Title: Western Experience and Eastern Appropriation Proposals
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Title: Western Experience and Eastern Appropriation Proposals
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Western Experience and Eastern Appropriation Proposals
General Note: Box 12, Folder 7 ( The Law of Water Allocation In The Eastern United States - 1956 ), Item 6
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Full Text

by Clyde O. Fisher, Jr.*



The riparian system of water rights is currently a subject of study and
criticism in many eastern states. This system, as developed and admin-
istered almost entirely by the courts, is the basis of private rights to the
use of stream water in the thirty-one states comprising the eastern half
of the country.' Its general form and some of its variations from state to
state are set out in the accompanying studies of riparian law in Massachu-
setts, Michigan, and North Carolina. Historically, the supply of water has
generally been ample in the eastern states, and the riparian system appar-
ently has provided a satisfactory legal framework for allocating it among
users. But rapidly increasing demands for the use of water in recent
years now signal the end of this supply situation in numerous areas; and
expectations of a continued expansion of demand in the years ahead have
raised doubts whether the riparian system will prove satisfactory for al-
locating water in an era of relative shortage.
Various suggestions have already been made as to how the traditional
substance and administration of the riparian system may need to be modi-
fied in view of these changing conditions. Some of these are embodied in
proposed legislation in several states for allowing the acquisition of ap-
propriation rights to that part of the stream flow in excess of the amount
that would be reserved for existing riparian rights. The treatment of these
existing rights under these proposals raises certain constitutional ques-
tions some of which are examined elsewhere in this volume.2 The appro-
priation rights that could be acquired under these proposals provide the
focus of this paper.
These appropriation rights are patterned closely after the appropria-
tion rights that have been a distinguishing feature of water law in the

Attorney, City Plan Commission, New Haven, Conn. LL.B., Yale University;
M.S., Yale Conservation Program. Member of the Connecticut Bar.
1. These states include the twenty-six east of the Mississippi River and the five
states (Minnesota, Iowa, Missouri, Arkansas, and Louisiana) on the west bank. In
1956 Mississippi became the first eastern state to enact appropriation rights leg-
islation. See pp. 70-74
2. See Symposium paper, Fisher, Due Process and the Effect of Eastern Appro-
priation Proposals on Existing Rights, with Special Emphasis on the Michigan Pro-
posal. This paper is referred to below as the "constitutional study".


seventeen western states.3 .In the western half of the country, where sup-
plies of water are seldom plentiful, the principle of prior appropriation
constitutes the doctrinal framework for an administrative appropriation
system in which the state, particularly through agencies in the executive
branch of government, plays an active role in the acquisition and adjudi-
cation of rights and in the actual distribution of water from the stream.
These administrative practices have been found essential in order to fa-
cilitate a better use of limited water supplies in the West. The eastern
appropriation proposals, in providing for the recognition of appropriation
rights, also incorporate certain of these administrative features of western
Despite noticeable improvements in the administrative appropriation
system in most western states over the last few decades, there is room
for considerable doubt concerning the extent to which this system has ac-
tually permitted and encouraged the optimum use of water resources.
Certain of the more acute.problems in western law are probably inherent
in the appropriation principle and would therefore arise under appropria-
tion legislation in the East to some extent. Various other problems that
have appeared in western law probably could be more easily avoided in
the East. But the appropriation legislation that has been proposed thus
far in the East makes no apparent attempt to compensate for many short-
comings in the theory and practice of western law, and it is possible that
the nature of these problems, perhaps not yet widely perceived even in the
West, is not sufficiently comprehended in the East.
It is the aim of this paper to explore a number of the problems in west-
ern law that might emerge in significant dimensions under the eastern ap-
propriation proposals. Part I below presents a summary description of
the riparian system of eastern law and the administrative appropriation
system of western law; the asserted deficiencies of riparian law and the
interest of several eastern states in new legislation, especially for the
recognition of appropriation rights, are also set out in this Part. Problems
in western law are examined in some detail in Part 1, where problems of
waste that prevent a high level of beneficial use of water are set out.
Lastly, in Part m the eastern appropriation proposals are studied to de-
termine what provision they make for meeting similar problems that might
result from the introduction of appropriation rights in the East.


Under the riparian doctrine the use of stream water is restricted to the
owners of land contiguous, or riparian, to the stream. The right of a ri-

3. These are the six states in the North Dakota-Texas tier and the eleven states
west thereof.


parian owner to use the water is said to arise from ownership of the land.
He may divert water from the stream for use only on his riparian land.4
The amount of water he may use and the purpose for which he may use it
are not subject to exact determination. Some courts have at times en-
forced a "natural flow" rule which permits each riparian to divert water
to the extent of his domestic needs and which allows him to demand that
the natural flow of the stream reach his land materially unaltered except
for the domestic uses of upper riparians. Most important non-domestic
uses have some material effect upon the quantity or quality of the flow,
however, and most courts have rejected this essentially non-utilitarian
rule in favor of the "reasonable use" rule.. Under this latter rule each ri-
parian may use water to the extent of his domestic needs and then, subject
to the domestic uses of other riparians, may use water for such other pur-
poses and in such amounts as is reasonable in the light of all surrounding
circumstances; the natural flow of the stream need not necessarily be pre-
served.5 This right of reasonable use for nondomestic purposes is lim-
ited by the similar right of all other riparians along the stream. Priority
of use by one riparian is either immaterial or only one factor to be weighed

4. A riparian tract of land must, by definition, be contiguous to a stream at some
point, though the length of stream frontage is not material to its status as riparian
land. Decisions in some western states regard this riparian status as extending to
all land under a single ownership; decisions in other western states limit it to land
lying within the watershed of the stream and occasionally limit it further to the
boundaries of the tract as patented by the government and to the smallest parcel
contiguous to the stream in any later subdivision of the tract. This question of the
lateral extent of riparian land has apparently not been decided in many eastern
5. These two rules have been somewhat confused at times, particularly by state-
ments that a riparian is entitled to the natural flow of the stream except as dimin-
ished by the reasonable uses of other riparians. This confusion might be traced
partly to the first formulation of the riparian principle in this country, where it was
said that:
...every proprietor upon each bank of a river...has a right to the use of the water
flowing over it in its natural current, without diminution or obstruction.. [T]he
right being common to all the proprietors on the river, no one has a right to dimin-
ish the quantity which will, according to the natural current, flow to a proprietor
below...I do not mean to be understood, as holding the doctrine, that there can be
no diminution whatsoever, and no obstruction or impediment whatsoever, by a ri-
parian proprietor, in the use of the water as it flows; for that would be to deny any
valuable use of it. There may be, and there must be allowed of that, which is
common to all, a reasonable use. The true test of the principle and extent of the
use is, whether it is to the injury of the other proprietors or not. There may be
a diminution in quantity, or a retardation or acceleration of the natural current
indispensable for the general and valuable use of the water, perfectly consistent
with the existence of the common right.... Story, J., in Tyler v. Wilkinson, 24
Fed. Cas. No. 14312, at 474 (C.C.R.I. 1827).


in judging the reasonableness of his use, and nonuse of water by a riparian
does not result in loss of his right (unless coupled with another's adverse
use for the prescriptive period). The reasonableness of a particular use
is determined when, and only when, a court is called upon to weight the
relative reasonableness of conflicting uses and to limit each accordingly.


In theory, the standard of relative reasonableness under the riparian
doctrine facilitates an adjustment of conflicts between uses in accordance
with the needs of each user and the dictates of general public interest. 6
It allows each riparian a certain amount of flexibility in commencing a
new use or in expanding or altering an existing one, especially in the light
of changing conditions of water use and supply. This flexibility in riparian
theory reflects the public interest in the optimum use of water, and it re-
wards the enterprising and efficient user.
At the same time, it is not yet clear how far the advantages of this flexi-
bility are actually realized in the operation of the riparian system.7 De-
spite the lack of data on this question, however, the flexible standard of
reasonable use under riparian theory is generally acclaimed. Conversely,
the rigidity of the pattern of water allocation under appropriation rights
is becoming increasingly apparent, as will be discussed at length in Part
II below. The contrast between rigid and flexible systems for the alloca-
tion of water is particularly marked under conditions of rapid change in
the nature and amount of water use.


The riparian system has been criticized on several grounds. Some
criticism has been leveled at its restriction of the use of stream water to

6. "Reasonableness under the reasonable use concept... appears to be tested by
the social value of the use." 6-A American Law of Property 28.57 (Casner ed.
1954.) "The advantages of this (reasonable use) theory are that it is entirely utili-
tarian and tends to promote the fullest beneficial use of water resources." 4 Re-
statement, Torts, pp. 345-46 (1939).
7. As the accompanying studies of Massachusetts, Michigan and North Carolina
would indicate, few courts have been presented with such a number and variety of
cases that their conceptions of the relative reasonableness of many different uses
can be determined under either static or changing conditions of water use and sup-
ply. In many decided cases the facts disclosed in the opinion do not permit an ap-
praisal of the decision's impact upon the parties uses, and at other times the court's
discussion of the case does not clearly disclose the grounds for its favoring or dis-
favoring a particular use in a given situation. Moreover, the weighing process in
some cases may be distorted by factors not relevant to the issue of relative rea-
sonableness; such, for instance, is a court's frequent reluctance to issue decrees
involving it too closely in the actual supervision of uses.


riparian owners and its requirement that they use the water only on their
riparian land. In particular, it is said that a better use of water may fre-
quently be made at other places, whether it be made by riparian or non-
riparian owners.
The major criticism of the riparian system relates to the element of
uncertainty associated with the right of reasonable use for non-domestic
purposes. It is argued that in the attempted exercise of this right the ri-
parian owner has no adequate way of determining what types of activity
he may use water for, how much he may use, and when he may so use it.
Because the reasonableness of a particular use of water by one riparian
varies with the needs of other riparians, the best estimate of his right
under prevailing and foreseeable conditions may be upset by the unpre-
dictable activities of other riparians, who are free to commence or en-
large uses despite long nonuse of their rights.s This uncertainty is com-
pounded in any state where a riparian neither making nor intending to
make use of water can enjoin an existing use as unreasonable with regard
to his right.
This uncertainty, however, may be modified to some extent in actual
practice. A court will occasionally regard the fact of priority of use as
one element to be considered in assessing reasonableness.9 At other
times, where a court desires to protect an important use that is not rea-
sonable with regard to the needs of other riparians, the court may invoke
the Balance of Convenience doctrine in order that the use may continue

8. Interference with an existing reasonable use could happen in a number of ways.
An upper riparian may commence or enlarge a domestic use to the full extent of
his needs and/or a use for other purposes that may be reasonable despite consider-
able interference with the existing downstream use. (He may also make an unrea-
sonable use until detected and enjoined). A lower riparian may upset an existing
reasonable use above him by securing an injunction in behalf of his new or ex-
panded domestic needs, and his new or expanded attempts to make a reasonable
use for other purposes may render the existing upstream use no longer reasonable
and therefore subject to modification by injunction.
9. As pointed out in other Symposium papers, the courts in Michigan and Massa-
chusetts have not clearly regarded priority of use as a factor to be weighed in de-
termining the reasonableness of a use. Kent, in his classic statement of the ripar-
ian doctrine said that:
The nature and extent of the right acquired by prior occupancy of a running stream
becomes frequently an important and vexatious question between different ripar-
ian proprietors. The law gives considerable weight and effect to the first appro-
priation of the elements of light, air, and water....If I am the first person who
applies the water of a running stream to the purposes of irrigation, or of a mill,
I cannot afterwards be lawfully disturbed in any essential degree, in the exercise
of my right, provided the water be used by me in such a reasonable manner, as
not to divert the natural course of the stream from the lands below, nor essen-
tially to destroy the use of it as it naturally flowed over the lands of the propri-
etors above and below me. 3 Kent, Commentaries 358 (1st ed. 1828).



undisturbed on payment of compensation to the other riparians.10 In ad-
dition, where a nonuser seeks to enjoin an existing use, some courts have
granted an injunction that protects the nonuser against loss of his right by
adverse use but which cuts down the existing use only at such future time
as the nonuser actually desires to use water."
Another line of criticism of the riparian system concerns the manner
in which it is administered, a manner that is alleged to aggravate the un-
certainty inherent in riparian theory. The extent of a riparian's right of
reasonable use can be determined only by litigation. Occasionally a court
has undertaken to apportion the stream flow between two competing users
in order that each will have a clearer picture of his rights as against the
other under the circumstances prevailing at the time,12 but the fact that
apportionment decrees are infrequently rendered may indicate either that
they are not suitable in most situations of conflicting uses or would involve
the court more closely than it desires in the supervision of uses. Whether
or not an apportionment decree is rendered, it is alleged that a court is
generally unable to incorporate a sufficient degree of flexibility in its de-
cree to meet changing conditions that may alter the relative standing of
the parties, and that the outcome of much litigation does not enable the
parties themselves to judge the reasonableness of their uses under chang-
ing conditions. Moreover, other limitations of the judicial process have
been emphasized by critics of this mode of administration of the riparian
system: the costly and time-consuming nature of judicial procedure is
said to render nugatory much of the protection the parties to the action
seek against each other; and the particular uses litigated may still be up-
set by the uses of riparians not parties to the decree.13

10. See Maloney, The Balance of Convenience Doctrine in the Southeastern
States, Particularly as Applied to Water, 5 S.C.L.Q. 159 (1952). Resort to this
doctrine, of course, affords no solution where the amount of compensation awarded
is too large for the favored use to bear.
11. Meridian Ltd. v. San Francisco, 13 Cal. 2d 424, 90 P. 2d 537 (1939); Pea-
body v. City of Vallejo, 2 Cal. 2d 351, 40 P.2d 486 (1935); Ulbricht v. Eufaula Water
Co., 86 Ala. 587, 6 So. 78 (1889).
12. In making such an apportionment between two conflicting power uses by ri-
parian owners, the Maine court said:
To make the water power of economic value, the right to its use, and the division
of its use according to those rights, should be determined in advance. This pri-
or determination is evidently essential to the peaceful and profitable use by the
different parties having rights in a common power. To leave them in their uncer-
tainty, to leave one to encroach upon the other,...is to leave the whole subject mat-
ter to possible waste and destruction. Warren v. Westbrook Mfg. Co., 88 Me. 58,
66, 33 Atl. 665, 667 (1895).
13. The absence of frequent litigation in many eastern states may mean that
this dissatisfaction with judicial administration of the riparian system discourages
the use of water where litigation might result or that it compels extrajudicial set-


It is likely that a considerable degree of uncertainty does attach to uses
under the riparian system, despite the possibility of moderating it in prac-
tice. Critics allege that this uncertainty results, on the one hand, in need-
less loss of resources invested in water-using enterprises later upset by
competing projects and, on the other, in waste of water that goes unused
* or that is devoted to less valuable uses because investment in more ex-
tensive projects is discouraged by risk of such loss. As a specific exam-
ple, it has been said that the riparian system discourages projects for the
increasingly necessary "seasonal" storage of the excess waters of wet
seasons for use during subsequent drier periods.
As is true of the riparian system's advantage of flexibility, the actual
impact of this element of uncertainty on existing and potential uses has
yet not been fully explored in sufficient detail. Nevertheless, this uncer-
tainty is undoubtedly the most criticized aspect of the riparian system.
More than any other, it is this criticism of the traditional form and ad-
ministration of the system that has sparked the recent movement for new
water-rights legislation in many eastern states. The proposals in several
states for the introduction of appropriation rights appear to be motivated,
in particular, by the greater degree of certainty thought to attach to uses
under such rights.



The appropriation right contrasts with the riparian right in several im-
portant respects. Moreover, the appropriation right is an integral part of
the administrative appropriation system of water law in the seventeen
western states, a system which is strikingly different from the riparian
system of the East.14

tlement of disputes. On the other hand, it could also mean that supplies have gen-
erally been ample to cover needs or that extra-judicial forces are operating to
maintain reasonable relations among users to such an extent that resort to the
courts is seldom necessary.
* 14. The origin and development of the appropriation principle in the seventeen
western states, the total rejection of riparian rights in eight states, and the co-
existence of riparian and appropriation rights in the other nine states are traced
in 6-A American Law of Property 28.58 (Casner ed. 1954); Hutchins, History of
the Conflict between Riparian and Appropriative Rights in the Western States, Pro-
ceedings: Water Law Conferences, U. of Texas 106 (1952 & 1954); Trelease, Co-
ordination of Riparian and Appropriative Rights to the use of Water, 33 Texas L.
Rev. 24 (1954).


Appropriation rights
Creation and loss. An appropriation right arises from the application
of previously unappropriated water to a beneficial use,15 not from the
ownership of a particular tract of land. Beneficial use is as necessary to
maintain the right as to create it, and nonuse of water theoretically must
result in a declaration of its abandonment or forfeiture. The right may
also be lost by prescription.
Priority. The distinguishing element of an appropriation right is the
priority whereby its relation to other appropriation rights is determined.
The priority of a right allows its holder to divert water as needed and up
to the full amount covered by his right before any water may be diverted
under rights of junior (later) priority. In order to satisfy this right, an
appropriator is entitled to substantial preservation of the conditions of
stream flow (time, quantity, and quality) obtaining when his right is cre-
ated. Under modern procedures for the acquisition of rights, the priority
of a right attaches as of the date of filing an application to a state agency
for an appropriation permit, provided the application is approved and the
proposed use is begun with diligence.16 Priorities are based solely on
this factor of time and are not affected by such other factors as the pur-
pose, place, or amount of use.
Place, purpose, time, and amount of use. Under an appropriation right
water may be diverted for use on any land, regardless of its riparian or
nonriparian character.17 The right entitles its holder to continue forever

The evolution of the administrative appropriation system is recorded in Lasky,
From Prior Appropriation to Economic Distribution of Water by the State via
Irrigation Administration, 1 Rocky Mt. L. Rev. 161, 248 (1929), 2 Rocky Mt.
L. Rev. 35 (1929).
The rejection of the riparian principle relating to the right to use water in eight
western states did not constitute a rejection of such other riparian rights as owner-
ship of stream beds, accretions, fishery, access, etc. 9 Wyo. L. J. 130 (1955).
15. The ubiquitous statement is that "beneficial use is the basis, measure, and
limit of the right."
16. Where the application is approved and the proposed use is begun with dili-
gence, the priority of the right is said to "relate back" to the filing of the appli-
cation. This doctrine of relation back is important where, once an application has
been approved, a considerable amount of time and money must be expended in the
construction of project looking toward the use of particular unappropriated water.
As to states in which application to a state agency need not be filed, see note 20,
17. The power of eminent domain is granted private persons in many western
states for the acquisition of rights-of-way to a stream. Clark v. Nash, 198 U.S.
361 (1905); Colo. Rev. Stat. Ann. 147-3-1 to-6 (1953); Mott v. Coleman, 287 P.
2d 655 (Colo. 1955) appropriatorr allowed to condemn neighbor's ditch, in the
only location practicable to appropriator, though ditch could not serve needs of


to divert water at the same point for use at the same place, for the same
purpose, and at the same time of the year as the use that gave rise to the
right. The maximum amount of water beneficially used during the period
in which the use is first begun is the maximum amount that may be used
under it at any subsequent time; this amount is frequently stated both in
terms of the maximum rate of flow (in cubic feet per second or in miner's
inches) that may be used at any moment and also in terms of the maximum
volume of water (in acre-feet) that may be used over a given period of time
(usually one year or one growing season).18 Within these limits, the appro-
priator is theoretically limited to whatever lesser amount may be reason-
ably necessary to continue the beneficial use which gave rise to the right.
The priority and amount of an appropriation right cannot be increased
by the appropriator, but he may change the point of diversion or the place
or purpose of use if the rights of others are not thereby impaired.
Administrative procedures
Acquisition of new rights. Appropriation rights could originally be ac-
quired either through mere diversion and beneficial use of water or by
posting a notice at the point of diversion, filing a copy in the county rec-
ords, and then commencing the use.19 In almost every state today, however,
both users and neighbor had to construct new one for himself); Annot., 9 A.L.R.
583 (1920), 27 A.L.R. 519 (1923).
In many states certain types of use, especially irrigation, are declared public uses
or internal improvements, for which land or water rights may be condemned by
private persons. Lake Koen Navigation, Reservoir, & Irrigation Co. v. Klein, 63
Kan. 484, 65 Pac. 684 (1901); McCook Irrigation & Water Power Co. v. Crews, 70
Neb. 109, 96 N.W. 996 (1903), rehearing, 70 Neb. 115, 102 N.W. 249 (1905). N.D.
Rev. Code 161.0104 (1943); (Okla. Stat. Ann.) tit. 82 2 (1951); S.D. Sess. Laws
1955, c. 430, 61.0156.
Statutes in all states permit appropriated water to be conveyed in natural stream
channels subject to certain conditions, the most common being that rights of others
not be impaired and that allowance be made for losses in transit. Ariz. Code
Ann. 175-144 (1939); Colo. Rev. Stat. Ann. 1147-5-2 (1943).
18. The overwhelming majority of appropriation rights are for irrigation, and
the amount of water needed day-by-day or week-by-week to irrigate a crop varies
considerably with climatic conditions apd with the water requirements of a par-
ticular type of crop at different periods of the growing season. The maximum rate
of flow in terms of which an appropriation right is defined is usually set in terms
of the maximum amount likely to be needed at any one time; but, as this maximum
rate is not needed at all times during the growing season, the maximum volume of
water covered by an irrigation right is frequently less than the volume of water
that would result from diverting the maximum rate throughout the season.
19. The priority in the former case would date from the actual commencement
of the use, whereas in the latter case it would relate back to the posting and filing
if the use were thereafter begun with diligence.


a formal application must be submitted to a state agency. The application
must contain a detailed description of the proposed new use, and on the
basis of this information the agency can fulfill its statutory duty to reject
the application if the new use would conflict with existing uses or would
be contrary to the public interest. 20 After a hearing at which interested
parties may object to the proposed use, the agency may reject the appli-
cation or approve it in whole or in part. If the application is rejected, the
applicant may take an immediate appeal to the courts, but unless he se-
cures a reversal of the agency's order he is prohibited from using or
from claiming any right to use water. To the extent an application is ap-
proved, the applicant is granted a permit signifying the state's approval
of the proposed use, and he must undertake his project diligently and
within the terms of his permit. The agency may cancel the permit for
violation of these conditions, but where the project is completed in accord-
ance with them the agency grants him a license or certificate evidencing
his right to make the approved use, subject, of course, to the requirement
that it not interfere with uses under senior rights. While senior appro-
priators may enjoin his use at any time if interference results, his right
to a substantial preservation of existing conditions of stream flow entitles
him to protection against interference arising from subsequent changes
in the uses made under senior rights.
Some of the requirements of this acquisition procedure must also be
complied with when an appropriator wishes to change the point of diver-
sion or place or purpose of his use. On his application, the agency holds
a hearing to determine whether the rights of others would be impaired
and then rejects or approves the application accordingly.
Adjudication of early rights. Complete data on the location, nature, and
amount of existing rights is needed by both the agency and the courts in
order to protect these rights when granting new permits or distributing
water from the stream. The agency generally has adequate records re-
lating to rights acquired under modern procedures. But the informal and
decentralized acquisition procedures of earlier times meant that rights
were usually defined only by the inflated claims of the users, and it has
been necessary to conduct adjudication proceedings to determine the
amount of water actually put to a beneficial use by these claimants. An
adjudication of such early rights is made in a single proceeding for an
entire stream basin or a designated part thereof. Under the most common
form of adjudication procedure, the state agency takes evidence relating

20. As outlined in note 216 infra, there is an absolute right to appropriate water
in Colorado and in Idaho (except for power uses), which means that a proposed use
cannot be be rejected as contrary to the public interest. Filing an application with
the state agency is optional in these states; if one is filed, the appropriator secures
the advantage of the relation-back doctrine mentioned at note 16 supra; otherwise
the priority dates from the time of actual use as described in note 19 supra.



Sto claimed rights and submits la preliminary order of determination to the
court which, after hearing objections to the order, issues a decree affirm-
ing, modifying, or rejecting it. In two states, however, the agency's order
is final and conclusive unless appealed to a court and modified or reversed
by it.
Distribution of water. Officials of the state agency frequently play an
active part in the actual distribution of water from the stream to ensure
that each user is receiving all, but no more than, the amount lawfully due
him. For such administrative purposes, a state may be divided into di-
visions corresponding to major stream basins, and each division is sub-
divided into several districts.! The district official, often called a water-
master or a "ditch rider", may be authorized to control the operation of
each user's diversion facilities and may also possess the power to arrest
unlawful users. The vital role performed by these officials has frequently
been stressed.21 Today most early rights have been adjudicated and little
water remains available for the acquisition of new rights in many western
areas, with the result that this distributive function has risen to paramount
importance in the administrative appropriation system.

1 Advantages

The contrast between riparian and appropriation rights evident in the
foregoing description is sharpened by a statement of the advantages and
problems associated with appropriation rights, for each type of right ap-
pears to be strong in precisely the way in which the other is weak.
Since an appropriation of water nay generally be made for use at any
Location, the absence of a riparian-land restriction is said to make it
likely that water will be used where most beneficial both to the individual
user and to the general public. More important, however, is the claim
that the priority relationship among appropriation rights allows a much
greater degree of certainty than is possible under the reasonable-use
* relationship among riparian rights. Further, the appropriation principle
21. "The water commissioner is the most important officer with whom the Colo-
rado farmer comes in contact. The efficient discharge of the duties imposed upon
him requires firmness, energy, hard woekb and more than average judgment. He has
to deal with a constantly fluctuating Watejr-supply; he has to determine whether or
not water is being used with economy; he has even to exercise discretion as to how
Sthe relief of suffering appropriators can be best afforded. On his action, and many
instances on his tact and judgment, the peace and harmony of the neighborhood de-
Spends. He more than any other individual or official can promote economy in the
use of water and extend the acreage of crops which are brought to maturity. All of
the other steps under the Colorado irrigation code are simply preparatory to the
work of the water commissioner. It is only whn codes provide for the enforcement
and protection of rights by some such officialthat water titles can be considered as
having a stable and definite value." Mead, Irrigation Institutions, 163-64 (1903).


places a premium upon the actual beneficial use of water, and unused
rights are not allowed to persist as threats to the stability of existing
uses. Such specific problems of uncertainty under the riparian system as
that of seasonal storage do not exist under the appropriation system, as
appropriation rights may be acquired for storage of water as well as for
"direct flow" diversions for immediate use.22 Finally, it is claimed that
the inherent certainty of appropriation theory is translated into reality
through the acquisition, adjudication, and distribution procedures of the
administrative appropriation system.
As may be true of the alleged uncertainty under riparian rights, how-
ever, the certainty claimed for uses under appropriation rights may be
somewhat exaggerated. The certainty attaching to an appropriation right,
particularly one of junior priority, can be no greater than the dependabil-
ity of the water supply. This dependability of supply is determined initially
by natural conditions, though some variation of supply is ironed out by the
extensive regulation of flow now achieved in numerous western streams.
In addition, it is difficult in some situations to distribute the available sup-
ply strictly in accordance with priorities. Distribution of water among a
large number of appropriators might be a simple task if they happened to
be arranged in order of descending priority down the length of the stream,
as each appropriator could freely divert his lawful amount from whatever
stream flow reached him without risk of impairing senior rights below
him. But it may be an infinitely complecxoperation where the priorities
are scattered haphazardly up and down the stream.23 To the extent priori-
ties are not or cannot be strictly enforced because of these complexities,
the certainty attaching to senior rights is reduced.24 Moreover, as will be
discussed in the next part, several avoidable weaknesses in the adminis-
tration of the appropriation system have also affected the degree of cer-
tainty actually attained.
Nevertheless, it is likely that despite these problems the precise defi-
nition given appropriation rights and their present mode of administration
result in a greater amount of certainty for more users than is attainable
under the riparian system in its traditional form. It is this advantage of

22. See, e.g., the detailed provision made for acquisition of storage rights and
for distribution of stored water in Wyo. Comp. Stat. Ann. 71-601-621 (1945).
23. An example of one relatively simple situation would be where a downstream
appropriator with a senior priority suddenly needs and is entitled to more water
than is available in his section of the stream, but it is unlikely that closing the di-
version headgate of an upstream junior appropriator would enable water to reach
the downstream appropriator in time or, because of evaporation and seepage losses,
in usable amounts.
24. See State ex rel. Cary v. Cochran, 138 Neb. 163, 292 N.W. 239 (1940) (dis-
cussing at length the many factors that can cause great uncertainty to plague even
senior rights).


greater certainty that is sought by the advocates of appropriation rights
legislation in the East.


The judicially developed riparian system has been the subject of little
legislative interest until recent years in the East.25 The principle of ri-
parian rights did not appear in Anglo-American jurisprudence until after
the first quarter of the nineteenth century, prior to which time the law of
water rights had been largely unformulated.26 Both before and after the
emergence of this principle, the great contemporary importance of water
power and the considerable fixed investment entailed in utilizing it led
many eastern states to adopt Mill Acts to protect and encourage this par-
ticular type of enterprise.27 Under these Acts a riparian owner,'as long
as he did not set water back upon an existing upstream mill, could dam
the stream and use water for mill purposes by compensating upper ri-
parians whose land was flooded by his mill pond. To the extent of the wa-
ter power thus taken from a nonusing upper owner, these Acts introduced
elements of an appropriation system into the unformulated or rudimentary
water law of these states. But in those states where the enactment of Mill
Acts preceded the adoption of the riparian principle, the Acts cannot be
considered a response to the criticisms of the riparian system outlined
Public water supply uses and some miscellaneous types of use have been
subjected to a degree of regulation for several decades in some eastern
states,28 but it was not until the 1930's that any form of state regulation
was extended to more general types of use. Over the past two decades a

25. Brief statutes were enacted in Georgia and Louisiana at relatively early
dates and have been construed by the courts as incorporating the riparian princi-
ple. Ga. Code Ann. 85-1301-1306, 105-1407 (1935); La. Civ. Code Ann. art. 661
(1945); see Comment, 16 La. L. Rev. 500 (1956); Comment, 29 Tul. L. Rev. 554
26. Wiel, Origin and Comparative Development of the Law of Watercourses in
the Common Law and in the Civil Law, 6 Calif. L. Rev. 245, 342 (1918); Wiel,
Waters: American Law and French Authority, 33 Harv. L. Rev. 133 (1919).
27. The history and rationale of these Acts are set out in Head v. Amoskeag
Mfg. Co., 113 U.S. 9 (1885) (upholding New Hampshire Act against allegation of
taking for private use in violation of fourteenth amendment). The Acts in some of
the eastern states are reviewed in the accompanying studies of water law. See
note 35 infra with reference to the Virginia Acts.
28. For example, New Jersey has regulated the acquisition of rights to stream
and ground water for public supply purposes since 1907 and 1910. N.J. Stat Ann.
i 58:1-1 to-34 (1940, Supp. 1955). It has exacted an annual fee for such uses
since 1907. N.J. Stat. Ann. 58: 2-1 to-4 (1940, Supp. 1955), Trenton v. New


number of states have enacted statutes requiring a permit from the state
for the use of stream or ground water, though most of the statutes exempt
from their coverage certain important types of use or various areas of
the state.29 It appears that there has been little enforcement of some of
these statutes, at least until the last few years,30 and the reasons for en-
actment of many of them are not sufficiently clear to justify a conclusion
that they resulted from dissatisfaction with the riparian system in line
with the foregoing criticisms.
On the other hand, certain legislative interest in the subject of water
rights during the past five or six years can be traced directly to these
criticisms. This interest appears to be developing along two distinct
lines: one line might be called riparian-system legislation, and the other
is represented by the proposals for enactment of appropriation-rights
legislation. Though the legislative activity to date has been confined pri-
marily to these two lines, 31 there is also in the eastern states a growing

Jersey, 262 U.S. 182 (1923). And it has prohibited out-of-state diversions of water
since 1905. N.J. Stat. Ann. 58: 3-1 to-3 (1940 Supp. 1955), Hudson County Water
Co. v. McCarter, 209 U.S. 349 (1908).
29. Stream and ground water statutes: Md. Ann. Code. art. 66C 666-81 (1951)
(enacted 1933). Stream water statutes: Wis. Stat. 31.14 (1953) (enacted 1935).
Minn. Stat. Ann. 105.37-64 (Supp. 1955) (first enacted 1937). N.C. Gen. Stat.
113-81 (1952) (enacted 1951; irrigation use only). 11. Rev. Stat. c. 19, 65 (1955)
(1945 reenactment of earlier statute authorized state agency to grant permits to
nonriparians to use water from "public bodies of water" for industrial, manufac-
turing, and public utility purposes.) Ground water statutes: N.Y. Conserv. Law
521a (enacted 1933; applies to Long Island only). Wis. Stat. 144.03 (6)-(8) (1953)
(enacted 1945). N.J. Stat. Ann. H 58:4A-1-4 (Supp. 1955) (enacted 1947). Ind. Stat.
Ann. 27-1301-1313 (Burn's Supp. 1955) (enacted 1951). Ill. Rev. Stat. c. 111
2/3, 223-32 (1953) (1951 enabling act for creation of local Water Authorities
with power, among other things, to regulate certain uses during actual or threat-
*ened shortage).
Miscellaneous requirements such as the sealing of abandoned wells and the li-
censing of well drillers have been enacted in numerous states. E.g., N.J. Stat.
Ann. i 58: 4A-4.1-4.3, 58:4A-5-28 (Supp. 1955). The great variety of statutes re-
lating to water in some eastern states is evident in the accompanying study on
water law in Michigan, pp. 407-416.
30. Ellis, Some Current and Proposed Water-Rights Legislation in the Eastern
States, 41 Iowa L. Rev. 237 (1956); Rembe, Legal Aspects of Water Works Opera-
tions in Illinois, 48 J. Am. Water Works Assoc. 1551 (1956). The New York statute
regulating ground water uses of Long Island has been consistently enforced, how-
ever. Johnson, Conservation of Ground Water on Long Island, 47 J. Am. Water
Works Assoc. 348 (1955); Thompson & Johnson, Panel Discussion 41 id. at 1007-
1011 (1949).
31. Some water rights statutes recently enacted in the East do not fall clearly
within either the riparian or appropriation line of legislative activity and in some


interest in the development of a system of water rights somewhere between
these two traditional systems, which !are usually viewed as representing
the polar positions within the range df possibilities,32 and certain intri-
guing suggestions as to systems of an intermediate nature are beginning
to emerge.33
The riparian system legislation consists of statutes enacted in Indiana,
Kentucky, and Virginia since 1954.34' These three states have each adopted
a rather similar declaration of policy that the state should exercise its
police power to effectuate the full utilization and protection of its water
resources. The Indiana and Kentucky statutes contain further provisions
Which may represent only a codification of certain aspects of riparian
rights in those states; i.e., the statutes declare each riparian's right to a
domestic use of water and then, subject to the domestic requirements of
other riparians, allow him to make a reasonable use of water for non-
domestic purposes. These two statutes also attempt to clarify the rights
of riparian owners for storage of surplus water in excess of existing
reasonable uses, and a statute enacted by the 1956 session of the Virginia
legislature included rather detailed provisions intended to encourage such
storage by riparian owners.35

instances may be intended only as temporary measures pending adoption of more
general and permanent legislation. For example, South Carolina in 1955 adopted
a statute allowing International Paper Company to divert 100 cubic feet per second
from the Great Pee Dee River but not mpre than 8% of the flow at the point of di-
version. But the Company was expressly denied recourse against upper users ex-
cept for violations of laws "regulating the pollution or control of rivers and
streams." It is stated that nothing in the statute is to prevent irrigation and agri-
cultural uses by upper or lower ripariars, and the rights of anyone to recover
damages sustained by the diversion are expressly preserved. Finally, any one
else is given exactly the same right to ise water from this river as the Company.
Consequently, the effect of this statute dn the uncertainty of riparian law may be
Negligible. S.C. Code 70-501-506 (Supp. 1956). For other legislative activity in
this state, see note 37 infra.
32. Wiel, Theories of Water Law, 27 Harv. L. Rev. 530 (1914).
33. See pp. 35-47, and pp. 417-429, $17-625. Marquis, Freeman, and Heath,
The Movement for New Water Rights Laws in the Tennessee Valley States, 23
Tenn. L. Rev. 797 (1955).
34. Ind. Ann. Stat. If 27-1401-1405 (Burns Supp. 1955). Ky. Rev. Stat. 262.
670-.690 (1955). Va. Code Ann. if 62-9.1-9.4 (Supp. 1956).
Some of the many questions raised by the Kentucky statute are discussed in 43
Ky. L.J. 407 (1955), and the Kentucky & Virginia statutes are compared at 504.
35. Va. Code Ann. Sf 62-94.1-.12 (Supp. 1956), a statute relating to "Impound-
ment of Surface Waters." The statute (1) declares diffused surface water captured
by a landowner to be his "property", and (2) permits riparian owners to apply to
the county court for leave to store stream water "over and above the average flow
of the stream" but only on conditions which are vague and potentially restrictive.


Appropriation proposals have been studied in several eastern states,
and Mississippi in 1956 became the first state to enact such legislation.36
Similar proposals have been before the South Carolina legislature since
195437 and were submitted to the legislatures of North Carolina and Ark-
ansas in 1955.38 Other appropriation proposals have been unofficially sug-
gested in Wisconsin39 and Michigan.40
Each of these six proposals41 would make certain provision for rights
under existing law and would allow the remainder of the water supply to
be used only under appropriation rights acquired subsequent to enactment
of the proposal. These appropriation rights are identical with the appro-
priation rights of western law described above, and would be acquired
through administrative procedures similar to those now prevailing in al-
most all western states.42 Wherever a proposal prescribes a procedure
for the adjudication of the scope of existing rights, it is similar to the
joint administrative-judicial adjudication procedure of most western
states.43 In addition, some of the proposals provide for participation by

The statute includes no provision for the acquisition of property and flowage rights
such as is found in the state's Mill Acts. Va. Code Ann. 62-95-106 (1950); see
Staples, The Mill Acts, 9 Va. Law Reg. 265 (1903).
36. Mississippi General Laws 1956, c.167.
37. H. 1095 and S. 43, 1956 Regular Session, S.C.G.A.
A 1953 statute presaging future regulation or modification of existing rights in
South Carolina declares the policy of the state to exercise its police power to ef-
fectuate the full utilization and protection of water resources. S.C. Acts & Joint
Resolves 1953, No. 377.
The appropriation proposal in this state has been widely debated and was some-
what amended in legislative committee in 1954 and 1955 following its official
recommendation to the legislature in Report of the State Water Policy Committee,
A New Water Policy for South Carolina (1954).
38. H. B. 298 and S. B. 153, N.C.G.A. (1955). S.B. 69, 60th Reg. Sess., Ark.
G. A. (1955).
39. Coates, Present and Proposed Legal Control of Water Resources in Wiscon-
sin, 1953 Wis. L. Rev. 256.
40. The Michigan proposal is the subject of the constitutional study in this
volume (see note 2 supra). For text of the proposal, see pp. 49-62. The proposal is
described generally in Barlowe, Proposed Water Rights Legislation in Michigan,
26 Land Economics 300 (1950).
41. For convenience of expression, general references here to the eastern pro-
posals are intended to include the Mississippi statute as well as the proposed legis-
lation in the five other states.
42. Under all of the proposals, however, domestic uses (except, in Michigan, by
nonriparians) may be made without acquiring a right under these procedures.
43. A detailed adjudication procedure is provided in Arkansas proposal 15-22;
a briefer procedure is outlined in Mississippi statute 13, North Carolina proposal
14, and South Carolina proposal 15.


the state agency in the actual distribution of water from the stream.44
The provision made for existing rights under these proposals deter-
mines the extent to which appropriation rights, with their advantages and
problems, can apply iri the particular state. It also determines the extent
to which the advantages and problems of existing riparian law will con-
tinue in the future. The Mississippi statute and the South Carolina propo-
sal limit existing rights to the amount of water lawfully and beneficially
used within three years prior to enactment of the legislation; the North
Carolina proposal limits them to the amount so used at the date of enact-
ment. In addition, the Mississippi statute and the North and South Carolina
S proposals recognize an existing right to the amount of water lawfully and
beneficially used within a certain period after enactment where projects
for such use are already under construction at enactment.45 Except where
construction is in progress, however, riparian rights under existing law
are lost to the extent that they have not been used prior to or at enact-
ment.46 No priorities are established among the existing rights that are
preserved. Under the North and South Carolina proposals, the use made
44. Mississippi statute 24, North Carolina proposal 25, and South Carolina
proposal I 27.
45. The definition of these existing rights in the Mississippi statute, 2 (g) (2) -
(3), is as follows:
"The right to continue the use of water having actually been applied to any bene-
ficial use at the time of the effective date of this act, or within three (3) years
prior thereto to the extent of the beneficial use made thereof. ..
"The right to take and use water for beneficial purposes where a person is bona
fide engaged in the construction of works for the actual application of water to a
beneficial use at the time of the effective date of this act, provided such works
shall be completed and water is actually applied for such use within three (3)
years after this act becomes effective, with extension of not more than seven
(7) years in the discretion of the board. It is not the intent, however, to validate
any claim to the use of water, or for rights of construction looking to the use
of water, not lawful on the effective date of this act."
For purposes of this definition, the statute is effective as of the date of enactment
( 30).
46. The technique of limiting riparian rights to the amount of water used at or
prior to enactment (or Subsequent thereto as a result of construction then underway)
Originated in the Oregon Water Code of 1909. It was designed to eliminate unused
riparian rights and to set a ceiling on the amount of water covered by used riparian
rights; the object was to permit the remainder of the supply to be used under ap-
propriation rights which could not be upset by the unpredictable uses of riparians
under their otherwise flexible rights of reasonable use. Oregon Laws 1909, c. 216
i 1 & 70 (2) (3); as amended, these provisions are codified in Ore. Rev. Stat. If
537.120, 539.010 (1) (2) (1953). The constitutionality of this technique was upheld
by the Oregon court in In re Hood River, 114 Ore. 112, 227 Pac. 1065 (1924), and


under these rights does not appear to be restricted to the original place
and purpose, though this characteristic restriction of appropriation rights
does apply to rights preserved under the Mississippi statute. The
Mississippi statute contains the further provision, to be returned to in a
moment, that these preserved rights may be "modified or terminated" by
the state agency at any time "upon good cause shown."47
The Arkansas proposal would deny recognition to any riparian
rights for other than domestic purposes,48 but the Wisconsin proposal and

by the Court of Appeals for the Ninth Circuit in California-Oregon Power Co. v.
Beaver Portland Cement Co., 73 F.2d 555 (1934), aff'd on other grounds, 295 U.S.
142 (1935). See constitutional study, pp. 454-455.
This "Oregon Plan" technique was incorporated in a new Water Code in South
Dakota in 1955, (S.D. Sess. Laws 1955, c. 430) and it is also found in the Kansas
Water Code of 1945, though with an added provision allowing the owners of unused
riparian rights to sue for whatever damages they are deemed to have sustained by
loss of their rights. Kan. Gen. Stat. Ann. 1 82a-701 to -722 (1949), State ex rel.
Emery v. Knapp, 167 Kan. 546, 207 P.2d 440 (1949) (upholding the constitutionality
of the act to the extent of the specific questions presented), discussed in the consti-
tutional study at pp. 448-450. The provision for possible compensationfor theloss of
unused riparian rights represents a development of an idea that first appeared in
McCook Irrigation and Water Power Co. v. Crews, 70 Neb. 109, 96 N.W. 996 (1903),
rehearing, 70 Neb. 115, 102 N.W. 249 (1905), discussed in the constitutional study at
pp. 450-451.
There has been a decided trend in the West toward disfavoring riparian rights,
and the Oregon Plan approach has also been considered at various times in some
of the six other western states in which riparian rights have coexisted with appro-
priation rights. Horowitz, Riparian and Appropriation Rights to the Use of Water
in Washington, 7 Wash. L. Rev. 197, (1932) (suggesting such legislation in Washing-
ton but giving riparians a three-year grace period after enactment in which to be-
gin using their rights). The Oklahoma Ground Water Appropriation Code of 1949
allowed overlying landowners a two-year grace period before loss of their unused
rights of reasonable use under preexisting law in this state, Okla. Stat. Tit. 82
1001-1019 (1951), and in 1955 consideration was apparently being given to enact-
ment of similar legislation with regard to stream water.
47. Mississippi statute 5 5.
48. The status of riparian rights in Arkansas has been considerably altered
since this proposal was submitted to the legislature in 1955. In October 1954, the
court had ruled that the riparian doctrine prevails in Arkansas; but, apparently to
allow the legislature maximum freedom to act in this area, the court avoided a de-
cision as to whether its previous opinions had made a choice between the natural
flow or reasonable use rules. Harrell v. City of Conway, 224 Ark. 100, 271 S.W.
2d 924 (1954). In October 1955, however, the court announced a "definite acceptance
of the reasonable use theory," adding that, subjectto the superior right for domes-
tic purposes, "some of the lawful uses of water recognized by this state are: fish-
ing, swimming, recreation, and irrigation." Harris v. Brooks, 283 S.W.2d 129,
133, 134 (Ark. 1955).


(to a certain extent) the Michigan proposal employ the technique used to
limit riparian rights by the Mississippi statute and the North Carolina
and South Carolina proposals. The Wisconsin proposal defines existing
rights as those under which beneficial use is made prior to enactment,
though it is not entirely clear that existing rights are limited to the amount
of this prior use. Under the Michigan proposal, riparian rights of reason-
able use for domestic, power, recreation and fishing purposes would be
preserved with some modification.49 Subject to these rights, the proposal
would then recognize appropriation rights to the extent that water has
been reasonably and beneficially used for other purposes prior to enact-
Sment and not already abandoned; these rights would be recognized for uses
on riparian or nonriparian land and presumably by riparian or nonriparian
owners, and they would be assigned priorities dating from the time each
use was begun.50 The Michigan proposal, like the other eastern proposals,
then provides that any remaining supply of water may be used under ap-
propriation rights acquired by application to a state agency subsequent to
This current interest in the subject of water rights indicates that some
eastern areas may be approaching a situation similar to that prevailing
since the time of first settlement in most of the West, where the supply
of water readily available at low cost is less than the demand for its use.
The advocates of appropriation legislation in the East believe that a de-
sirably high level of beneficial use of limited supplies will be achieved by
restricting riparian rights to the amount of existing use under them and
by allowing appropriation rights to attach to any remaining supply. As al-
ready indicated, the aim of these proposals is to secure the greater de-
gree of certainty that is probably attainable under appropriation rights.
But in the western law on which these proposals are modeled there have
appeared serious problems that may more than offset this advantage of
certainty. The likelihood that these same problems would emerge under
these eastern proposals calls for an analysis both of these western prob-
lems and the remedies available for meeting them in western law. Per-
haps it is because of anticipated problems of this nature that the one ap-
propriation statute enacted thus far in the East-in Mississippi-provides
that appropriation rights acquired after enactment (as well as existing
rights preserved by the statute) may be modified or terminated by the
state agency at any time upon good cause shown.51 No standards are pre-
scribed for the exercise of this administrative power from which the

49. These are the Class A vested rights contemplated by 7 of the Michigan
proposal. Ways in which the riparian right of reasonable use for these four pur-
poses may be somewhat modified by the proposal are discussed in the constitutional
study, pp. 444-446.
50. These are the Class B vested rights of i 7.
51. Mississippi statute 0 5; see note 46 supra.


purpose of this provision can be less speculatively determined, but what-
ever the reason for it this provision would appear to have a decided im-
pact upon the certainty of water rights in the state.52



The administrative appropriation system of western law appears to
have shortcomings that seriously impede a high level of beneficial use of
a state's water resources. Some of these have long been recognized, but
the full significance of others is only now becoming evident.
In broad terms, these western problems concern the waste of water and
situations of unnecessary uncertainty. The larger group are the problems
of waste-those relating to the use of water in wasteful amounts, at waste-
ful locations, and for wasteful purposes. These problems are primarily a
result of a priority system of rights under which uses are frozen in terms
of the original amount, place and purpose of use. These problems and the
remedies available to meet them in western law are the principal subject
of discussion in this part of the paper.
As for the situations of unnecessary uncertainty, it has already been
stated that the certainty under appropriation rights is far from absolute
and that priorities are difficult or impossible to enforce in some physical
circumstances. 3 The problems of uncertainty discussed later in this part,
however, should be capable of solution to a substantial degree. These re-
late to the uncertainty sometimes confronting would-be users and the state
agency as to the amount of water covered by existing rights, to the uncer-
tainty caused by the continued existence of riparian rights of reasonable
use in a few states, and to the uncertainty concerning rights to the use of
return water. The problem of return water is partly one of unsettled legal
doctrine. Another problem of unsettled doctrine, but one which probably
causes little general uncertainty, relates to the question whether prescrip-
tive rights may still arise in states with modern procedures for the ac-
quisition of new rights. These various problems are discussed briefly at
the end of this part.

52. Provisions comparable to 5 of the Mississippi statute are also found in
the Wisconsin proposal; see note 231 infra.
53. See note 23 supra.



The Problems

Ninety percent or more of the water used in the West is for irrigation.
To a considerable extent, therefore, problems of waste under the admin-
istrative appropriation system are problems of irrigation agriculture.
But these waste problems are not necessarily peculiar to irrigation. Al-
though as little as three percent of the water used in the East may be for
irrigation,54 in their general nature these western problems might not be
unlike problems that would arise under an administrative appropriation
system in the East.
The problems of waste in western law may be classified in three fairly
distinct but somewhat overlapping groups. They presume a situation of
S limited water supplies from which a high level of beneficial use is desira-
ble. First, given the place and purpose of a particular use, the amount of
water diverted for it is frequently excessive and wasteful. Second, given
S the purpose of a particular use, its location is often such that the same
purpose of use at another place would require a smaller amount of water.
Third, even though the location and the amount used are appropriate for
the particular purpose to which water is being applied, this purpose may
be such that the same amount of later used for a different purpose would
constitute a higher beneficial use.

SWasteful amounts
The problem of wasteful amounts concerns the application of unneces-
sarily large amounts to a given use, excessive losses in conveying water
{ from stream to place of use, and inefficient means of diverting water
S from the stream into a conveyance system.55

S 54. Data on the purposes of water use in the West and in the East are as follows
S for 1950:
17 western states 31 eastern states
domestic 5% 16%
industrial 3% 81%
irrigation 92% 3%
Total withdrawals
(billion gal. per day) 95 75

U.S. President's Materials Policy Commission, Resources for Freedom, vol.
5, at 89,90 (1952). U.S. Geological Survey, Estimated Use of Water in the United
States, Circ. No. 115 (1951).
55. These problems are concisely stated in U.S. National Resources Planning
Board, State Water Law in the Development of the West 38-39, 81-82 (1943), (here-


Application of water to the given use. Although an appropriation right
is defined in terms of a certain amount of water, an appropriator is under
an obligation to junior appropriators not to use more than whatever lesser
amount is reasonably necessary for his needs. In applying irrigation water
to a crop, it is generally necessary to use a greater amount of water than
is consumed by the crop for such reasons as the removal of dissolved
minerals that would otherwise accumulate in the soil, and application of
this extra amount is not deemed waste. But it is frequently found that the
amount an appropriator is actually applying is considerably beyond that
which is necessary for these reasons.
This obligation to use only that amount reasonably necessary has been
said to demand an unrealistic display of self-restraint. s6 Appropriators
tend naturally to err on the safe side by using an ample amount of water
while it is definitely available. They may be able to divert more than nec-
essary at the moment because the maximum rate of flow covered by an
appropriation right is usually greater than is actually necessary at many
times of the growing season.!s7 They may also be diverting wasteful
amounts because many early adjudication decrees awarded excessive
amounts to appropriators, amounts measured more by their claims than
by their actual beneficial use. Fear of forfeiture of the unused part of a
right is particularly likely to cause unnecessary uses of water.SS
The variable needs of appropriators, especially for irrigation, render
render it difficult for administrative officials to supervise actual methods
of applying water.59 Moreover, the authority of these officials may not
extend beyond the act of diverting water from the stream; particularly in

inafter cited as NRPB, State Water Law). See also Food & Agriculture Organiza-
tion of the United Nations, Water Laws in the United States of America 1-24 (1948),
(hereinafter cited as FAO, Water Laws in U..A.). These problems are further
documented in the discussion of remedies later in this part.
56. "....While [the doctrine of appropriation] reads well on paper, it is based
upon an altruistic concept of human behavior which practice has shown to be grossly
deficient. The appropriator is under a duty to take no more water from the stream
than he can use, and he may under no circumstances waste or extravagantly use the
water which he has appropriated. Yet, experience has shown not only that he may
not be trusted in his own judgment to so confine himself, but that enforcement of
this duty against him is attended with extreme difficulty. Even today, enforcement
rests largely in the individual initiative of fellow appropriators who are hardly in a
position to inspect his use for waste." Williams, Irrigation Law in Colorado, 10
Rocky Mt. L. Rev. 87, 178, 190 (1938).
57. See note 18 supra.
58. NRPB, State Water Law 58.
59. "....While it is true that the laws of most western states provide that the
measure of the usufructuary right is the beneficial use thereof, this does not go far
enough. In most states the determination of the question of necessity is either left
to the appropriator himself, or places it in the hands of an administrative official


the irrigation district organizations, public and private, within which the
bulk of western irrigation is carried on,60 the state officials usually have
S no control over the actual use of water by individual users. Finally, irriga-
tion techniques are continually improving to allow greater productivity per
unit of water used, but individual appropriators may be slow to change their
existing techniques, especially if the primary benefits of the change would
accrue to junior appropriators foi whom more water is made available.
In sum, given the place and purpose of a particular use, the application
of wasteful amounts of water to that use poses a substantial problem in
western law.
Conveyance of water from stream to place of use. The amount of water
an appropriator may take from the stream includes the amount he is en-
titled to use plus an allowance for seepage and evaporation losses in con-
veyance to the place of use. Seepages losses may be substantial in the
ditches and canals of the great majority of irrigation systems which are
not lined to reduce seepage loses as lined systems (or pipes) would fre-
quently be unduly expensive. In addition, the natural channels occasionally
used in the conveyance of water f4om a stream to the place of use may at
times involve disproportionate seepage losses. In some areas the com-
bined seepage losses from each appropriatbr's individual irrigation sys-
tem are substantially larger than would result from a consolidated network
of ditches and canals. As irrigation is practiced during relatively hot and
dry times of the year, evaporation losses may also be considerable.
Conveyance losses that were relatively harmless when many early uses
began may no longer be justifiable today, but some early conveyance sys-
tems have not been materially improved. 61 Where the particular use

whose power and authority are hedged about by statutory limitations and restric-
tions. In the absence of manifest and obvious waste of water by an appropriator,
the official is powerless. He can give no consideration to the more important ques-
tion of highest beneficial use; he has io authority to correct uneconomic, unskilled,
and shiftless methods of use; he cannot control the application of the water to a
particular area, and thereby bring about the application at a particular time to a
crop which must have water at that time or perish. ." McHendrie, The Law of
Underground Water, 13 Rocky Mt. L. Rev. 1, 16 (1940).
60. It was estimated in 1948 that Individual and partnership enterprises ac-
counted for roughly 1/3 of western irrigation, private cooperative enterprises for
another 1/3, district organizations for 1/5, the once important commerical com-
panies for only 5%, and federal reclamation projects for most of the remainder.
U.S. Dep't. of Agriculture, Irrigatio4 Agriculture in the West, Misc. Pub. No. 670
(1948). See also U.S. Dep't. Agriculture, Irrigation-Enterprise Organizations, Circ.
No. 934 (1953).
61. "...the state [of Oregon] can secure sufficient water to double its existing
irrigable acreage by reducing present water losses... The 1950 Census of Agri-
culture reported a conveyance loss #f 1,244,000 acre feet annually. This conveyance
loss alone represents a quantity of water sufficient to irrigate 370 thousand acres.



cannot bear the expense of improvements, this problem of wasteful losses
in conveyance may shade into the problems of wasteful location or waste-
ful purpose of use.
Method of diverting water from the stream. As already stated, an ap-
propriator is entitled to the substantial preservation of the conditions of
stream flow obtaining at the time his right was created. As part of this
right, he is protected in the maintenance of his method of diverting water
from the stream if this method is deemed reasonable under the circum-
stances.62 This protection, however, can prevent another person from
using seemingly available water where a senior appropriator's method
requires preservation of certain conditions of flow to propel his diversion
machinery or to keep the water level within reach of his intake facilities.63
Wherever an inefficient method of diversion was deemed reasonable by
the court, therefore, a part of the stream flow would have to pass substan-
tially unused. While protection of means of diversion is still an element
of the appropriation right today, it may be that the advent of cheap power
and modern pumping equipment has meant the end of earlier and often in-
efficient methods of diverting stream water. Nevertheless, the use of
wasteful amounts in diverting water may remain a sufficient problem to
justify mention here.64

Wasteful Location
A particular use may be so located that its value is relatively low in
terms of the amount of water necessary to maintain it. This problem of
wasteful location arises because an appropriation right entitles its holder
to continue forever to use the same amount of water for the same purpose
and at the same place. Though changes in the place (or purpose) of a use
are generally permitted, an appropriator may often feel a change of an

In addition to these conveyance losses, considerable quantities of water are lost
on the farm... as high as 60 percent of the total water applied." Oregon Water Re-
sources Committee, Report to the Forty-eighth Legislative Assembly 80-81 (1955).
62. Hutchins, Selected Problems in the Law of Water Rights in the West 168-73
(U.S. Dep't. Agriculture Misc. No. 418, 1942) (hereinafter cited as Hutchins, Se-
lected Problems); Annot., 121 A.L.R. 1044 (1939).
63. See, e.g., an Oregon statute entitled "Use of Water to Operate Water-Rising
Machinery," granting a riparian owner the "right to employ wheels, pumps, hy-
draulic engines, or other machinery for the purpose of raising water to the level
required for use of the water in irrigating any land belonging to him; provided, that
the use of the water shall not conflict with the better or prior right of any another
person." Ore. Rev. Stat. 541.410 (1953).
64. The amount of protection properly due an appropriator's means of diversion
of ground water constitutes an important problem today. Problems associated with
an administrative appropriation system of ground water rights are, however, be-
yond the scope of this paper.



existing wasteful use would not be in his individual interest. Furthermore,
the interdependencies of different uses where water is successively used
and reused by a number of appropriators frequently means that a change
cannot be made because of the requirement that the rights of others to a
preservation of existing conditions of supply not be impaired thereby.65
Excessive channel losses in satisfying senior downstream priorities.
The earliest settlement of western valleys frequently occurred in down-
stream areas, with the result that many early (senior priority) appropri-
ation rights are located in these areas today. Western streams tend to be
long and, after leaving their mountainous headwater regions, they pass
through arid and semi-arid expanses where high temperatures and parched
soil exact a heavy toll in evaporation and seepage losses, especially in the
growing-season months. In order to satisfy a senior right to a certain
amount of water at a downstream point, therefore, it may be necessary
that junior upstream appropriators let several times this amount pass by
them to allow for these channel losses. Conditions of climate, soil, and
topography often call for a more intensive use of water in the upper valleys
before these losses are sustained, and the degree of protection to be ac-
corded prior downstream rights entailing excessive channel losses has
posed a difficult question in western law.66
Location preventing full utilization of seepage and return water. Seep-
age losses from an irrigation system and the unconsumed portion of water
applied to a crop do not necessarily represent complete losses, for this
water often makes its way back to a stream or into a ground water reser-
voir from which it may again be diverted for use. Much western irrigation

65. Brief mention may be made of,some of the difficulties involved in changing
the point of diversion or place or purpose of a particular use. A change in the
point of diversion, whether the move is up or down the stream, will affect other
users between the old and new points by altering the velocity, quantity, and level
of the flow reaching them. A change ib the place of use (or the location of convey-
ance ditches) may mean that seepage water and water flowing from the surface of
the field where used will take a different course back toward the stream, perhaps
cutting the supply of persons who had used the water along its previous route and
perhaps water-logging land along its new route. Because the nature of the soil at
the new place of use or along the new return route may be different, the uncon-
sumed water may reenter the stream at a different time or with a greater content
of dissolved solids to the injury of downstream users. A change in the purpose of
use may be reflected in all these factbrs of timing, velocity, quantity, level, and
purity of flow, and such a change may be especially disruptive of established con-
ditions if the new purpose is a more consumptive use than the former one.
66. NRPB, State Water Law 39. 1AO, Water Laws in U.S.A. 17-18. This prob-
lem of excessive channel losses is similar to the problem of conveyance losses
already discussed; reduction of channel losses, however, may require a change in
place of use, while conveyance losses may often be reduced merely by improvement
in an. irrigation system.


development is predicated upon use of this "return water." 67 The oppor- ,
tunities for multiple reuse of water are to a considerable extent dependent
on the location of each successive use at such a point that its return water
may be beneficially used. But these opportunities are decreased to the ex-
tent that senior rights are located at downstream points or at other places
the return water from which cannot be fully utilized. For this reason, as
well as to avoid excessive channel losses entailed in protecting senior
downstream rights, it may be desirable to make more intensive use of
water in the upper valleys than the existing location of rights permits.68
Though there have been some notable exceptions, it is now apparent that
the haphazard location of appropriation rights in many cases in unfortun-
ate in this regard.
Use on poor land. Another problem of wasteful location, somewhat dif-
ferent from the foregoing two situations, concerns the use of water for ir-
rigation on relatively poor soil. There is a greater amount of irrigable
land than water in many western areas, and now that little unappropriated
water remains in most of them today it is seen that the land being irri-
gated is often less productive than other land which must remain un-
watered. Poor land has come under irrigation because early settlers knew
little about the intricacies of soil fertility, because of the land's proximity
to water, because it was included within large projects in order to spread
the costs of development over a greater amount of irrigated acreage, and
undoubtedly for other reasons. Land fertile when first used may now have
lost much of its productivity through long and perhaps careless use. More-
over, constantly increasing knowledge of soil fertility and changing market
demands for different crops (which often require different types of soil)
have meant that land sufficiently fertile for use at earlier times may no
longer be so under contemporary conditions. Irrigation of poor land means, (
of course, a lower productivity per unit of water used than if the water
were applied to better land. This problem of wasteful location appears to
exist in sizeable proportions in the West.69

67. Uncertainty as to rights to use return water is discussed infra, pp. 63-64.
68. A junior upstream appropriator may divert water as long as the remaining
stream flow plus the return water from his use is sufficient to permit senior down-
stream appropriators to divert the water they are entitled to when they need it.
But because irrigation is a relatively consumptive type of use, a considerable de-
crease in quantity would ensue from the junior appropriator's use, and the water
that does return to the stream may be lowered in quality and delayed in reaching
downstream points to the injury of senior downstream rights. The uses a junior
upstream appropriator can make may therefore be quite limited by the existence
of these downstream rights. Consequently, where a large amount of water must be
allowed to pass substantially unused to downstream appropriators located where
their return water cannot be effectively reused, a fuller use of the stream flow
would often be achieved by a greater upstream use and a successive reuse by each
lower appropriator of the water reaching him.
69. NRPB, State Water Law 39; FAO Water Laws in U.S.A. 4.


S Political restrictions on place of use. While the foregoing problems
of wasteful location may result partly from allowing appropriators too
great a freedom in the original selection of their places of use, certain
S restrictions imposed on this freedom for broadly political reasons may
also cause a failure to use water at the most beneficial locations. Re-
strictions on diversions for use anywhere within the watershed of the
stream are rare.70 Diversions to different ("foreign") watersheds, on the
other hand, are substantially prohibited in one state71 and are permis-
sable only within certain limitations as a result of intense sectional dis-
putes in two states-California72 and Colorado73 -where an urgently
needed fuller use of water resources is compelling huge "trans-mountain"
diversions from watersheds of perennial surplus to areas of acute short-
age. Even more common in the West are prohibitions or special conditions
70. A New Mexico statute declares that "... the natural right of the people
living in the upper valleys of the several stream systems to impound and utilize a
reasonable share of the waters which are precipitated upon and have their source
in such valleys and superadjacent mountains, is hereby recognized, the exercise
of the right, however, to be subject to the provisions of this article." N.M. Stat.
Ann. i 75-5-27 (1953). As "this article" encompasses most of the state's Water
Code, this "right" is subject to existing priorities; the statute may therefore be
little more than legal surplusage inspired by tensions between upper and lower
interests, though it could serve as a standard to guide the agency in the granting
of new permits.
71. Neb. Rev. Stat. i 46-206 (1954); see Doyle, Water Rights in Nebraska, 29
Neb. L. Rev. 385, 405-07 (1950).
72. In California the so-called Counties of Origin statutes have been the focus
of sharp controversy in recent years. These statutes require that the state, in it-
self appropriating water in furtherance of projects contemplated as part of the
State Water Plan, not "deprive the county in which the appropriated water origi-
nates of any such water necessary for the development of the county." Cal. Water
Code Ann. i 10505 (Deering's 1954) (first enacted in 1927); see also I 12640. The
history of the counties of origin issue is outlined in Calif. Division of Water Re-
sources, Dep't of Public Works, Water Right Investigations: Water Right Applica-
tions by State Department of Finance, Assignments Thereof, Reservations for
Counties of Origin, and Other Related Matters (1955).
73. In Colorado, conservancy districts diverting water eastward from the west
slope headwaters of the Colorado River must provide "compensatory storage" to
protect the interests of present and future appropriators along the River in the
S western part of the state; i.e., the districts must construct storage projects to
S capture the flood waters of wet seasons for later release for the benefit of down-
stream users on the West slope. Cole. Rev. Stat. Ann. i 149-6-13 (2) (1953). The
controversy between west slope and east slope interests over this provision has
been called "the last real obstacle to the full utilization of Colorado's greatest
resource, water...." Beise, Compensatory Storage, 22 Rocky Mt. L. Rev. 453
(1950); see also Comment, 25 Rocky Mt. L. Rev. 363 (1953) (provision said to be of
doubtful constitutionality in the light of the absolute right to appropriate accorded
by the state constitution).



imposed on diversions in one state for use in another, although some of
these restrictions are being eased as states tend gradually toward enact-
ment of reciprocity statutes allowing such diversions into other states
which allow them in return.74
Restrictions on diversions to foreign watersheds or across state lines
are frequently criticized as obstacles to the use of water where it will be
most generally beneficial.75 These restrictions constitute problems of
wasteful location in many instances and are significant enough to justify
their mention here. But as these problems would probably be as likely to
arise under any system of water rights, they will not be discussed below
in the outline of remedies available within the administrative appropri-
ation system for meeting problems of waste created by this system.

Wasteful Purposes
An appropriation right allows water to be applied to the same purpose
forever, but temporary or permanent changes in the conditions of water
use and supply in a region may mean that the purposes for which water
was originally appropriated are not among the more important purposes
for which water is needed at a later time. Unfortunately, the need for ap-
plying water to changed purposes may well emerge after full over-all use
has been achieved. The interdependencies among users already established
are likely to block changes to different purposes if existing conditions of
supply are to be strictly preserved for the benefit of the established users.76
Temporarily more important uses. Where water is in perennially lim-
ited supply, plans will be made to use all that is expected to be available.
But where these plans must be made considerably in advance and the
amount of water that will be available at any time is quite variable and un-
predictable, much investment may already be made in water-using activi-
ties before shortages actually materialize. Whenever there is insufficient
water for the use of all appropriators, their uses must be terminated in
reverse order of priority until the entire supply is consumed in giving
senior rights their full entitlement. No allowance is made for the relative
value or needs of the different uses at the moment. In the case of irriga-
tion, different crops or different fields of the same crop may require
water at quite different times, and a high value crop may be in critical

74. E.g., Colo. Rev. Stat. Ann. 147-1-1 (1953) (absolute prohibition); Mont.
Rev. Codes Ann. 1 89-846 (1947) and Ore. Rev. Stat. 537.810 (1953) (special act
of legislature necessary); Neb. Rev. Stat. 1 46-233.01 to -233.02 (Supp. 1953)
(reciprocity plus special act of legislature necessary ); Ariz. Code Ann. f 75-112
(1939) (administrative officials given discretionary power to deny applications).
75. Trelease, Trends in the Law of Prior Appropriation, in Proceedings: Water
Law Conferences, U. of Texas 206, 213-14 (1952 & 1954). NRPB, State Water Law
76. See note 13 supra.


need of water that goes instead to a low-value crop (even, perhaps, in less
immediate need of water) because the latter is irrigated under a senior
right. The appropriation system of rights has been widely criticized for
this uneconomic allocation of water in times of temporary shortage.77
Permanently more important uses. In many western areas today new
uses can only be initiated by changes in;the purposes for which water has
previously been applied. When a region of limited resources passes be-
yond the pioneer stage of development, continued economic growth can
take place only through a shifting of resources into progressively more
rewarding types of enterprise. In particular, some western areas where
for decades water has been used primarily for irrigation are now thought
to possess a definite potential for industrial development, with its accom-
panying diversification of economic activity and higher standards of
This potential can be realized in many areas only if substantial amounts
of water already appropriated for irrigation are made available to indus-
try.79 But there appears to be a tendency for the appropriation system to

77. NRPB, State Water Law 81. FAO, Water Laws in U.S.A. 18-19.
Brief mention might be made of an uncommon situation in western law where
water may sometimes be taken from one use and given temporarily to a less im-
portant use. This is the preference for direct diversion rights over storage rights;
a storage right in Nebraska does not allow the impounding of additional water when
it is needed for direct irrigation even by appropriators whose direct flow rights are
junior to the storage right. Neb. Rev. Stat. i 46-241 to -243 (1952). A similar pref-
erence existed at one time in Colorado but, by Colo. Rev. Stat. Ann. 147-5-1
(1953), an appropriation for a storage reservior constructed since 1935 is superior
to direct flow appropriations of a priority later than that of the reservior. The
earlier rule in Colorado had been termed an "unfortunate condition... [hampering]
the scientific development of irrigation ... (by losing] sight of the larger and more
important matter of greater beneficial use through storage." McHendrie, The
L Evolution of the Doctrine of Priority of Water Rights, 33 Colo. Bar Assoc. 123, 140
(1930); see also Williams, supra note 56, at 184-189.
78. "Irrigation, given high priority in the past, has contributed to the economic
Development of the Western States, but the need is increasing for weighing the
economic justification for irrigation against that of industrial use of the same
water... In some situations, for example, it may be more advantageous to the
S area and to the Nation to provide less water for irrigation and more for industry."
U.S. President's Materials Policy Commission, Resources for Freedom, vol. 1,
p. 54, 55 (1952).
The consumptive use of water in irrigation is 5 to 10 times that of industry in
the West, and in one representative year a gallon of water used in industry pro-
duced 50 times more dollar value in goods than a gallon used for irrigation. Id.,
S vol. 5, p. 86.
79. "... the users of water, particularly for agricultural purposes, more often
than not are involved in some sort of group dependency for their supply of water.


freeze the initial pattern of resource allocation, 80 and for this reason the
system has recently been criticized in several quarters as a "serious le-
gal barrier to wise water development."81 The West has been warned in
strong language that "it must soon decide whether its future must be sac-
rificed by its antiquated priorities system in water use."82 As in the case
of the alleged flexibility and uncertainty of riparian rights, the extent of
this alleged rigidity of appropriation rights has not been sufficiently ex-
plored. But any substantial obstacle raised by the appropriation system
to a permanent reallocation of water to more important uses would render
this part of the problem of wasteful purposes the most far-reaching prob-
lem of western law. It is in connection with this problem that the obstacles
to change already mentioned-the interdependencies of uses, and the un-
willingness of users to make changes not felt to be advantageous to them
-have their most serious consequences.

The Remedies

Western law contains several remedies designed to mitigate the fore-
going problems of waste and to bring about a gradual increase in the total
level of beneficial use of water. These remedies include the requirement
that the use of water under existing and under new rights be.both reason-
able and beneficial and that rights be forfeited for nonuse. Statutes in
several states list different purposes of use in preferential order; these
preferences may allow the subordination or termination (usually with com-
pensation) of existing uses under senior rights in favor of more preferred
uses, or they may authorize the state agency to modify or reject applica-
tions for new rights where the proposed purpose of use is relatively unpre-

Shifting the use of water seldom involves the action of an individual user." Huffman,
A Framework for Water Pricing Policy, in Western Agricultural Economics Re-
search Council, Committee on Economics of Water Resources Development, Re-
port No. 1, p. 71, 73 (1953).
80. "The appropriation system of water rights has brought with it... an ele-
ment of fixity in the use of water. That is, in addition to facilitating or retarding
change, an institutional arrangement (like water rights) may tend to 'freeze' an
existing pattern of resource use." Id. at 71.
81. Engelbert, Political Aspects of Future Water Resources Development in the
West, in id., 85, 89.
82. U.S. President's Materials Policy Commission, Resources for Freedom,
vol. 5, p. 94.
"Individual rights to water need to be recognized as property, but rights ac-
quired decades ago should not serve as an estoppel to programs which might
provide a wiser use of water now from the standpoint of the overall public in-
terest... Unless some adjustments are worked out in western water law, the
western states will seriously restrict their own economic and industrial growth."
Engelbert, op. cit., supra note 81, at 90.


ferred. The operation of preferences in this latter situation moderates the
effect of recognizing new priorities solely on the basis of time of filing
applications. The effect of such recognition may be further moderated by
the state today by the rejection of applications contrary to the public in-
terest, under statutes authorizing withdrawals of water from appropriation,
or through appropriations by the state itself as part of specific programs
of water resource development. Finally, appropriation rights may be
granted for only a limited period Of time, after which the water may be
reallocated to a different use, and annual fees may be charged for the use
of water to ensure its proper and efficient use.
The development of legal doctrine and administrative practice to date
indicates that these remedies may be of questionable effectiveness. The
following account of these remedies indicates the extent to which they have
been applied to problems of waste thus far and includes various sugges-
tions that have been made for their fuller application in the future.

Reasonable beneficial use
Uses made under existing rights and uses proposed under new rights
must be both reasonable and beneficial. This requirement is one of the
principle remedies offered by western law for meeting problems of waste.
The concept of reasonable beneficial use here, however, is to be carefully
distinguished from the riparian law concept of reasonable use which theo-
retically contemplates a change in the conditions of a given use in accord-
ance with a change in the circumstances surrounding it.
The usual statement of reasonable beneficial use in appropriation law
is misleading in that it is indistinguishable from this riparian law concept.
Reasonable beneficial use is said to mean "not only must the use be bene-
ficial to the appropriator, but it must be reasonable in relation to use by
others who have access to the same source of supply."83 But in contrast
to the riparian concept this requirement has a quite restricted application
and is subordinate to the dominant element of priority. It has been applied
against some of the problems of wasteful amounts and could fairly readily
be extended to others of this nature. But it apparently has had little appli-
cation to problems of wasteful location and even less to problems of waste-
ful purposes. In effect, this means that once a priority right has been ac-
quired for a certain place or purpose of use, the use may continue forever
as long as the amount of water used is not excessive for that particular
Place and purpose.
The requirement of beneficial use has been an element of appropriation
theory since its origin in the customs of miners and early irrigators in
the West. Early acquisition procedures, however, usually left a right de-
fined only in terms of the appropriator's claimed amount of use. The first

83. Hutchins, Selected Problems 317.



appropriators in some areas are credited with a self-restraint in claiming
rights only to the actual amount beneficially used, but later appropriators
displayed an inclination to claim almost limitless amounts stated in units
of measurement often little understood by the claimants themselves; in
some cases individual claims extended to several times the total amount
of stream flow.84 When a more precise definition of the scope of these
rights was sought in adjudication proceedings, courts sometimes accepted
exaggerated claims uncritically; at a later time, the courts tended to limit
rights to the amount of water which could be carried by an appropriator's
ditch at capacity.85 These adjudications resulted in many excessive de-
crees that have been a considerable problem in some states.86 Gradually,
however, the courts have undertaken the more difficult task of limiting an
appropriator to the amount reasonably and economically applied to a bene-
ficial purpose.87
Wasteful amounts. The major application of the requirement of reason-
able beneficial use has been in connection with the problems of wasteful
amounts. Many courts have stated in strong language that the wasteful
methods of earlier times are not longer justifiable.88 They have warned
that disproportionate conveyance losses can not be tolerated,89 and in two
oft-cited cases conveyance losses of 67% 90 and 50%91 of the water di-

84. Mead, Property in Water Rights, 6 International Quarterly 1 (1902).
85. Elwood Mead, one of the moving forces in the evolution of the administra-
tive appropriation system and later the first Commissioner of the Bureau of Re-
clamation, has recorded a striking account of these early adjudications in his
classic work, Irrigation Institutions, 83-85, 147-59 (1903).
86. NRPB, State Water Law 38; see page 96, supra. Some of the early rights
originally defined in unrealistic amounts have since been limited by courts to
ditch capacity as established over a period of years. Lindsey, Legal Problems in
City Water Supply, 22 Rocky Mt. L. Rev. 356, 385-86 (1950).
87. Hutchins, Selected Problems 316-17. 1 Wiel, Water Rights in the Western
States 473-82 (3d ed. 1911); Lasky, supra note 14, at 198.
"Rights to the use of water shall be limited and restricted to so much thereof
as may be necessary, when reasonably and economically used for irrigation and
other beneficial purposes, irrespective of the carrying capacity of the ditch..."
Nev. Comp. Laws 7897 (1929).
88. See, eg., the Oregon cases of Oliver V. Skinner, 190 Ore. 423, 226 P.2d
507 (1951); Tudor v. Jaca, 178 Ore. 126, 164 P.2d 680, rehearing denied, 165 P.2d
770 (1946); In re Willow Creek, 74 Ore. 592, 144 Pac. 505 (1914), modified on
appeal, 146 Pac. 475 (1915); Hough v. Porter, 51 Ore. 318, 95 Pac. 732 (1908),
modified on appeal, 98 Pac. 1083, rehearing denied, 102 Pac. 728 (1909).
89. See Town of Sterling v..Pawnee Ditch Extension Co., 42 Colo. 421, 94 Pac.
339 (1908).
90. Doherty v. Pratt, 34 Nev. 343, 124 Pac. 574 (1912) (water conveyed 3 miles
along natural channel with swamp where water was subjected to high seepage,
evaporation, and transpiration losses).
91. Basinger v. Taylor, 36 Idaho 591, 211 Pac. 1085 (1922) (10% conveyance loss


verted from the stream were held unreasonable. Inefficient means of di-
version have also been held unreasonable and denied protection against
junior appropriators in some instances.92 Legislatures in some states
have specified by statute that losses exceeding a certain percentage are
not permissible,93 and statutes in many states prescribe the maximum
amount of irrigation water per acre (delivered to place of use) that may
be used each year.94 On an administrative level, some state agencies
have adopted detailed regulations prescribing the maximum allowable
"duty of water" (that amount reasonably necessary for a particular pur-
pose of use)95 for which new rights will be granted. 96

in one part of irrigation system reasonable but 50% loss in another part unreas-
92. See Schodde v. Twin Falls Land and Water Co., 161 Fed. 43 (9th Cir. 1908)
(water wheel); In re Owyhee River Water Rights, 124 Ore. 44, 259 Pac. 292 (1927)
(water wheel); see also Hutchins, Selected Problems 168-73; Annot., 121 A.L.R.
1044 (1939).
93. Nev. Comp. Laws b 7993.11 to .21(Supp. 1949) (maximum allowable loss
set at 20% for artesian water). Ex part Maas, 219 Cal. 422, 27 P.2d 373 (1933)
(upholding county ordinance prescribing 5% limit on loss of ground water in irri-
gation); Ex parte Elam, 6 Cal. App. 233, 91 Pac. 811 (1907) (upholding statute set-
ting 10% limit on loss of artesian water in irrigation).
94. 1 cubic foot per 70 acres:
S.D. Sess. Laws 1955, c. 430, 61.0126.
Wyo. Comp. Stat. Ann. 71-216 (1945), Quinn v. John Whitaker Ranch
Co., 54 Wyo. 367, 92 P.2d 568 (1939) (statute held not meant to apply to
rights adjudicated prior to enactment where beneficial use made of
greater amount).
2 acre-feet per acre:
N.D. Rev. Code II 61-0418 to -0421 (1943).
1 cubic foot per 70 acres nor more than 3 acre-feet per acre:
Neb. Rev. Stat. 1 46-231 (1952), Enterprise Irrigation Dist. v. Willis,
135 Neb. 827, 284 N.W. 326 (1939) (holding that statute could not consti-
tutionally apply to rights vested prior to enactment where beneficial use
made of greater amount); cf. Herminghaus v. Southern Cal. Edison Co.,
200 Cal. 81, 252 Pac. 607 (1926).
95. 'Duty of water'... is that measure of water, which, by careful manage-
ment and use, without wastage, is reasonably required to be applied to any given
tract of land for such period of time as may be adequate to produce therefrom a
maximum amount of such crops as ordinarily are grown thereon. It is not a hard
and fast unit of measurement, but is variable according to conditions... Land char-
acteristics at the place of use are important... Climate is a feature not to be over-
looked, as also are the kinds of crops ordinarily grown thereon and the proportion
of the area devoted to each type of crop and the rotation thereof... Farmers
Highline Canal & Reservoir Co. v. City of Golden, 129 Colo. 575, 584-85, 272 P.2d,
629, 634 (1954).
96. See, eg., California Division of Water Resources, Dep't. of Public Works,


Nevertheless, it is often alleged that only the more flagrant examples
of waste are actually eliminated. The requirement of reasonable bene-
ficial use has been enforced more vigorously against wasteful methods of
diversion and conveyance than against wasteful methods of applying water,
and much waste of the latter type is said to continue.97 Some courts,
while speaking of the public policy that calls for the highest and greatest
duty of water within reasonable limits, have at the same time awarded
amounts labeled 'incredible"98 and have held that uneconomic paralleling
of ditches of individual appropriators is beyond the power and policy of
the state to correct.99 In addition, seemingly inefficient means of diver-
sion may still be upheld as reasonable even though a fuller use of water
is thereby prevented.100
The courts have been unwilling to require appropriations to improve
diversion, conveyance, and application methods that are customary in the
locality, at least where these customs do not entail excessive waste; the
Rules, Regulations and Information Pertaining to Appropriation of Water (1952).
The Division therein announces that, in the granting of new permits, it regards
1 cubic foot per second for each 80 acres as sufficient for ordinary crops in most
areas, though local conditions may call for larger or smaller amounts. The Di-
vision also indicates in detail the number of gallons per day that may be used per
individual or per animal for domestic and stock-watering purposes in various
97. NRPB, State Water Law 41, 82. McHendrie, supra note 59; Williams, supra
note 56.
"There is as yet no answer for the problem which arises when a farmer, either
because of indolence or lack of knowledge of proper irrigation practices, con-
tinues to pour excessive quantities of water on his land and thus deprives a
neighbor of needed water. Be that as it may, the principle is unquestioned that
there may be no waste of water." Breitenstein, Some Elements of Colorado
Water Law, 22 Rocky Mt. L. Rev. 343, 349 (1950).
98. Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 276 Pac. 1017 (1929),
affirming a decree awarding plaintiff 25 acre-feet per acre per year for irriga-
tion, as calculated in NRPB, State Water Law 43.
99. Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist., 3 Cal. 2d
489, 572, 45 P. 2d 972, 1009 (1935).
Over a vigorous dissent, the Texas court has recently held (6-3) that losses of
63% to 74% in the conveyance of artesian water 118 miles in a natural streambed
are not enjoinable under the common law rights of overlying owners and a statute
prohibiting waste of ground water. Corpus Christi v. City of Pleasanton, 154 Tex.
289, 276 S.W. 2d 798 (1955). See Comment 2 So. Texas L. J. 74 (1955).
100. See State ex rel. Crowley v. District Court of Sixth Judicial District, 108
Mont. 89, 88 P.2d 23, (1939) (junior appropriator denied use that would lower water
level behind wing dam of brush, rocks, and dirt employed by senior appropriator
to raise water to ditch level without pumping); Midkiff v. Kincheloe, 127 Mont. 324,
329, 263 P.2d 976, 979 (1953) (dissent pointed out inefficient diversion and storage
method of appropriator who was allowed to enjoin efficient upper user).


most scientific methods are not required.10l This standard of local cus-
tom, however, has frequently been criticized as inadequate. It has been
said that legislative definition of higher standards is probably desirable102
and that diversion and conveyance methods should "conform to the highest
standards of efficiency that are reasonably applicable to the physical and
economic circumstances of the community."103 Legislative standards as
to maximum amounts of irrigation water that may be used per acre, on
the other hand, do not appear to have been overly successful; the amounts
set are quite ample and tend to be the amounts for which new rights are
granted, and there seems to be some tendency to repeal these statutes
and to direct administrative officials to prescribe appropriate limits in
each case.104 But administrative agencies do not always have sufficient
authority, funds, and general public support for fulfilling the tasks assigned
them, and a large portion of the appellate court cases enjoining wasteful
amounts of use have been brought by private parties rather than public of-
Greater administrative supervision over the actual use of water is the
generally recommended solution to these problems of wasteful amounts.
One of the specific techniques suggested is an annual determination of the
amount of water actually necessary for the use contemplated under each
right, with due allowance made for the unavoidable loss of some water in
conveyance; the maximum amount covered by the right would constitute
the outer limit of these determinations.106 This technique has quite re-
cently been advocated as a possible solution to the continuing practice of
wasteful and damaging flood irrigation of mountain meadows and northern
plains areas in the West.'07 It has also been suggested that appropriators
under excessive early decrees could be regulated through annual determi-
nations of their needs, though a preferable solution to the problem of these

101. See Tulare Irrigation Dist. v. LindsayStrathmore Irrigation Dist., 3 Cal.
2d 489, 547,45 P.2d 972, 997 (1935); Enterprise Irrigation Dist. v. Willis, 135 Neb.
827, 284 N.W. 326 (1939); Hardy v. Beaver County Irrigation Co., 65 Utah 28, 234
Pac. 524 (1924).
102. NRPB, State Water Law 41.
103. National Reclamation Association, Desirable Principles of State Water
Legislation, Washington, D.C., 1946, p. 20 (hereinafter cited as NRA, Desirable
Principles). See also FAO, Water Laws in U.S.A. 20 (adding that a "practical view"
be taken "of the desirability of change---that the benefit be measured in relation
to the cost").
104. See Nev. Comp. Laws I 7899 (Supp. 1949).
105. See Stroup v. Frank A. Hubbell Co., 27 N.M. 35, 192 Pac. 519 (1920) (in-
junction granted landowner whose crop was water-logged by wasteful amounts of
irrigation water used by neighbor).
106. NRPB, State Water Law 58.
107. Trelease, op. cit. supra note 75, at 210-12 (citing two Wyoming cases in
which such a determination was made by the court).


decrees is said to consist in recognizing rights under them only to the
extent of the reasonable beneficial use actually made, with a forfeiture
declared of the excess portion of the decrees.108
Lagging enforcement of the requirement of reasonable beneficial use
reflects the delicate and never-ending task confronting administrative of-
ficials, upon whom the major burden rests. Enforcement must be predi-
cated upon a thorough analysis of the time, nature, and interrelationships
of all uses from a common supply of water: a use may be beneficial to
one user but not reasonable in the light of others' needs for water; a use
that is reasonable and beneficial in one area may not be so elsewhere;
and variations in water supply within a year may cause a use ordinarily
justified to become unreasonable at times.109 Effective enforcement re-
quires the gathering of extensive data on uses, the making of difficult de-
cisions in the exercise of necessarily broad discretionary powers, and
constant policing of the practices of a large number of individual users.
Data gathering and policing depend upon adequate funds and public rela-
tions as much as upon statutory grants of requisite authority. Despite-or
perhaps because of-the magnitude of the task, however, a greater degree
of administrative enforcement of the requirement of reasonable benefi-
cial use is thought to be necessary for reducing problems of wasteful
amounts in much of the West.
Auxiliary remedies. Certain techniques and elements of western law
which are designed to reduce problems of wasteful amounts might be re-
garded in a sense as auxiliary to the requirement of reasonable beneficial
use and be discussed at this point. Several of these techniques are com-
monly referred to as "physical solutions."
Statutes in many states allow appropriators to enter rotation agree-
ments with the approval of the watermaster.110 Rotation of water is a par-
ticularly helpful technique at times when conditions of supply are such
that appropriators can not all divert useful amounts of water at the same
time; especially where appropriators do not need a continuous flow of
water to irrigate their crops, rotation schemes may enable them to re-
ceive useful amounts at times when most needed, and the disproportionately
large seepage and evaporation losses involved in conveying and using small
amounts of water are avoided. Rotation agreements are generally voluntary,
but their value in many circumstances has led to recommendations that

108. NRPB, State Water Law 42, 58.
109. As an illustration of the interrelationship of time and place, where exces-
sive and ordinarily wasteful application of water is made on upstream land at cer-
tain times of the year, a counter-cyclical storage effect may be achieved by the
return of seepage water during the dry season permitting greater downstream use
of water at such times. Tipton, Water Supply and Water Use Problems, 22 Rocky
Mt. L. Rev. 389, 394 (1950).
110. E.g., Wash. Rev. Code 90.28.100 (1951); Wyo.om. Comp. Stat. Ann. 71-310


state officials be authorized to impose involuntary rotation schedules to
reduce losses and permit a fuller use of water.111
A somewhat related physical solution is found in statutes allowing ap-
propriators to exchange water, especially stored water in return for di-
rect flow, where the appropriators are so situated with regard to the
stream and storage reservoir that an exchange will lessen their pumping
costs or avoid conveyance losses. A simple example would be where the
owners of storage rights, seeking to irrigate land above the reservoir
without pumping, agree to release water from the reservoir for down-
stream direct-flow appropriators in return for the right to divert direct
flow water by gravity above the reservoir.112 But neither rotation nor ex-
change agreements are allowed to interfere with the rights of others,
meaning, for instance, that a senior appropriator without need for water
can not loan it to a junior appropriator when to do so would deprive an
appropriator of intermediate priority of his prior right to whatever water
the senior appropriator does not need.113
A further physical solution encouraged by some courts relates to the
concept of salvage. Salvaged water results from improvements in meth-
ods of diverting, conveying, and applying water which reduce the amount
lost by seepage and evaporation; the person making improvements that
reduce reasonable losses in his own or in another's irrigation system is
given the right to use the water thus salvaged.114 For example, in cases
where a senior appropriator's method of diversion is deemed reasonable,
a junior appropriator may be permitted to make an interfering use by
compensating the senior appropriator for alterations thereby necessitated
in his diversion method.115 In other situations a junior appropriator is al-
lowed to make an interfering use by providing the senior appropriator
with a substitute source of supply. As long as the cost of improving
existing systems is not prohibitive, the concept of salvage encourages the
reduction of losses and, as noted by one reviewer, this concept "has been
receiving constantly growing favor in the courts." 116
111. NRA, Desirable Principles 27-28.
112. E.g., Wyo. Comp. Stat. Ann. 71-619 to -621 (1945) More complex ex-
change arrangements said to be necessary for the better utilization of much water
in Colorado are discussed in Tipton, supra note 109.
113. Ft. Lyon Co. v. Chew, 33 Colo. 392, 81 Pac. 37 (1905), criticized in Wil-
liams, supra note 56 at 103-04.
114. See Hill v. Green, 47 Idaho 157, 274 Pac. 110 (1928); Big Cottonwood
Tanner Ditch Co. v. Shurtliff, 56 Utah 196, 189 Pac. 587 (1920). The court may
refuse to recognize a right for the salvage of losses that were unreasonable,
Basinger v. Taylor, 36 Idaho 591, 211 Pac. 1085 (1922), or that had become the
basis of another's supply, Dannenbrink v. Burger, 23 Cal. App. 587, 138 Pac. 751
115. See Joseph W. Bowles Reservoir Co. v. Bennett, 92 Colo. 16, 18 P.2d 313
(1932); Salt Lake City v. Gardner, 39 Utah 30, 114 Pac. 147 (1911).
116. Wiel, Fifty Years of Water Law, 50 Harv. L. Rev. 252, 269 (1936). Pointing


A final auxiliary measure here, one that is not exactly a physical solu-
tion, is the right given anyone by statute in several states to purchase sur-
plus water for which the appropriator with the right to it has no need;
transportation charges, customary rates for water in the locality, or
some similar payment must be tendered along with the demand for deliv-
ery of such water.117 In this way an appropriator having surplus water is
required to allow a reasonable beneficial use to be made of it.
Wasteful locations. The requirement of reasonable beneficial use has
apparently not been applied to problems of wasteful location to any sig-
nificant degree. It has been quite unavailing against the problem of ex-
cessive channel losses incurred in satisfying senior downstream priori-
ties. Even though conveyance losses of 50% or more of the water diverted
into an irrigation system may be deemed unreasonable,s18 it has been
doubted whether a 50% channel loss between the points of diversion of ju-
nior and senior appropriators would be held unreasonable by any court.119
Indeed, as long as a usable amount of water will reach senior downstream
users, it appears that courts will protect them even though channel losses
are several times the amount reaching them.120 The Nebraska court 121
fairly recently upheld the rights of downstream appropriators in a case
where channel losses of 77% were sustained; in response to the argument
that the doctrine of reasonable use should be applied to prevent such losses,
the court said

... we cannot agree that the doctrine of reasonable use can be applied in a case
where delivery of a usable quantity of water can be made, although the losses
suffered in so doing are great... [It is] the duty of the administrator... to en-
force existing priorities, not to determine, change or amend them.122

The problem of use on poor soil has been equally untouched to date by
the concept of reasonable beneficial use. A careful student of western law
recently concluded1.23 that

out the possibilities for reducing evaporation losses in many places, it has been said
that proof of a right to such salvaged water "might well be more conclusive than an
attempt to establish the adequacy of supply from some remote source area." Thomas,
Conservation of Ground Water 252, McGraw Hill Bk. Co., New York (1951).
117. E.g., S.D. Sess Laws, 1955, c. 430, 61.0121; Wyo. Comp. Stat. Ann. I
71-616 (Supp. 1955). See also Mont. Rev. Codes Ann. S 89.823 to -826 (1947). A
South Dakota statute gives the owner of land across which the proprietor of a well
is conveying ground water a right to rent any surplus above the other's needs. S.D.
Sess. Laws 1955, c. 431, 61.0429.
118. See notes 90 and 91 supra.
119. McGuinness, Water Law with Special Reference to Ground Water 9-10
(U.S. Geological Survey Circ. No. 117, 1951).
120. Hutchins, Selected Problems 332-35.
121. State ex rel. Cary v. Cochran, 138 Neb. 163, 292 N.W. 239 (1940).
122. State ex rel. Cary v. Cochran, supra note 121 at 175, 292 N.W. at 247.
123. Hutchins, Selected Problems 331; see Joerger v. Pacific Gas & Electric


S... the prior appropriator has been protected in the exercise of his valid right
wherever situated on the stream...
From an economic standpoint, the requirement that an entire stream be per-
mitted to flow past large areas of good irrigable land in order to irrigate lands
of less value on the lower reaches of the stream may be subject to criticism;
nevertheless those downstream prior appropriative rights are established prop-
erty rights which the courts have uniformly protected... [T]he power of the
state to regulate uses of water in the interest of the public welfare has not been
extended to the abrogation of established rights in favor of higher or better
uses without compensation...
It is even doubtful whether administrative officials have adequate author-
ity to refuse applications for new rights on poor soil.124
It has been increasingly urged that the requirement of reasonable bene-
ficial use be applied to these situations of wasteful location. As to new
rights, it is recommended that administrative officials be given specific
authority to reject applications that would involve excessive channel losses
or use on poor land.125 The bulk of the problem of wasteful location in the
West, however, concerns uses under existing rights. To reduce waste, it
has been suggested that downstream priorities be protected only where the
amount of water reaching them is reasonable-not just usable-in relation
to the amount a junior upstream appropriator must allow to flow past
him.126 It has also been suggested that appropriators be compelled, on
penalty of forfeiture, to change their place of use in aggravated instances
of channel losses or uses on poor land;'27 changes so far have been op-
tional with appropriators and have often been difficult to make for reasons
that will be discussed presently. Conditions such as these could, of course,
be attached to new rights yet to be granted. Physical solutions may also
be possible: where a downstream appropriator could pump ground water
or stream underflow he'might be denied preservation of a surface flow in-
volving excessive losses; upstream users would thereby be able to salvage
these losses and, where equitable, they might be required to compensate

Co., 207 Cal. 8, 276 Pac. 1017 (1929) (power project enjoined from interfering with
irrigation of land "hilly and porous, marked by numerous depressions, and...
irrigated by turning the water upon the ground and permitting it to run over the
slopes"); see note 98 supra.
124. NRPB, State Water Law 81.
125. Id. at 40-41.
126. Id. at 46.
127. Ibid. Various measures might be available for mitigating the hardship
caused an appropriator who could neither make a change nor sell his right; for
example, he could be given preferred treatment in application for new rights else-
where and for participation in new reclamation projects or other resettlement
programs, or he might be awarded some compensation for his forfeited right. Con-
demnation of existing uses for more efficient uses for the same purpose or for
more important purposes are discussed under Preferences, infra.



the downstream user for the cost of his changed means of diversion.128
Finally, in some western areas, it has been pointed out that considerable
opportunity exists for ending wasteful irrigation of poor land in the opera-
tion and reorganization of irrigation districts.129
Changes in place of use. A ready solution to many problems of waste-
ful location would appear to lie in changing the place of use to better lo-
cations. As already indicated, changes of this nature, as well as changes
in the point of diversion and purpose of use, are generally permitted, sub-
ject to administrative approval and on condition that the rights of others
not be injured. In some states certain minor or temporary changes may
even be made without invoking full administrative procedures.130 On the
other hand, a particularly severe Wyoming statute requires forfeiture of
priority on change of place of use under a direct delivery right (as dis-
tinguished from a storage right);131 Arizona allows changes in the place
of irrigation use only if for natural causes it is impractical to make a
beneficial and economic use at the existing site;132 and South Dakota has
adopted the same provision but without the requirement that natural causes
be the reason for the impracticality of the existing site.133 These occa-
sional restrictions have been labeled a "step backwards" in the effort to
secure the application of water to the best available land.134
Despite the rights given appropriators in most states to change their
place of use, however, opportunities for substantially enhancing the rea-
sonable beneficial use of water in this manner may be quite restricted in
many situations. It has already been mentioned that interdependencies
among uses may prevent a proposed change if other users are to be pro-
tected in the preservation of stream conditions prevailing when their uses
began. An appropriator applying for permission to make a change is said
to face a particularly onerous burden of proof of showing no injury to

128. Even though no excessive channel losses were involved, physical solutions
of this nature might be desirable in other situations, as, for instance, where greater
utilization of return water could be obtained by increasing the upstream use of the
stream flow.
129. NRPB, State Water Law 21-22.
130. E.g., Ore. Rev. Stat. 8 540.510 to -.530 (1953) (providing simpler pro-
cedure for changes in place of use and point of diversion of less than 1/4 mile
where there are no intervening diversions); S.D. Sess. Laws 1955, c. 430, 61.0110
(allowing diversions for overhead sprinkler system of irrigation to be at one or
more points along stream); Wash. Rev. Code (1951) (permitting tem-
porary changes in point of diversion or place of use on approval of watermaster.)
131. Wyo. Comp. Stat. Ann. 71-401 (1945). Trelease, supra note 75, at 216-17,
attributes this provision to a reaction in Wyoming to "the sight of Colorado irri-
gators bartering and selling the state's water."
132. Ariz. Code Ann. 75-135 (1939).
133. S.D. Sess. Laws 1955, c. 430, 3 61.0128.
134. NRPB, State Water Law 45. See also Trelease, supra note 75, at 217.


others in some states.135 At the same time, administrative procedures for
passing upon proposed changes have also been criticized on the ground
that adequate opportunity is not always extended for hearing protests of
persons likely to be affected by a change.'36 In addition, these procedures
are criticized for lack of any requirement that changes not be contrary to
the public interest, thus giving the agency some power to prevent changes
to more wasteful locations (or purposes).137
Wasteful purposes. No right to use water may be acquired unless the
use be for a beneficial purpose. Appropriation statutes usually state this
requirement in general terms. Occasionally, though, they itemize the par-
ticular purposes for which rights may be acquired, and purposes not in-
cluded are consequently deemed non-beneficial.138 Some further indication
of purposes that may not be regarded as beneficial is conveyed by court
decisions refusing to recognize rights under certain conditions; for ex-
ample, in order to allow better uses to be made the courts have prohibited

135. Trelease, supra note 75, at 217.
Two recent cases have eased this problem in Colorado. The first declared that
the applicant need only meet the specific objections raised by other users, rather
than disproving all possibility of injury to others. Colorado Springs v. Yust, 126
Colo. 289, 249 P.2d 151 (1952); see 25 Rocky Mt. L. Rev. 236 (1953). It had been
said this earlier burden made it "practically impossible to bring about such a
change in [point of diversion] in the face of any vigorous protest." McHendrie,
supra note 77, at 137. It has even been suggested that one objecting to a change bear
the burden of proving injury. Williams, supra note 56, at 190.
In the second case an irrigator was allowed to change his point of diversion
and place of use to better land for a 5-year period to determine whether other
users would be injured. Cline v. McDowell, 132 Colo. 37, 284 P.2d 1056 (1955).
This decision has been termed an "interesting experiment" which "will avoid many
of the technical objections and unrealistic limitations on the transfer of appropria-
tive rights." Million, Lesar, Kharas, Martz, 1955 Annual Survey of American Law
Part Four-Property and Procedure, 31 N.Y.U.L. Rev. 643, 685 (1956).
136. NRPB, State Water Law 45.
137. Ibid.
138. The Arizona statute allows appropriations for domestic, municipal, irri-
gation, stock-watering, water power, and mining uses; fish and wildlife uses were
added in 1941. Ariz. Code Ann. 75-102 (Supp. 1952).
The Texas statute includes all these purposes and also lists use for milling,
manufacturing, industrial, public parks, recreation and pleasure resorts purposes.
Tex. Rev. Civ. Stat. Ann. art. 7470 (1954).
Until 1955 a South Dakota statute itemized beneficial purposes and included fire
protection in addition to most of the foregoing types of use. S.D. Code 61.0102
(Supp. 1952). This statute has now been repealed in favor of a statute allowing appro-
priations for "any use of water that is reasonable and useful and beneficial to the ap-
propriator, and at the same time is consistent with the interests of the public in the
best utilization of water supplies." S.D. Sess. Laws 1955, c 430, 61.0102 (6).


appropriations of water to drown squirrels and gophers in crop land,139
to form a winter ice cap to retain more moisture in the soil,140 to remove
debris at times when water is more valuable for irrigation,141 and to main-
tain a scenic waterfall even though it had become the center of much re-
sort development.142 On the other hand, the courts have recognized rights
for irrigation of uncultivated land as long as its (quite low) productivity
is materially increased,143 and they have permitted the irrigation of any
kind of crop even though some crops may require several times as much
water as others.144
In the development of the appropriation system to date, it appears that
a use for a purpose that is beneficial when begun may be continued for-
ever even if at some later time other uses of the water would be appre-
ciably more reasonable and beneficial. It is in such ways that the element
of priority is dominant in the appropriation system; by contrast with the
concept of reasonable use in riparian theory, the oft-repeated requirement
of reasonable beneficial use has not been employed to compell modifica-
tion or termination of an original purpose of use that subsequently becomes
relatively undesirable and therefore wasteful. If water used under existing
appropriation rights is to be shifted to temporarily or permanently more
important uses, the shift must be made as a voluntary change of purpose
or by condemnation under preference provisions.14s Voluntary changes in
the purpose of use are particularly difficult to make without injuring the
rights of many others, especially if the new use is a more consumptive one
or also requires a change in place of use, and attempted changes frequently
entail highly complex procedures and adjustments.146 Changes of purposes
under preference provisions are discussed below.

139. Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist., 3 Cal. 2d
489, 45 P.2d 972 (1935).
140. Blaine County Inv. Co. v. Mays, 49 Idaho 766, 291 Pac. 1055 (1930).
141. In re Water Rights of Deschutes River, 134 Ore. 623, 286 Pac. 563, modi-
fied on appeal, 294 Pac. 1049 (1930).
142. Empire Water & Power Co. v. Cascade Town Co., 205 Fed. 123 (8th Cir.
143. See Rudge v. Simmons, 39 Idaho 22, 226 Pac. 170 (1924). A right may not
be recognized, however, where the increase in productivity is meager and insub-
stantial. Vineyard Land Co. v. Twin Falls, Salmon River Land & Water Co., 245
Fed. 9 (9th Cir. 1917).
144. See In re Robinson, 61 Idaho 462, 103 P.2d 693 (1940).
145. Condemnation of existing rights for public use is, of course, available as
a technique for changing the use of water just as in the case of other resources to
which private property interests have attached. Except where condemnation powers
are conferred by preference provisions, however, this technique does not consti-
tute a remedy peculiar to the administrative appropriation system and will not be
specifically discussed in this paper.
146. See Lindsey, supra note 86, at 377-85 (giving several "illustrations to


Auxiliary remedies. There have been occasional instances where the
problem of wasteful purposes in times of temporary shortage has been
mitigated somewhat by techniques that might be considered auxiliary to
the concept of reasonable beneficial use. Statutes in a number of states
provide that water shall be prorated among consumers of an irrigation
company during shortages,147 and similar statutes are authorized by con-
stitution in a few other states;148 the Colorado court, however, has taken
an unfavorable view of such provisions.149 In Washington an 1890 statute
later repealed provided for prorationing among all appropriators, not just
among consumers of irrigation companies,1so but this statute may be al-
most unique in western law. It has recently been predicted that concern
for the plight of individual irrigators and the importance of safeguarding
the public food supply may bring an increasing trend toward prorationing
among appropriators generally, with payment of compensation to senior
rights.1ls Although it has been questioned whether existing rights in some
states could be subjected to prorationing even with compensation, there is
no doubt that new rights could be granted subject to prorationing with or
without compensation.152
In addition to occasional provisions for prorationing, there appear to
have been some cases in which lower courts have issued adjudication

show how complicated a transfer suit may become"); see also Breitenstein, supra
note 97, at 348.
147. E.g., Tex. Rev. Civ. Stat. Ann. art. 7557 (1954). There appears to be some
question whether the "pro rata" reduction called for by this statute means a pro-
portional, across-the-baord reduction of all uses, or whether the varying needs of
the different users are to be taken into account. See Roberts, Problems Connected
with the Distribution of Irrigation Water in Texas, Proceedings: Texas Water Law
Conferences, U. of Texas 79, 92-94 (1952 & 1954); 31 Texas L. Rev. 373 (1953);
see also 2 Wiel, op. cit. supra note 87, 8 1283-85, 1343-44.
148. Idaho Const. art. 15 5.
149. Colo. Rev. Stat. Ann. 1 147-3-13 (1953). This statute is probably unconsti-
tutional if applied to consumers whose uses are not of the same or nearly the same
date. Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21
Pac. 1028 (1889); Farmers' High Line Canal & Reservoir Co. v. White, 32 Colo. 114,
75 Pac. 415 (1903). Consumers may bind themselves to prorationing by contract,
however. Larimer &Weld Irrigation Co. v. Wyatt, 23 Colo. 480, 48 Pac. 528 (1897).
150. Wash. Laws 1890, p. 706, 0 5, 9-10, 17; repealed by Wash, Sess. Laws
1917, c. 117, 47.
151. Trelease, supra note 75, 212-13.
152. NRPB, State Water Law 57-58.
Proposed ground water legislation in Nebraska in 1941 would have provided for
the issuance of new permits on the condition that, after the satisfaction of priori-
ties under already existing rights, if there were not a sufficient supply for the
needs of all the permittees the water would be prorated in useful amounts to as
many of them as possible. McGuinness, supra note 119, at 23-24.


decrees providing for other than strict enforcement of priorities during
shortages. One instance has been described where the court adopted a
"sliding scale" method of distributing water whereby all rights, in the
usual reverse order of priority, were first reduced to 75% and then to
60% of their full amounts before the supply to junior rights would be fur-
ther curtailed in behalf of senior rights.153 Other cases in which lower
courts resisted a strict enforcement of priorities during shortages have
also been cited.154 Such instances, however, are not reflected in decisions
of the courts of last resort.
Prorationing and sliding scales are mechanical techniques that do not
necessarily permit use of water where most valuable during temporary
shortages,1ss but they may constitute considerably more desirable bases
for distributing water than the strict enforcement of priorities at such
times.156 Nevertheless, these techniques do not seem to have played a con-
spicuous role in the West, and changes to temporarily more important
purposes-as to permanently more important ones-probably can be ac-
complished in significant degree only through voluntary changes and
through the operation of preference provisions.

Reasonable beneficial use is as necessary to maintain a right as to
create it. Failure to use water for the purpose for which it was acquired
results in loss of the right by forfeiture or abandonment; partial failure
to use water results in a pro tanto loss of the right. In this sense the re-
quirement of reasonable beneficial use and the remedy of forfeiture are
closely related.
Decisions in every western state recognize the doctrine of abandon-
ment, the essential elements of which are voluntary nonuse plus an intent
to abandon the right; the intent may be inferred from nonuse for an un-
reasonable time and from other conduct of the owner. Forfeiture is a
creature of statutes which have been adopted in all but two of the states.
These statutes provide that a right shall terminate on failure to make
beneficial use of water for a specific period of time, usually set between

153. Statement prepared by William E. Welsh, Secretary-Manager, National
Reclamation Association, Washington, D.C. on water distribution in the Boise Val-
ley, Idaho. The decrees are the Stewart and Bryan decrees.
154. 1 Wiel, op. cit., supra note 87, 310-15; Wiel, "Priority" in Western
Water Law, 18 Yale L.J. 189 (1908).
155. If, however, water is prorationed on a basis of individual need, as may be
the intent of the Texas statute (see note 147 supra), this technique can hardly be
called mechanical.
156. In addition to permitting some use to continue under junior rights, pro-
rationing would encourage senior appropriators to make a more efficient use of the
lesser amount of water distributed to them.


two and five years; absence of intent to abandon the right does not bar for-
feiture, though exceptions are occasionally made for involuntary nonuse
, without fault on the part of the owner.157 Where appropriation rights are
subject to forfeiture, therefore, abandonment retains significance only
where rights have gone unused for a period that is less than the forfeiture
In addition to these two doctrines for the loss of completed appropria-
tion rights, a permit under which use has not begun in accordance with the
conditions of its issuance may be cancelled by the administrative agency
in most states.159
Forfeiture of rights has been considered a remedy only for total or
partial nonuse of water, and it is apparent from the foregoing discussion
* of reasonable beneficial use that forfeiture has not been employed as a
remedy for situations where water is actually used but in wasteful amounts,
at wasteful locations, or for wasteful purposes. It would seem that for-
Sfeiture need not be restricted solely to situations of nonuse, however, and
several of the already mentioned suggestions for greater enforcement of
the requirement of reasonable beneficial use contemplate forfeiture as a
partial remedy for such problems as uses at wasteful locations160 or in
wasteful amounts under excessive early decrees.161 But even in its re-
stricted field of application, the requirement of forfeiture has not always
been adequately enforced. Despite the appropriation principle's strong
emphasis on reasonable beneficial use and loss of rights for nonuse, in
some states-especially Oregon and Texas--ineffective procedures for
detecting nonuse and declaring forfeitures have permitted a large number
of theoretically invalid rights to remain in existence. These so-called
"paper rights" or "stale claims" have created considerable uncertainty
both for existing appropriators and would-be new users needing to know
the amount of water covered by valid rights senior to them. The problem
of nonuse in these two states will be returned to shortly.
Forfeiture and abandonment must be declared in formal proceedings;

157. Hutchins, Selected Problems 389-97. At least one court has held that a
forfeiture statute may not be applied to rights vested prior to its enactment. In re
Manse Spring, 60 Nev. 280, 108 P.2d 311 (1940).
158. Forfeiture statutes in several states employ the words "abondonment" and
"forfeiture" almost interchangeably. E.g., Wyo. Comp. Stat. Ann. 71-701 (1945);
Nev. Comp. Laws 7897 (Supp. 1949). If a statutory time period is introduced into
abandonment situations, confusion might result from the erroneous idea that in-
tentional nonuse must extend over the full forfeiture period even though that would
be longer than the unreasaonble time after which abandonment should come into
operation. If the element of intent is introduced in forfeiture proceedings, there
might arise an equally erroneous idea that unintentional nonuse for the statutory
period is not sufficient to cause loss of the right. NRPB, State Water Law 17.
159. E.g., Cal. Water Code Ann. 0 1410-15 (Deering Supp. 1954).
160. See text, supra, at note 76.
161. See text, supra, at note 108.



they do not occur automatically. Those proceedings ordinarily must cul-
minate in a judicial decree, but administrative agencies often conduct pre-
liminary investigations and hearings. (Cancellation of permits, however,
may usually be accomplished by administrative action, subject, of course,
to judicial review on appeal.) Forfeitures may be declared in general ad-
judication proceedings or in actions brought against specific rights by
private parties or by the state agency.
Adjudication proceedings are a convenient technique for declaring for-
feitures for nonuse prior to the proceeding. The usual form of adjudica-
tion procedure, in which the preliminary order of the state agency is
made the basis for a court action, has been upheld by the United States
Supreme Court162 and, with a few exceptions, by the state courts.163 A
less common procedure, whereby a final order of adjudication may be
rendered by the state agency itself (subject to judicial review if appealed),
has been upheld in Wyoming164 and Nebraska.16s Part of the problem of
paper rights in Texas stems from that court's invalidation in 1921 of pro-
visions in the 1917 Water Code establishing this latter form of adjudica-
tion procedure.166 Subsequently, a lower Texas court declared that the
state agency could not cancel permits for failure to commence a bene-
ficial use of water under them.167
Actions brought for the forfeiture of a specific right may usually be
commenced on an administrative level by a private individual who would
benefit from having the right declared forfeited,168 and in some states the

162. Pacific Live Stock Co. v. Lewis, 241 U.S. 440 (1916).
163. Vineyard Land & Stock Co. v. District Court, 42 Nev. 1, 171 Pac. 166
(1918); Pacific Live Stock Co. v. Lewis, 60 Ore. 258, 119 Pac. 147 (1911).
Minor features of these adjudication procedures were deemed unconstitutional
in St. Germain Irrigating Co. v. Hawthorn Ditch Co., 32 S.D. 260, 143 N.W. 124
(1913), and in Bear Lake Counity v. Budge, 9 Idaho 703, 75 Pac. 614 (1904).
164. Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258 (1900).
165. Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903); Enterprise
Irrigation Dist. v. Tri-State Land Co., 92 Neb. 121, 138 N.W. 171 (1912).
166. Board of Water Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301 (1921)
(provisions held invalid as attempt to confer judicial powers on administrative
agency); accord, Ormsby County v. Kearney, 37 Nev. 314, 142 Pac. 803 (1914); as
subsequently amended, the Nevada statute was upheld in Vineyard Land & Stock
Co. v. District Court, 42 Nev. 1, 171 Pac. 166 (1918).
167. Fairbanks v. Hidalgo County Water Improvement Dist. No. 2, 261 S.W.
542 (Tex. Civ. App. 1924), error dismissed, (held invalid on basis of McKnight
case, supra note 166); see also Cox, The Texas Board of Water Engineers, 8
Texas L. Rev. 245 (1929). Contra, Speer v. Stephenson, 16 Idaho 707, 102 Pac. 365
168. E.g. Wyo. Comp. Stat. Ann. I 71-701 (1945). Water covered by rights
which are declared lost reverts to the state for appropriation under new rights but
subject to all existing priorities; all appropriators junior to the lost right there-
fore benefit by moving that much higher on the scale of priorities.


agency itself may commence such proceedings.169 Whether the adminis-
trative proceeding be initiated by a private individual or by the agency it-
self, in most states the agency's finding of forfeiture must be filed in
court as the basis of a judicial action. Many courts, however, have not
hesitated to state that they "abhor a forfeiture"170 and "will not lightly
decree an abandonment of a property so valuable as that of water in an
irrigating region."171 Consequently, they have placed a heavy burden of
proof on the party alleging a forfeiture and have sometimes restricted
the availability of forfeiture decrees in other ways which have been criti-
cized as making the requirement of forfeiture "almost impossible of
To facilitatethe elimination of paper rights, it has been suggested that
the person who has failed to use water might be given the burden of prov-
ing no forfeiture.173 A frequent recommendation has been that adminis-
trative agencies in all states be given the authority to initiate forfeiture
proceedings on their own motion.174 A procedure that has drawn recent
praise is that of Nebraska, where the state agency makes regular surveys
of all uses and, where nonuse is apparent, holds hearings and declares
forfeited any right under which water has not been beneficially used for
a period of three years; the agency's order of forfeiture may be appealed
to the courts, but it is a final order unless reversed or modified on
appeal.175 Greater administrative action is also being undertaken to solve
the acute problem of paper rights in Oregon and Texas today.
In Oregon 24,00 permits and certificates have been issued for the use
of water, and those granted for irrigation authorize almost twice the
acreage actually irrigated. An official report to the legislature early in
1955 lamented that the then-existing procedures for declaring the loss of
rights for nonuse176 were "cumbersome and expensive," and it recom-
mended that the cost of a state fact-finding survey (such as is contemplated
by the Nebraska statute) be reduced by requiring each holder of a water
right to file an annual statement of the amount of water beneficially used,
with loss of the right on failure so to file.177 While the legislature later in

169. E.g., Cal. Water Code Ann. N 1675-77 (Deering Supp. 1954); Kan. Gen. Stat.
Ann. 82a-718 (1949).
170. Hurst v. Idaho Iowa Lateral & Reservoir Co., 42 Idaho 436, 442, 246 Pac.
23, 25 (1926).
171. Miller v. Wheeler, 54 Wash. 429,.435, 103 Pac. 641, 643 (1909).
172. Trelease, supra note 75, at 215-16.
173. FAO, Water Laws in U.S.A. 24.
174. NRPB, State Water Law 48-49.
175. Neb. Rev. Stat. i8 46-229 to -229.05 (1952); see Trelease, supra note 75, at
216. These Nebraska statutes were held constitutional in Dawson County Irrigation
Co. v. McMullen, 120 Neb. 245, 231 N.W. 840 (1930).
176. Ore. Rev. Stat. 540.610 to -.640 (1953), none of which provided for ad-
ministrative proceedings or authorized the agency to initiate judicial actions.
177. Oregon Water Resources Committee, op. cit. supra note 61, pp. 78-79.


1955 did not impose any requirement of annual reports on users of stream
water, it did reenact in strengthened form the statutes establishing ad-
ministrative procedures both for the cancellation of abandoned rights178
and for the adjudication of all rights generally.'79
An even more acute problem of paper rights exists in Texas, where the
amount of outstanding appropriation rights is four times the amount of
water being used.180 The paper rights consist of originally valid rights
that have gone partially or completely unused for some time and permits
under which there has been a partial or complete failure ever to commence
a beneficial use of water. The adverse court decisions in Texas pre-
viously mentioned have discouraged the administrative agency from at-
tempting to cancel invalid permits,181 and the legislature has not reenacted
statutes establishing adjudication procedures despite an invitation by the
court to do so.182 The problem of paper rights has been a subject of in-
tense discussion and considerable legislative interest in the last several
years; numerous solutions to the problem have been proposed,183 and two
statutes designed to mitigate part of the problem have recently been en-
acted. A 1953 statute184 authorized the state agency to cancel all appro-
priation rights granted before 1945 under which no beneficial use at all
was made during the ten years between 1945 and 1955, thus allowing non-
users a two-year grace period in which to begin use after enactment of
the statute.l85 To assist the agency in detecting nonuse in the future, a

The report noted that such a requirement was already imposed upon holders of
power permits under Ore. Rev. Stat. 543.720 (1953). Ground water users in
Oregon are also required to file annual reports, but the statute specifies no penalty
for failure to do so. Ore. Rev. Stat. I 537.715 (1955).
178. Ore. Rev. Stat. 540.621 to -.650 (1955).
179. Ore. Rev. Stat. 539.030 to -.120 (1955).
180. The problem in Texas is well described in Proceedings: Water Law Con-
ferences, U. of Texas (1952 & 1954), especially the articles by Bouldin at pp. 96 &
226 and Rollins at pp. 67 & 221; see also Comment, State Claims in Texas Stream
Waters, 28 Texas L. Rev. 931 (1950).
181. See Johnson, The Challenge to Prescriptive Water Rights, 30 Texas L.
Rev. 669, 674 (1952).
182. See Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961 (1945).
183. For example, one proposal would authorize the issuance of certificates
for "fixed" rights to the amount of water actually used and for "potential" rights
to the unused portion of the water encompassed by the original permit; the potential
rights would become fixed only to the extent the unused water were put to beneficial
use within a specified time. Roberts, Panel Discussion, in Proceedings: Water
Law Conferences, U. of Texas 239, 241 (1952 & 1954).
184. Tex. Rev. Civ. Stat. Ann. arts. 7519a-7519b (1954).
185. It would seem that this statute was intended to apply to rights unused during
the 10-year period whether or not they had ever been used prior to 1945, but some
question has been raised as to whether the statute as drafted will actually allow
cancellation of rights that were used at some time before 1945. Bouldin, Perfec-
tion & Loss of Appropriative Rights, in Proceedings: Water Law Conferences, U.
of Texas 226, 234-35 (1952 & 1954).


1955 statute'86 requires all water users to file annual reports on the nature
of their uses, with monetary penalties up to $150 imposed for failure so
to report. A further statute enacted in 1955 would have strengthened the
agency's power to cancel the unused portion of rights being only partially
used, but it was vetoed because of a clerical error.187
Continual scrutiny of existing rights and uses for the purpose of elimi-
nating paper rights and the uncertainty they create is essential in order
that prospective new users and the'state agency may determine whether
there is unappropriated water available for new rights. It also is impor-
tant in order that existing users may base their plans each year upon re-
liable estimates of the amount of water covered by rights senior to them.
Ineffective procedures for eliminating paper rights can lead to a problem
Sof nonuse that seems quite out of place under the theory of western law.
As already indicated, the remedy of forfeiture has not been applied to
problems of wasteful use even in states where it has been effectively ap-
plied to the problem of nonuse. Where problems of wasteful use are also
beyond reach of the requirement of reasonable beneficial use, therefore,
the search for a remedy for wasteful use, at least under existing rights,
must proceed to an examination of the statutory preference provisions
found in western law.

Constitutional and statutory provisions in a number of western states
have established a fixed order of preference among the different purposes
for which water may be used. These preferences come into play in two
principal situations. They may allow the subordination or termination of
an existing use, usually on payment of compensation, in order that the
water may be reallocated to a preferred purpose of use. They may also
function as guides for the state agency in deciding whether to approve,
modify, or reject applications for new rights.
Preference provisions reflect a deep-seated feeling that certain pur-
poses of use are more important than others and that some measures are
Necessary to offset the relatively fortuitous allocation of water solely on
the basis of time (as distinguished from purpose) of use. Although pre-
ferences thus imply that some uses are more reasonable and beneficial
, than-others, the remedies of preferences and of reasonable beneficial use
have been applied to problems of waste in quite distinct ways.
Preference provisions are directed chiefly at the problem of wasteful
purposes. Preferences for the subordination or termination of existing
uses constitute one of the few remedies in western law for wasteful pur-
poses of use under already existing rights. Preference provisions

[' 186. Tex. Rev. Civ. Stat. Ann. arts. 7612-7612b (Supp. 1956).
187. H. B. 63, 54th Legislature Reg. Sess., 1955. Vetoed June 24, 1955. The
same type of legislation was introduced in the 1957 Session as H. B. 145, S. B. 5.


established as guides for administrative action in passing upon applications
are intended to help prevent the creation of new rights where opportunities
for a more beneficial purpose of use might be available at an early date.
The problems of wasteful amounts and wasteful locations are not directly
affected by preferences, though they may be eased indirectly when waste-
ful purposes of use which are prevented, subordinated, or terminated hap-
pen to be uses that are wasteful in these other two respects as well. But
for reasons that will be brought out in the following pages, it is quite pos-
sible that existing preference provisions in the West are not actually a
significant remedy even for the problem of wasteful purposes.
Preferences for the subordination or termination of existing uses. A
common form of preference provision is that found in the Colorado Con-
stitution which declares that:
...Priority of appropriation shall give the better right as between those using
the water for the same purpose; but when the waters of any natural stream are
not sufficient for the service of all those desiring the use of the same, those
using the water for domestic purposes shall have the preference over those
claiming for any other purpose, and those using the water for agricultural pur-
poses shall have preference over those using the same for manufacturing
purposes. (Emphasis added.)188

This provision appears in substantially identical language in the constitu-
tions of Idaho'89 and Nebraska190 and in the statutes of Oregon191 and
Utah.192 Domestic and municipal uses are accorded first preference in all
states having preference provisions, and irrigation is usually favored over
industrial and other uses. Wyoming, however, ranks transportation and
steam power plants on a par with domestic use;193 Texas places most manu-
facturing activities ahead of irrigation;194 and Idaho lists mining and mill-
ing in organized mining districts ahead of agriculture and manufacturing.195
In contrast with the fixed order of preferences in all of these states, a
Washington statute authorizes the court to determine which use is "su-
perior" and which "inferior" in each case brought before it.196
Two important questions raised by the wording of several of these
statutes are whether compensation must be paid for the subordination or
termination of an existing use and, if so, whether these provisions allow
private persons to condemn existing rights in order to undertake preferred
uses. In Colorado, it is thought that a "true preference" (one not requiring

188. Colo. Const. art XVI, 6.
189. Idaho Const. art. XV, 3.
190. Neb. Const. art. XV, 6.
191. Ore. Rev. Stat. 540.140 (1953).
192. Utah Code Ann. 73-3-21 (1953).
193. Wyo. Comp. Stat. Ann. 71-402 (Supp. 1955).
194. Tex. Rev. Civ. Stat. Ann. art. 7471 (1954).
195. Idaho Const. art. XV, 1 3.
196. Wash. Rev. Code 90.04.030 (1951).


compensation) was intended by the, drafters of the Constitution, but the
Colorado court viewed with alarm the possibility of large-scale termina-
tion of irrigation rights in favor of municipal uses and held that compen-
sation is necessary;197 though the Court has not specifically decided the
point, it appears that the Colorado provision does authorize condemnation
of rights by persons without eminent domain powers under other stat-
utes.198 The constitutional provisions in Nebraska and Idaho, drafted under
the influence of this decision of the Colorado court, specify that compen-
sation must be paid and seem to confer condemnation power on private
persons. The Washington statute expressly allows private condemnation
of inferior uses on payment of compensation, and it has been upheld by
the state court.199 The Wyoming statute also makes explicit provision for
private condemnation of existing rights for certain changes to more fa-
vored uses,200 and a companion statute establishes an administrative pro-
cedure for supervising the exercise of this power.201
In Oregon, Texas, and Utah neither of these questions of compensation
and private condemnation are settled by the language of the statutes, and
the courts apparently have not been required to rule on them. No western
court, however, has yet decided that compensation need not be paid where
a statute is silent on this matter, and statutes creating true preferences
are quite uncommon. One of the few examples of a true preference today
is presented by a 1931 statute in Texas declaring that appropriation rights
acquired subsequent to its enactment are granted on the condition that the
water may later be taken for municipal purposes without compensation.202
The uncertainty caused by this statute has led one critic to label it "an
Achilles' heel to every water permit issued since its enactment," and
it has been suggested instead that Texas municipalities be granted the

197. town of Sterling v. Pawnee Ditch Extension Co., 42 Colo. 421, 94 Pac. 339
(1908). This and "other examples of the Colorado Supreme Court's reluctance to
destroy a priority with a preference" gre analyzed in Trelease, Preferences to the
Use of Water, 27 Rocky Mt. L. Rev. 133, 145-47 (1954); see also the criticism of
the court's interpretation of this constitutional provision in Thomas, Appropriations
Sof Water for a Preferred Purpose, 22 Rocky Mt. L. Rev. 422 (1950).
198. Trelease, supra note 197, at 146.
199. State ex rel. Anderson v. Superior Court, 119 Wash. 406, 205 Pac. 1051
200. Condemnation for domestic and transportation purposes is not restricted,
but condemnation for steam power can not be exercised against irrigation rights
already adjudicated or applied'for at the time of enactment of the 1955 amendment
adding steam power to the category of first preference. The statute prefers irri-
gation over hydroelectric power but provides no eminent domain power in support
of this preference. Wyo. Comp. Stat. Ann. 71-402 (Supp. 1955).
201. Wyo. Comp. Stat. Ann. 71-403 i(1945).
202. Tex. Rev: Civ. Stat. Ann. arts. 7472-7472a (1954). The statute does not
Supply to appropriations.from the Rio Grande or to appropriators for domestic and
municipal purposes. See El Paso County Water Imp. Dist. No. 1 v. El Paso, 133 F.
Supp. 894 (W.D. Tex. 1955).


preference for appropriation of specific water in anticipation of future
needs that is granted municipalities in several other states203 (discussed
Though most of these preference provisions would appear to allow
changes to more favored uses either in temporary shortages or on a
permanent basis, several factors indicate that they may have little effect
upon the vital problem of wasteful purposes of use in western law. The
orders of preference in most states reflect the economic conditions of a
by-gone era.204 The ranking of irrigation over industry is particularly
out-moded in many areas if the function of preferences is to facilitate
permanent changes to more important purposes of use.205 Assuming that
preference provisions confer eminent domain powers on private persons,
these provisions would not seem to alter the position of irrigators with
regard to industrial and power users; irrigators in many states have
general eminent domain powers under other statutes,206 but the expense
of condemning rights for industrial and power uses would ordinarily be
prohibitive for irrigation projects whatever the source of the eminent
domain power. Where industrial uses are preferred over irrigation,
however, the grant of condemnation power should facilitate changes to in-
dustrial uses wherever such uses are sufficiently more valuable to bear
the cost of compensating all the irrigators whose rights to a preservation
of existing stream conditions might be injured by the change of purpose
(and probably of place of use and point of diversion as well).
Because municipalities in every state have power to condemn property
for water supply purposes, their position would be unaffected by the top
preference accorded domestic and municipal uses. On the other hand,
this domestic-use preference under provisions conferring private con-
demnation powers may enable individuals or groups without such power
under other statutes to acquire water rights which they could not purchase
at reasonable cost otherwise. As domestic uses are frequently small
enough or sufficiently important to bear the expense of condemning exist-
203. Bouldin, Perfection and Loss of Appropriative Rights, in Proceedings:
Water Law Conferences, U. of Texas 226, 231 (1952 & 1954). Problems under this
Texas statute are discussed at some length in McCall, Rights to Impounded Water,
id. at 251.
204. "A reappraisal of these laws and the policies behind them... would not be
out of place." Trelease, supra note 197, at 158. -
205. "Because of its importance to economic development, and because of its
relatively small need as compared with irrigation, industry should be accorded a
higher priority in future water policy than is now the case. Along with domestic
needs, sufficient water to support future industrial growth should probably be set
aside first. In most instances this would have relatively little effect upon the
availability of water for irrigation." Hamman, Water Policy and Western Industrial
Development, in Western Agricultural Economics Research Council, Committee
on Economics of Water Resources Development, Report No. 1, p. 75, 79 (1953),
(obtainable from U.S. Dept. of Agriculture, Washington, D.C.).
206. See note 17 supra.



ing rights for other purposes, it may be that the main effect of preference
provisions (at least those not ranking industry above irrigation) is to do
no more than to facilitate changes to domestic uses.
These preference provisions appear to be even less helpful for en-
couraging temporary changes to more important purposes of use. As pre-
viously indicated, the bulk of the problem of temporarily wasteful purposes
in the West relates to the strict enforcement of priorities among irriga-
tion rights in shortages without regard to the relative need or value of
Different crops. With one exception, however, no preference provision in
the West permits the reallocation of water between uses for the same
purpose; the exception is the Washington statute, but it includes a require-
ment that the court not permit one irrigator to condemn water that is being
economically used for irrigation, and this requirement might be construed
to protect an economical irrigator of senior priority during shortages
even though a junior appropriator's use would be more valuable.
In addition to the questionable influence of most preference provisions
for facilitating changes to more important uses, it has recently been said
that "the inflexibility associated with prior appropriation is magnified by
the usual adoption of an order of preferences among water uses applicable
uniformly on a state-wide basis."207 The Washington procedure whereby
the relative importance of different uses is determined in each situation
has been recommended as a more' desirable technique.208 It would seem
that an effective procedure for accomplishing changes of wasteful uses
could allow the subordination or termination of existing rights either for
temporarily or permanently more important purposes and also for uses
for the same purpose at less wasteful locations. It has frequently been
suggested that consideration be given to extending private condemnation
power to permit the reallocation of water to a new use that is, say, 50 per-
cent more beneficial than the existing use, but at the same time it is ad-
mitted that preference provisions to date have not been applied in any
such manner.209
Preferences in the acquisition of new rights. Preference provisions in
several states are made specifically applicable to the acquisition of new
rights. In a few states the provisions require that, when competing appli-
cations for appropriation of the same water are pending concurrently, the
agency must approve the application contemplating the more preferred use
even though that application had been filed later than the other application.210

207. Marquis, Freeman, & Heath, supra note 33, at 835.
208. Ibid.
209. NRPB, State Water Law 46-47. The owner of a right sought to be con-
demned on such grounds might be given the option of himself changing to a use equal
to or higher than the one proposed by the condemnor. McGuiness, supra note 119,
at 12.
210. Ariz. Code Ann. 75-106 (1939). Kan. Gen. Stat. Ann. 82a-707 (1949) is
probably in this category.


In some other states preferences are made applicable as general guides
for administrative action in passing upon applications whether or not com-
peting applications are pending at the same time.211 A similar guide for
administrative action generally would seem to lie in the just mentioned
mandatory provisions for the situation of competing applications and even
in the orders of preference contained in statutes allowing the subordination
or termination of existing rights.212
I Probably the most significant preference in the acquisition of new rights
is that which is accorded to municipalities in many states for appropria-
tion of water in anticipation of future water supply needs. This preference,
established by statute in seven states213 and by court decision in three
others, 214 is separate from the usual municipal condemnation power for
water supply purposes and also constitutes an exception to the strict re-
quirement of western law that beneficial use of water be commenced dili-
gently after issuance of a permit by the state. Three states, however, have
enacted statutes either allowing or requiring the water to be put to a bene-
ficial use pending its later use by the municipality, and provision is made
in these states for suitable temporary uses by others during the interval.215

In Oklahoma a list of preferences (placing manufacturing above irrigation) is
prescribed for conservancy districts in issuing permits for water supplies devel-
oped by district operations wherever the district finds it not possible or reason-
able to grant all applications filed with it. Okla. Stat. tit. 82, 577 (1951).
211. Cal. Water Code. Ann. 106, 1253-55 (Deering Supp. 1954); Tex. Rev. Civ.
Stat. Ann. art. 7471 (1954).
Ore. Rev. Stat. 537.170 (1953) and Utah Code Ann. 73-3-8 (1953) enumerate the
usual purposes of use as a general guide to administrative action in granting per-
mits but refrain from establishing any order of preference among them.
212. Utah Code Ann. 73-3-21 (1953), Tanner v. Bacon, 103 Utah 494. 136 P.2d
957 (1943).
The preference provisions in Colorado and Idaho, however, can have no relation
to the acquisition of new rights because of the absolute right to appropriate water
in those two states (except, in Idaho, for power purposes). See note 216 infra.
213. Ariz. Code Ann. 75-106 (1939); Cal. Water Code Ann. 1264 (Deering Supp.
1954); Nev. Comp. Laws 7944 (1929); Okla. Stat. tit. 11, 305 (1951); Ore. Rev. Stat.
537.190 (1953). S.D. Sess. Laws 1955, c. 430, 61.0122; Wash. Rev. Code 90.20.
020 (1951).
A similar preference is granted Oregon municipalities for appropriation of
water for future hydroelectric power needs. Ore. Laws 1955 c. 707, 1 33.
Type of water for future hydroelectric power needs. Ore. Laws 1955, c. 707,
214. Denver v. Northern Colorado Water Conservancy Dist., 130 Colo. 375, 276
P.2d 992(1954); Denver v. Sheriff, 105 Colo. 193, 96 P.2d 836 (1939); Beus v. Soda
Springs, 62 Idaho 1, 107 P.2d 151 (1940); Holt v. City of Cheyenne, 22 Wyo. 212,
137 Pac. 876 (1914).
215. In California, the municipality may dispose of currently unused water as
a public utility, or the state may grant others a temporary right to use the water,
with the municipality required to compensate those other users for facilities
rendered valueless when the municipality desires to commence its use of the water.
Calif. Water Code f 1203, 1264, 1461-64 (Deerings, 1954).


The preference for the future needs of municipalities should facilitate
long-term planning in order that water may be used temporarily for bene-
ficial purposes and later shifted to municipal use without heavy cost to the
municipal users and to society generally from the termination of large-
investment uses for which the water might otherwise have been appropri-
ated prior to the time of municipal need. Except for this preference, how-
ever, it does not seem that preferences relating to the acquisition of new
rights exert a significant influence for the use of water for more impor-
S tant purposes. By favoring irrigation over all other non-domestic uses in
most states, these provisions are as rigid and as out-moded as the quite
similar provisions for the subordination or termination of existing rights.
Moreover, even if these provisions ensured the acquisition of rights for
the more important purposes available at the time of acquisition, they do
not facilitate changes to what may be the more important purposes at a
later time. Preferences in the acquisition of new rights are closely re-
lated to the requirement that new rights not be contrary to the public in-
terest. In conclusion here and in anticipation of the discussion of the
public-interest standard in the following section, it may be said that
neither the reported decisions nor the general literature on western law
indicate that these preferences or this standard of public interest have
often been invoked in order to justify the modification or rejection of an
application for a new right.

Applications contrary to the public interest
In all but two of the seventeen western states an application to appro-
priate water may be denied if the proposed new use would be contrary or
detrimental to the public interest.216 The appropriation statutes that con-
fer this power on administrative officials seldom provide standards for
its exercise, but preference provisions have been considered as one stan-
dard of the public interest in certain instances. There are few reported
decisions relating to denials of applications on this ground, however, and

Colorado allows leases of the water for irrigation use pending the municipality's
need for it. Colo. Rev. Stat. 5 139-79-1 (1953).
In South Dakota any person may make temporary appropriations of the surplus
above current municipal requirements, and the municipality must give such users
S six months notice of its readiness to use the water itself. S. D. Sess. Laws. 1955,
c. 430, 61.0122.
216. The two exceptions are Colorado and Idaho. The Colorado Constitution
provides that "the right to divert the unappropriated wasters of any natural stream
S to beneficial uses shall never be denied...." (art. XVI, 6). An identical passage
appears in the Idaho Constitution but with the proviso that "the state may regulate
and limit the use [of water] for power purposes" (art. XV, 1 3). These provisions
have been interpreted by the courts of these states to confer an absolute right to
4 appropriate water (except, in Idaho, for power purposes); consequently, an appli-
cation for a new right cannot be rejected on the ground that it would be contrary to
the public interest. See note 20 supra.


despite-the favorable judicial attitude reflected in each of them, these
cases suggest that this power has been infrequently used to date.
The New Mexico court in a fairly early case indicated that a situation
might arise where the public interest would require rejection of the earlier
of two competing irrigation applications and approval of the subsequently
filed one; among the factors relevant to a determination of the public in-
terest in such a case are the protection of investors and maintenance of
public confidence in the soundness of projects approved by the state, the
costs per acre of irrigation under the competing applications, and the fact
that one group of applicants were settlers on the land to be irrigated while
the other group were out-of-state promoters.217 The Oregon court has up-
held the denial of an application on public interest grounds where the ap-
plicants had not secured rights to the desert land proposed for irrigation,
as approval of the application would have restricted the state desert land
board's freedom to decide who should receive rights to reclaim the land
in question.218 The Nebraska court has approved the issuance of a power
permit on condition that none of the power generated be transmitted out-
of-state,219 and the California court has upheld the state agency in granting
a power permit with the proviso that "the right to store and use water for
power purposes under this permit shall not interfere with future appro-
priations of said water for agricultural or municipal purposes."220 The
Utah court fairly recently upheld the state agency in subordinating an
earlier application for power use to an application for use of the same
water as part of a long-planned public development project for increasing
irrigation, domestic, and industrial supplies in a certain region of the
state.221 Finally, a quite recent instance has been cited where the state
agency in Wyoming refused to issue a permit to a federal project for
appropriation of water in Wyoming for irrigation of land in Nebraska
until the project was modified to include some land in Wyoming as
In both the California and Utah cases the state agencies were guided by
preference provisions which ranked power use below uses for domestic
and agricultural purposes,223 and statutes in both states also directed the
agency to grant such applications as would "best utilize" or ensure "the

217. Young & Norton v. Hinderlider, 15 N.M. 666, 110 Pac. 1045 (1910).
218. Cookinham v. Lewis, 58 Ore. 484, 114 Pac. 88, 115 Pac. 342 (1911).
219. Kirk v. State Board of Irrigation, 90 Neb. 627, 134 N.W. 167 (1912); see
also In re Commonwealth Power Co., 94 Neb. 613, 143 N.W. 937 (1903).
220. East Bay Municipal Utility Dist. v. Department of Public Works, 1 Cal.
2d 476, 35 P.2d 1027 (1934). See also Temescal Water Co. v. Department of Public
Works, 44 Cal. 2d 90, 280 P.2d 1 (1955).
221. Tanner v. Bacon, 103 Utah 494, 136 P.2d 957 (1943).
222. Trelease, supra note 75, at 218-19.
223. Cal. Water Code Ann. 106, 1254 (Deering Supp. 1954); Utah Code Ann.
73-3-21 (1953).


more beneficial use" of the state's water resources.224 The action of the
agencies in these two cases and in the Wyoming episode just mentioned
suggest that the power to deny applications on public interest grounds
may constitute one technique by which the use of water can be guided in
4 accordance with comprehensive plans for state water resource develop-
ment. The usefulness of this technique requires, of course, the formation
of comprehensive plans to guide administrative action on applications at
a time when a significant amount of unappropriated water still remains
available for use. Even without the formulation of such plans, however,
the power to deny applications as contrary to the public interest might
enable the agency to prevent new uses at locations or for purposes that
are wasteful under already prevailing conditions. But applications for
such uses probably could not be denied unless better uses are likely to be
proposed within a reasonable time. Moreover, the power to deny proposed
new uses does not help to prevent uses that are approved from becoming
Wasteful at some later time.

SWithdrawals or appropriations by the state
Statutes authorizing temporary or permanent withdrawals of water from
appropriation or empowering a state agency to appropriate water provide
one of the most explicit techniques by which a state can control the initial
pattern of water use. The planning of extensive development projects or
the formulation of comprehensive state plans may extend over a period of
years, and it may be essential that interim measures be taken to prevent
others from appropriating for less desirable purposes the water on which
the projects or the comprehensive plans are to be based. It is probable
that this objective could be attained by denying applications for such uses
on public interest grounds, but more affirmative steps such as withdrawals
and appropriations by the state may be desirable in order that would-be
users may be put on notice and helped to avoid the losses involved in plan-
ning and applying for projects that will only be rejected as contrary to the
public interest. Withdrawals and appropriations by the state are not author-
ized in many states, however, and the effectiveness of these techniques de-
pends upon the amount of unappropriated water remaining and on the vigor
with which the large-scale projects or planning is pursued.
Withdrawals of water from appropriation may be ordered by the state
agency in South Dakota pending an investigation of its most complete utili-
zation, and the agency may also withdraw water which is to be the basis of
later federal projects.225 A Utah statute authorizes the governor to suspend
the right to appropriate when the public interest requires preservation of

224. Cal. Water Code Ann. 1253 (Deering Supp. 1954); Utah Code Ann. I 73-3-
21 (1953).
225. S.D. Sess. Laws 1955, c. 430 61.0123. Withdrawals pending the making of
such investigations are recommended in NRA, Desirable Principles 15-16.



the supply for some particular use.226 Oregon has by statute permanently
withdrawn from appropriation the water of numerous streams to preserve
their scenic attraction and fish life,227 and one observer has noted a pos-
sible trend toward the limitation of large development projects elsewhere
in order to maintain sufficient stream flow for fish and wildlife and recre-
ational purposes.228
Where a specific program of public resource development is proposed,
a state agency has occasionally been given a right to appropriate that is
broader and subject to less procedural requirements than the right given
private persons.229 The notable use of this technique in California has al-
ready been referred to above in the discussion of problems of wasteful
location stemming from political restrictions.230 Over the past thirty
years the California Department of Finance has filed at least sixty appli-
cations for appropriation of water in pursuance of that state's extensive,
long-range State Water Plan for the diversion and conveyance of water
from watersheds of perennial surplus to agricultural and urban areas of
deficit rainfall.231 These filings give the state a prior right over any later
appropriators making use of the water pending its eventual use by the
state. This priority may be released or the application assigned other
agencies or persons when their intended uses would not conflict with the
Water Plan and would not take from counties of surplus supply the water
necessary for their future development. Where conflict with the Water Plan
has appeared probable but the release or assignment has been deemed in
the public interest, permits have been issued for use of the water subject
to various reservations to protect the state's greater interest in the even-
tual incorporation of the water into its comprehensive program.

Limitations on duration of rights
Many problems of waste in western law may be partly attributed to the
fact that appropriation rights are almost always granted in perpetuity.
Uses at wasteful locations or for wasteful purposes might eventually be
226. Utah Code Ann. 73-6-1 (1953).
227. Ore. Rev. Stat. 538.110 to -.300 (1953). A recent report in Oregon states
that many streams are already over-appropriated and recommends that authority
be given administrative officials for reserving sufficient unappropriated water in
other streams to provide the minimum flow necessary for fish life and the dilution
of pollution. Oregon Water Resources Committee, op. cit. supra note 61, pp. 72-73.
228. Trelease, supra note 75, at 214.
229. Mont. Rev. Code Ann. 89-121 (1947); N.D. Rev. Code I 61.0230 (1943).
A 1935 Idaho statute giving the State Water Conservation Board the power to
appropriate water was held to violate the absolute right of persons to appropriate
water conferred by the state's constitution. State Water Conservation Board v.
Enking, 56 Idaho 722, 58 P.2d 779 (1936).
230. See text, p. 101.
231. Calif. Division of Water Resources, Dept. of Public Works, Water Right
Investigations: Water Right Applications by State Department of Finance, Assignment
Thereof, Reservations for Counties of Origin, and Other Related Matters (1955).

terminated if rights were granted by the state for limited periods of time,
but there appears to have been almost no experimentation to determine
whether rights could be issued for a finite period sufficient to protect a
user's investment but not so long that changed conditions might render the
the use undesirably wasteful.
Rights of limited duration have been issued in certain special situations,
as where water appropriated for future municipal needs is temporarily
devoted to other uses,232 but with such exceptions the only instances of
rights of limited duration seem to concern appropriations for the genera-
tion of power. A fifty-year limit on power rights is set by statute in
Nebraska and Oregon;233 in Arizona a forty-year limit is set, and appro-
priations for more than 25,000 horsepower can be granted only by the
legislature.234 The appropriator is generally accorded preferential treat-
ment in reappropriation of the water at the end of this time or is entitled
to compensation from the state or the next appropriator for his unamor-
tized investment or the value of existing improvements.
Limitations on the duration of power rights may reflect the expectation
that dams and storage reservoirs often have a useful life of only fifty or
seventy-five years; after this time the right to appropriate water for
power purposes at the original site would be worthless, and no other site
may be available to which the right can be changed without interfering
with many other rights. But these limitations on duration of power rights
may also reflect the low preference accorded water power uses in all
orders of preference, perhaps because alternative sources of power are
usually available (even though higher costs may be incurred) and it is
Thought desirable to allow for economic expansion by taking steps to re-
serve water resources for activities in which water has no substitute.
This latter reason for limiting the duration of power rights, if true, is
not far removed from the general reason for confining all rights to finite
periods in order to permit some future reallocation of water to more im-
portant places or purposes of use. If an appropriation system of rights
is to be adopted, the issuance of rights of only limited duration, coupled
with measures for easing individual and social losses resulting from
termination of uses under them, deserves serious study as a means of
moderating the rigidity of such a system. But this promising technique
has been infrequently used and consequently of little significance in the
West, and it is highly unlikely that the many existing rights already
granted in perpetuity could or would now be limited to a finite period of

232. See note 215 supra.
233. Neb. Rev. Stat. I 46-236 (1952); Ore. Rev. Stat. 537.290, 543.610 (1953).
A similar statute in South Dakota (S.D. Code, 61.0152 (1939)) was repealed in
234.- Ariz. Code Ann. 75-106, 75-111 (1939).


Fees for the use of water
If the state were to exact periodic fees for the use of water, it is con-
ceivable that a schedule of charges could be established which would dis-
courage wasteful amounts of use and perhaps even some uses at wasteful ,
locations or for wasteful purposes. There appears to be no doubt that fees
may constitutionally be charged by the state in connection with new uses,235
but the effectiveness of this technique has rarely been explored in the
West. Nebraska and Oregon require power users to pay annual fees pro-
portioned to the amount of water used.236 For several years South Dakota
imposed an annual "tax" on the output of deep artesian wells, declaring
the measure to be for the conservation of natural resources and regulation
of the use of artesian water rather than for the raising of revenue.237 In
California, a 1913 statute since repealed prescribed both filing fees and
annual use fees of some magnitude.238 Various fees are charged in all
states in connection with the filing of applications for new rights or changes
of existing ones, the adjudication of rights, and often the distribution of
water by administrative officials; but these fees are quite different from
periodic fees for the use of water. With such scattered exceptions as those
just listed, periodic fees have not been exacted, and the potential of this
technique both as an incentive to efficient use of water and as a source of
funds for more vigorous administrative supervision of uses has been un-
tested to date.

Possible Trend Toward a Less Strict Enforcement of Priorities

Most problems of waste in western law stem, as already indicated,
from the creation and strict enforcement of priorities among appropriation
rights. The right of an appropriator to continue forever the same purpose
of use at the same location is particularly responsible for the serious
problems of wasteful purpose and location which have gradually become
apparent under the appropriation system. The dominance of the element
of priority has prevented or retarded changes to smaller amounts or to
different places or purposes where such changes would allow a higher
beneficial use of limited water resources. In recent decades, however, a
number of commentators have detected what may be a trend toward relax-
ation of priorities in some circumstances. Any survey of problems in
western law must take particular note of the possible existence of such a
trend and its relation to problems of waste.
235. See Trenton v. New Jersey, 262 U.S. 182 (1923); Newark v. New Jersey,
262 U.S. 192 (1923).
236. Neb. Rev. Stat. 46-236 (1952); Ore. Rev. Stat. 543.710 (1953).
237. S.D. Code 61.0408 to -.0413 (1939), repealed in 1941; Madison v. Rapid
City, 61 S.D. 83, 246 N.W. 283 (1932).
238. Calif. Sess. Laws 1913, p. 1012, 23.




The appropriation system has been called quite suitable to the condi-
tions of a pioneer economy, where encouragement to resource develop-
ment is of prime concern and the restrictions of a limited endowment of
natural resources are not keenly felt. But in the evolution of the appro-
priation system greater emphasis came to be placed on the element of
priority than on the requirement of reasonable beneficial use, and the
ideas of private rights and investment protection were elevated into goals
distinct from and often in competition with the goal of highest beneficial
S use of water.239 As a result, commentators who have praised the appro-
priation system for its contribution to the growth of a pioneer economy
S have also pointed out the waste and inefficiency associated with such a
system at later stages of development.240 Many of these same commenta-
tors have also claimed that an increasing awareness of this waste has led
to a trend toward a less strict enforcement of priorities in some situations.
As early as 1908 one observer hailed the emergence of a "principle of
S unreasonable priority" in the inclination of some courts to apply a test of
reasonableness in the enforcement of priorities during shortages and in
the adjudication of claims purporting to encompass the entire flow of a
S stream.241 Some have go so far as to assert that administrative powers
and procedures relating to the acquisition and adjudication of rights and
the distribution of water have been so successful in their assigned task of

239. This emphasis on priority has been noted and lamented in many studies
of western law. For example, the NRPB, in State Water Law 81, declared that:
Strict application of the appropriative principle does not always achieve the
objective of highest beneficial use. Although beneficial use is said to be the
basis, the measure, and the limit of the right, nevertheless the most essential
element of the right is its priority in time of initiation of the right. Nor has
beneficial use been construed to mean the highest beneficial use or the greatest
utility thereof....
S McHendrie, supra note 77 at 127, concludes that:
... One of the objections to this system is that it has transferred a license into
an absolute title. Under the law the use made of this right by the appropriator
S vests that appropriator with a property interest, which amounts, in effect, to a
proprietary right; and this right reaches the dignity of a title which divests the
public of the propreitary interest which was reserved by the Constitution.
This is the foundation of the criticism of a strict application of the priority
240. 1 Wiel, op. cit. supra note 87, 1 1014; Lasky, supra, note 14, at 165;
McHendrie, supra note 77, at 129-30; Williams, supra note 56, at 104, stated that:
S. [the appropriation] principle (of) 'first come first served' smacks of the
rude circumstances of its birth, and its inordinate stress upon vested rights,
of the life and wealth reliant upon them; even among individual users, as well
as between them and the owner of the water, the public, is this extraordinary
protection of existing rights evident.
241. 1 Wiel, op. cit. supra note 87, 310-15; Wiel, supra note 154.


enforcing priorities that the harsh consequences of their strict enforce-
ment have brought the element of priority into disrepute.242 In any case,
most commentators have concluded that this administrative structure has
developed to a point where western law can no longer be characterized as
a system based primarily upon the doctrine of appropriation, although
there are differing opinions as to how completely this doctrine has been
displaced by state regulation of the use of water.243

242. Lasky, supra note 14, at 216, declared with regard to the adjudication of
rights that:
... 'First in time, first in right' is being destroyed by the administrative. As
long as the rights acquired under the doctrine of prior-appropriation were
vague and undefined, the doctrine could pass as acceptable. But the institution 4
of modes of procedure to make certain the rights at once showed up the evils
.... The administrative has done its assigned duty so well, has been so accurate
and efficient in preparing the lists that the absurdity and undesirability of al-
lowing every claim, even onlyto the amount beneficially used, simply because of
priority in time, is also becoming apparent.... 4
Much of the opposition to the administrative is roused by the latter so effectively
enforcing the doctrine it was created to enforce, and doing that which its
opponents have demanded be done.
Wiel, Administrative Finality, 38 Harv. L. Rev. 447, 478-79 (1925), concluded
.... It is probably no mistake to say that the movement to restore rigidity to
priorities has taken the step that will eventually lessen priority as a controlling
factor. The title determinations are after all not an end in themselves, and are
only incidental to regulation... .
To minister to present conditions, and not to past ones, will be found to be the
proper field. We need not be surprised if a time comes when the administration
will proceed to this with a frank recognition of the fact, which their results are
already indicating, that discretion must be the main reliance.
243. As early as 1903, Mead, op. cit. supra note 85, at 82, wrote that:
As the demands upon the water supply have grown, necessity has led to a
gradual decrease in the freedom of the appropriator and an increase in the
control exercised by the public authorities. This change has been so gradual
that the legislatures of Wyoming and Nebraska have in effect abandoned the
doctrine of appropriation, although retaining the word in their statutes.
Lasky, supra note 14, at 269-70, in speaking df state supervision over the dis-
tribution of water, said that:
No longer do the users take the water, nor can they if they will; it is doled out
to them by the state.
At this point prior-appropriation has suddenly vanished, and a new system has
started ....
Nor is that the end of the change. Once the water was doled out solely on a
basis of the relative rights of individuals to each other. Today it is not so. For
dozens of reasons based on the policy of the state, water to which one is en-
titled by abstract right may be refused to him....


The extent to which priorities are strictly enforced in actual practice
probably could be ascertained only through intimate study of the function-
ing of the administrative appropriation system. Little relaxation of priori-
S ties has been detected in the courts of last resort, but some observers
havesensed a more flexible approach on the administrative level as the
requirement of reasonable beneficial use has come more to the fore. Per-
haps the most widely quoted statement of the trend appeared in a 1936 re-
view which concluded that
...adjusting uses that are now on hand seems to be getting more attention than
additional development. In terms of law, the moderating principles of correlative
rights and reasonable use seem to be outstripping exclusive rights by priority of
appropriation in general esteem.244

Whatever may be the extent to which priorities are being more reason-
ably enforced today, however, it is unlikely that many basic problems of
Today the state through its executive officials doles out the water to the users
upon a consideration of many things, not the least of which are motives of policy
and social interest, nor the greatest, by far, of which are individual rights and
the priority of the individual appropriator.
Lasky extends this general thesis to procedures for acquiring rights and to the
administration of interstate water in Part VI of his article, at 2 Rocky Mt. L. Rev.
35 (1929). Though his conclusions may nevertheless be substantially accurate, it
is questionable at times whether the historical material he presents fully docu-
ments the trends and status of the law he depicts as of 1929. McHendrie, supra
note 77, at 128, while doubting Lasky's conclusion that the exercise of administra-
tive authority has "practically superceded" the doctrine of priority, did note a
... modern trend of thought... that the system of priority of appropriation does
not permit of the greatest beneficial use of water for irrigation; and that a
system must be adopted which will admit of a higher beneficial use and result
in the greatest good to the greatest number.
S And he concluded (at 141) that:
The evolution of the doctrine of priority of right to the use of water has pro-
gressed from the original emphasis upon individual property rights to a theo-
retical recognition of the importance of a system of highest beneficial use.
Trelease, supra note 75, at 220, has recently written that:
Adopted... as a system of private rights, eminently suitable to the pioneer
economy in which it was developed, the [appropriation] doctrine has served as
the eminently suitable basis of our present system of state administration of a
public resource.
Under this system, he states,
the appropriator, with the permission of the state, receives a privilege of using
the property of the state; a privilege that may be no less property but certainly
property of a conditional and permissive kind. The state through a system of
S administrative machinery sees to it that its property is used wisely and well.
See also Williams, supra note 56, at 178.
Li 244. Wiel, supra note 116, at 252.


waste have been appreciably reduced in this way. Perhaps the most fre-
quent situation of more flexible enforcement is during periods of tempo-
rary shortage, when some allowance may be made for the needs of tempo-
rarily more important purposes. But a relaxation of priorities at such
times does not ameliorate the general problems of use at wasteful loca-
tions or for permanently less important purposes. Furthermore, these
problems may gradually become even more serious in the West, where the
administrative appropriation system continues to be strongly favored, at
least by contrast to the riparian system.245


It does not appear that the various remedies here reviewed have been
extensively developed in western experience thus far. The requirement of
reasonable beneficial use has been applied primarily against certain prob-
lems of wasteful amounts but not so as to cause the termination or change
of uses wasteful in location or purpose. The requirement of forfeiture has
been applied only against actual nonuse of water and not against its eneffi-
cient use. Preferences, in their usual form, may make almost no contri-
bution to the solution of problems of waste. Lastly, there has been gener-
ally little use of the remedies that may be offered by the power to deny
applications contrary to the public interest, by withdrawals and appropri-
ations by the state, and by grants of rights for only limited periods of time.
Many of these remedies, however, may have a potential usefulness that
has not been drawn upon in the West to date, and it might be well here to

245. The administrative appropriation system appears to be favored over the
riparian system even by those commentators who have been most ciricial of western
law; such, for example, was the view of the NRPB in State Water Law, despite the
many shortcomings it pointed out in the functioning of the administrative appropri-
tion system.
Significant legislation as recently as 1955 continues the decided trend toward
the narrowing or elimination of riparian rights in those western states where they
have been recognized. This trend is traced in Hutchins, History of the Conflict
between Riparian and Appropriative Rights in the Western States, in Proceedings:
Water Law Conferences, U. of Texas 106 (1952 and 1954); Trelease, Coordination
of Riparian and Appropriative Rights to the Use of Water, 33 Texas L. Rev. 24
(1955). The 1955 Legislation appeared in North and South Dakota. N.D. Laws 1955,
c. 345. S.D. Sess. Laws 1955, c. 430.
There has also been a pronounced trend toward the enactment of administrative
appropriation codes relating to the use of ground water, with a corresponding modi-
fication or elimination of ground water rights based on ownership of overlying land.
Hutchins, Trends in the Statutory Law of Ground Water in the Western States,
Proceedings: Water Law Conference, U. of Texas 131 (1955); 34 Texas L. Rev. 157
(1955). Significant 1955 legislation furthering this trend is N.D, Laws 1955, c. 345;
Ore Rev. Stat. 537.505 to -.990 (1955); S.D. Sess. Laws 1955, c. 431.


summarize the various ways in which they might be more fully employed
against problems of waste.
The problem of wasteful amounts must be attacked primarily by more
vigorous supervision and enforcement of the requirement of reasonable
beneficial use. Where wasteful amounts are being used because of the ad-
judication of excessive amounts in early decrees, the excessive portion
of these rights might be declared forfeited for failure to make a reason-
able and beneficial use of that portion. Care must be taken that new rights
be granted only for that amount of water reasonably necessary to each
proposed use, and wasteful amounts of use under new rights might be dis-
couraged if they were granted subject to the payment of periodic fees based
on the amount of water used.
Where existing uses create problems of wasteful location or wasteful
purpose, changes to better locations or purposes might be encouraged in
various ways and compelled in aggravated cases. Application of the re-
quirement of reasonable beneficial use might be extended to compel cer-
tain changes of location on penalty of forfeiture, and it might also be
extended to justify some scheme of prorationing in temporary shortages.
In order to facilitate changes to permanently more important uses, it may
be desirable to modify the traditional form of preference provision in fa-
vor of a technique, such as that in Washington, which allows changes to
whatever may be the superior use in each situation. It may also be neces-
sary to reconsider the degree to which other users should be protected
against altered conditions of stream flow in some cases.
Problems of wasteful location and purpose in connection with rights to
be granted in the future may be anticipated somewhat by careful planning
and control over the initiation of new uses. The state may exert substan-
tial control over the pattern of initial use of water by denials of applica-
tions contrary to the public interest and by withdrawals and appropriations
Sof water in line with concrete policies for over-all water resource de-
velopment. But additional steps, such as limiting the duration of rights,
Smay be necessary to prevent new uses from becoming wasteful in location
or purpose under different conditions at some future time.


Apart from those of waste, there are other problems in western law
relevant to proposals for appropriation legislation in the East. No attempt
is made here to catalog all relevant problems from western experience;
S many important ones relating to administrative law and practice are be-
yond the scope of this paper. The few mentioned below have one feature
Sin common in that they represent areas of uncertainty in western law that
Share partly, at least, avoidable. This uncertainty results either from weak-
nesses of administration or from unsettled legal theory. In either case,


these problems might well be anticipated in drafting substantive and pro-
cedural provisions of appropriation legislation in the East.

Coexistence of Appropriation and Riparian Rights of Reasonable Use

While all seventeen western states recognized appropriation rights
during the first decades of their settlement, riparian rights were also rec-
ognized at an early time in nine of these states. The problems encountered
in attempting to coordinate these two types of rights constitute a substan-
tial part of the history of western law. It is sufficient to remark here that
the uncertainty engendered by riparian rights has led most of these states
to resort to such measures as the elimination of unused rights and the
limitation of used rights to a specific maximum amount of water.246 In
California and Texas, however, riparian rights of reasonable use continue
to play an important role in the allocation of stream water, though in both
states the scope of these rights has been narrowed to some extent.247 In
these states a riparian's right is subject to all appropriation rights ac-
quired before his riparian land was patented but is superior to all appro-
priations commenced after patenting; as in traditional riparian theory,
however, the rights of all riparians are equal among themselves. Conse-
quently, a riparian may begin or expand his use at any time and in any
amount that is deemed reasonable, and junior appropriation rights-as
well as all riparian rights-are held subject to the resulting uncertainty.
The continued existence of riparian rights of reasonable use in California
has long been a matter of intense controversy,248 and in Texas an increas-
ingly acute problem of water allocation is currently evoking numerous
246. The manner in which several western states modified riparian rights is
outlined in note 46 supra. See also note 245 supra.
247. In California, the court has taken a very narrow view of the extent of
riparian land, limiting it to (1) the boundaries of the watershed and (2) the smallest
tract held under one title in the owner's chain of title. Anaheim Union Water Co. v.
Fuller, 150 Cal. 327, 88 Pac. 978 (1907). Seasonal storage is prohibited under a
riparian right. Herminghaus v. Southern Cal. Edison Co. 200 Cal. 81, 252 Pac. 607
(1926). Finally, many riparian rights have been lost by prescription, as nonriparian
use of water for five years in California is sufficient to create a prescriptive right
whether or not the riparian is actually damaged by the use. Shaw, Development of
the Law of Waters in the West, 10 Calif. L. Rev. 443, (1922).
In Texas, the court has limited riparians to a reasonable use of no more water
than falls below the "line of highest ordinary flow" (Motl v. Boyd, 116 Tex. 82, 286
S.W. 458 (1926)), which, owing to the pattern of rainfall and run-off in this state,
may represent only a small percentage of annual stream flow in most river basins.
Cf. N.D. Laws 1955, c. 345 (limiting riparian rights solely to domestic and
stock-watering uses).
248. See Shaw, supra note 246; Wiel, supra note 116.



suggestions for a considerable modification or narrowing of these

Rights to Return Water

A considerable portion of the water diverted and applied to a particular
use may not be consumed and is therefore available for subsequent use.
The name 'return water" is generally applied to unconsumed water making
its way back to a stream or other source of supply in drainage ditches, as
uncontrolled surface flow, or by seepage through the soil. Return water
S has become a vital factor in western water development, and many uses
are based almost entirely upon it. In some instances the presence of re-
turn water has made possible a fuller total utilization of water than might
otherwise have been achieved, as where return water from upstream uses
has reentered the stream at such a time that the dry-season flow avail-
able for downstream use is increased. In addition to enabling greater use
by others, the use of return water may be an important matter to the pro-
ject from which it results. If an irrigator may recapture and reuse re-
turn water from his own operations; he can appreciably increase the
acreage irrigated or the/yield per acre, thus permitting him to spread
the overhead costs of development over a larger basis of production.
The question of rights to use return water has been called "an out-
standing problem in western water law", for in many respects the law on
this subject is "still in a formative stage.'250 The right of the original
appropriator of the water to reuse it may depend upon whether the water
has not yet left his land, has left the land but has not reentered the stream,
or has reentered the stream; his right may be affected by the time that
elapses between the first appearance of the return water and his attempt
to reuse it, and it is also influenced by whether he announced an inten-
tion at the commencement of his project to reuse whatever return water
should result from his proposed use.251 Where the water is not reused

249. The antagonism between the advocates of riparian and of appropriation
rights in Texas is fully, and often picturesquely, set out in Proceedings; Texas
Water Law Conferences, U. of Texas (1952 and 1964).
250. NRPB, State Water Law 26, 49.
251. If the right of reuse is asserted at the time of the original appropriation
and is diligently pursued within a reasonable time after the identity of return water
can be established, it has been widely- recommended that the original appropriator
be allowed to reuse the water and that legislation be enacted to clarify his right.
McGuinness, supra note 119, at 13; NRA, Desirable Principles 13-15; NRPB, State
Water Law 49-51.
Statutes in Montana and North Dakota specifically grant state agencies undertak-
ing development projects the right to reuse all return water from them. Mont. Rev.
CodesAnn. 89-122 (1947); N.D. Rev. Code 161-0235 (1943).


by the original appropriator, other persons along its return route may
attempt to use it before it renters a stream, and conflicts can arise both
among such persons and also between them and appropriators from the
stream which the return water would otherwise enter.252 To the extent the
law as to return water is unsettled, a considerable degree of uncertainty
attaches to the use of such water either by the original appropriator or by
persons intercepting it en route to the stream or diverting it after its
reentry into the stream.253

Acquisition of Prescriptive Rights
Western appropriation codes generally prescribe that the procedure
for acquiring rights by application to a state agency shall be the exclusive
method for the acquisition of new rights.254
It is not always clear, however, whether these acquisition procedures
are meant to be so exclusive that prescriptive rights to the use of water
may no longer by acquired. The doctrine of prescription, as applied to
the use of water, has apparently fallen into fairly general disfavor in the
West; it has been expressly eliminated by the appropriation codes of
Nevada255 and Utah,256 and the courts in New Mexico, Oregon, and

252. Statutes in some states give the owner of land on which seepage water
arises a prior right to its use. Colo. Rev. Stat. Ann. 147-2-2 to 147-2-4 (1953);
Ore. Rev. Stat. 537.800 (1953). Even where such statutes have been enacted, how-
ever, courts generally seem to hold that seepage water that would naturally reenter
a stream is part of the stream and subject to existing rights to the stream flow.
Comstock v. Ramsey, 55 Colo. 244, 133 Pac. 1107 (1913); Woodward v. Perkins,
116 Mont. 46, 147 P. 2d 1016 (1944); see Hildebrandt v. Montgomery, 113 Ore. 687,
234 Pac. 267 (1925).
253. It appears that the economic feasibility of some large transmountain diver-
sion projects might be impaired if the project sponsor is denied the right to utilize
the return water from the project, and one commentator has found the position of the
transmountain diverter "alarming" in this respect in Colorado, where many such
projects are being planned. Martz, Seepage Rights in Foreign Waters, 22 Rocky Mt.
L. Rev. 407 (1950).
A discussion of various decisions relating to rights to return water is contained
in Hutchins, Selected Problems 361-71, 375-78, and NRPB, State Water Law 26-36;
see also Hutchins, Policies Governing the Ownership of Return Waters from Irriga-
tion (U. S. Dept. Agriculture Tech. Bull. No 439, 1934); Annot., 89 A.L.R. 210 (1934).
254. In Colorado and Idaho, where the state constitutions have been held to confer
an absolute right to appropriate water, the filing of papers with a state agency is op-
tional rather than mandatory, and new rights may still be acquired in these states
solely by diversion and beneficial use of water.
255. Nev. -Comp. Laws 7897 (Supp. 1949), enacted in response to an invitation
from the court in Application of Filippini, 66 Nev. 17, 202 P.2d 535 (1949).
256. Utah Code Ann. 73-3-1 (1953).


, Wyoming have indicated some doubt as to whether the doctrine yet survives
in those states.257 Elsewhere, its continued existence is an open question.
Several factors have been said to bear upon this question in the ab-
sence of explicit statutory provisions. To support a decision that prescript-
ive rights may no longer be acquired, it would be necessary for a court to
hold either (1) that the administrative procedures for acquiring rights do
exclude prescription as a mode of acquisition; or (2) that adverse use by
S another causes a forfeiture of one's right and that the forfeiture period
expires before the end of the prescriptive period, with the water thus re-
verting to the state for new appropriation in accordance with administra-
S tive acquisition procedures; or (3) that the administrative procedures for
passing upon proposed changes in point of diversion or place or purpose
S of use are so exclusive that acquisition of prescriptive rights, which
would necessarily involve a change in some respect, is barred in this
way.258 A recent study of the problem in Texas has concluded that this
third ground affords the most likely basis for a decision that prescription
has been eliminated in that state,259 while several studies of the appro-
priation statutes of California have resulted in conflicting conclusions as
to the present role of the doctrine there.260 A model appropriation code
proposed for the western states generally would provide that adverse use
4 for the prescriptive period operates to terminate an existing right but not
S to create a new right in the adverse user unless he also fulfills the re-
quirements of the administrative acquisition procedures.261

Inadequate Data on the Amount of Unappropriated Water
The importance of adequate records as to the amount of water covered
by and being used under existing rights has already been indicated in con-
nection with the remedy of forfeiture. Such records, as well as data on
the total supply of water in a stream, are also essential in order that po-
tential new users and the state agency may determine whether there is
yet any unappropriated water remaining for use under new rights. The
agency is prohibited by statute from granting a permit where no unappro-
priated water is available, and the issuance of a permit merely reflects

257. Pioneer Irrigating Ditch Co. v. Blashek, 41 N.M. 99, 64 P. 2d 388 (1937);
Tudor v. Jaca, 178 Ore. 126, 164 P. 2d 680 (1945), rehearing denied, 165 P. 2d 770
(1946); Campbell v. Wyoming Development Co., 55 Wyo. 347, 100 P. 2d 124 (1940).
258. Hutchins, Selected Problems 400-02.
259. Johnson, supra note 181.
S 260. Kletzing, Prescriptive Water Rights in California: Is Application a Prereq-
uisite?, 39 Calif. L. Rev. 369 (1951); Trowbridge, Prescriptive Water Rights in
California: an Addendum, 39 Calif. L. Rev. 525 (1951); Craig, Prescriptive Water
Rights in California, and the Necessity for a Valid Statutory Appropriation, 42 Calif.
L. Rev. 219 (1954).
S 261. NRA, Desirable Principles 47-50, 54-55.


the agency's belief that water will prove to be available for the proposed
use; but if the use is later found to interfere with existing rights, the pos-
session of a permit does not protect the new user against injunction by
holders of these rights. Where, consequently, there is some doubt as to
whether unappropriated water is available for a proposed use, the agency
may be confronted with a difficult choice. A denial of the application runs
the risk that unappropriated water does exist and will continue to pass
unused, while an approval of the application may result in temporary in-
terference with existing rights and then in an injunction and loss of invest-
ment in the new use.262
Uncertainty as to the amount of unappropriated water is to some extent
unavoidable, especially after a fairly intensive level of total use has de-
veloped. Hydrologic data on the total supply of water that may be expected
at any time is frequently complex and costly to gather, and a precise de-
termination of the amount of total supply can seldom be made. Moreover,
it is often difficult to anticipate the effect a particular new use will have
upon established uses further downstream. But this uncertainty is unneces-
sarily aggravated when administrative records on the extent of existing
rights are inadequate to enable the agency to estimate how much of the ex-
pected total supply has already been appropriated. The remedy for this
problem probably lies in providing the agency with more ample funds and
authority for an effective gathering of data and supervision of existing uses.
One particularly helpful measure, the requirement of periodic reports on
the use of water under each right, would appear to be within the power of
the agency to adopt under the general rule-making authority it is custom-
arily granted by statute. The recent enactment of special legislation
establishing such a requirement in Texas and proposals for similar legisla-
tion in Oregon, however, indicate that this rule-making authority may need
supplementing in some instances.
262. Courts usually state that a permit should be granted if there is reasonable
ground to believe unappropriated water exists for the proposed use. Little Cotton-
wood Water Co. v. Sandy City, 258 P. 2d 440 (Utah 1953).
Administrative policy in California is to grant a permit when it is reasonably
probable that there will be unappropriated water a substantial part of the time. Let-
ter from Henry Holsinger, Principal Attorney, California Division of Water Re-
sources, Dept. of Public Works, Dec. 20, 1955.
In South Dakota, an irrigation permit is granted if the agency estimates the user
will experience no more than a 50% shortage in a very adverse year, plus one or
two 25% shortages during a 20-year period. Letter from J.W. Grimes, Chief Engi-
neer, South Dakota State Water Resources Commission, Feb. 15, 1956.
In Nebraska, on the other hand, the agency makes no attempt to estimate the
availability of unappropriated water, leaving it instead to each new user to regulate
his activities so as not to interfere with existing rights. Letter from Dan S. Jones,
Jr., Chief, Nebraska Bureau of Irrigation, Water Power & Drainage, Dept. of Roads
& Irrigation, Nov. 30, 1955.




S The discussion above of problems in the administrative appropriation
system has proceeded almost without reference to the proposals for ap-
propriation legislation in various eastern states. In concluding this paper,
therefore, several comments may be in order concerning the extent to
which similar problems might result from enactment of such legislation
in the East. The appearance of such problems would be determined both
by conditions of water use and supply in this part of the country and by
the precise nature of the legislation enacted. Eastern conditions of use
S and supply vary considerably from those prevailing in the West, but an
inquiry into them, though essential in the consideration of any new legis-
lation, falls beyond the scope of this paper. On the other hand, it is pos-
sible here to review certain provisions of the eastern appropriation pro-
posals to ascertain the degree to which they reflect an awareness of
problems associated with such legislation in the West. The miscellaneous
problems described at the end of Part I will be dealt with first, after
which our attention will return to the problems of waste discussed earlier.


Coexistence of Appropriation and Riparian Reasonable-Use Rights

The coexistence of both riparian and appropriation rights would result
only under the Michigan proposal, which preserves riparian rights of
reasonable use (labeled Class A rights) for domestic, power, recreation
and fishing uses.263 Presumably these rights would continue to be admin-
istered by the courts as under existing riparian law. Of these four Class
A purposes of use, it may be that only power uses would have a significant
impact upon conditions of stream flow. But to the extent that these pur-
poses of use do affect the time, rate, or volume of flow, all appropriation
rights created by or under the proposal are subject to some of the uncer-
tainty prevailing among riparian rights under riparian law as traditionally
The existing rights preserved by the other proposals are limited to the
S maximum amount of water beneficially used prior to enactment. Conse-
S quently, appropriation rights granted after enactment are not in danger of
being upset by an expansion of use under riparian rights. But these pro-
posals do not seem to restrict preserved rights to the existing place or
purpose of use nor to require administrative approval of changes in place

263. 7.


or purpose under these rights,264 and there may possibly be some uncer-
tainty as to how fully appropriators are to be protected against such
changes under these proposals.

Rights to Return Water

The eastern proposals are almost entirely silent with regard to rights
to the use of return water. A substantially identical definition of "unappro-
priated water" in three of the proposals includes "water which having been
appropriated or used seeps or flows back into a stream, lake or other sur-
face body of water."265 These provisions might be deemed applicable to
certain disputes, as for instance, to defeat an attempt by the original ap-
propriator to reuse the water after its reentry into the stream when chal-
lenged by a junior downstream appropriator. But no proposal attempts to
define the rights of the original appropriator or other potential users of
return water before it renters a stream, and the numerous conflicts that
might arise between such persons would apparently be left to the courts
or to future legislation for resolution.

Acquisition of Prescriptive Rights

None of the eastern proposals contains any provision bearing upon the
acquisition of prescriptive rights after enactment. Each proposal, how-
ever, declares that the procedure for making application to a state agency
is to be the exclusive method for acquiring rights after enactment.266 The
continued existence of the doctrine of prescription, therefore, would be
an unsettled question under these proposals.

264. The Mississippi statute, however, apparently does require approval of
changes of place or purpose under preserved rights (g 2g (2) and 23).
265. Mississippi 15. North Carolina 15. South Carolina 18. Although those
proposals contain no other mention of the term unappropriatedd water", these sec-
tions are evidently intended to guide the agency in granting permits only where
existing rights will not be impaired.
266. The Wisconsin proposal is the only one where the exclusiveness of this
procedure is not explicitly declared. Under all but the Michigan proposal, how-
ever, domestic uses may be made without formal application, and various other
uses of minor nature are similarly exempted under some proposals.
The Mississippi statute preserves rights to the extent of lawful use at enact-
ment (Spring, 1956) and specifies that after April 1, 1958 all rights must be ac-
quired in accordance with this administrative procedure; there is no indication as
to how rights may be acquired during this two-year interval, though this 1958 dead-
line probably would not bar the agency from receiving and approving applications
after January 1, 1957, at which date the title of the statute indicates the agency is
to commence operations. (See remarks by Mr. Nelson, p. 74 of this volume. Ed.)



Inadequate Data on the Amount of Unappropriated Water

As already stated, a determination of the amount of water available for
appropriation requires adequate data on the total supply of water and on
the amount covered by existing rights. Several proposals specifically di-
rect the agency to inventory the water resources of the state for use in
the performance of its administrative duties,267 and the adequacy of the
data accumulated will probably depend largely upon the funds made avail-
able for this task.
Records relating to the amount of water already appropriated concern
both preserved rights and appropriation rights acquired after enactment.
With regard to preserved rights, most of the proposals require the agency
to gather evidence on the amount of water lawfully used prior to enact-
ment, and the agency's preliminary determination of rights preserved be-
cause of such use is filed in court presumably as the basis of a judicial
action culminating in an adjudication decree,268 following the most com-
mon type of procedure employed in the western states.
A complete description of the scope of each appropriation right granted
after enactment is contained in the permit and later the license issued an
appropriator. As these appropriation rights are to be subject to forfeiture
Sfor nonuse, however, it will be necessary for the agency to maintain up-
to-date records on the amount of water actually put to beneficial use within
the terms of each right. Such records should be easy to keep in those situ-
ations where the agency is authorized to supervise the distribution of
water.269 In addition, three proposals specifically authorize the agency to
require annual reports from appropriators,270 and under the other

267. Mississippi 12, North Carolina 13, South Carolina 14.
268. Mississippi S 13, North Carolina 14, South Carolina 1 15.
The express declaration of these proposals that rights are to be preserved onlyto
the extent of lawful use at enactment may create difficult problems in determining
what purposes and amounts of use meet this test of lawfulness under pre-existing
law. Apparently few if any courts have been called upon to determine the full
S range of lawful purposes of use under riparian rights (see, for example, the study
of Michigan law, pp. 384, 418-419). Moreover, numerous problems will arise
in determining whether the amount used was lawful under riparian law, and in
some cases it would even be impossible to recognize rights for all uses that were
actually lawful in amount at the time they were made. This latter situation would
occur, for instance, where the total amount lawfully used by all riparians at va-
rious times during the prescribed period prior to enactment exceeds the total
supply at any one time.
269. The agency is directed to "aid in the distribution of water" whenever rights
have been adjudicated by a court under Mississippi 24, North Carolina 25, and
South Carolina 27.
270. Arkansas 32. Michigan 27. A provision of the Wisconsin proposal
( 3) authorizing the agency to require such reports from holders of preserved


proposals the agency may be able to establish such a requirement through
the general rule-making power usually granted it.271


The exact nature of the problems of waste that might result from enact-
ment of appropriation legislation in the East will depend to a considerable
degree upon the conditions of use and supply obtaining in each state. For
example, geographic and climatic conditions in this part of the country
are not as likely to cause the great evaporation and seepage losses which
have helped create the problem of excessive channel losses in the West.
Moreover, while irrigation agriculture has presented the major purpose
of use in the West, it is unlikely that irrigation will ever be more than one
of several important purposes of use in the East, and the character of
eastern problems might be somewhat different for this reason.
Despite significant differences between eastern and western conditions,
however, it is not unreasonable to assume that many problems of waste
similar to those in the West would result from appropriation legislation
in the East. In particular, the problem of wasteful purposes caused by a
freezing of an existing pattern of resource allocation-perhaps the most
serious problem in western law-may be especially apt to emerge in the
East, where the promise of even more rapid economic growth than in the
West places an added premium on flexibility of resource allocation.272
For this reason, it is instructive to review the degree to which the eastern
proposals, in adopting the administrative appropriation system of the
West, have stressed remedies offered by western law for meeting prob-
lems of waste.
Each of the eastern proposals contemplates the existence of two groups
of rights: existing rights preserved by the legislation, and appropriation
rights to be acquired after its enactment.273 Unless the total supply of
water is largely covered by the preserved rights, the interest of the state
in the highest beneficial use of its water resources would relate to both
these groups of rights. Because the main concern of most western states
today is with the regulation and reallocation of water covered by existing
rights, the importance of procedures and conditions for the acquisition of
new rights would be materially greater in the East than is now the case

rights should indicate that the agency could impose such a requirement upon hold-
ers of rights granted after enactment.
271. The Mississippi statute and the South Carolina proposal, however, confer
no rule-making authority on the agency; see note 287 infra.
272. See Marquis, Freeman, and Heath, supra note 33, at 803-04.
273. As indicated supra at note 48, however, preserved rights under the Ar-
kansas proposal are limited to riparian rights for domestic use only.


in the West. A survey of remedies incorporated in the eastern proposals
should, therefore, focus first upon waste-prevention measures taken at
the time of granting new rights. Then, in closing, our attention will turn
to measures for dealing with wasteful uses once rights are already in

Anticipating Problems of Waste in the Granting of New Rights

The eastern proposals appear to place little emphasis on waste-
prevention measures in the form of requirements and conditions for the
acquisition of new rights. Under all proposals appropriation rights would
be granted in perpetuity, although, as will be discussed shortly, appropri-
ation rights under the Mississippi statute may be modified or terminated
at any time. There are no provisions for withdrawals or appropriations
by the state either to preserve natural conditions of particular value or
to give the state time to plan for the best utilization of unappropriated
water.274 Moreover, no proposal contemplates the payment of annual fees
based upon the amount of purpose of use.
Applications for new rights under each proposal must be for a reason-
able beneficial use and may be denied if the use would be contrary to the
Public interest. But few of the proposals elaborate much upon the concepts
of reasonable beneficial use or of public interest in this regard. The
most specific directions for administrative action are contained in the
Wisconsin proposal, which requires the rejection of applications "likely
to interfere with the highest beneficial use of water" and which also re-
quires that the agency "seek to conserve the use of water for all present
and future needs including domestic use, municipal use, irrigation, water
power, fish life, recreation, navigation, industrial use or other beneficial
purposes";275 in addition, the agency is authorized to establish orders of
preference in different areas of the state, and these preferences could be
used as standards for the issuance of new permits.276 The Michigan pro-
posal requires the denial of applications that would conflict with the public
interest in the highest beneficial use of water, as that goal is very

274. Certain provisions in various of the proposals do have the effect of with-
drawing water to some extent, however. Mississippi I 4c-d and South Carolina
4-A establish a specific minimum flow of water, in view of pollution abatement
needs, that may not be appropriated. Michigan 2 preserves stream flows nec-
essary for the public purposes of recreation, fishing, sanitation, and navigation,
Sand Mississippi 4e prohibits impairment of stream navigability. Appropriation
rights are also subject to existing statutes for the protection of fish under Ar-
kansas 24a and Michigan 19.
275. 5d.
276. 10 and llf(1); domestic and municipal uses must always be accorded
first preference.


generally stated in the proposal's opening declaration of policy;277 the
proposal makes this standard specifically applicable in the event of com-
peting applications, and the agency is also authorized to reject applica-
tions where there are "assured prospective uses" that would be more in
the public interest.278 The remaining proposals direct the agency to ap-
prove applications for reasonable and beneficial uses not detrimental to
the public interest, but they provide almost no guide for the performance
of this duty.279
The effect of these proposals is to leave the formulation of any policy
regarding the acquisition of new rights entirely to the agency, at least in
the absence of subsequent legislative action. None of the proposals is
related to a particular policy for allocation of the state's water resources,
although the procedures and requirements established in these proposals
would provide one means of effectuating policies formulated in the future
for use of any water remaining unappropriated at that time. Where a pro-
posal authorizes administrative studies of water use and supply, the re-
sults of such studies would probably influence the agency's action in the
approval of new applications. On their face, however, all these proposals
are substantially similar to the western appropriation codes under which
few applications seem to have been denied on public interest grounds and
much greater emphasis has been placed on the element of priority than
on the requirement of reasonable beneficial use.

Dealing with Waste under Existing Rights

Once a proposal were enacted, problems of waste under existing rights
would concern both the preserved rights and the appropriation rights
granted after enactment. The requirement of reasonable beneficial use,
in its various manifestations, is the key remedy for meeting these prob-
lems, and each proposal makes at least some provision for its application
to existing uses.
The Mississippi statute, by preserving rights to the extent of lawful use
prior to enactment, presumably intends that these uses meet the test of
reasonableness under the pre-existing riparian law of that state. Both
these preserved rights and appropriation rights acquired after enactment

277. 14 and 1. Applications not made in good faith nAust also be rejected.
278. 14.
279. Arkansas 11 requires the agency to weigh fish and wildlife values in de-
termining the public interest in the event of conflicting applications.
Some indication of the public interest in particular purposes of use is evident
in provisions in three proposals-Mississippi 16h, North Carolina 16h, and
South Carolina 19h-allowing municipalities to apply for water to cover antici-
pated needs 20 years into the future. North Carolina 16i extends this right to
industrial users, as well.


are said to "remain subject to the principle of beneficial use."280 More-
over, the authority given the agency to modify or terminate any of these
rights at any time could be used as a powerful weapon against the waste-
ful use of water.281 For this reason, the effect of this provision-unknown
to western law-will be followed with great interest in other eastern states
considering legislation on the subject of water rights. Nothing in the
Mississippi statute suggests how this authority is to be exercised. Only
one other eastern proposal-that in Wisconsin-would confer such exten-
sive power upon the agency for altering the amount of water that may be
used under existing rights.z82 But this proposal, like the Mississippi
statute, makes no attempt to establish standards for the exercise of this
authority, and the language of the proposal does not permit any conclu-
sion as to how much this power would be employed against wasteful uses.
As for the other proposals, the one in Michigan limits both preserved
rights and appropriation rights to the use of water for reasonable and
beneficial purposes.283 Preserved rights under the proposals in North
Carolina and South Carolina must be lawful and therefore reasonable un-
der existing riparian law, though these proposals contain no requirement
that the use of water under these rights continue to be reasonable and
beneficial.284 Appropriation rights acquired after enactment under these
latter two proposals, and also under the Arkansas proposal, are declared
to remain subject to the principle of beneficial use.285 In none of these
four proposals, however, is there an indication of the relative emphasis

280. 7.
281. 5. The impact of this provision upon the alleged certainty of appropria-
tion rights was touched upon at note 52 supra.
282. llf of the Wisconsin proposal authorizes the agency to prescribe

(2) by appropriate units the maximum amounts which may be used in any sea-
son for any purpose.

(4) that diversions for certain designated purposes shall be restricted in any
season or shorter period.
(5) that diversions from certain designated sources shall be restricted in any
season or shorter period.
7d of the proposal, which declares that rights shall be subject to this power,
apparently would apply both to preserved rights and to rights acquired after enact-
1 ment.
283. 5.
284. Nor are these preserved rights subject to forfeiture for nonuse.
285. Arkansas 5. North Carolina 8. South Carolina 9. North Carolina
12a adds the familiar phrase of western law that beneficial use is the basis,
measure, and limit of the right to use water, and the language of this provision
may be sufficiently broad to encompass preserved rights, as well as appropriation


to be accorded the requirement of continued beneficial use and the element
of priority where strict enforcement of priorities would create problems
of waste. Furthermore, the extent of administrative authority for super-
vising uses is not set out in any detail,286 and the possibilities for vigorous
application of the requirement of reasonable beneficial use may be con-
siderably less under these proposals than under the Mississippi statute
and the Wisconsin proposal.
Appropriation rights may be forfeited for nonuse under each of these
proposals. Changes of point of diversion or of place or purpose of use
are allowed with administrative approval and on condition that the rights
of others not be impaired.287 But the opportunity for voluntary changes
to better locations or more important purposes will depend to a consid-
erable degree upon the extent to which other users will be protected
against changed conditions of supply, and compulsory changes in the in-
terest of a higher beneficial use and forfeiture for wasteful use are not
provided for; moreover, these proposals include no provisions, such as
the grant of condemnation powers, for facilitating changes that might be
called for by the proposals' avowed goal of highest beneficial use.288


It is quite likely that an administrative appropriation system of water
rights in the East would create serious problems of waste similar to
those encountered under this system in the West. Western law contains
certain remedies for meeting these problems, but only a limited use has

286. There are signs thatvigorous administrative control overthe use of water
may be unlikely of adoption, at least in the initial enactment of appropriation leg-
islation. Amendments of the South Carolina proposal in legislative committee in
1955 eliminated both the agency's general rule-making power (former 29) and
language that had directed the agency to "regulate and control the development,
use, conservation and protection including the allotment" of water (former 12).
287. Perhaps in response to criticisms of western law (see note 137 supra),
the Michigan proposal ( 24) provides for the denial of changes contrary to the
public interest.
288. Early drafts of some eastern proposals included preference provisions in-
corporating the traditional western preference for irrigation over all other non-
domestic uses, but it was not clear whether these preferences were intended to ap-
ply only among applications for new rights or also to the subordination or termi-
nation of existing rights. No such provisions are included in any proposal being
actively considered today, perhaps in recognition of the ineffectiveness of a high
preference for irrigation and the undesirability of a rigid ranking of uses on a
state-wide basis. The preferences which the Wisconsin proposal would allow the
agency to establish (see note 276 supra) could be applied only to suitable areas of
the state and would probably be more easily changed than preferences established
by statute.



Been made of these remedies to date and their potential effectiveness
against western problems is still undetermined.
Eastern states interested in the enactment of appropriation legislation
have an excellent opportunity to anticipate these problems and to empha-
size available remedies or develop new ones. In general, however, it does
not appear that this opportunity has been seized upon in the proposals
drafted thus far.
Provisions in the Mississippi statute and the Wisconsin proposal for
the modification or termination of rights could be employed to ensure a
high level of beneficial use, but the scope of these presently unlimited
provisions must be more precisely indicated before their effectiveness-
and their impact upon the certainty of rights-can be determined. Other
Eastern proposals make no more provision for meeting problems of waste
than appears in current western appropriation codes.

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