Title: Michigan Law of Water Allocation
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Title: Michigan Law of Water Allocation
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MICHIGAN LAW OF WATER ALLOCATION


PART I-DESCRIPTION
by Richard Arens*

INTRODUCTION

Michigan's water environment is a generous one-so much so that flood-
ing, water-logging of lands and lake-level fluctuation count among the seri-
ous water problems of the State. Its shore-line border of 3,000 miles is the
the longest of any state, and the large bodies of water east and west affect
considerably its humid continental climate. The tempering influence of
Lake Michigan lengthens the growing season and makes possible, for in-
stance, a flourishing fruit industry in the State's southwestern corner.
Inland, 11,000 lakes and 35,000 miles of streams are a natural re-
source on which recreation and tourism, a leading industry, are built.
Ground water resources are also large, particularly in the western lower
peninsula. As it happens, however, much of the population is concentrated
in metropolitan areas in the southeast, where ground water is limited, due
to the thinness of the sand and gravel beds, excessive salts or other min-
erals in the water, and for other reasons of geology. Michigan's landscape
was shaped by glacial movements. In the lower peninsula, it is quite flat,
and built up largely of glacial deposits, with winding ridges of glacial
moraines. The western part of the upper peninsula is more rugged, with
hills up to 2,000 feet.
These physical features have considerable significance for water de-
velopment and management. Before crops could be started many areas
had tote drained. Three-fourths of the municipal water systems, and
many industries, depend on ground water. Owing to lack of relief, sites
for artificial storage of streamflow are limited, particularly in the lower
peninsula's heavily settled southern half. However, nowhere are the Great
Lakes distant-one recent water-supply proposal, for instance, would tap
Lake Huron for urban areas northwest of Detroit. In this glacial landscape,
with water relatively plentiful, the physical connections and relationships
of streams, lakes and ground-water sources with one another are many
and complex, and are significant factors in water development and control
activities.
As water use grows in the State, the need to understand and to reckon
with these sensitive hydrologic relationships is more evident every year.
Competition between users and between various types of water use is in-
creasing. Michigan's population, now at 7 million, grew by one-third over
the last 15 years; by 1957, a further increase of at least 2 million is

*Professor of Law, University of Buffalo Law School






LAW OF WATER ALLOCATION


predicted. Not only must more public water supplies be developed. Indus-
trial and recreational uses also are expanding, and supplemental irrigation
is proving its value in better yields to more and more farmers.
It is not surprising, therefore, to find the following needs stressed in a
recent review' of the State's water situation:
1. An expanded data-collection program in water resources, to include
more stream gaging on tributary streams in the southern peninsula
and trunk streams in the northern; statewide expansion of the rain-
gaging network; intensive investigation of rainfall and runoff on small
drainages; expansion of the statewide observation-well program; con-
tinuous recording of stream temperatures.
2. Licensing and supervision of well-dwellers, with emphasis on obtain-
ing drilling records of water-bearing strata and ground-water con-
ditions.
3. Development of state water policy in order to deal with water uses
and problems in a coordinated way. As a basis for developing sound
policy, the following studies were recommended:
A. A complete study of all existing legislation relating to water re-
sources and a determination of the areas where additional legis-
lation is needed.
B. A reconciliation of the competition for uses of water between
those uses which are necessary for the public health and welfare
and those necessary for the benefit of private interests.
C. An analysis of the uses of water is essential for the determina-
tion of the type of supervision and control which should be exer-
cised by the State and that which should be exercised by local
units of government.
As these proposals indicate, a sound water program for the State will
ultimately require legislative changes in water law. One area where these
changes might be needed is the law of water rights which over a long period
has been gradually developed by the Michigan courts in cases involving
mostly the problems of an earlier economy. This paper examines the struc-
ture of the existing law in order to discover whether it is adequate for
achieving certain assumed goals of sound water-use regulation. The con-

1. Findings and recommendations of the Michigan Natural Resources Conference,
Michigan State University Publication, Vol. 50, No. 1, July 1955, pp. 11-14. Regard-
ing Michigan water situation, see: Annual Reports, Michigan Water Resources Com-
mission, 1949-present; Billings, Norman, Causes of Legal Problems, a paper
presented at a joint discussion, "Water rights law in Michigan", September 1954,
Journal of the American Water Works Association, Vol. 46, No. 11, November 1954,
pp. 1159-1163; Michigan's Water Problems, Proceedings of the Water Conserva-
tion Conference, January 28, 1944, 118 pages; Barlowe, Raleigh, "Water Rights for
Irrigation in Michigan", Quarterly Bulletin, Michigan Agricultural Experiment Sta-
tion, Vol. 36, No. 1, August 1953, pp. 30-38.







MICHIGAN WATER LAW


clusion of this analysis is that the law is inadequate, and that legislative
changes are needed. A broad outline of these changes is suggested.
The first part of the paper is a description of Michigan's law of water
rights, beginning with the law of riparian rights, which applies to water
in a "watercourse" and gives rights to use water to owners of "riparian
land." The paper first discusses Michigan's definition of "watercourse,"
explains the concept of "riparian land" and describes rights that "ripar-
ians" acquire. Next a description of the rules applicable to "diffused
ground water" and to "diffused surface water." The remedies available to
litigants and their effect on the substantive law are then briefly considered.
Other sections deal with prescription and the possibility of acquiring rights
through purchase or contract. To complete the picture, rights of the pub-
lic in public waters, such as rights to navigation, fishing and fowling, and
the State's power to develop and regulate water-and the extent to which
this power has been used-are presented in brief outline.
The second part of the paper first presents an analysis of the law's
structure in terms of two assumed goals, optimum utilization of water in
the public interest and protection of private investment. The relation of
these goals to one another is considered. The main features of a policy
for regulating water development and water use are suggested. The con-
cluding section indicates administrative techniques for carrying out this
policy, and outlines possible legislation.


RIPARIAN RIGHTS

The law of riparian rights applies only to waters in a natural water-
course, which has been defined as "a natural stream of water fed from
permanent or periodical natural sources and usually flowing in a particu-
lar direction in a defined channel, having a bed and banks or sides, and us-
ually discharging itself into some other stream or body of water."2 Lakes
and ponds are also included under this definition, for a current is not ab-
solutely required.3 Excluded are "waters on the surface of the ground,
usually created by rain or snow...of a casual or vagrant character, follow-
ing no definite course and having no substantial or permanent existence."4
No riparian rights have been held to attach to water in a ravine originating
as rain and melting snow and not in a "defined bed or channel, with banks
and sides."5 The contrary has been held where the ravine was the natural
outlet for a constant though varying flow of "living water" supplied by

2. Grand Rapids and I. Ry. v. Round, 220 Mich.475,478,190 N.W. 248,249 (1922).
3. Turner v. Holland, 65 Mich. 453, 133 N.W. 283 (1887).
4. Fenmode, Inc. v. Aetna Cas. & Surety Co., 303 Mich. 181, 192, 6 N.W. 2d.
479, 481 (1942)(by implication).
5. Gregory v. Bush, 64 Mich. 37, 41, 31 N.W. 90, 92 (1887).







LAW OF WATER ALLOCATION


springs.6 Although the stress is on natural conditions, the aid of man may
be helpful as in one case where a township drainage ditch was called a
"watercourse" to which riparian rights attach. Not only was the ditch
partly man-made, but the presence of "living water...at all seasons" was
assured because a flowing well was drained into this depression by a land-
owner farther up the ditch.7
Riparian rights attach only to riparian land. Their conveyance separate
from the land is possible and its effect shall be discussed below. But on
the whole only riparian owners can claim riparian rights, and riparian
owners are those whose land is in actual contact with the water.8 Contact
must be by virtue of natural conditions. A channel dug by man to make his
land touch the water is insufficient, and so is the water's flow around boggy
places on one's marshland at points where it was trampled by cows.9 The
extent of title one must hold is not clear. The statement tends to be gen-
eral: "...(W)here there is no reservation of them (in a conveyance), ripar-
ian rights attach to lots bounded by natural watercourses."10 Lessees are
presumably included." But the holder of an easement for a non-riparian
purpose, such as the maintenance of a street, is not.12 How much of a tract
contiguous to a stream is riparian is undecided as yet. Other states have
adopted limits such as the watershed,13 and Michigan could do so. But the
courts are still free to make the place of use merely a factor in deciding
the issue of "reasonable use."14
6. Hilliker v. Coleman, 73 Mich. 170, 41 N.W. 219 (1889).
7. Rummel v. Lamb, 100 Mich. 424, 59 N.W. 167 (1894); see also Hilliker v.
Coleman, 73 Mich. 170, 41 N.W. 219 (1889) (water gathered from marsh in a col-
lection box and then let to flow down ravine).
8. Monroe Carp Pond Co. v. River Raisin Paper Co., 240 Mich. 279, 215 N.W.
325 (1927); Kennedy v. Niles Water Supply Co., 173 Mich. 474, 139 N.W. 241 (1913);
see also Dohany v. Birmingham, 301 Mich. 30, 2 N.W. 2d 907 (1942); Hilt v. Weber,
252 Mich. 198, 233 N.W. 159 (1930); Palmer v. Dodd, 64 Mich. 474, 31 N.W. 209
(1887). The title of the riparian owner extends to the middle of the stream or lake.
See Lorman v. Benson, 8 Mich. 18 (1860). Land formed by accretion or reliction
becomes part of the previous riparian tract. Hilt v. Weber, supra.
9. Ruggles v. Dandison, 284 Mich. 338, 279 N.W. 851 (1938).
10. Bauman v. Barendregt, 251 Mich. 67, 69, 231 N.W. 70, 71 (1830); see also
Schweikart v. Stivala, 329 Mich. 180, 191, 45 N.W. 2d 26 (1950); Blain v. Craigie,
294 Mich. 545, 293 N.W. 745 (1940); Richardson v. Prentiss, 48 Mich. 88, 11 N.W.
819 (1882).
11. Lorman v. Benson, 8 Mich. 18 (1860).
12. Bainton v. Clark Equipment Co., 210 Mich. 602, 178 N.W. 51 (1920). On
lessees, see Swartz v. Sherston, 299 Mich. 423, 300 N.W. 148 (1941).
13. Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 88 Pac. 978 (1907); see
also Gordonsville v. Zinn, 129 Va. 542, 106 S.E. 508 (1921); cf. Hilt v. Weber, 252
Mich. 198, 233 N.W. 159 (1930).
14. The respective rights of riparians and non-riparians are discussed below.
The possibility of acquiring water rights by grant without acquisition of the ripar-
ian land is discussed in the section on private transfer of water rights.







MICHIGAN WATER LAW


While riparians as well as others may be protected at times under the
general torts law of negligence and nuisance,15 the focus here is on the
riparian law as the principal regulator of allocation of water in a water-
course, which gives each riparian owner a right to make a "reasonable
use." The classic statement of the Michigan rule of reasonable us is
found in Dumont v. Kellogg,16 a case involving conflict between two mill
owners:

...(It) may be remarked at the outset that...(this case) differs essentially from a
case in which a stream has been diverted from its natural course and turned
away from a proprietor below. No person has a right to cause such a diversion,,
and it is wholly a wrongful act, for which an action will lie without proof of spe-
cial damage. It differs, also, from the case of an interference by a stranger,
who, by any means, or for any cause, diminishes the flow of the water; for this
also is wholly wrongful, and no question of the reasonableness of his action in
causing the diminution can possibly arise....
But as between two proprietors, neither of whom has acquired superior rights
to the other, it cannot be said that one "has no right to use the water to the
prejudice of the proprietor below him," or that he cannot lawfully "diminish the
quantity which would descend to the proprietor below," or that "he must so use
the water as not materially to affect the application of the water below, or ma-
terially to diminish its quantity." ... Such a rule could not be the law so long as
equality of right between the several proprietors was recognized, for it is mani-
fest it would give to the lower proprietor superior advantages over the upper,
and in many cases give him in effect a monopoly of the stream....
(A)s between different proprietors on the same stream, the right of each
qualifies that of the other, and the question always is, not merely whether the
lower proprietor suffers damage by the use of the water above him, nor
whether the quantity flowing on is diminished by the use, but whether under all
the circumstances of the case the use of the water by one is reasonable and
consistent with a correspondent enjoyment of right by the other. (Emphasis
added.)

15. See Taylor v. Indiana & Mich. Elec. Co., 184 Mich. 578, 151 N.W. 739 (1915)
(damages for negligent operation of a dam); Winchell v. Clark, 68 Mich. 64, 35
N.W. 907 (1888) (dam which floods land held a nuisance; owner of flooded land may
resort to self-help); in Dohany v. Birmingham, 301 Mich. 30, 2 N.W. 2d. 907(1942),
a non-riparian city disposed sewage through a sewer across plaintiff's land into a
Swatercourse bounding plaintiff's premises. Nuisance doctrine was invoked and de-
cree issued allowing city reasonable time to make proper adjustments and enjoin-
ing it thereafter from continuing the nuisance. The nuisance doctrine also contains
a criterion of "reasonable use." Many of these cases discuss riparian rights and
ordinary torts doctrines interchangeably. Bauman v. Pere Marquette Boom Co.,
66 Mich. 544, 33 N.W. 538 (1887) (duty to exercise due diligence in running logs
and damages for injuries due or unnecessary and unreasonable delay in removing
them).
16. 29 Mich. 420, 422-24 (1874). For rejection of prior appropriation in Michi-
gan, see Preston v. Clark, 238 Mich. 632, 214 N.W. 226 (1927).







LAW OF WATER ALLOCATION


The "reasonableness" of a use is a question of fact to be decided by a
jury; or by a judge where an equitable remedy is sought.17 To aid the fact
finder, the courts from time to time have listed various factors he should
take into consideration. Among these are the surrounding circumstances
such as the size and velocity of the stream; the extent of the injury; the
convenience of doing business; the needs of important manufacturing in-
terests; the public necessity of cities and villages; the time when the party
first erected his works and began to appropriate water;18 increased popu-
lation and the general welfare of the communities affected;19 the progress
of improvement in hydraulic works;20 and the general usage of the country
in similar cases.21 The relation between these factors has not been spelled
out and the law, though flexible, remains vague and unpredictable.
The law's uncertainty results not only from the vagueness of the rea-
sonable-use concept. As the excerpt from Dumont v. Kellogg indicates,
reasonable use is a modification of another doctrine, sometimes known as
"natural flow," which guarantees riparians the right to have the water
pass unaltered in quantity and quality. But as the Kellogg case itself
pointed out, not all uses will be judged by the reasonable use concept. For
example, a total turning away of the stream is always wrongful, and does
not give rise to an issue of reasonable use. Thus, one cannot be absolutely
certain to what extent "reasonable use" applies to uses that have not yet
come before the courts. Among those that have, the flooding of land by
backing up the water22 or by releasing it in unusually large quantities23;
seem generally held to be not permissible. But where the land is not
flooded, the water under certain circumstances may be lawfully set back

17. See 2 Farnham, The Law of Water and Water Rights 1578 (1904).
18. People v. Hulbert, 131 Mich. 156, 165-68, 91 N.W. 211, 214 (1902), approv-
ing of statements in Strobel v. Kerr Salt Co., 164 N.Y. 303, 58 N.E. 142 (1900).
19. See, e.g., Phillips v. Village of Armada, 155 Mich. 260, 262-63, 118 N.W.
941, 942 (1908): "The use of a stream reasonable at one time and one place may
become unreasonable at another time and at another place. The reasonable use
of a stream must be determined in the light of increased population, of proper
sanitary measures, and the general welfare of the communities affected. The
sewerage of villages and cities has become an absolute necessity for the public
health. It is not enough to condemn a use as unreasonable because such a use may
pollute to some extent the waters of the stream below. Its use by the upper ripar-
ian owners may be such as to render it unfit for domestic purposes by man, and
yet such use may be reasonable."
20. Cary v. Daniels, 49 Mass. 466, 476-477 (1844), as quoted with approval in
Dumont v. Kellog, 29 Mich. 420, 424 (1874).
21. Dumont v. Kellog, 29 Mich. 420 (1874).
22. See Stuart v. Detroit Finnish Co-op. Summer Camp Ass'n., 277 Mich. 144,
269 N.W. 122 (1936), and cases cited therein.
23. Taylor v. Indiana & Mich. Elec. Co., 184 Mich. 578, 151 N.W. 739 (1915);
Woodin v. Wentworth, 57 Mich. 278, 23 N.W. 813 (1885).







MICHIGAN WATER LAW


on the wheels of another riparian's mill.24 The storage and release of
water, especially when undertaken to generate power, is permissible if
"reasonable,"25 even though it causes some injury and inconvenience to
other riparians.26 In Hass v. McManus,27 which involved conflict between
owners of resort hotels on a lake and mill owners located on its outlet, the
opinion discusses the extent to which various users may control the stream
Regimen:

The dwellers on the lake may not as of right permanently prevent and may not
considerably postpone the flow of water through the outlet. The proprietors on
the river may not impound the waters in the lake in such manner as to set wa-
ter back upon the surrounding property and may not lower the level of the water
in the lake by increasing the volume of the natural overflow. (Emphasis added.)

Like storage, pollution seems governed by the reasonable-use criterion.
In Monroe Carp Pond Co. v. River Raisin Paper Co.,28 the pollution was
caused by a paper mill. The water became so depleted of oxygen that the
carp of the lower riparian were killed. The court found the pollution un-
reasonable, but pointed out that not all pollution is wrongful. A riparian's
use may render the water "unfit for many purposes for which pure water
is suitable, and yet the lower riparian proprietor may have no just cause
for complaint, if its condition results from a reasonable use thereof in ac-
cordance with the common right." In Dohany v. Birmingham29 the court
summarized a number of earlier cases as follows: "... a riparian owner is
allowed reasonable use of a natural watercourse in common with other
riparian owners, even to the extent of a certain amount of pollution." And
in Phillips v. Village of Armada30 the opinion stated: "The sewerage of
villages and cities has become an absolute necessity for the public health.
It is not enough to condemn a use as unreasonable because such a use may
pollute to some extent the waters of the stream below." Cities are treated
like other riparians not only in their right to pollute but also in their lack
of immunity from "reasonable" pollution by others. An upper riparian's
swimming with his entire family which tended to pollute the water supply
S of a lower riparian municipality has been upheld as "reasonable."3
It is uncertain to what extent one has a right to divert water from the
stream. Dumont v. Kellogg did not involve a diversion and indicated, as


24. Richards v. Peter, 70 Mich. 286, 38 N.W. 278 (1888).
25. Hass v. McManus, 161 Mich. 372, 126 N.W. 462 (1910).
26. Hoxsie v. Hoxsie, 38 Mich. 77 (1878). This case and its possible implica-
tions is discussed more fully subsequently in the text.
27. 161 Mich. 372, 376, 126 N.W. 462, 463 (1910).
28. 240 Mich: 279, 285, 215 N.W. 325, 327 (1927).
29. 301 Mich. 30, 41, 2 N.W. 2d. 907, 909 (1942).
30. 155 Mich. 260, 263, 118 N.W. 941,942 (1908).
31. People v. Hulbert, 131 Mich. 156, 91 N.W. 211 (1902).






LAW OF WATER ALLOCATION


has been shown, that a diversion would be unlawful. The reference may
have been to a total diversion only. While it has been held that one may
divert water onto one's own land if one returns it to the stream at a point
still on one's land without material diminution,32 the law is not clear on
the status of a diversion of some of a stream's water for consumptive use.
Consumptive uses have not, as yet, generally been permitted except
for so-called domestic purposes, which are also allowed under the "nat-
ural flow" rule. In fact, domestic uses are given a preference, so that in
a conflict with another reasonable user the domestic user will be pro-
tected. Reasons for this preference can probably be found in the needs of
an earlier economy; still, to date the law has remained unaltered. Domes-
tic purposes include use of water for the home, for swimming and boating,
and for watering domestic animals;33 municipal uses have not been in-
cluded. The consumptive use of water for irrigation has been held "en-
tirely unwarranted," at least where the remaining water was insufficient
for general domestic needs of other riparians.34 However, the status of
irrigation in a case where the domestic use preference is not involved
remains uncertain.35 There seem to be no direct holdings employing the
domestic use preference against those who use water for power. Still, the
language of the cases seems sufficiently broad to lead one to assume that
power uses would fare no better than irrigation in a conflict with domes-
tic users. In conflicts between domestic users, the reasonable use rule
presumably governs.
In a conflict between two reasonable uses, the riparian law as applied
in Michigan seems to favor not only domestic users. While the law is not
too clear and might still be interpreted otherwise, there is some indica-
tion of a preference for the upper user. This seems to stem in part from
the courts' tendency on the whole not to apportion water between two rea-
sonable users. Except for cases involving the enforcement of specific
water contracts, there seems to have been no apportionment, at least not
between upstream and downstream users.36 In part, a preference for the
32. Pettibone v. Smith, 37 Mich. 579 (1877).
33. Burt v. Munger, 314 Mich. 659, 23 N.W. 2d. 117 (1946); see also Loranger
v. City of Flint, 185 Mich. 454, 152 N.W. 251 (1915); Beach v. Hayner, 173 N.W.
487, 207 Mich. 93 (1919); People v. Hulbert, 131 Mich. 156, 91 N.W. 211 (1902).
34. Masterbrook v. Alger, 110 Mich. 414, 68 N.W. 213 (1896).
35. See Barlowe, "Water Rights for Irrigation in Michigan," Quarterly Bulletin,
Michigan Agricultural Experiment Station, Vol. 36, No. 1, pp. 30-32.
36. Potter v. Indiana & L. M. Ry., 95 Mich. 389, 54 N.W. 956 (1893) (enforcing
contract). But see Norris v. Hill, 1 Mich. 202 (1849) (no apportionment between
the two millowners at least as long as no injury is shown). For an example of a
rule of apportionment of equal water rights in another jurisdiction see Bliss v.
Kennedy, 43 Ill. 67, 76 (1867): "A reasonable rule, and one which we desire to lay
down would be this:... as the water is destroyed by being converted into steam,
neither of these factories is entitled to its exclusive use; (and) it is to be divided
between them as nearly as may be according to their respective requirements; that
if each factory requires the same quantity of water, it should be equally divided...







MICHIGAN WATER LAW


upper user also emerges from a tendency at times to look at the upper
use first, and when it is found reasonable, to permit,it, without protecting
the lower user. The statement from Monroe Carp Pond Co. v. River Raisin
Paper Co.37 set out above to the effect that water may be "rendered unfit
for many purposes for which pure water is suitable, and yet the lower
riparian proprietor may have no just cause for complaint" is preceded by
the remark: "The enjoyment ... (of a riparian's right to use water) is prior
to those below him, and subsequent to those above him...." In People v.
Hulbert38 the principle was put this way: "As the enjoyment of each must
be according to his opportunity, and the upper owner has the first chance,
the lower owners must submit to such loss as is caused by reasonable use."
These statements do not necessarily imply a preference for the upper
owner. He is limited to a "reasonable use" and if that concept always takes
into account the lower owner, the above statements might mean that the
upper owner can take merely his share. Then the lower owner's loss sim-
ply would be due to a proportionate cutting down of the water available to
him. While the law still might be so interpreted, a number of decisions
tend to give the upper owner all he needs when his use is found reasonable
even though the lower user's "reasonable use" is interfered with. This
seems to indicate that the upper use is held to be "reasonable" without con-
sidering the share to which the lower user is entitled. Once held reasonable,
the upper use receives all it needs and the lower use must content itself
with what is left. In other words, it does not really receive a proportionate
share of water. It is possible to say, however, that the fact that the upper
user seemed to receive all he needed in a number of cases is mere coinci-
dence. It may have been true in each case that all he needed simply happened
not to exceed his aliquot share, while all the lower user needed did exceed
his allotment of a reduced supply. While this may have been the actual
factual situation in these cases, the opinions do not seem to discuss the
question of aliquot shares at all.
Preston v. Clark39 seems to illustrate the preference for the upper
user, who built a dam to create shallow beaches for resort areas and a
spawning ground for fish. The lower owner claimed that increased evapora-
tion caused by the enlarged surface of the lake and reduced flow of springs
at the bottom of the lake brought about by increased pressure, reduced the
water power of his grist mill located on the lake's outlet. While the court
.4 did not agree that the flow of the springs was reduced it did not reject the
possibility of increased evaporation. Nevertheless, it held that since the
upper owner's use was "reasonable," any harm to the lower owner was
damnum absque injuria. He was not granted an injunction nor was he en-
titled to damages. That there is, however, some uncertainty about the
scope of the preference for the upper user, is illustrated by the court's

37. 240 Mich. 279, 285, 215 N.W. 325, 327 (1927).
38. 131 Mich. 156, 165, 91 N.W. 211, 215 (1902), quoting with approval, Strobel
v. Kerr Salt Co., 164 N.Y. 303, 58 N.E. 142 (1900).
39. 238 Mich. 632, 214 N.W. 226 (1927).







LAW OF WATER ALLOCATION


decision in Hoxsie v. Hoxsie,40 which involved a conflict between two mill
owners. Because of alleged injuries to the lower owner the trial court in
a fairly detailed decree had enjoined the upper owner from using more
water than his machinery required and from letting more or less than the
stream's natural flow pour over his dam into the lower owner's pond. The
appellate court remarked on the difficulty of complying with the decree in
view of fluctuations in the stream flow and possible changes in the machin-
ery the upper owner might need to make at a future time. The opinion in-
dicated that in cases between two mill owners an injunction generally
should be granted only in the event of intentional wrongdoing. The court
also stated:41
This is no regulation of rights, but it is a subordination of defendant's right to
those of complainant. The latter must (according to injunctive decree) have at
least the natural flow of the stream during the whole working hours of the day,
and he must be protected against any greater flow than is required for opera-
ting defendant's present machinery. The purpose...apparently, is to protect the
complainant against any incidental injuries or inconveniences that might arise
from the use of the same stream for milling purposes by the proprietor above;
but this is more than he is entitled to, because he cannot have a protection so
broad without imposing upon one whose rights are equal and co-ordinate the
whole burden of such incidental injuries and inconveniences.
It seems, however, that the decision imposed the "whole burden" on the
lower user insofar as the availability of an injunction was concerned. On
the other hand, the court indicated at the end of its opinion that the lower
owner might have a remedy at law. This suggests that the preference in
favor of the upper owner might be cut down somewhat by an award of dam-
ages to the lower owner making an equally reasonable use. Still, it should
be recalled that the court denied the injunction largely because the wrong
was unintentional. The suggestion of a possible legal remedy simply
might have meant that damages will be awarded if the upper use, though
not intentionally wrongful, turns out to be unreasonable. Under this inter-
pretation the Hoxsie case does not suggest that the lower reasonable user
could ever receive damages from a "reasonable" user upstream: or, in
other words, the upstream user's preferred position remains undisturbed.
Another preference common to all states adopting the riparian law is
the preference for the riparian against the nonriparian user, which follows
from the requirement, discussed above, that riparian rights only attach
to riparian land. An injured riparian will be protected against the use of
water by a nonriparian, who in turn will not be protected against interfer-
ing riparian uses. The issue is not whether the various uses are "reason-
able" or "unreasonable" but simply whether they take place on riparian


40. 38 Mich. 77 (1878).
41. Hoxsie v. Hoxsie, supra note 39 at 81.







MICHIGAN WATER LAW


land. To illustrate, the improvement of a public highway by a nonriparian
which interfered with the water power of a riparian mill has been en-
joined,42 and in another case a city which owned no riparian land was held
to have no right to pollute water to the injury of riparian proprietors.43
In one case a city purchased a tract of riparian land and a right of way to
the city limits and then took water "for the use of citizens generally, and
to supply manufacturing establishments." While the court refused to grant
an injunction it awarded damages to injured downstream riparians on the
ground that the use of the water was not primarily for the benefit of the
riparian premises.44 In an interesting case the City of Battle Creek ob-
Sjected to the bathing by guests of a bathing resort in a lake which was the
source of municipal water supply. The trial court ruled against the bathing
resort and the decision was upheld on appeal by an equally divided court.
The opinion upholding the court below conceded in part for argument's
sake that the city's sale of water to its inhabitants was a non-riparian use.
It held, nevertheless, that the riparian resort could not complain unless it
is injured. On the other hand, the city, even if it were making a non-
riparian use (as long as not injurious to the resort) could get an injunction
against unreasonable pollution by the bathers.45 The case is not strong
precedent, however, in view of the equally divided vote, and the many al-
ternative grounds in the prevailing opinion.


GROUND WATER

The general rules covering ground water in many states have been dis-
cussed in other papers prepared for this symposium*: so-called under-
ground streams are treated like other water courses. As to "percolating"
waters46 the common law rule provides, with some minor qualifications,

*See pp. 31-34, 284-291.
42. Stock v. Jefferson Tp., 114 Mich. 357, 72 N.W. 132 (1897).
43. Dohany v. Birmingham, 301 Mich. 30, 2 N.W. 2d. 907 (1942).
44. Stock v. Hillsdale, 155 Mich. 375, 119 N.W. 435 (1909); see also Hall v.
City of lonia, 38 Mich. 493 (1878).
45. Battle Creek v. Goguac Resort Ass'n., 181 Mich. 241, 148 N.W. 441 (1914);
see also People v. Hulbert, 131 Mich. 156, 174, 91 N.W. 211, 218 (1902): "In what
we have said we do not mean to intimate that an upper riparian proprietor may con-
vert his property into a summer resort, and invite large numbers of people to his
premises for purposes of bathing, and give them the right possessed only by the
riparian owner and his family"; cf. Swartz v. Sherston, 299 Mich. 423, 300 N.W.
148 (1941) (a riparian owner and his lessees at an inland lake may use the water of
the lake for boating and fishing insofar as this does not interfere with the reason-
able use of waters by other riparians); Preston v. Clark, 238 Mich. 632, 214 N.W.
226 (1927) (discussed in text, supra. pp. 385-386).
46. Those have been defined as waters which "ooze, seep or filter through the







388 LAW OF WATER ALLOCATION

that each owner of land may take all the water he can extract from his own
land regardless of possible injury to neighboring wells.47
In Michigan there has been relatively little litigation with respect to
ground water. There has been no case involving an underground stream.
The courts have announced a presumption that underground water shall be
regarded as "percolating"48 but with respect to such "percolating water"
they do not seem to follow the common law rule and seem to adopt what
sometimes is referred to as the American Rule. In Schenk v. Ann Arbor49
neighboring ground-water users were injured by the city's pumping of
water. The court allowed the plaintiff compensation for the injury actually
suffered and allowed him to apply for equitable relief if it should become
necessary in the future.so In doing so, the court took notice of the common-
law rule allowing each to get all he can get, but stated that this was in a
sense modified in Michigan by a rule of reasonable use. In this case the
city was pumping water, not simply using the natural flow of the well.
Moreover, the water was pumped outside the city limits and transported
to the city for municipal use and sale to its inhabitants, so that none of
the water was returned to the ground in the vicinity where it was taken.
The court's-opinion stressed these facts and then stated its position by
quoting from cases in other jurisdictions. These quotations seem to es-
tablish the following rule of reasonable use. One may make a reasonable
use of ground water even though one interferes with his neighbor's supply,

soil beneath the surface, without a defined channel or in a course that is unknown
and not discoverable". Clinchfield Coal Corp. v. Compton, 148 Va. 437, 446, 139
S.E. 308, 311 (1927). They may manifest themselves in waters capable of flowing
for a short distance, e.g., a rivulet, an artesian well or a mineral spring. Bernard
v. St. Louis, 220 Mich. 159, 189 N.W. 891 (1922).
47. Upjohn v. Board of Health of Richland, 46 Mich. 542, 9 N.W. 945 (1881).
Acton v. Blundell, 12 M. & W. 324-6, 152 Eng. Rep. 1223 (Ex. Ch. 1843).
48. Schenk v. Ann Arbor, 196 Mich. 75, 81, 163 N.W. 109, 111 (1917).
49. Supra note 47.
50. "The court cannot know what action the defendant city will take in the prem-
ises. It is not now harming the plaintiff, and the decree secures to him compensa-
tion for such actual injury as he is shown to have suffered." See also Brooks, J.
(dissenting): "I think that the defendant should either be permanently enjoined
from proceeding with the contemplated enterprise at this time... or that injunctive
relief should be denied .... Inasmuch as the right of the public to an adequate sup-
ply of pure drinking water is paramount to private property rights, I am of opinion
that the law in this state should be clearly enunciated as follows: That any munici-
pality, requiring water for domestic or municipal purposes, may, under the author-
ity granted by the Legislature, procure such water from lands acquired by it for
that purpose and that the resulting damage, if any, to adjacent landowners, must
be borne by such municipality, such damages to be ascertained in gross and in a
single action at law by the injured landowner." Schenk v. Ann Arbor, 196 Mich. 75,
92-93, 163 N.W. 109, 114-15 (1917).







MICHIGAN WATER LAW


provided such water is used for the benefit of activities on the land from
which it is taken. These may be irrigation, domestic use, manufacturing
and even mining. But when one transports the water away from the prem-
ises for commercial sale or relatively large-scale uses, and uses power-
ful pumps to draw the large volume necessary, one can do so only if the
taking of water does not interfere with the reasonable use of others.sl
The rule contains many potential ambiguities. How would a conflict be re-
solved between two users who pump, carry their water away from the land,
and sell it? As to the "reasonable" use that is permitted to interfere with
the water supply of neighbors, may it under given circumstances mean
that certain uses of water, or use of a large amount, would be deemed
"unreasonable," even though obtained without large-scale pumping and
carried out entirely on the land from which the water was taken? 52 If so,
51. Some of the quotations relied on are:
"It is not unreasonable, so far as it is now apparent to us, that he should dig
wells and take therefrom all the water that he needs ... (for) the fullest enjoy-
ment and usefulness of his land as land, either for purposes of pleasure,
abode, productiveness of soil, trade, manufacture, or for whatever else the
land as land may serve. He may consume it, but must not discharge it to the
injury of others. But to fit it up with wells and pumps of such pervasive and
potential reach that from their base the... (landowner) can tap the water
stored in ... (another landowner's) land, and in all the region thereabout, and
lead it to his own land, and by merchandising it prevent its return, is ... un-
reasonable as to the (landowner) and the others whose lands are thus clandes-
tinely sapped, and their value impaired." Forbell v. New York, 164 N.Y. 522,
526; 58 N.E. 644 (1900); also quoted in Hathorn v. Natural Carbonic Gas Co.,
194 N.Y. 326, 337, 87 N.E. 504, 508 (1909).
"Each owner of soil lying in a belt which becomes saturated with percolating
water is entitled to a reasonable use thereof on his own land, notwithstanding
(that) such reasonable use may interfere with water percolation in his neigh-
bors' soil; but he has no right to injure his neighbors by an unreasonable di-
version of the water percolating in the belt for the purpose of sale or carriage
to distant lands." Katz v. Walkinshaw, 141 Cal. 116, 74 P. 766 (1903) (quoted
from headnote of official report).
"The doctrine of reasonable use... affords some measure of protection to
property now existing and greater justification for the attempt to make new de-
velopments. It limits the right of others to such amount of water as may be
S necessary for some useful purpose in connection with the land from which it
was taken. If... water-bearing land is generally worthless except for the wa-
ter which it contains, then the quantity that could be used on the land would be
i nominal, and injunctions could not be obtained, or substantial damages awarded
against those who carry it to distant lands." (Emphasis added.) Katz v. Walkin-
shaw, supra at 134, 74 P. at 771.
52. It should be noted in this connection that the American Rule was regarded
by the court as "apparently, but not strictly, a modification of the early common-





i







LAW OF WATER ALLOCATION


what is the standard of "reasonable use" in this context? Or, does the
court rule mean that only pumping, transportation of water away from the
land, and large-scale and commercial sale are prohibited when they re-
sult in interference with the reasonable use of neighbors? If so, must all
these elements be present or is any one sufficient? Or, is use away from
the land always the crucial test? Moreover, it will be recalled that the
"unreasonable" use, whatever that may finally be taken to mean, may not
interfere with a neighbor's "reasonable" use. In this context, is it ever
possible for the non-interfering but interfered-with neighbor's use to be
"unreasonable" if he does not pump and transport the water, and so on,
but simply uses all the water he can get on his own land for his own use?
Bernard v. St. Louis,53 a case which came after the Schenk case, does
not add much to clarify the law. Here the plaintiffs were given protection
against a city that pumped water within its city limits (not as in the Schenk
case). This water was transported partly for sale to land within the city
limits but not owned by the city. Thus, the elements of transportation,
pumping and commercial sale were all present so far as the defendant's
use was concerned. The plaintiffs, who claimed the city interfered with
their supply, owned a sanatarium to which guests came particularly to en-
joy the supposed health-giving qualities of the water. In a sense the water
was being sold to them. It was also being pumped up to their rooms.
Moreover, while the court's statement of facts indicated that the water
was taken from the land on which it was being used, the defendant argued
that it was taken from a well not situated on the plaintiffs' land. However.
the court in its opinion did not discuss the plaintiffs' sale, pumping and
possible transportation. The pumping, after all, was not drawing off water
from neighboring land on a large scale. The sale was only indirect and on
a relatively small scale, and the transportation may not have been a fact.
The court, in its opinion at least, seems to have treated the plaintiffs as
any neighboring ground-water user who uses the water himself on the land

law doctrine." Schenk v. Ann Arbor, 196 Mich. at 82, 163 N.W. at 112. What the
court might have had in mind is the characterization of the early English cases by
the Forbell case, 164 N.Y. 522, 58 N.E. 644 (1900) quoted in the Schenk opinion:
"In the cases in which the lawfulness of interference.with percolating waters has
been upheld, either the reasonableness of the acts resulting in the interference or
the unreasonableness of imposing an unnecessary restriction upon the owner's do-
minion of his own land, has been recognized", supra at 86, 89, 163 N.W. at 113.
Then follows the statement: "It is not unreasonable, so far as it is now apparent to
us..." quoted in note 49, supra. In other words, the rule was always one of 'rea-
sonable use" but the actual content of "reasonable use" may change with the pass-
ing of time. At the time of the Forbell decision, uses of water on and for the land
from which it is withdrawn are reasonable as far as then apparent to the court. In
the future, however, even these uses might become unreasonable if they interfere
with neighboring users.
53. 220 Mich. 159, 189 N.W. 891 (1922).







MICHIGAN WATER LAW


from which it is taken and who does not fall into a restricted category.
But, as shall be pointed out below, the actual disposition of the case lends
itself to a possible interpretation that the court did take the plaintiffs'
pumping, sale and possible transportation into consideration.
The plaintiffs had obtained an injunction in the trial court prohibiting
the city from pumping in such a way as to interfere to any extent with the
flow or with the pressure flowing from the plaintiffs' mineral spring. In
modifying this decree the appellate court stated: "We are not satisfied,
... that if the city makes a reasonable use of the percolating waters, and
the plaintiffs do not permit it to go to waste, there will not nearly all of
the time be an ample supply for the needs of both. If there should not be,
then the plaintiffs should not be deprived of a supply of water sufficient
for their reasonable use without compensation, nor should they be re-
quired to install new machinery without compensation." 54 (Emphasis
added.) The gist of this modification might simply have been to provide
for compensation rather than an injunction and to make sure that the plain-
tiffs did not receive protection for any wasteful use of water. On the other
hand, it is possible that the court meant to imply that the "reasonable use"
to which the plaintiffs were entitled might under certain circumstances be
less than the use of all the water that they might need. If so, what are these
circumstances? Did the court in making this suggestion treat the plain-
tiffs not as pumpers, sellers and transporters of water, but rather as per-
sons making use of water on their own land for their own benefit? If so,
the opinion would mean that even such users might under certain circum-
stances not be entitled to all they need in a conflict with a pumping, selling
and transporting user. Or, did the court suggest the possibility that the
plaintiffs might at times not be entitled to all they need only because it
treated the plaintiffs as pumpers, sellers and possible transporters? In
that event, the "reasonable use" (of the interfered-with user) here might
entitle them to less than all the water they need only because the case in-
volves a contest between two users in a restricted category. If so, what
led the court to put the plaintiffs in the same category as the city? Was
it the pumping alone, since it does not seem clear that there was any
transportation at all, and since the sale was only indirect? To conclude,
all one can be sure of at the present stage of Michigan ground-water law
is that a pumper, seller and transporter of water is limited in the extent
Sto which he may interfere with the ground-water supply of his neighbors.
Beyond that the case law needs further clarification.55

54. 220 Mich. at 163, 89 N.W. at 892.
55. Compare the following comments on the Michigan law:
"The Schenk case may be summarized as follows: Although a landowner has a
property right to sink wells on his own land and use ground water in any way
he chooses even if he dries up his neighbors' wells, this property right is
qualified by the rule of reasonable use. This is known as the 'American' or


I







LAW OF WATER ALLOCATION


A statute dealing with ground-water use 56 was passed prior to the
Schenk and Bernard cases, and referred to in the opinions. This statute
throws little additional light on the subject. One section of this statute57
refers to water of an "artesian or flowing well" which is "unnecessarily
allowed to run to waste in an unreasonable manner" to the damage of
other wells, and provides that this shall "be deemed a nuisance" subject
to action for abatement and damages. This section seems to apply to
waste of water only and not to situations where the actual use of water is
found unreasonable. Another section58 declares a use that is "unreason-
able... in view of the condition and situation of the land" to be a nuisance.
While this section does refer to actual use of water, it is not clear what
the standard of reasonable use is. Moreover, it might be argued that
"situation of the land" refers to locale and is an indirect reference to
transportation of water. On the other hand, the word "situation" may
simply be a synonym for "condition," which would mean that "transporta-
tion" of water is not a factor that must always be present in a use that is
to be limited when it injures neighboring wells. The court in referring to
this statute in the Bernard and Schenk cases did not elaborate on these
matters; it simply characterized the rule of "reasonable use" promulgated
by these opinions as "quite in harmony with" the legislation. The statute
also provides that a decree shall specify the amount of water which may

reasonable use' rule... Under this rule... a landowner may consume, on his
land, as much of the underground waters as is necessary for agriculture, man-
ufacturing, irrigation, or other purposes, even though the effect of such use
may be to divert or interfere with the ground waters of neighboring land. The
withdrawal of such waters for sale or distribution and use away from the land,
however, may be unreasonable if it interferes with a reasonable use of waters
by adjacent landowners." Booth, Water Rights Law in Michigan-Legal Princi-
ples and Decisions, 46 J. Am. Waters Works Assn. (No. 11) 1163, 1166 (1954).
"From a legal viewpoint the courts recognize the rights of farmers and others
to sink wells on their own lands and to pump considerable quantities of water
for irrigation and other purposes. In this regard, the Michigan courts have in-
dorsed the rule of reasonable use. This rule permits owners considerable
freedom in the use of percolating ground waters but may be interpreted to
prevent wasteful, malicious or other unreasonable uses of water, particularly
if these uses have a harmful or injurious effect upon others. Under some cir-
cumstances ground water users may be held liable for damages if it can be
proved that their pumping activities have so lowered water levels as to require
the deepening or abandonment of wells that existed previously in the vicinity."
Barlowe, "Water Rights for Irrigation in Michigan," Quarterly Bulletin Mich-
igan Agricultural Experiment Station, Vol. 36, No. 1, August 1953, pp. 30, 37-38.
56. Mich. Comp. Laws I 692.201 (1948) (enacted in 1905).
57. Mich. Comp. Laws 8 692.201 (1948).
58. Mich. Comp. Laws 692.202 (1948).







MICHIGAN WATER LAW


be taken daily and for the reopening of the decree if the circumstances
determining the reasonableness of the use should change.
An early case dealt with the pollution of ground water resulting from a
city's burial ground.59 The court, denying recovery, stated:
... (O)wners of the soil have no rights in sub-surface waters not running in well
defined channels, as against their neighbors who may withdraw them by wells or
by other excavations... but if withdrawing the water from one's well by an ex-
cavation on adjoining lands will give no right of action, it is difficult to under-
stand how corrupting its waters by a proper use of the adjoining premises can
be actionable, when there is no actual intent to injure, and no negligence...
It is possible that in this case the Board of Health might have (acted)... more
wisely and more considerately but... (they) are not shown to have acted fraud-
ulently or through caprice, or to have exceeded in any respect their jurisdiction.
If complainant is injured by their action, the injury is incidental to the exercise
of a lawful right, and can therefore give no ground for an action.60
It is difficult to tell the extent to which the case is authoritative today,
since it apparently relied upon the old common law of "percolating" waters.


DIFFUSED SURFACE WATERS

Michigan defines diffused surface waters as "waters on the surface of
the ground, usually created by rain or snow, which are of a casual or
vagrant character, following no definite course and having no substantial
or permanent existence."61 This is water on the surface outside the
"water-course" and riparian rights do not apply, but it is uncertain what
rule would be followed in a conflict about the right to use water involving
a diffused-surface-water user. Michigan cases thus far seem not to have
dealt directly with this type of conflict. The cases on the whole relate to
drainage.62 In this context Michigan has not adopted the so-called Com-
mon Enemy Rule followed in some jurisdictions, according to which each

59. Upjohn v. Board of Health of Richland, 46 Mich. 542, 9 N.W. 845 (1881).
60. Upjohn v. Board of Health of Richland, supra note 59 at 549-50, 9 N.W. at
848-49.
61. Fenmode, Inc. v. Aetna Cas. & Surety Co., 303 Mich. 188, 192, 6 N.W. 2d
479, 481 (1942); quoted with approval in Robinson v. Belanger, 332 Mich. 657, 661-
62, 52 N.W. 2d. 538, 541 (1952).
62. Application of the law of "negligence" to sewer disposal and drainage ap-
pears to produce no more than the results to be expected of the application of wa-
ter law, discussed below. Thus if a city negligently constructs a public sewer with
the result that water is improperly set back and discharged upon plaintiff's prem-
ises-it is liable for the injury. See Defer v. Detroit, 67 Mich. 346, 34 N.W. 680
(1887). Similarly, liability is imposed for municipal negligence in producing an in-
efficient or defective drainage system, resulting in the collection of water and its







LAW OF WATER ALLOCATION


owner of land may do all he can to keep drainage water off his land, even
though he causes serious injury to his neighbor.
Instead, Michigan seems to follow the Civil Law Rule, under which the
owner of the upper estate is entitled to an "easement" for the natural flow
of surface waters across the lower neighboring lands.63 The owner of an
upper dominant estate, however, may not lawfully collect and concentrate
available surface waters and then proceed to discharge them by artificial
means upon an adjacent proprietor "in unusual quantities and greater
(than usual) velocity." 64 The owner of the lower or servient estate is
bound to "receive the surface water from the upper or dominant estate
(only) in its natural flow."65 The owner of the upper dominant estate has
therefore "no right to construct and maintain open ditches and drains,
which would collect the water from his premises, ponds, sag-holes, or
pools, and cast it in unusual quantities upon... (lower) land."66 Similarly,
he may not impede the flow of surface waters to their natural servient
estate to the injury of other premises. Significantly, not even public au-
thorities engaged in such public business as the improvement of a high-
way may, by the diversion of the natural course of surface waters, "im-
pose upon the land of one person the servitute which naturally belongs
upon the land of another." 67
While, however, the owner of the upper estate must desist from artifi-
cial interference with the flow of surface waters, he need not do so at the
expense of the abandonment of normal farming practices and ordinary
land improvement. Thus the owner of the upper estate may "in the interest
of good husbandry, and in the good faith, improvement, and tillage of his
farm... fill up... sag-holes, so that no water would accumulate or stay in
(them) even if the water arising from rainfall or melting snows should
thereby, in natural processes, find its way... upon the land of... (an
owner of a lower estate) and incidentally increase the flow thereon."68
subsequent discharge upon private premises. See Seaman v. City of Marshall, 116
Mich. 327, 74 N.W. 484 (1898).
63. Crane v. Valley Land Co., 203 Mich. 353, 359, 169 N.W. 18, 20 (1918), also
quoted with approval in Robinson v. Belanger, 332 Mich. 657, 662, 52 N.W. 2d 538,
541 (1952).
64. Bennett v. County of Eaton, 340 Mich. 330, 336, 65 N.W. 2d 794, 797 (1954).
65. See note 64 supra; see also Finkbinder v. Ernst, 135 Mich. 226, 97 N.W.
684 (1903).
66. Horton v. Sullivan, 97 Mich. 282, 283, 56 N.W. 552 (1893); see Ruehs v.
Schantz, 309 Mich. 245, 15 N.W. 2d 148; see Gregory v. Bush, 64 Mich. 37, 31 N.W.
90 (1887); see also Leidlein v. Meyer, 95 Mich. 586, 55 N.W. 367 (1897), which sig-
nificantly held that in principle the artificial discharge of surface waters in unnat-
ural quantities to the prejudice of neighboring land was actionable; it was a right
which could be acquired by prescription.
67. Bennett v. County of Eaton, 340 Mich. 330, 336, 65 N.W. 2d 794, 797 (1954).
68. Gregory v. Bush, 64 Mich. 37, 42, 31 N.W. 90, 93 (1887).







MICHIGAN WATER LAW


There is little doubt that a landowner cannot complain of the effects of
ordinary drainage when engaged in by an adjoining landowner "in the natu-
ral and usual course of husbandry." 69
While the owner of the lower estate may not force the surface waters
back to the upper estate or divert them to parallel premises by dikes or
dams or other artificial means, he may, as in the case of the owner of
the upper estate, "in the interests of good husbandry,... fill in the cuts,
sag-holes, washes, and other holes in his premises," regardless of the
incidental effect of these operations on adjoining premises.70 Beyond this
he may not go. He is answerable for the flooding of neighboring land
caused by the erection of artificial barriers against the natural flow of
surface waters even if his purpose in erecting such barriers is that of re-
claiming the bed of a pond on his premises,71 a matter presumably viewed
as beyond the scope of "ordinary husbandry."
The Civil Law Rule, as developed in Michigan with its modifications to
permit ordinary uses of the land, seems to some extent at least to approxi-
mate a "reasonable use" rule of drainage. On the basis of this develop-
ment, coupled with the introduction of "reasonable use" language into dif-
fused ground water law, one might speculate that "reasonable use" will
become the criterion for allocating water in the event of a conflict invol-
ving the use of diffused surface water. Perhaps, gradually, "reasonable
use" in all these contexts will come to mean the same as it does under
riparian law. This would have the advantage of making it more likely that
in any conflict between diffused-surface-water, diffused-ground-water,
and stream-water users, where all are using essentially the same source
of supply (drawing on merely different phases of the hydrologic cycle),
each user would be given reasonable protection; but it should be empha-
sized that this has not yet happened.72 "Reasonable use" in diffused ground
water cases is still a very ill-defined criterion, and there is little that
throws any light on how much diffused surface water may be used to the
injury of anyone else who might want to draw on the same source of supply.
It is still possible that a riparian would get no protection against a diffused-
surface-water user or a diffused-ground-water user, at least in such in-
stances where the latter does not pump, carry away and sell the water.


REMEDIES

It now becomes important to consider to what extent the remedies

69. Cranson v. Snyder, 137 Mich. 340, 344, 100 N.W. 674, 676 (1904).
70. Horton v. Sullivan, 97 Mich. 282, 283, 56 N.W. 552 (1893).
71. Boyd v. Conklin, 54 Mich. 583, 593, 20 N.W. 595 (1884).
72. Under the English common law, which might in this respect be followed in
Michigan, the rule of capture is not applied where percolating water is "tributary"







LAW OF WATER ALLOCATION


available to the plaintiff affect the substantive law of water allocation. The
Michigan substantive law of riparian rights itself does not clearly provide
whether the non-user might be awarded damages for the value of the water
he was, and is being deprived of (even if he did not actually make use of
it), or whether such a non-user could get an injunction against one whose
use is otherwise found "unreasonable." The Michigan courts in granting
remedies seem to treat a non-user as not entitled to more than nominal
damages for past interference or to any injunctive relief, possibly even in
a conflict between a non-user-riparian and one making a non-riparian
use.73 The non-user may, however, in a case of permanent interference
be awarded prospective damages under certain circumstances. However,
these conclusions can only be tentative for there seem to be few cases
dealing with the point, and even from some of these one can draw conclu-
sions only by inference. As to the measure of damages for past interfer-
ence, it has been expressed as "the actual damage resulting from the fail-
ure to allow the water to flow through the... river."74 This would suggest
that a non-user can receive only nominal damages for past injury. In
case of permanent interference, the cases indicate that he would be com-
pensated for the value of the water for uses to which it may be "reasonably
expected (to be applied) in the immediate future."75 If the non-user seeks
an injunction it is unlikely that he will be in a position to show sufficient
injury. In Buchanan v. Grand River Log Co.76 the court had this to say:
... (T)he denial of an injunction may be justified in this case for the reason that
complainants are not nor have they been since defendant has been in existence
in the use and enjoyment of their water-power for milling purposes .. The
question then is this: whether complainants are entitled to an injunction to re-
strain the commission of such acts as would impede them in entering upon the
use of a mill which has long stood idle; their complaint being not that defendant
interferes with an existing business, but that it prevents one being established.
The legal rights of complainants are not any less by reason of their mill having
stood idle; if they own the dam and the site, they are entitled to make use of

to a surface stream. Grand Junction Canal Co.v.Shugar, L.R. 6 Ch.App.483 (1871).
73. Stock v. Hillsdale, 155 Mich. 375, 119 N.W. 435 (1909) (non-riparian city
held not liable for damages for past use during period when riparian not injured;
past damages for actual injury recoverable; future injunction denied by balancing
equities, see infra.)
74. Stock v. Hillsdale, supra note 73 at 382, 119 N.W. at 438-39.
75. City of Allegan v. Vonasek, 259 Mich. 319, 316, 243 N.W. 14, 16 (1932)
(condemnation case); see also the opinion in the same case in 261 Mich. 16, 245
N.W. 557 (1932); Potter v. I. & L.M. Ry., 95 Mich. 389 (no damages). See generally
2 Farnham, op. cit. supra note 16, at I 510, 19 A.L.R. 2d 769 (1951) (pollution); 55
A.L.R. 1385 (1928) (percolating waters); 38 A.L.R. 1388 (1925); Annot., 35 A.L.R.
1222 (1925) (percolating waters).
76. 48 Mich. 364, 368, 12 N.W. 490, 492-93 (1882); see also Norris v. Hall, 1
Mich. 202 (1949).




i







MICHIGAN WATER LAW


them...but the fact is an additional reason why the court should be cautious in
awarding an injunction, for it increases the difficulty in laying down rules to
govern the conduct of the parties when the mill shall be put in operation... The
remedy at law is far better adapted to the case...and they must be left to pur-
sue it.

Presumably the reference to the legal remedy was to damages that would
be available after actual operation of the mill had started. The court also
might have felt that an award of nominal damages might be sufficient to
warn the defendants that they would be held liable once plaintiffs resumed
their operation. Or, if the complainants could show that they actually did
contemplate resumption of operation, they might, perhaps, if they so chose,
have recovered for the value of the water for such actually contemplated
operations.
There is still another important way in which the granting of remedies
affects the substantive water law. An injunction seems unbelievable (even
though the defendant's use is considered "unreasonable") where the in-
junction would result in a relatively small gain to the plaintiff compared
to the loss to the defendant or the loss to the community's economy, and
where the defendant could get compensation by way of damages. The court
employs the traditional equity rule of Balancing the Conveniences. For
example, in Monroe Carp Pond Co. v. River Raisin Paper Co.77 the court
found that the defendant industries' pollution was "unreasonable" but
nevertheless denied an injunction.
Monroe is a city of about 13,000 population. Its principal industries are the
mills of the defendants. There are eight of these, in which about 3,000 persons
are employed. Defendants' investment in these plants is about $15,000,000. The
proof satisfies us that there is no way in which their waste can be treated and
purified on their own premises so as to permit the plants to be operated with
reasonable profit. ...
The plaintiff company (on the other hand) has (only) a capital stock of
$10,000. It employs (only) from one to five men. ...
It is apparent that the plaintiff may be recompensed for such loss as it will
sustain by a denial of... (injunctive) relief. It is also apparent that the granting
of it will work a great injury, entirely disproportionate to that sustained by
plaintiff, upon the defendants, and that it will also seriously affect the prosper-
ity of the city. 78

S 77. 240 Mich. 279, 215 N.W. 325 (1927).
78. 240 Mich. at 288-89, 215 N.W. at 328. A distinctly similar type of analysis
preceded denial of injunctive relief in Stock v. Hillsdale, 155 Mich. 375, 381, 119
N.W. 435, 438 (1909) in which the court declared: "(A) court of equity will take into
consideration not only complainant's bare legal rights, but the damage which will
result to a defendant from the enforcement of such legal rights." See also Hoxsie
v. Hoxsie, 38 Mich. 77 (1878); note 76a infra; cf. Payne v. Paddock, Walk Ch. 487
(1844) in which the court held that where defendants had expended labor and $3,000







LAW OF WATER ALLOCATION


The Balancing of the Conveniences Doctrine has been employed even to
deny a riparian an injunction against uses by riparians on non-riparian
land or for non-riparian purposes.79


PRESCRIPTION

The system of riparian rights and other Michigan water law is further
modified by the doctrine of prescription. A prescriptive right is obtained
where a person uses water for fifteen years and the use is "visible,"
"notorious," "continuous" and "adverse" to the rights of other riparians.
These words are taken from the general law of real property, dealing with
the establishment of land titles and easements. In Michigan, the right of
flowage,80 the right to use a given quantity of water,81 the right to flood
another's land82 even by the use of artificial drainage83 have been held to
be obtainable by prescription. The prescriptive right to use a given quan-
tity of water is limited to the amount consistently used or withdrawn dur-
ing the prescriptive period.84 In the case of flooding another's land, the

in the construction of a mill in reliance upon complainants' permission to draw
water from a lake, the outlet of which flowed through the complainants' land, no
injunction relief would lie. 2 Farnham, op. cit. supra note 17, at 1691 and cases
cited therein: "(I)t has been held that an injunction will not be issued where it
appears that the effect to defendant will be to stop his works while the plaintiff is
not seriously injured by the pollution of the sream...."
79. Other cases employing the principle of Balancing the Equities are: Stock v.
Hillsdale, supra note 78; Wyoming Tp. v. Stuart, 158 Mich. 60, 122 N.W. 214 (1909);
Howard v. Bellows, 148 Mich. 410, 111 N.W. 1047 (1907). For a refusal to apply the
doctrine so as to allow a city to disregard an order of the Stream Control Commis-
sion to construct a sewage treatment plant, see People ex rel. Stream Control Com-
mission v. Port Huron, 305 Mich. 153, 9 N.W.2d41 (1943). In denying injunctions,
the courts protect investment in still another way. Where a person whose use is
interfered with knows of the large investment being made by the one who interfered
and stands idly by or acquiesces in what his neighbor is doing, he cannot obtain an
injunction later. Holcomb v. Alpena Power Co., 198 Mich. 165, 164 N.W. 470 (1917);
see Blake v. Cornwell, 65 Mich. 467, 32 N.W. 803 (1887); also Morrison v. Queen
City Elec. Light & Power Co., 181 Mich. 624, 148 N.W. 354 (1914). However, a case
of estoppel is not easy to prove; see Stuart v. Detroit Finnish Co-op. Summer Camp
Ass'n. 277 Mich. 144, 269 N.W. 122 (1936).
80. Williams v. Barber, 104 Mich. 31, 62 N.W. 155 (1895); see also Halstead
v. Young, 282 Mich. 558, 276 N.W. 703 (1937).
81. Suffrouw v. Brewer, 204 Mich. 370, 169 N.W. 841 (1918).
82. Chapel v. Smith, 80 Mich. 100, 45 N.W. 69 (1890).
83. Leidlein v. Meyer, 95 Mich. 586, 55 N.W. 367 (1893).
84. Stock v. Hillsdale, 155 Mich. 375, 119 N.W. 435 (1909). But cf. Kennedy v.


,398







MICHIGAN WATER LAW


right extends to the amount of land actually and consistently affected dur-
ing the prescriptive period.a8 Michigan has expressly rejected the doc-
trine followed in other jurisdictions which determines the extent of the
right acquired by the height of the dam. A prescriptive right has also
been obtained to have one's land free of water. In one case an upper ri-
parian had diverted the stream for more than forty years, which gave him
a prescriptive right. During that period a downstream land owner re-
claimed previously wet and useless land. The court enjoined the upstream
owner's attempt to divert the water, to the injury of the reclaimed land.
The theory was that the downstream owner had acquired a reciprocal pre-
scriptive right to have the land free of water.86
Mere continuous use for the fifteen-year period does not always estab-
lish a prescriptive right. Public policy does not permit a prescriptive
right to create or exploit a public nuisance, nor is it possible to obtain a
prescriptive right to interfere with navigation. 87 Moreover, as previously
indicated, to establish a prescriptive right the use must be "adverse." As
a consequence, it has been held that a prescriptive right cannot run up-
stream, since the downstream use of the water, available because up-
stream riparians were not using it, does not, during the period of use,

Niles Water Supply Co., 173 Mich. 474, 139 N.W. 241 (1913) (lake level can be re-
duced only up to depth of original pipe; one cannot lay lower pipes to get same
quantity of water).
85. Chapel v. Smith, 80 Mich. 100, 45 N.W. 69 (1890); Turner v. Hart, 71 Mich.
128, 38 N.W. 890 (1888).
86. Mathewson v. Hoffman, 77 Mich. 420, 434-435, 43 N.W. 879, 883 (1889):
The complainants and their grantors, for more than 45 years, have enjoyed
their estates freed from these waters, and they cannot now be compelled to re-
ceive them. The defendants have no more right, under the circumstances, to
change the water from the artificial channel back into the original channel than
they would to turn it into any other channel, or across the land of any other
person. The new channel has become the channel of the stream.
The exclusive enjoyment of water in a particular way for 20 years, without
interruption, becomes an adverse enjoyment sufficient to raise presumption of
title against a right in any other person which might have been, but was not,
asserted. This rule must be reciprocal, and one who has taken the water from
the original channel, and has continued to divert and enjoy it for a period be-
yond the statute of limitation as to real actions, cannot afterwards be permitted
to restore it to its original state when it will have the effect to destroy of
materially injure the property of those through or by which it formerly
flowed ....
As shown in the text the prescriptive period now is 15 years.
87. Attorney Gen. ex rel. Emmons v. Grand Rapids, 175 Mich. 503, 141 N.W.
890 (1913) (public nuisance): Gifford v. McArthur, 55 Mich. 535, 22 N.W. 28 (1885)
(navigable stream; private nuisance).






LAW OF WATER ALLOCATION


interfere with the "rights" of upstream owners.88 Similarly, where the
use of water is "permitted" by others having a common right to use it, no
prescriptive right is established.89 However, in Kennedy v. Niles Water
Supply Co.,90 the court seemed to indicate that a wrongful use of water
might be presumed to be adverse under certain circumstances: "... If a
wrongful use is made of the water of a running stream by a common pro-
prietor, as if he finally diverts the water, such use is by common consent
presumed to be injurious to other common proprietors and therefore ad-
verse." One cannot be sure whether this presumption would operate in
the case of all wrongful uses.
This presumption may also help answer the question of when the pre-
scriptive period commences to run. The requirement that the use be ad-
verse indicates that the period should run from the date of "injury,"
rather than from the date of commencement of use. However, the above-
quoted presumption suggests that in some instances at least the date of
commencement of use will be presumed to be the date of injury and there-
fore the actual date at which the period begins to run. On the other hand,
to the extent that no injunction is available until the date of injury, a pre-
scriptive period starting on that date is indicated. Otherwise, there might
be no effective way in which a non-user could stop one from acquiring a
prescriptive right.
Water rights acquired by prescription appear subject to forfeiture as
a consequence of non-use and/or the resumption of the use of the right by
its original owner for the prescriptive period. Thus, the Supreme Court of
the state has held that where an easement for flooding is "imposed by pre-
scription only, and not by grant or reservation in chain of title, defendants'
nonuser for a period equal to that of its creation results in its loss."91

88. Preston v. Clark, 238 Mich. 632, 641, 214 N.W. 226, 229 (1927):
In Farnham on Waters, vol. 2, 1 536, the rule, applicable here, is well stated:
'The riparian owner receives the water as it flows to him by natural rights, and
in so doing he does not interfere with the rights of any other owner on the
stream; by the fact that he had received it without interruption by the upper
owner for the prescriptive period. It may be that the upper owner has had no
use for the water, but the mere fact that he had none, and did not attempt to
make any use of it, cannot deprive him of any of his rights or entitle the lower
owner to insist that the flow shall continue uninterrupted, in case the upper
owner finds use for the water.
89. Swartz v. Sherston, 299 Mich. 423, 300 N.W. 148 (1941); King v. Battle
Creek Box Co., 235 Mich. 24, 209 N.W. 133 (1926), quoted with approval in Ruggles
v. Dandison, 284 Mich. 338, 342, 279 N.W. 851, 853 (1938).
90. 173 Mich. 474, 475, 139 N.W. 241 (1913);'see also 2 Farnham op. cit. supra
note 17, at 537-41.
91. McDonald v. Sargent, 308 Mich. 341, 343, 13 N.W. 2d 843 (1944). On the
possibility of "international abandonment" of a right to flowage, see Kraft v. Miller,
314 Mich. 390, 22 N.W. 2d 857 (1946).






MICHIGAN WATER LAW


PRIVATE TRANSFER OF WATER RIGHTS

Water is not allocated only by the judiciary in the course of deciding
cases. The law also permits private parties to transfer water rights by
grant or contract. The transfer of riparian lands will effect a transfer of
the accompanying riparian rights without specifically mentioning them.
Moreover, the transfer of land anywhere automatically transfers the rights
to underlying ground water.92 However, the right to use water may be
transferred independently of the land to which it is "appurtenant."93 It is
not too clear what a water user on non-riparian land receives by a trans-
fer of the water right alone from a single riparian. He can enforce his
right against the riparian from whom he purchases. Other riparians, how-
ever, probably can bring an action at least if they are injured, and the
non-riparian purchaser probably cannot enforce his right against the other
riparians. To be sure of his right to use water, the would-be user on non-
riparian land would have to purchase from or contract with94 all the ri-
parians to whose use his is related. A prescriptive right, on the other
hand, can also be transferred without the land, and usually will be enforce-
able against third parties.95
By explicit constitutional enactment, Michigan has provided that

S.. any city or village may acquire... public utilities for supplying water...
(and) power ... to the municipality and the inhabitants thereof; ... and may also
sell and deliver water outside of its corporate limits in such amount as may be
determined by the legislative body of the city or village... 96

State legislation has established a miscellany of water supply and power
companies, characteristically authorized to engage in such activities as
"(furnishing) water to other persons or companies for mining, manufac-
Sturing, milling, domestic, municipal, or agricultural purposes, on such
rent as shall be agreed upon by and between... (them) and those desiring

92. See, e.g., 3 Farnham, op. cit. supra note 17, at 2186-2315 and cases cited
therein; see also Bauman v. Barendregt, 251 Mich. 67, 69, 231 N.W. 70, 71 (1930):
"It is a settled rule in this state that, where there is no reservation of them (in a
conveyance), riparian rights attach to lots bounded by natural watercourses".
Accord, Holda v. Glick, 312 Mich. 394, 20 N.W. 2d 248 (1945); Blain v. Craigie,
294 Mich. 545, 293 N.W. 745 (1940).
93. Winchell v. Clark, 68 Mich. 64, 35 N.W. 907 (1888).
94. See, e.g., Powers v. Perkins, 132 Mich. 33, 92 N.W. 790 (1902); Mandevile
v. Comstock, 9 Mich. 536 (1862). On the rights of nonriparians who purchase
riparian rights against other riparians, see the discussion in Schofield v. Dingman,
216 Mich. 611, 274 N.W. 67, (1933); see also 2 Farnham op. cit. supra note 17, at
497, 247.
95. McMillan v. Etter, 229 Mich. 366, 201 N.W. 499 (1924); Hall v. City of
lonia, 38 Mich. 493 (1878).
96. Mich. Const. art. VIII, 23.






LAW OF WATER ALLOCATION


to obtain it... "97 Under special legislation water rights owned by the
State have been sold to private companies.98


SUPERVENING RIGHTS OF THE PUBLIC

The picture of Michigan stream and lake water law is not complete
without some mention of supervening rights of the public at large in cer-
tain bodies of water.

Navigation and Floatage

Navigable streams are subject to the public's paramount right to navi-
gation. "The right of navigation, while paramount, is not exclusive and
cannot be exercised to the unnecessary ... destruction of private rights
or property, where both can be freely and fairly enjoyed."99 Within this
limitation of no unnecessary harm to riparians, the public right to navi-
gation is superior and riparians may not interfere with or obstruct it.100
In addition to the right to navigate vessels, the public has a right to
float logs. The Michigan lumber industry depended greatly on this means
of transportation. As a consequence, Michigan early established, in the
case of Moore v. Sanborne,'01 a public right to floatage on all waters cap-
able of floating logs:
Strictly, at the common law, those rivers only are subject to the servitude of
the public interests, which are of common or public use for carriage of boats
and lighters, and for transportation of property.... Like every other rule of
the common law, this sprang from usage, and immemorial custom, and giving to
it its broadest signification, it could only have had application to those rivers
which were susceptible of use by the public generally, for navigation, and their
adaptation to a particular use by individuals, in the course of their trade, but
not to general use, would not constitute them public highways. But in this coun-
try the public right cannot depend upon custom, or upon general use-and we
accordingly find that... this rule has been extended so as to embrace all streams
upon which in their natural state, there is capacity for valuable floatage....


97. Mich. Comp. Laws 486.61 (1948); see also similar enactments in 486.
111, 486.211.
98. 13.790 (181-187) Mich. Stats. Ann. (sale to Detroit Edison Co. for power
purposes as a more beneficial use of water for people of area).
99. People's Ice Co. v. Streamer Excelsior, 44 Mich. 229, 234, N.W. 636, 638
(1880); see also Paterson v. Dust, 190 Mich. 679, 157 N.W. 353 (1916); Dietrich v.
Schremm, 117 Mich. 298, 75 N.W. 618 (1898); Lorman v. Benson, 8 Mich. 18 (1806).
100. Grand Rapids v. Powers, 89 Mich. 94, 50 N.W. 661 (1891).
101. 2 Mich. 510, 523-26 (1853). For Michigan cases discussing the meaning of
navigability, see, e.g., Putnam v. Kinney, 248 Mich. 410, 227 N.W. 741 (1929);







MICHIGAN WATER LAW


It was contended... that the capacity of a stream to float logs and rafts, was no
criterion of the public right of servitude; but that to render a river a public
highway, it must be susceptible of navigation by boats. But this, we apprehend,
is too narrow a rule upon which, in this country, to establish the rights of the
public.... The servitude of the public interest depends rather upon the purpose
for which the public requires the use of its streams, than upon any particular
mode of use-and hence, in a region where the principal business is lumbering,
or the pursuit of any particular branch of manufacturing or trade, the public
claim to a right of passage along its streams must depend upon their capacity
for the use to which they can be made subservient.... Upon many of our
streams, although of sufficient capacity for navigation by boats, they are never
seen-whilst rafts of lumber of immense value... are annually floated among
them to market. Accordingly, we find that a capacity to float rafts and logs...
where the manufacture of lumber is prosecuted as a branch of trade, is recog-
nized as a criterion of the public right of passage and of use...102

The court also held that a stream could be used for floatage even though
it did not have the capacity at all seasons, provided it had this capacity
for a time sufficient to answer the wants of those whose business require
its use.103


Giddings v. Rogalewski, 192 Mich. 319, 158 N.W. 951 (1916); People ex rel. Bird
v. Grand Rapids-Muskegon Power Co., 164 Mich. 121, 129 N.W. 211 (1910). A
current is not necessary. Turner v. Holland, 65 Mich. 453, 33 N.W. 283 (1887).
102. See also Brown v. Chadbourne, 31 Me. 9m 22-23 (1849), adopted as Michi-
gan doctrine in Moore v. Sanborne, 2 Mich. 519, 524 (1853):
S.. To determine whether a stream should be considered public, none of the
authorities... requires the stream to possess the quality of being capable of
use during the whole year. A distinguishing criterion consists in its fitness to
answer the wants of those, whose business requires its use. Its perfect adapta-
tion to such use may not exist at all times, although the right to it may continue,
and be exercised whenever an opportunity occurs. In many rivers, where the
tide ebbs and flows, the public are deprived of their use for navigation during the
the reflux of their waters. A way, over which one has a right to pass, may be
periodically covered with water ....
Most of the great rivers of this State, in some portions of their passage, are
so much impeded by rocks, falls and other obstructions that logs cannot be
floated in them any great distance, at what might be called an ordinary state of
S water. It is only in the spring and fall, and occasionally at other times, when
their channels are filled with water, that they are capable of floating timber to
market. They generally remain in this condition, a sufficient length of time to
answer the purposes of a common highway, and their fitness and character as
such cannot be destroyed, because they cannot be used in their ordinary state.
103. Anderson v. Thunder Bay River Boom Co., 61 Mich. 489, 28 N.W. 518
(1886); see also Thunder Bay River Boom Co., v. Speechly, 31 Mich. 336 (1875).
Koopman v. Blodgett, 70 Mich. 610, 616, 38 N.W. 649, 651 (1888) declared:
In holding that a public right of floatage exists in streams capable of furnishing
valuable facilities for moving logs... it has never been the understanding that


I






LAW OF WATER ALLOCATION


After the Sanborne case, a number of cases tended to delimit its scope,
especially where there was a conflict between lumbermen and mill owners.
It was held that, while logs may be put into the stream up to its natural
capacity to carry them, without liability on the part of the logger for inci-
dental flooding of riparian lands, a logger is liable for flooding resulting
from log jams caused by overloading the stream.104 In one case, logs had
been put into the river in the winter ready for driving in the spring. As a
result, the water stopped flowing and riparian mill owners were injured.
The court held that defendant "was not using the stream for navigation,
and its act was unreasonable and unlawful."105 Artificial flooding and hold-
ing back of the stream by loggers was generally not permitted. The courts
also were of the opinion that "the right of floatage (was not) paramount to
the use of the water for machinery. Each right should be enjoyed with due
regard to the existence and protection of the other" and it was held that
during the times of the year when a stream was not naturally capable of
floating logs, the logger could not make it so by artificial means to the
injury of the rights of others.106 Some of these cases justified restrictions
on logging by distinguishing between streams capable of floating logs and
those navigable by vessels. Several cases also seemed to indicate that the
public right was a right to floatage only and did not extend to fishing and
fowling. This limitation on Moore v. Sanborne has been explicitly rejected
in recent cases dealing with the public right to fish, which are discussed
below. Their sweeping language also seems to reject all limitations on
the Sanborne case based on a distinction between navigable rivers and
rivers merely capable of floating logs. They are all public waters to which
all public rights attach to the full extent.

the public had any other rights than were furnished by the natural water-way
.... No easement beyond the natural one can be obtained without authority....
104. Grand Rapids Boom Co. v. Jarvis, 30 Mich. 308 (1874).
105. Wooden v. Mount Pleasant Lumber & Mfg. Co., 106 Mich. 412, 414, 64
N.W. 329 (1895).
106. Middleton v. Flat River Booming Co., 27 Mich. 533, 535 (1873); see also
Buchanan v. G. R. Log Co., 48 Mich. 364, 12 N.W. 490 (1882); Thunder Bay River
Booming Co. v. Speechly, 31 Mich. 336 (1875); cf. the language of the court in
Grand Rapids v. Powers, 89 Mich. 94, 111, 50 N.W. 661, 666 (1891):
... The rights of the riparian owner... is (sic) subject... to the public use for
the purposes of navigation;... there is (however) a manifest difference between
public streams that can be used successfully for the running of boats and ves-
sels for the purpose of commence, and those which are only capable of being
used for the floatage of lumber and logs in rafts or single pieces. The riparian
owners are entitled to the beneficial and sole use of the latter streams, except
for floatage, and when such streams have become unfitted for valuable public
use... there is no more reason for holding them to be public than in the case
of a land highway which has been abandoned and is useless ....







MICHIGAN WATER LAW


Fishing and Fowling

In Collins v. Gerhardt107 the Michigan court held that a river capable of
floating logs may be used by the public for fishing against the objections
of riparians. The language of the decision also included the right to fowl-
ing.108 In arriving at this decision, the court took several important steps.
It reiterated the Michigan rule that a stream capable of floating logs is
Subject to public servitudes. It held that the fact that the stream was no
longer used for floating was not proof of its incapacity. The capacity to
float logs was held to do more than simply make the river a passageway
for logs, as some earlier decisions had indicated. Rather, all the various
rights of the public in public waters could be exercised on such a river.
The court considered the fact that in Michigan riparians generally own the
land to the center of the streambed, even in the case of navigable waters,
and that under the common law the right to fish and fowl went to whoever
owned the bed of the stream. But the court held that in Michigan the navi-
gable waters originally held by the United States and the State were always
subject to a trust in favor of the public. The United States and Michigan
could not divest themselves of that trust, and in acquiring property the ri-
parians acquired it subject to this trust in favor of the public, which gave
the public a right to fish.
In Attorney Gen. ex rel. Director of Conservation v. Taggart109 the
Michigan Supreme Court again affirmed the right of the public to fish in a
stream capable of floating logs. The opinion stated:
While the Sanborne case only disposed of the right of floatage and did not de-
cide that a floatable stream has the status of waters navigable for all purposes,
the public character of water was held to be determined by reference to the
public necessity for its use. It is this broad underlying principle rather than

107. 237 Mich. 38, 211 N.W. 115 (1926); see also Lincoln V. Davis, 53 Mich.
375 (1884). Before the Collins case it was said that a river floatablee for logs, is
but a public highway...." The right to float includes only such rights as are inci-
dent to that right. Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, 319 (1874).
108. Before Collins v. Gerhardt, supra note 107, the court in Sewers v. Hack-
lander, 219 Mich. 143, 151, 188 N.W. 547, 550 (1922) adopted the rule stated in 12
RCL 668:
S.. The real test as to the public right of fowling is the public or private owner-
ship of the soil beneath the waters, and, if it is shown that the soil is privately
owned, the owner has the exclusive right of fowling. The mere fact that one has
the right to pass along a stream in a boat gives him no right to shoot fowls,
where the soil beneath the water is privately owned.
f C.f. Sterling v. Jackson, 69 Mich. 488, 37 N.W. 845 (1888). But see Ainsworth
v. Munoskong Hunting & Fishing Club, 153 Mich. 185, 116 N.W. 992 (1908).
109. 306 Mich. 432, 441-42, (1943).


j







LAW OF WATER ALLOCATION


the narrow rule of the Sanborne case which was in effect adopted by the court
in'Collins v. Gerhardt.... Whatever criticism may be made of the Collins
case because of its lack of authority, we believe it states sound law and a public
policy appropriate to the character of this State.
Were the rule of Collins v. Gerhardt.. not the law, many of all of the larger
fresh water streams, or large portions of them, in this State would be effective-
ly closed to the public notwithstanding the enormous expense the State has been
put to in stocking such streams.. 110
Despite this broad statement of a principle of public necessity as
justifying public use, the court was careful to limit the scope of its opinion
by stating that the case "does not in any way affect very small trout
streams on private property which have not been used by the public for
logging or for boating... nor does it cover private lakes and ponds owned
by the abutting property owners. As to such bodies of water, the riparian
owner has complete control."1' This statement might be taken to express
the court's view of public necessity at the time. On the other hand the
statement could be interpreted as retaining some element of the water's
usability for purposes of transportation and through-passage as a test of
whether the public's right to fishing and fowling may be exercised.



110. See also the discussion by Judge Raymond in Ne-Bo-Shone Assn., Inc. v.
Hogarth, 7 F. Supp. 885, 888-89 (W.D. Mich. 1934), affd, 81 F. 2d 70 (6th Cir. 1936):
Much of the difficulty in analysis of the various cases and in application of the
principles announced arises from the failure in some instances to distinguish
between the so-called 'test' and the object of the test. The human mind is prone
to confuse definitions with the thing defined, symptoms with the disease,
theology with religion, and descriptions with the thing described. By too close
attention to the bait the game escapes ...
.... It is to be noted that, while navigability was made the guide as to what
constituted public waters, it was not made the test of the scope of the public use
of such waters. While floatability was often stated to be the test of navigability,
it seems apparent that, in fact, it was not so. The very purpose for the change
of test was to classify as public waters streams which were not commercially
navigable but which were within the test of floatability...
... While the courts have frequently said that floatability is a test of navigability,
it is clear that what was intended was that floatabillty is a test of whether the
waters to which the test is applied are public or private. (Emphasis added).
Because some waters are public, certain rights attach thereto. These rights
are not limited by the test by which the nature of the waters is determined but
to the rights incident to the characterization as public of the stream of body of
water.
111. 306 Mich. Attorney Gen. ex rel. Director of Conservation v. Taggart, 443
(1943); see also Winans v. Willets, 197 Mich. 512,163 N.W. 993 (1917).






MICHIGAN WATER LAW


GOVERNMENTAL POWERS AND ACTIVITIES

In addition to the rights of the public to use water directly, the Federal
Government and states, local subdivisions or specially authorized corpo-
rations under certain circumstances can regulate and develop the water
resources of the State. The Federal power is beyond the scope of this
paper; but some aspects are briefly noted in the footnote at the end of this
section. Nor can an exhaustive review of Michigan's law be undertaken
here. However, a partial review is necessary to indicate that the water
rights law summarized above is not the only law which affects Michigan's
water allocation pattern. The discussion which follows will describe
(A) some of the regulatory and development activities that the State has
authorized, and (B) indicate some of the constitutional restriction on the
State's power.
A. The regulation and development of water which the State has author-
ized is extensive and affects a great variety of uses. A great number of
different state and local agencies and specially authorized private com-
panies have charge of various aspects of water use and development. Fre-
quently, their jurisdiction extends to only one of many interrelated prob-
lems, and frequently various agencies have overlapping jurisdiction over
a single area of activity. However, as shall be seen, more recent enact-
ments do contain some provision for carrying out a more unified and in-
tegrated approach.
In the field of navigation a large number of agencies and specially
authorized companies have been in charge of many interrelated functions.
Very early a number of statutes empowered private companies to improve
waterways for logging and transportation and to construct canals and
harbors.112 These companies were given wide powers, including the power
to condemn, divert water, flood lands and charge tolls, and only in some
instances did the exercise of these powers require state approval.113 The
improvement of non-navigable and navigable streams may also be carried
out by special port districts,114 which have as their principal function the
improving of harbors. Municipalities may acquire, construct and maintain
wharves, piers, docks and similar facilities.115 The State Waterways Com-
mission, too, has the power to construct, acquire and maintain harbors,
channels and facilities for vessels on navigable waters.116 It is instructed
I to cooperate with local and federal authorities operating in the same field.
Some state statutes directly regulate logging and the alteration and

112. Mich. Comp. Laws 9 485.101-485.303, 485.1-485.25 (1948).
113. Mich. Comp. Laws 485.113 (1948).
114. Mich. Comp. Laws 120.1-120.35 (1948).
115. Mich. Comp. Laws 41.482, 67.35-67, 37, 97.1 (1948).
116. Mich. Comp. Laws 281.501-281.511 (1948).


j






LAW OF WATER ALLOCATION


obstruction of streams. But stream alteration and construction also can
be controlled by municipalities.117 Soil conservation districts, too, play a
general role. Their purpose in conserving the soil is deemed to include
the prevention of impairment of dams and reservoirs and the maintenance
of the navigability of rivers and harbors.118 As to bridging and damming of
navigable waterways, Michigan's constitution specifically authorizes the
enactment of statutes providing for necessary constructions. Not only ap-
proval of the State Highway Commission is required, but also that of the
County Board of Supervisors.119
In the field of water supply and water power, legislation had authorized
the formation of municipal water supply systems and the creation of water
supply and power companies. The statutes creating water supply and power
companies have varied somewhat over the years. The first such company
was simply a membership corporation that could distribute water power
only to its members,120 but later statutes provided for the sale of water
"to other persons... for mining, manufacturing, milling, domestic, muni-
cipal, or agricultural purposes,"'21 and while earlier statutes were purely
for purposes of supplying water, the more recent enactments have author-
ized the generation of hydro-electric power.122 All the statutes have given
the companies some power to improve the source of supply. At times this
has included the power to divert water, usually subject to the approval of
the Board of County Supervisors. A section in one of the statutes which
attempted to grant the power of eminent domain123 was held unconstitutional
in a case which will be discussed below.124
As was indicated in the discussion of transfer of water rights, the
Michigan constitution provides that "any city or village may acquire, own
and operate... public utilities for supplying water... (and) power.., to
the municipality and the inhabitants thereof;... and may also sell and de-
liver water outside of its corporate limits... "125 Legislation has author-

117. Mich. Comp. Laws 426.55, 426.56, 46.22, 117. 4h (4), 254.44,
254.5 (1948); 9.1195; the logging statute is: Mich. Comp. Laws I 426.51 (1948)
(booming of logs along shore must leave channel for usual vessels found on stream;
was held not to give company right to exercise power of eminent domain; flooding
of riparian land by placing booms along banks held to be "taking" without compen-
sation). Marr v. Hemenny, 297 Mich. 311, 297 N.W. 504 (1941).
118. S 13.781 et seq. M.S.A.
119. Mich. Const. art. VIII, S 14; Mich. Comp. Laws 254.1-254.53 (1948).
120. Mich. Comp. Laws 1 486.1-486.216 (1948).
121. Mich. Comp. Laws 486.61 (1948).
122. Mich. Comp. Laws 486.201, 486.251 (1948) (condemnation power again
included in N 486.252-486.252i).
123. Mich. Comp. Laws 8 486.109 (1948).
124. See p. 415 infra. Berrien Springs Water Power Co. v. Berrien Circuit
Judge, 133 Mich. 48, 94 N.W. 379 (1903).
125. Mich. Const. art. VIII, 23.






MICHIGAN WATER LAW


ized municipalities to create inter-city supply systems and special author-
ities for that purpose, to acquire property beyond city limits by purchase
and condemnation, to acquire private water works, to purchase water from
water-supply companies, and to sell water within or outside the city.126
Townships and villages have been given similar powers127 and the county
board of supervisors may establish water supply and sewage disposal
facilities to serve various local units of government.128
Pollution control is in the hands of the State Health Commissioner, the
S Water Resources Commission and public corporations, such as counties,
cities, villages, townships and metropolitan districts. The State Health
Commissioner has supervisory and regulatory control over sewerage dis-
posal and supply of drinking water in order to insure uncontaminated wa-
ter to the public.129 The Water Resources Commission can regulate or
prohibit the pollution of "waters of the state of Michigan and the great
lakes."130 The law makes it unlawful to discharge into the waters of the
State substances which are injurious to the public health or which would
destroy bird or animal life or fish. Under a recent enactment,131 public
corporations may accept grants of aid for the construction or improve-
ments aiding the prevention and abatement of pollution. Under this law
public corporations are further authorized to enter into contracts for the
disposal of sewarage so as to abate or reduce pollution. The drainage law,
which is discussed below, also makes provisions for sewerage disposal
and pollution control.
Because of the large areas in the State that are plagued by too much
water, drainage is one of the major concerns of Michigan water legisla-
tion.132 This legislation provides for the establishment of county and inter-
county drainage districts under the supervision of county drainage com-
missioners or a drainage board, in the case of inter-county drains, con-
sisting of various county commissioners and the director of agriculture.
S The procedures provided for require a good deal of initiative and approval
from local and special interests groups. Initiation of the establishment of

126. Mich. Comp. Laws 123.111-167, 119.1-119.15, 141.101-141.138 (bor-
rowing powers), 106.1-106.11, 213.111-213.134 (condemnation for water, light,
heat or power or transportation) (1948).
127. Mich. Comp. Laws U 71.1-71.11, 41.331-41.342, 123.141-123.155 (1948).
128. Mich. Comp. Laws ff 46.171-46.185 (1948).
129. Mich. Comp. Laws 325.201-325.213; (1948); see also Mich. Comp. Laws
I 325.23 (1948) (water analysis by board of health).
130. Mich. Comp. Laws 323.2 (1948).
131. Mich. Comp. Laws 141.261 (1948); see also Mich. Comp. Laws U 67.24-
67.34 (1948) (power of villages to establish sewers); Mich. Comp. Laws I 67.1
(1948) (power of villages to regulate or prohibit bathing); Mich. Comp. Laws I 91.1
(1948) (power of cities to regulate bathing and to clean rivers).
132. The laws recently have been recodified, see Drain Code of 1956, 1-623,
11.1001-11.1623 M.S.A. (separate pamphlet, Callaghan & Co.).






LAW OF WATER ALLOCATION


a district and the construction of drains is largely by application of inter-
ested freeholders and public corporations. Generally, after the commis-
sioner on a drainage board has decided to establish a district, a further
petition by freeholders is necessary to initiate the specific project, unless
public corporations willing to pay two-thirds of the cost do so. Still, fur-
ther approval is generally needed by a board of determination consisting
of disinterested freeholders who pass on the necessity of the project for
the public health, welfare and convenience. Cost is normally apportioned
according to the benefit received and special assessments are levied.
Proceedings leading to the construction of the drain, the determination of
the compensation to be paid and the fixing of tax assessments are all sub-
ject to quasi-judicial or judicial review. A somewhat different procedure
is followed where the cost is to borne entirely by public corporations.133
There are further provisions against obstructing and polluting drains.134
In case of pollution, the State Commissioner of Health may approve treat-
ment proposals and other improvements or he may petition the probate
court to order such improvements.
The drainage statutes primarily benefit agriculture and certain govern-
mental functions such as the construction of streets and highways. Drain-
age, however, may affect the whole interrelationship of water resources
and uses. But except for a provision against interference with navigation,
this interrelationship is largely not taken into account by the statutes thus
far mentioned nor are state agencies, concerned with water resources,
authorized to participate in decisions affecting drainage construction ex-
cept in a very limited way.
A recently adopted statute135 offers an opportunity to avoid these defects
in certain instances by providing for a more comprehensive attack on
drainage and flood-control problems. This statute authorizes the estab-
lishment of a "water management district" for undertaking projects relat-
to flood control and drainage affecting all or part of three or more counties
and necessary for the public health, safety, or welfare. Three or more
public corporations may effect the organization of such a district by pe-
titioning the state director of agriculture. Supervising the activities of
each such district is a water-management commission composed of repre-
sentatives of more diversified interests than generally participate in the
affairs of a drainage district. A water-management commission is to in-
clude the drain commission of each county within the district, a represen-
tative appointed by the board of supervisors of each such county, repre-
sentatives of each city or village, one director of a soil conservation
district located within the water-management district, and the State Direc-
tor of Agriculture. Plans proposed by the commission must receive the

133. 11.1511 ( 511, of Code).
134. 11.1421 et seq. ( 421 et seq. of Code.)
135. 11.1551 et seq. ( 551 et seq. of Code).







MICHIGAN WATER LAW


approval of the Michigan Water Resources Commission and must be
brought to the notice of the State Highway Commissioner and the Director
of the State Department of Conservation.
The range of authorized activities which may be carried on by a water-
management district is also broader than that permitted a drainage dis-
trict. The water-management commission is authorized to cooperate with
federal agencies carrying on work for the prevention of soil erosion and
for flood control, to sell surplus water developed in the course of its
projects, to lease district-owned lands for agriculture and other purposes,
to cooperate with soil conservation districts in the control of soil erosion,
and to develop and operate recreational facilities on district-owned land
either independently or in cooperation with other agencies of the State.
Michigan legislation also contains many intricate procedures for the
establishment and maintenance of inland lake levels.136 This activity is
carried out by various agencies jointly or separately. Some of these
agencies are the State Conservation Commission, the county board of su-
pervisors and the drainage commissioner. Some activities here too pro-
vide for petition by interested landholders and the legislation contains
extensive requirements for approval by interested parties.
The law thus far reviewed contains very few provisions for coordinated
control and development. It encourages rather a piecemeal program re-
flecting the needs of localities and special interest groups. There are,
however, some recent provisions tending in another direction. The enabling
law for water-management districts already mentioned is a step toward
comprehensive control. The establishment of the Michigan Water Resources
Commission also indicates some recognition of the need for coordination.
In addition to its power to control pollution, the Commission can make sur-
veys of the use of water in the State and advise in planning for flood control
and drainage.137 Michigan has also ratified the Great Lakes Basin Compact
which declares as its purpose, "the orderly, integrated, and comprehen-
sive development, use, and conservation of the water resources of the...
Basin."138 The Compact establishes a permanent consultative commission
composed of representatives of each of the signatory states. It is to collect,
correlate, interpret, and report on data relevant to the utilization of the
water-resources of the region; and to recommend methods of implementing
the purposes of the Compact. The Commission is to consider the necessity
Sand desirability of public works, and of means for improving navigation
S facilities and fisheries; and it is to recommend the adoption of uniform
laws and additional inter-state agreements. By the terms of the Compact,
the signatories agree to act on the recommendations of the Commission


S 136. Mich. Comp. Laws 8 281.01-281.511 (1948).
137. 3.522 M.S.A.
138. Mich. Pub. Acts 1955, No. 28, at 27.







LAW OF WATER ALLOCATION


relating to stabilization of lake levels, control of pollution, erosion and
floods, hydroelectric development, and water diversion.
B. Michigan's constitution contains a number of limitations on the
power to regulate and develop water resources. Some of the more impor-
tant are mentioned here. Among these the one that probably is at least
in part responsible for Michigan's highly decentralized development pro-
gram and the carrying out of development by private corporations is the
provision in the 1850139 and 1908 constitutions 40 which prohibited the
State from engaging in, or being interested in, or a party to, any work of
internal improvement. Police power activities were excepted but these
were largely the concern of local governments.141 Thus, many functions
were left either to local government or to specially authorized public
corporations. In 1946 the constitutional prohibition was amended to read
as follows:

The state shall not be a party to, nor be interested in any work of internal im-
provement, nor engage in carrying on any such work, except:
1. In the development, improvement and control of or aiding in the develop-
ment, improvement, and control of... harbors of refuge, water-ways ...
2. In the development, improvement and control of... rivers, streams,
lakes and water levels, for purposes of drainage, public health, control
of flood waters, and soil erosion .. 142

While this provision does not explicitly provide for improvements for the
general purpose of achieving the most beneficial utilization of state water
resources, it is perhaps broad enough to authorize almost any type of
project.

139. Mich. Const. art. 14 8 9 (1850).
140. Mich. Const. art. X, 14. The 1850 provision was probably a result of
financial embarrassment to the State following the panic of 1837. See Bay City v.
State Treasurer, 23 Mich. 449 (1871); Attorney Gen. v. ex. rel. Barbour Pingree,
120 Mich. 550, 79 N.W. 814 (1899). The prohibition was held to apply to the State,
Ryerson v. Utley, 16 Mich. 269 (1868) (invalidating State Act to improve Michigan
River of navigation) and to local government units, see Bay City and Pingree cases,
supra.
141. Mich. Const. art. VIII, if 22, 23; Young v. Ann Arbor, 267 Mich. 241, 255
N.W. 579, (1934); Gilbert v. Traverse City, 267 Mich. 255 N.W. 285 (1934). A
river could be widened to facilitate sewage disposal. Brady v. Hayward, 114 Mich.
326, 72 N.W. 233 (1897); projects for the development of disposal of water were
permissible if in the same category as parks, hospitals, sewage systems and
waterworks; Att. Gen. v. Pingree, 120 Mich. 550, 79 N.W. 814 (1899); see also
Attorney Gen. v. Detroit Common Council, 148 Mich. 71, 111 N.W. 860 (1907);.
Gilbert v. Traverse City, supra. There was also an exception for self-liquidating
projects, see Drain Comm'r of Oakland County v. Royal Oak, 306 Mich. 124, 10
N.W. 2d 435.
142. Mich. Const. art X, 14.






MICHIGAN WATER LAW


The Michigan constitution allows the usual regulation of the use of
property, including rights to water, under the police power, as well as
certain special provisions, and it provides that if the State's activity
amounts to a taking of property compensation must be paid. Rights to the
use of water are property rights but some regulation without compensation
has been upheld, largely in the field of water transportation. Examples of
measures upheld are those regulating the floating of logs,143 those pro-
viding for the construction of improvement and prohibiting the obstruction
of streams,144 and those providing for the charging of tolls on streams im-
proved pursuant to state authorization.145 As stated by the Michigan Su-
preme Court:

...(T)he navigable waters of the territory (of Michigan) were placed on the
same footing with the navigable waters of the United States, the use of which is
forever free, but which are, nevertheless, subject to state control and regula-
tion, and may be improved by the states, or bridged or dammed under their
legislation, whenever the convenience of trade, traffic and travel in all its in-
finite forms shall seem to require it .... The state may, therefore, improve
the natural highways by water, and they may improve the intersecting highways,
even though the result may be that the use of the highways be water is thereby
to some extent impeded. Free navigation... does not necessarily mean naviga-
tion of the streams in their natural condition unobstructed and unimpeded...146

Moreover, in recent cases the state anti-pollution law seems to have been
regarded as a proper police-power measure.147 These cases are not too
authoritative, however, since no basic constitutional question seems to
have been argued.
On the other hand, the erection of a bridge which interfered with a ri-
parian's use of his property has been held to constitute a taking.148 So has
the fixing by the city of a dockline which included part of a riparian's
upland premises.149 Nor has a city been permitted to improve a highway


143. Crane Lumber Co. v. Bellows, 117 Mich. 482, 76 N.W. 67 (1898).
144. Lincoln v. Davis, 53 Mich. 375, 19 N.W. 103 (1884).
145. Attorney Gen. ex rel. Benjamin v. Manistee River Improvement Co., 42
Mich. 628, 4 N.W. 483 (1880).
146. Attorney Gen. ex rel. Benjamin v. Manistee River Improvement Co., supra
,' note 145 at 634, 4 N.W. at 486-87; see also La Plaisance Bay Harbor Co. v. Coun-
cil of City of Monroe, Walk, Ch. 155 (1843).
147. People ex rel. Stream Control Comm'n v. Port Huron, 305 Mich. 153,
9 N.W. 2d 41 (1943); City of Niles v. Stream Control Comm'n., 296 Mich. 650, 296
N.W. 713 (1941). On the validity of the Health Commissioner's power to order the
"abatement of a nuisance" by requiring improvements, see Detroit v. Highland
Park, 186 Mich. 166, 152 N.W. 1002 (1915).
148. Maxwell v. Bay City Bridge Co., 46 Mich. 278, 9 N.W. 410 (1881).
149. Grand Rapids v. Powers, 89 Mich. 94, 50 N.W. 661 (1891).


I






LAW OF WATER ALLOCATION


so as to cause interference with the flow of water to a riparian's mill. In
Stock v. Jefferson Tp.,150 the court's opinion was very definite on this
point:
It is urged... that [complainant's] right to maintain his dam and to use the
water that would naturally come to his mill must give way to the right of the
public to improve the highways, to drain lands, and to generally improve the
country. It is sufficient reply to this argument to say that it has long been the
fundamental law of the land that a man is not to be deprived of his property
without due process of law, and without compensation.
Similar expressions can be found in a number of cases dealing with the
pollution of water by cities and possible municipal interference with ri-
parian rights resulting from using lakes and streams as a source of water
supply. In People v. Hulbert151 the court held that a city under its police
power cannot stop bathing by riparians on inland lakes in order to insure
a pure water.supply. In Dohany v. Birminghaml52 the court stated:
... No public necessity warrants a city in injuring the rights of riparian owners
by polluting a stream with its sewers; such rights are protected by the Consti-
tution and cannot be taken away except by due process of law.
However, a legislative finding of public need might possibly enlarge the
scope of municipal powers, at least over navigable waters. In Loranger
v. City of Flint153 the court, by an equally divided vote, upheld a ruling be-
low that the city could not take all its water supply from a navigable
stream to the injury of other riparians. Half the judges held that a city
has a superior right but even the opinion that opposed the city's taking
without compensation stated: "It is possible the time may come when the
paramount necessity of a city to use the water of a navigable stream for
domestic purposes will become so pressing that legislative action will be
justified in changing the rule now existing... "154
In addition to limitations on the police power, the Michigan constitution
contains the usual restriction that even when the property is taken and
compensation is paid through condemnation, the condemnation must be for
a public purpose. The constitution adds further somewhat unusual re-
striction that the taking must be justified and limited by public necessity.
The prevailing practice in other states is to consider the issue of neces-
sity a legislative matter, but the Michigan constitution gives the final say

150. 114 Mich. 356, 361-62, 72 N.W. 132, 134 (1897); see also Smith v. Eaton
Tp., 138 Mich. 511, 101 N.W. 661 (1904) (disturbance of natural drainage by high-
way building).
151. 131 Mich. 156, 91 N.W. 211 (1902).
152. 301 Mich. 30, 41, 2 N.W. 2d 907, 909 (1942); accord, Attorney Gen. ex rel.
Emmons v. Grand Rapids, 175 Mich. 503, 141 N.W. 890, (1913).
153. 185 Mich. 454, 152 N.W. 251 (1915).
154. Loranger v. City of Flint, supra at 472, 152 N.W. at 256.







MICHIGAN WATER LAW


to the fact-finders in a condemnation proceeding. These pass not only on
the question of whether the particular property is needed for the entire
project itself. The project does not have to be indispensable or impera-
tive but it must be sufficiently convenient and beneficial to the public to
warrant the expense. Michigan statutes authorizing condemnation fre-
quently provide that the condemning agency make a finding that the taking
is required by public necessity. Where an agency has specifically made
such a finding, it constitutes prima facie evidence.155
The rule that condemnation be for a public purpose and required by
public necessity has resulted in invalidation of condemnation of land for
flooding to serve the needs of a mill;156 and in the invalidation of legisla-
tion which did not contain specific limitations on the power to condemn.
For example, in one statute a transportation corporation was empowered
to condemn for transportation purposes and the improvement of naviga-
tion,'57 but the state did not specifically limit the power to these public
purposes. The court found that since the general powers of the corpora-
tion included the creation and selling of water power, the power to con-
demn might be so used for this purpose. In holding the statute unconsti-
tutional the court commented: "The taking is not limited to what is
required by the public necessities in the improvement of the navigability
of the stream, and the law contains no provision by which the taking can
be limited to such public necessities."158 It has also been held that con-
demnation by the State for purposes of conveying property to the United
States is unconstitutional.59
To complete this brief summary, a few remarks are added on the
measure of damages in Michigan condemnation proceedings. These dam-
ages often are not merely the owner's actual loss. He is entitled to be
compensated for "the most profitable and advantageous use" that can be
Made of the land.160 In City of Allegan v. Vonasek161 the trial court sought
to circumscribe this rule somewhat by charging the jury as follows:
'Evidence has been offered... that certain parcels of land were more valuable
because they could be used as part of a plan for the construction of a hydro-
electric plant....
155. See City of Allegan v. Vonasek, 261 Mich. 16, 245 N.W. 557 (1932); Com-
missioners of Parks and Boulevards of Detroit v. Moseta, 91 Mich. 149, 51 N.W.
903 (1892); Ziegel v. Board of Road Commissioners of Genesee County, 241 Mich.
'' 161, 216 N.W. 426 (1927).
156. Ryerson v. Brown, 35 Mich. 333 (1877).
157. Mich. Comp. Laws 486.109 (6) (1948).
158. Berrien Springs Water Power Co. v. Berrien Circuit Judge, 133 Mich. 48,
53, 94 N.W. 379, 381 (1903).
159. People ex rel. Trombly v. Humphrey, 23 Mich. 471 (1871).
160. Village of Ecorse v. Toledo, C.S. & D. Ry., 213 Mich. 445, 447, 182 N.W.
138, 139 (1921).
161. 269 Mich. 310, 314, 243 N.W. 14, 15-16 (1932).






LAW OF WATER ALLOCATION


S.. It must appear that it is reasonably probable that all other lands necessary
for such project could be acquired by the one owning the lands, and who seeks
damages for such use. There must be something more than a possibility; there
must be a reasonable probability... and such probable use must be such as af-
fects the market value under normal conditions.' (Emphasis added).

The Supreme Court modified this instruction by adopting the theory of
the Virginia Court in Rankin v. Harrisonburg:162

'Although no one of the riparian proprietors owns the banks on both sides of
the stream, nor has the right to erect a dam across it, and no two or more of
them, as co-tenants, owns said banks or have the right to erect a dam across
it, yet each owns an interest in the power furnished by the stream, although not
actually applied, which may be united in one ownership, or be held as cotenants,
and this interest cannot be taken for public use without making just compensa-
tion to the owner thereof.'163

The Court added, however, that the Rankin case must be followed in such
a way as to limit consideration to "such uses as may be applied in the
immediate future." And when the case again came before the Appellate
Court it held that the value of the land for the city's use could not be
taken into consideration and that the fact that the city owned some of the
land needed to erect a private power plant was evidence that the land of
those seeking damages could not be used for power purposes because it
is improbable that a private person could take from the city lands that it
had acquired for a public purpose. At least as far as the circumstances
of this case are concerned, the Supreme Court's position ultimately did
not seem to differ greatly from that originally adopted by the trial court.16

162. 104 Va. 524, 52 S.E. 555 (1905).
163. City of Allegan v. Vonasek, supra note 155 at 316, 243 N.W. at 16; see 261
Mich. 16, 245 N.W. 557 (1932) for disposition on second appeal; see also Hale,
Value to the Taker in Condemnation Cases 31 Colum. L. Rev. 1 (1931).
164. If one can legitimately include certain judicial remedies as part of the
picture of state regulation, those of nuisance and negligence come to mind. See,
e., Dohany v. Birmingham, 301 Mich. 30, 2 N.W. 2d 907 (1942) (nuisance); Sea-
man v. City of Marshall, 116 Mich. 327, 74 N.W. 484 (1898) (negligence); Brady v.
Detroit Steel & Spring Co., 102 Mich. 277, 60 N.W. 687 (1894) (nuisance). The
Court has held that a devree for the abatement of a nuisance ordering the increase
of the size of a sewer at the expense of both parties who were deemed jointly re-
sponsible, did not involve the "taking of property". Detroit v. Highland Park, 186
Mich. 166, 152 N.W. 1002 (1915).
The federal power over the navigable streams includes injury to the stream
bed without liability. Private property rights are held subject to the Federal
servitude. United States v. Kansas City Life Ins. Co., 339 United States 799 (1950);
Lewis Blue Point Oyster Cultivation Co. v. Briggs 229 U.S. 82 (1913); United States
v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913). The last mentioned case







MICHIGAN WATER LAW


PART II-EVALUATION
by David Haber *

PROTECTION OF INVESTMENT, THE PUBLIC INTEREST
AND STATE WATER POLICY

In recent years many discussions of water rights laws have revolved
around two major issues: Does the law adequately protect private invest-
ment, and does it give sufficient consideration to the public's interest in
optimum water use? Since this way of discussing water law has become
fairly familiar and since it is capable of yielding some fruitful conclu-
sions, the evaluation of Michigan law which follows will begin by focusing
on the extent to which the investment-protection and public-interest goals
are achieved. The law's success or failure to meet each goal separately
is discussed first. Next, the relationship of these goals to one another is
considered, and the broad outline of a water policy designed to achieve
both goals is suggested. This policy is finally translated into an outline
for possible legislative change.
Of course, the actual effect of the present law cannot be analyzed here
because the material available is insufficient, but it is possible to evaluate
the law's structure and therefore its promise. Unless the law in practice
has been interpreted that no one owns the running water of a navigable stream as
against the navigation power of the United States, United States v. Willow River
Power Co., 324 U.S. 499 (1945); see also United States v. Appalachian Electric
Power Co., 311 U.S. 377 (1940). Even where as a result of federal construction to
improve navigation the riparian has been barred altogether from access to the
water, the Supreme Court has held that there was no "taking" but only an incidental
injury for which there is no compensation, Scranton v. Wheeler, 179 U.S. 141 (1900).
Not only improvement of navigation on a navigable stream but also flood control
and the generation of electric power have been held to be valid exercises of the
federal power under the commerce clause. See cases cited in Note, Power Site
Value in Eminent Domain Proceedings: A New Toll Charge for Water Resource
Development, 65 Yale L.J. 96, 97 (1955). And a navigable stream has been
held to include the non-navigable stretches of a river, Oklahoma ex rel. Phillips
v. Guy F. Atkinson Co., 313 U.S. 508 (1941). But the Court has not yet decided
whether the federal government's servitude is as broad as its power over com-
merce. Note, Yale L.J., supra. In federal condemnation proceedings, compensa-
tion is generally not awarded for the value in the flow of the stream since it is "a
value that inheres in the Government's servitude and one that the Government can
grant or withhold as it chooses", United States v. Twin City Power Co., 76 S. Ct.
259, 261 (1956); see also United States v. Appalachian Elec. Power Co., 311 U.S.
377'(1940). For a documented discussion of the scope of Federal intervention,
see Federalism, Mature and Emergent, 328-51 (MacMahon ed. 1955); VI A. Ameri-
can Law of Property 156-201 (Casher ed. 1954); III U.S. President's Water Re-
sources Policy Comm'n, Water Resources Law (1950).
Professor of Law, Rutgers Law School






LAW OF WATER ALLOCATION


achieves far more than one may expect from its structure, the conclusions
reached here ought to be accurate enough to be of some aid to those look-
ing for guidance in considering or drafting new legislation.


PROTECTION OF INVESTMENT

Investment protection has always been a major goal of our economic
and legal system which does not countenance arbitrary interference. Even
interference justified by consideration of the public interest must be paid
for if substantial and if there is no sound reason for the investor bearing
the entire cost. Indeed, the public interest itself often may require that
investment be protected to encourage private economic development neces-
sary to community well-being. Yet the law of riparian rights and other
aspects of Michigan water law contain much that tends to make investment
hazardous.
The law of riparian rights has been frequently criticized on this account
mainly because it fails to assign specific quantities of water to particular
users for all time, and in part because the basis on which it makes its
flexible allocation is the exceedingly vague reasonable-use concept. At
present "reasonable use" has not been elaborated beyond the listing of
various factors. The relationship of these factors to one another has not
been spelled out and they have not been consistently applied.
"First use" is one of these factors, and were it to amount to an absolute
preference for the first user it would give some investment protection,
either in injunction proceedings against a contemplated use, or in dis-
couraging a potential user from making investments where he knows he
would interfere with a previous user. But "first use" as a factor in de-
termining reasonable use has not been explicitly applied in every case,
nor is it clear what weight this factor is to be given in relation to other
factors.
Even one making a reasonable.use is not always protected. His use
may conflict with another reasonable use and the courts' failure to appor-
tion water may result in one of the reasonable users bearing all the loss.
The one preferred will often be the upper user or the domestic user, but
even they have no absolute assurance. The upper user is not safe unless
he is uppermost, and the domestic user though considerably safer might
still lose to another domestic user.
Moreover, many uses have not yet been tested adequately before the
courts and one cannot say whether they will be considered under the rea-
sonable-use concept at all or be declared non-riparian or "unreasonable"
per se. Most consumptive uses are in this category including the use of
water for irrigation, which has grown in importance in recent years. The
one case dealing With irrigation did not allow it to interfere with domestic
users. It may be that in competition with non-domestic riparians, a rea-







MICHIGAN WATER LAW


sonable use of water for irrigation will be permitted. But until a case so
holds, irrigation investment would seem to be exceedingly hazardous.
The courts have not yet decided what part of the land touching the
stream is "riparian." A limit such as the watershed or the smallest tract
in the chain of title could still be imposed, leaving many who thought them-
selves riparians unprotected with respect to uses on some of their land.
Until the courts fix a limit or declare that all land touching the stream at
one point and under a single ownership is riparian, investments connected
with using water on places considerably distant from the stream seem
risky. Moreover, as a result, the modicum of certainty produced by the
preference for riparians against non-riparians is greatly qualified.
Not only the riparian law but other aspects of Michigan water law pro-
duce uncertainty because of the many issues that thus far remain unde-
termined by the courts. A riparian might unexpectedly be stopped from
using his water because it turns out that he is located on public waters and
that his use interferes with public rights of fighting and fowling. The defi-
nition of "public waters" has undergone constant change and seems open
to further extension, and one cannot be too certain of the scope of public
rights in the future. The law of diffused surface water moreover has not
yet dealt with use-allocation questions, and rights to use "diffused ground
water" are somewhat hazy. In fact, it is possible that in some conflicts
between users of "percolating" water the court might still apply the rule
that each can use all he can get-a rule which gives no one any reasonable
assurance. Finally, no law seems to have been developed to deal with con-
flicts between those drawing their supply from water in different phases
of the hydrologic cycle. For example, it is not clear what protection a
stream-water user has against one who drills a well which interferes with
the stream's source of supply, or what protection a ground-water user is
entitled to against one whose consumption of diffused surface water dim-
inishes the flow of seepage water supplying the well.
Some aspects of the law do tend to protect investment. There is, of
course, the constitutional protection against "taking" which has been ap-
plied to water rights; and prescription is a means of acquiring definite
rights in a limited number of situations. Moreover, investors will not be
enjoined when sued by non-users, nor will the courts in balancing the equi-
ties enjoin the large investor for the benefit of a smaller one. Yet, the
1 smaller investor will be awarded damages, and where these do not exceed
the value of the water to the large investor, both tend to be protected from
incurring serious losses. To these established rules should be added some
directions which the Michigan law might take in view of the trend of de-
cisions and the absence of contrary precedents. The decisions leave the
way open for extension of a "reasonable-use" rule to all ground-water
and diffused surface-water use-allocation situations-a rule preferable to
the catch-as-catch-can rule which seems to have been established in other
jurisdictions. It is even possible that "reasonable use" will come to mean


J






LAW OF WATER ALLOCATION


the same for water in all phases of the hydrologic cycle, which would open
the way for unified administration and protect users of stream water
against interference from ground-water users, and so on. Another pos-
sible development is the court's issuance of decrees prescribing appor-
tionment of water or physical solutions, thus apportioning the loss in the
frequent conflicts between two users who both have made extensive in-
ments prior to the law suit. While the courts have generally not appor-
tioned water and have rarely ordered physical improvements in conflicts
between two riparians, there is no precedent in Michigan prohibiting the
granting of such remedies.


THE PUBLIC INTEREST

The public interest in water allocation is to conserve the resource and
to provide for its utilization in such a way as to produce the greatest eco-
nomic and cultural value. This implies that water should be allocated so
that after a consideration of alternative sources of supply and alternative
benefits and cost, the water ultimately is made available to those who can
produce the greatest value for the community.
The Michigan law has not entirely ignored these considerations. The
courts have not encouraged waste of water as in some other jurisdictions.
Non-users seem unable to obtain an injunction nor more than nominal dam-
ages for past injury, and in balancing the equities the courts have explicitly
considered the prosperity to the community brought about by the defen-
dant's use. Under riparian law the reasonable-use concept itself involves
consideration of many factors relevant to a determination of relative bene-
fit to the community, and since no one obtains a fixed right to a given
quantity of water, future enterprises more beneficial to the community
are in a position to obtain water now allocated to others. However, there
is little evidence that the courts have taken full advantage of these poten-
tialities of the riparian law. Community-benefit criteria have not been
consistently applied, nor has their relationship to other factors designed
to protect investment been stated explicitly. And considerations relevant
to appraising relative community-benefit, such as the availability of al-
ternative sources of supply or the pattern of use made by others than the
litigants, have seldom been taken into account.
Moreover, general preferences tend to obstruct flexibility and conse-
quently tend to prevent an independent appraisal of relative community-
benefit in each instance. Of these, the preference for the upper user bears
no relation to community-benefit in a climate where evaporation losses
are probably not too great. The preference for riparians against non-
riparians can at best be justified on the theory that more water would be
lost by a use on non-riparian land. But the use on non-contiguous land
might be more proximate to the stream than some uses on contiguous land,






MICHIGAN WATER LAW


with the possible consequence that less water is lost in transport. More-
over, only some of the water transported to non-riparian land will be lost
by evaporation, and any greater seepage "losses" will increase ground-
water supplies. Where water is transported beyond the watershed, it will
in part "return" to another stream. The community at times might bene-
fit more from ground-water uses and uses on other streams than from
always saving the return water for the stream from which it was taken;
yet, the preference for riparians does not permit the court to consider
these possibilities. However, in not yet limiting the extent of riparian
land to the watershed or some other arbitrary boundary, Michigan law
has retained some flexibility, though one cannot be certain, as noted be-
fore, that an arbitrary limit will not be established in the future.
Other preferences for domestic use and for public usesoh public wa-
ters, though likely to produce desirable results in certain instances, are
probably inadequate generalizations of what best serves the community
interest at all times. Frequently, other uses may be more important to
the community than the recreation uses now always protected on certain
lakes and streams; or, at times, sportsmen may be in a better position
than other users to avail themselves of alternative waters. Moreover,
the criterion for "public waters" on which recreation uses are preferred
bears no apparent relation to the relative community-benefit of competing
uses which this preference might foreclose as compared to the benefit of
competing uses on non-public waters, immune from public interference.
While the domestic-use preference might be justified as beneficial to
the community because it guarantees water for subsistence needs, it
should be pointed out that at times the use of a ground-water source in-
stead might accomplish the same purpose, and that stock-watering and
swimming probably amount to more than the landowner's minimum needs.
Moreover, the preference for domestic use as a generalization of what
best serves the community should be compared to the status of municipal
water supply which is not a preferred use and may frequently be pro-
hibited absolutely from interfering with riparians where, as will often be
the case, the use of water is not on riparian land and is characterized by
the courts as not for a riparian purpose.
Because of the undeveloped state of the law, little can be said about
community-benefit considerations in diffused surface- and ground-water
? allocation and in distribution between users of water in different phases
of the hydrologic cycle. If, as noted before, the riparian version of rea-
sonable use gradually is applied to all these uses of water, community
benefit will be a controlling factor to the extent that it is incorporated in
the riparian reasonable-use criterion. However, as the law of percolating
waters stands today, the possibility previously noted that those who do not
transport water may still be allowed to use all they can get, introduces a
rule of chaos detrimental to the public interest and seemingly based on an
entirely irrelevant distinction between transporters and non-transporters.






LAW OF WATER ALLOCATION


For while some of the water not transported might return to the ground in
the vicinity where it is withdrawn, for use by persons in the general area,
the public interest may at times be better served if the returning water is
used by persons in the vicinity of the place to which the water is taken.
A final word needs to be added about prescription. The rights obtained
thereunder cut down the flexibility of Michigan water law. A definite
amount of water is generally allocated to one who obtains a prescriptive
right. The allocation will be forever except in some instances where for-
feiture might occur after a long period of non-use. Not only does pre-
scription thus reduce flexibility but the prescription law contains other
elements which make it totally unrelated to any considerations of the pub-
lic interest. To illustrate, why should it be possible to obtain a prescrip-
tive right only against a downstream user? On the other hand, at times
prescription helps to reduce some of the rigidity of present water-alloca-
tion law. For example, it enables a non-riparian to obtain rights against
downstream riparians.


RELATIONSHIP BETWEEN PUBLIC INTEREST
AND PROTECTION OF INVESTMENT

The discussion thus far has been incomplete and perhaps misleading
because of its isolated treatment of the two postulated goals of protection
of investment and benefit to the public interest. Some of the previous
critical statements hold true even when their relationship is taken into
account. The non-riparian's inability to acquire a right to use water en-
forceable against riparians tends to be a rule contrary to the public inter-
est without substantially increasing protection of investment. The law's
vagueness in certain areas, when due simply to its lack of development,
makes investment hazardous without necessarily benefiting the public
interest.
However, a number of the previous conclusions require further analy-
sis in terms of the relationship between the two assumed goals of a water-
allocation law. For example, it was shown that prescription helps protect
investment but that it tends to interfere with the law's flexibility which
tends to further the public interest. Similarly, flexibility while beneficial
to the public interest tends to make investment hazardous. Without fur-
ther analysis, prescription and flexibility cannot be said to be either de-
sirable or undesirable. Moreover, the law's adamant preference for
domestic users, while interfering with flexibility, may, in addition to re-
flecting a generalization that the water is always needed for life and
health, be based on a notion that domestic users are not in as good a po-
sition to pay for water rights or to develop new water as, for example,
municipalities which also benefit the public interest. It is further appar-
ent that in some instances where the public-interest factor seems to be







MICHIGAN WATER LAW


disregarded, the damages awarded might simply reflect the loss to the
investor and the legitimate cost the user who more greatly benefits the
public interest is able to pay. And in some instances where the law seems
to disregard the protection-of-investment factor, there might not be any
loss because the investor's past income has sufficiently made up for it.
Even where an injunction is granted rather than damages against the user
whose use more greatly benefits the public interest, he might be able to
purchase water rights at a cost that he is able to pay.
In fact, one might at first glance think of the possible purchase and sale
of water rights as an adequate water use regulator, and conclude that one
need not be concerned with changes in the law. The least a person, who
contemplates a new use that totally interferes with the previous use,
would have to pay is a price slightly higher than what the water, the un-
usable or unsalable equipment and other related assets are worth to the
previous user. This amount would seem to provide adequate investment
protection under our economic system and would also, at first glance,
seem to be the amount a new user should be able to pay so as to assure
optimum productivity in the public interest. Where the new user's pro-
ductivity does not justify his paying this price, the total cost to the com-
munity of the new use, which includes the scrapping of the previous user's
assets, would not be justified by the benefit that the community derives.
For then the combined productivity of the resources employed in the pre-
vious use (if continued) and of the additional resources that would have been
employed in the new use (if employed elsewhere) would be greater than the
productivity of the new use alone. This would seem to indicate that the pur-
chase and sale of water rights at the same time adequately protects invest-
ment and insures the best utilization of resources in the public interest.
In practice, however, the possibility of purchase and sale of water, es-
pecially under present water law, will not necessarily result in a water
use pattern which favors the public interest while affording adequate pro-
tection of investment. Under the present law, a present user might lose
his rights without receiving any compensation and it is not clear that the
user to whom he loses the right is necessarily more productive. In fact,
a present user might sell at a value less than what the water and other
assets are worth to him, in order to avoid possible loss in court of his
right without being awarded compensation. Under such circumstances,
According to the previous analysis, the buyer's productivity might not jus-
tify allocation of the water to him. In other instances, potential sellers
might prevent the use of the water in the public interest by making wrong
guesses about what the water's future market might be. The chances that
such speculation will distort a smooth working of the buying-selling pro-
cess are increased by the fact that to gain anything substantial one who
wants to use water on non-riparian land must do more than simply buy the
right which a single riparian has against other riparians. He must buy
from all the riparians whose use he might affect or who in turn might






LAW OF WATER ALLOCATION


affect his use. Similarly, even one intending to make use of the water only
on riparian land (either as a purchaser or lessee of riparian land, or as
one holding a lesser interest) would buy a very uncertain right if he pur-
chases from one riparian only. To be sure of a given quantity of water,
he must contract with all the interrelated present or potential water users;
a desire to speculate on the part of only one of these might make it im-
possible to purchase. Moreover, each of the interrelated present and po-
tential users with whom a potential buyer might contract would be so un-
certain of the extent of his right as against the rights of others that it
would be difficult for him to know what proportion of the total offering
price he can rightfully demand. Of course, some, though not all, of the
above difficulties might be overcome, provided there were no constitu-
tional obstacles, if a public agency were to condemn water and then sell
it to private users at a price approximating the cost.
There are, however, further elements in the purchase-sale process
which tend to make it not too effective a regulator for protecting the pub-
lic interest. Without exhausting the list, the following are offered by way
of example. It might be desirable that the water policy favor optimum
productivity for the state. The purchase-sale mechanism frequently tends
to reflect the cost-benefit ratio for the nation, which does not necessarily
satisfy local considerations. Furthermore, many uses of water may pro-
duce benefits to the public that are not measurable in money terms, or,
even if so measurable, are not revenue-producing. One reason might be
that they benefit those who can least afford to pay, so that money to pay
for these benefits would have to come out of taxes disproportionate to the
benefit received. The desirability of levying such taxes is a matter of tax
policy which involves many other independent considerations. Moreover,
the market might be imperfect for reasons of lack of competition. A
monopoly might be able to pay a higher price for water, even though it is
less productive than another user.
Thus, one may assume that a pattern of use achieving optimum public
benefit in a particular state or local area is not necessarily produced by
the purchase and sale of water rights. An optimum use-pattern will ex-
clude some who are able to pay more for the water. And those included
may not even be able to pay as a minimum the amount that the water and
other unusable assets are worth to the previous investors. Consequently,
a policy that achieves a balance between the public interest and invest-
ment protection will grant investors a lesser amount so as to assure the
availability of more water for the benefit of the public if this lesser amount
is sufficient to render investments reasonably safe. For example, the un-
realized original outlay for unusable and unsalable capital, including any
payment for water rights, plus a fixed percentage of profit, might be a
sufficient guarantee to encourage investment. This amount might then be
minimum compensation awarded to previous investors, unless because of
general economic conditions their unusable assets and water are worth
less to them.







MICHIGAN WATER LAW


The structure of any policy that seeks to further the public interest and
protect investment at the same time thus seems to contain at least these
major variables. One variable is the pattern of use that produces optimum
public benefit. Another is the amount of money made available by the gov-
ernment as a matter of general policy, plus the amount that water users
are able to pay for water. And finally, there is the cost of development
and improvement to make more water available, plus the cost of minimum
payments to previous investors. The final development and use pattern
will achieve that optimum benefit to the community that is available at a
cost not exceeding contributions by the government and the amount users
are able to pay for the water, where minimum compensation to previous
investors is one of the items of cost. Previous users would, however, at
times receive more than this minimum compensation. This would be
true, where, though the best water-use pattern feasible in the light of gen-
eral physical and economic limitations is put into effect, the cost of de-
velopment, plus minimum compensation payments, would not exhaust
available funds.


ADMINISTRATION

When compared to the structure just outlined, the water rights law of
Michigan seems inadequate for achieving the proper balance between pub-
lic benefit and protection of investment. It contains many elements that
seem anachronistic, like prescription, some of the generalized preferences,
and also the possibility that different phases of the hydrologic cycle will
be treated differently. Furthermore, as has been shown, with respect to
many water use problems there is virtually no law, and even where it is
most developed, namely, the reasonable-use rule of the riparian law, the
law may be said at best to contain the correct philosophy and a list of
many elements that should be considered in carrying it out. But the inter-
relationship of elements is not sufficiently spelled out and the remedies
adopted are too inflexible to lead one to believe that except by coincidence
a proper water-use policy is likely to be reflected by the outcome of fu-
ture cases.
This does not necessarily mean that judicial administration could not
S be made more adequate. But it will probably take legislation to do so. The
final draft of this legislation will require a good deal of further coopera-
tive work by policy-makers, engineers, economists and lawyers. Some
elements of the legislation can be pointed to, however. It will state that
it is a police power measure to secure optimum use and conservation of
water in the public interest, which at the same time seeks to protect the
interest of previous investors. The courts will be authorized to issue
water apportionment decrees that include orders for improvement and
small-scale development, and provisions requiring water users to com-
pensate those making improvements and previous investors. The statute







LAW OF WATER ALLOCATION


will provide that apportionment decrees establish that optimum use pat-
tern which will not cost more than those who will ultimately use the water
are able to pay, where one of the items of cost is minimum compensation
to previous investors. The power to apportion water will include the po-
wer to reserve water for future use and to allocate water for a fixed pe-
riod of time. To the extent that they can be generalized, the statute will
establish standards under which the courts can decide what constitutes a
use pattern productive of greatest public benefit; what the amount is that
the various users are able to pay for water; and what the amount of min-
imum compensation to previous investors must be. If the standard for an
optimum use pattern cannot be generalized in such a way as to be very
helpful to the courts, a state agency might be created to formulate water
use plans for the state and various regions within the state taking into
account, among other things, relatively large-scale government develop-
ment projects and state police power regulation of water use, such as
anti-pollution measures. This agency can be empowered to intervene in
water allocation proceedings to represent the public interest and to pro-
pose to the court optimum use patterns in accordance with the state or
regional water use plans. It might even be empowered to initiate such pro-
ceedings. Of course, any present or prospective user will be able to initi-
ate water allocation proceedings and to join all other interrelated users
as party defendants. Since this will give any prospective user a chance to
find out what rights he has for the present, no one who invests in water
use operations after the effective date of the statute and who does not at-
tain court approval will be guaranteed minimum investment protection in
a subsequent proceeding in which his water supply is stopped or cut down.
The statute will also provide for the appointment of special masters by
the courts to handle complicated allocation proceedings. It will further
prescribe that the old distinctions between water in water courses, perco-
lating waters and diffused surface waters will no longer hold and that all
interrelated uses will be considered in one proceeding according to the
statutory standards. In addition, it will declare that it shall no longer be
possible to obtain prescriptive rights. Finally, most generalized prefer-
ences under the riparian law shall be declared to be no longer operative
to the extent that they do not find their way into the statutory standard of
optimum use for public benefit. The one preference that will probably
have to be retained for constitutional reasons is that in favor of public
rights in public waters.
With respect to water in "watercourses," this statute on the whole
simply restates in modern terms a policy that the courts have been at-
tempting to carry out under the riparian rights doctrine, combined with
the principle of Balancing the Conveniences. Of course, more flexible
remedies are provided and it is difficult to predict whether the statute
would be upheld; at least it does not seem to provide for an obvious taking
of "vested rights." The "rights under riparian law" are not fixed but







MICHIGAN WATER LAW


always changing in the light of what seems to be a judicial effort to pro-
tect investment and to further the public interest at the same time. This
seems to be the essential intent of the statute. To some extent the out-
come of cases would differ but this fact alone might not invalidate the pro-
posed law. The courts might give great weight to the legislative compe-
tence to judge what is in the public interest, and to the state's police
power to conserve a scarce and essential natural resource. Elimination
of some of the preferences under riparian law also might not prove to be
too serious an obstacle. The preference for the upper riparian, to the ex-
tent that it is established at all, is largely due to the courts' not appor-
tioning water between two "reasonable" users in the past. Since the
statute provides for apportionment, this preference would no longer be
needed. The preference for domestic use can be looked at as a judicial
view as to what best serves the public interest, an area in which the courts
might defer to the greater legislative competence. The preference for ri-
parian users against non-riparians is a more difficult one. Here it might
be necessary to provide for full compensation rather than the statutory
minimum. However, this preference could be looked at as one that was
necessary only so long as different phases of the hydrologic cycle were
administered separately under what seemed to be separate rules. It
could be regarded as a rule of thumb to prevent the loss to riparians
through evaporation, seepage or run-off to another stream of water that
would have returned to the same stream if used on riparian land. Since
the statute establishes unified administration of all interrelated uses of
water, the riparian-land preference might be regarded as unnecessary.
This unified administration in turn might be upheld as simply reflecting
the trend of the Michigan cases described in earlier sections of this paper.
The proposed legislation would do away with many of the supposed dis-
advantages of judicial administration. There would no longer necessarily
be the case-by-case adjudication between two litigants unrelated to the
total water situation in the State and area. Nor would most cases require
after-the-fact adjudication when the investments have already been made
and the conflict is discovered too late. The supposed judicial incompe-
tence to handle some of the highly specialized problems will to a large
extent be overcome by the educative role the intervening administrative
agency will play and by the possible appointment of masters who are
Specialists.
On the other hand, the proposed allocation proceedings are likely to be
expensive to litigants. Enforcement of complex apportionment decrees
might possibly result in protracted if not everlasting litigation. This
might also prove to be a sufficiently great burden on the judicial system
and require the appointment of more judges. The cost of judges and spe-
cial masters to the state is likely to be much higher than the salaries of
other administrative personnel. From the point of view of carrying out
an integrated water policy, more important than these difficulties is the







428 LAW OF WATER ALLOCATION

fact that large-scale water development projects and other state water
regulation under the police power would be integrated with water-use al-
location only in a fairly indirect way. The courts will have to accept the
state's scheme for using police power regulation and engaging in water
development and the state in turn ultimately will have to accept the court's
water-allocation pattern. Ideally, a pattern of use allocation and a program
of water development are intimately interrelated and should be considered
in terms of possible alternative combinations which produce optimum com-
munity benefit at the least cost. The state water plan or plans submitted
to the courts will accomplish this to some extent, but undoubtedly it would
be more advantageous if the total decision could be made at least initially
by one agency.
The above considerations suggest the alternative of empowering an ad-
ministrative agency or agencies to allocate water to different users. As
was seen, the present Michigan law seems to authorize administrative
decision to condemn, develop and regulate water in many respects. The
statutory and constitutional framework has up to now encouraged decen-
tralized and uncoordinated administration, which probably encourages a
pattern of control reflecting units of government and special interests.
More consideration should be given to a carefully planned approach from
the perspective of the state as a whole. The state's present program of
control and development could be improved by making it conform to state
and regional water plans. These plans could be enforced by the same
state or regional agencies that draw them up by a requirement that local
and specialized agencies must obtain permits to engage in their particu-
lar water activities. These state and regional agencies could also be
given power to initiate development projects of their own. It would of
course be most advantageous if they were also given the authority to issue
permits for all uses of water.
The entire process of allocating water would be similar to the one sug-
gested for a system of judicial administration. Only, the agency or agen-
cies, unlike the judiciary, could supervise directly the total state develop-
ment and regulatory program in working out adequate water-use patterns.
Payment according to ability to pay would under this procedure include
funds that could be raised by taxation, and private users would be required
to participate up to their ability to pay, even in large-scale development
projects. Minimum compensation would still be guaranteed to previous
investors. The water-use pattern would be subject to change as conditions
change in an unanticipated way. Frequently the cost of obtaining water to
the individual user would be less because enforcement would be carried
out on a day-to-day basis by the water-allocating agency, and because the
user would not necessarily have to participate in complex litigation invol-
ving many parties. The agency in considering a number of applications
might in many instances decide, without elaborate proceedings, whether
or not certain proposed uses fit into optimum use pattern. Such decisions






MICHIGAN WATER LAW 429

frequently might not be challenged. Of course, a person denied a permit
would have a right to administrative hearing and judicial review. And
after the agency has decided on a water-use pattern, its allocation scheme
would be submitted to the court for "adjudication". Since the final "adju-
dication" would be by the courts, the proposal for administrative handling
of water-use allocation is not likely to encounter any further constitutional
obstacles.




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