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
SCHOOL OF LAW
THE UNIVERSITY OF GEORGIA
YrC-L _~ ."ryCii~Pga;llsn -'I ~
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
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
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
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
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.
- A ~---uiurir~ ~iiIEL~ 2
Bryan M. Storey
Assistant, Institute of
Law and Government
.. nsMMN*iAWii4 -
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,
.r~BB~BIPYA. YL~ -u~-
.-.-^ 2Jisaau laial.
TABLE OF CONTENTS
GEORGIA'S EXISTING WATER LAWS THE RIPARIAN DOCTRINE
General-------------------- -------------- 1
Water Classifications------------------------ 1
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
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-------------------------
7 7d ~ p l _e ~ w w r ~ w -._ r '' r ,- w '. w
- n'"'' |".. ..-
XIn. The Acqtuiltlef apoprastw Ilta---ae K7
As* tmbreiam pad ul--- .- --------
C .. Sta-ato-rod----
S" c. "x .' *. -
-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
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
'' ;igaPfr~ ~ bt :
A. General Provisions Governing Appropriation
1. Arizona ..... ... ..----. ...-----------.... ...
2. California ------------ --------------------
3. Colorado- .------- ----- --------------
4. Idaho- -- ................ ..............
$. Kansa s--... .... ........... . ...----
6. Montana------------ .-------------------------
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--------------------- ---- ---
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
-~ .,~.. -
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
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
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 ).
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
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).
~- r-.- I--1?C 3i
^li'.w ^-_. w -..T.', as-.-C -^.E--r -- ,-" ,' "
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
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
, 5. Saint Amand v. Lehman, 120 Ga. 253, 47 S.E. 949 (190W).
6.e See note Ih supra.
8. 36-1. Jur., Waters, Sec. 133, (1947).
- ~ L ~ --~ --- -
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 -- -- -
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.
I5i~T~ i---:i- :_
- ,, -
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
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
"- --------111---~--- -r ~--~----~-- I C-~
...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
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
fl. aSs A. fl Is Siod
k ft o .o a- t ttm 'a aI. at m*
b0O bwe s ~
asaeh' "fla S a r
as ,* .".Al t eb -s 't
' '. s 4us.* mee.
*A* *eftP OV W% arA mtpgeetkl aseUM M M U
a .. '
( ma nt S ONoFWM.W Wt# v. I
-'0 W -
--*. .- -O -
Sw i m ,.
a ..S ... .. I" A
P rcar-L.. IC'-.. 'fa ~ rr~v V C
7 l;:fr~l~,.'-; ~ ~ I `~t'
pnii ? tI i.aa.ai if- Ini t.,
.e _tt A" at4i ti a and wse e .. '... IX
t I A ii igriialldag v is r Xt,, ,i o 11 thi W I
dth enia d S glniMfle a be3 *t 3W aB
W 'appopa tor uakem a c nti sat ad _ere of a
quttiy o liatei for a period of tmWirf yd, .
Frlo this br aimnastia of the riprian docta
applied in #aa it wad sem th at ripl
tf tu wst U ^t it*r It ^. cflnrs *mamt
uvtsl#A uB* Je a a ,.r- ircS. -ara r r a
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).
, C-.- IS-t 2. Tht`- A 41 to
in n; iifl ~ ~ :~s~;~y ;tCc~r.i~ M ,t~a&. ~-c
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
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
- .r~---~i.I. a i
MM7 tjMn 7i1st am
perea of thaWb:Zvarift ]A~~ff~~ff~~ff~~tf an -A cuaa 0 ~Lia~~attdr~r
' 7,', .. .
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
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
-*:,. : -
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
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
~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
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
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.
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.
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
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)).
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
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
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.
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).
assre codified the customs which had grown up in the mining
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
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
29. totl. v. Boyd, 116 Tax. 82, 286 S.x. 458 (1926).
30. Hutchins #p. cit. sara note 27.
'~ ~"ci -.- ~
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.
,, **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.
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
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
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).
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
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
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.
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
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.
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,
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
Wyoming The water of all natural streams, springs, lakes
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,- ,--.,, ,,, .
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
, t I'
, __ ._
- '7 -- -
. i .. ,/ ., . .-, .
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).
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
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
- 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
60. Basey v. Gallager, 87 U.S. 670 (1875).
-1 -- .1
-._~1 c--~~i~ i i -
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
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
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).
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
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
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
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).
.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
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
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).
a particular case lies in the discretion of the jury or court after
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).
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).
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
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.
~w-;-;--TE-~I- C:Ji -~~.''L~-r- 1C--l-l 1*1-
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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
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
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.
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
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
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.
_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
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.
L *1 : '...
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
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.
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
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
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
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
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.
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.
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
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.
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
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).
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
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.
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
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
been held that the effect of the Idaho statutory provision
is to deny the power of an appropriator who fails to file the
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).
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
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.
-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.
- .'*" ,** -..... -': *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
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.
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
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
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
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
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
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
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.
all amendments which may be necessary in furtherance of justice,
and may submit any question of fact arising therein to a jury,
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
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
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
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
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
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
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).
where it can fairly be done, strongly inclined to hold with the
state courts, when they uphold a state statute providing for
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,
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
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.
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,
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.
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
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
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
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
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
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
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).
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
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
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
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
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,
five years; 92 South Dakota, three years; Texas, three
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.
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
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
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.
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
any water appropriation. The Nebraska and Wyoming statutes are
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
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
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
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_~... -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
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).
.... _. i .. ..... -.- .-.--- -' -- i -- ..I.---.- ....... .. .
forfeiture, may be reclaimed by such appropriator as long as he
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
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
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
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
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
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).
------ -*-- -- -.
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
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,
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
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).
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
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
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).
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
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
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
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
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
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
subject to appropriation for use on non-riparian lands. This
result was reached without benefit of statute specifically covering
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).
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
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
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).
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
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248. Miller & Lux v. Madera Canal & Irrig. Co., 155 Cal. 59, 99
Pac. 502 (1909).