Title: Discussions
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Title: Discussions
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Publisher: The Ronald Press Company
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Discussions
General Note: Box 12, Folder 7 ( The Law of Water Allocation In The Eastern United States - 1956 ), Item 15
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Full Text




DISCUSSION: The taking of unused rights.


MR. BEUSCHER: Once
a brief on this subject and
have to pay for unused rip
agree to in its entirety, bt
body's satisfaction, it doei
stitutional matter, that yol
matter. I think that is faii
it from the viewpoint of st
stitution, and that is the w
MR. RELEASE: I wo
case.* That is the one in
natural flow might be appi
is a distinction between tl
natural-flow rights that w
there did amount to use, t
in the spring when the spi
over the land through slou
grass and hay.
So those were actually
by the Central Valley Pro
those annual floods didn't
high banks which did not I
rights of use were the rig
priated, not rights of non-
MR. MARQUIS: That r
distinction in future litiga
MR. HABER: That poi
tance of it depends on whe
between used and unused
about that distinction but
involved, and it was used
SYou don't know whether tl
effects on used rights if t
ic point of view there is v
used and unused rights. 1
Store. The question is, the
make too much sense to r
the courts might buy it. I
other forms of police pov
But in the case of zoni
prevent the use of proper
other hand, the courts on

See pp. 464-465.


a skilled lawyer like Clyde Fisher has written
has demonstrated, let us say, that you don't
arian rights (which I don't think he would quite
t, let us say, he does) and proves it to every-
m't follow that if you don't have to pay as a con-
i may not want to pay as a moral or political
ly clear, although sometimes we lawyers go at
rictly what you can get away with under the Con-
ay we propose as the way of operating...
ild like to raise just a quibble about the Gerlach
vhich the California Supreme Court said that
*opriated but not necessarily expropriated. There
ose natural-flow rights in California and the
, think of in the eastern states. The natural flow
because of the way those California rivers acted
ing floods hit the! delta land-the river spread
ghs and produced tremendous crops of natural

rights of use that were taken in the Gerlach case
ject, which regulated the flow of the river so that
occur. It was not the right to natural flow by
ave an effect upon the land. So I think that maybe
Ats the supreme court said could not be expro-
use.
lay well be. That could prove a very important
tion.
at was brought up in the paper, and the impor-
ther any court will buy ultimately the distinction
rights. Some occasional opinions have spoken
nostly in cases Where only unused rights were
as an argument in favor of constitutionality.
ose same cases Wouldn't have held constitutional
iey had come up in the case... From an econom-
ery little difference that I can think of between
hey both have an economic value to the proprie-
lifference in value that might arise... It doesn't
ie to make this distinction. But it is true that
'hey have certainly bought such distinctions in
er situations.
ag, the courts have allowed zoning that would
ty in a non-conforming way in the future. On the
the whole have not allowed what would be called







LAW OF WATER ALLOCATION


retroactive zoning, although in recent years some retroactive zoning has
been upheld. Thus, the distinction is gradually disappearing in that field,
as we begin to understand more and more about economic value...
CHAIRMAN MARQUIS: Assuming that distinction was made, wouldn't
there have been some eating of words by those who have said a riparian
right doesn't depend on use or none-use ?...
MR. BEUSCHER: This discussion in the last couple of minutes about
zoning has induced me to get up and stick my neck out and display my ig-
norance as usual. It seems to me that we have to focus a little more
sharply on what we are talking about. We are talking about some people
who have, under property doctrines announced by the courts over a good
many years, so-called unused rights to pump water from a stream. These
riparians also have other rights that we haven't talked about. They have
a right of access to the stream. That is pretty important. Also, in the
kinds of legislation we are thinking about, I take it that typically these
riparians wouldn't be deprived of all their rights to pump. They might
still be permitted to pump for domestic purposes, for instance. I am not
sure that is true in... [the Michigan proposal] but it is true, I think, in
some of the states.
All of this is by way of preliminary to suggest that maybe we ought to
look at this discussion of due process as applied to unused water rights
of riparian owners in the eastern United States as just a small part of the
whole mural that is developing in this country in terms of use rights and
land generally and the regulation of those use rights in the interests of
the public...
For instance... Suppose that instead of regulating these use rights of
riparians through a water-allocation order from a water board, or by
legislation directly from the state legislature, suppose that some county
decided to do it by zoning and just said, in effect, that the users along the
banks of the stream may not pump because pumps are not permitted in
this use-district. That is depriving them of their use rights just as effec-
tively as if there had been an order saying, "You may not use water any
longer for these purposes, since you haven't used it in the past, and we
are going to give that water to somebody else."
On that last point-giving it to somebody else-is it really any differ-
ent-I am talking about zoning still-from zoning the east side of the
highway for farming only and the west side of the highway for commer-
cial development, thereby taking from the eastern owner his commercial
potential value and handing it, as it were, in part at least, to the guy
across the street. What is the difference in economic essence?
It seems to me that some of this discussion, in asking "Don't we have
to bow down and respect these ancient pronouncements about unused ri-
parian property rights ?"-is a lot like the discussions familiar in the
days just before the Euclid case in 1926. There was a great deal of






SYMPOSIUM DISCUSSION


cogitating then about how
have to pay for them ? Yi
the point of paying for so
as, for instance, where y
for the easement, in which
tempted to regulate and t
In the case of zoning,
what convinced the court;
the facts that tended to d4
Sutherland that this had t
in this way, and which we
Why are we interested in
have some reasons-soci
me there is a real good c
used rights without comp
MR. NELSON: I woul<
not be correct which I ha
is that those who have dii
in through non-use are, I
all of this right to water
out that in many cases th
appropriation, if there is
I think we should go oi
times that the law to date
hydrologic cycle; and thai
whole, we may deprive a
of the cycle but we are n<
it; in other words, there i
from developing ground v
sooner or later in the dei
... It is not shutting ol
at all. He can get it from
ground water, in other w,
water, and it is not a quei
MR. SMITH: Several i
to read from the Kansas i
concern: "If any appropri
orized diversion works r
such person shall be entil
law against the appropria
I think that is the section
There have been some
sion I think possibly I sh(
face and the other ground


can we regulate these property rights; don't we
ou remember that some states actually went to
ne of the use rights that were taken by zoning,
)u establish a setback, you would pay the man
h the city went b oke and they gave it up and at-
ike it without compensation.
in the case of that particular land use regulation,
that the regulation was reasonable, I think, were
demonstrate to their satisfaction of even Mr. Justice
) be done, that yqu had to qualify property rights
nt to Mr. Wolmai's sharp question of yesterday:
this legislation ? Do we have any reason? If we
dl, economic reasons for this-then it seems to
chance we can justify this cutting off of these un-
mnsation.
1 like to make an observation which may or may
re gathered in reading all this material, and that
cussed the position that a riparian finds himself
think, assuming that the riparian is going to have
aken away from him. I think it should be pointed
.re is nothing to keep a riparian from getting an
sufficient water in the stream.
e step further. It has been pointed out several
has tended to pigeon-hole several phases of the
: if we would look at the hydrologic cycle as a
riparian of access to water in a certain portion
it depriving him necessarily in another phase of
s nothing that would prevent a riparian, say,
ater on his property. Certainly that has to come
elopment of a section...
[ the value of and allowing a riparian no rights
an appropriation. He can get it from existing
rds. He still has many ways in which he can get
ition of completely shutting him off.
,eferences were made to Kansas... I would like
statute the one sentence that was of particular
ation or the construction and operation of auth-
'sults in an injury to any common law claimant,
led to due compensation upon suitable action of
tor for damages proved for any property taken."
under question.
recent events in Kansas, and with your permis-
uld refer to this under two situations, one sur-
SYou have to remember that all used rights have






LAW OF WATER ALLOCATION


been determined as vested rights.* So that this common law claimant un-
doubtedly refers to the unused right. It is a change of remedy, as you
pointed out. But I think it also is in recognition of the physical situation
which may not be readily understood by all present ...
Our streams out there are quite variable. If you take the case of the
surface water riparian with the unused right, who has the privilege of
seeking compensation for any damage proved, our interpretation of that
surface water, right is that, at such time as he can prove damage, when
we have conditions of minimum stream flow, and when he goes to court,
the right that he can claim, I think, has to be proportionate to all other
rights of all other non-users. The physical facts of the situation reduce
that down to a nominal infinitesimal amount of money... I have always
said that as far as I was concerned it gave me the right to hire a lawyer
to go to court to prove that I didn't have anything to start with ... I think
the physical [situation] is well recognized, because it is interesting to
note that there has been no challenge or no utilization of that portion of
the law in some 11 years now.
The one paramount surface water case is the Knapp case which you
cited, which also is probably not too good an answer because, obviously,
we had one law thrown over by the court, the legislature went in session
and this case came in right away. You know the picture. You can see what
the history was, and many of the powerful statements are pure dicta and
not particularly in issue. So much for the surface water interpretation.
I just wanted to call to mind that a change of remedy [was involved], but I
think the Nebraska court was right in their interpretation of the physical
facts.
Yesterday Dr. Thomas mentioned the situation involving the City of
Wichita and the ground water area.* We have had some development in
the last year on that matter. He pointed out that the landowners there
were unhappy because they were losing the sub-irrigation water... and
they could no longer grow their phreatophytes. There is no doubt that
damage has been sustained to the land. This got into court during the past
year [in the following way].
Under Kansas law, the Chief Engineer has been required to make a
finding as to the vested rights with the passage of the appropriation Act.
He found no vested right for those people. One of the reasons he did not
find a vested right probably comes from the wording of the law, and if you
will allow me, I must read one more sentence here: "He shall make a
finding as to the persons making beneficial use and then the extent of their
uses." You cannot define that type of use [i.e., by sub-irrigation]. There
is no way of measuring it.

Under the appropriation legislation in Kansas in 1945. Kan. Gen. Stats.
82-a-701-82a-722 (1949). Ed.
*See pp. 438-439.






SYMPOSIUM DISCUSSION


He therefore found no
determination. That case
judge Federal court in D
Engineer, but in a decisi
voke the remedy availabi
could collect damages un
have referred to, Mr. Fit
the United States Supren
the Supreme Court will c
CHAIRMAN MARQUIl
MR. ELLIS: I think il
rights. While it is unsett
sure that all or even mo(
Smith has suggested that
is infinitesimal in that tH
parian owners along the
over a period of time ea4
The North Carolina Cl
case... for hydroelectric<
and most profitable use I
likely to be needed in the
as a measure of value bu
for such use affected the
prived of their riparian
Therefore, if we throi
necessarily have to look
everybody will be using 1
consumptive purposes," I
what the foreseeable futu
he is being damaged in tl
use of the water for somi
reasonably near future,
years everybody will be i
worth throwing that in as
may go.
Also, in an earlier ca
and awarded $100 damage
city for taking water, had
That may be nominal dan
stream $100, it could ad(
CHAIRMAN MARQUIS
condemnation of permitti

*See p. 355.
See p. 356.


vested right, and they appealed the vested-right
was ruled on in the last instance by a three-
mnver, which sustained the finding of the Chief
m said that the plaintiffs had not seen fit to in-
a to them, and was obviously implying that they
der the common law claim provision that you
iher. The Denver decision has been appealed to
e Court, and we are now waiting to see whether
choose to review the case.
I: I think that is very enlightening. Thank you.
might be worth mentioning the value of riparian
Led in a number of the eastern states, I am not
t of them would go in the direction that Mr.
they would.:.. in lInsas, which is that the right
ay would have to divide it up among all the ri-
itream, and therefore if they all used the water
h one might be entitled to practically nothing.
)urt, in a 1941 case* which was definitely a water
power purposes, used this rule: "The highest
or which the property is adaptable and needed or
reasonably near future is to be considered, not
t to the full extet that such prospect or demand
market value at the time respondents were de-
ights."
r this into the hands of the local jury, they do not
out and say,, "Well, in 50 years or 100 years
his or wanting to use it for irrigation or other
Mut they simply nake their best judgment as to
re holds. It may be that the fellow that claims
e lawsuit would e able to make considerable
; time to come, sa matter of looking into the
ather than saying, "Surely, over 50 years or 100
Wanting to make use of the water." I think it is
a possible direction in which some of the courts

ie,* in 1924, the (North Carolina] Court approved
,s, where the lower owner, who was suing the
I clearly made nd use whatsoever of the land.
ages, but if you iave to pay everybody on the
I up, too.
I: I am glad you brought that out. That rule in
ng an award based on the highest and best use in


I






LAW OF WATER ALLOCATION


the foreseeable future is also the federal rule. I think the leading case is
Olson v. The United States.





DISCUSSION: Easement holders as riparians; the right to
municipal water supply under the riparian system.


CHAIRMAN MARQUIS: There is one question I would like to pose to
both Mr. Fisher and Mr. Haber before I lose the chance, and that is on this
relatively new thought (at least to me) of looking upon an easement holder
as, in effect, a riparian owner. Assuming that you do, what is the quan-
tum of water that the easement holder may take based on? Reasonable
use, or some other test ? For example, I think in most states it would be
held that the owner of land actually riparian to a stream may sell his right
to take water to a nonriparian, but I would assume that the amount of wa-
ter to be taken would be measured by what could have been used on the ri-
parian land itself.
Can we have the best of all possible worlds by [having the riparian] re-
tain title in fee to the riparian land, enabling him to use water that can be
reasonably used on that land, and also by granting an easement permitting
the use of an additional quantum of water outside that riparian land? Also,
what is the effect of those cases holding that where a municipality owns
land not merely in the form of an easement right, but in fee, along a
stream, it cannot divert water to be used outside the limits of its own land
and in the town generally?
MR. HABER: I am glad you raised that question. It brings up a lot of
related questions. I would like to answer the last one first. I may be
wrong, but under cases that I have read thus far dealing with the munici-
pal diversion problem, there is a very curious thing that I have found.
Very rarely do they stick their neck out quite so far as to say, "This is
bad because it is on non-riparian land."
They speak about the municipal use as a non-riparian purpose. This
is very curious because very often from the ordinary point of view it is
clearly on non-riparian land. The city will own a strip of land for diver-
sion, and then they will transport the water somewhere and sell it. The
emphasis that is made is on the sale. If the cases get beyond the point of
simply saying, "non-riparian purpose" without explaining it, they talk about
the sale of water to inhabitants. These inhabitants are people who are on
all kinds of parcels of land that are not owned by the city at all; they are
within the city limits but they are not owned by the city. It is on that basis
that from a technical point of view that you can distinguish the cases.






SYMPOSIUM DISCUSSION


Then that brings you t
Under the reasonable use
ter was never measured
thing that should be said.
going on on the land, but
many acres of land, you
from the natural flow doc
water only for domestic 1
reasonable use concept, 1
Gradually it made less ai
that.
The cases say, whate
can use on your land can
are making. Certain indu
towns and villages who s<
no longer is for the parti,
So the reasonable use coi
ing the quantity of water
of your operation along tl
and their relative benefit
articulated, but I think yo
tion. But there are few ci
that well developed.
I think one of the most
law is that it has been ch
munity and economic situ
reflection of economic sil
process is somewhat limit
not had much litigation, p
process and what it can d
quite legitimately and fill
system at all. Such legis]
tending the philosophy of
terms of present needs.
measures like that having
There is one other thi
is very interesting; I havi
thing about it is the wated
the riparian land only ext
that it only extends to the
owners, which would natu
water use on nonripariani
stem from western cases
eastern states, I think yol
precedent.


) the other question, as to the quantum of water.
concept as it has developed, the quantum of wa-
.n terms of the extent of land. That is the first
It was indirectly measured in terms of what was
t wasn't really in the sense that, if you owned so
would have so mu h water... When you got away
trine, and from the limitation that you can use
purposes, very limited purposes, and move to the
his notion made no longer too much sense.
Id less sense to talk about a broad measure like

ver you can use on your land," because what you
vary greatly, depending on the kind of use you
strial uses may use as much water as small
11 to their inhabitants. The benefit of that water
;ular land; it is for the community as a whole.
cept implies that what you are doing is measur-
n terms of the relative benefit to the community
is stream in relation to other users of the water
to the community. This is never quite clearly
u can say that the cases are going in that direc-
Lses in recent years and the riparian law is not

important things to remember about the riparian
Lnging constantly; that it has been reflecting com-
ations as they came along; that the incomplete
uations is partlyldue to the fact that the judicial
ted in what it can do. In recent years we have
probably because Of the limitations of the judicial
3, and therefore the legislature might come in
in the gaps without contradicting the riparian
ative action might be considered as merely ex-
the riparian law as it has been developing in
don't think you have to worry about any quantum
been definitely established.
ig I want to mention. The riparian land concept
*n't examined it in all the states. One interesting
shed limitation o0 riparian land, namely, that
snds to the watershed, or another limitation,
smallest tract in the chain of title of the present
rally limit the scope of easements permitting
land. These limitations, as far as I am aware,
SEven though yoi find them mentioned in some
i usually will find a western case cited as a






492 LAW OF WATER ALLOCATION

The interesting thing is that in the West these limitations arose in
order to give greater scope to appropriation, in order to make more water
available from the stream for use away from the stream by appro-
priators. Their intent was to cut down the riparian rights. When you take
these western precedents over into the East and you don't have an appro-
priation system, you are using it for quite the opposite reason. You are
using it to narrow the uses to which the water can be put, while in the
West it was put on to actually broaden the number of uses.
CHAIRMAN MARQUIS: I will follow that with one other question. As-
sume that one accepts that analysis, and I think it is a very good one, one
of the chief difficulties urged against the riparian rights doctrine, of
course, has been that non-riparians cannot get water. Does this offer a
feasible way in which through organization, let us say, of irrigation dis-
tricts, or of any other users who might be granted the power to condemn
easement rights to get the water, you could in effect do away with that
difficulty, and have a situation where non-riparians would have access
through that method virtually on the same basis as riparians, with the
courts supplying the doctrine of reasonable use as applied to all of them?
MR. HABER: I agree with that...
MR. NELSON: I would like to make a comment on municipal use [in
the light of] an Arkansas case which we looked into in preparing our Mis-
sissippi statute. It is known as the Cadron v. The City of Conway case.
It is a recent case, decided in 1954. The circumstances are that in 1930
the City of Conway, which is about 12 miles away from Cadron Creek,
from which it had been drawing its water supply since 1912, built a small
impounding reservoir to keep a pool of water for its pumps; in 1952 the
City replaced this with a concrete dam just across the inside of the stream
channel in Cadron Creek. They didn't flood land. They made a pool of
water that extended up Cadron Creek for about 10 miles.
Beginning in 1952... some of the riparians on the upper part of Cadron
Creek began large-scale irrigation. They removed so much water from
this pool that it interfered with the water supply for the City of Conway,
and the city asked the trial court for an injunction to restrain these up-
stream riparians from pumping water out of the stream whenever the
stream level got to a certain point on the city's dam.
The trial court found that as a reasonable use the upstream riparians
were permitted to pump as long as there was six feet or more of water be-
hind the dam, but when less than six feet that the defendants were enjoined
from pumping or using the water of Cadron Creek. That was appealed to
the Supreme Court of Arkansas, and the Supreme Court reversed that, and
held that the trial court had erred in holding that the City of Conway had
the right to seize and use for its own use all the water impounded by its
dam in Cadron Creek when the level fell below six feet. It held that the
City of Conway's riparian rights were the same as those of any other ri-
parian-no greater, that the law of riparian rights came into play only








when there was a shortage
right to have the water fli
of the things that it had
Justice MacFadden, in
were the riparians in this
water from Cadron Creek
Conway had no such right
proved that they were ripi
of their conveyances-whi
He further goes on to s
rupted flow theory and the
flow theory prevails in A9
use the water in Cadron C
theory prevails, then the
ian owner for a rice crop
ceive further legislative o
That, from a sister sti
in getting our statute ovei
its municipal water out of
was considerable doubt, i
as to whether or not that
is involved that Arkansas
MR. BARLOWE: It is
Michigan law, that somebi
rather intrigued with Mr.
parian right to a person ,
people who are nonriparib
water without access. Thi
but they are in the minor
this line. A few weeks agp
irrigating, who did have li
who sold off all his ripari
gested this) to people to
right to have his pipes la)
water from the lake for ii
number of issues involved
case in court asking an in
lowered the level of the 1s
say at the rate he is pum]
S issue before the court, wd
CHAIRMAN MARQUIS
MR. FISHER: Profess
decisions that confine rip,
in the title. In California
seller to a subdivider of i


MPOSIUM DISCUSSION


i; that the City of Conway could not obtain the
w down to its dam bby prescription (which is one
Lintained).
his opinion, stated that the appelants, which
case, had not proved their rights to take the
; that they had merely proved that the City of
He also said that none of the appelants had
"rians, because they had not proved the extent
:h gets back to what you said.
ay that there is conflict between the uninter-
reasonable use theory. If the uninterrupted
kansas, then evei a real riparian owner cannot
reek for a rice crop. If the reasonable use
rater of Cadron Creek might be used by a ripar-
He said further that these matters should re-
ttention.
te, I think, was influential among our legislators
, because our capital city of Jackson gets all of
the Pearl River.i According to this case, there
we followed either of those riparian theories,
vould be upheld. I think wherever municipal use
case would give you something to think about.
probably appropriate, since this has dealt with
idy from Michigan make a comment... I am
Fisher's comments concerning assigning a ri-
ho has access to a stream-to hold that many
ns are riparians because they are not taking
*re are a few who put a pipe down and take water,
by. I think we have a court case developing along
Sa newspaper... [story described] a man who is
nd riparian to a local lake a few years ago but
in land (or at least the newspaper article sug-
iild summer homes, but he did maintain the
1 across one of these lots so he could pump
rigation to some of the back land. There are a
here. One is that the people who brought the
junction against this pumping insists he has
ke by a foot. Some of my engineering friends
ing it is impossible. But if it was the crucial
might have some answer on that.
Mr. Fisher, would you like to comment?
or Haber has mentioned some of these western
Lrian land, the extent of it, to the smallest tract
the court allows an express reservation by a
iparian land (as in this case) of riparian rights






494 LAW OF WATER ALLOCATION

for the part of the tract that is cut off from the stream by the subdivision.
I don't know whether this situation has come up much in the East... If you
could work this kind of thing, it lends itself to some nice ideas. Perhaps
a person who is a mile or two back from the stream, has been for decades,
could buy land all the way to this stream and an hour later subdivide it to
all the people he bought it from and retain or reserve riparian rights for
his tract back there. This is not something that could be done in these
western states that have the smallest tract in the chain of title idea, be-
cause the reservation has to be made to the first subdivision, and you are
also restricted-Professor Trelease would it be a forty-acre tract in the
government plotting on the original map that confines you to begin with?
MR. TRELEASE: Only to begin with. In California the riparian right
will extend to all the land embraced in the patent, even though it is in dif-
ferent descriptions. In Nebraska it will only attach to the 40-acre tract
touching the stream. And 40-acre tracts, even though contiguous, are ex-
cluded. Then, again, in western Nebraska, in one case, why, the 40-acre
rule may not apply because where Kinkaid patents were allowed, you may
get a whole 640-acre section.




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