Title: Legislative Change of Water Law in Massachusetts
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Title: Legislative Change of Water Law in Massachusetts
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Abstract: Richard Hamann's Collection - Legislative Change of Water Law in Massachusetts
General Note: Box 12, Folder 7 ( The Law of Water Allocation In The Eastern United States - 1956 ), Item 3
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LEGISLATIVE CHANGE OF WATER LAW
IN MASSACHUSETTS

A Case Study of the Consequences of
Introducing a Prior Appropriation System
by Charles M. Haar* and Barbara Gordont

INTRODUCTION

An abundance of rainfall and of streams and ponds has thus far enabled
Massachusetts to focus its attention on other problems than that of water
law. Massachusetts legislators-with one historically significant exception
-have concentrated on other subjects. Even the courts have not been par-
ticularly active in allocating water resources. Thus, the historian and an-
alyst confining himself to legislation, judicial opinions, and other legal
sources, would be forced to conclude"that the water problem has had a
relatively low priority on the list of tasks confronting the people of the
Commonwealth.
No sudden scarcity of water resources threatens Massachusetts. No
new and serious conflict of interest is reflected in recent cases. Yet the
quantity of water is, and can be expected to remain, fairly constant, while
the quantity required has continually increased due both to an expanding
economy and a rate of discovery of new uses exceeding that of obsoles-
cence of old uses. This relatively fixed supply coupled with increasing
demand stemming from growing population and growing per capital con-
sumption has led experts in the field to anticipate water shortages, even
in eastern states, within the foreseeable future.1 It has also led legisla-
tors in several states to re-examine their water laws, with the result that
several proposed laws are now awaiting legislative consideration. The
purpose of this paper is to try to determine whether Massachusetts should
follow the trend, and, toward this end, to present Massachusetts water law
and the changes which would be wrought by enactment of legislation simi-
lar to that recently discussed in Michigan.2
The Michigan proposal* has been selected because it is representative
of the new movement. While the approach taken by this paper of compar-
ing Massachusetts existing doctrine, as it would be affected by proposed

Professor of Law, Harvard University
t Cravath, Swayne & Moore, New York, N. Y.
1. U. S. President's Water Resources Policy Commission, A Water Policy for
the American People, vol. 2, at 468, 473 (1950).
2. See pp. 87-94 for a discussion of recent legislative proposals. The Michigan
"proposal" was never formally introduced in the Legislature, but was drawn up as a
basis for discussion. See p. 622.
Excerpts of the proposed bill are quoted below. The full text of the proposal
is reproduced as an annex to this paper.
1







LAW OF WATER ALLOCATION


legislation, suffers from certain limitations, it does highlight the conse-
quences that flow from the proposed change to an appropriation system.
Even the defect of over-specificity may have the advantage Flaubert wrote
of, "Le detail est tout!"
Much of the work in the field of water law has dealt with broad national
policy or, if narrowed somewhat, to the relation of the states and the fed-
eral government. An analysis of present law of water in Massachusetts in
the light of the changes that would be caused by the proposed legislative
revision is necessary to a full understanding of either subject. The hope
is that, by illuminating the detailed (and often tedious) changes that may
result in the present arrangement of social affairs, the various vague
claims and abstract charges made by proponents both of the riparian and
prior appropriation doctrines will be crystallized, and that thereby the
disagreements set forth, the points of agreement, if any, restated, and the
underlying assumptions articulated.


COMPARISON OF PRESENT MASSACHUSETTS LAW AND
PROPOSED MICHIGAN LEGISLATION

The comparison below of present Massachusetts water law and the
proposed Michigan legislation is organized in the following way: first,
sections of the Michigan bill are given; then, present Massachusetts law
on the same subjects is analyzed; finally, the likely or possible effect of
the Michigan provisions is projected.

The Riparian Doctrine

Section 2. EXISTING RIGHTS PRESERVED. Nothing in this Act is intended to
impair any existing valid right in the use of water, or to interfere with the con-
tinuance of any such right, or to prevent the maintenance of such stream flows or
lake levels as are necessary to the reasonable exercise of private vested rights
and to the reasonable use of natural streams and lakes for public purposes of re-
creation, fishing, sanitation, and navigation.
Section 7. VESTED RIGHTS. Class A. The holder of any tract of land that now
conforms, or hereafter shall conform, to the definition of riparian land in Sec-
tion 3, supra, shall be deemed to have a Class A vested right to the reasonable
use of the stream or other body of water to which his land is riparian, for pur-
pose of domestic use as defined in Section 3, supra, power, recreation, and
fishing on or in connection with such land.
Class B. Actual application of water under reasonable methods of diversion
to reasonable beneficial use other than in the exercise of a Class A vested right,
or in connection with either riparian or nonriparian land, prior to the date upon
which this Act shall go into effect, shall be deemed to create in the person
effecting such use or in his successor in interest a Class B vested right to the
extent of the actual application to such reasonable beneficial use; provided such







MASSACHUSETTS WATER LAW


use has not been abandoned in the manner provided in Section 23, infra. The
priority of such right shall date from the time of actual application of water to
beneficial use.
Section 8. EFFECT OF PRIORITY OF RIGHT. The natural supply of water
in any natural watercourse or lake shall be available at all times for the re-
quirements of Class A vested rights as provided for in Section 7, supra, and for
the other uses provided for in Section 2, supra. The excess over such require-
ments at any particular time shall be available for the requirements of Class
B vested rights provided for in Section 7, supra, and for the appropriative rights
acquired after the effective date of this Act under the procedure provided for
that purpose in Section 11 et seq., infra, in the order of their respective dates of
priority. No holder or claimant of a Class B vested right or of an appropriative
right shall be entitled to divert or impound or use water at any time when such
water is required to satisfy both (a) the Class A vested rights and other uses
hereinabove referred to, and (b) any Class B or appropriative right or rights
with an earlier date or dates of priority.
Section 14. GROUNDS FOR APPROVAL OR REJECTION OF APPLICATION.
Every application that fulfills all of the requirements of this Act, and of the rules
and regulations of the Commission promulgated in pursuance thereof, shall be
approved by the Commission. Before acting uppn an application, the Commission
shall consider all the circumstances of the proposed use of the water, including
the character of the land and the desirability of irrigating such land. The Com-
mission shall also consider whether the approval of the application will impair
any vested rights as provided for in Section 7, supra, or will interfere with the
maintenance of the flow of the stream or level of the lake, as the case may be,
reasonably necessary to safeguard the uses provided for in Section 2, supra.
Any application, the approval of which would conflict with the public interest, as
stated in Section 1, supra, or with the requirements of this section, or which is
shown not to have been made in good faith, shall be rejected by the Commission.
If two or more applications are pending for a quantity of water that is inadequate
for both or all, or which for any other reason are in conflict, the Commission
shall have the right to approve that application which best serves the public in-
terest. If in the opinion of the Commission there appear to be assured prospec-
tive uses of the water that would better serve the public interest or general wel-
fare, then the Commission may reject or may postpone the approval of an appli-
cation that would not serve so well such public interest or general welfare.

Present Law

The basic proposition of the Massachusetts law of watercourses is that
an owner of land riparian to a stream has a right to the use of the stream
on or in connection with his riparian estate;3 he has a right to the free and
Unobstructed flow of the stream onto his land,4 and from it onto the lower


3. E.g., Weston v. Alden, 8 Mass. *136 (1811).
4. See, e.g., Corse v. Dexter, 202 Mass. 31, 88 N.E. 332 (1909); New England







LAW OF WATER ALLOCATION


riparian's property.5 Though this right is thus contingent upon, or as the
courts put it, an inseparable incident of, ownership of land,6 it is not pro-
portioned to it; under Massachusetts common law, the rights of all per-
sons having any right at all are equal.7 These rights, however, may be en-
larged or diminished by grant8 or prescription.9 Each riparian has a right
to use the stream "reasonably." "Reasonable" in this sense means any use
which is lawful and beneficial and not inconsistent with the reasonable use
of other riparians.10


Cotton Yarn Co. v. Laurel Lake Mills, 190 Mass. 48, 76 N.E. !231 (1906); Ware v.
Allen, 140 Mass. 513, 5 N.E. 629 (1886); Merrifield v. Lombard, 95 Mass. (13
Allen) 16 (1866) (dictum).
The flow to which the lower riparian is entitled is the natural flow except as
changed by reasonable use. That a long continued use by an upper riparian has
conferred a benefit on the lower, does not entitle its continuance. Mason v. Whitney,
193 Mass. 152, 78 N.E. 881 (1906); Whitney v. Wheeler Cotton Mills, 151 Mass.
396, 24 N.E. 774 (1890); nor generally need an intermediate riparian forego his own
interest to transmit the water as changed by use above because the change would
be beneficial to the user below. Mason v. Whitney, supra at 160, 78 N.E. at 884-85.
5. DiNardo v. DoVidio, 312 Mass. 398, 45 N.E. 2d 269 (1942).
Plaintiff (an upper riparian or ditch dweller) in DiNardo v. DoVidio brought suit
because of defendant's alleged malefactions with respect to four so-called
"ditches." With respect to one of those ditches, ditch D, the referee had recom-
mended that the defendants be not ordered to reopen the ditch. Plaintiff appealed
with respect to the decree entered pursuant to the Master's order. The court af-
firmed, its ground being, however, that the ditch was not a natural watercourse and
plaintiff did not therefore have the rights of a riparian with respect to it. As to
the other ditches, the court stated as follows:
It is contended that ditches C,B and A are not a watercourse as to which both
parties have the rights and obligations pertaining to a natural watercourse ....
The defendants had a duty not to obstruct wrongly the water in this course to
plaintiff damage.
Plaintiff, however, was granted affirmative relief below relative to obstructions
in ditch A and probably as to ditches B and C also. Since defendant was not ap-
pealing, it would, I suppose, be more accurate to cite the case as dictum.
See also McGowen v. Carr, 272 Mass. 573, 172 N.E. 787.
6. Tourtellot v. Phelps, 70 Mass. (4 Gray) 370 (1855); Johnson v. Jordan, 43
Mass. (2 Metc.) 234 (1841).
7. Pratt v. Lamson, 84 Mass. (2 Allen) 275 (1861); Gould v. Boston Duck Co.,
79 Mass. (13 Gray) 442 (1859).
8. New England Cotton Yarn Co. v. Laurel Lake Mills, 190 Mass. 48, 76 N.E.
231 (1906); Tourtellot v. Phelps, 70 Mass. (4 Gray) 370 (1855).
9. Corse v. Dexter, 202 Mass. 31, 88 N.E. 332 (1909); Merrifield v. Lombard,
95 Mass. (13 Allen) 16 (1866) (dictum).
10. See Amory v. Commonwealth, 321 Mass. 240, 72 N.E. 2d 549 (1947); Strat-
ton v. Mt. Hermon Boys' School, 216 Mass. 83, 103 N.E. 87 (1913).







MASSACHUSETTS WATER LAW


No lawful purpose is per se unreasonable,1 nor has any lawful purpose
been held in so many words to be preferred over any other. In fact, how-
ever, certain purposes do seem to enjoy a preference, based, apparently,
on the court's evaluation of fundamental or natural human needs, and prac-
tical considerations of feasibility. In the language of Chief Justice Shaw,
To take a quantity of water from a large running stream for agriculture or
manufacturing purposes, would cause no sensible or practicable diminution of
the benefit, to the prejudice of a lower proprietor; whereas taking the same
quantity from a small running brook passing through many farms, would be of
great and manifest injury to those below, who would need it for domestic sup-
ply, or watering cattle; 12
Perhaps because a brook as small as the one contemplated by the Justice
would be useless for agriculture or manufacturing, conflicts of this ele-
mentary type have not been litigated.
One generalization does seem to emerge from the cases: the litigated
issue is never whether the purpose was reasonable, but rather the reason-
ableness of some particular use for a concededly reasonable purpose.13
Essentially, it is difficult to isolate the factors a court will consider in its
determination. For the question is one of fact to be resolved in the light of
all the circumstances.1 Yet, like most such questions, the extreme case
is deemed a matter of law and hence for the court, rather than the jury."1
The outstanding instances of this in watercourse law are uses involving
total diversion or obstruction. And as in other areas of the law where the
criterion is reasonableness, despite the uncertainty of result in any given
case, the relevant factors can be stated with a fair degree of precision.
One of the most important factors is damage. Any use is reasonable
with respect to a person who is not injured thereby.16 Several conse-
quences follow from this. For example, far fewer uses affecting the quan-

11. To be entirely accurate the statement in the text should be qualified by one
fairly insignificant exception: where the purpose is solely and maliciously to in-
jure another, the purpose is unreasonable. Taft v. Bridgeton Worsted Co., 237
Mass. 385, 130 N.E. 48 (1921); Tillson v. Cranebrook Co., 251 Mass. 337, 146 N.E.
671 (1925) (by implication).
12. Elliot v. Fitchburg R.R., 64 Mass. (10 Cush.) 191, 194 (1852).
13. The Elliot case, supra note 12, comes as close as any case to discussing
this question since the purpose there, water supply for locomotives, was non-
riparian. The view of this case seems to be that any use is reasonable which does
not violate statutory law.
14. Smith v. Agawam Canal Co., 84 Mass. (2 Allen) 355 (1861); Gould v. Boston
Duck Co., 79 Mass. (13 Gray) 442 (1859); Thurber v. Martin, 68 Mass. (2 Gray)
394 (1854).
15. MacNamara v. Taft, 196 Mass. 597, 83 N.E. 310 (1908); Newhall v. Ireson,
62 Mass. (8 Cush.) 595 (1851).
16. Stimson v. Inhabitants of Brookline, 197 Mass. 568, 83 N.E. 893 (1908) (by
implication).







LAW OF WATER ALLOCATION


tum of water will be unreasonable with respect to an upper riparian than
to a lower one. And thus the riparian owning both banks at the mouth of
the stream is singularly well situated; he may even abstract the entire
stream for the purpose of dealing with the water as a commodity.17
Where damage is shown, the inquiry must proceed further.18 Of clear
relevance to this inquiry are the characteristics of the stream-its volume
and gradient.19 Frequently, the extent and type of development of the sur-
rounding countryside, climatic conditions, the type of soil in the area will
bear on the reasonableness of the use in question.20 Another factor is the
state of the arts involved: specifically, whether the objectionable aspect
of the use might not be eliminated through various technological devices
without completely eliminating the use.21
Some early cases, perhaps reflecting the economic importance of mills
under the then existing conditions, did throw into the balance of judgment
the cost to the user of making the stream available for his purposes.22
More recently, however, Massachusetts courts have rejected arguments
urging the user's investment as a consideration.23 As the court stated in
Parker v. American Woolen, "Nor can an injunction properly be refused
on the ground of the magnitude of the defendant's interests and the impor-


17. This conclusion seems irrebuttable, but is not supported by the language of
the cases. Where the issue has been the riparian's right to abstract water and deal
with it as a commodity the courts have decided against the existence of the right,
Lynnfield v. Peabody, 219 Mass. 322, 106 N.E. 977 (1914); Moulton v. Newburyport
Water Co., 137 Mass. 163 (1884). In no case, however, did the riparian occupy the
position posited in the text.
18. Hinckley v. Nickerson, 117 Mass. 213 (1875).
19. See Corse v. Dexter, 202 Mass. 31, 88 N.E. 332 (1909); Drake v. Hamilton
Woolen Co., 99 Mass. 574 (1868); Cary v. Daniels, 49 Mass. (8 Metc.) 466 (1844).
20. See Mason v. Whitney, 193 Mass. 152, 78 N.E. 881 (1906); cf. Merrifield
v. Worcester, 110 Mass. 216 (1872); Springfield v. Harris, 86 Mass. (4 Allen) 494
(1862).
21. Compare Lyman v. Commissioners on Fisheries and Game, 211 Mass.
10, 97 N.E. 66 (1912), with Haskins v. Haskins, 75 Mass. (9 Gray) 390 (1857). Mac-
Namara v. Taft, 196 Mass. 597, 83 N.E. 310 (1908); Parker v. American Woolen
Co., 195 Mass. 591, 81 N.E. 468 (1907).
22. Cook v. Hull, 20 Mass. (3 Pick.) 269 (1825); Colburn v. Richards, 13 Mass.
420 (1816).
23. Parker v. American Woolen Co., 195 Mass. 591, 81 N.E. 468, 584 (1907).
See MacNamara v. Taft, 196 Mass. 597, 83 N.E. 310 (1908) where the record (Trial
Judge's report) on appeal contained the following finding "if material": plaintiff's
farm was valued at about $1000; she kept three cows and cultivated part; defend-
ant's mill, worth about $40,000, produced $200,000 worth of goods annually and
employed about sixty persons. No reference is made to these facts in the upper
court's opinion.







MASSACHUSETTS WATER LAW


tance of its business."24 The later view, in the opinion of some, may be
more in accord with democratic ideals of equal justice for rich and for
poor, but it also encourages, or at least makes possible, legal blackmail.25
Moreover, it may be that the magnitude of the user's investment is a re-
flection of the economic value to society of his enterprise- certainly a
factor which ought not to be put out of the sight of the court where the
substantive law is after all a rule of reason. In so uncertain an area as
water law, an "always" or "never" approach serves little purpose, and
there would seem to be no reason why cost should not be given weight un-
der some circumstances and not under others.
A last factor, of most uncertain weight in determining when a water
use is "reasonable," is public policy-the interest of the community in
contradistinction to the interests of the litigants. An occasional court has
given this as a ground of its decision.26 The great bulk of cases, however,
have been decided without any explicit consideration of anything but the
immediate conflict. Since in these cases the issue can never be stated
simply as the public versus the private interests, and since opinions will
frequently differ as to the result in any given case most conducive to com-
munity well-being, it is almost impossible to tell whether the court gave
unvoiced consideration to public interest or considered it immaterial to
the proper resolution of a private dispute.27


24. Supra note 23 at 602, 81 N.E. at 470.
25. See, e.g., Manning v. Woodlawn Cemetery, 245 Mass. 250, 139 N.E. (1923)
and 249 Mass. 281, 144 N.E. 99(1924). The Cemetery had constructed an expensive
system of drains which discharged onto Manning's property. Manning having recov-
ered damages was apparently trying to force the Cemetery to pay an exorbitant
amount for an easement, and backing up the demand with a suit (successful) for an
injunction.
26. For example, in Drake v. Hamilton Woolen Co., 99 Mass. 574, 580 (1868)
the court conceded that its view might permit some injury to be inflicted on the
plaintiff but justified its interpretation of the rights of riparian proprietors as
tending "to promote the interests of the public, because it enables the owners of
water power .... property of great value to the public, to avail themselves of it
to the utmost extent that can be deemed reasonable." See also Tourtellot v. Phelps.
70 Mass. (4 Gray) 370 (1855).
27. MacNamara v. Taft, 196 Mass. 597, 83 N.E. 310 (1908) is interesting in this
connection.
Defendant operated a textile mill providing employment for about 60 persons.
In the process of manufacture, certain chemicals were discharged into the water.
Plaintiff obtained, not merely damage, but an injunction on the ground that the
water was so polluted that her three cows refused to drink it. The court did not
even mention these facts or any possible public interest in the dispute. The court
did note, perhaps significantly, that the defendant, had not made out a case of pol-
lution necessarily resulting from a "reasonable use" (here apparently used in the







LAW OF WATER ALLOCATION


In one area, however, public policy has been a force shaping the devel-
opment of the law. The area is that of utilization of stream current for
power, which, if the subject matter of the cases is any barometer at all,
is (or was) by far its most important use. It is also the one area concern-
ing which there has been significant legislation.
The Mill Acts. The innumerable mill sites located on the streams
crisscrossing Massachusetts were early recognized as a potential source
of great wealth.8 Their economic utilization, however, frequently required
an increase in the natural head and fall and the seasonal equalization of
stream flow. Where sites were located close together, this meant that
utilization of one site might interfere with the subsequent utilization of a
neighboring mill privilege, possibly subjecting the user to legal action and
liability. It meant also that the first comer's investment might become
merely an element of damages in a lawsuit if the operation of his own
wheel were, in turn, interfered with by exercise of the privilege above or
below him.29
The legislature resolved this problem by enacting the Mill Acts.30 These
authorized the erection of mill dams on and across non-navigable streams pro-
vided they did not injure already existing mills. In place of the common law

sense of "lawful and beneficial",) though possibly one of convenience and profit.
Compare, on this point, Sturtevantv. Ford. 280 Mass. 303, 182 N.E. 560 (1932).
Plaintiff Sturtevant was apparently something of an esthete and to gratify himself
had created a country residence having as a central feature the brook in question.
Defendant was "engaged in a development of semiphilanthropic nature of public
interest and benefit"; he had acquired an historic inn and large grounds which
served cultural and educational ends. While an injunction issued in this case also,
the court's statement of the facts indicates an awareness of the public interest which
seems lacking in the MacNamara opinion. It should be noted, moreover, that the appel-
late court in Sturtevant modified the decree of the lower court so as to apply to only
one of defendant's several reservoirs and that that particular reservoir was used
only for storage and had a high percentage of leakage into an adjoining watershed.
28. Legislation relating to the use of stream current for power is said to have
originated with the provincial act, 13 Anne, passed in 1714 (Ancient Laws and Char-
ters, 404) cited in Elliot v. Fitchburg R.R., 64 Mass. (10 Cush.) 191, 198 (1852).
29. Blackstone Mfg. Co. v. Blackstone, 200 Mass. 82, 85 N.E. 880 (1908).
30. Erection of Mill and Dam.--A person may, as hereinafter provided, erect
and maintain a water mill and a dam to raise water for working it, upon and across
any stream not navigable. Mass. Ann. Laws c. 253, 1 (1933).
Dam Not to Injure Existing Mill, etc. -- Such dam shall not be erected to the
injury of a mill lawfully existing above or below it on the same stream. .on which
a mill or mill dam has been lawfully erected and used, unless the right to main-
tain a mill on such last mentioned site has been lost by abandonment or otherwise;
nor shall a mill be erected or raised to the injury of any such mill site which has
been occupied as such by the owner thereof, if, within reasonable time after com-
mencing such occupation he completes and puts in operation, a mill for the work-







MASSACHUSETTS WATER LAW 9

rights of action of the owner whose land was flowed or otherwise damaged,
the Act substituted a special proceeding for the assessment of damages.31
As construed by a cooperative judiciary, the Mill Act also gave an
exclusive right to water to the extent actually appropriated for mill pur-
poses.32 The resulting amalgam of statutory prior appropriation and com-
mon law reasonable use both served the same dominant end of encouraging
maximum development of stream power. Thus, a prior appropriator was
not given protection against every injurious use of another mill owner, but
only against a use which would be injurious at the ordinary stage of the
stream.33 To the extent of his appropriation at this stage, however, he was
protected against any action for setting back the water on an upper wheel34
and also against interference by back flow from a lower wheel.35
Reasonable use remains the test for questions involving manner of utili-
zation. A recurring cause of contention has been the alteration of the
stream flow.36 For even in the second half of the nineteenth century when
the bulk of mill cases were decided, industry required a flow greater than
the natural flow of many streams. The deficiency was frequently alleviated
by storing water during non-working hours which would be let down during
the hours the mill was in operation. Conflict arose when the upper privi-
lege was operated at night, and the lower one, lacking substantial storage
facilities, by day. After a period of indecisiveness mill operators were,

ing of which the water of such stream is applied. Mass. Ann. Laws c. 253, 2
(1933). See also 4, 19, 20.
31. Similar authorization is contained in Mass. Ann. Laws c. 253, 39 (1933) for
the erection of dams for cranberry cultivation and in 41 for dams for ice ponds.
32. "First appropriator" within meaning of the Mill Act is not necessarily the
first to complete, but rather the one who first "appropriates" a site to be used in
connection with water power provided he completes construction within a reason-
able time thereafter. At first blush the Mill Acts might seem a taking of property
by the exercise of a private power of eminent domain. The courts, however, have
held them to be rather regulation of the exercise of common rights for common
good. Blackstone Mfg. Co. v. Blackstone, 200 Mass. 82, 85 N.E. 880 (1908). The
constitutionality of the Acts has been sustained against attack in Lowell. Otis Co.
v. Ludlow Mfg. Co., 186 Mass. 89, 70 N.E. 1009 (1904), aff'd as modified, 201 U.S.
140 (1906).
33. Hinckley v. Nickerson, 117 Mass. 213 (1875); Drake v. Hamilton Woolen
Co., 99 Mass. 574 (1868); Smith v. Agawam Canal Co., 84 Mass. (2 Allen)
355 (1861).
34. See Hatch v. Dwight, 17 Mass. 289 (1821); Gould v. Boston Duck Co., 79
Mass. (13 Gray) 442 (1859).
35. Hatch v. Dwight, supra note 34; Hodges v. Raymond, 9 Mass. 316 (1812).
36. Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 24 N.E. 774 (1890) (inad-
equate flow at some times and excessive flow at others); Hinckley v. Nickerson,
117 Mass. 213 (1875) (exclusive appropriation of water for several days; both plain-
tiff and defendant used the water to Irrigate and flow land for cranberries, as well







LAW OF WATER ALLOCATION


about the turn of the century, beginning to be accorded greater latitude on
this score.37 Thus, in these cases, the judiciary engrafted on the bare
bones of the statutory scheme various rules indigenous to the riparian doc-
trine of reasonable use, and gave the whole a modern twist in decisions
holding that hydroelectric plants were "mills" within the meaning of the
Mill Acts,38 which paralleled the increasing use of water power for the
generation of electricity. This illustrates the flexibility of this common
law rule and its consequent ability to keep pace with technological prog-
ress.
The watershed definition. Rights under the Mill Acts are confined to
the erection of a mill dam on the same stream as the mill itself is located.3
It necessarily follows that the exercise of the statutory rights cannot tran-
scend watershed boundaries.
This legislative limitation would seem to achieve the same public pol-
icy as the watershed concept applied by the judiciary. Case law seemed
to be moving in the contrary direction when, in Elliot v. Fitchburg R,R.,40 it
was held that no action lay for the diversion of water for use in defendant's
locomotives-a use which obviously did not permit of any significant re-
turn of the abstracted water to the stream. No distinction was drawn be-
tween diversion for use on the riparian estate, as in manufacturing, and
diversion for use off the estate, as was in fact the case. No distinction
was drawn among (1) diversion for a use on the riparian estate which per-
mits the return of substantially all the diverted water to the stream, as,
for example, the operation of boilers or washing, in the process of manu-
facturing; (2) diversion for a use on the riparian estate which does not
permit the return of any substantial portion of the diverted water to the
stream, as, for example, where water is used as the ingredient of a prod-
uct, or as is presumably the case in supplemental irrigation; and (3) di-
version for an immediate use outside the riparian estate, as, for example,
the instant case where the water was carried outside the watershed in de-
fendant's locomotives. The proposition laid down by the court, without dis-
cussion of the place of use, was that the riparian's right of reasonable use
included any otherwise lawful and beneficial use which did not damage any

as for mill power); Drake v. Hamilton Woolen Co., 99 Mass. 574 (1868) (seasonal
alteration of natural flow); Pitts v. Lancaster Mills, 54 Mass. (13 Mete.) 156 (1847)
(retention of entire flow for time it took to fill pond -- necessary to prevent damage
to new dam).
37. Compare Mason v. Whitney, 193 Mass. 152, 78 N.E. 881 (1906), with Barrett
v. Parsons, 64 Mass. (10 Cush.) 367 (1852).
38. Duncan v. New England Power Co., 225 Mass. 155, 113 N.E. 781 (1916); Otis
Co. v. Ludlow Mfg. Co., 186 Mass. 89, 70 N.E. 1009 (1904), aff'd as modified, 201
U.S. 140 (1906).
39. Bates v. Weymouth Iron Co., 62 Mass. (8 Cush.) 548 (1851); Mass. Ann. Laws
c. 253, 81 (1933); cf. Potter v. Howe, 141 Mass. 357, 6 N.E. 233 (1886).
40. 64 Mass. (10 Cush.) 191 (1852).







MASSACHUSETTS WATER LAW


other riparian. From this, it may be inferred that in the Elliot court's
view, despite its qualification with respect to "actual and perceptible dam-
age," such damage might be non-actionable.
Stratton v. Mt. Hermon Boys' School,4 however, interpreted Elliot as
deciding only that use outside the watershed was not actionable in the ab-
sence of "damage." Stratton thus ignores the fact that had the use in Elliot
been held unreasonable, then unless de minimis, it would by the same token
have constituted legal injury because the manner of taking employed by the
defendant could have potentially ripened into ownership under the prescrip-
tive rights doctrine. The Stratton court, in a carefully considered dictum,
adopted the view that the privilege of reasonable use was confined to use
within the watershed. This limitation, the court stated, is:

implied in the term 'riparian.' It arises from the natural incidents of running
water. A brook or river, so far as concerns surface indications, is inseparably
connected with its watershed and owes the volume of current to its area. A
definite and fixed channel is part of the conception of a watercourse. To divert
a substantial portion of its flow is the creation of a new and different channel,
which to that extent defeats the reasonable and natural expectations of the own-
ers lower down on the old channel ... [and] also increases [the flow] which
drains the watershed into which the diversion is made, and may injure thereby
riparian rights upon it.42

The basis of the limitation-to-the-watershed rule then is two-fold in
this court's view: protection of riparians in the first watershed from dim-
inution in flow and protection of those in the other from augmentation. This
may, to be sure, be reasonable in the example the court itself gives-diver-
sion of a watercourse. But will this be extended to other types of uses, to
manufacturing, for example, where water from the shed in which a factory
is located is included in a product ultimately distributed to and consumed
in many areas of the country?
But whatever the court in Stratton had in mind, either in distinguishing
Elliot or as the basis for its own holding, Elliot was not overruled, nor
even expressly disapproved. For the moment at any rate, it still stands as
good law. Such indications as there are, however, have seriously undercut
it. The limitation enunciated in the Stratton cases by way of dictum, has
been since cited with approval, although it has not yet attained the dignity
of holding. Thus while it seems probable that the Massachusetts courts
would today follow the 1913 dictum that land outside the watershed is non-
riparian-at least in the case of a diversion for immediate use outside the
watershed-they could decline to do so without having to overrule them-
selves. This would mean a return to the "normal" rule of reasonableness,
with return to the watershed one of the factors to be taken into account.

41. 216 Mass. 83, 103 N.E. 87 (1913).
42. Stratton v. Mt. Hermon Boys' School, supra note 41 at 86, 103 N.E. at 88.







LAW OF WATER ALLOCATION


Navigable streams. The rights of riparians on navigable streams are
subject to certain special rules.4 The present law of Massachusetts is
that the title to the bed of such streams is in the state"which also has a
paramount interest in the water.5 One consequence is that the owners of
the banks may not interfere with navigation4-an important limitation, in
the past at least when damming was often necessary to make the current
of the stream suitable for powering a mill.47 Another is that although the
riparian can avail himself of the water for any use consistent with navi-
gation,8 an act of government depriving him of such use does not give
rise to a claim for compensation.
The rights of riparians on non-navigable watercourses are somewhat
similarly restricted where the stream on which they are located is the
outlet of a "great pond." By the Ordinance of 1641-47,49 these bodies of
waters, i.e., ponds having an area of more than 10 acres, were reserved
to the public.50 In Watuppa Reservoir v. Fall Rivers1 a divided court held

43. A navigable stream is one in which the tide ebbs and flows and which is in
fact capable of being navigated to any useful purpose. Brosnan v. Gage, 240 Mass.
113, 133 N.E. 622 (1921); Commonwealth v. Charlestown, 18 Mass. 1(1 Pick.) 180
(1822). Attorney Gen. v. Woods, 108 Mass. 436 (1871).
44. Home for Aged Women v. Commonwealth, 202 Mass. 422, 89 N.E. 124 (1909).
45. The state's interest in navigation is clearly paramount, and it has been sug-
gested its interest in any useful purpose also prevails in case of conflict. See Home
for Aged Women v. Commonwealth, 202 Mass. 422, 89 N.E. 124 (1909).
46. Commonwealth v. Charlestown, 18 Mass. (1 Pick.) 180,(1822).
Another consequence is that the right to gather ice and to fish in front of his
premises is a common right, rather than an exclusive one. Brosnan v. Gage, 240
Mass. 113, 133 N.E. 622 (1921).
47. Attorney Gen. v. Woods, 108 Mass. 436 (1871).
48. Lawrence v. Fairhaven, 71 Mass. (5 Gray) 110 (1855).
49. The Colonial Laws of Massachusetts, Reprinted from the Edition of 1660,
with Supplements to 1672 containing also the Body of Liberties of 1641. Published
by order of the City Council of Boston, under the supervision of William H. Whit-
more, Record Commissioner. Boston, 1889, at p. 170. Ordinance of 1641, 1647.
The Ordinance cited in the text is also contained in: The Book of the General Lawes
and Libertyes concerning the Inhabitants of the Massachusets, collected out of the
the Records of the General Court, for the Several Years Wherein they were made
and Established. And now Revised by the same Court, and disposed into alphabeti-
cal order, and published by the same Authority in the General Court holden at Bos-
ton, in May 1649. Printed according to order of the General Court, Ordinance of
1641, 1647, at p. 56. Cambridge, 1660.
50. The Ordinance applies only to those ponds which had not already been made
the subjectof a grant to private persons. But only two such grants appear to have
been made, and both have since been taken by eminent domain..
If the pond had been granted to a town, it retains legal title, but the rights of the
public are not affected thereby. See Attorney Gen. v. Revere Copper Co., 152 Mass.
444, 25 N.E. 605 (1890).







MASSACHUSETTS WATER LAW


that the state does not have to compensate owners riparian to an outlet
stream for the injurious effect on the stream resulting from a use of the
water in the pond, e.g., distribution for domestic purposes.52
The Ordinance of 1641-47 also reserved to the people of Massachusetts
the right to fish in and fowl on the waters of great ponds. This has been
construed to confer a right to any use to which the water is capable of be-
ing put.53 This right is, therefore, by grace of judicial expansions, a dy-
namic one which gains new content as science discovers new uses for
water. The owner of land abutting a great pond may probably use the wa-
ter for any purpose to which it is capable of being put. This right accrues
to him not as an owner of land, however, but simply as a member of the
public,5" though doubtless made more valuable by the certain and conven-
ient access secured to him by the land.55 By regulation, however, he may
be prohibited from using the water for any or all purposes.56
The owner of land abutting a pond which is not a great pond is to all in-
tents and purposes treated as riparian. If the pond is not the source of a
stream and all of the surrounding land is owned by a single person, he may

51. 147 Mass. 548, 18 N.E. 465 (1888), reargued on original and new facts, 154
Mass. 305, 28 N.E. 257 (1891).
52. More often, however, the legislature voluntarily undertakes to compensate
those economically, if not legally, injured. See, e.g., Dodge v. Rockport, 199 Mass.
274, 85 N.E. 172 (1908).
53. Sprague v. Minon, 195 Mass. 581 (1907). See Slatter v. Gunn. 170 Mass.
509, 49 N.E. 1017 (1898); West Roxbury v. Stoddard, 89 Mass. (7 Allen) 158 (1863).
54. Slater v. Gunn, supra note 53; Watuppa Reservoir v. Fall River, 147 Mass.
548, 18 N.E. 465 (1888).
55. This value is not, however, property in the constitutional sense. Cf. Home
for Aged Women v. Commonwealth, 202 Mass. 422, 89 N.E. 124 (1909). A statutory
procedure, on petition of 10 citizens, is provided for the acquisition of a public way
to make a great pond accessible. Mass. Ann. Laws c. 91 818A (1954).
In 1647 the Ordinance was amended to provide for public access to the great
ponds: it authorized persons to "pass and repass on foot through any man's prop-
erty for that end, so they trespass not upon any man's corn or meadow." Slater v.
Gunn, 170 Mass. 509, 514, 49 N.E. 1017, 1020 (1898), states that this provision was
adopted to conditions no longer prevailing, public means of access having multiplied
and land having become more valuable. That case therefore permitted a verdict
based on trespass to stand, though leaving open the possibility that the Ordinance
still has vitality as to fishermen and hunters.
56. E.g., Sprague v. Minon, 195 Mass. 581, 81 N.E. 284 (1907); Watuppa Res-
ervoir v. Fall River, 147 Mass. 548, 18 N.E. 465 (1888); Para Rubber-Shoe Co. v.
Boston, 139 Mass. 155, 29 N.E. 544 (1885). The exclusion need not apply to the en-
tire public; it may take the form of an exclusive grant to one person. Fay v. Salem
and Danvers Aqueduct Co., 111 Mass. 27 (1872).
If the water is neither a great pond nor a navigable stream, the owner of abut-
tingland must be compensated for any use of which he is deprived by government
unless the deprivation is necessary to abate a declared public nuisance, see Stevens







LAW OF WATER ALLOCATION


deal with it as his absolute property.57 If others own land abutting the pond
or stream whose source it is, then he must have regard to the rights of
these others to precisely the same extent as if his land abutted a stream."

Effect of Proposed Bill
If a possible reading of the proposed bill is that existing rights are to
be unaffected by the enactment, the bill would be limited to a codification
of present substantive law. It seems more likely that the bill was intended
to make law, and as has already been pointed out above, enactment of a
similar bill in Massachusetts would change rather than merely declare it.
If so, section two is an obeisance to constitutional provisions for the pro-
tection of "property." The property protected under the Act, however, is
limited-presumably in the interests of removing the financial obstacle to
the enactment of the bill. For example, consider the situation of a riparian
who purchased his property at a price reflecting the potential value of un-
derdeveloped water rights, who has not yet exercised his water rights, and
who planned to do so in the future for a purpose not included within Class
A. Such a riparian will discover (unless he succeeds in obtaining a li-
cense to appropriate) that the new bill frustrates his plans without compen-
sating him therefore.
Because of the proposed definition of "riparian" land, the bill would
tend to limit the number of claimants to Class A rights. Those who did
come within the class would retain substantially the same rights as now
with respect to use for all Class A purposes except power. As far as can
be seen from the cases, however, of these purposes, only power is really
significant. And as to it, this provision of the Michigan Act, assuming a
similar one is adopted in Massachusetts, would seem to introduce into the
law all the uncertainty that was eliminated by the enactment of the Mill
Acts. It would seem preferable to take power out of Class A; as a Class B
or appropriative right, it would have approximately the same content as
now, except that it would not necessarily be limited to riparian land.
The approach taken with Class B and appropriative rights is as good or
bad as the instrumentality chosen to administer the law. The guides pre-
scribed for administrative decision are vague, perhaps necessarily so;

v. Worcester, 219 Mass. 128, 106 N.E. 587 (1914), or other exercise of the police
power, Sprague v. Minon, supra. The distinction is generally phrased in terms of
sovereign versus police power, the latter being defined as acts to protect the pub-
lic health and safety.
The owner littoral to a great pond may recover for injuries sustained by reason
of the acts of an individual, provided he can establish special damage. Potter v.
Howe, 141 Mass. 357, 6 N.E. 233 (1886). Absent such special damage, the sole rem-
edy is by indictment. West Roxbury v. Stoddard, 89 Mass. (7 Allen) 158 (1863).,
57. See Watuppa Reservoir v. Fall River, 147 Mass. 548, 18 N.E. 465 (1888)
(dictum).
58. Lynnfield v. Peabody, 219 Mass. 322, 106 N.E. 977 (1914).







MASSACHUSETTS WATER LAW


such as they are they necessitate no departure from "reasonable use."
But at least as to appropriative rights, the determination of reasonableness
is made before the existence of conflict. Moreover, the holders of Class B
and appropriative rights are given as much certainty of the continuance of
their supply as the nature of the resource allows.
A possible change of considerable significance would be brought about
if licenses are liberally granted for the exercise of appropriative rights
on non-riparian land. The absence of litigation testing the limitation on
use of water imposed by the watershed concept would seem to indicate that
use outside the watershed is impracticable for other than legal reasons,59
or that such use does not injure other riparians. In either case, the cor-
rect inference seems to be that the limitation is not extremely onerous.
Nevertheless, no reason of universal application seems to require that
Suse outside the watershed be permitted only if no riparian is injured
thereby. Hence, assuming a conscientious administration having the ex-
pertise such a specialized agency may be expected to acquire in time,
there is reason to believe any change in the direction of increased non-
riparian use would be for the better.

Water and Watercourse

Section 3. DEFINITIONS.
1) The terms "water" or "waters" shall be deemed to refer to any waters,
standing or flowing, in any natural watercourse, lake or pond on the surface
of the ground.
2) The term "watercourse" shall be deemed to refer to a definite natural
stream in a definite natural channel, originating from a definite source or
sources of supply.

SPresent Law
A core concept in Massachusetts water law is the "natural water-
course." This serves to distinguish, on the one hand, a flow of water ow-
ing its existence to nature from one owing its existence to man, and on the
other hand, water which is a watercourse from diffused surface water.
"Natural" in this context has never been formally defined by the courts.
But it seems clear that this status is not lost by the widening and deepen-
ing of an original, natural depression,60 nor by the laying of an artificial
culvert of conduit in the original channel.61 Even a watercourse whose
channel was entirely created by man, rather than nature, may be found to


59. See Amory v. Commonwealth, 321 Mass. 240, 254, 72 N.E. 2d 549, 558 (1947)
(semble).
60. DiNardo v. DoVidio, 312 Mass. 398, 45 N.E. 2d 269 (1942).
61. Fitzgerald v. Fortier, 292 Mass. 268, 198 N.E. 167 (1935).







LAW OF WATER ALLOCATION


be natural.62 In Stimson v. Brookline63 which so held, the court suggested
that the status might attach immediately to a watercourse made by a pub-
lic authority and should certainly do so after twenty or more years of un-
changed existence and of acquiescence by all interested parties.64 Where
acquiescence is lacking, the watercourse may nevertheless be held to be
"natural" by prescription or adverse user.65 And, for some purposes at
least, an artificial watercourse may become natural by contract. But
"natural" has created relatively few problems; greater difficulty has been
encountered in delimiting "watercourse."
All Massachusetts courts defining watercourse have included in their
definitions the elements of (1) a stream of water, (2) flowing usually in a
(3) well-defined channel having sides or banks.66 Other elements frequent-
ly included are permanency of source,67 discharge into some other body of
water,68 and ascertainable direction of flov..69 There is general agreement,
too, that, to be a watercourse, the channel of the stream does not have to
be long or wide,70 and may even be dry periodically.71 Neither this nor any
definition can draw a sharp line where nature has not. And while the legal


62. Dodge v. Rockfort, 199 Mass. 85 N.E. 172 (1908); Stimson v. Brookline, 197
Mass. 568, 83 N.E. 893 (1908); Clinton Gaslight Co. v. Fuller, 170 Mass. 82, 48 N.E.
1024 (1898). In the Stimson case, both ends of the artificial ditch connected with the
Charles River and apparently carried a substantial part of the flow of that river.
63. 197 Mass. 568, 83 N.E. 893 (1908).
64. The court also stated the jury might find the ditch was, in legal contem-
plation, natural "if the flow of water for many years, was such as would con-
stitute it a natural water course... if the flow had begun without artificial aid .. ."
Stimson v. Brookline, supra note 63 at 571, 83 N.E. at 895.
65. Babbitt v. Safety Fund Nat'l Bank, 169 Mass. 361, 47 N.E. 1018 (1897). The
defendant Bank's estate was subject to an easement for the flow of the raceway of
a mill. The raceway became obstructed causing the water to back up and flooded
the cellar of plaintiff, whose property lay alongside the raceway. Plaintiff was not
privy to the agreement and it is very doubtful whether, on the facts of this case, he
would have succeeded had he asserted a different claim, e.g., a right to use the flow.
66. Yaskill v. Thibault, 273 Mass. 266, 173 N.E. 504 (1930); Ashley v. Wolcott,
65 Mass. (11 Cush.) 192 (1853).
67. Yaskill v. Thibault, supra note 66.
68. Luther v. Winnsimmet Co., 63 Mass. (9 Cush.) 171 (1851).
69. Town of Holliston v. Holliston Water Co., 306 Mass. 17, 27N.E. 2d 194 (1940);
Ashley v. Wolcott, 65 Mass. (11 Cush.) 192 (1853).
70. Peck v. Clark, 142 Mass. 436, 8 N.E. 335 (1886) (stream was short, disap-
pearing from time to time and 3 inches wide at its widest). But cf. Nealley v. Brad-
ford, 145 Mass. 561, 14 N.E. 652 (1888) (stream entirely within highway treated as
surface water).
71. Yaskill v. Thibault, 273 Mass. 266, 173 N.E. 504 (1930) (during dry season,
3 to 6 months each year, no water flows); Ashley v. Wolcott, 65 Mass. (11 Cush.)
192 (1853).







MASSACHUSETTS WATER LAW


definition accords with the popular description of a stream, as a test it is
met only in the clear case. Not this, but the borderline case, the disput-
able-and disputed--case is litigated. The courts have held to be water-
courses a stream whose origin was found to be surface water,72 and water
which for part of its course spread out over a considerable area without
apparent banks.73 The explicit ground of decision is generally that the body
of water as a whole has the requisite characteristics, though lacking one or
more at the locus in quo.
Although not verbalized, the court at times appears to have applied, in
conjunction with the physical tests, a variant of the reasonable use test.
For example, in Macomber v. Godfrey,74 the court agreed with plaintiff
that the water in question was a "watercourse" although before leaving de-
fendant's property, it spread out over the surface and, thus diffused, flowed
over the entire length of plaintiff's property. The court stressed the fact
that the water flowed in a well-defined channel before spreading out and
eventually converged again into a channelled flow. But the interference with
the flow was occasioned, not by defendant's improvement of his land, as is
frequently the case where diffused Surface water is involved, but by reason
of the total abstraction and utilization of the water as water in defendant's
brick business.
A possible reconciliation of the cases is that where the disputants both
desire to use the water, the court will tend to find a watercourse, whereas
if the conflict is between the right to improve land, as by building thereon
or filling it in, and the right to water, the bias of the court will be in favor
of the former and hence the court will tend to find mere diffused surface
water.75

Change in Law
The statutory definition is reminiscent of the language of the cases and
would probably be looked upon by the court as a codification of case law,
rather than a modification of it. The reiteration of the word "definite" in

S 72. Fitzgerald v. Fortier, 292 Mass. 268, 198 N.E. 167 (1935).
73. Fitzgerald v. Fortier, supra note 72; Yaskill v. Thibault, 273 Mass. 266, 173
N.E. 504 (1930); Macomber v. Godfrey, 108 Mass. 219 (1871).
74. Macomber v. Godfrey, supra note 73.
75. Fitzgerald v. Fortier, 292 Mass. 268, 198 N.E. 167 (1935), is not inconsistent
with this thesis. The injunction issuing upon the finding that the water in question
was a water course did restrain defendant in his use of his land. Plaintiff's con-
flicting use, however, also pertained to land.
A bias in favor of the development of land may serve also to explain the court's
refusal to hold the corruption of a stream by a surface drainage system was a
S legal injury. Brainard v. Newton, 154 Mass. 255, 27 N.E. 995 (1891). See also
Middlesex Co. V. McCue, 149 Mass. 103, 21 N.E. 230 (1889) which upheld a land-
owner's right to cultivate his soil though the manner in which it was done changed






18 LAW OF WATER ALLOCATION

the bill might, however, tend to result in less water being classified as a
watercourse than at present; the result of this, of course, would be to re-
strict the applicability of the Act.

Surface Water
Section 3. DEFINITIONS.

3) The term "diffused surface water "shall mean water occurring naturally
on the surface of the ground other than in watercourses or lakes or
ponds.

Present Law
Massachusetts courts do not seem to have formally defined dif-
fused surface waters, but simply cite instances of it-rain water and
melted snow-on the surface and also that held in damp and swampy
ground.76

Change in Law
For the most part, the negative, general approach of the statute and the
affirmative, particular approach of the present court decisions will reach
the same result. The advantage of the first approach is that by compre-
hending all water naturally on the earth's surface and not included within
the other specified categories, it brings all such water within the scope of
the Act. The danger is that it will throw into the unregulated class of sur-
face water a class of water which the legislature may have overlooked
rather than intended to be there and which, on principle, ought not to be
there. A case in point may be that of spring water issuing from the ground.7
Since not itself a stream in a "definite channel" nor a lake or pond, it fol-
lows that it would be classified under the proposed law as "diffused surface
water." This result seems innocuous enough where the water spreads out
over, and seeps into, the ground. But it seems clearly undesirable where
the spring is the source of a stream. There may be other waters which
should not be thrown unthinkingly into the category of diffused surface wa-
ters. The better view would therefore seem to be the recitation of illus-
trative instances and a general phrase which would permit the courts, by
applying the maxim of ejusdem generis, to similarly classify other simi-
lar instances.

its character and caused it to work into and fill the plaintiff's mill pond.
On the other hand, the Mill Act favors water development over that of land.
See supra pp. 8-9 at note 31.
76. Dickinson v. Worcester, 89 Mass. (7 Allen) 19 (1863).
77. Ashley v. Wolcott, 65 Mass. (11 Cush.) 192 (1853).





49r







MASSACHUSETTS WATER LAW


Riparian Land
Section 3. DEFINITIONS.



4) The term "riparian land" shall mean land lying (a) within the watershed
of a watercourse or lake, (b) contiguous to such watercourse or lake,
and (c) consisting of the smallest tract held under one title in the chain
of title leading to the current owner.

Present Law

Of the three elements in the proposed definition, one seems unknown to
present law, one a relatively recent innovation, and the remaining one the
definition implicit in the cases, extended to lakes as well as watercourses.
The Massachusetts courts have apparently never considered limiting
riparian land to the smallest unit held under one title. The statement of
facts ordinarily does not disclose whether or not the case is one in which
the argument could be urged; even when the facts are such that this seems
probable, the argument appears not to have been made.78 While the way is
thus clear for Massachusetts to incorporate this concept into riparian law
by judicial action, this seems highly unlikely.
The core concept of riparian land under Massachusetts case law is sim -
ply land abutting a watercourse.9 On to this, in 1913, there appears to have
been grafted the limiting concept of the watershed.80 Although the innovating
case involved use of water by a riparian owner on land outside the water-
Sshed and although the question was fully considered, it is nevertheless the
S fact that the limitation enunciated by that case was dictum.81 And though
since cited with approval,82 it has not yet attained the dignity of holding.
Thus while it seems probable that the Massachusetts courts today would
follow the 1913 dictum that land outside the watershed is non-riparian,
they could decline to do so without having to overrule themselves.
S Massachusetts courts speak of land abutting a lake or pond as littoral,
rather than riparian. The legal consequences are discussed above.83

78. A case in point is Sturtevant v. Ford, 280 Mass. 303, 182 N.E. 560 (1932),
which contains no indication of such argument although it would probably have been
relevant since defendant's property consisted of about 3,000 acres, acquired over a
period of time.
79. Weston v. Alden, 8 Mass. *136 (1811).
80. Stratton v. Mt. Hermon Boys' School, 216 Mass. 83, 103 N.E. 87 (1913).
81. This is pointed out by Professor R.R.B. Powell in Powell, Cases and Mate-
rials on the Law of Possessory Estates 423 N.14 (1943). Professor Powell regards
the statement as having more authority than is usually accorded dictum.
S 82. Sturtevant v. Ford, 280 Mass. 303, 306, 182 N.E. 560, 561 (1932).
S 83. See pp. 12-14.


~






LAW OF WATER ALLOCATION


Limitations upon Water Right

Section 5. LIMITATIONS UPON WATER RIGHT. The right to the beneficial
use of water shall not be deemed to include the right to use more water than is
necessary for reasonable beneficial purposes nor shall it include the right to
resort to unreasonable methods of diversion. No such right shall be deemed
valid unless the right to construct diversion works or reservoirs upon the land
required therefore shall have been acquired in a lawful manner, provided that the
term "acquired in a lawful manner" shall be deemed to include the acquisition
of such rights by adverse use and adverse possession.

Present Law
The Massachusetts statement of the rule of reasonable use requires,
often explicitly and always implicitly, that the quantum used be held to the
practicable minimum,84 and that the manner of diversion be such as to in-
flict the least possible injury on other riparians.85 But for any use to be
actionable by a riparian, it must actually injure him;86 injury, however,
does not insure the existence of a good cause of action.87
Thus a farmer who, owning only one cow, takes from a stream water
enough for ten is quite clearly abstracting an unreasonable amount if he
lets the surplus evaporate or otherwise wastes it. Whether or not a cause
of action accrues, (if the proportion of the amount withdrawn to the total
flow is such that the current is substantially diminished), depends upon
whether the user takes the water by some structure which controls the
water so abstracted. On these same facts a lower riparian who is a user
and injured would probably be permitted to recover as a matter of law, and
even a non-user lower riparian may maintain an action in order to prevent
the acquisition of prescriptive rights. He could also recover, again as a
matter of law, even if the amount abstracted were just sufficient for the use
to which it were to be put, if that use were outside the watershed.
Theoretically, the lower riparian who fails to assert his legal rights
loses them if the wrongful use continues for twenty years,88 under claim
of right,89 peaceably,90 and without interruption.91 For, given these ele-

84. Springfield v. Harris, 86 Mass. (4 Allen) 494 (1862).
85. Anthony v. Lapham, 22 Mass. (5Pick.) 175 (1827); cf. Lyman v. Commis-
sioners on Fisheries and Game, 211 Mass. 10, 97 N.E. 66 (1912); MacNamara v.
Taft, 196 Mass. 597, 83 N.E. 310 (1908).
86. Elliot v. Fitchburg R.R., 64 Mass. (10 Cush.) 191 (1852).
87. Peck v. Clark, 142 Mass. 436, 8 N.E. 335 (1886); Merrifield v. Worcester,
110 Mass. 216 (1872); Weston v. Alden, 8 Mass. *136 (1811).
88. The use need not be continuous, but there must be something more than spo-
radic use from time to time. New England Mica Co. v. Waltham Factories, Inc.,
301 Mass. 56, 16 N.E.2d 81 (1938); Pierce v. Travers, 97 Mass. 306 (1867).
89. Slater v. Gunn, 170 Mass. 509, 49 N.E. 1017 (1898); Johnson v. Jordan, 43
Mass. (2Metc.) 234 (1841); Summer v. Tileston, 24 Mass. (7 Pick.) 198 (1828).
90. Lawrence v. Fairhaven, 71 Mass. (5 Gray) 110 (1855).




I I







MASSACHUSETTS WATER LAW


ments, the law conclusively presumes a grant.92 In addition to thus enlarging
the quantum of his water rights by prescription, the riparian may, by acquir-
ing a prescriptive right in the land of a neighboring riparian, exercise those
rights more advantageously to himself.93 A prescriptive right, grant, or per-
mission, is for instance necessary should a riparian desire for any reason
to divert from some point on his neighbor's land, rather than on his own.
Practice accords well enough with theory, insofar as the common law
has not been modified by statute, when the right in question involves some
use of another's land.94 The cases involving an alleged paramount right
only to the use of water are, however, somewhat confused. In Thurber v.
Martin,95 plaintiff, a lower riparian, claimed, by virtue of 50 or 60 years'

91. Pierce v. Travers, 97 Mass. 306 (1867); Bolivar Mfg. Co. v. Neponset Mfg.
Co., 33 Mass. (16 Pick.) 241 (1834).
Since the use must be adverse, no easement is created by an owner's use of one
Part of his land for the benefit of another. Macomber v. Godfrey, 108 Mass. 219
(1871). Jasper v. Worcester Spinning & Finishing Co., 318 Mass. 752, 64 N.E.2d
(1945), while adopting this view, held that on the severance of either part an ease-
ment would be implied if there was nothing to the contrary in the deed or circum-
stances of this transaction.
92. Cf. Fortier v. H. P. Hood & Sons, Inc., 307 Mass. 292, 30 N.E.2d 253 (1940)
(the extent of the right thus acquired is measured by actual adverse use). Where
the claim is based on a dam, the measure is the "efficient height of the dam in its
ordinary action and operation." New England Mica Co. v. Waltham Factories, Inc.,
301 Mass. 56, 59, 16 N.E.2d 81, 83 (1938).
93. Bliss v. Rice, 34 Mass. (17 Pick.) 23 (1835).
94. E.g., Boston & M. R.R. v. Hunt, 210 Mass. 128, 96 N.E. 140 (1911); Bliss v.
Rice, supra note.93.
95. 68 Mass. (2 Gray) 394 (1854).
The first case of note is Weston v. Alden. It was argued there that a prescrip-
tive right had accrued in favor of a lower riparian owner. Plaintiff, a lower ripar-
ian, brought an action on the case alleging that defendant, by means of sluices and
for the purposes of irrigating his own close, had diverted an ancient watercourse
which had previously flowed through and irrigated plaintiff's land. The appellate
court reversed a judgement for plaintiff and granted a new trial holding that "plain-
tiff had no cause of action." The court brushed aside the damage suffered by plain-
tiff (substantially lower crop yield), stating that:
A man owning a close on an ancient brook may lawfully use the water thereof for
the purposes of husbandry, as watering his cattle or irrigating the close; and he
may do this, either by dipping water from the brook, and pouring it upon his land,
or by making small sluices for the same purpose; and if the owner of a close be-
low is injured thereby, it is damnum absque injura.
Implicit in this holding and its rationale are at least twopropositions. First,the
upper riparian's use was reasonable, and second, no prescriptive right had ac-
crued in favor of the lower riparian. The first must be true, or plaintiff would have
prevailed without regard to the issue of prescriptive right. As a riparian owner,
defendant had a right of reasonable use, but no more. The question involved in the
issue of prescriptive right is, rather, whether defendant had less. For it is alto-







22 LAW OF WATER ALLOCATION

enjoyment, a right to the natural flow of the stream, without any interrup-
tion or disturbance from defendant's mill located higher on the same
stream. Decision was for the defendant on the ground that plaintiff's pri-

gether apparent that a prescriptive right in the plaintiff would deprive defendant's
estate of a right it would have otherwise had. No other reason having been given to
deny plaintiff's claim to a prescriptive right in the flow of the former quantity of
water, the thrust of the court's holding that plaintiff had no cause of action is that
he had done nothing to infringe defendant's right. Plaintiff's use was not, in short
the sort of use that could give rise to a prescriptive right. He had done nothing
but consume water that flowed onto his land naturally from the upper riparian es-
tate. He had done nothing, as it were, to invade the upper riparian's estate.
Weston v. Alden was urged as authority by the plaintiff in Colburn v. Richards.
This was an action for trespass, alleging that the defendant had entered on plain-
tiff's land and removed an obstruction (probably dam gates) from the watercourse,
which flowed onto defendant's land after leaving plaintiff's. The defense was that
the act in question was permissible self-help, since defendant's grist mill, built 50
years earlier, was useless when the gates of plaintiff's dam, erected seven years
before, were shut. The court held for defendant, distinguishing Weston v. Alden. It
pointed out that there had been no obstruction of the flow of the stream, nor had
plaintiff in Weston "acquired a right by prescription to the use of the stream to carry
works which had been erected and maintained at expense; but he had merely enjoyed
the natural benefits of the stream, without any labor or expense of his own."
Colburn may thus rest on the clear:,unreasonableness (since well established by
a number of cases) of total obstruction of a stream or on the ground that defendant
had acquired prescriptive right in the flow of the stream. A factor which the court
did not omit to mention was defendant's great investment in his mill. This is just
the sort of consideration that would be particularly appropriate to a determination
of the reasonableness of the upper riparian's total obstruction. On the other hand,
however, the establishment of the lower mill may have been thought to constitute
the invasion of the upper riparian's estate and the appropriation of his water rights
necessary for a prescriptive right to begin to accrue.
This problem remained unresolved by the next case in this line, Cook v. Hull. That,
like Weston, was an action on the case for divertingwater, in this instance from plain-
tiff's mill, established more than 40 years before. Defendant had apparently an undis-
puted right to divert some water for irrigation, but in 1817 he had dug a new channel
which conveyed water so far through his lands as to diminish the quantity by absorp-
tion and evaporation. This injured and stopped plaintiff's mill. The upper riparian
urged the court to follow Weston. Plaintiff mill owner conceded that he must lose if
Weston was applied, but argued that it was no longer law, having been overruled sub
silent in Colburn v.Richards. The court rejected both views, adhering to the dis-
tinction drawn in Colburn and holding that Colburn, being more in point, must prevail.
With respect to Weston v. Alden, the Court stated that:
There plaintiff had not erected a mill, the injury complained of was only that
less water came through his land than used to flow before defendant made his
sluices, and the damage complained of was only the natural consequences of
the lawful use of the water by the defendant. It did not appear that the plain-
tiff or those before him in the estate had erected any works of art upon the







MASSACHUSETTS WATER LAW 23

ority of occupation gave him an exclusive right to the use of the water to
the extent occupied, but that not even 60 years' occupation could deprive
an upper riparian of his right of reasonable use. In two earlier cases,96
mill owners, one plaintiff and one defendant, successfully contended an in-
creased use of water for irrigation purposes by upper riparians was an
actionable interference with their prescriptive rights derrogating from
riparian ones adverse to them; it expressly declined to overrule an earli-
er case which held that since diversion for irrigation was a reasonable
use, the injury thereby dealt another irrigator was damnum absque injuria.7
The possible distinction of a preference for millers as against farmers is
without verbal support, in fact without any support other than that which
the facts of these cases afford.98
stream, or had appropriated the water running through his land by any arti-
ficial means. Whereas plaintiff (in the instant case), and those whose estate
he holds, had erected and maintained mills at great expense, and they could
be profitably used only by enjoying the customary flow of the water, and this
use had been acquiesced in by the defendant... for more than forty years.
This language clearly imports that the lower riparian in Cook v. Hull had appropri-
ated the water running through his own land, and by so doing, had effectively appro-
priated rights of the upper riparian. Here, then, is apparently the clear case of a
prescriptive right running in favor of a lower riparian. But is it? The facts of the
case indicated a new and greatly augmented use by the upper riparian to the great
detriment of the lower riparian, whose large investment was rendered substantially
worthless thereby. And this is against the background of history of a smaller use
by the upper, the validity of which was not disputed. On its facts, the case is quite
consistentwith the hypothesis that the upper riparian's new use was in fact unreason-
able and that this was the proper groundof the decision. Moreover, the language of
the court, referring, as it does, to the lower riparian's appropriation of water on his
own land as the genesis of the prescriptive right seems somewhat beside the mark,
for it does not explain the manner in which plaintiff's utilization of the flow constitu-
ted an appropriation of defendant's right. This was the state of the law at the time
of the decision in Thurber v. Martin.
96. Cook v. Hull, 20 Mass. (3 Pick.) 269 (1825); Colburn v. Richards, 13 Mass.
420 (1816).
97. Weston v. Alden, 8 Mass. *136 (1811).
98. The confusion does not end with these cases. Elsewhere the court has held that
actions may be maintained though damage is merely nominal where there has been
Sa wrongful diversion. Ware v. Allen, 140 Mass. 513, 5 N.E. 629 (1886); Lund v. New
Bedford, 121 Mass. 286 (1876); Stowell v. Lincoln, 77 Mass. (11 Gray) 434 (1858). The
opinion in one such case distinguished between diversion through merely "transi-
tory acts" and through a permanent structure which "would interfere with the exer-
cise of the plaintiff's rights, whenever thereafter he sought to exercise them..."
Peck v. Clark, 142 Mass. 436,441, 8 N.E. 335, 338 (1886). But if the diverters com-
mitted a wrong, it was surely not in the erection of an aqueduct or conduit on their
own lands, but rather in attempting to enjoy greater rights in the water than the ri-
parian doctrine accords them. This they did, however, only if they injured other ri-
parians since in the absence of damage, no otherwise lawful use is unreasonable.






LAW OF WATER ALLOCATION


The judicial doctrine of prescription is generally inapplicable where
the riparian's unauthorized use of his neighbor's land consists in flowing
it; that is, creating a mill pond or reservoir by holding back the water by
means of a dam.9

Change in Law
Section 88 of the proposed law does not itself make any changes in sub-
stantive water laws, but rather reflects the changes which would be made
by other sections of the Act. "Water right" and "right to the beneficial use
of water" comprehend not only the riparian's right of use, but his right to
sell his rights in the water and the right of his purchaser to the use of the
water and, when this is viewed in conjunction with the second paragraph of
section 2 (Class B rights), it becomes clear that the limitations of quantity
and of method imposed by section 5 are precisely the same as to use on
non-riparian as on riparian land, and, seemingly, to use outside the water-
shed as inside it. This change, and also the impact of treating ponds and
watercourses as identical will be considered in greater detail below.
The intendment of the Act regarding adverse use is unclear. One pos-
sible reading of it is that prescriptive rights acquired on or before the
effective date of the act are protected, but that such rights may not be ac-
quired thereafter. Such a construction would have the advantage of widen-
ing the applicability of the Act without having to compensate individuals.
But this view would raise some impediments to the most efficient use of
water unless the officials administering the Act were given an additional
power. This power would be to determine the optimum point-without re-
gard to ownership of property-for diverting water for the particular pur-
pose and requiring the licensee to take his appropriation from that point.100
Absent such a provision, the preferable construction would be that no ces-
The circle is completed by holding that plaintiff-non-users' damage consists in the
prescriptive rights which may be acquired as against them. Newhallv. Ireson, 62
Mass.' (8 Cush.) 595 (1851); Bolivar Mfg. Co. v. Neponset Mfg. Co., 33 Mass. (16 Pick.)
241 (1834); cf. Parker v. American Woolen Co., 195 Mass. 591, 81 N.E. 468 (1907).
99. The proprietor's sole remedy under the statutes for flowing of, or other
injury to, this land is to petition for damages. The jury will then assess past dam-
age (the proceeding may be instituted any time within three years after first in-
jury), and future damage and, where put in issue, will determine the reasonable
height or heights for respondant's dam. Petitioner has three months in which to
elect to make gross damages for all future injury or an annual compensation.
Mass. Ann. Laws. c. 253 43, 4, 8, 9, 10 11, 13, 19 (1933).
100. An analogous provision is contained in Mass. Ann Laws c. 252, 15, (1933),
which provides as follows:
Roads to Swamps and Quarries.-A town or person owning low land, ponds, swamps
...which, on account of adjacent lands belonging to other persons or occupied as a
highway, cannot be approached, worked, cultivated, drained or used to advantage in
the ordinary manner without crossing such land or highway, may construct roads,
drains,...tunnels and railways thereto and, when the construction of such improve-






I







MASSACHUSETTS WATER LAW 25

station of acquisition by adverse use or possession was contemplated, the
sole function of the priviso being to qualify "lawful" without regard to time.
This section would, as it now stands, probably be construed to repeal by
implication the present statutory system of mill rights, at least insofar as
that system authorizes the erection of mill dams and provides an exclusive
Remedy for owners whose land is injured, primarily by flooding. As was
pointed out in Drake v. Hamilton Woolen Co.,101 this right becomes in-
creasingly significant for the maintenance of a utilizable stream flow as
swamp and other lands which served as natural reservoirs for streams
are made unavailable for that purpose by filling of the land, cultivating it,
or by other improvements.

Capture of Surface Water

Section 6. EXEMPTIONS. The provisions of this Act shall not apply to the im-
pounding, by an owner or lawful occupant of land, of diffused surface waters oc-
curring on such land for the purpose of using such waters on such land.

Present Law

Rights to surface water as a scarce resource appears never to have
Been the subject of litigation in Massachusetts. In fact, only in one case is
it clear that either party was utilizing the water as an economic good.102
Typically, the proper classification of the water will be an issue. One liti-
gant will have asserted a right to the free and unobstructed flow of water
onto his land or from it.103 His claim will be based on the contention that
Sthe flow is a watercourse to which he is riparian and will be opposed on
the ground that it is mere surface water, rather than a watercourse. That
Sthe battle is almost invariably pitched in the arena of fact, rather than law,
probably reflects the well-settled state of this body of law.
The black-letter law is that the owner of property may capture or im-
pound the surface water on his land. He may deal with it as his absolute
property without incurring liability to his neighbor for any injury resulting
from the latter's deprivation.104 He is not liable for any injury caused by
diffused surface water which flows from his land onto his neighbor's.l05
ments is required by public convenience and necessity, may take the land of such
other persons for the location of such improvements as hereinafter provided.
101. 99 Mass. 574 (1868).
102. See Mahoney v. Barrows, 240 Mass. 378, 134 N.E. 246 (1922) (surface
water collected and appropriated to cultivation of cranberries).
103. Fitzgerald v. Fortier, 292 Mass. 268, 198 N.E. 167 (1935); Maddock v.
Springfield, 281 Mass. 103, 183 N.E. 148 (1932) (S); Stimson v. Brookline, 197
,Mass. 568, 83 N.E. 893 (1908); Ashley v. Wolcott, 65 Mass. (11 Cush.) 192 (1853).
104. See Mahoney v. Barrows, supra note 102.
105. Maddock v. Springfield, 281 Mass. 103, 183 N.E. 148 (1932); Cassidy v.
Old Colony R.R., 141 Mass. 174 (1886).






26 LAW OF WATER ALLOCATION

This immunity persists though one proprietor, by changing the shape of
the watershed alters the flow of the water which, only as altered, damages
another.106 Where, however, a proprietor acts directly on the water (rath-
er than indirectly affecting it by some act done to the land) he will be lia-
ble for resulting injury.'7 Thus, if the water impounded for use should
escape onto the land of another,108 or should an owner accumulate the sur-
face water from his land in an artificial channel and discharge it onto the
land of another,109 that other may maintain an action. In the first case, it
will be immaterial to his right of recovery that the defendant exercised
due care,110 and in the latter case, it would seem to be immaterial that
the water if left in its natural, diffused state would from natural causes
have drained onto his land, and that the discharge caused no actual dam-
age."' One exception to liability for the discharge of accumulated water
exists: where the discharge is onto a natural watercourse which would
naturally have received it and which is capable of receiving it though the
volume and flow is thereby altered.112
One salient feature of these black-letter rules is that one rule only is
founded on the assumption that water is an asset. The remaining rules,
like the cases, seem to view this category of water as a liability, hamper-
ing the use or improvement of property. Here again, however, the possi-
bility broached above is pertinent; a new light is shed on these facts if in
the close case-the case which is litigated-the issue of watercourse or
surface water is resolved at least in part by the nature of the conflicting
interests.113
Noteworthy also is the almost complete absence in these rules of any
reference to the law of watercourses and of any relation between them.

106. In Maddock v. Springfield, supra note 105, defendant's land originally was
lower than plaintiff's. After defendant filled his land, water accumulated on the
back of his lot formed a small ice skating rink in the winter and in the spring
melted and, to plaintiff's damage, flowed onto his property. In this sort of situation,
plaintiff's remedy is to erect an obstruction to the entrance of the water. See also
Dickinson v. Worcester, 89 Mass. (7 Allen) 19 (1863).
107. Manning v. Woodlawn Cemetery Corp., 245 Mass. 250 (1923).
108. Mahoney v. Barrows, 240 Mass. 378, 134 N.E. 246 (1922).
109. E.g., Belcastro v. Norris, 261 Mass. 174, 158 N.E. 535 (1927); Manning v.
Woodlawn Cemetery Corp., 245 Mass. 250, 139 N.E. 830 (1923); Smith v. Faxon,
156 Mass. 589, 31 N.E. 687 (1892).
110. Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), followed in Mahoney v. Bar-
rows, 240 Mass. 378 (1922), appears to be the law of Massachusetts.
111. Manning v. Woodlawn Cemetery Corp., 245 Mass. 250 (1923), 249 Mass. 284
(1924) (semble); Curtis v. Eastern R.R., 96 Mass. (14 Allen) 55 (1867).
112. Bainard v. Newton, 154 Mass. 255, 27 N.E. 995 (1891); Jackman v.
Arlington Mills, 137 Mass. 277 (1884); Merrifield v. Worcester, 110 Mass. 216
(1872).
113. This is discussed at note 75 supra.












MASSACHUSETTS WATER LAW 27

An occasional opinion will evince an awareness of their close physical re-
lationship, but even these apparently find no great difficulty in perpetuating
the dichotomy between the physical and legal-which of course is not to say
that the results reached are necessarily wrong.114

Effect of Proposed Law

The sole effect of section 6 is no effect; the law of surface water
is left as it was and where it was. In this particular instance, having the
substance of the law untouched seems less serious than leaving its ad-
ministration in the hands of the court. This is not simply an invidious
comparison of courts and administrative agencies. The channeling of the
preponderance of water questions, problems, and disputes away from the
court and into an agency can be expected in time to produce a considerable
fund of expert knowledge, particularly as to factual matters, in the admin-
istrators, and an approximately corresponding diminution of such knowl-
edge among the judiciary. This growth and decline seems especially
significant in this area where the recurring question is one of fact. This
objection could be obviated in large part if the judiciary interprets the Act-
which would not require much straining-to contemplate the agency as the
primary tribunal, for the resolution of such factual questions at least. It
would seem preferable, however, to make this explicit in the statute rather
than leaving it to judicial self-restraint.

Appurtenant Water Rights
Section 21. APPURTENANCE OF WATER RIGHT. The right to the use of
water, whether vested as provided in Section 7, supra, or acquired after the ef-
fective date of this Act under the procedure provided herein, shall be appurte-
nant to the gross area of land to which the right relates and shall pass as an
S appurtenance with the title to such land; provided, that a Class B vested right or
an appropriative right may be reserved in express terms in any instrument by
which title to the land to which it is appurtenant is conveyed, or such water right
may be separately conveyed. If such a right is not mentioned specifically in an
S instrument by which the land is conveyed, the burden is upon the one who makes
the conveyance to prove, by a clear preponderance of the evidence, that the par-
ties did not intend that the water right should pass with title to the land.




114. Compare Drake v. Hamilton Woolen Co., 99 Mass. 574 (1868) which recog-
nizes that artificial reservoirs become more important as clearing, cultivation and
drainage of marsh and swamp lands destroy natural ones, with Middlesex Co. v.
McCue, 149 Mass. 103, 21 N.E. 230 (1889), which refuses to enjoin cultivation
changing the character of the soil and causing it to fill plaintiff's artificial reser-
voir.







28 LAW OF WATER ALLOCATION

Present Law
Massachusetts cases speak of the riparian's right to the use of the
streamflow as being an inseparable incident of his ownership of land.15
All that this apparently means is that specific mention in the instrument
of title is not a prerequisite to the existence of the right;116 and that the
burden of proof is on the one disputing its existence.17 The riparian can,
however, convey his water rights while retaining title to the land.118 In
such case, the grantee's right is measured by the grant rather than the
doctrine of riparian rights.119 The converse-conveyance of land reserv-
ing the water rights to the grantor-is equally permissible.120

Effect of Proposed Law
No substantive change in the present law would be effected as to those
rights which would be classified B rights by the proposed bill. But where-
as the present law permits the complete severance of riparian land from
riparian rights, the proposed bill would make Class A rights an inseparable
incident to the ownership of land. As in the case of vesting, this seems un-
important with respect to use for domestic purposes, and for fishing or
recreation. Again as in the case of vesting, this seems important and un-
wise with respect to power. This underlines the view stated earlier that
power should be changed from a Class A to a Class B or appropriative
right.

Abandonment of Water Right
Section 23. ABANDONMENT OF WATER RIGHT. (a) A Class B vested water
right provided for in Section 7, supra, or an appropriative water right acquired
under the provisions of this Act, shall cease upon the abandonment of the right.



115. Tourtellot v. Phelps, 70 Mass. (4 Gray) 370 (1855).
116. McGowen v. Carr. 272 Mass. 573, 172 N.E. 787 (1930).
117. McGowen v. Carr, 272 Mass. 573, 172 N.E. 787 (1930); Whitney v. Wheeler
Cotton Mills, 151 Mass. 396, 24 N.E. 774, 7L.R.A. 613 (1890).
118. Amory v. Commonwealth, 321 Mass. 240, 72 N.E. 2d 549 (1947); New
England Cotton Yarn Co. v. Laurel Lake Mills, 190 Mass. 48, 76 N.E. 231 (1906).
119. Holyoke Water Power Co. v. Whiting & Co., 276 Mass. 528, 177 N.E. 568
(1931); Tourtellot v. Phelps, 70 Mass. (4 Gray) 370 (1855). An agreement reap-
portioning right to use among several parties thereto will be enforced. Bardwell
v. Ames, 39 Mass. (22 Pick.) 333 (1839).
The issue is generally one of construction, whether a description in terms of a
particular mill was intended to limit the right to use for that mill or to a mill for
the same specific purpose, or merely to indicate the quantitative content of the
right. The latter construction is preferred. Bliss v. Rice, 34 Mass. (17 Pick.)
23 (1835).
120. See Hatch v. Dwight, 17 Mass. 289 (1821) (dictum).


I _







MASSACHUSETTS WATER LAW


(b) The abandonment of any such water right shall be evidenced as follows:
(1) Intent to abandon the use of water, whether expressly declared or
reasonably implied,from the acts of the user, accompanied by actual
cessation of the use of the water; or
(2) A continuous failure, for a period of five years, to effect a beneficial
4 use of the water, in which event the intent to abandon to the extent of
such failure shall be conclusively presumed; provided no intention to
abandon shall be presumed either where the available water supply is
inadequate to enable the holder of the right to exercise the beneficial
use of water contemplated thereunder, or, in the case of irrigation,
where due to climatic conditions irrigation is unnecessary during the
period of continuous failure to effect use of water.
(c) The abandonment of only a portion of a water right shall not impair the
validity of any portion not abandoned.
(d) The Commission, upon its own initiative if it has reason to believe that
a water right has been abandoned, or upon the petition of an interested.person
asserting circumstances reasonably indicating that a water right has been aban-
doned, which petition shall be verified under oath, may order the holder or
claimant of the water right to show cause why the right should not be declared
to have been abandoned. Notice of the time and place of the hearing shall be
given by registered mail (return receipt requested) to the holder or claimant of
the right and to the petitioner, if any. If at the conclusion of the hearing the
Commission finds that the right has been abandoned, the Commission shall file
a petition in the Circuit Court of the county in which the point of diversion or
the greatest area of land to which the right relates is located, in Chancery. The
petition shall pray the Court to find and declare the water right to have been
abandoned, and shall name the holder or claimant of the water right defendant.
The filing of the petition and of a certified transcript of the proceedings of the
Commission shall have the effect of the filing of a complaint in a civil action
with respect to the title to real property, and process shall be issued and pro-
ceedings taken in accordance with the procedure provided by law for such ac-
tions. The Court shall have jurisdiction to hear the matter and to issue a decree
based upon its findings. Appeal may be taken to the Supreme Court as in other
civil cases. In the event the decree shall declare the water right or any part
S thereof to have been abandoned, the Commission shall procure from the clerk
of the court a certified copy of such decree and shall enter the same upon the
record of such water right in its office. Provided, however, the provisions of
this subsection shall not limit the power of the Commission to cancel permits
S under the circumstances and procedure provided in subsections (b) and (c) of
Section 16, supra.

Present Law

The riparian may grant away his common law water rights or he may
suffer them to be encroached upon by adverse use-but he can no more
lose them by abandoning them than he can the title to the land itself.121

121. Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 24 N.E. 774 (1890).







30 LAW OF WATER ALLOCATION

His statutory rights under the Mill Acts are expressly made subject to
loss by abandonment,122 and the possibility has been recognized by those
courts which have had occasion to consider the question.123 The statute
does not, however, specify the acts which are to constitute abandonment;
the courts have phrased the requirements in such vague terms as unequiv-
ocal manifestation of intent. The implication that they will not be alert to
find abandonment is borne out by their refusal to so find on evidence of
nonuse for many years.124

Effect of Proposed Law
In general, the provision of the proposed bill would remedy defects in
the present law. In addition to abandonment by express or implied intent,
it specifies an objective criterion--5 years of continuous nonuse will gen-
erally terminate the right of use. Five years would certainly seem to be
long enough for anyone to play dog in the manger.
The flaw in this section of the proposed law again relates to the clas-
sification of rights. For the provisions for abandonment apply only to
Class B rights. The right to the use of water for power would thus not be
merely difficult to lose as under the present law, but would be impossible,
even theoretically.

Judicial Proceedings to Enforce Act
Section 28. JUDICIAL PROCEEDINGS TO ENFORCE ACT.


(b) Any person injured by any violation or threatened violation of this Act
(including, without limiting the foregoing, any use of water that impairs a valid
right of use of water) may institute a like proceeding to enjoin such violation or
threatened violation.
(c) In any suit authorized by subsections (a) and (b) of this Section, it shall
not be necessary for the plaintiff to allege or prove that there is no available
adequate remedy at law for such violation or threatened violation or failure to
comply.
Present Law
A riparian who is prevented from making reasonable use of the stream
by another's unreasonable riparian use or his non-riparian use whether
or not reasonable may recover compensatory damages.

122. Mass. Ann. Laws c. 253, 2 (1933).
123. See Hatch v. Dwight, 17 Mass. 289 (1821).
124. Clinton Gaslight Co. v. Fuller, 170 Mass. 82, 48 N.E. 1024 (1898) (19 years);
Eddy v. Chase, 140 Mass. 471, 5 N.E. 306 (1886) (even "for 20 years"). The judi-
cial reluctance can be seen quite clearly in Hatch v. Dwight, supra note 129, where
the court refused to find abandonment although the privilege had not been operated
for a long time and, in fact, the mill occupying the site had fallen into ruin.


_ _







MASSACHUSETTS WATER LAW


A SPECIAL NOTE ON GROUND WATER*

No definite statement of Massachusetts law of underground water is
possible at this time. Moreover, the development of this area of the law
has been such that even a tentative statement should be prefaced by some
caveats. First, the coverage of the cases is fragmentary.125 Second, the
cases are, for the most part, quite old.
Underground water126 has never been defined by Massachusetts case
law.127 Nor has the law attempted to enumerate the sub-classes subsumed
under that head. The two categories which have been the subject of litiga-
tion are percolating waters and springs. The former has not been defined.
The latter has been: "'spring'... means the source of supply issuing from
the earth, or found therein by digging or otherwise opening it,... "128 The
terms are clearly not inter-changeable,129 though the legal consequences
of a finding of one appear to be the same as a finding of the other.130

The form of analysis is here changed, since the Michigan bill does not by
its terms purport to deal with ground water.
125. See discussion infra note 142.
126. Underground water, perhaps more often called simply ground water, has
generally been divided into (a) underground streams, i.e., waters flowing in defi-
nite channels, and (b) percolating waters. U.S. President's Water Resources Pol-
icy Commission, Water Resources Law, Vol 3, at 159 (1950).
127. The closest any case has come to attempting a definition is to define
"stream" in terms of a flow in an ascertainable direction between banks and then
state that it and "percolating waters" are mutually exclusive. Town of Holliston
v. Holliston Water Co., 306 Mass. 17, 19-20, 27 N.E. 2d 194, 196 (1940). It is not
even clear when water is underground water, rather than surface water. The bor-
derline case is water held in the topsoil of swamps and marshes. The question can
only be academic at present, however, since the rules governing diffuse surface
water appear to be the same as those applicable to underground water. Compare
Dickerson v. Worcester, 89 Mass. (7 Allen) 19 (1863), with Wilson v. New Bedford,
108 Mass. 261 (1871).
128. Mills on Monatiquot River v. Braintree Water Supply Co., 149 Mass. 478,
484, 21 N.E. 761 (1889).
129. See Town of Holliston v. Holliston Water Co., 306 Mass. 17, 27 N.E. 2d
S 194 (1940). This case held that an act of incorporation authorizing the taking of
springs and streams did not authorize the taking of property containing only per-
colating waters. The taking was of course a purported exercise of the power of
eminent domain conferred by the act. It should be noted well at the outset that the
policy of Massachusetts is to strictly construe such acts. Hence pronouncements
of great precedential value for subsequent cases involving eminent domain have
only limited applicability where the conflict is between private interests, although
the issue is otherwise the same.
130. At least this would appear to be the fair inference from the failure to dis-
tinguish between the two in citations of authority. See, e.g., Davis v. Spaulding,
157 Mass. 431, 32 N.E. 650 (1892), involving percolating waters which relies for







LAW OF WATER ALLOCATION


The leading case is Greenleaf v. Francis, decided in 1836.131 Defend-
ant, occupant of the house adjoining that of the plaintiff, had dug a well
in his cellar, which, plaintiff alleged, caused the water to flow less
copiously than before into her well. She based her right to recover on
the ground that defendant's choice of his well site had been motivated
by malice in fact. Judgment was for the defendant, who, it was held,
was not liable unless his only motive in digging the well was to injure
the plaintiff.
The implications of this holding were not spelled out until thirty-
five years later, and then only by way of dictum. Plaintiff in Wilson
v. New Bedford'32 complained of having too much water in his cellar,
his barn, and his soil. He attributed his injury to the dam and reser-
voir constructed by the respondent City on the adjoining land from
which water percolated into his premises, or which alternatively, in-
terfered with the percolation of water from his premises. The court,
apparently replying to respondent's contention that interference with
the natural flow of percolating water was not actionable, stated that
percolating water belongs to the owner of the land, as much as the
land itself, or the rocks and stones in it. Therefore, he may dig a
well, and make it very large, and draw up the water by machinery or
otherwise, in such quantity as to supply aqueducts for a very large
neighborhood. He may thus take the water which would otherwise pass
by natural percolation into his neighbor's land, and draw off the water
which may come by natural percolation from his neighbor's land; his
neighbor, in turn may, by a wall or other obstruction, retain the wa-
ter which is on his own land, and prevent the water from coming into
his soil.133

precedent upon Greenleaf v. Francis, 35 Mass. (18 Pick.) 117 (1836) involving
spring water.
131. Supra note 130.
132. 108 Mass. 261 (1871).
133. 108 Mass. at 265. To the same effect see Owen v. Field, 102 Mass. 90
(1869). It is interesting to speculate what would be the result of a conflict between
a riparian's right to the natural flow diminished only by reasonable use and a land-
owner's to draw up unlimited amounts of underground water. But see e.g., Hollings-
worth & Vose Co. v. Foxborough Water-Supply Dist., 165 Mass. 186, 42 N.E. 574
(1896) which enjoined the defendant from pumping and distributing water from the
wells it had dug because it was interfering with the percolation of water to the
plaintiff's pond; Cowdrey v. Woburn, 136 Mass. 409 (1884), which allowed damages
to a riparian for the diminution in flow of the stream caused by respondent's di-
version of percolating water which fed the stream; Hart v. Jamaica Pond Aqueduct
Corp., 133 Mass. 488 (1882), which enjoined the defendant from digging wells to tap
underground sources of water which were also sources of a great pond. All of these
cases involved the power of eminent domain and additionally were explicitly rested
on the intent of the statute.







MASSACHUSETTS WATER LAW


The court, however, distinguished the case before it as involving arti-
ficial, rather than natural percolation, and held the petition legally suffi-
cient on the ground that one who accumulates anything on his land does so
at his peril.134
It remained for Davis v. Spaulding, decided in 1892,135 to provide a
rationale for the rules governing underground water. In this case, as in
the Wilson case, the cause of injury was a reservoir. But this time it was
alleged that the reservoir impeded the percolation of water into the plain-
tiff's well. The court explicitly approved the Greenleaf case and reiterated
in substance the dictum of the New Bedford case.136
The court justified its position in the following language:
It is impossible to know in what direction percolating water finds it way into a
well; Its ways of approach, and its amount, vary with the operation of ob-
scure natural causes, not controllable, by the owner of the land through which it
passes. If the grant.., were held to impose an obligation upon all the land from
which the well might derive a supply of water, the burden would be very indefi-
nite, uncertain and shifting, and would tend, without any adequate corresponding
benefit, to prevent the improvement of land by buildings and its use for mining,
... Such a result would be contrary to the public good; and the nature and ten-
dency of the burden have been held to be good reasons for the denial of the ex-
istence of any such obligation.137

134. This is the familiar doctrine of the English landmark case, Rylands v.
Fletcher, L.R. 3 H.L. 330 (1868).
This doctrine predicates liability, not on fault, but simply on the occurrence of
injury proximately caused by the bringing or accumulation of some thing upon the
defendant's land, however reasonable such conduct may have been and however
great the precaution taken to avert injury. Of course if the injury is one which
might have been prevented by the exercise of due care, the defendant is, a fortiori,
liable. Ball v. Nye, 99 Mass. 582 (1868).
135. 157 Mass. 431, 32 N.E. 650.
136. The results differed, judgment in the Davis case having been entered
against plaintiff, on the ground that he had failed to state a cause of action. The
cases, however, are distinguishable. First, in the Davis case the matter accum-
ulated by defendant on his land did not escape onto the plaintiff's property, and it
may be argued that such physical invasion was a material fact in the Wilson and
Rylands cases. Second, the caveat sounded in note 133, supra, may be in point,
eminent domain having been involved in the Wilson case, but not in Davis. The
absence of any mention of Wilson by the Davis court tends to support the second
hypothesis.
137. Davis v. Spaulding, 157 Mass. 431, 437, 32 N.E. 650, 652 (1892). Some
doubt is thrown on the soundness of the court's reasoning by the facts of Green-
leaf v. Francis, 35 Mass. (18 Pick.) 117 (1836). Defendant in that case was ap-
4 parently able to locate his well so as to gratify his desire to injure the plaintiff
by diverting to his own well water shich would otherwise have gone into the plain-
tiff's well.







LAW OF WATER ALLOCATION


Rights to underground water, like other rights in water, may be enlarged
or curtailed by grant138 or prescription. 39 Both means of acquisition will
generally involve the use of another's land since the law imposes no limi-
tations whatever on the landowner's freedom of action with respect to the
water under his soil.140
The landowner's bundle of rights to underground water when not so mod-
ified have been characterized by one court as giving him an "absolute
property"141 in it and by another as giving him "no property right" at
all.142 Such conceptualization is significant, if at all, only insofar as it
bears on the feasibility of utilizing underground water. At first blush the
cases might seem to reflect indifference on the part of proprietors as to
which concept is correct. Indifference would indeed be justified if under-
ground water is unimportant as a source of supply and if the reason for
this is that the diversion and abstraction of large quantities of water is


138. Davis v. Spaulding, supra, note 137; Owen v. Field, 102 Mass. 90 (1869);
Greenleaf v. Francis, supra note 137.
139. Tinker v. Bessel, 213 Mass. 74, 99 N.E. 946 (1912); Hollingsworth & Vose
Co. v. Foxborough Water-Supply Dist., 165 Mass. 186, 42 N.E. 574 (1896) (dictum).
140. The only apparent exception to this general rule is presented by the facts
of Tinker v. Bessel, supra note 140, which, paradoxically, is the only holding on
adverse use of underground water Defendant sought to interpose adverse use as
a defense to the plaintiff's suit for an injunction. The common grantor of plain-
tiff and defendant had conveyed to plaintiff certain land and a spring located in land
which he subsequently conveyed to the defendant's predecessors. Defendant pleaded
that for more than 20 years he had taken of the water, conveying such amount as he
needed and his premises via a subterranean pipe. These facts were enough to es-
tablish title through adverse use, but only to the fraction of the spring's yield
actually abstracted.
The language of the court, however, has sometimes appeared to imply that even
in the ordinary situation, prescriptive rights may be acquired by diversion and use
of underground water without more. Thus, in Greenleaf v. Francis 35 Mass.
(18 Pick.) 117 (1836), the court refused to find that plaintiff had by adverse use
acquired an easement in the spring under defendant's land which had supplied her
well. But the reasons the court gave were: 1) plaintiff's well had been dug only 14
years previously; 2) defendant had had no way of knowing that plaintiff's source of
water was the spring under defendant's land, and 3) defendant had not been injured
by plaintiff's use. See also Hollingsworth & Vose Co. v. Foxborough Water-Supply
Dist., supra note 140.
141. Davis v. Spaulding, 157 Mass. 431, 23 N.E. 650 (1892).
142. Gallerani v. United States, 41 F. Supp. 293 (D. Mass. 1941).
Only six cases have been found which involve conflicting claims by parties both
of whom were seeking to use the underground water in question. Of course another
possible explanation for the paucity of cases, is that, unsatisfactory as the law may
seem to be, it works well enough so that no real effort has been made to get it
changed, and that there has in fact been extensive use of underground water sources.







MASSACHUSETTS WATER LAW


physically impracticable. A clear answer must necessarily await further
scientific examination into Massachusetts ground water supplies.
S There is, however, the possibility that the case law is the cause of,
rather than merely the reflection of, the nonutilization of percolating and
spring waters. The present law would, a priori, seem to be a deterrent to
Whatever investment might be necessary to make the water available. A
landowner is hardly likely, for example, to assume the cost of geological
surveys, digging, pumps, etc., if he is to be afforded no protection against
diversion of water into subsequently dug wells.
If further inquiry should disclose that it is desirable to encourage
greater utilization of underground waters, then it would seem that the
present law should be changed. Merely giving the first appropriator pro-
tection to the extent he actually appropriates would provide some incen-
tive. Allocation by this means, however, could deviate considerably from
the optimum.
An optimum system of allocation would seem to require an analysis of
the available supply, the demand, and the interest of the community.143
Whether such a system is presently possible depends upon whether the
science of hydrology is sufficiently advanced to reliably estimate the quan-
tity of water stored underground and the effect of digging on existing wells
in the vicinity. If scientific knowledge is far enough advanced to permit of
some system of rational allocation, one complementary to the rules gov-
erning distribution of rights to use of watercourses should be adopted.
Otherwise, the restrictions imposed by the latter body of laws could be
circumvented by drawing off the water from the watercourses by means
of a well.

SOME TENTATIVE CONCLUSIONS

Introduction

In grappling with the problem of allocating water so as to maximize the
S efficient use of resources without simultaneously working serious injus-
tice, eastern states need to be wary of uncritically accepting the solutions
of other places or times. Especially should a riparian state like Massa-
chusetts hesitate before discarding a system which has at least not preven-
ted the attainment of a high level of development and which has apparently
not engendered serious, unresolved conflicts. Certainly the substitution of
a system of prior appropriation for the present system does not seem a
panacea blanketing all varieties of water ills.
Water is an invaluable resource. Any system of legal rules which pre-

143. See Thomas, The Conservation of Ground Water, McGraw-Hill Book Com-
pany, New York, 1951, Chap. VI.







LAW OF WATER ALLOCATION


vents its beneficial use or inhibits the development of water resources
should be modified. Starting from these two irrebutable propositions,
there has rolled a veritable crusade to replace the riparian system with
that of prior appropriation. At least two primary advantages are usually
claimed for such change: encouragement of socially desirable investments
in water-using facilities as a result of increased certainty of availability
of water supply; permitting the absorption into productive outlets of such
waters as are surplus to the need of riparians, and which otherwise liter-
ally go to the sea. Clearly, the proposed change is a most appealing one
at first presentation.
A useful by-product of this movement for reform is the attention it has
centered on water problems in areas which for long have not thought about
water in terms of a scarce resource. The existing information in Massa-
chusetts is inadequate as to supplies of water, present demands, future
supplies and demands, and potential conflicts among water users. If this
activity results in intensive studies of present and potential water uses it
will at least eliminate some of the gaps in present knowledge. And by
formulating the issues and opening them to discussion, it may help to
avoid the crystallization of water-use dilemmas requiring expensive re-
medial measures. Legislative reform often waits on the happening of a
calamity. Forestalling such an emergency, and instituting action in a
field like resource allocation where legislative inertia is strong, can be a
genuine contribution. It does not necessarily follow, however, that any
problems Massachusetts may have will be adequately solved by the adop-
tion of a prior appropriation system and the repudiation of the riparian
system. Such a sweeping change must pass a two-pronged test: (1) the
riparian system fails to satisfy the public welfare under contemporary
conditions; and (2) the prior appropriation system comes as close as is
possible to satisfying that welfare. Otherwise, the movement must be re-
garded as offering at best a stop-gap measure aimed only at symptoms.
In the discussions of the problems, furthermore, a careful demarcation
must be made between (1) advantages of a prior appropriation system and
(2) advantages of an administrative system of determining water rights.
The blurring of the line between these two categories has distorted analy-
sis of the question-inasmuch as an administrative agency can operate
either under a prior appropriation or riparian system, or a modification
of either one.

The Massachusetts Experience with Prior Appropriation

Massachusetts, early in its history, twice ventured into the area of wa-
ter rights via legislation. One of these ventures resulted in the Ordinance
of 1641-7-unique, or almost unique, law. It would be interesting and un-
doubtedly informative to study the results of that law from the aspect of
water utilization: has water in large ponds been used more and used in




}I







MASSACHUSETTS WATER LAW


ways generally considered more desirable socially in Massachusetts where
use of the water is a public right or in other states where it is treated as
a private right?
The second legislative innovation was the Mill Acts. These, it will be
recalled, established a limited system of prior appropriation. Here, too,
a comparative study could prove profitable.
Since the enactment of the first Massachusetts Mill Act in 1714, many
of the western states have enacted prior appropriation statutes. These, in
turn, have come in for recent re-scrutiny: one commentator at least has
queried the efficacy of prior appropriation to promote optimum use of wa-
ter in the western states.144 And even if the system works in a highly
satisfactory manner there, can one reasonably conclude that it would be
satisfactory if adopted in toto in Massachusetts ? The problem of the West
was how to subsist and to encourage development in the absence of large-
scale industry and fertile land. Agriculture was essential; irrigation was
essential for agriculture. Irrigation, however, is a highly consumptive use
of water. The problem existed in the first instance because the West had
and still has a very short supply of water. Under these circumstances
(aside from historical and institutional factors), perhaps prior appropria-
tion is as ideal a system as possible. Lacking these circumstances, it may
not be.
To the extent that the wisdom of the past is pertinent to present prob-
lems, the Massachusetts case law here examined offers one guide. In some
small measure, use of water for power engenders conflicts of the sort that
frequently attend use of water for irrigation. In the latter case, abstrac-
tion by one user leaves too little to permit adequate irrigation by a neigh-
bor lower on the stream; in the former case, the dam of one prevents his
neighbor higher on the stream from utilizing it within the ambit of the
backflow from the dam of the lower riparian. Prior appropriation can and
was used to resolve this conflict. But neither the Mill Act nor any other
version of prior appropriation seems to be the best way of approaching
questions of manner of use in contradiction to those of quantum of total
abstraction or diversion. Certainly the Massachusetts courts at least found
it necessary to resort to the riparian doctrine to settle some questions
which arose between conflicting claims of mill privilege owners, as well
as those between mill owners and other types of water users, and this is
not attributable primarily to oversight by the drafters of the Mill Act. Any
attempt to rigidly codify the future would seem equally doomed. Condi-
tions change too rapidly; the equities of a particular case cannot be fore-
told forever at the one point in time when one happens to be legislating.



144. Marquis, Freeman, and Heath, The Movement for New Water Rights Laws
Tennessee Valley States, 23 Tenn.L.Rev. 797 (1955).







LAW OF WATER ALLOCATION


The Certainty Conducive to Investment

Under either the riparian system of allocation or that of prior appro-
priation, consideration must be given not only to optimum present use, but
-perhaps even more important-to future development. If it is determined,
for example, that it is desirable to encourage greater use of water for ir-
rigation, how should this be done? Even here, where it is most commonly
invoked, the substitution of the prior appropriation doctrine is no panacea.
If a substantial investment is required for irrigation, prior appropriation
does have the advantage of tending to assure a continuing supply. Of course
if investment were made a weighty factor by the courts (or by appropriate
legislation directing such action by the courts) in determining the reason-
ableness of a disputed use, some security would thereby be afforded to in-
vestors dealing with a riparian rights state, but still, it must be conceded,
not as much as the certainty of being able to divert a specified number of
gallons per minute. But this element of certainty conjures up a great dif-
ficulty: assuming that an irrigator can today take a specific amount, either
as his appropriation or in the exercise of his right of reasonable use,
should this be the measure of his right for all time? True, his productiv-
ity may be decreased, but the total productivity of society may be in-
creased if the amount of water he is permitted to take is decreased. And
once granted the appropriation may carry with it the right to continue in-
definitely. Again, use of that land for farming, and hence of the water for
irrigation, may become an uneconomic use, either absolutely or relatively,
to some other use to which the land is capable of being put. This means,
then, that even under a prior appropriation system, licenses to appropriate
should be issued, subject to some type of review to escape undesirable
rigidity. And to the extent this is introduced, the virtue of certainty is
concomitantly reduced. Perhaps the compromise to be worked out is a
permit for an initial term of years to allow the investment to be fully de-
preciated, subject to review if its continued use should be deemed desir-
able at the expiration of the initial term. Certainly any rigid definitions of
water priorities-writing into the legislation a fixed order requiring sub-
sequent legislation if the order prove mistaken (and raising further consti-
tutional question)-does not make sense. On the other hand, the riparian-
judicial system can boast of the advantage of flexibility. Should society
determine some day in view of technological advance that use of water by
power companies, for example, is no longer in the interest of the whole,
and this is infiltrated into the judicial attitude, this determination can be
made most readily by a court redefinition of "reasonable" to exclude that
use.

The Factor of Waste

The extent to which the riparian system permits or even encourages
the waste of water is another inquiry where more data and analysis is







MASSACHUSETTS WATER LAW


needed. Since the existence of injury has been deemed a prerequisite to a
suit for damages or injunction, the Massachusetts courts, to some degree,
have written in a requirement of use and thereby avoided blatant misuse of
the resource. For it follows that a riparian who himself is not beneficially
using the stream waters as they flow by cannot object when another ripar-
ian is putting that flow and/or water to use. This acts as a check on a dog-
in-the-manger attitude; the superior rights of location are not to be invoked
unless the contiguous water is put to use.
Similarly, there is not enough information on which to base a judgment
as to the operation of a possible second check, the prescriptive system:
by permitting adverse users to obtain a fixed quantum of rights over and
above what would have been the proper measure under a "reasonable" sys-
tem of allocation, even the riparian system penalizes the non-user and re-
wards the busy bee. Whether there is much adverse prescription in the
built-up state of Massachusetts (especially in view of dearth of litigation
in the matter) and whether people can rely on such flimsy straws in ex-
pending moneys and energies, could also be the focus of an investigation.
Presumably so haphazard a system as prescriptive rights tends to be could
scarcely provide a sufficient safety-valve to the apparent stimulus to waste
of a riparian system. Where the use of water requires no special invest-
ment, prescriptive rights may be a check; but no one would make any but
the most trivial investment where 20-years' use-ignoring all other oper-
ating facts-is a prerequisite to secure enjoyment.

The Choice of Agency

In addition to determining the substantive rules governing the allocation
of water, it is necessary to determine who can most efficiently administer
S those rules-whichever is the set ultimately selected. The tendency among
proponents of the change to prior appropriation has been to confuse that
issue with the different one of choice of agency to act as umpire and in
some instances as developer. Many of the advantages attributable to the
prior appropriation system really flow from the nature of administrative
S agency determinations as contrasted with judicial determinations. Hence
the question really resolves itself into whether an agency can be injected
into a riparian system and still maintain these advantages; whether it can
do so with respect to an isolated problem such as pollution, or must engulf
the entire field of water rights; finally, whether there are countervailing
disadvantages, conceding that in certain areas-especially that of promot-
ing development-society's most useful tool may lie in such an administra-
tive board.

The Presumption Against Administrative Agencies

All other things being equal, as the economists like to say, a presump-
tion exists against the introduction of a new and elaborate administrative







LAW OF WATER ALLOCATION


system. In view of its attendant complexities, the burden of proof rests on
those advocating such an innovation. Whether this has been sustained in
the case of water is doubtful. From the reported cases themselves there
seem to be few disputes: indeed, but few water cases were carried to ad-
judication in the past decade. The spontaneous organization by individual
water users, with judicial umpiring of the occasional controversy, seems
best fitted to this state of affairs. However, the lack of litigation may not
be a proper index of water troubles due to pressures by larger interests,
and unwillingness and inability of other water users to get into court to
test their rights. And future water needs may require such an adminis-
trative mechanism.

The Market Mechanism and Water Law

In dealing with water law in the context in which it is usually discussed
today-with emphasis on a wholesale revision of water systems-there is
an understandable emphasis on social control. Hence, in assaying the rel-
ative merits of the two systems, a foreground consideration must be which
is the most effective administrative agency. Yet even more crucial is the
impact of a system of law on the regulate. To some extent the proponents
of the prior appropriation system do calculate this by their argument
couched in terms of fostering investment. But this is of limited applica-
bility. Important to evaluate is the role of the market mechanism: in both
systems private enterprise could equally be said to "rationalize" the re-
source allocation via the price mechanism. In the riparian system, the
one representing the highest beneficial use of the water resource will bid
highest for riparian land; similarly, under a prior appropriation system
he would buy out the rights that accrued to the prior taker. If this price
mechanism bears a relationship to the world of fact, over and above an
economist's model, then the injection of an agency into the allocation pic-
ture will distort its operations. This would be a factor pointing toward the
riparian system as that legal system most conducive to a rational alloca-
tion of the water resources of the state. For it is the system in which the
most activity is centered in private hands; the operations of the private
economy become the private water plan and, ultimately, the plan. On the
other hand, if there are frictions in practice (say, hold-out prices by ri-
parians) or if the sources of knowledge are imperfectly available, only
correction by scientifically trained and specialized people can produce a
proper water allocation, If so, this calls for use of administrative agen-
cies as the most effective instrumentality of society.
In either system of water law certain demands of a high social value
(usually of a recreational nature) cannot "bid" effectively; a corrective or
substitutional approach for the market may be equally necessary under
either system of water law. This corrective could be supplied either by
the courts or an administrative body under either set of water laws. To







MASSACHUSETTS WATER LAW


insure this allocation some type of planning by a public agency may be
necessary-but again this does not necessitate a change in the going water
system. Nor does it necessitate employing administrative boards. For ex-
ample, water supply for a municipality is another instance where the con-
sumer cannot compete in the open market. But this use is nearly always
favored by the courts in the guise of being the reasonable use; in this in-
stance, social policy as adopted by the common law courts cuts through
and corrects the price mechanism as a water allocator.

The Different Methods of Meeting Problems

A critical question-and one that easily could spawn a host of Baby
Hoover Commissions-is the factors a court takes into account in its de-
terminations of water rights, as opposed to those which form the natural
perspective of an administrative agency. While it is beyond the scope of
this paper to inquire into all the considerations relevant to such a deter-
mination, nevertheless certain factors can be isolated for further study,
and how these affect the outcome of water-use conflicts.
First, there are such obvious questions as which body-the judiciary or
some administrative agency-can provide the desired degree of certainty
and, at the same time, the desired degree of flexibility. The latter is most
frequently referred to as one of the outstanding advantages of the adminis-
trative system. Without in any way wishing to dispute the accuracy of the
reference, one may point out that the attribute is at least not unique to that
system. For example, the courts could and perhaps should introduce as
factors bearing on reasonableness of use which of the claimants is prior
in time, the investment each made in order to use the water, the relative
social utility of the use of each; perhaps, also, they should discard the wa-
tershed limitation on use of water. Both courts and agencies are capable
of evaluating and assigning weight to each of these factors; so, for that
matter, is the legislature.

The Question of Staff; The Adversary Process

There is also, of course, a difference in the manner these different fac-
tors usually arrive at their determinations. This, in turn, affects the type
of factors taken into account, and the weight they carry in the final out-
come. The legislature may hold hearings at which experts and interested
groups will be invited to state their views; the resulting enactment may
attempt a detailed regulation which though repealable by future legisla-
tures tends by virtue of inertia to remain on the statute books even after
conditions have so changed that the law is no longer quite satisfactory.
The agency is very likely to have on its staff scientists and technicians
who will be constantly at the elbow of the administrators of the law guid-
ing new promulgations in the wake of scientific developments and practical


__







LAW OF WATER ALLOCATION


and social conditions. The courts may mold their opinions in accordance
with the same criteria as the agency, but they must ordinarily depend on
the adversary system enlightening them as to the relevant facts and con-
siderations. The adversary process rivets the court's attention on the
parcels of land in dispute.
While there is wide divergency among courts as to the desirability and
practicability of a court adopting its notion of broad social policy as a
basis for decision, by and large in a field like water where the inter-
relatedness of the different users is so patent, the court will be willing to
consider all the uses along the river. Thus, this aspect of the adversary
process limitation is only a theoretic objection. But that aspect of the ar-
gument does seem valid which points out that advocacy by opposing law-
yers may not be the best means to acquire information as to what social
policy makes sense. Even assuming a court's readiness to go along with
the proposition that the immediate litigation before it is not a closed sys-
tem but has wide repercussions on users up and down the stream, does it
have the equipment to carry it beyond a hunch or guess as to such wider
effects ?
As a procedural matter, too, a judge cannot make his decree binding on
other riparians not parties to the suit. Yet their use of the water may be
closely interrelated to the two conflicting uses that are having their day
in court. A corollary factor of limitation relates to the flexibility of the
decree and its enforcement. The Massachusetts court has made some re-
fined and particular decrees as to the amount of water several farmers
were entitled to appropriate; but, say, in a dispute between 200 farmers
and a power company on the Connecticut it would be difficult (although not
insuperable) for the court to frame its decree so that each farmer should
not take more than X gallons whenever the level of water is at Y point;
the problem of supervision of this type of decree (even though framed in
the negative) would be inordinate for a court. Conceivably the protracted
supervision and need for rescrutiny and revision could fit into a master
system, but only with difficulty.

The Interrelatedness of River Users
In the field of water resources the most persuasive argument in behalf
of an administrative agency lies in the interrelatedness of the waters of a
stream. A wholistic view of what in the physical sense is one unit-the
watershed-seems to be the only logical method of dealing with all the
competing uses of the stream. (The same may be true regarding the re-
lation of stream to ground and surface waters, but the lack of present
scientific knowledge as to the relation may indicate that an entrusting of
these functions to an agency is premature.) Planning a river to accommo-
date all the interests in question, and to satisfy as many claims as possi-
ble, is a coordinative, integrative process that requires survey and plan
by water experts viewing water problems as a whole. Decisions about







MASSACHUSETTS WATER LAW


water uses need to be made in the light of a systematic study of the re-
source situation with special attention to the water development potential
that may exist in the state. Only in this fashion could a comprehensive
plan be promulgated for these water rights and uses to prevent waste and
increase yield. This seems to call for a planning agency.
One slight qualification: this argument for use of an agency becomes
shadowy when you come to a river like the Connecticut. Massachusetts
does not contain the whole river. Without some type of interstate compact
or regional ordering, the planning of the whole river basin becomes im-
possible. But sufficient the troubles of each day: while some decision-
maker operating over the entire river would be the optimum desired, an
approach to the river as a whole, even within the limits of the one state of
Massachusetts, would contribute a forward step. And perhaps that of it-
self, and as a possible precedent for wider area cooperation, is a suffi-
cient vindication. But to the extent experts can testify that a wholistic view
is distorted unless it comprehends the entire whole, and the New England
states continue to each go its own way as respects the Connecticut River,
then an agency is no better than the court system. Similarly, if the crea-
tive planning function of the agency be deleted, owing to the absence of a
water problem, or the inability or lack of desire to recognize that such
problem exists, then the water question should be left where it is-in the
laps of the courts.

The Role of the Master

In this context, an important consideration is whether the Massachu-
setts present system does not, potentially at least, combine the advantages
of agency administration with those of judicial administration. Generally,
water cases were referred to a master and came before the court only on
exceptions to the master's report. The practice of referring suits to spe-
cial masters was not and is not now regulated by statute in the State of
Massachusetts, but the power of a court of equity to refer a case to a spe-
cial master for the determination of the facts has never been doubted. A
case is referred to a master by a rule of reference which usually author-
izes the special master to "hear the parties, find the facts and report his
findings to the court, together with such questions of law as may arise in
the course of his investigation." Whether a case will be referred to a
master does not depend upon the consent of the parties, but lies in the dis-
cretion of the court of equity, as does the nature of the rule of reference.
If there is not already specialization among masters in a state there
seems to be no reason why there could not be in the future. This permits
the judiciary to become expert by process of continuous intervention. Nor
is there any reason why the master handling water cases could not have a
permanent staff of hydrologists, economists, and physical planners, there-
by tapping the latest scientific knowledge and techniques concerning water
uses.







44 LAW OF WATER ALLOCATION

The use of special masters, however, cannot be put forward as the
cure-all method for reaching decisions in water rights controversies. The
application of law to the facts found by the special master is not within the
scope of his report to the trial court. Rulings of law are in no way binding
upon the trial court; they are merely advisory, and the weight which the
trial judge attaches to them as an aid in arriving at his own decision is
entirely a matter for him to determine. It is proper, on the other hand,
for the special master to report rulings of law involved in the resolutions
of issues of mixed fact and law, e.g., the reasonableness of the consump-
tion of water by a party involved in a legal dispute. A further limitation
upon the function of the special master is that he is restricted to a finding
of facts and is not empowered to decide the nature of the relief to be given
upon the facts-a function within the exclusive province of the trial court.
But the tendency of the courts would be to uphold his determinations.
The current situation with respect to water masters in Massachusetts
is somewhat obscured. Mr. Leo Reed, clerk of the Massachusetts Superior
Court and authority on equity procedure in that State, recalls no instances
of recent date where special masters have been employed in water rights
cases, although such officers have been active in nuisance cases. However,
this may be attributable to the absence of such controversies recently.

The Prospective Operation of the Agency
Nevertheless, such a system of masters would suffer from an obvious
deficiency: a master is bound by the going situation. But so, too, is an ad-
ministrative agency. Yet through a system of advance planning the future,
insofar as it can be foreseen through the haze of present uncertainties and
variables, can be taken into account by an agency more effectively than
any court system, even attached to a master system. Planning for future
water needs, as well as the implementation of such plans, is hardly a func-
tion for courts.
This underlies another thread in the complex fabric that must be woven.
An intelligent decision can be made that decreasing supply of water in light
of predictable increased demand calls for future development and planning
by public funds and agencies to supplement or replace the market mecha-
nism. How would this affect resolutions of current water-use disputes ?
Would they not also need to be handed over to such an agency to secure
the proper time relationships of water uses ? This seems to call for ex-
panded activities by an agency. Aside from the rarely invoked declaratory
judgment, the courts are restricted to actions (1) raised by the initiative
of parties and (2) after the event, that is, after the collision of interests.
A preventative and future role on its own initiative seems a prerequisite
for public initiative, assuming always that private action has failed to pri-
vately rationalize under its own prediction of water supplies and needs.
Again, this factor does not go to choice between the riparian or appropria-
tion system, but to the kind of agency a state selects for administering its
water program.







MASSACHUSETTS WATER LAW 45

The Need to Compensate, Retroactivity, and the Judiciary
On the other hand, general standards in so novel and far-reaching a
program may indicate that the program could be best "administered" by
San independent judiciary. Further, against any defect that may be an un-
avoidable concomitant of the adversary system should be balanced the fact
that an agency appropriation to an individual user, unless properly quali-
fied, becomes a right which cannot thereafter be taken from the individual
without his receiving compensation, whereas a use adjudicated reasonable,
and hence permissible, today, may in the light of the changed circum-
stances of tomorrow be adjudicated unreasonable and hence inpermissible-
without the individual having to be compensated for his loss.
Yet this flexibility of a riparian-judicial system is not without its own
problems. Preserving existing water rights is not justified solely on the
ground of preventing a taking.of private property; what is at stake is the
preservation of expectations, so individuals can operate in the knowledge
that certain gains will be respected, or, if thwarted, that compensation of
some sort will be made. In fact, this creates that certainty inducive of in-
vestment-the virtue attributed to a prior appropriation system. A judicial
determination that a particular use is no longer reasonable under all the
circumstances does in fact result in the taking away of private property
without compensation. Since, however, the weighing of a greater or lesser
socially desirable use normally is delegated to courts, the traditional deal-
ers in matters of drawing a balance between the individual and society in
property rights, the confidence of investors may still be preserved. Thus
a judicial shuffling and reshuffling of the hierarchy of preferred use per-
S mits new developments in water allocations. The law of reasonable use-
in view of fast-moving events-is deliberately and appropriately left vague.
Entrusting to the courts the overriding right of society to change the order
of rights as situations evolve and change, does not hamper incentive too
stringently. Hence-and this is an undoubted strongpoint of a judicial sys-
tem (though it would operate in a more restricted fashion in a prior appro-
priation system than a riparian one)-the regularizing of property rights
in water could be preserved for the most part, along with the flexibility of
permitting the highest economic use of the water to prevail as the most
"reasonable." In this sphere lies the courts' expertise. This underlies
the public confidence in the fairness of the court's judgment-and a will-
ingness to acquiesce in its determination. As the traditional agency for
cutting this knot, it can decide which expectations are proper, and should
be protected, as contrasted with those that are unreasonable.
The situation in Massachusetts has one unique aspect. This may be a
distorting factor, but it serves to underline an inarticulated premise in
this water law conflict. Here in Massachusetts the only foreseeable prob-
lem seems to be in the Connecticut Valley. In the rest of the state, agri-
culture is such that its potential competitive use of water is negligible.
But in that valley, the farmers, increasingly, interested in the improved
yields possible from the use of supplemental irrigation, may soon clash







46 LAW OF WATER ALLOCATION

with the power plants, satisfied with and seeking to retain the status quo
as to the use of the Connecticut River waters. The present appropriations
on the state's most important river are such that in the summer months it
is fully appropriated. Therefore, to introduce the system envisioned by
the Michigan bill would be a meaningless act-there is simply no extra wa-
ter to be allocated during the summer months when both groups most vi-
tally concerned-power companies and supplemental irrigators-need most
to utilize it. In other words, after the prior appropriation freezing point of
present use of water, there is no additional water left in the Connecticut
for a "water bank" for reallocation and redistribution by an agency. Since
the results obtained by such legislation would be so sparse, pressures
can be presumed to persist. Suppose, then, the argument prevails that the
existing pattern of water rights prevents maximum development and allo-
cation of water in Massachusetts. This would necessitate use of eminent
domain powers to acquire some existing water rights and redistribute
them. If the supplemental irrigators are willing to espouse use of this
exercise of state force via condemnation, the issue over the adoption of a
prior appropriation system becomes clarified: it is not a case of more
efficient allocation of scarce water; the systems are neutral in that sense;
but, rather, that of using the general taxpayers' funds for the use of a
specified group whose ultimate economic product (in this case, increased
farm products due to irrigation) does not warrant the direct expenditure
involved in paying for these water rights.

The Role of a Comprehensive Plan145

Choice of an agency to study the situation and prepare a comprehensive
development plan of the water resources of Massachusetts does not pre-
clude either the existence of a riparian system, or of a continued judicial
testing both of private disputes and of proposals of the government agency
as it is translated from the planning phase to the stage of execution where
it has bite on private developers. A central, published general plan will
provide a framework for future developers, and criteria on which courts
can base their occasional and rare decisions. Indeed, the testing of logic
and the unfolding of experience may lead either indirectly (or directly via
legislative adoption and mandate to the judiciary) to establishing standards
by which the court can better gauge what is a "reasonable" use. The plan
will also permit, where direct intervention by an agency into private water
rights is deemed necessary, basing points for intelligent judicial review,
for it provides a background against which to test the proposal of govern-
ment.

145. For further amplification of the crucial role of a plan in land-use controls
generally, see, Haar, The Master Plan: An Impermanent Constitution, 20 Law & Con-
temp. Prob. 351 (1955).







MASSACHUSETTS WATER LAW


Conclusion

Much of the assumed physical rigidity as to impossibility of satisfying
water demands can be eliminated by changes in technology and distribu-
tion; or, perhaps, by alternatives of ground water supplies or the piping in
of water from other watersheds. Similarly, what is impressive in even a
brief survey of the water field is the diversity, flexibility, and number of
governmental and private organization capable of meeting predetermined
needs. To foreclose manoeuverability at this early stage of first scrutiny
into Massachusetts water problems by a blanket adoption of any one sys-
tem seems singularly unproductive. To confuse the virtues of the prior
appropriation system that do exist with those of administrative determina-
tions does not advance clarity of thought. The need for exploration of al-
ternatives, improvision and invention of social organization in this field is
challenging; that the ability to meet it is also present seems undeniable-
all leading to incredulity at the views of those who would foreclose this
richness by an innocent (and immediate) swallowing whole of the appro-
priation system.
The fact of the matter is that adequate information is woefully lacking
as to the nature and amount of supply of water, as to whether there is
waste, and if so, the extent thereof. The first inquiry in fact, both logical-
ly and practically, should be focused on what are the water problems of
Massachusetts. This inquiry must obviously concern itself with such mat-
ters as the value placed by society on a type of enterprise, the supply of
water, the demand for it, the distribution of the available supply to the dif-
ferent purposes and the deviation, if any, from optimum. Obviously, the
aim of a water law system is to remove obstacles thereto and to help or-
ganize and structure the existing institutions, so as to maximize the wel-
fare of society at large. The fundamental objection to any immediate
change to an appropriation system is the absence of analysis as to whether
waste of water, assuming there is some, occurs because (1) the supply in
the humid areas of the country exceeds the demand, or because (2) legal
restrictions and frictions prevent the satisfaction of some demand.




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