed to study law in action as well as in

theory with the reasonable assurance that an intelligent and

sympathetic appraisal of the law as actually administered must go far

toward a realization of law as it ought to be. It seems appropriate

that a study by the Institute directed toward the proper conservation

and utilization of the water resources of Georgia be included in a

program which contemplates benefitting the people of this State

through a contribution to the orderly development of our law and the

more effective administration of justice.




J. Alton Hosch
Dean, School of Law, and
Director, Institute of
Law and Government


I












The following is a study of the two basic doctrines of

American law relating to the utilization of waters--the riparian

and prior appropriation doctrines.

Chapter I treats of Georgia's existing water laws, particularly

the riparian doctrine as declared by Georgia statutes and judicial

decisions. The various legal classes of waters and the laws

applicable thereto are noted herein. The important Georgia cases are

sumiarised and included under topical subheadings.

Chapter IT is devoted to the doctrine of prior appropriation.

The history of this water law doctrine is traced; and the more

important features are described, including public ownership of

waters, priority, beneficial use, and the statutory provisions for

the acquisition and forfeiture of water rights.

Chapter III discusses the constitutional problems confronting

the lawmakers in the enactment of legislation affection water rights.

Emphasis is placed on the constitutional problem involved in a

changeover from the riparian rights system to the prior appropriation

system.

In the Swmnary and Conclusion the two water law doctrines are

analysed with respect to the advantages and disadvantages of each, and

such broad deductions are made as may be drawn from the contents of

the study.

An appendix contains statutory provisions from the water codes

of the western states. These provisions relate to the more important

features of the law of prior appropriation.



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'l~ar~I~Aserssm~irt~i~l~


Bryan M. Storey
Assistant, Institute of
Law and Government


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I wish to acknowledge with appreciation the contribution of

Mr. Ben R. Lancaster, Assistant in the Institute of Law and

Gover~atnt, who prepared materials on the riparian doctrine and the

constitutionality of legislation concerning water rights. Valuable

assistance was rendered also by Dean J. Alton Hosch and Professor

D. Meade Feild who made helpful suggestions during the preparation

of this stu~y,


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TABLE OF CONTENTS


Chapter One

GEORGIA'S EXISTING WATER LAWS THE RIPARIAN DOCTRINE

Page

General-------------------- -------------- 1

Water Classifications------------------------ 1

Statutory Law-----------------------------

Riparian Doctrine-------------------- 5

me Significant Cases-------------------------- 9

Reasonable Use Question for Jury--------------- 9

Reasonable Use Examples---------------------- 1

Diversion------------------ ----- ------ 13

Use on Non-Riparian Land---------------------- 16

Pollution or Adulteration---------------------- 17


Chapter Two

THE DOCTRINE OF PRIOR APPROPRIATION

I. In General -------- ----------------------

A. Origin and History----------------------------

B. Public Ownership of Waters-----------------

C. Waters Available for Appropriation-----------

D. Priority Element------------- ---------

II. Beneficial Use and Preferential Uses-------------

A. What Constitutes Beneficial Use---------------

B. Efficiency of Methods of Water Employment-----

C. Preferential Uses-------------------------



v


19

19

22

24

27

30

30

33

36




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I. In

A.

B.

C.

II. Soi

A.

B.

C.

D.

E.


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XIn. The Acqtuiltlef apoprastw Ilta---ae K7

As* tmbreiam pad ul--- .- --------


C .. Sta-ato-rod----
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-V. aswne and erSa-Ea ----------f-.ff -----" 59
A. Statutory provirlaSa-*-" 60--

B. Coantitutioal protblem-------6

V. Mi*efllaou PrIatnj Clwag n iPotan.s of
BDinwe s, PlaOe and Wn s 9.t giMW, Tre der mId
A~igBHMA---- -------------------~-----


SAs bmdgtae e 68
SVI. Forfeited anl d Abad ent- '-"' 68

A, Abando.arnt- ------- ....


VII. Reebot Dutqspnents Is the La Affecting Water
Approwqrfilti-- a---------' fl




OnSTIrnwmm or IEmE*Ulom apacTIo


I :. Californa ad ColOrGdo Dctrn..a--------- 81

11t Influuoes of Desert Ua Acet.e*------ 82

III, The OGreg pecwdentBs-eee-e-en 86

IV The 0anoa pifeora nts -- **--**d--n-t 88
V. *Te lames p95fl~fltSLaasemeaeeawe 9%

i VI. Situation C1A1 orgia0---.--.--.....---- 100


swARY AND ooNaso------- -- ----- 03




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APPENDIX


A. General Provisions Governing Appropriation

1. Arizona ..... ... ..----. ...-----------.... ...

2. California ------------ --------------------

3. Colorado- .------- ----- --------------

4. Idaho- -- ................ ..............
$. Kansa s--... .... ........... . ...----

6. Montana------------ .-------------------------

7. Nebraska-----------.--------------------.-

8. Neevada----------------- --------------

9. Nw Mexico-------- -----------

10. North Dakota ----------------.-------.--.

11. Oklahoma-.... .---------------... --------

12 Oregon -----------------------------------------

13. South Dakota-------------------- -------

14. Texas- ------------ ----------- -----------

15. Utah ---------- ---------------- ---------

16. Washington --- ------- -----. .. ..----------- -

17. Wyoming----------- .........--..-------.--



B. Purposes for tidch Water lay be Appropriated
Preferential Uses ------------------- ----------

1. Arizona----,----- --------

2, California----------------- --------

3. Colorado -- ---------------- ------

4. Idaho----- ------ ---------.

5. Kansas--------------------- ---- ---

Yii


1

1

3

3



5

6

7

8

9

10

12

15

17

18

19

20




21

21

21

22

23

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6. Nebraska--- ---------.---.---------------a 23

7. New IMxico--- .---- -------------- 2

8. Oklahoma---------- ----------------------- 24

9. Oreon..o -----..----------- ------------- -- 25

10. South Dako ta--------------- ---- 25

U1. Texas ------------ ---------------------.--- 25

12. Utah--------- ------------------ 27

13. Washington ----------- ----m.. .-------------- 28

10. *'yomtng........----------------- 28



C. How Appropriations Are Acquired----------------- 30

1. Aizon----.---- ........---------- --.. 30

2. California--..---------------- .......... 31

3. Colorado------ --.----------------.. 34

I4. Idaho ---------------------------------- 35

5 Kansias ------- --------- ------- .----t- 4o

6. ewntai-na-------- -------- --------. ---- 42

7. Nebraska ----.----------------------- 45

8. Nievada--------- ------------..- --.....---- m6

9. New exico------------------------------. 49

10, North Dakota------ --------------------- 51

1. Oklahoma--------------- -.--------------- 55

12. Oregon---- -------------------- 59

13. South Dakota---------------------------------- 63

14 Texas-------- .----------..----------------1---- 67

15 Utah.............. .................... 69
15. Utah--------------------------- ------------69

16. 2Washington.. .. .. .76

17. .yming------------ --------- 82










D. Prorisians for Forfeiture for Non-Uns; Abandoent-- 88

1. Ariona------ .. -------------............. .. 88

2. California ..----------.--- --...---------------. 88

3. Colorado----- ------------------------------ 88

4. Idaho ---------------------------------- 89

5. Ka.asa.-- --.------------------------ ---.---.-- 89

6. Montana ....... ------- ----------------- 90

7. Nebraska --------------------------------------- 90

8. Nevada --------------------------------- 91

9. New Mexico i--------------------------------- 91

10. North Dakota .. .... ....---------------------- 91

11. Oklahama.. ------------------------------ 92

12. Oregon -- ------- -- ----------------- 92

13. South Dakota --------- -------------..-- 93

1. i ~C ------------------- --------------------- 93

1S. Utah---..--------------- --------------- 93

b6. Wyom ng-------- ----------------------- 9




















ix


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Chapter One

GHORUIA'S EESTING WATER LAWS THE RIPARIAN DOCTRINE

I. In General

Water aupitfioations, The basis of the present law

respecting water rights in Georgia is the English common law which

was adopted by the early settlers of this country in so far as it

was applicable to the conditions prevailing in the new land. The

development of the most important aspect of this law, now commonly

referred to as the riparian rights doctrine, was influenced also

by two early American jurists whose writings drew upon principles

of the civil law of France.1

Inland waters, in their natural state, are found in a number of

forms and in varying locations with reference to the earth. The law

applicable to these waters depends upon the characteristics of the

particular source, and it thus becomes necessary to examine the

various classifications.

Waters on the surface of the earth are ~cassified as diffused

surface waters, and concentrated suface-waters euch as streams,

lakes, and poUn. Underground or subterranean water may be classified

as that which flows in well "defined underground channels, or that

, which oeaes in veins or filters throu th erth's strat a. ifused
percolating water.

Diffused surface waters are those which occur broadly over the

earth's surface after rain or other precipitation before they become

concentrated into watercourses, lakes, or ponds. The Georgia cases

involving these waters are concerned with complaints by one who


1. Joseph Story in Tyler v. Wilkinson, 4 Mason 397 (1827);
Chaneller Kent, 3 Kent Com. 353 (~18 ).

1








gaatas to be S ured by the acton of another which result in an

laeireeed flow of such- Ieteste zr t t d. In such a situation,

the lower lot must receive the water which naturally runs from the

upper, provided that the owner of the upper lot has done no act to

increase the flow by artificial means other than such as would
2
naturally result from the ordinary use of it. Concerning one's

rights as to the beneficial use of diffused surface water, one

case raggests that the owner of the land owns such water thereon,

so that he may cause it to be concentrated into a cistern or into

a private pond located on his land without liability to aryane for

so detaining and using the water. But this proposition is not

firmly established in Georgia law.

IUbga formerly srroVmded In myst!er, gml tm

thae.i* o u ., otr igirn an- I st" nation W o be reaably

asoeridm as a rzs*t of afdaio f in bhy&' !y. The rule

aplicable to .pe8oatag waters, those which filter in anWll

quasta s tsLe r the earth's strata, ig that they belong to

the owner of the soil. Copequantly. whbe a land oper digs a

mll, hw martake all the water he needs from a peroolating source

for usae an the overing land resirsum of whether the wial

san 3a t Ir Ism tIo cI d7. It maas no difference

that the *p&etion of the peroolattg after under one-s own land

cause a a lamjAOng of the level of percolating water under

another'ts land Apparently the only restrie.eon upon the use of
^^ _|,| -*--J-- =** ""'H< "iA i'^1"-------^-- --""" I
2. Goldsmith v. Elsae, May, & Co., 53 Ga. 186 (187L).
3. See Phinimy v. City Council of Augusta, 7 Ga. 260 1872).
4. Stoner v. Patten, 132 Ga. 178, 63 -S.E. 897 (909).
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such water in Georgia Is that one M ot &if iy take water

from a -lU and wa~U or dlrt it ao U A&MV&t' iaiato nt

The presumption is that water taken from an underground

source is percolating water, but it may be shown that it comes

from a definitely ascertainable underground stream tiich flows in

a well defined channel. This difference may have a definite

effect on the rights the parties, for the law relative to

underground waters fl ring in defined channels is the same as

that relating to watercourses on the earth's surface.7 Ch-

waters are not subject to absolute ownership, as are percolating

waters, but are governed by the riparian doctrine of reasonable

use,

Where the waters of a spring do not form a watrcourse,

but sink back into the earth at the spring, spread over the

surrounding land, or flow in a course entirely on the lands upon

which they arise, disappearing before reaching adjoining land,

the ari i ordinarily regarded as the axnusive property of

Sthe wner of the land on which it is situated, Wher however,

the water flaming from a spring establiabes a watercourse across

adjoining land, riparian rights attach in favor- of the owners

Sof sch land, ,and the owner of the land upo which .t spring

arises must share the right to use the waters with other

riparian owners.



, 5. Saint Amand v. Lehman, 120 Ga. 253, 47 S.E. 949 (190W).
6.e See note Ih supra.
7. Ibid.
8. 36-1. Jur., Waters, Sec. 133, (1947).

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The right and privilege of proprietors bordering

non-privste lake and pond afe in ost respects the sae as

those of riparian proprietors generally. If the boV of water

ia_!if.ifLa^ l ms. nt Fic gta may be .ujord talto to tUe

rihts of thae eaio ntor i tion*9

Probably the most important of the state's water

.esoure an 1= I fil = rI I

and ta he Tfrt a u riparian"

eams frai th*e atin word man4arg Mbhfm*, and riparia right are

ach as grow out of the ownership of the banks of a watercourse.

A atfircnse has a well defined channel, a definite source of

water aply, a a substantial degree of permnence although to

be considered as such it is not necessary that it flow the entire

year.10 Riparian rights attach only to lands which border upon

the streak, and a riparian owner cannot lawfully convey to

another te right to use water upon non-riparian lands to

the injwy of other riparian owners.?1 AlthtbmA thee is un--



hold Sat Vfto fVte der an further llsitd to the iallest

tract BlMd wAt oue ttle in the ohein of t e leadi tth

preset wIner; and t lad, in orIr to be rparian to a stream



9 -- -- -


9.
10.

U.

12.


56 Am. Jur., Waters, Sec. 58 (19)7).
See Pelham Pijhte Co. v. Daniels, 21 Ga. App. 57,
9 S.E. 8I6 (1918).
Hendrix v. Roberts Marble Co., 175 Ga, 389, 165 S.E. 223 (1932);
City of ELberton v. Hobbs, 121 Ga. 749, 49 S.E. 779 (1905).
Rancho Santa M agagrita v. Vail, 11 Cal. 2nd 501, 81 P. 2d
533 BSg ArM.rU v. City of Conway, Ark. 271 S.W.

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atuto: M. fMt statutory law on riparian rights is

lIuitd4, prcti4Uily all bing contained in two sections of the

at ia 9 .. of 193. Section 85-1303 g ater:

while On land belongs to the owner of the land, but he has no r:


to divert it from the usual channel, nor may he so use or adulterMt

it as to interfere with the enjoyment of it by the next owner,"

Section 10.-1407 provides: "The owner of land through ,hich

-av ale ftferoCmreas any flow is entitled to hve the water

in -O.. ,.ata to hb land in its natuml and usual flow,

subject O~l to waud detention or diminution as may be caused by a

reastable uee of it by other riparian proprietors; and the diverting

of the str am, v holly or in part, from the sase, or the obstructing

thereof so as to impede its course or cause it to overflow or

injure his land, or a4f right appurtenant thereto, or the pollution

thereof so as to lessen its value to him, shall be a trespass upon

hi a
--W--l---------n_ N(_



Georgia law relating to the rights of one wto owns land bordering

upon a ncb4Y*a Wtyn"

"J- e UndBr the strict aspect of the riparian

doctrine, 1toer urns and it ought to run as it has been accustomed to

runs" The proprietor of riparian land is entitled to have the water

flow by or through his land, undiminished in aa~k -andu unimpaired in


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...l ,:c.t ----'-, f --1" __ .. -Ir he

needs fx t for
"domestic purposes" include the use of water for drinking and

general hd purposes and for farm animals. A domestic

use usually involves consumption of water in limited quantities

only, but if tte trea is small, a riparian proprietor apparently
, .~~~~-- p IJ'i 4
may conuw all the water in the atream for ach purposes if

essaw&y iatttimt thereby incrring liability to lower proprietors.

Doraetic uses or "natural" uses as they are smaltmB es called

do not include uses of water for industrial or irrigation purposes,

which are usually more highly consmptive in nature, and which

are designated commercial or "artificial" uses.

The idea that each proprietor is entitled to have the

stream. Yd in quantity and unimpaired in quality exept

for donodtle uhss of upper proprietors would, if strictly followed,

make the stremu of little practical use to an proprietor. The

riparian doctrine as ordifed in other state. and in Georja

-allows a a prtprietor to ume u sact use of the streaa a is

reAoj in violation to tn obhacta ad aais of the stream.,
and abwr 'b the iam the otitv Of va=~r used- the other

uses to which the stream is adapted. and aty other relevant
15
factors. One's right to make reasonable use of the water is
~I .- -- IJ. I l
lizated howeres by equal rigt on the part of all other proprietors.
-- ------""------ -- ----

13. Hendrick v. Thomas and Cooc, 4 Ga. 21 (18i7); See White v.
East Lake Land Co., 96 Ga. 45, 23 S.E. 393 (1895).
14. See White v. East Lake Land Co., supra note 13.
15, Price v, High Shoals Mfg. Co., 13iL2 246, 6t S.R. 87 (1909).
16. Roughton v, Thiele Kaolin Co., 209 Ga. 577, 7t S.E. 2d
8U (1953).









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Frlo this br aimnastia of the riprian docta

applied in #aa it wad sem th at ripl
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22.
23.


Pool & Ltfburrw v.I. 1. Ga. 162 (1870).
See Seaboard Air-Lin Rail~ai v. Sikes, h Ga. App. 7,
60 S.E. 868 (1908).



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be sre as to how mch, it my, of the water Ube ttMGd

to uan witheat Safraglag WnO the rittso of tar rr IU he

certain of the qt& lj of vatr hlob f. II rfr N1 MI if

wppnr pprrbp vtn snauqoseuey deelie to weyuts tbtr r)$ta to

a resaunable aS s of theft atreas What is reasonable is a relative

ntter to be 46etrpnd by a Jury after a -lihtof a

number of factors; it camnot be easily prPdicte, and the

determination of one jary may vary from. that of anVlwr which

acted with respect to vwry asailar circumusnce6 t r what
I--- : --- -


rsriget.ta, iTdher ? or eoter typ etflxqst guff icient to
. -


PfelMh fl mtelaet ywed r o th erwr simve or below het decided to use
-- --------- i ----I
thi wavt~ for as a rpme of their own. It WM g gj ._ao'svho




t1Bf s tI amt be apprtined Iy ag all 4O1rMa rristoe

a. b~s gaI s tt a *ttian 1a i i =-a l oLf tem fact that

st. oB fs #*rle uo.


Spoeafte cases i nolvlng the appULoation of the riparian

doctrine in Georgia are included in the following section.


II. Some SiQgnificant Case

Reasonable ee Qefteion frr Jury.

Price v. Hi h Shoals flg. Co., 132 Ga. 246, 64 S.E. 87 (1908).

Plaintiffs, lower riparian owners and grist mill operators,

sued defendant, upper riparian textile manufacturer, alleging that

9



"-- --j








defendant, to operate its machinery b the use of the water

power of the stream, erected a storage dam on the stream above

plaintiffs' mill, creating a pond of water covering a consider-

able area, which caused evaporation and absorption of the water

thereby diminishing the supply to which plaintiffs were entitled;

that defendant placed gates in this dam which he closed at 6:00

P.M, each day and shut off the flow of water until the next

morning, as a result of which a sufficient amount of water to

enable plaintiffs to operate their mill did not reach them until

12:00 noon, Plaintiffs alleged damage in the operation of their

grist mill, and that defendant's use of the water was unreasonable.

For the purpose of showing that defendant s use was beyond the

capacity of the stream, plaintiffs offered evidence that defendant

installed 5,000 additional spindles after the dam was built. On

defendant's objection, this evidence was excluded, and verdict

was entered for defendant,

On appeal, the case was reversed. The exclusion of the

offered evidence was error. Defendant, as a riparian proprietor,

was entitled to make a reasonable use of the water of the stream,

but the question of what is a reasonable use is a question for

the j in vie ofll t cts hecae taking into

consideration the nature and uae of the mIah ry, the quantity of

water used in its operation, the uses to which the stream can be

applied, the velocity of the current, the character and sise of

the watercourse, and the vYryng circumstances of each case. The

offered evidence was admissible for the purpose of illustrating

the question as to whether or not defendant's machinery was

10




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use of the water was a L2 2t 2 oe.

MiO-tt -stE 1 Ga1 Oa. 415, 23 S.A. 393 (1895).

The petition of plaintiff, a lover riparia pr t'ator,

alleged that he was the owner of a git dill, sawmill, and

cotton-gn, the power for which was obtained from the waters of

a certain creek upon which the sam wet located. It wa

further a1eged that Odowdent, ippwer Pidg anb. ar.

erected a da across the Main tributazy of the: creek and cut off,

for a period of about five months, five-asthb of the natural

volume of the wa-tr ter interferim with PlainAUff'd Is ing

and gindang operations.

It as held that the petition ma not subject to general

demreri, the court seIg that each ipparian twner is entitled

to a reasonable use of the water bat that what is a reasonable

use by way of detention and diminution of water is a question of

fact for the jury, to be decided upon a consideration of the

circumstances of the case. The court said also that dirfiution

of the flow of water in a stem by reason of evaporation and

absorption resulting from the spreading of the water over a large

area as a result of the erection of a am y be an unreasonable

use, but that the determination of this question is a matter for

the jury.

Reasonable Use Examples.

Pool v'. tist i Ga. 162 (1870).

With respect to the right of a landowner to detain water

for punroees m ^ied 1 h 114" Ir0iS"L hm gM*-1 wa rn am


water to power his ai11 but be aut not detain it longer than


-*:,. : -

























.-\
-c I


























r









^Mtsiswil








necessary and he must return it to its natural channel before

it passes to the land of the lower riparian owners.

Rolse y. and Lig t Co. v. Loeb, 11 Ga. 202, 80 S.E. 785 (19141).

Plaintiff owned a tract of land next to a mill pond and

also the .a11 privileges which gave the right to back water by

means of a 13 foot dam. Defendant also owned a tract adjoining

the mill pond. Defendant operated an electric generating plant

on his tract and in so doing took 00,000 gallons of water from

the pond daily to operate its condensing engines. But substantially,

all this water was returned by means of pipes to the pond.

Plaintiff sued to enjoin such use by defendant, and the lower court

granted an injunction.

On appeal, the case was reversed. Defendant was a riparian

proprietor and as such could make a reasonable use of the water.

The facts show that defendant's use was reasonable. Each

riparian proprietor may use the water for any purpose to which

it can be beneficially applied without material injury to the

rights of others. Plaintiff's mill privileges entitled her to

use only so much of the pond water as was necessary for the

operation of the mill in a reasonable manner.

Hendrick v. Thomas and Cook, h Ga. 2Sl (18417).

Defendants erected a dam across a stream upon their own

land. The dam raised the level of the water in the stream about

ten inches and caused it to flow over a valuable mill shoal

belonging to the plaintiff, an upstream proprietor. The water

was, however, not thrown out of its natural channel and was not

caused to overflow the natural banks of the stream. The mill








shoal wee apparently rneat d vamrlues. y the inundatlon.

Plaiatiff brought an action for dmpgea

?he oourt held in ffei t that the plaintif was entitled
--r-- II

I an r. Sobe court said that a ripat n gsrsaiWS4p eSeld

not threw water baok upon the proprIetors abowe witha their

omanent or without ac
However, such a proprietor i entitled to a reasonaNi u se of

the water for domestic, agricultural, and manufacturftg purposes

provided, that in making such use, he does not wok a Mpteal

injury to the other proprietors.

(Of particular interest is the contention which defendants

made that they could, as riparian proprietors, by mere

prlfr appjagitt& at the water to mill purposes, destroy

plaintiff's right to have the mill shoal free of water. The

court rejected this contention.)



Robertsan v. Arnold, 182 Ga. 6614, 186 S.E. 806 (1936).

Plaintiff alleged that a stream supplied a water-race

upon his property, that no nml had been operated in connection

with such race for the past ten years, but that he intended to

use the water-race for the purpose of supplying power to a mill

at some time in the future. It was further alleged that defendant

had diverted soa of the water of the strp m and threatened to

divert all of it, that the diversion was for the purpose of

creating an artificial pond on defendant's land, that the water

would be unreasonably dlaved e rh thi s pond and onm of- it would

evaporate and be absorbed with the remainder flowing back onto

13


A


~L .- .. _.i







the property of plaintiff below whse t could run into plaintiff's

water-race, 1aiLntiff further sttd that such acts ty defendant

would completely destror the usefulnesa of his water-rae.

'Phe supreme court held that the trial court erronoualy
sustained defendant demurrer to the petition. Water ought

to run in the sae wy in which it has been accutoaed to run.

It matters not heher the use to which the running water can be

applied is present or prospective. The court rejected an argument

that, inMee plaintiff eight never ua*e sa use of the water-race

for power purposes, he should not oamplain until he has snee
occasion to use the water. Lataitfa' zrnuia= a rights had been

infringed and hi non-w4t&in uight result in the acquisition by

defendant of a prescriptive ri8t to ootinme the diversion.
G hv. Georgia and asaitg Co., 115 o. 3410o

Ia S.s. 659 (1902)0
Defendant, upper riparian ouner, diverted water from a

stress by means f a ditch so that it no longer fod down to

the property of plaintiff lower riparian owner.
The court held that an injunction against such diversion

coull properly issue although the diversion wa calete at the

time of the applcation for injunction and the effect of compliance

with its terms would be to cause defendant to destroy the ditch

he had previously constructed.

C(huut Pyrites Co. v. Cavenders Creek Gold Mining Co.,

U14 Ga, 255, s.E. 267 (1903),
It was held that a threatened diversion of a part of a

stream flowing through plaintiff's land gives rise to a right

of action for an interlocutory injunction because a diversion of
S14


S4







the water would be en injury to plaintiff's property and because

the injunction would restrain acts of defendant which might, with

the lapse of time, become the foundation of an adverse right.

Persons v. Hill & Thornton, 33 fa. Supp. 1l (1864).

Plaintiff brought a bill in equity for an injunction alleging

that defendant proposed to erect a canal with a levee on its

south side from B Creek at the northeast corner of defendant's

land due west along the north line thereof contiguous to the

south side of plaintiff's land to F River, with the result that

B Creek would be caused to flow into F River at a point approximately

4 miles above the point where the creek naturally flowed into the

river. Plaintiff further alleged that the construction of such canal

would, in case the waters of F River rose above normal level, cause

a backflow which would flood plaintiff's lands.

The court held that an inunction i.ould e. Significantly,

the court had the following to say: "The defendant in the a ent

relied upon a statute of the State, passed, I think, in 1855 and

1856, authorizing pemsmto gft uglaarale stras through _

their own landa... Although the statute gives such right, it did

not intend that such thing should be done as to affect the rights

of a third person. If it did, the Act for that purpose would be

void, because the right of persons to have waters in which they

have an interest, to flow as they have been accustomed, is an

incident of p = y of which they cannot be deprived, even for the

use of the public, without compensation." p. 18.

Davis v. Cobb County, 61 Ga. App. 712, 7 SE. 2d 324 (1940).

The county authorities graded a certain road and dumped excess


_ I__rr_








dirt into a spring adjacent plaintiff' s land. The spring fed a

stream which flowed through plaintiff's land. TWc spring was

stopped so that the stream ceased to flow.
The court held that plaintiff had a cause of action for

damages equal to the difference between the value of his land

before and after the stream ceased to flow. The court added that

the right of the plaintiff to have the water come to his land

in its natural and usnal flow guaranteed by Code Section 105-1407

was such a right as comes within the constitutional provision that

private property may not be taken or damaged for public purposes

without the payment of ?ust compensation therefore.


Use on Nop-Rrian Land

-Ciy of ,-rton v Hobbs, l21 Ga. 749, 4h S.E. 779 (19o5).

Defendat city bought a tract of land on a stream several

miles from its corporate limits and there set up a pumping station

from which it pumped water to the city for municipal purposes.

Plaintiff, lower riparian proprietor, sued for an injunction to

prevent appropriation of the water, alleging that the water

supply was necessary for the operation of his mill and ginnery.

Defendant alleged that it was necessary to take water from the

stream for fire protection and thtatat least 75 percent of the

water taken would be returned to the stream above plaintiff's

property. It was further alleged that the amount of water taken

was small in comparison with the flow, that plaintiff's property

was in a state of disrepair and was not th.e nor hadU t been for

some time in actual operation.

16







The action of the l rmw court, ti an incti was

affirmed, The city can not use 'te water taken by it on

non-riparian land. Plaintiff s right to have the water come to hi

land in it nural and usual flow wa inyaded. It a j
that plaintiff was not seriously injured.

Hendrix v. S be.rt Marble Co., 175 Ga. 389, 165 S.E. 223 (1932).

.Te essential facts were substantially like the following

hypothetical situation: A owns a tract of riparian land. B owns

a tract of non-riparian land which is physically separated from

Aes tract by a public street and the property of X. A conveys

his riparian rihte to B. B builds a pipe line from the stream

across A's land, the street, and X's land to his own land. By

means of this pipe B diverts the stream water for use on his tract.
I-I
It Was held that a lower riparian ownr eiL ye an injunction

against B's diversion. Riparian rights are appurtenant only

to lands which actually border upo tia "e o. A riparian

owner canot hiaalf lwf U0. .- m* the
right to use, water flowing alone his property, upon non-riparian

lands.
SPollut or oAd.gration.

Under Georgia Code Sections 85-1301 and 105-ll407, an upper

riparian proprietor may not pollute or adulterate a strn

as to damage a lower riparian proprietor. In the case of pollution

or adulteration, the lower owner has a remedy by way of suit for

injnction (see Horton v. Fulton, 130 Ga. 466, 60 S.E. 1059 (1908)),

or a remedy by way of an action (see Hoges v. Pine

Products Co., 135 Ga. 134, 68 S.E. 1107 (1910)).

17



I" 'L*l.* 'S~ 'cT *




_-W --- -1



Kinaey Kill Corp. v. daons 208 Ga. 374, 67 S.E. 2d 111 (1951).

A manufacturing company may not use a stream for the purpose of

sewage disposal to the damage of a down stream dairy farmer.

Satterfield v. Rowan 83 Ga. 187,9 S.E. 677 (1889).

A mining proprietor cannot wash ores on a branch so that

the water can no longer be used for the watering of horses and

stock by a lower riparian owner. It matters not that the branch

was more useful for the purpose of mining than for domestic

purposes.

Horton ,v Fulton, 130 Ga. 466, 60 S.E. 1059 (1908).

A sawmill operator may not dump sawdust from his mill

operations into a stream and thus render the stream unfit for

farm use by a down stream owner.

Hoges v. Pine Products Co., 135 Ga. 134, 68 S.E. 1107 (1910).

A manufacturer in the process of extracting certain chemicals

from pine wood cannot discharge waste products into a stream so

as to render it unfit for fishing and for watering stock.

Cairo Pickle Co. v. ggridge, 206 Ga. 80, 55 S.E. 2d 562 (1949).

A pickle manufacturer is not permitted to discharge waste

brine into a creek so as to make it unfit for fishing and for

watering stock.

Roughton v. Thiele Kaolin Co., 209 Ga. 577, T. S.E. 2d 81 9 (1953).

An upper riparian kaolin processor may not divert stream water

for use in processing kaolin and return such water with dirt, chalk,

kaolin, chemicals, and other debris so that impure substances are

deposited on plaintiff's land the fertility of which is destroyed.


18


+~ -|







Chapter Two

The Doctrine of Prior Appropriation

I. In General

Origin and History. The doctrine of prior appropriation is

commonly supposed to have arisen in California as a recognition of

the well-established customs of miners. The early miners settled

in little-inhabited and almost ungoverned areas. To them water was

an essential in order to separate the gold from the earth. The

idea of "first come, first served" was well adapted to preserve

order under the conditions of the time. Priority of discovery

and appropriation was the primary source of rights.

It appears also that local Indian water customs adopted and

extended by the Spanish and Mexican occupations were concerned with

the acquisition of water rights by reason of diversion and use. But

these customs did not find their way into statutory laws except for

those affecting community irrigation systems known as acequias,'24

In California, however, the first legislature in 1851,

enacted the Civil Practice Act which purported to give effect

to customs, usages, or regulations in actions respecting mining

claims when such were not in conflict with the constitution

and laws of the state. Thus the custom of appropriating water

acquired some authority, notwithstanding its variance from the

common law. In 1872 legislation was passed which in large
-- ------- ----- ----- ------------------
24. Hutchins, Wells A., The Communit AeeCi a: Its Origin and
Development, Southwestern Historical Quarterly, vol. XXXI,
No. 3, pp. 261-272 (Jan. 1928),
25. See Discussion in U.S. v. Gerlach Live Stock Co., 339 U.S.
725 (19L9), and Busby, C. E. American Water Rights Law,
5 S.C.L.Q. 117 (1952).

19



L ------__________________________dl










assre codified the customs which had grown up in the mining
26
camps.

In addition to California, the appropriation doctrine

spread to other states here it was recognized by statute, or

by court decision, or both. It was practiced pursuant to local

customs in other portions of the West, both in mining and

agricultural areas, without express statutory or judicial
27
recognition.27
In the states of Arizona, Colorado, Idaho, Montana, Nevada,

New Mexico, Utah and Wyoming the doctrine of prior appropriation

is the exclusive water law, In other states, the riparian

doctrine is reco nied at least to some extent, but, as in

Oregon, the modifications may be so extensive as to amount to

a virtual abrogation. the states in the former group are

said to follow the "Colorado doctrine", while those states

which recognize both the riparian 'and appropriation doctrine

concurrently follow what is often referred to as the "California

doctrine". the California group adopted the common law of

riparian rights as the rule of decision with the modifications

coming later, while the Colorado group considered themselves

to have adopted the coamon law from the begi-ning only in

so far as it was applicable to the seit-arid conditions of

the area. Since riparian rights were held inapplicable to

26. Calif. Civ. Code, Secs. 110-1h22.
27. Hutchins, U. A., History of the Conflict Between Riparia
and Approiative R ts in the Western States. Presented
at ater Law Conference on Riparian and Appropriation
Rights, University of Texas School of Law, Austin, Texas,
June 11-12, 195T.



~~.; ,




.~L-iz2. iZIsL7 in raU~ Qu;JPI T iPJ ni- I.~`~ -~- ..'


the conditions of the area, the legislatures were free i enact

laws based on local custom and practice without having to recognize

rights which would have vested under the riparian doctrine had

that doctrine at ary time been in effect.28

While the riparian rights doctrine being a part of the
co non law is usually set forth in the decisional or judge-declared

law, the doctrine of prior appropriation is predominantly

statutory. The appropriation doctrine has found expression in

legislation in all of the seventeen western states. In those

states where riparian rights have been recognized, constitutional

considerations may restrict the applicability of such appropriation

legislation to certain defined limits, as for exapAle, to waters

on the public land or to storm or flood waters29 As might be

expected, the existence of these two diamtrically opposite
principles in the sane state is productive of uch litigation.

It is not the purpose of this chapter to consider the history of
the conflict between the two theories of mater 1w, but rather to
examine the nature and content of water legislation in the Vest,

as it applies to appropriation.

The various code chapters concerning the appropriation of
water for beneficial use vary in length and detail from state to

state, but the broad outlines of principles and procedures are
similar. It is commonly provided that unappropriated water
within the state is dedicated to the public, and that priority
----------------- ------ ------------------a---------
28. Sternberger v. Seaton Min. Co., I5 Colo. o01, 102 Pac. 168
(1909).
29. totl. v. Boyd, 116 Tax. 82, 286 S.x. 458 (1926).
30. Hutchins #p. cit. sara note 27.


'~ ~"ci -.- ~


-


Laar'_-'3_ -










of appropriation shall give the better right. The method of

acquiring an appropriation right is usually by application to

the state engineer or other officer for a permit, When the

applicant has completed the construction of the works necessary

Sto the use of the water and actually appropriates the sarn, the

engineer issues hi a certificate of appropriation. Judicial

review is provided for the applicant when he feels himself

aggrieved as a result of the action taken by the engineer upon

his application. A system of preferential uses requires

distribution of water in a certain specified order when there is

an insufficient quantity for all and when the proposed uses are

for different purposes.

Public Ownerahip of Waters. The foundation upon which the

apprprriative system exists is the concept of public ownership of
water resources. By the constitution in some states and by

statute in others, certain of the unappropriated waters of the

state are dedicated to the public. A typical provision, found

in the Colorado constitution is as follows:

"The water of every natural stream, not heretofore

appropriated, within the state of Colorado, is hereby declared
to be the property of the public and the same is dedicated to

the use 'f the people of the state, subject to appropriation

as hereinafter provided



31. See Appendix, p. 1, ff.
32. Colo, Const. Art. XVI, Sec. 5.


22

,, **4', l











In Wyoming water is declared to belong to the "state"

rather than to the "public" as in the Colorado type statute.

The Colorado provision declares that the right to divert the

unappropriated raters of any natural stream to beneficial

uses shall never be denied. In Wyoming there is a similar

provision, but there is added the phrase "except when such

denial is demanded by the public interests." Such variations

are important considerations in the determination of such questions

as whether compliance with a statutory scheme requiring the

obtaining of a permit is an essential prerequisite to the valid

appropriation of water or whether a right may also be "acquired

by merely constructing diversion works and applying the water

to a beneficial use.

Ihe waters dedicated to the public cover only those

which are not already appropriated, and vested rights are recognized

either by the words of the statute itself or by judicial

interpretation. Thus California excepts, from the operation of

its statute, water in "so far as it has been or is being applied

to useful and beneficial purposes upon or in so far as it is or

may be reasonably needed for useful and beneficial purposes upon

lands riparian thereto, or otherwise appropriated."3

In the Kansas statute "vested rights" are given a

somewhat more restrictive application. "'Vested right' means

the right to continue the use of water having actually been

applied to any beneficial use at the time of the passage of this

-------------------------------------------------------------------------------------------
33. Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 1i,
236 Pac. 76B (1925).
34. Calif. Water Code, Sec. 1201. Appendix, p. 2.
--'"
.2'. L.




C ~ -I~~- ~-~--_- ..- ---- -~, L-LL_~_ ~ lb.l ~ PL-- --;---- ------- -. ;;LT-_~ ~ -i-l
~~,~~n;~.. . . . . ..- *~-~~:~ -~r ~


act or within three years prior thereto to the extent of the

existing beneficial use made thereof, and shall include the right

to take and use water for beneficial purposes where a person is

engaged in the construction of works for the actual application of

water to a beneficial use at the time of the passage of this act,

provided such works shall be completed and water is actually applied

for such use within a reasonable time thereafter."35 Any

statutory definition of "vested rights" or of unappropriatedd waters"

would, of course, be ineffective in so far as it might purport to

deprive one of his property rights coming within the protection of

the constitutional provision against the deprivation of property

except by due process of law. Hence the Texas appropriation

act of 1875 providing that any canal company should have the

free use of the waters and streams of the state was held to apply

only to streams upon the public land since the legislature had no

power to take away or impair the vested rights of riparian owners
36
without providing for the payment of a just compensation. The

appropriation acts of 1889 and 1895 declaring unappropriatedd

waters" to be the property of the public were held valid in so far

as they authorized appropriation of storm and flood waters, but

vested riparian rights attached to the ordinary flow and under flow

of a stream.37

Waters Available for Appropriation. A summary of the waters


-------,------------I-------U---
35. Kans. Gen Stats. Ann. 1949, Sec. 82a-701.
36. Mud Creek Irr. Co. v. Vivian, 74 Tex. 170, 11 S.W. 1078 (1889).
37. Hotl. v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926).


rlJ -








covered by the dedicatory provision and available for appropriation

in each state is as follows:

Arisona -- The water of all sources, flowing in streams,

canyons, ravines or other natural channels, or in definite

underground channels, whether perennial or intermittent, flood,

waste or surplus water, and of lakes, ponds and springs on the
38
surface.

California All water flowing in any natural channel,

excepting so far as it has been or is being applied to useful

and beneficial purposes upon, or in so far as it is or may be

reasonably needed for useful and beneficial purposes upon

lands riparian thereto, or otherwise appropriated.39

Colorado The water of every natural stream, not

heretofore appropriated,4

Idaho -- All waters of the ptate, when flowing in their

natural channels, including the waters of all natural springs

and lakes within the boundaries of the state... The right to

the use of the waters of rivers, streams, lakes, springs,

and of subterranean waters, may bo acquired by appropriation.

All ground waters whatever may be the geological structure in

which it is located.

L Kansas A l water within the state.42

Montana The unappropriated water of any river, stream, ravine,

coulee, spring, lake, or other natural source of supply.
rru---u-3e~i-~ u -~--u---ru ------------"Y ---IWL
38. Ariz. Code Ann. 1939, Sec. 75-101, Appendix, p. 1.
39. Calif, Water Code, Sec. 1201, Appendix, p. 2.
40. Colo. Const. Art. XVI, Sec. 5, Appendix, p. 3.
1i. Idaho Code, Sec, 42-101, 103, 226, 230, Appendix, p. 3.
42. Kans. Gen. Stats. Ann. 1949, Sec. 82a-702, Appendix, p. 4.
43. Mont. Rev. Codes 1947, Ann., Sec. 89-801, Appendix, p. 6.

25


i i







Nebraska The use of the water of every natural stream

within the state.

Nevada -- Water of all sources of water supply, whether

above or beneath the surface of the ground. All ground waters.

New Mexico The unappropriated water of every natural

stream, perennial or torrential, within the state. The waters

of underground streams, channels, artesian basins, reservoirs,

or lakes, having reasonably ascertainable boundaries.'

North Dakota A- All flowing streams and natural water courses.

All waters within the limits of the state from all sources of
47
water supply.

Oklahoma -- No specific provision.

Oregon -- All waters within the state from all sources of

supply. (But statute exempts from appropriation certain waters

of the Columbia River and Multnomah Creek.). Waters in counties

lying east of the summit of the Cascade mountains found in

underground streams, charnels, artesian basins, reservoirs or lakes,

the boundaries of which may reasonably be ascertained.48

South Dakota P- All waters within the limits of this state

from whatever source of supply subject to vested rights, except

that the owner of the land owns water standing thereon, or flowing

over or under its surface, but not forming a definite stream.49
---------------------------------- -------
t Nebr. Const. Art. VI, Sec. 5. Appendix, p. 6,
15. Nev. Comp. Laws 1929, Sec. 7C90, Seas. Laws 1939, ch. 178.
Sec. 1. Appendix, p. 7.
46. N. Hex. Const. Art XVI, Sec. 1; N. Vex. Stats. 1941, Ann.,
Sec. 77-1101. Appendix, p. 8.
47. N. Dak. Const. Sec. 210; Rev. Code 1943, Sec. 61-0101.
Appendix. p. 9.
48. Oreg. Comp. Laws Ann., Sec. 116-401, 402. Appendix, p. 12.
Oreg. Comp. Laws Ann., Sec. 116-iW4.
49. S. Dak. Code 1939, Sec. 61-0101. Appendix, p. 15.
26










and tides ea erry flying river or natural trema of all

lakes, bays or arms of the Gulf of Mexico, and the storn, flood

or rainwaters of every river or natural stream, canyon, ravine,
50
depression or watershed.

Utah -- All waters in this state, whether above or under the

ground, subject to existing right.

Washington -- Subject to existing rights, all waters within

the state,

Wyoming The water of all natural streams, springs, lakes
53
or other collections of still water.

Priority Eement. A basic element of the doctrine of prior

appropriation is, as the name lilies, that priority of appropriation

for beneficial uses shall give the better right. This reflects

the policy that diligence should be encouraged and protected,

and is an application of a maxim which runs throughout the

law. This principle is enacted by statute in all the Western

states, and appears in som of the state constitutions.

Tradtionall the date of priority as fixed by the time when

the waters of the particular source iam lved were actually

diverted and applied to a beneficial use. As the population and

number of users increased, centralized administration and statutory


aene--II-e- ~- --~~UI----~-~-1~-


*;, -- ,-r- ; .&, .. I,- ,--.,, ,,, .


50.
5L.
52.
S 53.
54.


Ton. Vernen'e Civ. Stats., Art. 7467. Appendix, 0p 17.
Utah Code Ann. 1953, Sec. 73-1-1. Appendix, p. 18.
Wash. Rev. Code, Sec. 90.0U.020. Appendix, p. 19.
Wyo. Const, Art. VIII, Sec. 1. Appendix, p. 20.
See Wiel. "Priority" in Western Water Law, 18 Yale L.J. 189
(1908, 9).


, t I'


LC


r


, __ ._


- '7 -- -


. i .. ,/ ., . .-, .


. I


p. '







procedures fur the acquisition of appropriative rights were

provided for by most states. The doctrine of "relation back" was

a product of these statutory procedures. Thus, if one, in

accordance with statute, posted the required notice, or submitted

an application to and received a permit from the appropriate

official, and if he further exercised reasonable diligence in

constructing the diversion works and applying the water to its

intended use, the date of priority related back to the first

step required under the statutory procedure. In IIontana where

the statutory procedure is not the exclusive manner of acquiring

an appropriative right, the only effect of the statute is to give

the appropriator complying thereuith the benefit of the doctrine

of "relation back." Under this doctrine an intending

appropriator is protected during the period of time reasonably

necessary for the completion of his diversion works against

others who may subsequently undertake to acquire an appropriative

right and actually complete it before the first intending

appropriator does so.

The priority of a given appropriation is as much a

property right as tie amount of water covered. An appropriator

is entitled to have the stream remain in substantially the same

condition as when he made his appropriation in so far as that is

necessary for his beneficial use to be served, and in times of

water shortage junior appropriators must yield so far as necessary

in order that the senior may have the full amount of water
---------------- --- ---- --------------------
55. Murray v. Tingley, 20 Hont. 260, 50 Pac. 723 (1897).
56. Hutchins, 'T.A., Selected Problems in the Law of Water Rights
in the West, p. 326 (1942).
28








susceptible of beneficial use under his appropriative right.

But a prior right is specific in quantity, and if one dishes

to enlarge his rilht, he must make a new appropriation which

will necessarily be junior to any rights acquired by others

since his original appropriation.57

Apparently in times of water shortage the distribution is

made i;holly in accordance rith priority, and there is no

possibility of an equitable apportionment among all users. The

appropriator is limited by no measure of reasonable use other

than that embodied in the requirement that his use remain
58
beneficial. An eminent writer on the law of water rights,

S.C. Wiel, describes a minority current of authority contending

that the exclusiveness of a prior right should be recognized

only to a certain degree, and that priorities should not be

enforced when to do so would be "unreasonable" to water users
59
- upon the saiie stream, though subsequent in time of use.

One case states that a ri-ht to water by prior occupancy is not

unrestricted, but must be exercised with reference to the

general condition of the country and' the necessities of the

people, and not so as to deprive a hole neighborhood or

community of its rse, and best an absolute monopoly in a single

individual.60 But the conclusion is that the great weight of

authority denies the idea that there can be an "unreasonable"


57. Hvtchins, op. cit. supra note 56, at 337.
58. Kjinney on Irricatic.n, p. 369.
59. Wiel, "Priorityr" in Western 1Jater Law, 18 Yale L.J. 189
(1908, 9).
60. Basey v. Gallager, 87 U.S. 670 (1875).


ii~l*PI


L


-1 -- .1




-._~1 c--~~i~ i i -


~ tW~~'N"


priority because of any policy favoring subsequent claimants, and

the prevailing sentiment is that the Courts shall have no discretion

in restricting the force of priority.6 In 1908 Wiel predicted a

weakening of the strict.rule of priority in the West as the

irrigated regions became more closely settled, and in 1936 he wrote

that "adjusting uses that are now on hand seems to be getting more

attention than additional development. In terms of law, the

moderating principles of correlative rights and reasonable use seem

to be outstripping exclusive rights by priority of appropriation
62
in general esteem.", This view is not shared by other writers

who see a tendency to move more and more toward principles of

exclusive use as the economy expands and demands for water begin

to outstrip the available supply.63

II. Beneficial Use and Preferential Uses,

What Constitutes Beneficial Use? "Beneficial use shall be the

basis, the measure and the limit of the right to the use of water."

This expression of the New Mexico law is followed almost verbatim by

several states, and the idea of "beneficial use" or "beneficial

purpose" pervades the water law of all the Western states. Water

which belongs to the public can be appropriated only for a beneficial

purpose.

Most of the statutes do not purport to give a definition

of the term "beneficial use" nor to provide a comprehensive list


61. Wiel, supra note 59, at 198.
62. Wiel, YF y Years of Water Law, 50 Harv. L. Rev. 252 (1936).
p. 252.
63. Busby, American Water Rights Law, 5 S.C.L.Q. 106, 108 (1952).
64. N. Mex. Const. Art. XVI, Sec. 3. Appendix, p. 8.


~1~-114*511~-*n~~~~CI~--~T~ Il~~-~IPs~~i-~(RI~~~II~PIE*T~~ ~-l-cn-i rr-rr-a~lnrrrxr- -~-r-~-rru rrr~ r*--; p-rl


ff







of the various types of uses which the legislature might consider

to be included in the term. But the preferential uses provisions

list a number of purposes for which water may be appropriated, as,

for example, domestic and municipal use, mining, industrial and

manufacturing uses, and uses for water power, irrigation,

recreation and the propagation of fish. What is beneficial use

is a question of fact and depends upon the circumstances of each

case,65 and the result in ary particular case will depend upon

the attitude which the jury or judge, as reasonable men, will

take toward the evidence as a whole when presented to them at the
66
trial. The cases provide examples of what is and what is not

considered to be a beneficial use. For example:

Complainant onmed several hundred acres of land which it

improved for a summer resort. Through the lands flowed a small

precipitous stream. The seepage from the flow of the stream and

the mist and spray from its falls produced a luxuriant and

i exceptionally beautiful growth of vegetation on the floor and

sides of the canyon rendering the place rare in beauty and

constituting the chief attraction of the resort. It was held that

such use of the canyon and stream constituted a beneficial use

and operated as an appropriation of the waters, but the decision

of the trial court was reversed because it nade no inquiry into

the effectiveness of the use of the water in the way adopted
67
as compared with the customary methods of irrigation.


65. Denver v. Sheriff, 105 Colo. 193, 96 P. 2d 836 (1939).
66. liel, Ihat is Beneficial Use of '.ater, 3 Cal. L. Rev. 460 (1915).
67. Empire after and Power Co. v. Cascade Tonm Co., 205 Fed. 123
(C.C.A. 8th 1913).


- 'I:PP~'








.In California, the court held that the use of an

appreciable quantity of water to flood lands for the purpose of

drowning gophers, squirrels, and other pests, was not a

reasonable beneficial use in view of the need of others for water
68
in the area. In an Oregon case, an appropriator claimed

the use of certain water for the purpose of carrying off river

debris uhich roui.d interfere with the successful operation of

claimant's power plant. The trial court was of the opinion

that the debris might be disposed of in another more economical

aTry. The court held that such use amounted to a uaste of water

where to allor it Jould deprive about 1600 acres of land of water

for irrigation. But the appropriation was permitted. during the

non-irrigating season.69

Some cases involving "waste" or "beneficial use" are

concerned with the consumption of water in its transmission

from the source to the place of use. The transmission allowance

,mnst not be e-cessive. But seepage and evenoration looses are

allowed if reasonable and economical etiods of diversion are

shown anc if such losses could not be prevented by reasona.3 e

care or precaution. How iuch water will be allowed for reasonable

transmission losses is determined by the courts from the facts

of each case. A similar situation is involved in the use of

water to afford a head by which a flow may be maintained to

enable the spread of water over an area to be irrigated. A

"reasonable" allowance will be made, but what is reasonable in

f--- ----- ---~------ e------ ---n---------~ ------ ---------
68. Tulare Irr, Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.
2d 489, 45 P. 2d 972 (1935).
69. In re 'ater Ritgts of Deschutes River, 134 Oreg. 623, 286
Pac. 563, 29h Pac. 1049 (1930).

32


, -







a particular case lies in the discretion of the jury or court after
70
a consideration of a number of factors.

Efficiency of Methods of Water Employment. Another problem arises

when advances in the efficiency of methods of employing the water

result in a lessening of the necessity for it. Is an older user

"wasting" water although he applies it efficiently under his original

methods when more efficient methods of diversion and application

have been developed? In Hough v. Porter the court stated that no

certain method of application is necessary to constitute a valid

appropriation so long as the water is applied to a beneficial use;

and this may be done either by ditches or by other methods of

diversion and application, such as the placing of dams in the streams

and sloughs, and thereby overflowing the land, or subirrigating it,

as the case may be. But this is not to say that the old methods,

whereby irrigation was had by damming the sloughs with but little

expense and work, causing large excess of water to flow over the

premises, may be continued in times when the demand for water is

greater. Such manner of use must necessarily be adopted as will

insure the greatest duty possible for the quantity available. The

wasteful methods so common with early settlers can, under the light

most favorable to their system of use, be deemed only a privilege

permitted because it could at that time be exercised without

substantial injury to anyone; and no right to such methods of

use was acquired thereby. Improved means of application together

L--------- --- ------ -------------
70. Wiel, supra note 66, at 462. Doherty v. Pratt, 34 Nov. 343,
124 Pac.-574 (1912). San Joaquin Co. v. Stevinson, 164 Cal.
221, 128 Pac. 924 (1912). State v. Twin Falls Canal Co.,
21 Idaho 1.0l, 121 Pac. 1039 (1911).

33


I


:il






with a scartcty of the sppy of water hae wde a more econorco

use necessary.1 In 195, th same court held that the fact
that the original method of irrigation was a crude one did not

prevent it t fr being a lawful appropriation of water to a

beneficial use. The system of diversion and distribution need

not be perfectly efficient; it is sufficient If it is reasonably

so.72 In Mntana, the Supreme Court stated that an irrigator

may employ any means of diversion best suited to the existing
physical conditions and all the circumstances of the case,
though be will be required to employ reasonably economical means
so as to prevent unnecessary waste. This cas would seem

to indicate that the right of an appropriator is not confined

merely to the quantity of water appropriated, but extends to a

reasonable meas employed by him to obtain the water, and a
subsequent apnropriator is not within his rights dhen as a result

of his diversion he so lowers the level of the water as to require

a prior appropriator to. install pumps so as to obtain his

quantum of water from the stream. In anwer to an allegation

that an appropriator was using excessive quantities of water

because of poor methods of diversion, the California court

said that the appropriator, as a matter of law, had a right to

divert by wsans of earthen ditches, and could not be compelled

to construct inpervious conduits in order that seepage water

might be made available to anothert but in an earlier decision


71. Hough v. Porter, 1 Oreg. 318, 98 Pac. 1083 (1909).
72. Oliva v. Skinner, 190 Oreg. 423, 226 P. 2d 507 (1951).
73. State v. Dist. Court of Sixth Jud. Dist., 108 Mont. 89,
88 P. 2d 23 (1939).
7h. Tvlare Irrig. Dit., v. Lindsay Strathmore Irrig. Dist.,
3 Ca. 2d t89, 5S P. 2d 972 (1935).
314


..

---








the same court observed that a prior appropriator whose means of

diversion became insufficient for his purposes, by reason of

their inherent defects, when the surplus is diverted above him,

must take the usual and reasonable measures to perfect such

means.5

From these cases it would appear that the question of

"beneficial use", in so far as it applies to the purpose for

which the water is used as well as such incidental matters as

diversion allowance and the efficiency of the method of diversion

and application, is a relative matter. It is not enough to

consider one appropriator in isolation and determine whether his

use of the water results in an economic benefit to him.

Other factors such as quantity of water available, the needs

of others and the uses to which they might put the water must

be considered. As one court says, what may be a reasonable

beneficial use where water is present in excess of all needs

may not be a reasonable beneficial use in an area of great

scarcity and need, and another says that the factors which

enter into the determination of beneficial use in the case of

a growing city are more flexible than those relating to the use

of water on agricultural land.7 While one is not required to

go to the expense of availing himself of the very latest

developments in equipment for diversion and application of water,

if he lags too far behind he may find himself guilty of waste.78

------------------ ---------------------------
75. Natoma Water and Min. Co. v. Hancock, 101 Cal. 42, 35 Pac. 33h
(1894). For other cases on the appropriation of water as
creating the right to continue method or means of diversion,
see 121 A.L.R. 1044.
76. Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal. 2d
489, 5 P. 2d 972 (1935).
77. Denver v. Sheriff, 105 Colo. 193, 96 P. 2d 836 (1939).
78. Hutchins, op. cit. supra note 56, at 320.

35


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r~~M ~' -Prd~O'"-''f-~-'Ptl f-ir-`-~PE-'~-~:' ii C1C1





---- --~i~g


i i .


Prefaeratal Uses. In the resort to the test of reasonableness

in determining the allowances and restrictions surrounding

"beneficial use", the courts have made available to themselves some

of the flexibility of the common law doctrine of riparian rights.

As in the concept of "reasonable use", the court or jury must

exercise its discretion and apply its own ideas of fairness in each

case.7

The rule of "first in time is first in right" is basic in

the law of wa1er appropriation in the West, but considerations

of public need and welfare have given rise to constitutional

or statutory provisions which deprive the temporal element of

its conclusiveness in some cases. Such provisions may take the

form of a general statement that applications shall not be

approved which will not be in the public interests, or they may

consist of declarations that certain types of uses are to be

preferred over others.8 A summary of the more important

provisions follows:

Arizona -- Application for municipal uses may be approved

to the exclusion of all subsequent appropriations, if the estimated

needs of the municipality so demand. As between two -or more

pending conflicting applications for the use of water where the

supply is not sufficient for all, preference shall be given

according to the.relative values of the proposed uses to the

public, which are: 1. Domestic and municipal, 2. Irrigation and


79. Wiel, supra note 66, at 474.
80. For a thorough discussion, see Hutchins, op. cit, supra note
56, at 337.


, i








stock watering, 3. Water power and mining, 4. Wildlife us8

(including fish). Commissioner shall reject applications when

the proposed use conflicts with vested rights, is a menace to
81
the safety, or against the interests and welfare of the public.

California -- Use of water for domestic purposes is highest

use of water, and the next highest is irrigation. Application

of municipality for domesti .purposes is first in right,

irrespective of whether it is first in time. The department

shall reject an application when in its judgment the proposed
82
appropriation would not best conserve the public interest.82

Colorado -- The right to divert water for beneficial uses

shall never be denied. When the waters are not sufficient for all,

those using the water for domestic purposes shall have preference

over those claiming for any other purpose, and those' using the

water for agricultural purposes shall have preference over those

using the same for marmfacturing.

Idaho When the waters are not sufficient for all those

desiring the use of same, those using it for domestic purposes

shall (subject to such limitations as may be prescribed by law)

have the preference over -those *claiming for any other purpose.

Agricultural purposes shall have preference over manufacturing.

In.any organized mining district,.mining or-milling purposes

connected with mining shall have preference over manufacturing or

agriculture. But the usage by such subsequent appropriators


81. Ariz. Code Ann. 1939, Sec. 75-102, 106. Appendix, p. 21.
82. Calif. Water Code. Sec. 106, 1460. Appendix, p. 21. Calif.
Water Code, Sec. 12$$.
S.83. Colo. Const. Art. XVI, Sec. 6, Appendix, p. 22.


37


.^-^l,.^;^1.aBB1ia04s-9w ar8l.


_i-:--.L ~-I ----LI


=- : i-7-^-. '- e-f W SH









shall be subject to such provisions of law regulating the taking
of private property for public and private use. Right to

appropriate shall never be denied, but the state ray regulate
and limit the use for power purposes
Kansas Uhen appropriations of water for different

purposes conflict they shall takes precedence in the following
order, namely: DbeMstic, mmnicipality, irrigation, industrial,
recreational and water power uses.85

Montana (No system of preferential uses.)
Nebraska -- Riigt to appropriate shall never be denied

except when demanded by the public interest. When waters
are not sufficient for all domestic purposes shall have
preference over ary other. Agriculture shall have preference over

manufacturing. No inferior right shall be acquired by a superior
86
right without just compensation therefore.
Nevada (No systat of preferential uses.)87

New lexico Engineer shall reject application if no

unappropriated water is available or if approval thereof would,
in his opinion be contrary to public interest. No mills or

other property shall obstruct the course of water for irrigation
sine irrigation shall be preferable to all other uses.
Inhabitants of unincorporated towns where population exceeds

3,000 have a prior right to so much of the water of streams as
------------------- -- -- -- -- -- -- -- -- -- -- ---- ------
86. Idaho Const. Art. XV, Sec, 3. Appendix, p. 23.
85. Kane. Oen. Stats. Ann. 1949, Sec. 82a 707b. Appendix, p. 23.
86. Neb. Const. Art. XV, Sec. 6. Appendix, p. 23.
87. eNv. Comp. Laws 1929.


38


L *1 : '...


S.-









shall be necessary for domestic and sanitary purposes and for

protection of property against damage by fire.88

North Dakota -- Engineer shall reject application if in ,

his opinion no unappropriated water is available, He may

refuse to approve an application if, in his opinion, approval

thereof would be contrary to the public interest,

Oklahoma Engineer shall reject application if in

Mis opinion no unappropriated water is available. He may refuse

to approve an application if, in his opinion, approval thereof
90
would be contrary to the public interest,

Oregon -- Engineer shall approve applications unless the

proposed use conflicts with existing rights, but if in his

judgment the proposed use may prejudicially affect the

public interest, he shall refer the application to the

reclamation commission, which after a hearing shall determine

whether the proposed use would impair or be detrimental to

the public interest with due regard for conserving the highest

use of such water for any and all purposes, including irrigation,

domestic use, municipal water supply, power development, public

recreation and the protection of connercial and game fishing

or any other beneficial use to whlibh the water may be applied,

for which such water may have a special value to the public

and also the maximia economic development of the waters involved.
--------------------------------- ----------------------------
88. N. ex Stats. 1941 Ann., Sec. 77-h104, 14-4501. Appendix, p. 24.
89. N. Dak. Rev. Code 1943, Sec. 61-O407. Appendix, p. 52.
. 90. Okla. Stats. Ann., Tit. 82, Sec. 25. Appendix, p. 57.



39


2 -.




I -. ______ ~ r


I '.-,- 74'-Vt 'w ***. I


Applications for municipal water supplies may be approved to

the exclusion of all subsequent appropriations. Vhen waters are

not sufficient for all, those using the water for domestic

purposes shall, subject to such limitations as may be prescribed by

law, have preference over those claiming such water for any other

purpose, and those using the water for agricultural purposes shall

have the preference over those using the same for manufacturing
91
purposes.1

South Dakota -- Beneficial use means the use of water for

domestic, stock-watering, irrigation, mining, milling, power, fish

culture, fire protection, and public recreational purposes. (No

preferential uses are described.) Engineer shall reject an

application if in his opinion there is no unappropriated water

available. He may refuse to approve an application if in his

opinion the approval thereof would be contrary to the public

interests.92

Texas -- Board shall reject application if there is no

unappropriated water, or if the proposed use will impair

existing rights or is detrimental to the public welfare.

Preference and priority are given to the following uses in the

order named: (1) Domestic and municipal, (2) Water to be used

in processes designed to convert materials of a lower order

of value into forms having greater usability and commercial

value to include development of electric power by means other

than hydro-electric, (3) Irrigation, (4) Mining and recovery

of minerals, (5) Hydro-electric power, (6) Navigation, (7) Recreation

------------------------------------------------
91. Oreg. Comp. Laws Ann., Sec. 116-421, 116-601. Appendix,
p. 25, 60.
92. S. Dak. Code 1939, Sec. 61-0102, 61-0126. Appendix, p. 25, 661

40


i.
























''1

i


j
5
1


I








and pleasure. All allotments hereafter made for purposes

other than domestic or municipal shall be granted subject to the

right of any city to make further appropriations for domestic and

municipal purposes without the necessity of condemnation or paying

therefore, Preference shall be given not only in the order of

preferential uses declared, but that preference shall also be given

those applications the purposes for which contemplate and will

effectuate the maximum utilization of water and are designated and

calculated to prevent the escape of waters without contribution to

a beneficial public service.93

Utah -- In times of scarcity, while priority of appropriation

shall give the better right as between those using water for the

same purpose, domestic purposes shall have preference over all

others, and agricultural purposes shall have preference over any

other purpose except domestic. Engineer shall reject an application

to appropriate water which will interfere with its more beneficial

use or will prove detrimental to the public welfare.9

Washington -- Any person has the right to condemn an

inferior use of water for a superior use. In condemnation

proceedings, the court shall determine what use shall be for

the greatest public benefit. Supervisor shall issue permit

if water is available for appropriation and if the appropriation

will not impair existing rights or be detrimental to the public

welfare.95

A ei p. 2 27---,--68---------------- -------------
93. Tex. Vernon's Civ. Stats., Art. 7471, 7472, 7472c, 7506.
Appendix, p. 26, 27, 68*
94. Utah Code Ann. 1953, Sec. 73-3-21, 73-3-8. Appendix, p. 27, i74.
95. Wash. Rev. Code, Sec. 90.04.030, 90.20.060. Appendix, p. 28,80.

41








Wyoming -- No appropriation shall be denied except when such

denial is demanded by the public interests. Engineer shall approve

application when the proposed use does not impair the value of

existing right or threaten to prove detrimental to the public

interests. Preferred uses shall include rights for domestic and

transportation purposes; existing rights not preferred may be

condemned to supply water for such preferred uses in accordance with

the provisions of law relating to condemnation of property for

public and semi-public purposes. Such domestic and transportation

purposes shall include the following: First Water for drinking

purposes for both man and beast; Second Water for municipal

purposes; Third Water for the use of steam engines and for

general railway use; Fourth Iater for culinary, laundry, bathing,

refrigerating (including manufacture of ice), anc. for steam and

hot water heating plants. The use of water for irrigation shall

be superior and preferred to any use where turbine or impulse

L water wheels are installed for power purposes.

The arrangement of a list of preferential uses should

depend, of course, upon the economic, agronomic, and geographic

conditions within the particular state, and a list well calculated

to promote the highest public interest in one state may

possibly not fit the conditions of another. But the states

are quite uniform in according first preference to those uses

which are for domestic and municipal purposes. "Domestic use"

as defined by statute or decision includes the use of water for


96. Wyo. Const. Art. VIII, Sec. 3; Wyo. Comp. Stats. 1945
Ann., Sec. 71-240, 71-402. Appendix, p. 28, 83.


42




IN I-W I M. I..*.. -- "Wom.



household purposes and also its use for the watering of poultry

and farm animals.7 It may include also the use of water for

the irrigation of lpms and gardens not to exceed a specified

acreage98

In one case, it was held that a domestic use as at common law

involves a taking of only small quantities of water for use for

cooking, drinking, and stock watering, and that a municipal use for

sprinkling streets, operating a power plant and a sewer system were

not entitled to a preference under Nebraska law which gave a

preference to domestic uses with no reference to municipal uses.99

Many of the states specifically include municipal purposes in

their provisions for preferential uses. California permits a

municipality, with a view toward future needs, to appropriate water

for domestic purposes in excess of existing needs. Permits are

issued for the temporary appropriation of the excess of the

permitted appropriation over and above the quantity being applied to

beneficial use by the municipality, but as its needs increase the

municipality may use this additional water upon making compensation

for the facilities for the taking, conveying and storing the water

rendered valueless to the temporary appropriations.00 In Texas

all appropriations for purposes other than domestic or municipal

are granted subject to the right of arn city to make further

appropriations for domestic and municipal purposes without the

necessity of paying therefor101


97. See, for example, Kans. Gen. Stats. Ann., 1949, Sec. 82a701.
98. Aris. Code Ann. 1939, Sec. 75-106. Appendix, p. 21.
99. Crawford Co. v. Hathaway, 67 Nebr. 325, 93 N.U. 781 (1903).
100. Calif. Water Code, Secs. 1460-1464.
101. Tex. Vernon's Civ. Stats., Art. 7472. Appendix, p. 26.


L3










In most of the Western States, the administrator is given

the authority to reject an application to appropriate water if,

in his opinion, approval thereof would be contrary to the public

interest. This delegation of power to the administrator permits

him, in effect, to "prefer" proposed uses in the public interest

to those not in the public interest. In Oklahoma and North Dakota,

for exaraie, the administrator bases his approval of an application

upon his opinion whether unapnropriated water is available and

whether the proposed use would be in the public interest; he is

not guided by a list of preferential uses, in addition, as in

some of the states. Montana, having no centralized administrative

system for the acquisition of appropriative rights, has no system

of preferential uses. In Washington inferior uses may be condemned

for a superior use, but it is left to the court to determine the

relative value of the uses.

Several problems arise with respect to the meaning and

application of the preferential use provisions. Are such

preferences to be given effect only when the administrator has

before him pending applications involving proposed uses for different

purposes when there is not sufficient water for all, or do they

apply as between existing rights when in times of scarcity there

is not 3norgh water to satisfy the needs of all? Do they permit

a proposed use of high preference to replace an existing use of

low preference if there are no unappropriated waters in the

source of supply? Mist compensation be paid when a preferential

right is exercised, and, if so, how is it determined? The


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answers to these questions vary from state to state, and in some

instances no definite answer is provided. The Arizona, California
102
and Texas statutes refer most clearly to the situation in which

two or more pending applications are before the administrator, but

how far the preferential use provisions supersede the rule of

first in time, first in right, in the acquisition of appropriative

rights in other states may be somewhat doubtful. Even if these

rules are not laid down expressly to guide the administrator in

rejecting or approving an application, they may serve as legislative

determinations of the "most beneficial uses" so as to justify the

administrator's approving a proposed use of high preference over

another proposed appropriation, filed earlier but of a lower

preference. This the administrator may do according to one case,

if he has general authority to reject applications which would

"interfere with the more beneficial use" of the water or "prove

detrimental to the public welfare."103 This case held specifically

that Utah's "doctrine of priorities" applies only to vested rights

and not to the right to appropriate water in the future. The Utah

provision is concerned with preferential uses "in times of scarcity"

and does not seem to apply to a permanent condemnation of an

inferior by a preferred use. The statute makes no reference to the

matter of compensation.

The Colorado Constitution gives a preferential right to

domestic and agricultural purposes, but makes no provision for

compensation for the taking of waters used for an inferior use.

---- ---------------------- --- ------
102. Ariz. Code Ann. 1939, Sec. 75-102. Appendix, p. 21. Tex.
Vernon's Civ. Stats., Art. 7472c. Appendix, p. 27.
Calif. Water Code, Sec. 106. Appendix, p. 21,
103. Tanner v. Bacon, 103 Utah 491, 136 P. 2d 957 (1943).


~iELYI








It was held, however, that rights to the use of water for a

beneficial purpose are property and protected by the constitutional

provision that private property shall not be taken without just

compensation, and that the statute declaring that those using water

for domestic purposes shall have preference over those using it

for any other purpose, does not entitle one desiring to use

water for domestic purposes to take it, without compensation,

from another who has previously appropriated it for some other

purpose.10 Idaho law provides that the exercise of the preferential

right shall be subject to the provisions regulating the taking of

private property for public and private use. Nebraska, Washington,

and Wyoming, also specifically provide for the payment of

compensation when an inferior right is acquired by a superior.

In Texas, on the other hand, the granting of appropriative

rights for hydro-electric power, irrigation, manufacturing, mining,

navigation, or any purpose other than domestic or municipal, are,

from the beginning, subject to the condition that municipalities

may later appropriate such water if needed without the necessity

of condemnation or payment, Since this provision applies to

future appropriations, each appropriator has notice in advance of

the conditions under which his right is granted, and there can be

no argument based on the deprivation of his property when a

municipality, for necessary uses, appropriates the water, even
105
without compensation.

In states where the matter of condemnation, and payment

--- ------------------------ -- --- -- --- -- -- --- -- --- -- --
104. Town of Sterling v. Pawnee Ditch Ext. Co., 42 Colo. 421, 94
Pac. 339 (1908), Point reaffirmed in Black v. Taylor,
Colo. 264 P. 2d 502 (1953).
105. Tex. Vernon's Civ, Stats., Art, 7472. Appendix, p. 26.




i7



fdr the acquisition of an inferior right is not expressly provided

for, it is at least arguable that everyone who appropriates

water takes it with notice of and subject to the preferential

use provisions so that a superior use may acquire the water

right of an inferior use without compensation for the water

right itself. It might be argued that this would involve no

taking of property because of the limited nature of what was

originally acquired by the appropriator for an inferior use. But

an examination of "what was originally acquired" is in effect only

a consideration of the problem in another form. In any event,

ambiguities may be avoided by a well drafted statute which spells

out the situations to which the preferential use provisions may be

applied and the manner in which a superior use hall replace an

Inferior one.


III. The Acquisition of Appropriative 'Rights.

Diversion and Use. The original method by which appropriative

rights were acquired was by actual diversion and use of the water.

This was the custom of the miners, and it remains today an important

part of the water law in a few states where it has not been

completely replaced by statutory procedures. An Idaho case

states that the doctrine prevailed prior to statehood, and in the

earliest territorial history that the first in time is the first

in right in the diversion and use of the public waters. "It has

never been the intention, so far as we are advised, of the

Legislature to cut off the right an appropriator and user of

water may acquire by the actual diversion of the water and its

application to a beneficial use. This constitutes actual notice








to every intending appropriator of the water of such a stream. It

is like a man being actually in possession of realty."I6

In those states where the riparian doctrine has never been

recognized or has received only limited recognition the original

method for acquiring appropriative rights must always be considered

as a background for the interpretation of the statutory procedures.

The statutory procedures may provide the exclusive method for

appropriations, or they may exist in addition to the original

method. When there are two methods for acquiring rights to

appropriate water, compliance with the statutory procedure usually

affords the intending appropriator the advantages of reliable

evidence of his rights as well as the benefit of having his

appropriation date from the time of the receipt of his application

under the doctrine of "relation back."

In Colorado, Idaho, and Montana, waters may be appropriated

by actual diversion and use without complying with the

. statutory procedures. In Colorado and Idaho this result was
reached partly as a consequence of the constitutional prohibitions
against denial of the right to divert and appropriate public

waters.107 A Colorado case held that compliance with the
statutory provisions concerning the filing of maps or statementsl8

do not constitute appropriations nor does the lack thereof

invalidate them. But the map and statement so filed shall be
prima facie evidence of the intent to appropriate.9 It has
110
been held that the effect of the Idaho statutory provision

is to deny the power of an appropriator who fails to file the


----------------------- --


106.
107.
108.
109.
110.


Nielson v. Parker, 19 Idaho 727, 115 Pac. 488 (1911).
Colo. Const. Art. XVI, Sec. .5 Appendix, p, 3.
Colo. Stats. Ann. 1935, Chap. 90, Sec. 27. Appendix, p. 34.
De Haas v. Benesch, 116 Colo. 344, 181 P. 2d L53 (1947).
Idaho Code, Sec. 42-202. Appendix, p. 35.




ia1--'"^-* i* ^y*'y'^ ^ ^ ^i'*j^ ^^^ **.srll .,* ,,i...; .-- .-- .-.--. .-- I



notice required, to claim as of the date of the beginning of

his works, the effect of such failure being to limit the right to

the time when the water is actually applied and used.1

The Montana Supreme Court has held that the only effect

of the statutory provisions requiring a notice of location to

be posted at the point of diversion and a notice of appropriation

to be filed with the county recorder was to givo the appropriator

who complied with such provisions the benefit of the doctrine

of "relation back", and priority according to the date of posting

notice. A water right may be acquired, without complying with

the statute, which is good against all subsequent appropriators,

by the actual diversion and appropriation of the water of a

stream for a beneficial use.112 This point was reaffirmed by

a case decided as recently as 1953.113 Montana law, however,

makes a distinction between waters from adjudicated and those

from unadjudicated streams. With respect to the former, the

intending appropriator must comply with the statute requiring him

to have an engineering survey of his diversion works and to file

petition with the clerk of court.11 It has been held that the

Legislature intended by this legislation that an appropriation of

the waters of a stream concerning which there has been an

adjudication of rights should not be made thereafter without

a substantial compliance with the requirements of the statute,

and the method prescribed is exclusive.115

-------------------------------------------------
111, Nielson v. Parker, 19 Idaho 727, 115 Pac. 488 (1911).
112. Murray v. Tingley, 20 Mont. 260, 50 Pac. 723 (1897).
113. Mid Kiff v. Kincheloe, Mont. 263 P. 2d 976 (1953).
114. Mont. Rev. Code 1947, Sec. 89-g29. Appendix, p. 43.
115. Anaconda Nat. Bank v. Johnson, 75 Mont. 401, 2L4 Pac. 141 (1926).


li~








Prescription. Whether appropriative rights may be acquired

by adverse use for the prescriptive period in addition to other
methods is an open question in several states. The problem has

been recognized by the courts in at least five states, including

Nevada, New Mexico, Oregon, Utah, and Wyoming. In New Mexico,

Oregon, and Wyoming the question remains apparently unanswered.116

A Nevada case decided in 1949 stated that no right could

be gained against or from the government by prescription, but

that a water right could be acquired by adverse use for a period

of five years against an owner of a water right which vested

prior to the enactment of statutory procedures though the period

of adverse use was initiated subsequently thereto,17 As a

result of this case the legislature passed an amendment to provide

that no prescriptive right to the use of any public water whether

appropriated or unappropriated could be acquired by adverse use,

and that any such right must be initiated by making application to

the state engineer for a permit.l18

To clarify its law, the Utah legislature passed an

amendment in 1939 to provide that "no appropriation of water may

be made and no rights to the use thereof initiated and no notice

of intent to appropriate shall be recognized except application

for such appropriation first be made to the state engineer...

No right to the use of water either appropriated or unappropriated
119
shall be acquired by adverse use or adverse possession.119


116. Pioneer Irr. Ditch Co. v, Blashek, 41 N. Mex. 99, 64 P. 2d
388 (1937). Tudor v. Jaca, 178 Oreg. 126, 164 P. 2d 680, 165
P. 2d 770 (1945). Campbell v. Wyoming Dev. Co., 55 Wyo. 347,
100 P. 2d 124 (1940).
117. Application of Filippine, 66 Nev. 17, 202 P. 2d 535 (1949).
118. Nev, Sess. Laws 1949, ch. 83.
119. Utah Code Ann. 1953, Sec. 73-3-1. Appendix, p. 69.

50
Sto --4




-a^ -,S --. ( ,-... . .. *.._... .. ... .. .




Hutchins in The Law oi Water Rights in the West states

that the question whether the legislature has prohibited the

acquisition of a Water right by prescription would appear to

depend upon several factors: "(1) Whether the procedure to

appropriate water through the State engineer is the exclusive

method of acquiring a water right; (2) whether forfeiture results

from illegal use of the water on the part of others, that is,

adverse use; (3) whether the statutory period of forfeiture is less

than the prescriptive period in the statute of limitations;

(4) whether the water right can be detached from the land to

which it is appurtenant and whether the statutory procedure is

the only way of changing the place of use."120

Statutory Procedure. In most of the Western states, statutes

prescribe the exclusive procedure for the appropriation of waters

and the acquisition of appropriative rights. These procedures are

an integral part of the administrative process which every state

except Montana utilizes in the distribution of its waters. The

traditional methods of appropriation by mere diversion and use

were workable in the early days when society was simple and the

claimants numbered relatively few. But as time passed, witnesses

died and memories became clouded, rendering the determination

of the dates of diversion and priority of old rights progressively

more difficult. As the population grew, the number of users

and types of uses increased. Litigation usually settled

conflicts between only two parties, but the rights of many were

involved. "There was the further impediment that the record

120. Hutchins, op------------ ci. supra note -------, at -----01.
120. Hutchins, op. cit. supra note 56, at 401.


,-








of judicial determinations, limited as it is to the parties and

issues of separate cases, gave the engineers no collective view

of any source as a whole upon gathering the decisions together."121

"It was inevitable that the administrative process was to

be used to provide for acquisition of rights, distribution of

water, and adjudication of rights."122

The statutory procedures follow similar patterns with only

few variations from state to state. The following statute of Texas

is a typical introductory provision. "Every person, association of

persons, public or private corporation, political subdivision of

the state, agency of the state or of the United States who shall,

after this act shall take effect, desire to acquire the right to

appropriate, for the purposes stated in this chapter, unappropriated

water of the State, shall before commencing the construction,

enlargement or extension of any dam, lake, reservoir or other

storage work, or any ditch, canal, intake, headgate, pumping plant

or other distributing works, or performing any work in connection

with the storage, taking or diversion of water, make an application

in writing to the Board for a permit to make such appropriation,

storage or diversion."123

At this point the law of some states is clarified by a

'statement of legislative intention as to whether the statutory

method is to be the exclusive method for acquiring appropriative

rights.124 The diversion and use of water without compliance

---- -------------------------------- ----------------------------------
121. Wiel, Fifty Years on Water Law, 50 Harv. L. Rev. 297 (1936).
122. Coates, Present and Proposed Legal Control of Water Resources
in Wisconsin, 1953 Wis. L. Rev. 269.
123. Tex. Vernon's Civ. Stats., Tit. 128, Art. 7492. Appendix, p.67.
124. For example, Utah Code Ann. 1953, Sec. 73-3-1. Appendix, p. 69.


W,---




- .'*" ,** -..... -': *i .L i .-vi-*-.. .. .. .... .. *--**-



with the law may be made an offense punishable as a misdemeanor.2

In Kansas, persons using water for domestic uses are exempted

from the statutory requirements for permits to appropriate water.126

Several states give their administrators authority to

require such information in the application for permit and to make

such reasonable rules and regulations as they may deem necessary

for its proper processing. In addition the contents of the

application may be spelled out by statute. The usual application

must furnish the following information: name and address of

applicant; proposed source of water supply; nature and amount of

proposed use; the location and description of the proposed

headworks, ditch, canal or other works; the proposed place of

diversion; the place of proposed use; the time within which it is

proposed to begin construction; the time required for completion

of construction, the time for the complete application of the

water to the proposed use; a description of the land if the water

is to be used for irrigation; and the population and expected

growth of the city if for municipal purposes. Some states

require that the application be accompanied by a map or plat

showing the proposed works for the diversion and application
127
of the water to a beneficial use.

When he receives the application, the administrator indorses

upon it the date of its receipt and keeps a record of it. If

the application is defective, he shall indorse upon it the date

and reasons for the return and keep a record thereof. The

125. For example, Wyo. Comp. Stats. 1945, Sec. 71-238. Appendix p. 82.
------ ---------------------------------------------

126. Kans. Gen. Stats. 199, Sec. 82a-705. Appendix, p. 0O.
127. See Idaho Code, Sec. 42-202. Appendix, p. 35.


WE-








application does not lose its priority of filing on account

of such defects if it is corrected, completed and refiled within

a specified period, usually sixty days, from its return to the

applicant. Before the application can be approved and permit

granted, many states require publication and notice of the

essential elements of the proposed appropriation followed by

hearings for the benefit of interested parties. When the

application has been filed in compliance with law, notice

shall be published by the applicant, or in some states by

the administrator at the applicant's expense, in a newspaper

having general circulation in the area of the water source from

which the appropriation is to be made. Any person interested

may, within a specified period after the completion of the

publication of such notice, file a protest against the granting

of the application, stating his reasons therefore, which shall be

duly considered by the administrator.128

Applications made in proper form and contemplating the

application of water to a beneficial use shall be approved, and

a permit granted, but they shall be rejected if there is no

unappropriated water available in the proposed source of supply,

or if the proposed use would interfere with vested rights or be

detrimental to the public interests and welfare.

Problems with respect to the prohibition against the

delegation of legislative or judicial powers as contained in the

state constitution may arise under these provisions. A Texas

-------------------------------------------------------------------
128. See Utah Code Ann. 1953, Sec. 73-3-6,7. Appendix, p. 73.








case held that the statutory provisions relative to the issuance

of permits to appropriate did not confer judicial duties to the

board of water engineers. "Permit" was said to be synonymous with

leave or license, and to involve no more than that a party has

the permission of the state to become an appropriator of water

on the statutory conditions. If the board refused to grant a

permit, io appeal is provided for in the statute, but the remedy

for an improper refusal would be the same as in other instances

where administrative officers fail to perform their ministerial

duties. The determination of whether there is unappropriated

water in a source of supply is a matter of mere addition and

subtraction, and is clearly administrative.129

In a later decision, the court said that an earlier case

apparently holding to the contrary was decided before the 1917

Constitutional amendment concerning the conservation and

development of the natural resources of the state,0 and that all

laws passed subsequently to the adoption of the amendment must

be construed in the light of it and of its objectives. In

answer to the contention that the statutes involved an unconstitutional

delegation of legislative powers the court said that it did

not construe the language of the statutes as delegating to the

Beard the power to determine the public policy of the state in

respect to the appropriation of its waters. "That public policy is

expressed in the related constitutional and statutory enactments.

What is delegated to the Board is to determine from the factual

129. Motl. v. Boyd, 116 Tae, 82, 286 S.W. 458 (1926),
130. Tex. Const. Art. XVI, Sec. 59a. Appendix, p. 17.








situation presented in each particular case, whether granting the

permit would be 'detrimental to the public welfare' as declared

in those enactments. The criteria are the reasonably appropriate

measure of fitness, aptitude or relation the use or place of

use applied for bears to the public policy....declared in the

objectives of these enactments, the prescribed uses and priorities

in uses, the conservation of the waters and their application and

use in the greatest serviceable manner. The criteria are as

definite as the subject in its varied applications will reasonably

admit, and therefore clearly meet the constitutional test involved."131

A statute which leaves a broad area for administrative discretion

without prescribing sufficient standards to guide administrative

action may be invalid as contravening the state constitutional

provisions for separation of the legislative, executive, and

judicial branches of the government.

If the application is approved, the administrator issues

a permit which entitles the applicant to proceed with the

construction of the proposed diversion works and to take all the

steps required to apply the water to the approved and proposed

beneficial use. The applicant is given a reasonable period of

time within which to complete the construction, and some statutes

permit the administrator to grant an extension of time for good

cause shown.

Upon completion the applicant submits proof that he has

perfected his appropriation in accordance with the permit, or

he notifies the administrator who will examine the diversion
-------------------- ------------------------------------------
131. Clark v. Briscoe Irr. Co., Tex. Civ. App., 200 S.W. 2d
674 (1947).

56








works, and, if it is determined that the appropriation diversion

works have been completed and the appropriation right perfected,

in conformity with the approved application and plans, the

administrator shall issue a water right license or certificate.

This certificate is recorded in the administrator's office and

usually also in the county where the distributing system is

located. Under the doctrine of relation, the effective date

of a water right acquired under the statutory procedure is the

date of the filing of the original application with the

administrator.

Some statutes provide that in any case where a decision of

the administrator is involved any person aggrieved by such

decision may, within a specified period, appeal to the courts
132
for review.132 This would appear to apply to review of the

administrator's action in refusing a certificate or license

upon examination and inspection of the diversion works as well

as to his action upon the original application. It would

include third persons whose rights are affected by the decision

of the administrator as well as the applicant himself. Some

statutes providing for appeal refer only to the applicant. But

regardless of protest and appeal by third parties, it would seem

that a permit, if granted could attach only to that supply

of water existing above the requirements of holders of vested

rights. Unless complete and detailed information regarding

water supply is available, it may not be clear how much, if

any, unappropriated water is available. Only in Oklahoma is it


132. See Utah Code Ann. 1953, Sec. 73-3--i. Appendix, p. 75.








necessary that there be a hydrographic purvey and court

adjudication of existing water rights before the administrator
133
can grant a valid permit to appropriate water. The
administrator may make the choice of granting the application

and allowing the intending appropriator to take the risk that

no water supply be later found to be available rather than

denying the application with the possibility that a beneficial

use will thereby be prevented.13 Concerning the nature of permits

issued by the State engineer of Wyoming, the Supreme Court of

the United States said: "In fact and in law they are not

adjudications, but mere licenses to appropriate, if the requisite

amount of water be there... In late years the permits relating to

these streams have contained a.provision saying: 'The records

of the State. Engineer's .office show the waters of (the particular

stream) to be largely appropriated. The appropriators under the

permit is hereby notified of this fAct, and the issuance of this
IL
permit grants only the right to divert and use the surplus or

waste water of the stream and onfers :o rights which will inter-

fere with or impair the use of ,water by prior appropriators'."135

New Mexico law provides specifically that the proceedings

uponri appeal shall be de hoVo, except: that evidence taken in

hearing before the state engineer may be considered as original

evidence, subject to legal objection the same as if said evidence

was originally offered in the court arnd the court shall allow
------------------------------
133. Gay v. Hicks, '33 Okla. 675, 124 Pac. 1077 (1912).
13k4 Hutchins, op. oiti osupranotee 56, at 348.
135. Wyoming v. Colorado, 259 U.S. 419 (1922), Quoted in Hutchins,
Sopp' cit. upra note 56, at 348. See also Little Cottonwood
Water Co. v Sandy City, _Utah_, 258 2d O (1953.

58


*:__________








all amendments which may be necessary in furtherance of justice,

and may submit any question of fact arising therein to a jury,
136
or to one or more referees at its discretion, California

provides that the court shall review all records on file with

the department which pertain to the ruling, order, decision, or

other official act, and a transcript, if any, of evidence taken.137

In Oregon the appeal is governed by the practice in suits in

equity,138 and Washington affords prima facie correctness to the

order appealed from.139 The statutes generally provide for the

taking of any additional relevant and competent evidence as may

be adduced by the parties.


IV. Easements and Rights-of-Way

Under the doctrine of prior appropriation, the person who

first appropriates water from a watercourse by means of a ditch,

flume, pipe, or the like, and applies it to some beneficial use,

acquires a right to it; and it is generally held that it makes
l1O
no difference whether the appropriator is a riparian owner.0

Where public water is available and a non-riparian owner'desires

to appropriate it for use on his land, it-will be necessary that

the diversion works and conduit be upon the land of another or

others. Consequently, to avoid trespass, the appropriator must

acquire an easement or right of way over the' land between his

own and -the.source of supply, for the laying of pipes or
----------- -----------------------------------------
136. N. Mex. Stats. 1941, Ann., Sec. 77-601.
137. Cal. Water Code, Secs. 1360-1363.
138. Oreg. Ccmp. Laws Ann., Sec. 114-21.
139. Wash. Rev. Code, Sec. 90.0.060.
140. Tiffany, Real Property (3d Ed.), Sec. 738.








construction of ditches. "An appropriation cannot be initiated

unlawfully by a trespass upon private land, and no rights can

be obtained thereby against the landowner whose land is trespassed

upon, in any jurisdiction."141 It has been stated that "a water

right initiated by trespass is void; that is to say, one who diverts

water and puts it to a beneficial use by aid of a trespass, does not,

pursuant to such trespass, acquire a water right. Any claim thus

initiated is void.1142 But as pointed out by Hutchins, it appears

that most of the cases laying down this rule hold only that the

attempted appropriation was void as against the owner of the land

upon which the trespass was committed, the term "void" actually

meaning "voidable" since the owner of the land has the right to
ili3
grant an easement to the intending appropriator.143 Moreover, it
is not "trespass per se" to make application for and receive a

permit to appropriate waters, where the point of diversion is upon

the land of another, without first acquiring consent or a grant of
such right since the trespass, in any event, must be physical, not

merely "mental."1

Statutory Provisions. For the benefit of the non-riparian owner

who desires to appropriate water for use on his land, most of the

Western states have enacted statutes providing for the condemnation

of rights-of-way for canals, ditches, pipelines and other works

necessary for the storage or conveyance of water. Where the parties

are unable to agree upon a reasonable compensation for the granting
--- ----------------------------------------------------------- w--------
141. Wiel, S.C., Water Rights in the Western States, 3d ed, vol. 1,
Sec. 221, p. 24L4.
142. Bassett.v. Swenson, $1 Idaho 256, 5 P. 2d 722 (1931).
143. Hutchia, op. cit. supra note 56, at 305. Scherck v. Nichols
55 wyo. 6, 95hP. 2d 74 (1939).
144. Idaho Power Co. v. City of Buhl, 62 Idaho 351, 111 P. 2d
1088 (1941).








of such rights-of-way, the appropriator may exercise the right of

eminent domain, and in most states following the doctrine of prior

appropriation there are statutes which purport to give this right
1L5
even to private individuals. By way of example, the Utah

provision is as follows: "Any person shall have a right-of-way

across and upon public, private and corporate lands, or other rights-

of-way, for the construction, maintenance, repair and use of all

necessary reservoirs, dams, water gates, canals, ditches, flumes,

tunnels, pipe lines and areas for setting up pumps and pumping

machinery or other means of securing, storing, replacing and

conveying water for domestic, culinary, industrial and irrigation

purposes or for any necessary public use, or for drainage, upon

payment of just compensation therefore, but such right-of-way shall in

all cases be exercised in a manner not unnecessarily to Impair the

practical use of any other right-of-way, highway or public or private

road, or to injure the public or private property."'146 In Texas any

person has the power of eminent domain for the acquisition of such

rights-of-way, but he must first make application to the Board of

Water Engineers which shall make investigation and, if it deems

advisable, institute condemnation proceedings in the name of the
1U7
State for the use and benefit of the applicant.

------------------------ ----------------------------------------------------
145. See Ariz. Code Ann. 1939, Sec. 75-1O0; Colo. Stats. Ann. 1935,
Chap. 90, Sec. 6,8; Idaho Code, Sec. 42-1106; Mont. Rev. Code,
See. 89-820; Nebr. Rev. Stats. 1943, Sec. 46-2L6; N. Mex.
Stats. Ann. 1941, Sec. 77-103; Nev. Comp. Laws 1929, Sec. 7895;
N. Dak. Rev. Code 1943, Sec. 61-0104; Okla. Stats. Ann., tit.
82, Sec. 2; S. Dak. Code 1939, Sec. 61.0103) Tex. Vernon's
Civ. Stats., Art. 7583; Utah Code Ann. 1953, Sec. 73-1-6;
Wash. Rev. Code, Sec. 90.04.030.
146. Utah Code Ann. 1953, Sec. 73-1-6; Validity under U.S. Const.,
upheld in a dictum appearing in Himonas v. ienver & R.G.W.R.
Co., 179 F. 2d 171 (C.C.A. 10th, 1949).
147. Tex. Vernon's Civ. Stats., Art, 7583.


~`~~ I~IA~ia~Uru, ~;rs~rrsu








Constitutional Problems. The validity of state statutes

permitting the condemnation of a right-of-way by a private individual

for use of water on his land is often doubtful, and several have been

held unconstitutional. The question of validity arises under the

due process of law clause of the federal constitution, and under

state constitutional prohibitions against taking private property

for public use without compensation which by implication) at least,

forbid any taking of such property for private use.

In a United States Supreme Court case it was contended

that no individual has the right to condemn land for the purpose

of conveying water across his neighbor's land to irrigate his own

regardless of a state statute purporting to grant such a right.

The court rejected this contention, saying: "In some states,

probably in most of them, the proposition contended for would

be sound. But whether a statute of a state permitting condemnation

by an individual for the purpose of obtaining water for his

land or for mining should be held to be a condemnation for a

public use, and, therefore, a valid enactment, may depend upon a

number of considerations relating to the situation of the state

and its possibilities for land cultivation, or the successful

prosecution of its mining or other industries. Where the use is

asserted to be public and the right of the individual to condemn

land for the purpose of exercising such use is founded upon

or is the result of some peculiar condition of the soil or

climate, or other peculiarity of the state, where the right of

condemnation is asserted under a state statute, we are always,
---------- --------- ------- -------------------------
148. Onstott v. Airdale Ranch & Cattle Co., 129 Neb. h5, 260 N.W.
556 (1935); Smith v. Cameron, 106 Ore. 1, 210 Pac. 716 (1922).
62
-I








where it can fairly be done, strongly inclined to hold with the

state courts, when they uphold a state statute providing for

such condemnation."149

Under the state constitutions, most courts have taken a

liberal view of the term "public use" as applied to the irrigation

of lands, and hold it to be synonymous with public benefit,
O50
utility, or advantage, while other courts have taken the position

that "public use" as employed in their state constitution means use

by the public.15 The cases would seem to indicate that

considerations of climate and geography, and the extent to which the

power of eminent domain in private individuals is necessary to the

economic development of the state's resources are important factors

which influence the court in its interpretation of the term "public

use." While the presumption is that a use is public if the

legislature has declared it to be so, nevertheless the question

whether the constitution has been violated is ultimately for the

courts.

The danger of possible abuse of the sovereign power of eminent

domain when held by an individual together with the constitutional

questions under the term "public use" may induce a state legislature

considering this topic to leave the individual non-riparian owner to

his own ability at private negotiations to secure needed rights-of-

way to public waters.152
I ----------------------------- ---------------------------
149. Clark v. Nash, 198 U.S. 361 (1905).
150. Young v. Dugger, 23 N.M. 613, 170 Pac, 61 (1918). Salt Lake City
v. East Jordan Irr. Co., 40 Utah 126, 121 Pac. 692 (1911).
151. Smith v. Cameron, 106 Ore. 1, 210 Pac. 716 (1922).
Vetter v. Broadhurst, 100 Neb. 356, 160 N.W. 109 (1916).
152. The constitutional problems are discussed in 9 A.L.R. 583 and
27 A.L.R. 510. See Loughbridge v. Harris, 42 Ga. 500 (1871)
on the question of the validity of a delegation of the power
of eminent domain to an individual.

63








V. Miscellaneous Provisions; Changes in Points of Diversion, Place
and Nature of Use, Transfer and Assignment.

Where water acquired under an appropriation is to be

used with respect to a particular place as, for example, the

irrigation of a tract of land, the states using the permit

system require that such place be specified by the applicant.

The general rule is that one may make a valid appropriation in

connection with certain land though he not be the owner provided

at least he is in rightful possession. In the case of irrigation

districts or other organizational appropriators, rights may be

acquired regardless of whether such organizations themselves own

the land to be served,153 But the law of Arizona, being an exception

to the general rule, requires that an appropriator for irrigation

either own such land or possess it with a present intent and

apparent ability to acquire the ownership.154

In most of the Western states statutes permit the appropriator

to change the point of diversion or the place of use of the water

to which he is entitled without losing the priority of his claim.1



153. Hutchins, op. cit. supra note 56, at 311.
154. Tattersfield v. Putnam, 45 Ariz. 156, 41 P. 2d 228 (1935).
155. Ariz. Code Ann. 1939, Sec. 75-135; Calif. Water Code,
Sec. 1700-1706; Idaho Code, Sec. 42-108, 42-222; Mont. Rev.
Codes, 1947, Sec. 89-803; Neb. Rev. Stats. 1943, Sec. 46-250;
Nev. Comp. Laws 1929, Sec. 7893, 7944; N. Mex. Stats. 1941,
Ann. Sec. 77-522, 77-523; N. Dak. Rev. Code 1943, Sec. 61-1404,
61-1OS; Okla. Stats. Ann., Tit. 82, Secs. 1, 22, 34, 35;
Ore, Comp. Laws Ann. Sec. 116-6 06; S. Dak. Code 1939,
Secs. 61.0123, 61.0111, 61.0142; Tex. Vernon's Civ. Stats.
Ann, Art. 7495; Utah Code Ann. 1953, Sec. 73-3-3; Wash. Rev.
Code, Sec. 90.28.090; Wyo. Comp. Stats. 1945, Sec. 71-401,
71-509, 71-613.








In many states the appropriator may change also the purpose for

which he uses the water. But any such changes cannot be made to

the detriment of existing rights. Both senior and junior

appropriators are entitled to have the stream remain in

substantially the same condition as when they acquired their

appropriations. Only in Wyoming is it provided that water rights

for the direct use of. the natural unstored flow of any stream cannot

be detached from the land, place or purpose for which they are

acquired except that an inte~ir use may be condemned by a

preferred.156 But the law relating to stored water is different.157

The right to change the point of diversion, place of use

or character of use is generally subject to the approval of the

administrator. The procedure in the administrator's office and

the rights and duties of the applicants with respect to

applications for changes in point of diversion or place or

purpose of use may be the same as that provided in the case of

original applications to appropriate water.158

In several states9 statutes provide substantially as

follows: "All water used in this state for irrigation purposes

shall remain appurtenant to the land upon which it is used; but

if for any reason it should at any time become impracticable to

use.all or any part of such water beneficially or economically

for the irrigation of any land to which the right of its use is

appurtenant, all or any part of such right may be severed from such
---------------- -------------------------------------
156. Wyo. Comp. Stats. 1945, Sec. 71-401.
157. Wyo. Comp. Stats. 1945, Sec. 71-613.
158. See Utah Code Ann. 1953, Sec. 73-3-3.
159. Arizona, Nevada, North Dakota, Oklahoma, South Dakota.

65
L"' ;' '








land and simultaneously transferred and become appurtenant to

other land without losing priority of right, if such change

can be made without detriment to existing rights, upon the approval

of an application to the state engineer." Other states permitting

changes in place of use are apparently more liberal and do not

require that the original use become impracticable for beneficial

or economical irrigation160

As a general rule water rights are considered as real

property and may be conveyed or transferred as other real

property.1 Water being public property, however, the state

may grant appropriative rights on such conditions as are

deemed necessary in the public interest, and the "appurtenancy"

statutes discussed above, particularly in cases involving the

use of water for irrigation on particular tracts of land, may

constitute a restriction on the alienability of such water

rights apart from the land itself. Even though appurtenant to

certain land water rights may, in the absence of statutory
162
restrictions, be separately conveyed from the land. In a

Colorado case, it was stated that a water right is a property

right separate and apart from the land on which it is used.

Land for which water was appropriated or on which,it has been

used, may be conveyed or held without the water, or any part

of the land may be conveyed together with any part of the water

right and the remainder be retained.163 But when land is conveyed
~----- ---IUI-~~~IUI---- ------ --- ---------------- ----
160. See Hutchins, op. cit, supra note 56, at 378.
161. Hale v. McCammon Ditch Co., 72 Idaho 478, 2U4 P. 2d 151
(1952. See Utah Code Ann. 1953, Sec. 73-1-10.
162. Salt Lake City v. McFarland, 1 Utah 2d 257, 265 P. 2d 626 (1954).
163. Nielson v. Newmyer, 123 Colo. 189, 228 P. 2d L56 (1951).








including the appurtenances, any water rights theretofore

enjoyed are thereby transferred; and the fact that the grantor

later purports to convey the water right only does not constitute

a severance of the water right and adds nothing to the conveyance

originally made.164

It would be a prerequisite to the right to make any transfer

that the rights of other appropriators remain unimpaired,16 and

apparently also that the transferee be-of the class of persons
166
authorized by statute to acquire an appropriative right* As

stated by Wiel, whether a water right passes with land as an

appurtenance thereto depends upon two questions of fact, namely:
whether the water right is an appurtenance, and whether, being
167
such, it was intended to pass.

As indicated above, water rights are considered as in the

nature of real property and the formalities governing the

conveyance of such rights are the same as in the transfer of real

estate. One statute on this subject is as follows: "Water rights

shall be transferred by deed in substantially the same manner as

real estate, except when they are represented by shares of

stock in a corporation, in which case water shall not be deemed
to be appurtenant to the land; and such deeds shall be recorded
in books kept for that purpose in the office of the recorder of
the county where the place of diversion of the water from its
natural channel is situated and in the county where the water
is applied. A certified copy of such deed, or other instrument.
----------------------------- -----------------------
164. Osnes Livestock Co. v. Warren, 103 Mont. 284, 62 P. 2d 206 (1936).
165. In re Pobinson, 61 Idaho 462, 103 P. 2d 693 (1940).
166. Biggs v. Utah Irr. Ditch Co., 7 Aris. 331, 64 Pac. 494 (1901).
167. Wiel, S.C., Water Rights in the Western States, 3d ed., vol, I,
Sec. 550, quoted in Hutchins, op. cit. supra note 56, at 385.








transferring water rights evidenced by state engineer's certificates

or by court decrees shall be promptly transmitted by the county

recorder to the state engineer for filing..."168

In a majority of states incomplete appropriative rights in

the form of applications or permits to begin construction of

diversion works may be transferred or assigned upon compliance

with certain statutory procedures. 6 These procedures involve

recordation and notice to the state water administrator of the

proposed transfer. The usual provision is that ary permit or

license to appropriate water may be assigned, but no assignment

shall be binding, except between the parties thereto, unless filed

for record in the office of the State Engineer.

VI. Forfeiture and Abandonment.

Abandonment. From the proposition that beneficial use shall

be the basis, the measure and the limit of all rights to the use of

water, it follows that a failure to utilize water under an

appropriative right, should result in a loss of that right. Thus,

even if the water has once been beneficially applied, the water right

is lost if there is not continuous beneficial use through the years.

The doctrine of appropriation requires a substantially continuous

beneficial application of the corpus of the water to the purpose
170
for which it was appropriated. Although loss of a valuable
--- ------------ ------------------------ --------------
168. Utah Code. Ann. 1953, Sec. 73-1-10,
169. Ariz. Code Ann. 1939, Sec. 75-108; Idaho Code, Sec. 42-207;
N. Mex. Stats. 1941, Ann. Sec. 77-521; N. Dak. Rev. Code
1943, Sec. 61-0415; Okla. Stats. Ann., Tit. 82, Sec. 27;
S. Dak. Code 1939, Sec. 61.0134; Utah Code Ann. 1953,
Sec. 73-3-3; Wash. Rev. Code, Sec. 90.20.080.
170. United States v. Ahtanum Irr. Dist., 124 F. Supp. 818
(E.D. Wash. 1954).


--









water right should not be lightly implied, public interests require

that this natural resource be applied to a beneficial use by the

holder of such a right, or that it be rendered available for

appropriation and use by another.17 The two most common ways

by which water rights are lost are abandonment and statutory

forfeiture.

To legally consummate the abandonment of a right, not only

must nonuse be established but also an intention to abandon either

expressly or by implication, must be proved.17 It is not based

upon a time element, but the controlling element in abandonment

is a matter of intent. In this connection, the word "abandon"

has been held to mean "to desert or forsake." As applied to the

doctrine of appropriation of water to a beneficial use, it may

be. defined as an intentional relinquishment of a known right.

There can be no abandonment of a water right unless there is a

concurrence of the acts or conduct of the party with his intent

to desert, forsake, or abandon the right.173

Abandonment is a question of fact to be determined in each -. *

case from all the evidence in the record. Intent, as an essential..

element, must be shown by clear and satisfactory evidence which

may consist of circumstances disclosing some definite act showing

intention to abandon, but the nonuse of a right is not sufficient

of itself to show abandonment unless the failure to use is long


171. Cundy v. Weber, 68 S.D. 21L, 300 N.W. 17 (1941).
172. Scott v. Temple, 108 Colo. 463, 119 P. 2d 607 (1941).
173. Hammond v. Johnson, 92 Utah 211 66 P. 2d 894 (1937).
Tudor v. Jaca, 178 Ore. 126, 164 P. 2d 680 (1945).


69









continued and unexplained, thus giving rise to an inference of

intention to abandon.1 It has been held that intention to abandon

a water appropriation may be inferred from clear evidence of

nonuse of available water for an unreasonable time, in the absence

of proof of some fact or condition excusing such nonuse. But on the

facts of the case involved, a legitimate excuse for nonuse was

supplied by proof of the difficult economic, financial and legal

problems of the appropriator during the period in question.175

In another case it was stated that intent may be proved by

evidence of acts and failures to act as well as by mere words, and

that nonuse constitutes such failure to act. Nonuse for an

unreasonable period establishes a presumption of abandonment arising

from such long nonuse.176 A South Dakota case, also, holds that

evidence of failure to apply water to a beneficial use for an

unreasonable period of time shall constitute a prima facie showing

of intention to abandon.177

One who has acquired the right to the use of certain waters

may abandon the right to the use of a portion thereof in the same

manner as he may abandon the whole, 78 but the one asserting an

abandonment of a right has the burden of so proving.179

Forfeiture. In addition to abandonment, statutory forfeiture

exists in most states as a manner in which water rights may be lost.
------------------------------------------- ------------------
174. City of Anson v. Arnett, Tex. Civ. App., 250 S.W. 2d 450 (1952).
175. Del Norte Irr. Dist. v. Santa Maria Reservoir Co., 108 Colo.
1, 113 P. 2d 676 (1941).
176. Mason v. Hills Land and Cattle Co., 119 Colo. 404, 204 P. 2d
153 (1949).
177. Cundy v. Weber, 68 S.D. 214, 300 N.W. 17 (1941).
178. City of Anson v. Arnett, Tex. Civ. App., 250 S.W. 2d 450 (1952).
179. Mason v. Hills Land and Cattle Co., 119 Colo. 4Oh, 204 P. 2d
153 (1949).
70

'j









Perhaps as a result of difficulties of proof involved in abandonment,

many legislatures have provided that forfeiture may occur from mere

nonuse when it extends over a specified period of time.

A forfeiture for nonuse during the statutory time may occur

despite a specific intent not to surrender the right. It is based

not upon an act done, or an intent had, but upon a failure to use

the right for the statutory time.180 It may be defined as an

involuntary or forced loss because of the appropriator's failure

to put to a beneficial use the water covered by his appropriative

right, as required by statute.181

Nonuse ends the right (when for the statutory period)

regardless of the appropriator's intent, and in this factor lies

the distinction between "forfeiture" and "abandonment." The two

terms are sometimes used interchangeably, and that which a

statute may designate as an "abandonment" may be in fact a
182
statutory forfeiture.8

The length of the period of nonuse which gives rise to

forfeiture varies from state to state. In Arizona it is provided

that whenever the owner of a right to the use of water shall

cease or fail to use the water appropriated for five successive

years, the right to the use shall cease, and the water shall

revert to the public and be again subject to appropriation.183

In California, when the person entitled to the use of water fails

to beneficially use all or any part of the water claimed by him,

----------------------------------------------
180. Hammond v. Johnson, 92 Utah 211, 66 P. 2d 894 (1937).
181. Tudor v. Jaca, 178 Oreg. 126, 164 P. 2d 680 (1945).
182. Carrington v. Crandall, 65 Idaho 525, 147 P. 2d 1009 (1944).
183. Aris. Code Ann. 1939, Sec. 75-101, Appendix, p. 88.






for which a right of use has vested, for the purpose for which

it was appropriated or adjudicated, for a period ofk three years,

such unused water reverts to the public and shall be regarded

as unappropriated water. The Idaho Code provides that rights

to the use of water shall be lost by a failure to put it to

beneficial use for a term of five years, but the state reclamation

engineer is authorized, for good and sufficient reason shown, to

grant an extension of the time for forfeiture for a period of
185
not to exceed five years. In Kansas, the period of nonuse

giving rise to forfeiture is three years;186 Nebraska, three
a187 188 189
years; 7 Nevada, five years New Mexico, four years;

North Dakota, three years;190 Oklahoma, two years;191 Oregon,
192 193
five years; 92 South Dakota, three years; Texas, three
194
years; Utah, five years with provision for extension not

to exceed five years;9 and Wyoming, five years.196

Though the nonuse extends for the statutory period, some

courts have held that no forfeiture will result if there was

a legitimate excuse for such nonuse. Forfeiture will not

operate in those cases where the failure to use is the result

of physical causes beyond the control of the appropriator, such

as floods which destroy dams and ditches, where the appropriator
--l -- -1 -- -- -- ---I ---- -- --I-------
184. Cal. Water Code, Sec. 1241. Appendix, p. 88.
185. Idaho Code, Sec, 42-222. Appendix, p. 89.
186. Kans. Gen. Stats. Ann. 1949, ch. 82a, Art. 7. Appendix, p. 89.
187. Neb. Rev, Stats. 1943, Sec. 46-229.02. Appendix, p. 90.
188. Nev. Comp. Laws 1929, Sec. 7897. Appendix, p. 91.
189. N. Mex. Stats. 1941, Ann. Sec. 77-526. Appendix, p. 91.
190. N. Dak. Rev. Code, 1943, Sec. 61-1402. Appendix, p. 91.
191. Okla. Stats. Ann., Tit. 82, Sec, 32. Appendix, p. 92.
192. Oreg. Comp. Laws Ann., Sec. 116-437. Appendix, p. 92.
193. S. Dak. Code 1939, Sec. 61.0139. Appendix, p. 93.
194. Tex. Vernon's Civ. Stats., Art. 7544. Appendix, p. 93.
195. Utah Code Ann. 1953, Sec. 73-1-4. Appendix, p. 93.
196. Wyo. Comp. Stats. 1945, Ann., Sec. 71-701. Appendix, p. 9k.


I








is ready and willing to divert the water when it is naturally

available.197 A Wyoming case held that under the statute

providing for forfeiture of water rights by nonuser of water

for irrigation or other beneficial purposes during any five

successive years, the nonuser must be effected by voluntary

act, and cannot be effected by enforced discontinuance.

Forfeiture cannot be made out where the failure to use dams or

ditches results from the presence of disastrous flood waters.198

The New Mexico statute specifically states that forfeiture shall

not necessarily occur if circumstances beyond the control of the

owner have caused nonuse, such that the water could not be placed
199
to beneficial use by diligent efforts of the owner.

In Colorado and Montana there are no statutes covering

forfeiture for nonuse, but in both states water rights may
200
be lost by abandonment.

Several questions may arise relative to the loss of

appropriative water rights. Is the forfeiture and reversion to

the public automatic upon an unexcused nonuser for the statutory

period, or does the appropriator hold his right subject to the

condition subsequent that it may be lost by administrative

action or by a court decree upon the coming into existence of

the required state of facts? If there must be a declaration of

forfeiture, who is entitled to initiate the proceedings, and

what happens to the water and right of priority held under a

------- -------------------------------------------------------
197. Rocky Ford Irr. Co. v. Kents Lake Reservoir Co., 104 Utah 202,
135 P. 2d 108 (1943).
198. Ramsay v. Gottsche, 51 Wyo. 516, 69 P. 2d 535 (1937).
199. N. Mex. Stats. 1941, Ann., Sec. 77-526. Appendix, p. 91.
200. Mason v. Hills Land and Cattle Co., 119 Colo. 04O, 204 P. 2d
153 (1949). Mont. Rev. Code 1947, Sec. 89-802. Appendix, p. 90.
73

I-









forfeited appropriation? In several states, statutes and decisions

exist with respect to the problems raised above, but the law in

other states may be less complete.

In Kansas, Nebraska, and Wyoming there are statutory

procedures which must be complied with before a right can be declared

forfeited. Kansas law requires that the chief engineer compile

information concerning the condition and extent of each water use,

and before any water appropriation shall be declared forfeited and

surrendered the appropriator must be notified in writing to appear

at a designated time and place and show cause why his water

appropriation should not be declared forfeited. Appeals to the

courts may be taken within sixty days from the date of any decision

of the state engineer declaring the forfeiture and cancellation of
201
any water appropriation. The Nebraska and Wyoming statutes are
202
similar to that of Kansas.

It has been held that, under the Nebraska statute, the

Department of Roads and Irrigation has the duty to determine the

appropriations of water rights, or parts thereof which are subject

to forfeiture for nonuser and to make the waters covered thereby
203
available to junior appropriators or new applicants203

In Wyoming it is held that before forfeiture of vested

water rights under a statute shall be construed to be operative,

there must be a formal declaration thereof, procured by some

one clothed by law with proper authority to invoke it. A

conservation district was not a water user who might be affected

------------------------------------------------------
201. Kans. Gen. Stats. Ann. 1949, Sec. 82a-718, Appendix, p. 89.
202. Neb. Rev. Stats. 1943, Sec. 46-229.02. Appendix, p. 90.
203. In re Birdwood Irr. Dist., Water Div. No. 1-A, 154 Neb. 52,
46 N.W. 2d 886 (1951).


___









by a declaration of forfeiture so as to entitle it to maintain

an action against a landowner to have water rights forfeited for

nonuser, where the conservation district's water supply would

not be increased even though the landowner's water rights should be

forfeited,204 The provisions governing forfeiture and abandonment

may be applied also in actions to quiet title, suits for injunctions

or damages, statutory adjudicative proceedings, and in other actions

when the issue is raised by an interested party.

An Idaho case states that forfeitures are abhorrent, and all

intendments are to be indulged against a forfeiture. Although

statutory abandonment (forfeiture) of a water right has occurred, it

is not effective, if, after the statutory period has elapsed, the

original owner or appropriator resumes the use of the water prior
205
to claim of right by a third party.

When an abandonment or forfeiture occurs the water for

which a right of use had existed reverts to the public and becomes

again subject to appropriation. The priority abandoned

does not continue and go to another by virtue of his use of the

water, but the right itself ceases to exist and the water theretofore

property claimed under it goes to fill subsequent appropriations

in their order of decreed priority. After abandonment

becomes an established fact, an attempt to exercise the abandoned

right differs in no respect from an attempt by one who never had

a right to assert and exercise one nuno pro tune relating it back

------------------------------------------ T----------~-----------
204. Horse Creek Conservation Dist. v. Lincoln Land Co., $5 Wyo.
320, 92 P. 2d 572 (1939).
205. Application of Boyer, 73 Idaho 152, 248 P. 2d 540 (1952).
206. Granby Ditch & Reservoir Co. v. Hallonbeck, 127 Colo. 236,
255 P. 2d 965 (1953).


~__I




i_~... -t~.--- -----I--- -


to a time such as to deprive those who have made subsequent valid

appropriations of water which they otherwise would receive.

Water from an abandoned right augments the stream from which the

diversion is made and reestablishes conditions as they would have

existed had the abandoned right never come into existence.07

A constitutional problem may arise with reference to a

statutory forfeiture provision as applied to appropriative rights

existing at the time of its enactment. In one case it was stated

that the legislature might provide that the right to use water

would be lost and forfeited by five years of continuous nonuse in

so far as rights thereafter acquired were concerned and in

relation to rights acquired prior to the enactment, providing such

prior and vested rights were not thereby impaired. It was indicated

that a provision for forfeiture would "impair" the rights which

previously might have been lost only be abandonment, but the

constitutional question was avoided since the statute, by its own

terms, was inapplicable to such prior and vested rights.208 On the

ground that the state may, by virtue of its police power, prevent

the waste of its natural resources, such statutes have been held

valid as to past as well as to future appropriations.209

While it may be valid as to one who is no more than an

appropriator without riparian right, such legislation has been

held void when applied to a riparian owner whose right cannot be
210
lost by disuse except through prescription.

-------------------------------------------------------------------
207. Farmers Reservoir and Irr. Co. v. Julton Irr. Ditch Co., 108
Colo. 482, 120 P. 2d 196 (1941).
208. In re Manse Spring, 60 Nev. 280, 108 P. 2d 311 (1940).
209. In re Birdwood Irr. Dist., 154 Neb. 52, 46 N.W. 2d 884 (1951).
See Scurlock, Constitutionality of Water Rights Regulation,
1 Kans. L. R. 125, 145 (1953).
210. St. Germain Irr, Co. v. Hawthorne Ditch Co., 32 S.D. 260,
143 N.W. 124 (1913).




.- c., -. --._ ~- .- -.-4. i:s i< ;*'* T1- IT Ll--.; ;.- -- .- -'- -. -a




That a water right may be deemed abandoned or forfeited after

a prescribed period of nonuse is an integral part of the doctrine

of prior appropriation, "Beneficial use is the basis, the measure,

and the limit of the right to use water." An appropriator must

either beneficially use the public waters for a lawful purpose or

else render them available for such use by others.

VII. Recent Developments in the Law Affecting Water Appropriation

For the purpose of illustrating current problems arising in

the operation of the water laws of the western states, a few of the

more important recent cases will be mentioned.

In Application of Boyer211 applicant sought to transfer water

which he held under a decreed appropriation to another tract of

land. He alleged that the land formerly irrigated was poor and

unproductive, and that the new tract was fertile. Appellant resisted

the application maintaining that while the old tract was irrigated,

the waters percolated in such a manner as to return to the river for

the benefit of users below, but that there would be no return

underground flow from the new tract. In affirming the decree

awarding the right to transfer, the court said that no appropriator

could compel any other appropriator to continue the waste of water

whereby the former may benefit. The rule that a junior appropriator

has a right to the continuation of stream conditions as they were

at the time he made his appropriation could not compel respondent to
waste his water.

Another Idaho case held that seepage and waste water belong to

the original appropriator and, in the absence of abandonment or

211. 73 Idaho 152, 2-8 P. 2d 5$0 (1952).
211. 73 Idaho 152., 248 P. 2d 540 (1952).


77




.... _. i .. ..... -.- .-.--- -' -- i -- ..I.---.- ....... .. .




forfeiture, may be reclaimed by such appropriator as long as he
212
is willing and able to put it to a beneficial use.

United States v. Fallbrook Public Utility District illustrates

the fact that the riparian rights doctrine still has significance in

California. At the suit of the federal government to determine

rights to water from the Santa Margarita River at Camp Pendleton,

the court held that military use was a beneficial use for which
213
riparian rights may be exercised.2

The question of the applicability of the doctrine of prior

appropriation to certain water classifications, particularly

ground waters, has been perhaps the most important recent water
21U
law issue in several states. In Bristor v. Cheatham the

Arizona Supreme Court held that waters from an underground stream

were clearly appropriable under Section 75-101, Aris. Code Ann.

1939, and that percolating waters do not belong to the owners of

the soil, but to such person as first appropriates and applies

them to a beneficial use. A dissenter likened the majority opinion

to "the dropping of a gigantic atomic bomb in our midst," and in
215
a second appearance of the case, the court reversed its

original position in so far as it had held percolating waters

subject to appropriation. The court noted that the legislature

had not included ground water (percolating water) among waters

classified for appropriation and that under both the civil and

common law, percolating water belongs to the owner of the soil.
--------------------------------------------------------------
212. Reynolds Irr. Dist. v. Sproat, 70 Idaho 217, 214, P. 2d
880 (1950).
213. 110 F. Supp. 767 (S.D. Cal. 1953).
214. 73 Ariz. 228, 240 P. 2d 185 (1952).
215. 75 Ariz. 227, 255 P. 2d 173 (1953).









A Colorado case stated the presumption that all ground water

finds its way into the stream in the watershed of which it lies, is

tributary thereto, and subject to appropriation as part of the

waters of the stream. The court expressly left open the question

of the law relative to nontributary ground water, saying that

whether it should follow the California doctrine of reciprocal

rights or extend the Colorado doctrine of appropriation to such
216
waters was not an issue made by the facts of the case.216

In State ex rel Bliss v. Dority et el.,217 a New Mexico case,

defendant challenged the constitutionality of the statute providing

that the waters of underground streams, basins, or lakes, having

reasonably ascertainable boundaries, were subject to appropriation

for beneficial use. The court upheld the act concluding that all

water that might be used for irrigation was reserved by the Desert

Land Act to be used beneficially by the public, as provided by the

laws of the arid states. The decision of Yeo v. Tweedy218 holding

such waters subject to legislative regulation was said to have

become a rule of property which should not be disturbed.

In Arizona and California there has been recent legislation

designed to prevent the depletion of ground water supplies in

certain portions of the states.219 In 1951, Idaho enacted

legislation declaring all water under the ground whatever may be

the geological structure in which it is standing or moving to
-----------------------------------------------
216. Safranek v. Town of Limon, 123 Colo. 330, 228 P. 2d 975 (1951).
217. 55 N.M. 12, 225 P. 2d 1007 (1950).
218. 34 N.M. 611, 286 Pac. 970 (1930).
219. Aris. Code Ann. 1939, Sec. 75-2110 ff.; Laws 1953, Ch. 42.
Calif. Water Code, Sec. 1005.1; Stats. 1951, Ch. 1361.


. .. .i








teo tlw pepnp ty .of e l sats att eaat to appropriation for


One of the rnatively few eases dealing with the utilization

of dirfused itaes waters arose is Motalna At 1to 0. Suoh
water. am the wiai a -e aver tae rgas4 after

preeiiatattcn beaem tyhey bsemss easentrated alte etveemg,
Iakles, sr pOO&* Uts tol4 heAld tat a land wea ar ould Iapound
abch wateas e Ms latd tay the purpose of watrtag livestock

and aiegt DaAstm to the g*r &A as against the header of an
appopriative riAi 4 Muberat TflsN eewo b claimed his
water suppLy had bet Adtinished by sut action. A 4Aaaentiag
opinion aated thaat tf waite sr asolt1 be t oasered as those

of a tributeWy Asrewn *iteh anost oe *aWed up to tha *jtrifwnt
of prior approprriatr on the loaer swtea, sat that the

majority opiate would cast UnoertataVty ;pW aqg agppropritors who
thought thoe bead vested rigts ui the is at o ge VaterO .


2o, D- ns Cve.e Sec. ImAe$6 s P.
1. Doney w. Bafry, Uk Maont. ht, t# P. 24 T? (1950).




------ -*-- -- -.




Chapter Three


CONSTITUTIONALITY OF LEGISLATION AFFECTING WATER RIGHTS

I. California and Colorado Doctrines.

From the foregoing treatment of the two important doctrines

of water law in America, it may be observed that these doctrines

are essentially irreconcilable. Equality of right among riparian

owners is the dominant theme of the riparian doctrine. The temporal

element gains preeminence in the law of prior appropriation.

Stability becomes the outstanding characteristic since the holder

of the appropriative right is not required to readjust his use

of the water to make way for subsequent users from the same source.

Regardless of this irreconcilability there exists a sort of dual

system of water law in several of the western states. California,

Kansas, Nebraska, the Dakotas, Oklahoma, Texas, Washington, and

possibly Oregon, prior to their adoption, in some measure, of

the appropriation theory, held to some adaptation of the riparian

rights theory, either of the "reasonable use" or "natural flow"

variety. This dual system, characterized by the existence of two

water doctrines within the same state is referred to as the

h "California doctrine."

Fortunately in so far as the future homogeneity of their law

was concerned, certain other states adopted prior appropriation

exclusively at the very beginning of their existence. These states

(Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah,

Wyoming, and possibly Oregon) follow what is known as the

"Colorado doctrine."

As the states in the former group began to recognize in the









doctrine of prior appropriation the basis for a stable economy,

they began to consider the possibilities of the overthrow or the

modification of the riparian law so as to eliminate its

non-utilitarian aspects. The constitutional difficulties

immediately became apparent. Riparian rights were "property" of

which an individual could not be deprived, even by the legislature,
222
except upon just compensation. In judicial decisions and in law

treatises, water rights have traditionally been classified as real

property and treated similarly to easements or other interests in

land.223 Thus many courts have recognized as confiscatory any

legislation which has the effect of limiting the "vested riparian

right."

II. Influences of Desert Land Act.

If there are no vested riparian rights at the time of the

enactment of water laws, this constitutional problem does not, of
course, exist. In 1877 Congress passed the Desert Land Act which

proved to be of great significance in the water law history of many
states. This act provided for the settlement of desert lands in
most of the western states. It stated that all surplus water over
and above actual appropriation and use, together with the water
of all lakes, rivers and other sources of water supplies upon the
public lands and not navigable, should remain and be held free for

the appropriation and use of the public for irrigation, mining,
and manufacturing purposes subject to existing rights.22 It has
been held that the effect of the act was to sever the land and

the water on all the public domain, leaving unappropriated waters
-------------------------------------------------------
222. Mud Creek Irrigation, Agricultural and Mfg. Co. v. Vivian,
74 Tex. 170, 11 S.W. 1078 (1889).
223. See Tiffany, Real Property, Sec. 722-750 (3rd ed.).
224. 19 Stat. 377, as amended, 43 U.S.C. 321 (1877).


~







225
open to appropriation under the laws of the several states.2

Each state, therefore, had the right to determine for itself which

doctrine of water law should apply. "A patent issued thereafter

carried, of its own force, no common law right in water bordering

the patented land.,226 Thus the device of reservation of riparian

rights from grants of the public land permitted a state to adopt

the appropriation system in regard to streams on such land without

thereby infringing upon any vested rights.

This idea has been expressed in several decisions. In

California it was held that a statute authorizing acquisition of

water rights by appropriation is operative only as to lands owned

by the state at the effective date of the statute.227 A Texas

case indicates that a statute, providing that the unappropriated

waters of every river or natural stream within the arid portions

of the state should be property of the public and subject to

appropriation, could not be operative on vested riparian rights

of private owners, but was intended to operate on the riparian

rights which the State had by reason of its ownership of lands
228
bordering on rivers or natural streams. The basis for these

cases is the proposition that riparian rights cannot

constitutionally be taken away by the legislature without
compensation.
Another device used to further the policy of making the greatest
quantity of water available for appropriation was to legislate
with respect to those water classifications not encompassed by the
----------------------------------------------------------
225. California Oregon Power Co. v. Beaver Portland Cement Co.,
295 U.S. 142 (1935).
226. Hutchins, History of the Conflict Between Riparian and
Appropriative Rights in the Western States. Presented at Water
Law Conference on Riparian and Appropriation Rights, University
of Texas School of Law, Austin, Tex., June 11-12, 1954.
227. Palmer v. Railroad Comm., 167 Cal. 163, 138 Pac. 997 (1914).
228. McGhee Irr. Ditch Co. v. Hudson, 85 Tex. 587, 22 S.1. 967 (1893).








riparian doctrine. Under the law of Texas, for example, riparian

rights attach only to the flow and underflow of a stream, and not

to the overflow occasioned by storm and flood waters. Accordingly,

the Texas appropriation statutes were held valid inasmuch as they

were construed to apply to and make available for appropriation

only the overflow of the streams within the state.229

Similarly, in South Dakota a statute authorizing the

acquisition of water rights was held valid only as to the surplus

of water above that which might be legally used by riparian owners

and other lawful appropriators.230

In many cases legislative attempts to restrict the rights of

riparian owners have been held unconstitutional, A riparian

proprietor may not be required to get a permit for the use of vested

riparian rights since no one may be forced to secure a permit in

order to enjoy what is already his.231 Moreover, a statute

authorizing the appropriation of waters in streams more than twenty

feet in width would be invalid as to riparian proprietors who

possess a property right to the natural, undiminished and

unimpaired flow of the stream, and this property right can be

destroyed or impaired in the interest of the general public only

upon the payment of full compensation therefor.232

A Washington statute provided that the person upon whose lands

the waters of a spring first arose should have a prior right to

such waters, if capable of being used upon his land.233 Defendant,
--------------------------------------------------------
229. Motl. v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926).
230. St. Germain Irrigating Co. v. Hawthorne Ditch Co., 32 S.D.
260, 143 N.W. 124 (1913).
231. Ibid.
232. dI~k v. Cambridge and Arapahoe Irrig. and Imp. Co., 45 Neb.
.798, 64 N.W. 239 (1895).
233. Wash. Laws, p. 710, Sec. 15,(1890).




L --I-1-= -- --- -




an upper riparian owner upon whose land a stream had its origin in

a spring, diverted all the stream water for the irrigation of his

orchard. Plaintiff, a lower riparian owner, was deprived of the

use of the stream for domestic and other purposes. The court

held the foregoing statute unconstitutional as allowing a taking

of property without due process of law since the right of a riparian

proprietor to use stream water is a property right attaching to

his land.234

Several cases decided in states other than the arid west may

also throw light on the question of the statutory regulation of water

rights. The Wisconsin Supreme Court held that a statute authorizing

the issuance by a state administrative agency of permits for the

appropriation of water in navigable streams for the purpose of

developing hydraulic power was unconstitutional as an attempt to
235
deprive riparian owners of property without due process of law.23

A statute which declares that a stream, non-navigable in fact

is navigable in law is unconstitutional as a taking of private

property for public use without just compensation as applied to a

situation where one seeks under such statute to remove water gaps

previously placed by a riparian owner for a mill dam so that the

former may float staves down stream.236

It has been indicated that a statute making a public highway

for the floating of forest products to market of a private

naturally non-navigable stream upon which riparian owners have
-- -- -- --- ---------------------------------
234. Neilson v. Spooner, 46 Wash. 14, 89 Pac. 155 (1907).
235. State ex rel. Wanson Street R. Co. v. Bancroft, 148 Wis. 124,
134 N.W. 330 (1912).
236. Murray v. Preston, 106 Ky. 561, 50 S.W. 1095 (1899). See
also People ex. rel. Western New York and P. Ry. Co. v. State
Tax Commission, 2Ut N.Y. 596, 155 N.E. 911, (1927).








vested interests in the form of dams and booms, without providing
237
compensation for such owners, is unconstitutional.37 An Alabama

case contains a statement to the effect that a statute divesting

the fishing rights of a riparian owner in a non-navigable stream

adjacent to his lands and granting such fishing rights to the
238
public would be contrary to the constitution. A Florida case
reaffirms the proposition that, at common law, riparian rights are
property of which the proprietor cannot be deprived without just
239
compensation239
III. The Oregon Precedents.

In Oregon the courts have been somewhat more liberal in

permitting legislation which restricts riparian in favor of

appropriation rights. The case In re Hood River240 holds that a
statute providing in effect that all waters belong to the public
and that all waters, not previously actually applied to beneficial
use at the effective date of the statute, may be appropriated for
beneficial uses is not unconstitutional by reason of the fact that
such statute changes the previously accepted common law doctrine
respecting riparian rights to the continuous natural flow of streams.
The court thus resolved in favor of an irrigation company appro-

priator a controversy as to the claimed rights of a power company
riparian owner to the undiminished flow of a non-navigable river.
A federal case says by way of dictum that an Oregon statute abro-

gating a riparian owner's vested common law rights to the natural,

substantially undiminished flow of non-navigable streams and to the
unrestricted reasonable use of a fair share thereof for beneficial
purposes connected with the riparian land, with the result that such
----------------------------------------------------------
237. Morgan v. King, 35 N.Y. 454 (1866). See also Allison v.
Davidson, Tenn. 39 S.E. 905 (1896).
238. City of Bi~ingham v. Lake, 243 Ala, 367, 10 So. 2d 24 (1942).
239. Thiesen v. Gulf, F.& A. Ry. Co., 75 Fla. 28, 78 So. 491 (1918).
20O. 114 Ore. 112, 227 Pac. 1065 (1924).








riparian rights are subordinated to the right of prior appropriation,

is not invalid as a taking of the property of a riparian owner

without due process of law contrary to the federal constitution

The court noted that riparian rights, like other property are

subject to the police power of the state and within reasonable

limits may be modified in the interest of the general welfare.

But the Oregon cases are weak authority on the constitutional

question for the reason that it appears at least doubtful that the

riparian right in its traditional coimon law form was ever

recognized in that state.,

The Washington law is similar to that of Oregon. The courts

have evolved the doctrine that the waters of non-navigable streams

in excess of the quantity that can presently or prospectively within

reasonable time be used in connection with riparian lands are
2L3
subject to appropriation for use on non-riparian lands. This

result was reached without benefit of statute specifically covering

the subject.

On the question of damages a Nebraska court limited a riparian

owner who did not actually use the water before the vesting of

appropriation rights to recovery of only such damages as he could

prove for the impairment of his right to use a reasonable quantity

of water and stated that he should have no compensation for his

cost of construction of irrigation ditches after appropriation by

either upper or lower appropriators.2


241. California-Oregon Power Co. v. Beaver Portland Cement Co.,
73 F. 2d $55 (9th Cir. 1934).
242. Ibid.
243. Frown v. Chase, 125 Wash. 542, 217 Pac. 23 (1923).
Proctor v. Sim, 134 Wash, 606, 236 Pac. 114 (1925).
244. McCook Irrig. and Water Power Co. v. Crews, 70 Neb. 109,
96 N.W. 996 (1903), affd., 102 N.W. 249 (1905).







A Texas case holds that a statute authorizing the appropriation
by riparian owners of unappropriated waters of natural streams in
the arid portions of the state, for irrigation, domestic, and other

beneficial uses, provided other riparian owners are not deprived
of the right to use the water of the stream for domestic purposes,
is unconstitutional as a taking of private property without
compensation in so far as it attempts to allow a lower riparian owner
by appropriating water for irrigation purposes to defeat the right
.of an upper riparian owner to appropriate such amount of the water
as he might need for irrigation purposes. 2 Several other cases

say that a statute is unconstitutional as authorizing a taking of

private property for public use without compensation in so far as
it authorizes appropriation in derogation of a riparian owner's
'right to use water for irrigation.2
IV. The California Precedents.
The conflict between the riparian and appropriation doctrines
has been more pronounced in California than in any other state. It
will be remembered that the first statutes authorizing appropriation

were enacted in that state. But in 1886 it was held that the

"reasonable use" riparian rights doctrine was the law of

California as a result of the adoption of the common law in
2h7
1850.7 This case held that a riparian owner has a property right

to the natural flow of the stream which right is not created by

use and which may not be lost by non-use (except by prescription)
and that the legislature cannot authorize an appropriation of
water which amounts to an invasion of such property rights without
nn-------n--n------------ -------------
245. Barrett v. Metcalf, 12 Tex. Civ. App. 247, 33 S.E. 758 (1896).
246. Clark v. Allaman, 71 Kan. 206, 80 Pac. 571 (1905); Nine Mile
Irrig. Dist. v. State, 118 Neb. 522, 225 N.W. 679 (1929);
Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570 (1896).
247. Lux v. Haggin, 69 Cal. 255, 10 Pac. 674 (1886).


~-rrTrS~i~i




AL



providing for the payment of compensation therefore.
In 1909, the Supreme Court of California said that the

limitation of the riparian proprietor to a reasonable use of the

water applies only as between riparian owners, and that as against

an appropriator who seeks to divert water to non-riparian lands, the

riparian owner is not limited by any measure of reasonableness.248

The court had the following to say:

"It is argued that unless appropriators are permitted to

divert and store for future use water which would otherwise run
into the sea and be wasted, there will be a failure to make the
most beneficial use of the natural resources of the state and

that riparian owners should not be permitted to obstruct the

development of these resources...But the riparian owners have a

right to have the stream flow past their land in its usual course,

and this right, so far as it is of regular occurrence and

beneficial to their land is, as we have frequently said, a right of

property, 'a parcel of land itself.' Neither a court nor the

Legislature has the right to say that because such water may be

more beneficially used by others it may be freely taken by them.

Public policy is at best a vague and uncertain guide, and no

consideration of policy can justify the taking of private property

without compensation. If the higher interest of the public should

be thought to require that the water usually flowing in streams

of this state should be subject to appropriation in ways that

will deprive the riparian proprietor of the benefit, the change

sought must be accomplished by the use of the power of eminent domain.

The argument that these waters are of great value for the purposes


~_------------ ------ ---------------- --UI---~C--------
248. Miller & Lux v. Madera Canal & Irrig. Co., 155 Cal. 59, 99
Pac. 502 (1909).


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