Title: The South Carolina Law Quarterly Supplement - Special Issue on Water Law
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003074/00001
 Material Information
Title: The South Carolina Law Quarterly Supplement - Special Issue on Water Law
Physical Description: Book
Language: English
Publisher: The South Carolina Bar Association and the Faculty and Students of the University of South Carolina School of Law
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collections - The South Carolina Law Quarterly Supplement - Special Issue on Water Law
General Note: Box 12, Folder 8 ( Collected Materials on Water Law - 1952 -1957 ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003074
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


VOL. 5 DECEMBER, 1952 NO. 2-A





Entered as second class matter at the postoffice at
Columbia, South Carolina

F-1 I '" 1 -WIMM.. "imp "F111



Member of the Southern Law Review Conference
Member of the National Coference of Law Reviews


Associate Editor

Assistant Editor
Assistant Editor


Assistant Editor
,(Book Review)
Assistant Editor
Assistant Editor


Bar Association Advisors

Faculty Advisors

The Law Quarterly seeks to publish materials presenting meritorious viewpoints lo
subjects of interest to the le pofes Publication does not indicate that the view
expressed are adopted by the Law Quarterly.

,h- -


l- _______________'


PREFACE- Carl W. Little ohn, Jr. .......................... ...............................iv

REMARKS OP MODERATOR- Samuel L. Pr te ................ .......... 103


BENEFICIAL Use OF WATER RESOURCES .................. .. .. C. B. Busby 106

APPrED To WATn ....................... .......... J uey Warren Woodbridge 130


GROND WATERS IN THE SOUTHEASTERN SAT ...............Roscoe Cross 149


ADDENDU M .......................................................................................................... 178

Published in September, December, March, and June, by the South Carolina
Bar Association and the Faculty and Studenti of the University of South Caro-
lina School of Law.
Subscriplto Rates: $1.00 per copy; $3.00 year for current continuing sub-
scriptions. Communications should be addressed to




VOL. 5 DECEMBER, 1952 NO. 2-A

The subject of water law is now being given marked consideration
throughout the Southeastern and Southern states. One of the ses-
sions of the Southeastern Regional Law Teache`s' Conference ie-
Scently held in Williamsburg, Virginia, was devoted to this subject.
We are informed tUlif this Conference session was not only an effort
to gather together t1i present apposite material and cpurt pronounce-
menttfsbut, further, for the purpose of stimulating interest in the
subject ltd-disovering those among the faculties of these Confer-
enceschools who might be interested to the extent of volunteering
further effort in regard thereto. We are also informed that a pur-
pose of this symposium was to develop a base for briefs in theltiture
consideration by the courts and legislatures of this area of policies
' nd principles that would make possible the greatest beneficial use
of water-as a natural resource.
Though-this subject in the symposium was approached from sever-
al different angles, no effort was made to consider the legal incidents
of artificial rain making or water in the clouds. The spade work in
this particular field may be found in articles available in the Stanford,
Harvard and Yale Law Reviews, and possibly elsewhere. Mr. Gavin
W. Craig, Associate Attorney of the Water Project Authority of the
State of California, Sacramento, California, seems to have devoted
much time and research in this special field of water in the clouds.
"Thle"South Carolina Law .Quarterly" takes pleasure i"-pIblish-
ing this special edition on the subject of water law embodying therein
the addresses delivered at Williamsburg in September at the sum-
posium then conducted as part of the program of the Southeastern
Regional Law Teachers' Conference. This special edition is being
issued as a supplement to our regular December 1952 edition.


F* In this symposium we are dealing primarily with the law of water
rights in the Southeastern area of our country. It is to be observed,
however, that water law is far from .tiform in America-the law
of the Western stats eing different from that of the Eastern
sfa-es. In the United States we find two separate and distinct sys-
tems-of water rights, water management and control. One of the
r systems is based on what we call the riparian doctrine and the other
is based on what is called the prior appiopriation doctrine. These
two doctrines are inconsistent with each other and have separate
The riparian doctrine or theory is generally spoken of as deriving
from the English common law applicaBl eWto ter~urses and dif-
futs ace water. This is not exactly correct, for its reaLorigin
is in the Code Napoleon. Story and Ient adopted the theory from
the-Ce Napoleon but with some modifications, and thereafter the
views of these two eminent jurists wete followed in England. (It
is also observed that the Code Napoleon was directly adopted in
the State of Louisiana.) By adopting the basic theories of water
? law as contained in the CodeNatpoIvoi ; -itW modifications, the
English judges and Story and Kent thereby rejected the prior ap-
pro6pfiifon doctrine of _Backstone. Iri following these earlier pro-
nouncements many of our states thereby incorporated into tieiir
commioin a w the limitations of the rip ran doctrine. The result of
these decisions is the rule of property follotve"ionlhe Eastern states.
We turn to our Pacific Coast'~na-Cieit' PlaTns isates to fin-dthe
source of the prior appropriation doctrine. Here appear the Spanish
and Mexican influences and the influence of Indian customs and of
uses in irrigation and mining.' The Indians and miners and irri-
gators applied the doctrine of prior appropriation, which is not de-
pendent upon ownership of land at or hear the source of the water.
Though the Pacific Coast and Great Plains states adopted what- we
call the English common law of water upon their being admitted to
tfeiihion, tiese two systems were diametrically opsed to each
otifean-i $T reduced concig which had to be resolved under pres-
sure. The prior ap6pipriationb system ayparently is chiefly concerned
with the artif use of water by owns, whetle riparian or not,
arid thtiEi ripana ocfrine is chiefly concerned with the nwjua, use
of water. By natural use we mean the use on his land by the owner

- --- -----------~- ------------------------- -- r -~----r--*---i-I----- ---- --------lm



of land on a stream, of the water of the stream for domestic and
household purpoSeSfor drinking water and watering domestic ani-
mals. Every other use of the water, whether by the riparian owner
or by someone else, appears to be classified as an artificial tse.- In
the West adjustments have had to be made between these two theories
or systems, and in the adjustment vested rights have had to be fully
In the Eastern states conflicts are now beginning to appear be-
tween water users---users.i r.~atural purposes and users fo arti-
Sificia purposes, and in both fields ground water and surface water.
i It is entirety possible that the experience in the Westeri states in
Sadjusting these conflicting theories may be of aid in-'thinkidg oig t
the solutions of these problems in the Eastern states.
Asiinfuising as the announced principles in water law in America
and England may be and these pronouncements have been varied -
nevertheless, we find something that is fairly constant. Each pro-
nouncement or desinn has been materially inflinrnced if nor"on-
' troed, by what. w~re.aat .th tjimeo a.. po anm.l A l tch-ngi11
conditions, the mtnamary iusefs f wate4and the relative sufficiency of
: thelmater supply.
Water has been and still is plentiful in the Southeastern area; but
the marked increase in use needs for industry and agriculture and
Sfor municipalities is here and there producing conflicts. Our water
t supplies are remaining fairly constant and regular, while at the same
time the uses and needs are vastly increasing. It is certain that
this section will continue to develop, and that the needs for water
will ever be multiplied. The differential between supply of water
[and beneficial use needs wifi con- tantl f ~ibe eiseiniui ii the stresses
between rights of users will constantly become greater.
In this symposium 'the effort has been to discover fvhere we are
in the Southeast in the matter of water law and to bring out in bold
relief the conflicts in the varying legal theories which may be ap-
Apparently, very broad principles will have to be determined upon,
and some control authority or administrative agency will be needed.
Vested property rights will have to be determined and protected.
If the present and future inhabitants of a state are to obtain the
greatest beneficial use of its water resources, we perceive that there
mysst-be-seme agency that.ear survey and determine just what these
resources how are, how they may be protected, and probably what
th ey rwhilT~h'T e future. Such an agency should be able withint I
the broad anridapproprate principles laid down by legislative authori-

_ _.~_ ----~-_-




ty of the state) to determine who are riparian owners, what are their
riparian rights and presc~itive rights, and to whak lands&these rights
Sar water not orly to riparian owners Tbiitt foiiers, for artificial uses
iii agiculture and indufSTyr or municipalities, for fishing, and even
for recreation. It should also apply the "balance of convenience"
doctrine. Decisions by such an administrative body should be re-
viewable by the courts. The agency should have the right to modify
any allocation that it may have previously made, and to regulate
practices and instrumentalities in such uses. In making allocations
there should be such a degree of permanence as to give assurance
to investors that they are justified in making large outlays of money
dendent .pon such allocation. Al of this machinery should be
set up with a view of preventing waste and making it certain that
the people shall obtain the greatest beneficial use from this vital
resource. Another reason for early action is that as time goes on
an increasingly large number of vested property rights conceivably
may be established in the matter of water uses, thereby making less /
flexible regulations for the allocation a*d management of water.
There can be no question but .that the State has power of regula-
tion in these matters with due regard for the powers of the Fcderal
Government in the field and subject to the constitutional protection
ofvested rights.


A Brief Synopsis of Its Origin and Some of Its Broad Trends with
Special Reference to the Beneficial Use of Water Resourcest
C. E. BusBY*
Water problems arise out of too little or too much water. Too
little water results from drought, rapid or over development, lack
of storage or replenishment, and impairment in water quality by sedi-
ment, industrial and human wastes, and by salt encroachment. Too
much water results from excessive precipitation and runoff, poor
land use practices, and barriers to its movement over and through
the land. Water may be an asset or a liability depending upon how
it is used and managed. It has seldom been in exactly the right
amount, at the right time, and in the right place.1
After it falls upon the land, water is retarded or accelerated in its
movements by land use and water management practices and struc-
tures. This affects its availability for use and its capacity to cause
damage. Much of this management situation is in the hands of farm-
ers and ranchers of the nation but part is in the hands of non-agri-
cultural groups. Severe erosion, sedimentation and water manage-
ment problems arising out of improper land use have given rise to
one of the most important movements and legal devices for group
action in conservation ever to be experienced by agricultural peoples.
This democratic and thoroughly American approach to the solution
of local problems might prove useful in other spheres of activity.
Often the upstream portion of drainage areas or basins is dominated
by one combination of water supply and damage conditions while
the downstream portion is dominated by another. Seasonal changes '
alter this situation somewhat. Thus, for centuries therehave been
sharp conflicts among land and water users, states and nations owing
to the fact that the source of water and the damage caused by it
*Member of District of Columbia Bar; onservatinist Soil Conservation Service, lr-
keley, Clifornia; Coeulant.t- W..oouth Tb 3S1 Comwe-vatin Co iiB
M.SeUniversity of Nebraska; LL.B., Geogetwn University.
article is not-neee y rpreint the views of te t. Department of Agri-
WATER. Soil Conservation, vol. XVI, pp. 153-157. February, 1951.
2. Son. CONSERVATION DISTRICrs. (Mimeographed report by U. S. Soil Con-
servation Service released July, 1952.) Note: This report shows more than
2,400 districts organized in 48 states, Puerto Rico, the Virgin Islands, Hawaii,
and Alaska, including 84 per cent of the farms in the United States.


often arise in different localities and jurisdictions from the place
where water is used and the damage takes place.s The resolving of
these conflicts among water users and governments has presented
monumental tasks for engineers, lawyers and statesmen in many parts
of the world.4
Different systems of custom and law affecting the use and manage-
ment of water seem to have arisen out of these basic physical and
human relationships. In our 17 western States, which are generally
considered a shortage io t anditins of excess water, '
a system of prior appropriation has emerged. This emphasizes ex-
clusive rights of use for specific quantities, times and places, subject
to the rule of reasonable beneficial use but not depending upon owner-
ship of land contiguous to the water supply.5-6 Here there is nearly
uniform state-wide administration of water development and use,7
since ordinary processes of law are inadequates and entire sources of
supply are considered.9 But of course this system is superimposed
up n a resid ne the modified common law in the Pacific Coast
and Great Plains states, especially in California where it is still very
In the eastern 31 States, however, which are generally considered
a water excess region but have also conditions of shortage, a system
of the modified common law of water rights obtains. This emphasizes
rights of water use in common without regard to specific quantities,
times and places of use, subject to the rule of reasonable use. but
depending in the first instance upon ownership of land contiguous to
the water supply.11 Here there is a lack of state-wide administra-

3. WIEL, S. C., FIFm YEARS OF WATER LAW, 50 HAB. L. REv., 252, 254, 267
pp. 165-168 (1943); U. S. v. Gerlach Live Stock Co., 339 U. S. 725, 746-747
4. See, for example,'report on the Colorado Basin, House Document 717,
f80th Congress, 2d Session, 1948.
UL=_V r eT 80-107 (942).
vol. III, pp...J54-167 (1950) with footnotes thereto and including particularly
Appendix B by Wells A. Hutcnins.
7. Hutchins, op. cit. (footnote 5), p. 77.
8. Report, op. cit. (footnote 6), p. 158.
9. Rasmussen v. Moreni Irr. Co., 56 Utah 140, 153, 189 Pac. 572 (1920);
Richlands Irr. Co. v. Westview Irr. Co., 96 Utah 403, 418, 80 Pac. (2d) 458
(1938); Hutchins, op. cit. (footnote 5), pp. 128-129. See also infra, cases cited
under footnote 62.
10. Hutchins, op. cit. (footnote 5 pp. 42-64; U. S. v. Gerlach Live Stock L
Co., supra; Report, op. cit. tloote 6), p. 156 with footnote.
11. Heath v. Williams, 43 Am. Dec. 265, 270-276 (1845); and cases therein
cited; Shively v. Bowlby, 152 U. S. 1, 14-15 (1894) and cases therein cited.


tion of water development s nd use in the comprehensive sense in
which it is carried out in the West. But there is presume
states a limited appropriation and administrative system imposed upon
the modified common law.1 Each of t se systems of custom and
law recognizes water rights acquired by Ivereuse.13
In several states, the civil law rule of diffused surface waters is
in effect while in others tle common iHw rule applies.1 But in the
i est, the unrestricted use of diffused surface waters by the land-
o.ner may te limited tre lh ...... -o- ,e srce of
stream flow to which other rights attach.s1
The main differences in the riparian and prior appropriation sys-
tems, aside from the extent of development of the rules of law apply-
ing to specific circumstances, (and there are differences in this regard
too), are the greater emphasis which the system of prior appropria-
tion places upon the beneficial use of water, te exercise of state-
wipe administration of rights and development. and protection for and
encouragement of investments dependent upon water resources.'1
Here is where practical problems of policy arise having effect upon
the development, use, conservation and protection of land and water
It has been said that "moderating principles of correlative rights
"-) ani reasonable use seem to oe outstrpping exclusive rights by priori-
ty of appropriation in general esteem"17 but, in the West, this view
is not borne out in respect of rights as the recordede-isions and
statutes show a steady trend toward restricting the application of
the common-law doctrines. In fact, the rule of reasonable use seems
to be employed as one method for accomplishing such a restrictive
policy.8 In a very broad sense, it appears that as our economy ex-
pands and demands for water tend to outstrip the available supply,
the policy of the law of water rights tends to move more and more
toward principles of exclusive use in the western States, the exclu-

WATER. U. S. G. S. Cir. 117, pp. 17-30 (1951); Report, op. cit. (footnote 6).
13. 56 AM. Jua. 323-339; Hutchins, op. cit. (footnote 5), p. 397.
->14. Levene v. Salem, 191 Oreg. 182, 191-192, 229 Pac. (2d) 255 (1951);
'6 AM. JUR. 550.
15. Hutchins, op. cit. (footnote 5), p. 127.
16. Report to the Governor of Kansas, THE APPROPRIATION OF WATER FOR
BENEFICIAL PURPosES, p. 19 et seq., December, 1944; Hutchins, op. cit. (foot-
note 5, pp. 42, 72-77, 298-313, 326-336.
--17. Wiel, op. cit. (footnote 3), p. 252.
18. Hutchins, op. cit. (footnote 5), pp. 42, 116; CALIF. CONST., Art. XIV,
Sec. 3; U. S. v. Gerlach Live Stock Co., supra; Report, op. cit. (footnote 6),
App. B, note especially summary for Oregon and Kansas; Bristor v. Cheattam,
........Ariz. ........, 240 Pac. (2d) 185 (1952). See also Report, State Water Law
in the Development of the West, Nat. Rec. Plan Bd., p. 9 (1943).


j sive use to be a reasonable, beneficial use.
Our common-law system of water rights seems to have had its
r inception in a simple economy of natural water uses in continental
Europe where the supply of water was generally in excess of re-
quirements.19 But our prior appropriatinn SyEtMn h2 had i;t inc3p-
tion in a more complex economy of artificial uses in the West.o0 The
experience in the West may prove useful in pointing the way for
adjustments in the policy of the law in other areas If so it ma
be of interest to consider the manner in which the two American
Ss stems originated and what they mean to our expanding economy in
which water is playing and may be expected to continue to play such
a vital if not dominating role.21

The English common law was in effect in the original thirteen
colonies as the rule of decision before the Revolution.2 But it is
doubtful if the original adoption of such a vast body of legal prin-
ciples was made with conscious regard of an English system of water
rights for there appears to have been none at that early date.s2 As
late as 1929, the Supreme Court of Hawaii declined to follow the
Sso-called English common law on ground waters for these very
reasons.2 It has also been held as a general principle that the
common law developed in England after the American Revolution
is not part of the common law which is to be applied in the courts of
the States.25 In view of these circumstances the question arises as

(1918); U. S. v. Gerlach Live Stock Co, snpa.
20. Hutchins, op. cit. (footnote 5), pp. 66-7; Report, op. cit. (footnote 16).
21. Note: Much of this article is based upon the thorough and very scholar-
ly treatment of the subject of water rights by two American authorities, Samuel
C. Wiel and Wells A. Hutchins. Mr. Hutchins indicates that Mr. Wiel was
a master of the French language and thus was able to go directly to the origi-
nal sources used by Story and Kent, as hereafter referred to. The very able
contributions of these two American authorities are gratefully acknowledged.
22. 12 C. J. 184-186 and cases there cited.
23. WIBI, S. C., WATER RIGHTS, 3d ed., ch. 28, 29; Wiel, op. cit. (footnote
19), p. 246. See also 24 MINN. L. REv. 891 (1940) in respect of the "common
enemy" rule and the English common law.
(1946) ; City Mill Co. v. Honolulu Sewer & Water Comm., 30 Haw. 912, 938-
943 (1929) and cases therein cited. See Acton v. Blundell, infra. (footnote 32),
p. 1234- "No case has been cited on either side bearing directly on the sub-
ject in dispute." See also 3 KeNT COM. 440, footnote c (12th ed.).
25. 12 C. J. 192; 15 C. J. S. 623; see also Mr. Justice Story in Van Ness v.
Pacard, 2 Pet. 137, 143, 144, 7 L. Ed. 374-"The common law of England is
not to be taken, in all respects, to be that of America. Our ancestors brought
with them the general principles, and claimed it as thdir birthright; but they
brought with them and adopted only that portion which was applicable to their

_ ___:__1_1____ *_ __ T___



to what principles of water law existed in England prior to and after
the Revolution in America, the extent to which these were recognized
ancdenforced by the courts, if at all, and how a system became estab-
lished there which had influence in America

We are told that the Year Books reflect no system of water-rights
law in England but that they did recognize established customary or
adverse uses in streams, not as rule of property law but rather as
recognized forms of pleading The assize of nuisance, and later,
tcspas on the case seem to have been recognized forms of action
for wrongful diversion of a stream from one who had long enjoyed
its use.26-27 However, little seems to have been said about ground
These early beginnings of water law seem to be similar in a general
way with respect to the development of custom to those which took
place in California and other parts of the Southwest.28 The natural
outgrowth of such an approach, if it had continued and received final
sanction of the courts, might have been the establishment of a sys-
tem of water law adapted to the early industrial conditions of Eng-
land where artificial uses were then being made in a limited way.
Whereas use for mining and irrigation seems to have been the impetus
for the development of water customs in California and the South-
west,29 use for mills and the watering of meadows seems to have
been the impetus in England.30 However, the beginnings of customs
in England did not appear to have reached the stage where they
were given final sanction of the courts and legislature such as took
place in our western States.31

situation." Note: No attempt is here made to consider the full application
of these and related authorities to the field of water rights or the effect of
constitutional, statutory, and judicial adoption of the English common law after
the American Revolution.
26. Wiel, op. cit. (footnote 23).
HAR. L. Rev., 133, 141 with citations and references there noted.
28. Hutchins, of. cit. (footnote 5), p. 67; Wiel, op. cit. (footnote 23), p. 68.
29. Hutchins, op. cit. (footnote 5), p. 67; RICKETrs, A. H., AMERICAN MIN-
ING LAW, pp. xxii-xxiii (1931- ed.).
30. 2 BLKS. COM. 403; WOOLRYCH ON WATERS, p. 177; 9 S. C. 294 (1837);
13 S. C. 63 (1845); Heath v. Williams, supra; Wiel, op. cit. (footnote 27),
p. 141.
31. Note: The courts in Mason v. Hill, 5 Barn. & Adol. 1, 110 Eng. Rep. 692
(1833), Wood v. Waud, 3 Exch. 748, 154 Eng. Rep. 1047 (1849), and Omel-
vany v. Jaggers, 2 Hill. 634, 9 S. C. 294 (1837) treated Blackstone as dicta.



We are told that Lord Coke did not erect a system of water law
though he did include water with land under the adopted maxim
"Cujus est solum ejus usque ad collum et ad inferos." This appears
to have led toward decisions which did affect ground-water law in
England and later in Americabut which, in som~iespects, seem to
have been unfortunate when considered from the standpoint of sound
development and conservation.82 Lord Coke's thinking may be
excusable, however, because the behavior of'surface water has always
been more readily understood than that of ground water. The latter
often has been thought of as quite mysterious when in fact it is not.
The main problem has been the lack of reliable information con-
cerning the occurrence and behavior of ground waters. engineers
geologists and others have severely criticized principles of ground-
water law based upon the type of thinking expressed by Lord Coke.8
His influence does not seem to have extended very far into the
surface-water field, though he was cited in the early cases.34
The recognition of customary uses of streams in England seems to
have influenced Blackstone, though he may.also have been influenced
by the Roman law.3 From recognition of long established uses, he
appears to have attempted to erect a system of water rights for water-
courses but it was not given final acceptance as such.8 He outlined,
among others, two broad principles. The first was based upon long
continued use of and access to a stream. In this respect it was not
far removed from the riparian principles later adopted in England
but he did not emphasize use in common nor ownership of lands

In contrast the courts of the West and the Congress of the United States
recognized the customs of the miners and sanctioned them as law. See Hut-
chins, op. cit. (footnote 5), pp. 67-73; Ricketts, op. cit. (footnote 29), pp. xxiv,
32. Wiel, op. cit. (footnote 19), p. 246; Wiel, op. cit. (footnote 27), pp.
141-143 with footnotes thereto; Acton v. Blundell, 12 M. & W. 324, 354, 152
Eng. Rep. 1223, 1228, 1233, 1235 (1843) with references particularly to Black-
stone and Story.
33. TuaMxSON, D. G. AND FIELDER, A. G., SOME Pbo-v.s RT.ATT,. so
vo. O, Nu. 7, July, 8; TLMAN, L. 1'. AND STIPP, AMY C., ANALYSIS
CiviL ENG., vol. 67, No. 8, Part 2, October, 1941; THOMAS, HAROLD E., THE
CONSERVATION OF GROUND WATER, pp. 243-267, 1951, New York, Toronto and
34. See, for example, Shury v. Pigot, 3 Bulst. 339, 81 Eng. Rep. 1163 (1625).
35. Shury v. Pigot, supra; 2 BLKS. COM. 403 with footnote No. 7 thereto;
Wiel, op. cit. (footnote 27), p. 143. See also Report to Governor of Kansas,
op. cit. (footnote 16), p. 21.
36. 2 BLKS. COM. 403; 3 BLKS. COM. 218; Wiel, op. cit. (footnote 19), p. 246.
Note: Blackstone was born in 1723 and died in 1780. Most of his legal work
was done after 1746 when he was admitted to the Bar. Some American colonies
adopted the English common law before Blackstone was born South Carolina
in 1712, State v. Charleston Bridge Co., 113 S. C. 116, 125, 126, 101 S. E. 657

_ 4


contiguous to the stream as prerequisite to its use.37 In fact, he could
not very well do so because his second principle, being based upon
priority of occupation on the stream, constituted a limitation upon
the first principle and was diametrically opposite to the concept of
use in common."8 It appears that Blackstone attempted to move be-
yond recognition ot procedural rights to those of substantive rights
of property in waters which counsel in some of the cases had indi-
cated were implied from those procedural rights, and which later
courts, in looking back, seemed to consider as if there had been sub-
stantive rights.8 The second principle seems to have been tentatively
accepted by the courts as the doctrine of prior occupancy of those
ties and was held to be the law of England as late as 1831.40 These
principles were followed to some extent in America but there was a
wavering away from them at an early date.41 In view of our exten-
sive Western experience in which the policy of the law seems to be
moving steadily toward the views expressed by' Blackstone, it appears
that he was a hundred or more years ahead of his contemporaries in
this field. However, his influence does not seem to have extended to
ground waters, possibly because there appears not to have been many
cases during tus time that raised fundamental issues concerning
ground waters. v
th gh Blackstone's thinking was adopted in some early Ameri-
can decisions, some courts, notably New Jersey, began to veer away
from his concept of exclusive rights by reason of prior occupancy
toward the riparian theory of rights in common. One early New
Jersey case used Latin words much the same as those later used in
connection with the statement of the riparian principles but did not
use the word riparian.42
And then came the American and French revolutionary move-
ments with special emphasis upon the rights of man.

37. 3 BLKS. COM. 218--"it is a nuisance to stop or direct water that uses
to run to another's meadow (6) or mill (k) ; to corrupt or poison a watercourse
* in the upper part of the stream (1) ". See also Haymes v. Gault,
1 McCoRD. 543, 545 (1822).
38. 2 BLKS. COM. 403 "If a stream be unoccupied, I may erect a mill there-
on, and detain the water; yet not so as to injure my neighbor's mill, or his
meadow; for he hath by the first occupancy acquired a property in the current."
39. Acton v. Blundell, supra; GRAY, CASES ON PROPERTY, Vol. II, 2d ed.,
pp. 81-82, concerning Shury v. Pigot and particularly footnote 1, p. 82 concern-
ing Shotwell v. Dodge, 8 Wash. 337, 339-340 (1894).
40. Liggins v. Inge, 7 Bing. 682, 893, 131 Eng. Rep. 263 (1831); Wiel, op. cit.
(footnote 27), p. 133.
41. Wiel, op. cit. (footnote 27), p. 140 with footnotes. See also Haymes v.
Gault, supra.
42. Merrit v. Parker, 1 Coxe (N. J.) 460, 463 (1795); Wiel, op. cit. (foot-
note 27), p. 140 with footnote and p. 146 with footnote.


* Blackstone died in 1780. In 1804 the Code Napoleon was pro-
mulgated in France. In 1812, it was adopted in the State of Louisi-
ana.4 The Revolution in America and its aftermath took place
during this general period. The French helped the American colon-
ies gain their independence. Feelings were running very high in
favor of the philosophy of the natural rights of man and the concept
Sof equality. Feelings in the new states and nation were running
equally high against England and everything English. In some states,
such as New Jersey, Kentucky and New Hampshire, authorities went
so far as to refuse to permit English decisions to be relied upon.m
T is turning away from English guidance to that of France seems_
to have been one ot tne most significant factors in the trend of surface-
r water law. -ut it dcd not extend to d-water law Andi
the turning away dd not last many years insofar as the law was
concerned, for the key decisions of the English urts, subsequently
cited in mecan courts, were taken between 1830 and 180.

It was in the midst of this period of political adjustment, with all
its emotional overtones, that the English common law of waters was
Established and also the strict French riparian law as set forth in
the Code Napoleon. Some American courts had looked to the civil
law for illustration and explanation but, most of 'thrn did not seem
to draw upon this source for decision until Story;and Kent appeared
on the scene with their new ideas gleaned from France and Rome,
and until the Code Napoleon was adopted in Louisiana. It has been
said that the early judges could not use French, so could not go
directly to French civil law.45 But under the inouence of these two
eminent American jurists, who happne b masters of the French
h ,, and. tl.,l themt and the English decisions based upon
their tinkling, a consderable number of Ameritan corarp sa
to have vaple He mamfl of water-

43. Wiel, op. cit. (footnote 27), p. 134.
44. Wiel, op. cit. (footnote 27), p. 134; GRAY, NATURE AND SOURCES or THE
LAW, 323; POUND, 3 IW. L. REV. 354, 357-359 with footnotes; M~xMors or
PAPERS, No. 10 (Madison), pp. 58-59.
45. Orleans Navigation Co. v. New Orleans, 2 Martin (O.S.) 214 (1812);
Fable v. Brown, 2 HILL EQ. 378 (1835); Wiel, op. cit. (footnote 19), pp.
249-252; 3 IW. L. Rv. 354.

-- ----~--------~----I-~-:-T-- ----1- ------~---- ---r--- ---------r--r- ;--p--i~-~--VI--rr -~---rr------7-----I--- -----.i-rp------l



curses and diffused surface waters.4 Here is where the concept
of equality o right among riparian proprietors, modified by the rule
of reasonable use seems to have een introduced into English and
American water law. Here is where the concept o the rig o the
upper landowner to have is drainage waters flow unobstructed onto
the lower tenement seems to have become adopted.47'
Until 127, no Amercan decision or treatise appears to have used
the word riparian, though as indicated previously the New Jersey
courts had usedlanguage peculiar to riparian law and the Code
Napoieon aHad been adopted in Louisiana at earlier dtes. tory used
the word riparian for the first time in Tyler v. iWilkin and spelled
out therfFigts of riparian proprietors, rT vidually and
collectively. His expressions regarding their collective rights, above
fRse- prescriptive or other right holders, is interesting when con-
sidered with respect to the concept of the "negative community"
which underlies our entire system of the law of watercourses, except
as modified by constitutional provisions and statutory declarations
of public policy.48
Kent's statements on the riparian doctrine came in 1828.49 His
mos recent decision prior to that date did not contain reference to
the word "riparian" or the riparian concept as such.50 Angell, who
published his second edition in 1833, attributed first use of the word
to Story. But we do not know exactly where Story got it or some
of his ideas concerning the doctrine. However, we are sure regard-
ing the origin of Kent's words and ideas for his works are replete
with material and citations from the Code Napoleon, the Institutes
of Justinian, the works of Pothier, and others. We also have his
reasons for adopting and modifying these authorities.51 He seems

46. 56 AM. Jua. 550; 67 C. J. 864-866; Wiel, op. cit. (footnote 19), pp. 249-
250; Wiel, op. cit. (footnote 27), p. 135; POUND, 3 ILL. L. REV. 354, 360 with
footnotes; Hutchins, op. cit. (footnote 5), p. 30; 24 ILu. L. REV. 896-897 (1940).
47. Orleans Navigation Co. v. New Orleans, supra; 3 KENT COM. 353, 355
(1828); Overton v. Sawyer, 46 N. C. 308 (1854); Kauffman v. Griesener,
26 Pa. St. 407, 413 (1856); Butler v. Peck, 16 Ohio St. 334 (1865); Gillham v.
Madison R. Co., 49 Ill. 484, 486-487 (1869) ; Ogburn v. Conner, 46 Calif. 346,
351-352 (1873); Omelvany v. Jaggers, supra; White v. Whitney Mfg. Co.,
60 S. C. 254, 265, 266, 38 S. E. 456 (1901); Wiel, op. cit. (footnote 27),
p. 138; Wiel, op. cit. (footnote 19), p. 252; Pound, op. cit. (footnote 46).
48. Tyler v. Wilkinson, 4 Mason 397, Fed. Case No. 14, 312 (1827); 3 KENT
CoM. 439 (1828); Wiel, op. cit. (footnote 23) including ch. 41; Wiel, op. cit.
(footnote 19), p. 254; Hutchins, op. cit. (footnote 5), pp. 27-29. Statutory
declarations of public policy relate to declarations that the waters of a state
are public property and belong to the people of the state, as in several western
49. 3 KENT COM. 353, 355 (1828).
50. Van Bergens v. Van Bergens, 3 Johns Ch. (N. Y.) 282 (1818); Wiel,
op. cit. (footnote 27), p. 140.
51. 3 KENT COM. 353, et seq.; Wiel, op. cit. (footnote 27), p. 136.


to have drawn upon most of the civil law sources then available to
him. In this connection it should be noted in passing that his adop-
tion of the broad principles of the Roman law mny be as important .
as those of the French law. Kent seems to have been in the fore-
front of this movement to use civil law principles, It seems unfor-
tunate that his concepts or those of Blackstone wei e not given more
consideration in respect of ground water during this formative
It appears that Kent was more influential of the two great jurists
in the field of American water law because of his full consideration
of French and Roman principles; and because of the fact that his
summation of civil law principles, as he had adapted them to condi-
tions then existing, has been quoted with approval by American and
English courts whe, establishing definitive statements of the law.s8
But there is no aspect of Kent's thinking which should be noted
further. In applying the prin' of. reasonable use as a limitation
on the strict French riparian law of the Code Napoleon, he empha-
sizeI that this was necessary to aid in making beneficial use of
streams hs certainly was a step in the right dirtion from the
standpoint of beneficial use of the natural flow. But he does not
atppeu iave reo~ugized he monopo aspecs o te doctrine"as
he modified it in respect of the surplus flow above the normal re-
urements of riparian proprietors. Th.priniicple of the Code a-
poleon had tened to gve downstream proprietors 'a monopoly of the
natural flow, thus limiting the use of the stream in the upper reaches
of a watershed. Story seems to have recognized a collecve mono-
poly in the hands of all riparian proprietors on a stream because he
1 indicates that all waters not belonging to prescriptive or other holders
belong to riparian proprietors. In any event, either concept. Stry's
or Kent's, tends to hold the surplus stream flow in a ninuse or non-
consumptive use reserve to satisfy the natural flow rights of riparian
proprietors."5 Thi;, a very vital aspect of water law for it concerns
artificial uses and needs, especially for those enterprises not contigu-
ous to streams but dependent thereon for water supplies. The use
of the surplus stream flow nas been a very important factor in the
growth of the West. The doctrine of prior appropriation has played

52. 3 KENT CoM. 354, 355 (1828) noting comment at footnote, p. 439; Wiel,
op. cit. (footnote 19), pp. 251-254; INST. J.;ST. Lib. 2, sec. 1; Wiel, op. cit.
(footnote 23) including ch. 41.
53. See, for example, Omelvany v. Jaggers supra, Embrey v. Owen, 6 Ex.
353 (1851) and White v. Whitney Mfg. Co., Agra; PounD, 3 Iu. L. REv. 360,
including footnote 29 thereto; Wiel, op. cit. (footnote 19), pp. 250-251.
54. Tyler v. Wilkinson, spra.



a significant part as a legal device in reaching that surplus flow to
meet reasonable non-riparian needs.
The riparian principles of Story and Kent did not appear in Eng-
lish decisions, s suc, until 1849, thou h the prior appropriation
doctrinteo lackstone had begunTo be rejected much earlier. In the
key case, Wood v. Waud, the Engush court drew freely upon the
views of the two American jurists for guidance.55 Thus we are ad-
vise that civil law principles were received into the English common
law of surface waters by way of Story and Kent.56 The keycas
has been cited in American courts ever since as authority on riparian
law, though it was distinguished shortly thereafter in respect of
diffused surface waters and ground waters.57
This paper does not attempt to trace the origin of the English com-
mon law of grnd waters much beyond the thinking of Lord Coke
and the holding in Acton v. Blundell for they seem to have been the
principal sources ot authority until the strict common law rule was
later modified in several of our states by application of the rule of
reasonable use. This modification seems to have started first in New
Hampshire in 12 58
The case of diffused waters appears to be more complex
and confusing but nevertheless important from the stand oint of
conservation, both of water and soil. The law of ngla d apparently
places ownership of these diffused surface waters iniT owner of the
land on which they arise. Kent and the French civil law seem to
S be the main sources for civil law principles adopted in America. But
the problem involves both the right to use those waters and the right
to pass them or have them passed from higher to lower lands. We
are told that there are considerable dicta in American cases on the
subject of use. In view of the confusion which seems to exist in
the decisions, a specific statement on this subject will be left to later
and special treatment.59

55. Wood v. Waud, supra; Mason v. Hill, supra; Wiel, op. cit. (footnote
19), pp. 246-247; Hutchins, op. cit. (footnote 5), pp. 38-39.
56. Wiel, op. cit. (footnote 19), pp. 245, 248, 253.
57. Wilp.. cit. (footnote 27), p. 145; Arkwright v. Gill, 5 M&W 203, 151
Eng. Rep. 87 (1839); Acton v. Blundell, supra. Note that the court in Acton
v. Blundell seems to rely upon Roman law in view of the lack of "no direct
58. Bassett v. Salisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec. 179 (1862);
Hutchins, op. cit. (footnote 5), p. 158.
59. Hutchins, op. cit. (footnote 5), pp. 111-114; Rawstron v. Taylor, 11 Ex.
369, 156 Eng. Rep. 873 (1855); Broadbent v. Ramsbothom, 11 Ex. 602, 156 Eng.
Rep. 971 (1856); 24 MINN. L. RE. 891-939 (1940); DOMAT, J., THE CIVIL
LAW IN ITS NATURAL ORDER, vol. I, par., 1583, p. 616, CUSHING ED. (1853).



The American system of prior appropriation has been said to have
Y had its origin in the mining camps of the western States, particu-
larly in alifornia, nd tnhe iige areas of Arizona an-New
Mexico established originally under the Indian, Spanish and Iviexi-
can occupations.--
This system recognizes water rights as real property limited to --
a right of use un ter is takenhen it e-
comes, in most States, personal property. In this general respPec
of the rights of use, the prior appropriation and common law sys-
tems for watercourses are very much alike. They are also alike in
that the rule of reasonable ise apphlieP thuoh its underlying basis
diers m the tw systems, the appropriation system placing greater
emphasis upon the beneficial nature of the use and the common law
system placing greater emphasis upon the claims to water rights of
all other riparian proprietors. In California, where the distinction
formerly prevailed, the two doctrines are now exactly alike in this
There is some disagreement among students as to the origin of
our Western custom of appropriating water. One view is that it
S came from the Indian, Spanish and Mexican occutons. Another
view is that it was born of necessity in the Clifornia gold mining
camps. The weight of opinion seems to favor the latter in view o
the specc pr e whh ese
have been followed in many western States. It is clear that th
mining customs which recognized property rights by reason of dis-
covery and development, as the basis for establishment and continu-
ance of title, have had an important bearing upon the adoption of the
doctrine of prior appropriation since the latter depends upon the
taking of possession of water and putting it to beneficial use within a
reasonable time as the basis for establishment and continuance of
title. Both in the case of irrigation and in the case of mining, the
Sue of land and the use of water are very closely associated forone
without the other has limited value. Water is generally considered
appurtenant to the land, though not inseparably so.62
3d ed., 40-49 (1914); COLBY, W. E., 4 CALIF. L. REv., 437-452 (1916);
Ricketts, op. cit. (footnote 29) ; Hutchins, op. cit. (footnote 5), pp. 27-29, 64-69;
Report to Governor of Kansas, op. cit. (footnote 16), p. 21; CoLBY, 33 CALIn.
L. REv. 371 (1945); U. S. v. Gerlach Live Stock Co., supra, together with
footnote on historical background of water doctrine.
61. Wiel, op. cit. (footnote 23), p. 20; Hutchins, op. cit. (footnote 5), pp.
28-29; Report, Water Resources Law, op. cit. (footnote 6), pp. 175-178.
62. Ricketts, op. cit. (footnote 29), p. xxiii; Hutchins, op. cit. (footnote 5),



Prior to the American occupation of the West, this vast area was
under the control of Indian tribes and subsequently, the French,
Spanish, Mexican, and British Governments. The area involved
in the Louisiana Purchase was acquired from France in 1803, a year
before the Code Napoleon was promulgated in France and nine years
before it was adopted in Louisiana. Mexico gained her independence
from Spain in 1821 and Texas, her independence from Mexico in
1836. California and adjacent territory, which later became part of
Arizona, were acquired from Mexico in 1848 and 1853. The North-
west Territory was acquired from England during the same general
period. These changes in jurisdiction took place shortly before or
shortly after the decisive water rulings in England. Thus, except
for the State of Texas and scattered localities held in private owner,
shi a rec ze as suc e entire e came uic domai
under the control of the Federal Government. This has profoundly
affected all Western water law and programs. It contrasts sharply
with the situation in the eastern States, though the original thirteen
states ceded to the Federal Government much of their lands lying
toward the Mississippi River. In turn, the Federal Government
granted large areas of wet lands to the newly formed states east of
the Mississippi but west of the original states. Later the G6vern-
ment granted vast acreages of both wet and dry lands beyond the
Mississippi to private individuals, transportation companies, and the
states which were formed out of the public domain. I the Great
Plains almost all of the public domain passed into private owners-ip
but in the Intermountain Plateau country, most of the land remamineh
It appears that there were local Indian water customs in effect
in this territory, especially in the States of Arizona and New Mexico.
Water was diverted from streams for irrigation of alluvial valleys
without regard to whether or not lands w re contiguous to the
streams. Diffused surface waters were caught and distributed by
crude rock-spreading devices over sloping mesa lands.64 But it is
not clearly evident as to the extent to which Indian customs of water

pp. 67, 385; U. S. v. Gerlach Live Stock Co., supra. See, especially, COLBY,
63. Colby, op. cit. (footnote 55), p. 370; CoLBY, 36 CALIF. L. Rev. 355-389
(1949); COLBY, JOUR. OF MINES AND GEOL., vol. 46, No. 4, pp. 483-508 (Octo-
ber, 1950).
64. Personal observations of relic and other works near Mesa and Safford,


---------- ---- -----^-----^----------"*'*""""-- ----


use found their way into and were specifically sanctioned by law,
except for those affecting community irrigation systems known as
S acequias under Spanish and Mexican rule. These were and still
are protected and recognized by later occupation authorities."
The Spanish and Mexican occupations brought water customs to
the West, especially the Southwest, and continued to recognize some
of the Indian customs. These customs not only concerned rights
to water by reason of diversion and use under a policy of appropria-
tion but extended to the formation of group water organizations."6
There were also grants of water rights by the governments along
with grants of lands, especially for towns known then as pueblos.
The rights of these pueblos have been protected and extended by
American law.e7

In 1847 the Mormon colonists reached Salt Lake Valley and started
the practice of cropland irrigation during that year through direct
diversion from streams. The next year gold was discovered in Cali-
fornia. These two new developments attracted settlers, miners and
fortune seekers from all over the world. We are told that the
miners brought with them customs from other mining areas.68
The gold and water were part of the public domain for the most

Arizona and Taos, New Mexico; Clough v. Wing, 2 Ariz. 371, 380, 17 Pac.
451, 455-456 (1888); Hagerman Irr. Co. v. McMurray, 16 N. M. 172, 113 Pac.
823 (1911); SOILS AND MEN, Yearbook of Agriculture, USDA, p. 693 (1938);
Hutchins, op. cit. (footnote 5), pp. 66-67; Report, Water Resources Law, op. cit.
S (footnote 6), p. 175. See also existing community system of irrigation at Isleta,
New Mexico.
261-272 (Jan., 1928) with references therein. See also Act of Congress, March
3, 1851, 9 STAT. 631. No attempt is here made to consider recognition of Indian
water rights on reservations.
66. U. S. v. Rio Grande Dam & Irr. Co., 9 N. M. 292, 51 Pac. 674 (1898);
Boquillas Land & Cattle Co. v. St. David Coop. Comm. & Devel. Assoc., 11
Ariz. 128, 89 Pac. 505 (1907); Maricopa County N. W. C. Dist. v Southwest
Cotton Co., 39 Ariz. 65, 4 Pac. (2d) 369 (1931); Tatterfield v. Putnam, 45
Ariz. 156, 41 Pac. (2d) 228 (1935); Hutchins, op. cit. (footnote 60), pp. 263-
272; U. S. v. Gerlach Live Stock Co., supra.
67. Felix v. Los Angeles, 58 Calif. 73, 79-80 (1881); Lux v. Haggin, 69
Calif. 255, 328-331, 4 Pac. 919 (1884); Vernon Irr. Co. v. Los Angeles, 106
Calif. 237, 250-251 (1895); Los Angeles v. Pomeroy, 124 Calif. 597, 639-640, 57
Pac. 585 (1899); Los Angeles v. Los Angeles Farm. & Mill. Co., 152 Calif.
645, 650-653, 93 Pac. 869, 1135 (1908); Los Angeles v. Hunter, 156 Calif. 603,
608-609, 105 Pac. 755 (1909); San Diego v. Cuyamaca Water Co., 209 Calif.
105, 116-132, 152-165, 287 Pac. 475, 287 Pac. 496 (1930).
68. Colby, op. cit. (footnote 55), p. 370; Report, Water Resources Law, op.
cit. (footnote 6), p. 177; MgAD, IRRIGATION INSTrrUTIONS, pp. 42-48.


part. Placer mining and irrigation required enormous quantities of
water. These were artificial uses and required diversion and con-
veyance of water to lands not contiguous to the streams.
At tht t w t r cable to the
public domain because nress had not slated on the matter.
Other foreign laws were not considered applicable to the new de-
velopments. In these circumstances the miners were technical tres-
passers and the gold and water are said to have belongedto the
gover-&iie-ii Coieitition over mining claims and water supplies
brought on serious conflicts. to reduce bloodshed and facilitate work. Here is where the"_'custmfi
of me digns Ts satoave ted in which priority ot trs-
covery and diligent prosecution of development of claims became the
custom and policy. The system of holding local meetings, formation
of mining districts, and recording ot claims, together with develop-
ment orofrules of conduct, are said to have led to the establishment of
the doctrine of pror ppropriation and beneficial use of water, and
the administration of water rights first on a county and later on
a statewide basis.69
From 184to 1: 0, when California was admitted to the Union,
there were no territorial water a" 5in that area. Upon its admis-
sion, the new state adopted the common law of Englan aste erue
ofdei pn. InT85 eegaire
recognizing the custom of the miners as local rule of law. These
recognized customs continued in effect in technical conflict with the
adopted common law principles for many years. This presented the
courts with new problems for here were two opposing systems of
water law, one growing out of custom and the other being borrowed
from other jurisdictions.70 This did not reach decisive issue, how-
ever, until 1886.71
As each succeeding state on the Pacific Coast and in the Great
Plains was admitted to the nioni a4go ted the Fngls on
lawLast~"thrle of decision. "Te courts of these states and California
heM t oivd1ii the comliiu law of watercourses. But
states formed the Intermountain -'lateau region, where water '
shortage conditions have always been extremely critical and the land

69. Colby, op. cit. (footnote 55), pp. 370-371; Ricketts, op. cit. (footnote 29);
Hutchins, op. cit. (footnote 5), p. 67.
70. CAIP. CIVIL PRACTICE ACT, April 29, 1851, 621, now 748, CODE
CIVIL PRocEDumEs; Colby, op. cit. (footnote 55), pp. 370-371; U. S. v. Gerlach
Live Stock Co., supra.
71. Lux v. Haggin, 69 Calif. 255, 10 Pac. 674 (1886). See summary of this
and subsequent cases reported by Hutchins, op. cit. (footnote 50), pp. 45-48
and U. S. v. Gerlach Live Stock Co., supra.



is primarily in Federal ownership, never did adopt the common law
o watercourses or completely brogat it as enrel inapplica 72 \/
This decision accorded with practical considerations and seems 'to
S have been a very sound one.
These two broad approaches to the establishment of a system of
water rights resulted in two different concepts of the derivation of
title, one called the CaU a *nctine (du t riparianand
a _ropriative rights) ~ tetercalled the
S single appropriative rights system).73
The California concept rested on the theory of the to aro-
priate water upon ve
as owner, first ympl-in rman hy r -
girt' "TM~ Colorado concept rested pon the theory that these
rights derived from the public ownership of the waters by the people,
of the states involved in which the United States had na greater
Proprietary capacity than a private landowner and particularly he-
cause the common law of watercourses was wholly unsuited to the
semi-arid conditions. In other words, the California concept started
with a Fe era ie from which riparian rights are deduced while
the Colorado concept started with a rejection of riparian rights from
which rejection of Federal title follows.74 It would seem that if one
recognizes, as Congress and the western States did, the custom of
prior appropriation as suited to the West, then the existence of the
riparian doctrine is thereby negatived and the common law so modi-
fied; for, the two doctrines of water law are directly in opposition
in respect o water use and its relationship to the land.
In 1866 and 1870 Congress acted to recognize and confirm th
, customs otp ior ap ro p1tiona ,,t-nng n, = n was
followed by otr important legislation which strengthened water
rights customs as having sanction of law and also encouraged the de-
velopment of water. T es r events have been
interpreted having-nntitdrecoition of pre-existing rig ts
possession and to have severed the water fromte tand in the
Sdomai right of the states to adopt whatever systems
ot er rghts law they choose, so long as these do not violate con-

72. Hutchins, op. cit. (footnote 5), pp. 30-31, 38-39.
73. Wiel, op. cit. (footnote 23), pp. 173-228; Hutchins, op. cit. (footnote 5),
p. 31.
74. Hutchins, op. cit. (footnote 5), p. 31.
75. Hutchins, op. cit. (footnote 5), pp. 36, 70-73; REPORT, PRESERVATION OF
INTEGRITY OF STATE WATER LAWS, NAT. REL. Assoc., pp. 49-54 (1943);
Colby, op. cit. (footnote 55), pp. 371-374; U. S. v. Gerlach Live Stock Co.,

I 1 1_____ __~~_r~__ ~ 1_1 __ ~

1, ,




stitutional provisions was also upheld.76
Other western States as well as California recognized prior appro-
priation customs and also adopted statutes rovidin for state-wide
a mnis ra on, exception Montana where the county basis stU11 77
A few states adopted the strict English com an w for ground
water t ... fncorrelative rights, and others the ap-
propriation doctrine. But the extent of adoption in each case varies
with respect to well defined subterranean channels and percolating
waters.7s A decision of the Arizona Supreme Court rendered in
January, 1952, purported to adopt the appropriation doctrine for per-
colating ground waters.79 However, a rehearing has been granted
and the decision thereon is still pending.
Determinations with respect to diffused surface waters in the West
have been made mainly by the courts. It seems that the owner of
the land on which they arise may make rea e use of these waters
but this is not an absolute right, as it appears to ben England, for
downstream interests are involved. These interests have rights to
stream flow which originates, in part at least, upon watersnet lands.
In addition, the so-called California-doctrine States further modi-
fied the riparian doctrine. These changes are briefly summarized
hereatter because of their bearing upon problems involved in shift-
ing from a riparian system to a dual system and finally to the ap-
propriation system in large part. Since thisseems to be a broad but
slowly developing trend, it may have implications for some of the
eastern States as their population, industry and agriculture expand
to anticipated levels, and as competition for water becomes more acute.

The adoption of the two divergent systems of water rights by the
different groups of states, above referred to, did not settle the prob-
lems of Western water development and use, by any means. The
two systems did open the way for and aided materially the establish-
ment of title to waters, as the vast majority of cases indicates.
The major problems of reconciling conflicting uses and balancing
supply of and demand for water presented difficult issues for the
76. Hutchins, op. cit. (footnote 5), p. 34 with cases cited in footnote 33
77. Wiel, op. cit. (footnote 23), pp. 177-180; Hutchins, op. cit. (footnote 5),
pp. 31, 68, 74-107.
78. Hutchins, op. cit. (footnote 5), pp. 147-151; Part III, 182-264.
79. Bristor v. Cheatham, supra.
80. Hutchins, op. cit. (footnote 5), pp. 110-145.



courts and the legislatures. Whereas, in the beginning of the United
States occupation, mining in upstxram areas was' the dominant en-
Sterprise in many watersheds, use for production of hay and crops
| ot all kids m V DO- !" V 1 {inr
1 inustal expansion and the conseqcittent need f6r food and fiber.
These aspects were also reflprA"^ '' ug na -tr by nun-
WitI the needs for water outrunning the supply in recent years,
S the question of conservation seems to have beeemphasized more
thante question of establishment of title to waters. As a result,
the decisions reflect greater emphasis upon the ftue of reas-onaable
beneficial use. But the judicial standard of what constitutes reason-
able benecial tuse tor irrigation seems to have lagged tar behind
that ot the better scientific iraiee rw I" ,t ;- .sil
conservation districts. As these practices become more widely ac-
cepted in local areas, it is to be hoped that the courts will thereby find
an adequate basis for emphasizing judicial standards more nearly
approaching scientific standards.
The influence of and changes which took place in the two systems
of law may be seen by review of decisions in a few of the states which
made up the two broad groups. Though their divergent concepts were
very important when originally developed, there now seems to be a
tendency among all western States for gradually developing one broad
theory of water law directed toward development and beneficial use.82

4 The practice of hydraulic gold mining caused so much damage to
lower lying areas that it was nearly put out of business after the
famous Debris cases. But the canals which had supplied water for
this activity and then ceased to be used for some time were liter found
to be suitable in providing water for irrigation and power purposes.
The mining, irrigation, power and municipal uses were often appro-
priative in nature but not entirely so; for, some were considered
riparian uses. These and the lower valley uses, which had become
established during and shortly after the Debris cases, later came into
conflict.83 Subsequently there were conflicts between the irrigation,
power and municipal uses.8_

i81. Wiel, op. cit. (footnote 3), p. 253.
82. Hutchins, op. cit. (footnote 5), pp. 78-80. Note: Most western States
have dedicated unappropriated waters of the state to public purposes.
83. Wiel, op. cit. (footnote 3), pp. 254, 260, 266, 268.
84. See cases op. cit. (footnote 62); Holt v. Cheyenne, 22 Wyo. 212, 137 Pac.

_r~C 1



The first decision in California in a major controversy between
claimants of riparian rights on the one hand and of appropriative
rights on the other came in 1886.85 This upheld the riparian rights
rof the landowners using flood waters for private meadow lands as
against prior appropriators using water for irnaton. Thisdecision
Sine ... oU'., l tvie .,,ne1 prior ap proportion to 1hl a ,
and reco zed common lawrghs tsor private lands, erei ere
theI egnrz -t hu gr, s and the legisla-
ture came up against the common law adopted when the state was
admitted to the Union. The ruling in this case profoundly influenced
California water law, and its effect is said to have spread to other
The dominant position of riparian rights, requiring the mainten-
ance of the natural now of streams, became so restrictive of de-
velopment of surplus stream flow that, following upon its reaffirma-
tion in a subsequent major decision in 1926, and in spite of the
possibility o alternative physical and financial solutions which might
have been accepted by the court.87 the state turned to constitutional
amendment. All this harks back to the adoption of the English com-
mon law as rule of decision.88
The amendment adopted in 1928 not only limited riparian rights
to reasonable use by reasonable methods of diversion but affected all
other water rights too.89 It was subsequently upheld as not subject
to attack under the Federal Constitution.90 And though injunction
no longer lies in such situations, the right remains fully compensable.91
Generally speaking ths mPenmP t ms to have restricted riparian
as we as other rights in such a way as to open up o velopment
and use by appropriate and other means a considerable portion of
the surplus reserves of stream flow and of ground water basins too.

876 (1914) ; Meridian v. San Francisco, 13 Calif. (2d) 424, 90 Pac. (2d) 537
(1939); Denver v. Sheriff, 105 Colo. 193, 96 Pac. (2d) 836 (1939); Beus v.
Soda Springs, 62 Idaho 1, 107 Pac. (2d) 151 (1940).
85. Lux v. Haggin, 69 Calif. 255, 10 Pac. 674 (1886); Wiel, op. cit. (foot-
note 3), pp. 256-259; Hutchins, op. cit. (footnote 5), p. 45.
86. Wiel, op. cit. (footnote 3), p. 259.
87. HeriPhffghaws-veouthern Cal. Edison Co., 200 Calif. 81, 252 Pac. 607
(1926); Wiel, op. cit. (footnote 3), pp. 268, 269, 274; Hutchins, op. cit. (foot-
note 5), p. 45. Note: This ruling included all annual flood flows as natural
WEST, 10 CALIF. L. REV. 443, 455; 189 Calif. 779, 791.
89. CALF. CoNsT., Art. XIV, 3; Peabody v. City of Vallejo, 2 Calif. (2d)
351, 366, 40 Pac. (2d) 486, 490 (1935); Wiel, op. cit. (footnote 3), pp. 274-294;
Hutchins, op. cit. (footnote 5), p. 45.
90. Peabody v. Vallejo, supra; Hutchins, op. cit. (footnote 5), p. 45 with
footnote citations.
91. U. S. v. Gerlach Live Stock Co., supra.


However, it left riparian and overlying rights (served by ground
water) in a dominant position but not to the extent which previously
The developments in ground water law, aside from that already
indicated, seem to have paree the developments the law
watercourses to some extent at least. Following adoption of the
common law as rule of decision, the courts established in 1871 the
rule of absolute ownehip.93 This was replaced in 1903 by the rule- -1-;
Sof correlative rights, oie effect of which was to protect local users
from exportations of water to distant points of use. Surface waters
and ground waters were recognized as one source of supply where
they were shown to be interconnected.94 But exportaton was later
permitted for surplus waters.Y It was also held that rights min
ground waters may be acquired by prescription though the and-
o 7poi timely acHti, may have a clecararor-y decree CC UroUect \
hisecently the rule of prescription has been extended to
the new concept of mutual prescription.97

As in California, the existence of the riparian law was acknowl-
edged early by the Oregon courts.98 But the use of water for irri-
gation was permitted along with the domestic and livestock uses
originally allowed.99 These rights were held to attach upon acquisi-
tion of title to public domain.'10 But such rights could be lost by
however, tis common law trend of decisions was early affected
by the Congressional acts, previously referred to, recognizing rights
t of appropriation on public domain.102 This legislation was construed

92 Meridian v. San Francisco, supra; Hutchins, op. cit. (footnote 5), pp.
45-46; Report, Water Resources Law, op. cit. (footnote 6), p. 717.
93. Hanson v. McCue, 42 Calif. 303, 10 AM. Rar. 299 (1871); Hutchins,
op. cit. (footnote 5), p. 159.
94. Katz v. Walkinshaw, 141 Calif. 116, 128-137, 70 Pac. 663 (1902), 74
Pac. 766 (1903).
< 95. Burr v. Maclay Rancho Water Co., 154 Calif. 428, 98 Pac. 260 (1908).
96. Hutchins, op. cit. (footnote 5), p. 160.
97. Pasedena v. Alhambra, 33 Calif. (2d) 908, 925-926, 928-933, 207 Pac.
(2d) 17 (1949).
O *Note: The following material on Oregon and Kansas is based largely upon a recent
summary, not as yet published, prepared for the writer by Wells A. Hutchins.
98. Taylor v. Welch, 6 Oreg. 198, 200 (1876).
99. Coffman v. Robbins, 8 Oreg. 278, 282 (1880).
100. Norwood v. Eastern Oregon Land Co., 112 Oreg. 106, 111, 227 Pac. 1111
< (1924); Faull v. Cooke, 19 Oreg. 455, 464, 26 Pac. 662 (1890).
101. Norwood v. Eastern Oregon Land Co., supra.
102. 14 STAT. L. 353, 9; U. S. REV. STATS., 2339 (July 26, 1866);
15 STAT. 218; U. S. REv. STAT., 2340 (July 9, 1870).


by the Oregon Supreme Court to permit appropriation of waters on
the public domain as against the cotmnon law rule regarding continu-
ous natural flow.103 The Court indicated that riparian and appropria-
tive rights could exist in the same locality,104 but almost at the same
time indicated that these rights were incompatible.105 The court be-
gan to encounter difficulties, however, after recognizing and then
attempting to apportion water among riparian proprietors.'06
The court also developed another approach to the problem by hold-
ing that a water user must elect to stand on a riparian or an appro-
priative right.107 And once one or the other is elected, the user
thereby waives the other alternative.108 This attempt at reconciling
the two opposing theories of water rights seems to have had con-
siderable effect upon the water law of Oregon.
About this time the court had occasion to interpret the Desert
Land Act of 1877,109 together with the related acts of 1866 and 1870,
to permit appropriation upon the public domain of surplus waters of
non-navigable streams, subject to established rights; and to thereby
abrogate the common law doctrine, except for domestic uses.110 This
was upheld by the U. S. Supreme Court.111
Then in 1909 the "Water Code" further limited vePte, riparian
rights to the extent of actual application of water to beneficial use
prior to the passage of the statute or actual application to beneficial use
witin a reasonaDie time thereafter by means of works then under
construction. In either casethe limitation applied to situations which
existed prior to the statute. It thereby cut off future uses which iad
not been initiated prior tothe establishment of the new policy. J
also provided an exclusive procedure for the adjudication o these
rights.""2 This code, including the new definitions contained therein,

103. Hough v. Porter, 51 Oreg. 318, 383-386, 95 Pac. 732 (1908); 98 Pac.
1083 (1909); 102 Pac. 728 (1909).
104. Williams v. Altnow, 51 Oreg. 275, 300, 95 Pac. 200, 97 Pac. 539 (1908).
105. In re Sucker Creek, 83 Oreg. 228, 234, 163 Pac. 430 (1917).
106. Jones v. Conn, 39 Oreg. 30, 37, 46, 64 Pac. 855, 65 Pac. 1068 (1901);
Hough v. Porter, supra; Caviness v. La Grande Irr. Co., 60 Oreg. 410, 421-422,
119 Pac. 731 (1911); In re Sucker Creek, supra.
107. Low v. Schaffer, 24 Oreg. 239, 246, 33 Pac. 678 (1893); Williams v.
Altnow, supra; State ex rel. Pacific Live Stock Co. v. Davis, 116 Oreg. 232,
236, 240 Pac. 882 (1925).
108. Davis v. Chamberlain, 51 Oreg. 304, 311, 98 Pac. 154 (1908); In re
Sucker Creek, supra.
109. 19 STAT. L. 377 (March 3, 1877).
110. Hough v. Porter, supra.
111. California-Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S.
142, 160-163 (1935); Hedges v. Riddle, 63 Oreg. 257, 259-260, 127 Pac. 548
112. O-rGoN LAWS 1909, ch. 216; OREG. COMP. LAWS ANN., I 116-40,
116-402 (1940).

was upheld by the Oregon Supreme Court as proper under the police
power of the state.118 It was also upheld it the Federal Circuit
Court of Appeals.114 The decree was affirmed by the U. S. Supreme
Court but upon somewhat different grounds.115
Through the foregoing and other processes. it is cear that in Ore-
gon the effect of court decisions and acts of the legislature was to
reduce progressively the effectiveness of the common law doctrine
and to increase the ettectiveness of the doctrme ot prior appropriation.
T his appears to have come about by reason of necessity. As a conse-
quence the old doctrine has been reduced to the point whefreit sbI
ceased to be of much importance.

The changes which took place in Kansas were quite similar to those
J in Oregon but much more abrupt and M in very recent years. The
common law doctrine was held to apply here by reason of adoption
of the English common law when Kansas was still a territory116
SModificaton of the strict riparian priciles was permitted how-
ever.117 It was upheld as late as 1944 as against an appronriator
attempting to acquire water rights under the statutory procedure.118
And even in 1949, prior to the interpretation of the new 1945 statute,
the court discussed these same principles.119 It should be kept in
mind, in these connections, as indicated previously, that the Great
Plains states, though originally public domain, were rapidly taken up
as homesteads and state school sections or railroad lands. Thus,
whereas in the far West much land remained and still is part of the
public domain, this situation has not obtained in Kansas.
Faced with this limitation on the development and beneficial use
Qf water, the legislature adopted a new appropration statute after
others had been found to be ineffective.120 This new act strengthened

113. In re Willow Creek, 740 Oreg. 592, 610-620, 627-628, 144 Pac. 505
(1914), 146 Pac. 475 (1915); In re Hood River, 114 Oreg. 112, 173-182, 227
Pac. 1065 (1924).
114. California-Oregon Power Co. v. Beaver Portland Cement Co., 73 Fed.
(2d) 555 (C.C.A. 9th, 1934).
115. California-Oregon Power Co. v. Beaver Portland Cement Co., supra.
116. Shamleffer v. Council Grove Peerless Mill Co., 18 Kans. 24, 31-33
(1877); Frizell v. Bindley, 144 Kans. 84, 91-92, 58 Pac. (2d) 95 (1936).
117. Emporia v. Soden, 25 Kans. 588, 606 (1881).
118. State ex rel. Peterson v. State Board of Agriculture, 158 Kans. 603,
605, 149 Pac. (2d) 604 (1944).
119. Heise v.Schulz, 167 Kans. 34, 41-43, 204 Pac. (2d) 706 (1949).
120. KANS. LAWS 1886, ch. 115; KANS. LAWS 1941, ch. 261; KANS. LAWS
1917, cGlT/.7 See State ex rel. Peterson v. State Board of Agriculture, supra;
KANS. LAws 1945, ch. 390, GEN. STATS. 1949, U 82a-701 to 82a-722. See also


the appropriation doctrine and reduced the advantage of the location
of lands contiguous to streams. The experience in Oregon and Ne-
braska was drawn upon heavily in accomplishing this task. This
statute was upheld by the Kansas Supreme Court.121
Kansas appears to have adopted the strict common law rule in re-
Sspect to ground we but later modified this.122 A late as 1944, it
was neic to prevent appropriation of ground waters under the sta-
tute.12 This situation was shortly thereafter cured by the new ap-
propriation statute.124

In 1872 the Territorial Supreme Court of Colorado enlarged the
concept of prior appropriation to cover waters upon all lands in the
area, public or private.125 This was reiterated in 1882 by the State
Supreme Court, after statehood was attained in 1876.126 This trend
seems to have spread among the other states in this group. In view
of the rather uniform approach for running streams adopted by this
group of states, only a brief statement will be made in respect of
ground waters for three representative states, because changes are
well summarized elsewhere.127
In Utah all waters, both above and under the ground, are declared
to be public waters available for appropriation, subject to existing
rights. The appropriation doctrine has existed from the beginning,
though the common law doctrine was not declared to be repudiated
until 1891. The statutory method is the exclusive method by which
the appropriation of water is now made.128
The situation in Arizona has been similar to other Colorado doc-
trine states except for percolating ground waters. These were con-

Report to Governor of Kansas, op. cit. (footnote 16), p. 79, prepared in con-
nection with development of recommendations to the state legislature for the
/45 statute.
121. State ex rel. Emery v. Knapp, 167 Kans. 546 555-556 207 Pac. (2d)
440 (1949) ; Report to Governor of Kansas, o. cit. (footnote 16), pp. 25-31.
122. Emporia v. Soden, supra; Jobling v. Tuttle, 75 Kans. 351, 360, 89 Pac.
699 (1907); Gilmore v. Royal Salt Co., 84 Kans. 729, 731, 115 Pac. 541
123. State ex rel. Peterson v. State Board of Agriculture, supra.
124. KANS. LAWS 1945, ch 390; GEN. STATS. SuPP. 1947, ch. 82a, art. 7.
125. Yunker v. Nichiot-1 o'I. 551 (1872).
126. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).
127. Wiel, op. cit. (footnote 3), p. 258; Hutchins, op. cit. (footnote 5), pp.
128. See Water Resources Law, Appendix B, op. cit. (footnote 6), pp. 766-
770 (1950).



sidered the property of land owners in 1906.129 This year, 1952,
the Arizona Supreme Court stated that the appropriation doctrine
applies to these as well as other ground waters. However, a re-
hearing has been granted and decision thereon is pending.
In New Mexico, the common law of riparian rights was early held
not to be in force and the appropriation doctrine was held to have
existed by custom, judicial decision and necessity.131 This state
pioneered in ground water control and its history is important from
constitutional and administrative standpoints.13a

129. Howard v. Perrin, 8 Ariz. 347, 353-354, 76 Pac. 460 (1904); Howard v.
Perrin, 200 U. S. 71 (1906).
130. Bristor v. Cheattam, supra.
131. Trambley v. Luterman, 6 N. Mex. 15, 25, 27 Pac. 312 (1891); U. S. v.
Rio Grande Dam & Irr. Co., 9 N. Mex. 292, 306, 51 Pac. 674 (1898); Albu-
querque Land & Irr. Co. V. Gutierrez, 10 N. Mex. 177, 236-237, 61 Pac. 357
(1900); Snow v. Abalos, 18 N. Mex. 681, 693, 140 Pac. 1044 (1914).
132. See, Water Resources Law, Appendix B, op. cit. (footnote 6), pp. 744-





The origin of the rights of the states to their natural resources is
nowhere better stated than by Mr. Justice Stone in the case of Com-
monwealth of Massachusetts v. State of New York:1 '

"The English possessions in America were claimed by right
of discovery. The rights of property and dominion in the lands
discovered by those acting under royal authority were held to
vest in the crown, which under the principles of the British
Constitution was deemed to hold them as a part of the public
domain for the benefit of the nation.... As a result of the Revo-
lution the people of each state became sovereign, and in that
capacity acquired the rights of the crown in the public do-

The same principle was applied with respect to new states formed
out of the territory of the original thirteen states.2 However, title
to lands ceded to or purchased by the United States is vested in the
United States subject to treaty provisions and subsequent grants.
The state is also the owner of all things ferae naturae. And in the
well known case of Georgia v. Tennessee Copper Co.3 in which the
State of Georgia sought to enjoin defendant Copper Companies from
discharging noxious gases from their works in Tennessee over the
lands in Georgia to the great injury thereof the Supreme Court of
the United States, speaking through Mr. Justice Holmes, said:

"This is a suit by a State for an injury to it in its capacity
of quasi-sovereign. In that capacity the State has an interest
independent of and behind the titles of its citizens, in all the
earth and air within its domain."

Chanellor, Professor of Jurisprudence and Dean, Department of Jurisprudence, College
of William and Mary.
1. 271 U. S. 65, 79 (1925).
2. Pollard v. Hagan, 3 How. 212 (U. S. 1844).
3. 206 U. S. 230, 237 (1906).


In a series of cases culminating in Untite States v. State of Louisi-
S ana,4 the Supreme Court of the United States has held that no state
has any title to the natural resources under tidal waters. (No, not
even Texas.)5 The Court speaking through Mr. Justice Douga
"The claim to our three mile belt was first asserted by the
national government. Protection and control of the area are in-
deed functions of national external sovereignty. The marginal
sea is a national, not a state concern. National interests, na-
tiona Rspns ji n scensar l
lems of commercenational defense relations with other powers.
wa nd peace focus there. Nati rights must therefore be
paramount in that area."6

There has been much speculation as to who owns he Until
recent years ts speculation as been aost entirely academic, but
since the advent of aviation and artificially induced rainfall the ques-
tion has already become of practical im rtance d will undoubtedly
increase in imp s on. The private owner o the
surface as some rights, at least as far up as is needed by him for
the quiet enjoyment of the surface and structures on the surface.
In fact The Unics Act even states:
"The ownership of the space above the lands and waters of
this Stae is declared to be veste i e seel owners of the
surfa--e-behneath, su righ of A,.r-ih1 'Z.=c-
While this Act has been withdrawns from the active list of recom-
mended uniform acts by the Commission on Uniform State Laws
it has been adopted by some twenty-one states.
As clouds are ferae naturae, fugitive in nature, and exist over
sovereign states argualMatee-

"-ftee-other states of the Union are affected by another's use of
the clouds and since our national defense and our interstate com-
4. 339 U. S. 6 .99 15W.
5. Unite States v. Texas, 339 U. S. 707 (1950).
6. 339 U. S. 699, 704 (1950).
7. UNIFORM AsRONAUTICS ACT, 3, 11 U. L. A. 160 (1938).
8. 11 U. L. A. (1949 Cumulative Annual Pocket Part, p. 11).

1 I i --. --~--- ~- ~7


merce and our navigable streams are vitally connected with the
atmosphere it is arguable that the United States also has rights. Mr.
Gus O. Hatfield in discussing legal problems raised by artificial rain- ,
making concludes a note in the Vanderbilt Law Review as follows :9
"On the other hand, property interests and individual rights
must be protected against unwarranted invasions by the negli-
gent or capricious rain-maker. The only feasible solution ap-
pears to be some form of governmental relation. If is doubtful
tha "compiely essrfico-rs could be imposed at the state
level, since interstate problems are certain to arise whenever
weather control is attempted on any substantial scale. All of
the problems which exist, especially the property aspect will be
duplicated at both interstate and international levels. The effects
of an artificially induced rainstorm cannot be confined to political
boundaries. It therefore appears likely that in the near future
it will be necessary to regulate rainmaking, not only by rules of
nation-wide application, but also by international treaty."

There are various classifications of waters resulting from precipi-
tation, but for the purposes of this paper I will use the following:
(1) Waters flowing either on the surface or under
SYeaonabl ascertainable wel dene (2) Surface waters
ndr in l sa alwelLd sala l and no collected
in ral ponds and lakes; (3) Underground waters not flowig
in a -we eined cnnecommonly caled percolting waters and ar-
Waters flowing on the surface in a reasonably well defined channel
are either navigable or non-navigable though some writers have still
a third kind, namely floatable but not navigable.
What are the rights of the states in each of these?

The waters of navigable streams and the beds of such streams are
the property of the states subject however to certain rights of the
federal government and of riparian owners. The prevailing test of
navigability in the United States is one of fact. A stream is navi-
gable when it is used, or is susceptible of being used, in its ordinary
9. 4 L tw 7; See also BALL, SHAPING THE LAW OP


condition, as a highway for commerce, over which trade and travel
are or may be conducted in the customary modes of trade and travel
on water.10
It is equally well settled that the states do not own the waters or
beds of non-navigable streams. Thus in a Virginia case, Garden
Club of Virginia v. Virginia Public Service Company,11 it was held
that a statute giving certain jurisdiction of the "waters of the state"
to the State Corporation Commission had no application to the waters
of a non-navigable stream, and hence in that case permission of the
State Corporation Commission was not a prerequisite for the con-
struction of a dam sixty-three feet high and four hundred fifty feet
long near Goshen Pass in that State.

The Report of the President's Water Resources Policy Commission
lists seven major limitations of the states on their powers of control
of and use of their waters.1 It is certain that some of these will be
hotly denied by many, but at least they are worthy of our considera-
The most important of these limitations is that of the commerce
power. Where a river is used for the transportation of goods in
Interstate commerce even though the river is an intrastate one (such
as the James River) it is a public highway. Mr. Chief Justice Mar-
shall as early as 1824 in Gibbons v. Ogden,1s said:

S"The power Cnrs enmrhon "f-*";t"n naith-

tion may be, in any manner, connected with 'commerce wi or-
eign nations, or among the several States, or with the Indian
And in Gilman v. Philadelphia, 14 the Supreme Court said:
"Commerce includes navigation. The power to regulate com-
merce comprehends the control for that purpose, and to the
extent necessary, of all the navigable waters of the United States
which are accessible from a State other than those in which

10. See United States v. Oregon, 295 U. S. 1 (1935).
11. 153 Va. 659, 151 S. E. 161 (1930).
12. V1 W' R s LA. 5 to 7
13. 9 WHEAT. 1, 197 (U. S. 1824).
14. 3 WAI,. 713, 724 (U. S. 1865).

/ __ ______~~ _~__~II____~ ~ II~ __~_ __

71 f


they lie. For this purpose they are the public property of the
nation, and subject to all requisite legislation by Congress."
But generally, except for tidal waters there would be no navigable
streams but for the convergence of innumerable non-navigable ones.
As control of the non-navigable streams that affect the navigability
of navigable streams is or may be necessary for the control of the
latter Congress has jurisdiction over the former to the extent needed
for the protection of the latter.15
Ramifications of this right of the United States over the navigable
waters of the country include flood control projects and the develop-
ment and disposition of electric power for the exercise of the com-
merce authority by Congress is not invalidated because it elects to
serve purposes in addition to navigation, even if such other purposes
would not alone justify an exercise of Congressional power.16
Moreover the Federal Power Act17 provides for the issuance of
licenses to nonfederal agencies for the development of water power
on streams under its jurisdiction. Any private company operating
a power development prior to the passage of that Act took subject to
the powers of Congress and may be lawfully required under that
Act to accept a license with all its obligations and conditions.18

Another possible limitation on the rights of the state is the pro-
prietary power of the federal government. This power exists in a
number of phases. Article IV, Section 3, Clause II of the United
States Constitution which deals with the admission of new states
reads in part:
"The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States .."
And in United States v. San Francisco,19 the United States Su-
preme Court stated:
"The power over the public land thus entrusted to Congress
is without limitations. "
15. See United States v. Rio Grande Irrigation Co., 174 U. S. 690 (1899)
and Oklahoma v. Atkinson, 313 U. S. 508 (1941).
16. See Arizona v. California, 283, U. S. 423, 456 (1931).
17. 41 STAT. 1063, 49 STAT. 838, as amended, 16 U. S. C. 791a-825r.
18. Pennsylvania Water & Power Co. v. Federal Power Commission, 123 F.
2d 155 (C. A. D. C. 1941), cert. denied 315 U. S. 806 (1942).
19. 310 U. S. 16, 29 (1939).



In Light v. United States,20 the same court said:
"And it is not for the courts to say how that trust shall be
administered. That is for Congress to determine. "

And in Canfield v. United States,21 the Supreme Court states:
"While we do not undertake to say that Congress has the
unlimited power to legislate against nuisances within a State,
which it would have within a Territory, we do not think the
admission of a Territory as a State deprives it of the power of
legislating for the protection of the public lands though it may
thereby involve the exercise of what is ordinarily known as the
police power, so long as such power is directed solely to its
own protection. A different rule would place the public domain
of the United States completely at the mercy of state legislation."

The United States has acquired in one way or another vast tracts
of lands. In the ownership of these lands it is not an ordinary owner,
or even an ordinary riparian owner, for a state may not by legisla-
tion without the consent of Congress "destroy the right of the United
States, as the owner of lands bordering on a stream, to the continued
flow of its waters; so far at least as may be necessary for the bene-
ficial uses of the government property".22
When the United States acquires land from a state by purchase
with consent of the state the latter can with the consent of the United
States reserve certain specified rights of sovereignty," but when the
land is acquired without or despite the consent of the state the United
States is not subject to any jurisdictional control by the state which
would impair or destroy the effective use for the purpose for which
the land was acquired.24

Under the war power25 and the 1916 National Defense Act,26
Congress authorized the President to cause an investigation to be
made to determine the best means for the production of nitrates and
other products for munitions of war. Out of this legislation there
20. 220 U. S. 523, 537 (1911).
21. 167 U. S. 518, 525 (1897).
22. Kansas v. Colorado, 206 U. S. 46 (1907).
23. See Collins v. Yosemite Part & Curry Co., (taxing jurisdiction) 304
U. S. 518, 530 (1938).
24. Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 539 (1885).
25. U. S. CONsT. Art. I, 8, cls. 1, 11; Art. I, 9, cl. 7.
26. 39 STAT. 166, 50 U. S. C. A. 79.


eventually came the Wilson Dam at Muscle Shoals on the Tennessee
River and finally the whole Tennessee Valley Authority Act.
But this is fast becoming the atomic age, and Congress knows
that fact. By statutes passed August 1, 194627 there are: (1) A
declaration of policy to the effect that there be established "a pro-
gram for Government control of the production, ownership, and use
of fissionable material to assure the common defense and security
and to insure the broadest possible exploitation of the field;"28 (2)
With two unimportant exceptions the Atomic Energy Commission,
as agent of the United States, shall be the exclusive owner of all
facilities for the production of fissionable material;29 (3) "All right,
title, and interest within or under the jurisdiction of the United
States, in or to any fissionable material, now or hereafter produced,
shall be the property of the Commission;"3s and, "no person shall
have any title in or to any fissionable material;"31 (4) "As used in
this chapter the term 'source material' means uranium, thorium or
any other material which is determined by the Commission with the
approval of the President, to be peculiarly essential to the produc-
tion of fissionable materials;"32 (5) "The Commission is authorized
and directed to purchase, take, requisition, condemn, or otherwise
acquire, supplies of source materials or any interest in real property
containing deposits of source materials to the extent it deems neces-
sary to effectuate the provisions of this chapter."33
I might put in parenthetically that it would not be too surprising
if within the foreseeable future atomic power will be available for
the large scale purification of ocean water and for the pumping of
it and other waters wherever we desire for all our manifold uses.
But be that as it may, I believe that it is safe to predict that the
states as such will have little or no control over atomic energy and
the natural resources required for its utilization.

Further Congress is expressly empowered to levy taxes for the
general welfare:
"The Congress shall have power to lay and collect taxes .

27. 60 STAT. 755, 42 U. S. C. A. 1801 et seq.
28. Id. 1801 (4).
29. Id. 1804 (c) (i).
30. Id. 1805 (a) (2).
31. Ibid.
32. Id. 1805 (b) (1).
33. Id. 1805 (b) (5).

a_ ---


and provide for the common defense and general welfare of
the United States.""
SWhile the proper construction of this clause is controversial to
say the least the Supreme Court of the United States has gone so far
as to assert :3
"Thus the power of Congress to promote the general welfare
through large scale projects for reclamation, irrigation and other
internal improvements, is now as clear and ample as its power
to accomplish the same results indirectly through resort to
strained interpretation of the power of navigation."
The only certain limitation appears to be that such power should
be exercised for the common benefit as distinguished from some
mere local purpose."3 Query: What is a mere local purpose? We
have grown to be so interdependent that what is done in one locality
frequently affects in one way or another what is done in many other

T' Tght of 1h states over their water courses may be further
limited in some cases f L.
This doctrine has been chiefly applied in the western States to inter-
state streams to insure to the inhabitants of each state involved a
fair share ot tie benets rom the use o sucwaters.
shoulbe attained in sofihhin or au-

Congress in 1911 authorized in advance the entering into by the
states of interstate compacts "for the purpose of conserving the
forests and the water supply of the States.""8 To date these com-
pacts have been used chief to a the waers o interstate
streams, and to-control I The acti en tere-
uMelTs iing upon eRac state and all water claim-
ants, even where the State had granted the water rights before it
had entered into the compact.89

34. U. S. CONST. Art. I, 8, cl. 1.
35. United States v. Gerlach Live Stock Co., 339 U. S. 725, 738 (1950).
36. Ibid.
37. Kansas v. Colorado, 206 U. S. 46 (1907).
38. 36 ST'AT. 9o6, s&-6S. C. 552.
39. Hinderlider v. La Plata Co., 304 U. S. 92, 106 (1938).


Theright of the state to its navigable waters is also subject to cer-
tainrightsof riparTan owners w1fi e can tae awa b emi-
n do a ess,oFoCorse, t e te a e
riparian owner. ach such owner has eight of access to the chan-
nel, and the right to make a reasonable use of the water as it flows
byand in icnlnectg. w arial Ja es not u
reasonablpollute or divert it. The common law maxim is "Waters
should flow as they havebeen accustomed to flow". When there is
a great surplus of water r everv gej hamiaAndone by such a rule,
but when there is an acute short what rule could be more
ridiFulouiT me ect such a rule would mean, "Since there is not
e.og_ -water or-a l-no-_rie.can use-in substantial ena'ntTI-hat
there is- and cursed be the non-riparian owners!"


is subject to the commerce power th r wer the rorietary
property ighs, te treaty making power, the general welfare power

where e t an interstate one to any interstat-ecompactstat
have been made as asthe rights ot nparan owners.

It is also said that the ownership of the states' navigable waters
has a double aspect -the jus publicum or public right and the jus
privatum or private right. To the extent that a state owns its navi-
gable waters and the beds of streams in its private right it may alien
the same as any owner, as for example a lease of a part of the bed of
a drowned river bottom for the propagation of oysters. But to the
extent that a state:aan tfits pF irihisit Ownsinttl^ j
fiti7''n-ngd ctlrart p'^~ Y-p""" heg principles were brought
out strongly in the case of Commonwealth v. Newport News,40 in
which it was held that the le islat _monwealth of Vir-
giniaer a e to authorize the Cty of Newpo ews to dis-
c are aits unas
long as no public nuisance resulted and navigation was noir-
feTrewith despite the fact that such pollution might contaminate
nearby oyster beds and interfere with establshedre.e aionaLuses

40. 158 Va. 521, 164 S. E. 689 (1932).



of the tidal waters. The Commonwealth as owner in its private
righ tltouk-dcide-what use of that right best served the public in-
terest, and any lessee of river bottoms for oyster culture took subject
to such possibilities.
The State is ayin d in the maintenance of the water
table, for on it depends the capacity of wells and springs and to a
great extent the production of all agricultural products. The water
table in turn for the most part is dependent on percolating waters
for its maintenance, i. e. that portion of the total rainfall that sinks
into the ground rather than runs off or evaporates. Thesewaters
are in the very nature of things well nigh impossible of ownership
untii actually reduced to possession so that while they are- i ne

animals s ownership ( it may be called such) is quite restricted.

But it is sufficient to permit regulation as to such matters as te
interference for spite only, and pollution.
Another type of percolating water is known as artesian water.
It has its origin for the most part in the mountains ere asare-
sult of tilted strata the waters get under bed rock and gradually
work their way to the seas or other outlets. These waters are fre-
quently under pressure and in such a situation when the lower strata
are tapped these waters flow naturally to the surface. The principal
problem here is to prevent waste for experience has shown that an
..M .. ----

Unc, Ee n well in LIMA suy~l
distant localities.

In the case of non-navigable waters the ownership of the beds of
the streamsisi m the adjoil anowe anu t te state. But
in the case of navigable streams the ownership of the beds is in the
state. Whether this state ownership extends to the ordinary low
water mark or to ordinary high water mark is a question in much
dispute. It has been held in Florida41 and in South Carolina42 tat
the State o o e t aer mr. But according to some writ-
ers the better view, albeit a minority one, is that public ownership
extends only to low water mark, and such is the law by statute in

41. Thiese v. ,,lf. f K A. R Co. 75 Fla. 28. 78 So. 491 (1917),
42."ate v. Pacific Guano Co., 22 S. C. 50 (1884).
43. See MINOR ON REAL PROPERTY (2d ed.) pp. 85-86 (1928).
44. VA. CODE ANN. 62-2 (1950).





SWaters gathered together on the surface of the land and not run-
ning in any well defined channel and not a part of a natural lake or
pond are commonly called surface waters. General_ everyone dis-
laims ownership of them. Accordin to(mistaknlil
he common law eyTiey are a common enemy from which
t f e save himself who can, subject of course to thegeneral rule
tat in saving oneself one should do no more damage than necessary
tooer according to another theory known as the cievilaw rule
lowe-rand is by nature servient to higher land in the mat rain-
a T roleo the State in the case of surface water is_prmari1y
thi of arbiter. Neverhiless there is at least in some localities a
strong public policy in favor of control and conservation of tempo-
rarT y excessive surface waier in ponds, cisterns, and regerv'rs-

In the development, use, and conservation of these natural re-
sources owned by the states the question is bound to arise, and has
arisen over and over, as to whether cities, counties, states, or the
federal government should play the dominant part. It is easy to say
that local matters should be handled by the local governments, and
general matters should be handled by the state or federal government
either directly or through private enterprise. But this problem has
too many ramifications for a paper of this sort. It is obviously in the
interests of the nation as well as the states that we all use our water
resource. tothei.r fullest ptentialies. The main thing is that this
be done iseyeciently and honestly. By whom it is to be done
is, after all, of secondary importance.46

45. See John B. Rood, Surface Waters in Cities, 6 MiCH. L. Rev. 449, 452.
46. For biblgraphies on this subject prepared with special reference to the
Central Valleyf obC lifornia but equally applicable to other projects see 38
CALIF. L. REv. pp. 761-781.:" --

Mr. Leo Aikman, writing in the Atlanta Constitution of Wednes-
day, August 13, 1952, included the following account in his column:
"My farmer friend, Paul Lovinggood, of Lost Mountain com-
munity, Cobb County, lost his home by fire a few years ago.
Not long after he had his family established in a new house,
he had a spell of sickness that slowed him down a little. But
those setbacks didn't keep Paul Lovinggood from whistling at
his work or from making himself a better farmer or from work-
ing for the good of his community. Knowing the fiber of this
son of the soil, I was not surprised to read that he didn't let
the drought lick him, either. Mark Waits tells the story in
The Cobb County Times.
"Paul knows, along with all farmers, that cows give more milk
when they stay on green grass. He knows, too, that the grass
doesn't stay green without water. Searching the skies in vain
for signs of rain, he put inhis system.
"Drawing from his experience with irrigation as a truck farm-
er and from his reading of farm news, he took a pump down to
* the creek, hooked some pipe to one end of the pump and his trac-
tor to the other and soon had showers falling on a portion of the
pasture. With this system, daily he poured 21,000 gallons of
water on his grazing plot, moving the sprinkler as one would
the hose on his front lawn.
"As a result, the grass stayed lush and green, the cows stayed
contented and milk production at the Lovinggood dairy didn't
slack off.
"Paul liked the system so well that he will expand it. Eventu-
ally, hehopes d 'creek to create a sniareser and
insure a water supply incasei a prolonged ryspell which cuts
th"E o olr Ws tihfieh creelu.
nO?1e~ F orgia farmers have tried the same trick. Glenn
Florence in Douglas County and irt i eriwether
are notable examples. More farmers will follow the example
as the advantages of irrigation become apparent."
*Professor of Law, Emory University, Ga.

_ _1~1_ ~__ __II___~ r~___ _rl __ ;__~ ~~*1 __~I_ ~~~_ ~~__~_/_~~


This activity of the Cobb County farmer presents the subject of
the present discussion. Did he act within his legal rights and could
anyone else object to his actions ?
It is necessary to include some definitions of terms as used in this
discussion and to limit its scope. Only natural watercourses are
considered. The cases reveal that it is not easy to define a water-
course.1 For present purposes, the term "watercourse" is taken to
mean a stream of water flowing in a definite dircn r sejith
a channel in a bed with banks, hain atatiaLdegrLf per-
manence and c d oontnuyiLnatJal origin. A "riparian pro-
pdietor" is a landowner whose land is either bueor crosse-d
by a watercoursie The escrption of his land must actualljFTi h h
the wa'eri rider for him to be a riparian proprietor. This riari-
an krorietor has certain le al rights and .rivileges in connection
a toti and privileges in connection
with the wateSrenot come te at large
an i are known s "riparian rights". Since this discussion
concerns only riparian rights in connection with the water in the
watercourse, matters of accretion, reliction and avulsion are not here-
in considered.
This discussion will also be limited to non-navigable watercourses
or treams. The landownerwhose land is bouide"d by navigble
after has ma riarian rights that are tou nnection with
non-navigable but tee tsare subject to the right
of navigation in the general public, as set out in ean era
legi latio6n7?so that the- di^7 e? fiii-aniwayvs from the present subject
of discuss ...
It might be well to consider what are riparian lands. Suppose
that a large single tract of land touches a stream. This tract has
riparian rights in the stream, but the question remains as to whether
the entire tract is entitled to be benefited thereby. There appears to
be a distinction between land outside the watershed of the stream and
land within the watershed. Land within heatshed of a stream
is riparian land outsl nd ei e watershed of sream is
considered land hou it is contiguous to
ripian a and.
Riparian rights are appurtenant to riparian land as a natural and
inherent incident of the ownership of such land. They are sometimes
called "natural rights," as they owe their existence to the nature of
the land rather than to any contractual relationship between two land-
owners. Certain rights in connection with watercourses may arise

1. 56 AM. JUR., Waters, 6-11.


from a contractual relation or by means of adverse user, but when
they do they are servitudes and not true riparian rights. They de-
pend upon the contract or prescription that created them and are so
construed. This discussion is concerned with the reciprocal rights,
liabilities and privileges of riparian proprietors in the waters of a
stream or watercourse, where these relations are based on the owner-
ship of land alone with no other legal relation between the proprietors.
The exact origin of our present day law with regard to riparian
rights is rather obscure. It has been said that Story and Kent seized
on the Roman Law, introduced it into American cases and that this
law then found its way into the English cases.2 The Restatement.
also tries to distinguish between a natural flow and a reasonable use
theory. t has also been stated that the common law of England has
been adopted by most jurisdictions in this country.3 Regardless of
its birthplace, and whether the reasonable use theory or a combina-
tion of theories is followed, the present statement of the law seems
to be generally followed in most American jurisdctions. Each ripari-
an proprietor is entitled to have the watercourse flow by or through
his land in its natural course, quantity, and quality, subject only to
reasW p by other proprietors. "He, in turn, is entitled to make
use other water in the stream while on lus land in any way e sees
fitrove that he does not by such use unreasonably affec he
rifghtoi Upper or lower ripanan proprietor.*-
'he nine common law states in the Southeast seem to follow this /
general ru e. The civil law rule in Louisiana seems to be about the
same general statement.6 There are many statutes in these states
dealing with specih'm matters sucas 11ution, bit ve-ry fevw 'which
cover or deal with general rparian r s. he Georgia statute is
possibly the only one and reads as follows:

"The owner of land through which non-navigable watercourse
may flow is entitled to have the water in such streams come to
2. RESTATEMENT, Torts, Vol. IV, p. 342 (1939).
3. 56 AM. JUR., Waters, 284.
4. Ibid., 273; RESTATEMENT, Torts, Vol. IV, pp. 339-350 (1939).
5. Ulbricht v. Eufaula Water Co., 86 la. 587, 6 So. 78 (1889); Mobile
Docks Co. v. Mobile, 146 Ala. 198, 40 So. 20-1906); Tampa Waterworks Co. I
v_.ine.37 Fla.6 86. ; Robertson v. ArinoTiU1 82Ga.-664, 186 .?
ST.E.' 8.,06T; 681 (1936)T;ackler v. Cinc., N. O. & T. PR Co., 229 L
I~.330, 17 S. W. (2d) 194 (1929); Miss. Central R. R. Co. v. Mason, 51 Miss,
34 (1875); Pernell v. City of Henderson, 220 N. 79, 16 S. E. (2d)"-W
(1941); Omelvany v. Jaggers, 2 HIuC ( ) 634T1837); White v. Whitney -
Mfg. Co., 60 S. C. 254, 38 S. E. 456 (19M1'; Cox v. Howell, 108 Ten. 130, P
65 S. W. 868 (1901); Town of Purcellville v. Potts, 179 Va. 514, 19 R=. (2d)
700 (1942).
6. LA. Civir CODE OF 1870, 5 661.


his land in its natwra and usual flow, subject only to such de-
tention or dimunition as may be caused by areas use of
it by other ripeaia "-e diverting of thes ream,
wholly or mn part, trom euctm s ing tuHereot so
as t oTij ie its course or cause it to overflw i'nTijufrelhi lad,
or any rigTlitappurtenannt thereto. i..rtve ple 1Tuionthereo so as
to lessen its value to him, shall be a trespass un his proper
Since the theme of this discussion concerns the use of water for
irrigation, the various other matters that may arise will be considered
very lightly first. It should be understood that they are considered
based on the law in the Southeastern States.
Each riparian proprietor is entitled to make such use of the entire
flowofa-stream.as h ma se fitfor the purpose of water
However, he is not permitted to detain an unreasonable amount of
the'l wof a streaij -ioha'pirpose. hor Fs T enhttledto ace eob-
structions in the stream which will unreasonably reduce.w. In
one case,9 the upper riparian proprietor maintained a dam to supply
power to his cotton mill. By means of this dam he cut off the entire
flow of the stream from 6 p. m. each night until 6 a. m. the next
morning. This was held to be unreasonable as applied to a lower
iparian proprietor who operated a grist mill.
SOne of the cardinal rights of a riparian proprietor is to have the
/ waters of the stream come to him in its natural yjty.10 Anyv pllu-
tion of the water seems to violate therigts o all lower riparian
owners. The cases are in agreement that a pollutionR ie stream
is an actionable infringement of ig There are manyases
dealing wih p tion of waters, but in most of them the individual
lower proprietors have been force to initiate the action with little
r no governmental I iij umnialities are one of

in of the streams.
e m a 'olem to be considered here is that of diversion of
the flow of the stream. There is no doubt of the right of a riparian
7. GA. CODE, 1933, 105-1407.
8. Alabama Consolidated Coal & Iron Co. v. Turner, 145 Ala. 639, 39 So.
603 (1905).
9. Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S. E. 87 (1909).
10. 56 AM. JUR., Waters, 405.
11. Alabama Consolidated Coal & Iron Co. v. Turner, 145 Ala. 639, 39 So.
603 (1905); Hodges v. Pine Products Co., 135 Ga. 134, 68 S. E-'1107 (1910);
Beaver Dam Coal Co. v. Daniel, 227 t. 423, 13'S W. (2d) 254 (1929); Miss.
Mills v. Smith, 69 Mis. 299, 11 So. 26 (1892); City of Durham v. Eno Cotton
Mills, 141 LmCr-6i5, 54 S. E. 453 (1906); Bowling Coal Co. v. Ruffner, 117
enp. 180,5 100 S 116 (1907); Arminius Chem. Co. v. Landrum, 113 Va. 7,
MAT-E. 459 (1912). -.-




proprietor to divert the flow of a stream while on his land, so long
as he does not materially diminish or detain it and returns it o the
Slower riparian proprietor -roiugh the natural channel. Our ques-
tion, noWvc* t u, nItse-m fg wiftn ~iv oioTiR ~ of a stream
which does consume a part of the water and both diminishes and de-
S tns it, since there can be no reairrlgation without storage of water.
It has been held tht to take part of the flow of a stream for use in
railroad locomotives did not materially diminish the flow so as to
give any cause of action to a lower riparian owner, even where a
detention by means of a dam was involved.12 On the other hand, it
has been held that to take some of the flow of a stream to supply
, water for the inhabitants of a town was a violation of the rights of
lower ripar'~ This view may have been due in part
to the fact that he water was being used on non-riparian land.
It has been stated that:
"Subject to certain qualifications hereinafter noted, it is a uni-
versally recognized rule that a riparian proprietor may lawfully
divert the water of a stream for the purpose of irrigating his
The qualifications stated are generally that such right is a limited
one, to be exercised with a reasonable regard for the equal rights of
other proprietors. The general statements in the Southeastern States
seem to bear out this rule of the "reasonable use of the water for
domestic, agricultural, and manufacturing purposes".15 V Jfew
cases in this area have even considered the idea of irrigation.?rne
court did say:
"But it cannot be withdrawn for the purpose of irrigation,
or for any other secondary and artificial purpose, except in
such a reasonable and legitimate way as not to interfere unjusti-
fiably with its general use."16
However, this statement was not material to the issue before the
court. There seems to be a lack of authority in the Southeastern
States on the problem of irrigation under the doctrine of riparian
12. Fackler v. Cinc., N. O. & T. P. R. Co., 229 Ky. 330, 17 S. W. (2d) 194
(1929); Harris v. Norfolk & W. Ry. Co., 153 N. C. 542, 69 S. E. 623 (1910).
13. Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. 78 (1889); Town of
Purcellville v. Potts, 179 Va. 514, 19 S. E. (2d) 700 (1942).
14. 3 AM. Jun., Irrigation, 1 9.
15. Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. 78 (1889).
16. Anderson v. Cincinnati Sou. Ry., 86 Ky. 44, 5 S. W. 49 (1887). See also
Jordan v. Lang, 22 S. C. 159, 37 S. E. 6r("885).

1 i ~------r*-- -------1-------^-------------7


Aplyig general principles, it seems to be clear that no water
could be used for irrigation 6onon-riparian lan, since such on-
riparian use has been eused n other stations7 Quite a prob-
lem would be presented in connection wit the amount of water that
any one riparian proprietor could take from the flow of a stream for
the purpose of irrigation. It would have to be reasonable, with re-
gard to the rights of all other riparian proprietors. This would have
to be determined by a jury in each case. As said by one court:
"The question as to whether or not the use of the water by
the first proprietor .s c e e y a
uponfte character and size of the stream, the uses to which it
is servi'ent, and the varying circumstances of eachcase, is one
of act f6fidefermfiriaf n by-fh'ur."' ...... .

Where does this leave Mr. Lovinggood? What protection does
he have next year if he impounds and detains a portion of his stream
with a dam to use for irrigation? As well as can be stated from the
present status of the law in the Southeastern States, he has only two
courses open to him. First, he could purchase from the lower riarian
proprietors as far down te stream as teywould be affected an
easement to detain and divert the water of the stream. This assumes
thait-ey-WOTrit ni--finig"o- iu a easement. Secnd, he
could build his dam and wait until a lower riparian proprietor brought
an ion against n that case a jury wold nally determine
whetherhi tionsT werereasonable. Neither of these courses of
action appear to answer his problem. It mu e
Present status of the law with-regard to riparian rights theSouth-
easter afn a 'Iu i utperiE fer use of watei i ation,
or at least practical use.
It is the purpose of this discussion to raise the problem, not to
answer it. However, it might be well to look at some possible solu-
tions without drawing any final conclusions. It-.might be possible
by legislation to et out stand as to what i le useof a
streamto7 rrigation. The administration of such legislation Iw ld
be di fcult. Some of the States have provided for Irrigation Dis-
tricts-wifh-tlhfip power to condemn T-icTi_ t- ii A I riimay
neE ir S uc i`r iblc quasi-corporations, however, have not been too
successful generally.

17. Town of Gordonsville v. Zinn, 129 Va. 542, 106 S. E. 508, 14 A. L. R.
318 (1921).
18. White v. East Lake Land Co., 96a. 415, 23 S. E. 393 (1895).
19. E. g., La., R. S., 1950, 38:2101 e-tseq.



It has been suggested that the doctrine f a rriaion that
exists i the ari western states would be the answer te prob-
leni in tue Suuueateirrstaut. 3psrce ooes fnot perfantfmue n-
sideration ot this doctrine o prior appropriation and of the Federal
Desert Lands Act, commonly called the Carey Act,20 or the Federal
Reclamation Act.21 The essence of this doctrine is "First come,
first served". The first person to appropriate the waters of a stream
to a beneficial use is entitled to the full flow of the stream. He does
not have to be a riparian proprietor, may use the water on non-
riparian land, and may even sell the water to others. This doctrine
appears to have been exclusively recognized in place of the doctrine
of riparian rights in the states of Montana, Idaho, Wyoming, Nevada,
Utah, Colorado, Arizona, and New Mexico. It exists along with
limited riparian rights in California, Kansas, Nebraska, North Da-
kota, Oklahoma, Oregon, South Dakota, Texas, and Washington.2
It should be noted that in these states the doctrine of prior appropria-
tion existed in connection with public lands especially and that in any
event most of the land was settled under this doctrine. In Or
and Kansas the doctrine of prior appropriation was adopted iinreen
years. Tl'his raises the question of whether a state re tfe doc-
trine ot riparian rights is i force could by legislation change to
the doctrine of prior appropriation. I It might be well tolook at the
situation Oregon and Kansas. Te Oregon case2 that is general-
ly cited as sustaining the statute of appropriation concerned a plain-
tiff who took the lands after the statute. The court also said that
the statute was valid "except as such change may affect some vested
rights". This still leaves some doubt. In Kansas the court held
the statute valid and said that vested riparian rights did not matter.s
However, the court cited only four cases, and those on another point,
and entirely ignored an earlier Kansas case which had held that
riparian rights could not be taken without due process of law and
that a statute could not change to the doctrine of prior appropriation
without just compensation for vested riparian rights.26 Also, the
California court held a statute invalid which sought to substitute
appropriation for veste riparina lits.7- -
20. Act Aug. 18, 1894, Chapt. 301, 4, 28 STAT. AT L. 422, 43 U. S. C. A.
I S641.
21. 43 U. S. C. A. Chap. 12, 371 et seq.
22. 20 A. L. R. 2d 656, 660.
23. 56 A. L. R. 277.
24. In re Hood River, 114 Ore. 112, 227 Pac. 1065 (1924).
25. Emery v. Knapp, 167 Kan. 546, 207 Pac. (2d) 440 (1949).
26. Clark v. Allaman, 71 Kan. 206, 80 Pac. 571 (1905).
27. Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Calif. 56,
259 Pac..444 (1927).



Could a Southeasterrn atme change to the notrine of prior appro-
priation ithut ivin p t fo vested riparian rights ?
It would appear unlikely. One court stated: "We have said that
the rights of a riparian owner at common law constituted property
of which he could not be deprived without just compensation".28 It
has also been held that a statute declaring a non-navigable stream to
be navigable and thus depriving riparian proprietors of some of their
riparian rights was a taking of property without just compensation.29
Also, a statute permitting the floating of logs on streams was invalid
for the same reason.30 The case of City of Birmingham v. Lake31
is more recent. Here the statute in question had sought to grant all
fishing rights on waters in the state to the public. The statute was
held to be invalid, since the beds of non-navigable streams belong
to riparian owners and their exclusive fishing rights cannot be divested
and granted to the public by legislative fiat. Thus it would appear
unlikely that the doctrine of prior appropriation could be adopted
in a Southeastern State by legislative enactment.
It is suggested that the problem of proper irrigation under our
present system of riparian rights is one that needs more consideration,
both by the bar of our several states and in the law schools.82 Some
solution must be found to Mr. Lovinggood's problem. The present
status of the liw in regard to riparian rights seems inadequate. It is
hoped that this discussion has at least presented the problem, even
though no solution is offered. This problem has at least received
considerable study in one state, the State of South Carolina.33
28. Thiesen v. Gulf, F. & A. Ry. Co., 75 Fla. 28,78 So. 491 (1918).
29. Olive v. State, 86 Ala. 88, 5 So. 653 (1889); Murray v. Preston, 106 Ky.
561, 50 S. W. 1095 (1899).
30. Allison v. Davidson, 39 S. W. 905 (Tenn. 1896).
31. 243 Ala. 367, 10 So. (2d) 24 (1942).
32. The writer used the following question on an examination in Rights in
Land in June, 1952, which included many things here under discussion: "George
has purchased a large lot on the west side of River Road, containing about two
acres. The land slopes from north to south, with lots owned by Frank just
north of his lot and by Jack north of Frank's lot, both being higher in elevation
than his lot, and with a lot owned by Harry just south of his lot and lower in
elevation. A small stream, known as Mud Creek, flows from north to south
across all four lots. Surface water from River Road and from Frank's lot
flows through a low place on George's lot to'Mud Creek. George wants to build
a house on his lot. Mud Creek makes a sharp horseshoe bend on George's lot
toward River Road. George wants to change the channel of Mud Creek so that
it will have a bend away from River Road, but will flow onto Harry's lot at
the same point as at present. George also wants to use water from Mud Creek
to irrigate a garden he plans to have at the rear of his lot. George also wants
to fill in the low place on his lot. If he does so, the surface water which now
runs across his lot will run across Frank's lot to Mud Creek. It appears that
Jack has an automobile service station on his lot. He pours old crankcase oil
into Mud Creek so that there is a film of oil on the water. George consults you.
What are his rights? Discuss."

_______ J -----*

RoscoE CRoss*
The body of law relating to this subject has generally recognized
two major classifications of underground or subterranean waters:
(1) underground streams which flow in definite or ascertainable chan-
nels; and (2) waters nw r Thp ru eah
without any definite channels, being commonly identified as 'perco-
lajjMgr I
In general, the Drlee. nf law regarding surfacee strams are applied
to detnite inderground tr amss.1 Since other participants in this
panel w deal with the law as applied to surface streams, this paper
does not purport to discuss, generally, the rights and liabilities in
regard to definite streams other than to make the following general
comments. Un sssubterranean waters are known to flow A i-
nite channel "i usually presumed that they are percolating waters
and the existence of an underground stream must be proven by the
party alleging it A flow of underground waterothrrbugET o
assure in the subsurface does not constitute a stream. It would seem
that one must establish the existence of a definite channel or current
under the surface. Size of the definite flow may also be a factor.2
If water comes to thP n,-- n 5 -sr igL'"by IamLr forces andJn
sufficient volume to Provide a permanent watercourse across adjoin-
in-g land, the owner of the land-on which it- su-aces as welas the
owners of adjoining lands over whichit fows in'a'atercourse wl
have- te rights and abilities of riparian owners. "
I g the doctrine applible to percolating waters, one
must differentiate between the "English" rule and the "American"
rule or rules. The English rule rests u oin the nt
tharth"e-owner of t son m yt th qskv and toAhe centre of th
earth (i. e. "cujus est solum, ejus est usque ad coelum et ad neros.
Hence, an owner of land has the absolute right to withdraw from er
colating waters on his land and use it as he ses, without regard to
the effecon lower or adjoining owners. The fll application of that

*Former Professor of Law, University of Mississippi; Attorney-at-Law, Mayfeld, Kentucky.
1. 56 AM. Jua., "Waters," 109 and cases there cited.
2. Clinchfield Coal Corp. v. Compton, 148 Va. 437, 139 S. E. 308 (1927);
Wheelock v. Jacobs, 70 Vt. 162, 40 Atl. 41 (1897).
3. 56 AM. Jua., "Waters," 133.

I _


view is well illustrated by Mayor of Bradford v. Pickles.4 There
the municipality owned a tract from which was obtained its water
supply. The respondent, Pickles, owned a parcel which was some-
what higher than appellant's tract. The geological formation of the
subsurface of his parcel was such that percolating waters were forced
by nature to flow to appellant's tract. After appellant had been tak-
ing water from its tract for several decades, respondent sank a well
on his land withtre that appellnts supply diminished. A l-
lant sought to enjoin respondents withdraing of water on his land
in ion ts Fconte T esn motive
Was tO nure rppllant an- t hny r. o nnt% nt 1n A In
hol ug that a plant was not entitled to an injunction, the.Huse of
Lords state

"The only remaining point ... is that the acts done by the
defendant are done, not with any view which deals with the
use on his own land or the percolating water through it, but is
done in the language of the pleader, 'maliciously' ..
"This is not a case in which the state ofind of the person
doiig the act can effect the right to do it. 'If it was a lawful
acfnweverlIthe motive mighJJ*, he has a right to do it ...
Motivesand v i ntenteons in such a question-. .-. seem to me'to be
absolutely irrelevant."

Earlier American cases, including some in our own southeastern re-
gion, recognized the english rule.5 These cases indicleast,
that the English rue would nt be unu fort bene-
fit of the intererng owner he was activated by malice or other
improper motive.
As migT expected the English concep f ablute ownership
has been questioned, and even repudiated, by number Amednan
ju .t.i.I.I. n conseue mtere nhas bee n develop this
country the ctnes of reasonablee and "corrdso'.
first of these, a proprietoriaas a FW to reasonae a
bee use ot percolating ersldeFikiii n connection with
-his utilization aa eveloment of that land. E ynake such use
of percolating waters in miing, ma ng, agricu ture, and other-
wisei-e Tn I 1ere it is withdra'-wn,~ evetougi ii e us iferes
4. 1895 A. C. 587. See also, Bleacher's Association, Ltd. v. Rural Dist.
Councilt'-, 33T'tlJ -ch. 356.
5. Shahan v. Brown, 179 Ala. 425, 60 So. 891 (1913); Ta~n awatetraute
Co. v. Cline, 37 Fla. 586, 20 So. 780 (1896) ; Saddler v. Lee, 6 Ga. 45 (1879) ;
Kinnairu v. Stanliu Oilt ., 9, n.y. ,, 12 S. W. 937 (1890); Miller v.
Black Rock Springs Improvement Co., 99 Va. 747, 40 S. E. 27 (1901).

I -



with, diminishes, or completely cuts off his npigb,,'@ PrieLnt r pros-
pective use of such waters on the neighbor's land. The neighbor has
the same rgs to se percolating waterswhch he gs o esu
face on his land. The courts which a1&lv this doctre usual iold
that ngligent or astefu disposition of such waters is not reason-

owned by it and then pipes it to a community several miles away.
Table, to t e e t tat iterr ts i frequently treated as being
numerical jurisdictions apply the rule of reason e preentu- )

the latter doctrine, the courts do not indicate that there is any limi-
tation trupcton the quantity of water to b te n so long asthe use is
lifted when such o^Sratronsae detrimental to a neMhbor's extraction |!f

reasonbe as regards purpose e and disposition as previously pointed
case of a water cMpay which draws water by wells on a tract Hj

owned by it and the pipes it to a community several miles away.

cases, is isn aroit
The doctrine af corr tohave hd is eqenty treated as being
identical with "realnahlfe useta a -.. j to mo accr-
ate to consider "correlative rights" as an-ex-t 'U ,lfui......... *
"rasonable ue". rather than as a distinct or 95P9A rUie. #UJler

the latter states whererine, there hacourts been a chrindic shortage of water.ny i-
-2 tation-upon the quantity of water to be taken so long as .the use is

Another proposition of particular application as previously pointe
states is th e oit of "iorule". Un .ights" limits

first to take anad a ben ase s prior vested right to
S a taker to his prop r ortionatet area

"' -" water. One a. -
thority ha forth the rule ars: "Beneficial use supply. basis the
cases, it iS applied to predict lza onld
appis dofirine appears that "priorhad its widest acon is hardly an
independent or separate rule but rather has been a chronic shortation of the rule of water.

"reasonable use".
With one possible exception, the courts application in some western
stave concerned with the "apporty of aroriation rule" or
the "reason table unse" rl eo abe on emci asng "correlative rights" or
S cont....ue to t t^ __ ^se, tO-XittZa sulk '
uuen t } ... ... .ri .-' -_"' ,h Ar tM 's re 6-ii-n o w water. O ne au-
^ thority has set forth the rule as: "Beneficial use siall be the basis, the
measure, and the limit oIttheJnhto e se6if Wger- Yrtwould |
appear fMairto observe that "priority of'an ropn 'r51 is hardly an
independent or separate rule but rather an adaptation of the rule of
"reasonable use".
With one possible exception, the courts in 01r region seen to"' '
hiave been concerned with the application of the "English" rule or
the "reasonable use,, r'uE-Wflut" embracing "correlative rights" or

71 6. See, McHXNpRDMi THE LAw air Ilzan a== 3AT Ei, 13 Rocky Mountain
L. R 1. =- -


be used to illustrate the trends of our courts.
(1) In Nourse v. Andrews, Mayor of Russellville,7 the plaintiff
r owned land along a river which he claimed was fed by percolation
of water from an adjoining tract which the City had bought to obtain
a water supply from the underlying waters. Plaintiff claimed that
such diversion -A o isaive
lm o a property rigis
prayertff iin'r'jiiunction, the Court stated:
"Percolating waters are part of the earth itself, as much as
the soil and stones with the same absolute right of use by
the owner of the land ... "... The owner of the soil is entitled
to the waters percolating through it, and such water is not sub-
ject to appropriation ."
(2) In Sycamore Coal Co. v. Stanley,8 plaintiff had a well on his
farm. Defendant coal company drilled a four inch core on its ad-
joining land to determine a coal seam, and when the core reached
sixty feet plaintiff's well was rendered useless. The Court rejected
his claim for damages and, after setting forth its statement of the
English rule, went on to explain:
". but in most jurisdictions in this country the rule some-
times referred to as the American or reasonable use rule, ... .
has been adopted. According to this rule, the right of a land-
owner to subterranean ercol g waters limited a reason-
able and beneficial use of the waters under his land and he has
no to waste tem whether throughmalice or indifference,
if,"Ty'S-ucwasthe inm ures a neS-hr-ngI-He're,
the-appt9ft was using its land intemanner, and
drilled tie hole'for i necessary and useful purpose.
(3) In Sloss-Sheffield Steel & Iron Co. v. Wilkes,9 a .meroof
on defendant company's adjoining land fell and percolating waters
noJlo9ggercam to .laiff's well andsprings n reifarfgA tlan-
tiff's right to damages, the Court state
"If the defendant is conducting any sort of operations to which
its land is adapted in any ordinary and careful manner, and as
a consequence percolating water is drained, affecting the surface
owner's water supply, either of that or adjoining land, no lia-
7. 200 Ky. 467, 255 S. W. 84 (1923).
8. 292 Ky. 168, 166 S. W. 2d 293 (1942).
9. 231 Ala. 511, 165 So. 764 (1936).


ability for his damage exists. But, if the waters are drained
without a reasonable need to doS or are Wlll o nli-
gently wasted in such operation in a way and manner thit it
should hTave anficipa tT '6ccur, and as a p e result the
daitmage -accr-ueif- tesurfe owners so affected, including
adjoining land rs,tfiere tis actionable claim .. .?
(4) In Cason v.Florida Power Co. 1 defendant company erected
a dam on its lower land. Subterranean drainage of percolating waters
from plaintiff's upper lanadwas interrupted so that is water-ta
was raised, to the damage of land. improvements and crops. Te
Court stated that the issue was whether defendant s use ofits an
was reasonable and that the question should haveeen sub ted to
tle jury. In the course of its inion,teourt
"The property rights relative to the passage of waters that
naturally percolate through the land of one owner to and through
the land of another arcorrelative; and each land ;a ..er ps-


stricted to a reasonab u'sfenfs property as it affects subsur-
face waters passing to or from the land of another.
While the Court used the word "correlative," it is apparent that the
term was used as being interchangeable with "reasonable use". InL
the later case of Labruzzo v. Atlantic Dredgin Co.,11 the same Court '-
had to consider a plaiitti lff t to recover for interference with
his water supnly in -nseence of defendant excvations on its
adjoining land. Reling upon a Pennsylvania decision, t e Plorida
Court declared that there was no liability for loss of percolating
Socasioned y an adjoining owner's use of hs
withoutut n t i rcet a n hhfi S
supply can be plainly anticipated and can be avoided by reasonable
care and at reasonable expense, e owner causing thg dmagr is
not exempt from all obligations. The case was sent back to have
the jury dede whether 1it's conduct was "unreasonable under
all the circumstances".
(5) In Rouse v. Kinston,12 defendant City ofKinston bought a A.
half acr if 1i adJiningplaintiff, and sank three deep wells-Trom
which it ped w-ater t it5 corporate limits for sale Pl1ntif'shix ur
was diminished in value because tw o wells went completely
d1 and a third dropped consider assoonas the def endaLnt dried
itsltwels.iin-ffsuTi or damages. On appeal, the charge of the
10. 74 Fl 1, 76 So._35 (1917).
11. 54 C. 1, 123 E.4 ( .
12. 188 N. C. 1, 123 a. 482 (1924).

1 '


lower court was affirmed. That charge set forth, in part, that:
"This rule (reasonable use) does not prevent the private e
of any landowner of percolating waters j_ jacent to his soil in
manuiactuiicing, agriculture, irrigation, or otherwise; nor does it
prevent y ris aend-Wyii56-miing, or the
like, aIlfiFi gh by ~suiidcliuse-lthe iffiderioutfdpercolating waters
of his neighbors may bethus interfered with r.Aixerted but
it does prevent the withdrawal of underground waters for dis-
tribuitiorror-sa f ses wfO K U an -wenan c w ne
ership or enjoyment of tm it
th ereb ows the owner of adjacent lands is interfered
with in his right to te-as6riafiBe use of subsgrTAfceowater up-on
his oilTiid .. whatever is reasoiiablie fi owner to do
wiHiT-ius susurface water, he nima do: 'He Mnia y3 j e most
of fir he-reasonably Fca. is not unreasonable for him to
dig ell and take iererom all of the waters that he needs in
order to gett ejoyment and usefuness from his land,
Spurposes o abode, productiveness of the soil or manu-
facture or whatever ese Tst afriscapable oT."
(6) In N. C. & St. L. Ry. v. Rickert,13 the defendant conveyed to
"" the plaintiff railroad, about 30 years before, one acre of land on
^- which was a ring from which it supplied its trains at the rate of
50,000 gallons daily. Defendant sank a well on his land to supply a
swimming pool thereon an to sell any surplusofwater from his wel
to neighboring town. Pum finj romd antwel sed pan-
tiff's sprmgto go ut flow of the spring returned upon cessation
o enan mping. In ffiiingth owe court's injunction
aOW the Tennessee Court o rtits
views as to percolating waters in the following language:
"The better rule is that the rights of each owner being simi-
lar, and their enjoyment dependant on the action of other land-
owners, their right must be correlative nd subject to the maxim
that one must so u er so that
eac owner is restricted to a reasonable exercise of s own
rig~ITsifcra reasonable use of his own property, i-
lar rhts t ers.

from his well without materially reducing the dow .rf-war
fom comp ainants spring, and this he has a lawful right to do.
13. 19 Tenn. App. 446, 89 S. W. 2d 889 (1935).



The injunction goes no further than to enjoin and inhibit him
from pumping water ... on his property, in such quantities and
to such an extent as will i-erfere with or impair complanant's
right to supply its trains and tanks from complainant's spring."14
While the Court refers to the rights as "correlative," it made no at-
tempt to indicate the extent of defendant's right other than to limit
his use to taking to such an extent, only, as would not impair the rail-
road's right to supply its trains and tanks without limitation as
to the railroad.
In Board of Supervisors v. Mississippi Lumber Co.,15 the pntis
had an artesian well in the courthouse from which was supplied an
S adequate quantity of water for a public drinking fountain. DUefTn= t
bored tour wells on its property, forced the watetro the surface
by pressure, andused it in preserving and floating logs in connec-
tion with its business on thl-m--- e iirrgf
water r y-reaTuce the flow at plaintiff's well, but defendant was
acting in good otaim. tn iz zzl b l Of
complaint, the Court held:
"Such waters (percolating) belong tn the realty, to be used

S......... ...... ......... ... .... .. |
The mere boring of a single w miEt tr..... th. m.l n' -
nei r on a lower !el, bul h "'of
In Clinc~hfield Coal Corp. v. Compton,s1 a spring went dry on plain-
tiff's land when surface cracks developed on defendant corporation's
The court of last resort in Vig in holding that the plaintiff
had suffered no actionable injury, discussed TeTigttrl re-and
"reasonable use". in defendant's use ol its ianwas egii-
ourt stated that its conclusinwoul e same er
either rule, "but if te1 question should again come before this Court,
we flfree to consider it de novo".
In tthoner v. aae' irptiafifff' claimed that a water
emerging on his land flowed in on the sur-

14. Italics supplied.
15. 80 Miss. 535, 31 So. 905 (1902).
16. 148 Va. 437, 139 S. E. 308 (1927). See, also Couch v. Clinchfield Coal
Corp., 148 Va. 455, 139 S. E. 314 (1927).
17. 124 Ga. 754, 52 S. E. 894 (1906); 132 Ga. 178, 63 S. E. 897 (1909).




face and partly underground, from higher land owned by a woman
who had given the defendant the right to divert water from the sur-
face channel on her land to the defendant's property. The plaintiff
prevailed in his contention that the defendant, as a non-riparian owner,
cofii-Tni divert water from the stream to the plaintiffs detriment.
Hiwever,~~tIe Court made the following observations:
"The iooks abound with reported cases from Courts of last
resort, wherein it is held that if the owner of the land, in the
absence of malice, make an excavation on his own premises,
thereby draining the well of another, the draining being caused
by cutting off the underground springs or fountains which supply
the well, no action will lie .The ownership of land extends
indefinitely-w-m"THwint els of th 'eearitl a hr tUw asthe
sam pinhewater which seeps through
hisauil amd c-lects i the substrataas t tat matter which falls-
fro e cous o s house an isoeced a

I defined streamn'

Due to the rainfall and the number of surface streams or bodies
of fresh water, the matter of adequate water supply has not become
a general or widespread serious problem for the southeastern part
of this country. However, the problem may be closer at hand than
we realize. Population has increased, particularly in our cities. There
has been a tremendous industrial growth. Irrigation has been con-
sidered and resorted to in some instances. Uses of water have multi-
plied. As one remarkable illustration, a recent article in a current
periodical contained the statement that "in Washington, D. C., air-
conditioning plants are estimated to account for 15 to 20 per cent of
the water now used".18 In one instance a large corporate user of
subterranean waters in the processing of wood fibres is located in a
growing community in which the water table is reputed to have
dropped some 10 to 20 feet. Your speaker is advised that the cor-
poration has obtained a distant tract of land to assure, among other
things, an adequate water supply. As we all know, it is becoming a
common occurrence for growing cities which are not near usable
surface waters to go well outside their corporate limits to acquire
lands from which to obtain subterranean waters for city uses. Our
State Geologists and the U. S. Geological Survey are alert to the
prospective problem, from a scientific point of view. However re-
18. Nichols and Colton, "Water for the World's Growing Needs," THZ NA-



search and inquiry indicate that apart from statutes on ollution, noneI /
of the southeastern States has any broad comprehensive legislation
relatingo h ,,- a A ^.cpg n of ground waters. Probably the
lack of such legislation may be explain y one rney General's
assumption "that the problem has not arisen here sufficiently to re-
quire legislative action". From 1929 through 1951 the legislature
of Florida has enacted several statutes to "protect an control he
artesian waters" in partilar counties.19 Your speaker as e id
oy e statutes enacted in 1951 but has been advised by Florida's
Attorney GenerathT eea=lie-statutes are "siminlar'7"...
By each of Florida's 1951 acts, the owner, person in control, or
S occupant is prohibited from ermttin nncssary fw or waste
from an artesian well. An artesian well is nedas an artificial hoe
in which ground waters rise to an elevation above the top of the
water bearing "bed". The acts permit flow or use for irrigation,
mining, industrial purposes and domestic use. To prevent prohibited
flow, the well must be equipped with valves capable of controlling
Sthe discharge of water.
In Mississippi, House Bill No. 329 was introduced during the 1952
session of the I ture but died n tee. This bill, which is
miuc er than the Florida acts, contemplated statewide
1It 'euinw.....lil general oojectives o te Fionrd aena tmens
addition required written d Gas Con-
mission for drilling of any additional wells by anyone.
Of course, te type of legislation which we have just mentioned
hardly scratches the surface of the big problem; namely, the enact-
ment of long range legislation which may chart the course for intelli-
gent development of our resource in percolating waters. The Florida
laws and te iigi'inni il. l ur ort to do no more than minimize
waste in one aspect. There is still the problem of determining wet-
er te tl ulzaton of goun waters is o e eveloed n the
lish" rule, "ree corrts, "prior ro-
priati. ome other principle. Any attempt ta enactment of
statute or coe, u ed, for the development and utilization
of ground waters would involve the codification, modification, or even
the abrogation of some very, very fundamental propositions in proper-
ty law. In our region, the urgency of such legislation might well ap-
pear to be too far away to arouse much immediate concern, especi-
ally among legislators. It would not seem to be presumptive to say
19. LAWS OF FLORIDA, ch. 14, 581, Acts 1929; 16785, Acts 1935; 16786, Acts
1935; 16787, Acts 1935; 19895, Acts 1939; 22935, Acts 1945; 23204, Acts 1945;
26994, 26995 and 26996, Acts 1951.

that the accomplishment of such legislation will only result from an
effective and protracted period ot education for our citizens and pub- I
lic icials. M"rlts k, the ldeIIL ad learning of oth ge ists
and lawyersY ave to be carefully integrated. At the same time, the
acts and the proposition already discussed constitute a step forward,
small though it be. While the resulting conservation from such legis-
lation may be minuscule, the very need to comply with its provisions
might make the public aware, at least, that a problem exists.



___ __

An article in the August 1952 issue of The N;ti;nal (I~ G rnpphi
Magazine points up the growing importance of water to all of us.
The writer has this to say:1

of lu a day, he uses a bout l water daily for
all 'o sticagicuitural, and industrial purposes, not counting
hy .r-o-OFE
"In Texas the population nearly tripled in the 50-year period
ending n iW but use of water increased 71 t n. anver-
age2m'ria-purpomse. ior nmustres an municipalities e
increase was 30 times; for irrigation, about 55 times; for water
power, about 85 time.."
It has been predicted in the authoritative journal of the American
Water WorksA s idatior-that- e ea Ifr
mand for water Wi e but tehat of

uses, such as for irrigation and steam power, will correspondmgry'
increase We may certainly exe a treseno-;,'' -a in -in-aus-

pr anin..r.ap, and steel lead all others inind us tria re-
quirements;' antte use o water For irrgaon, while as yef m its

B.A. 1938, University of Toronto; LL.B. 1942, University of Florida; Graduate Fellow
Columbia University School of Law, 1950-1951; Chairman of the 1952-1958 Equity Round
. Table Councl of the Association of American Law Schools; Professor of Law, University
of Florida.
1. Vol. CII, No. 2, p. 269.
2. Wolman, Characteristics and Problems of Industrial Water Supply, 44
J. Am. WATER WORKS Ass'N 279, 280 (1952). The writer is Professor of
Sanitary Engineering at Johns Hopkins University and former Chairman of
the National Water Resources Committee. See also Green, Water Use in
Industry, 43 J. AM. WATra WORKS Ass'N 591 (1951).
3. See Powell and Bacon, Magnitude of Industrial Demand for Process
Water, 42 J. AM. WATER WORKs Ass'N 777, 782 (1950). Woman, supra note
2, points out that four types of industry, electrical, pulp and paper, petroleum
products, and steel, account for 80% of the total industrial water intake.


infancy in this region,4 has already shown signs of rapid and vigor-
ous growth.-
I7TSrappuaent that, with this tremendous increase in the amount
of water being used in the Southeast today, serious legal problems
may arise in nnection with the distribution of available water
supplies.6 Now where does the balance of convenience doctrine fit ,
into this picture? i doctrine has been eI rinci al as
a limitation upnthe Mviability of one type of sanction used for
teenforcement of water rights-t inuntio. Before-- iscus'-
ing the effect o the balance of convenience doctrine, therefore, it
will be well to first examine briefly the use of the injunction in water
rights cases to see how important a part that sanction plays in the
enforcement scheme. Next will be considered the historical develop-
ment of the doctrine in its relationship to the granting of injunctive
relief. Thil, and more important, will come the application of the
doctrine to datle 1te teaa. j~'Fourth an y,
reafimrgTfTe doctrine has so far been applied in the Southeast
for the most part in cases involving damage through pollution of
water supplies, a study will be made of the place of the balance of
convenience doctrine in relation to the growing problem of regulat-
ing the use of water for irrigation and industry in the Southeast.

What remedies are available for the enforcement of water rights,
and how does the injunction fit into that scheme of remedies? The
remedies may, in general, be divided into two classes: (1) specific
relief through equitable remediesand (2) actions at law, Iridu
ing, In appropriate cases, the extraordinary rem es o tion

4. As of 1950 nearly 95% of the total land irrigated in the United States
was within the area generally referred to as the 17 Western states. See 3
REsoURCES LAW 152 (1950).
5. See p. 168 infra.
6. The increasing importance of water in the Southeast has already resulted
in considerable examination by our law journals of the legal problems con-
nected with the use of water in this area. See Wilcox, Authority of the States
of Florida over Her Waters, 12 FLA. L. J. 319 (1938); Notes: 3 ALA. L.
REv. 248 (1950); Extent of Private Rights in Non-Navigable Lakes, 5 U. OF
FLA. L. REv. 166 (1952); Waters: Surface Water Drainage, 2 U. OF FLA. L.
REv. 392 (1949); Irrigation in Kentucky as Affected by the Law of Riparian
Rights, 40 KY. L. J. 423 (1952); The Rule in Kentucky as to Surface Water,
35 KY. L. J. 86 (1946) ; Rights and Remedies in the Law of Stream Pollution,
35 VA. L. REv. 774 (1949).

3 _____ I I .


and quo warrant7 and actions in ejectment,8 butLpriarily the com-
tnon law action tor damagess9 In those relatively few cases in which
there is a coeula. between the parties specific relief may be had by
way of specific performance,10 and the balance of convenience doc-
* trine is incidentally applicable to those cases.1 The majority of
the cases, however, sound in tort, and the preferredtype of relief
against such torts is y way of i rather an action for
damages.12 The primareason tmi r rnce is that injunc-
tie relief is preventive. It can furnish relief before, instead
of 'n a re; aen vroafyoi.3Tof'or r im ny cases ivoli ng
water rights preventive relief by way of injunction may be the only
S effective sanction, because an action for damages will, if successful,
result in such a small judgment as to be valuable only as a means

7. A discussion of these extraordinary remedies is beyond the scope of this
article. They are covered in detail in 3 KINNEY, IRRIGATION AND WATER RIGHTS
(1912); see I 1649 mandamuss), 1651 (prohibition), 1653 (quo warranto.
In general, mandamus may be used in appropriate cases to compel a water
company to fWffPM water for irrigation, oro compel a state engineer or water
commissioner to distribatU U,* r.. h w. Fti tion may be used
when an interior court wrongfully takes jurisdiction of a water dispute. QW-o
warrant may be used to tet he validity oLreclamation or irrigate truts
d ol infiiul the ffranhise of a water company tfi3i a -fail.taasupply
wai y-rre fb s .enar-e
Thiaction e useful to prevent the unlawful exclusion of a riparian
owner from the use of a stream. Glassell v. Hansen, 135 Cal. 547, 67 Pac. 964
(1902); see 3 KINNEY, IRRIGATION AND WATER RIGHTS 1 1654 (1912).
9. Again, coverage of this remedy is beyond the scope of this article.
i;n .,t.v'ntt "nrnmt_ y flfnam. M t "bit, 3 KINNEY, IRRIGATION
AND WATER RIGHTS 3052-3146 (1912y.-1irMf nj to :these actions at law,
there is often the possibi n forcementcrt
o oor 4eqtable
or 3galrelie- Ppa-v ru mree umber o., .-4
(197- accord, Murphy v. United States, 272 U. S. 630 (1926); Pompano
Horse Club v. State, 93 Fla. 415, 111 So. 801 (1927); see Note, 2 U. or FLA.
SL.REv. 250 (1949).
i us specific performance may be had of a contract by a water company
to supply water for irrigation. Ulrich v. Pateros Water Ditch Co., 67 Wash.
328, 121 Pac. 818 (1912). Since the water is generally not available else-
where, the remedy at law is inadequate in these cases and the equitable remedy
is accordingly available. See 3 KINNEY, IRRIGATION AND WATER RIGHTS
1650 (1912).
11. Taylor v. Florida E. C. R. R., 54 Fla. 635, 45 So. 574 (1907); Rockhill
Club v. Volker, 331 Mo. 947, 56 S. W. 2d 9 (1932). "Public interest, there-
fore, must always be carefully appraised when it really has a place in cases of
specific performance," GLENN AND REDDEN, CASES ON EQUITY 537 n. (1946).
12. Since injunctive relief is equitable in nature, it is necessary to establish
a basis for equity jurisdiction in these cases. his basis is easily found, how-
ev sce water rights have long been regard as a o ra r
riub e ae r on as, a mater ot course. ee
THE WESTERN STATES 20-21 (3d ed. 1911).

1 / / I


of preventing the gaining of a prescriptive right by the defendant,1s
ereas an injunction may completely stop the violation. In addi-

be obtained as an adjunct of the specific relief given in an injunctive
Having seen the importance of the injunction in the enforcement
scheme, it is now appropriate to examine the relationship of the
balance of convenience doctrine to the granting of injunctive relief.
In this connection it should first be realized that this doctrine is
simply one of a group of limitations on the use of the injunction.
The next question is,wht ad to ae
tent does_their applicatiJ onff te .screton ot t cu.in.
which injunctive relief is being sought 'Ti addition to the balance
of convenience doctrine, they include the doctrine of ;8 the
refual i ll ive -relief when he court reo ze a the n-
junction is being sought primarily tobe used as a club for the r-
poseof extortman exorbitant ettlement .fronm t fe xiia
to17 and the aplicatioj thede minimis rincile,18 under which
in some jurisdictions the court mayrese to gran equitable relief
weinno substantial damage is alleged or orove1e,__iffne6
plainan t o.nhis-actinfior-damage.aUlaM 4pevent the runningof
the prescr!ion period.19
13. WALSH, TREATISE ON EQUITY 178-182 (1930); see Wiel, Injunction
without Damages as Illustrated by a Point in the Law of Waters, 5 CAL. L.
REv. 199 (1917); see Webb v. Portland Mfg. Co., 29 Fed. Cas. 506, No. 17,322
(C. C. D. Me. 1838).
14. Abbott v. The 76 Land and Water Co., 161 Cal. 42. 118 Pac. 425 (1911);
WALSH, supra note 13, at 179-180.
15. One such limitation is found in all jurisdictions in the interlocutory in-
junction cases when it is universally recognized that the trial court can refuse
to grant an injunction pendente lite in the absence of a showing that a refusal
of injunctive relief at this stage in the proceedings will work serious hardship
on the complainant. Boatwright v. Town of Leighton, 231 Ala. 607, 166 So.
418 (1936); Sanders v. Textile Workers Organizing Committee, 187 S. Car.
ABLE REMEDIES 1949 (4th ed. 1919).
16. Under this doctrine a complainant may be refused injunctive relief if he _-,
has slept on his rights while defendant acted to his prejudice, as, for example,
by preparing expensive works for the use of the water in question. New
York City v. Pine, 185 U. S. 93 (1902); accord, Brooks v. Patterson, 159
Fla. 263, 31 So. 2d 472 (1947).
S17 d iA...... .lzfY i Muiing Co., 38 Mich. 46 (1878); McCaim v. Chasm
Power Co., 211 N. Y. 301, 105 N. E. 416 (1914); cf. Platte Valley Irr. Dist.
v. Tilley, 142 Neb. 122, 5 N. W. 2d 252 (1942).
18. De minimis non curat lex (The law does not concern itself with trifles),
McCann v. Chasm Power Co., 211 N. Y. 301, 105 N. E. 416 (1914). Contra:
Gering Irr. Dist. v. Mitchell Irr. Dist., 141 Neb. 344, 3 N. W. 2d 566 (1942).
19. McCann v. Chasm Power Co., 211 N. Y. 301, 105 N. E. 416 (1914);
cf. Chow v. Santa Barbara, 217 Cal. 673, 22 P. 2d 5 (1933). CanPt: Am-
sterdam Knitting Co. v. Dean, 162 N. Y. 278, 56 N. E. 757 (1900); anlnv.
Wfley74Jt ..:Div. W69, 64N. Y. Supp-. 8; ( vf9 ), aira, 165 N. Y.

.W o o


The most important limitation on preventive relief foir r pur-
poses, however, is the balance of convenience doctrine What is
this doctrine? It is difficult to define, since many varying factors
are involved in its application in different cases. The language of
Mr. Justice Brandeis in a 1933 nuisance case, however, may provide
a key to its general meaning. In Harrisonville v. Dickey Clay Manu-
facturing Company he states .'?'
"For an injunction is not a remedy which issues as of course.
Where substantial redress can be afforded by the payment of
money and issuance of an injunction would subject the defen-
dant to grossly disproportionate hardship, equitable relief may
be denied although the nuisance is indisputable."
In other words, in jurisdictions applying the doctrine, an injunction
does not necessarily follow in all cases in which a legal right is
violated. The problem will be to determine in what type of wa
right cases injunctive relief may be or is likely to be withheld -

The adoption of the term "balance of convenience" was perhaps
unfortunate. Its use has in the past resulted in criticism on the
ground that courts should deal in legal rights, not conveniences,'2
Sand the very idea of balancing conveniences has been rejected by
some courts as something beyond the judicial power. In fact the
American Law Institute would have us drop the term "conveniences"
and talk instead of balancing "injgies" on nds of "relative
hardship Whether this change in terminology will in itself make
the trine more palatable to members of the imperative school of
jurisprudence is to be doubted, but the trend toward the acceptance
of the balancing of equities doctrine by American courts has been
quite widespread during the past several decades.23 This shift is
664, 61 N. E. 1131 (1901). It is interesting to note that in cases of interfer-
e ee .W lpainsg~hy, as in trespass cases, damage is presumed from the
i .n-g4- +thatt 1fe action for damages o
commences r es" its effect on the lower owner. Cape v. Thompson,
I2 Vex. Liv. p. 681i, 3 W. 3 HAM, WATERS AND
WATE RIGHTS 541a (1904) ; see Lewis, Injunctions Against Nuisances and
the Rule Requiring the Plaintiff to Establish his Right at Law, 56 U. ol PA.
L. REv. 289, 311 n. (1908).
20. 289 U. S. 334, 337, 338 (1933).
21. See McClintock, Discretion to Deny Injunction against Trespass and
Nuisance, 12 MINN. L. REv. 565, 569 (1928); Note, The Trend -To Balance \
the Injuries, 4 S. CAR. L. Q. 540 (1952).
22. RESTATEMENT, TORTS 941, comment a (1939).
23. See Storey v. Central Hide & Rendering Co., 148 Tex. 509, 515, 226
S. W. 2d 615, 619 (1950); Note, 4 S. CAR. L. Q. 540, 542 (1952).

1 I I~ i


praMably the result of a change in the attitude of the courts them-
lytes from a clissez fire philosophy, with its emphasis on strict
protection of real property rights,24 toward a jurisprudential ap-
proach along the lines of Dean Pound's theory of social interests,25
an approach which recognizes the imaptitace f. jocal interss o~'
than real property rights, or what Dan Pund refers to as the
secifty-f'-5 acquisitions, and likewise recognizes the necessity of
balancifig" these sdbial interests whenhef
being given to those interests L waL igw .mow4 a u st airie-J
sent civia T on. An examination of the balance of convenience
caft we'r* the-Vat century shows a similar trend.
Forgetting that the English chancery court in its inception acted
as a balance against the overly technical application of common law
rules, much as Aristotle's epieikaia or equity was designed "as a
correction of law, where law is defective by reason of its universali-
ty",27 the nineteenth century chancellors, succumbing to the demands
of predictability, pushed the principle of epieikeia into the back-
ground, leading to what Dean Pound characterized in 1905 as the
decadence of equity.28 During this period the idea that the chan-
cellor could balance the relative hardships of the parties, even when
a strong public interest dictated such a course, was usually rejected.2
As Pomeroy stated at this time, "The weight of authority is against
allowing a balance of injury as a means of determining the proprie-
ty of issuing an injunction"s.0
While the majority of the cases rejecting the balancing doctrine
Were in the field of nuisance, there were a number of water rights
cases, particularly in the vllon area, which took the same strict
postih.1 It is interesting to note, however, that most of these
24. Thus Locke took the position that governments exist solely for the pro-
tection of property. LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT 122, 168
(Hatner ed. 1947).
25. Pound, A Survey of Social Interests, 57 HARV. L. REV. 1 (1943); see
Patterson, Pound's Theory of Social Interests, in SAYRE, INTERPRETATIONS OF
ed. 1949).
27. AlSTOTLsE, ETHIcs, Bk. V, 10, 1137b (Chase's trans., Everyman ed.
28. Pound, The Decadence of Equity, 5 COL. L. REV. 20 (1905).
29. Whalen v. Union Bag Co., 208 N. Y. 1, 101 N. E. 805 (1913); Walters
v. McElroy, 151 Pa. 549, 25 Atl. 125 (1892).
ed. 1905).
31. Woodruff v. North Bloomfield Gravel Mining Co., 18 F ed. 753 (C. C. D.
Cal. 1884); Aritona Copper Co. v. Gillespie 12 AxzSl190, 100 PA 465 (1909);
Whalen v. Union Bag Co. 208 :N 101 N. E. 805 (1913). In Hill v.
Standard Mining Co., 12 Idah-, 23, 2 5 Pac. 907, 908 (1906), it was said:
("RI is earnestly urged by counsel for respondents that .. it [an injunction]



so-called majority decisions were handed down in the industrial
North and West, whereas three of our Southeastern StatesAla-
bama," Kentucky a nd north Carolina, early joined what one
writer referred to as the "weak mno s the
S afseinceTsubstantial injury to the complainant.
'T6diyespecilly"mi code jurisdictions in which it is recognized
that injunctive relief is simply one among available remedies and
therefore its denial is not necessary baFtto~ol- elFi T ~tlIie con
cept tht the cou a d onary power to balance thee ties
when wetermining'whether to grant the injiunction is again coming _
into ascendanc. withthe--ier-caniw-g the way
in endorsing this development away from the mechanical jurispru-
dence of the late nineteenth century.87

Has the trend toward flexibility in the granting of injunctive re-
lief been exemplified'in water cases in the Southeastern states? In
attempting to answer this question it may be well to consider the
types of water rights which are subject to equitable protection. Such
rights may exist in either subterranean or surface water, and these
rights may be interfered with either by pollution8s or by diversion,
would result in 'the depopulation of Shoshone County, the abandonment of all
mining and milling therein, and the consequent bankruptcy of the inhabitants
thereof'. Deplorable as this might be-if true-it furnishes no excuse for the
court to shirk its responsibilities in disposing of the question before us on its
merits. 1b no respecter of persons, corporations or dividua and in.
its cenf m"Onute m
Snrigjj.ts e .CT 1. les on f
the amount man c tmay a t
32 t 87 Ala. 468, 6 So. 192 (1889) (refusal of the
injunction was also justified on the basis of laches) ; Ulbricht v. Eufaula Water
Co., 86 Ala. 587, 6 So. 78 (1889).
33. Louisville & N. Ry. v. Beauchamp, 19 Ky. L. Rep. 398, 40 S. W. 679
(1897) (judgment for damages reversed in absence of showing of injury from
diversion of water).
34. Harris v. Norfolk & W. Ry., 153 N. C. 542, 69 S. E. 623 (1910) (judg-
ment for defendant in action for damages affirmed in absence of material in-
jury from diversion).
35. Comment, 4 Tax. L. Rev. 231, 232 (1926). But the leading writer in
the field of water rights at the time favored this minority view, 3 KINNEY,
36. See Note, The Treed -To Balance the Injuries, 4 S. CAR. L. Q. 540
37. RESTATzMENT, TORTS 933 and introductory note to c. 48 (1939).
38. For a survey of the present extent of this problem see Water Pollution
in the United States, Ser. 1, U. S. Pub. Health Serv. Pub. No. 64 (1951).
See also Note, Rights and Remedies in the Law of Stream Pollution, 35 VA.
L. Rev. 774 (1949).


/ i _I~__ __~_C


detention, or appropriation of the water to which complainant lays
a claim of right. As yet the injunction has not been widely used
in the Southeast for the protection of rights in subterranean water
supplies, though the conservation of such supplies is becoming a
real problem ;9 but it has been sought in many cases to prevent pollu-
tion of surface waters, and there are a scattering of Southeastern
cases involving the use of the remedy as a means of preventing di-
version or appropriation of such waters.

In the pollution cases public interest often bulks large, since the
offenders are usually muniipac i ie la ge industries intimately
tied in with the econotny of the jurisdiction; and in cases of tjhis
sort we should not be too surprisetofiea. the courts ref singl o
grant an injunction the result of which would be to shutonan
impfioitanfii'mdisry or kave a city without a means of sewage dis-
posal. The tact that auntdgftyjit_ int-edtaigC a rights
to` continue its pollution through eminent domain proceedings is of
coTurse daarm some ofthe decdis tE e tli5.e i ;ut,
even in i case of private defendants, if the public interest incon;
tinued operation is strong enogig the injunction has usually be
deniediffaThErnOTrreenTt esTmite labama Su-
preme Court n a 1952 case refusing to sanction injunctive relief
s\ against pollution by a limestone -cmpany on a complaint of inter-
ference by agricultural interests a 1940 Arkansas case denying
Sinjunctive relief against pollution of a stream by a barium mill;4e7
a 1940 Florida case balancing the equities in favor of allowing a
municipality to continue polluting a stream through operation of
.a sewage disposal plant' "and a 1934 Louisiana case refusing to
39. See Black and Eidsness, Industrial Water Supply in Florida, Economic
Leafle s, Univ. of Fla., Vol. XI, No. 2, Jan. 1952. The authors point out
that.vhil industry in the United.SxaLes. use..da".' .oT
wao-f which onl 5~,000,L0qgg llO J is ground water Florida's two lar est
er-usng nustries, e pulp anapriils.a hr e-
ritv'iost-e--their water supply from wdlj,. Bec.aue o Frrria'~~ ..tle us
grd-il, wadiCT uuin,"j, ulltu'- sltla ge is likely to occur, but extensive
pumping oF ground water m'ay cauiise" lit and 111 ur- rFitiilin Tgal prob.
lems: -This witfdraw*its by thl~ hir'-- ndty-n aunou rtve re-
sult sm compF'eT.Tiinge' t' a- p i.TT e v.i~osja an
average flow of approximately 20,000 O0Llna-..e. d See Springs
of Florida, Fla-Geoogc-BulclTI. -no- 31, p.4 4 -
64 AO. Montgomery Limestone Co. v. Bearden, 256 Ala. 269, 54 So. 2d 571 (1951). V
&,- 44 Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S. W. 2d 442
A .i A Lakeland v. Harris, 143 Fla. 761, 197 So. 470 (1940). The Court in this
Case did order the i cialta feasible measures to cut down the
amounT[of pollution. 1 C l l
(i \, /.yj-, ery 01s 3 v '(^y-cr) 'L
C-^LPe-^^LL^Lj /t^ 'o"Crt ^eL^.J^J^. 3


enjoin the operation of a mill despite resulting stream pollu-
tin /
- In the diversion and appropriation cases there is evidence of a
similar trend toward bi~ala gfite relaive harsh din eermtiining
whether injunctive relief should be granted, though with some reser-
vations. Again, if the public interest intervenes, as when a munici-
pal water supply is involved, the tendency, as evidenced in a 1934
Kentucky case,44 is.to refuse injunctive relief and leave the com-
plainant to his reem-
tions, cludin V a have sta con-
dition that the municipao ce ed to obtain the needed water_ rights
through eniiet domain proceedings.4
neT onTy p-fiit v epart e are involved, however, and the basic
interest of the public i3=ms |i
more reluctant to consider the possibility of balancing the equities;
ana in cases of thrg--sor-b-otilh-e~G-afnd W 'estTff ima47
courts have taken a strong position against the right of the court tf,
weigh the relatati'eTiiar'd'slps. It seems only fair to add, however,
that West Virginia, along with South Carolina,48 still apparently
considers herself bound T io erative
denies e court s power to ce te euiies any case in which
injunctive relief is applied for,4whether that case involves the in-
'.1'4 Young v. International Paper Co., 179 La. 803, 155 So. 231 (1934); cf. .
National Container Corp. v. State, 138 Fla. 32, 189 So. 4 '(1939) (same result V
accomplished on different legal basis).
44. Keitucky Elec. Devel. Co. v. Wells, 256 Ky. 203, 75 S. W. 2d 1088
45. Purcellville v. Potts, 179 Va. 514, 19 S. E. 2d 700 (1942); accord, Mayor
of Baltimore v. Brack, 175 Md. 615, 3 A. 2d 471 (1939); Hartzell V. Village
of Hambury, 155 Misc. 345, 279 N. Y. Supp. 650 (Sup. Ct. 1935), aff'd, 248
App. Div. 667, 289 N. Y. Supp. 910 (4th Dep't), modified, 272 N. Y. 234, 5
N. E. 2d 801, modified, 273 N. Y. 476, 6 N. E. 2d 411 (1936).
46. Robertson v. Arnold, 182 Ga,664, 186 S. E. 806 (1936); City of Elber-
tofi"Y'Hobbs, 121 Ga.749, 49 S.-e 779 (1905); Chestatee Pyrites Co. v.
Cavenders Creek Goil-Mining Co., 118 _a.255, 45 S. E. 267 (1903).
47. McCausland v. Jarrell, 68 S. E. 2d<729 (W. Va. 1951). The court does
say that it will balance the equities in an appropriate case, but on the facts as
brought out in the dissenting opinion it would be hard to find a more appro-
priate case.
48. Davis v. Palmetto Quarries Co., 212 S. C. 496, 48 S. E. 2d 329 (1948);
Williams v. Haile Gold Mining Co., 85 S. C. 1, 66 S. E. 117 (1909); State v.
Columbia Water Power Co., 82 S. C. 181, 63 S. E. 884 (1909). For recent
dicta that the court may balance the equities in an appropriate case see Forest
Land Co. v. Black, 216 S. C. 255, 266, 57 S. E. 2d 420, 426 (1950) ; Sprouse
S v. Winston, 212 S. C. 176, 185, 46 S. E. 2d 874, 878 (1948).
49. B6ard of Comm'rs v. Elm Grove Mining Co., 122 W. Va. 442, 9 S. E. 2d
813 (1940); Ritz v. Woman's Club, 114 W. Va. 675, 173 S. E. 564 (1934) (both
cases admit the possibility of using the doctrine in an extremely meritorious


vasion of water rights or any other tort against which injunctive re-
lief may be sought.50

With the advent of modern potble irrigation systems and pump
ing machinery, the possibilities for utilizing.available.-water" uples
Sin tE'Southeast-ha1vetieised tremendously. Whereas in the past
we have generally considered our water resources to be more than
adequate, we may now be approaching a situation where our supply
will fall short of meeting the demands placed upon it. In this new
situation new means must be devised to handle the legal problems
involved in obtaining maximum benefits from the water available
to us.
To point up the growing seriousness of this problem, it may be
appropriate to examine some recent developments in Kenticky and
South Carolina. Data gathered in Kentucky by the United States
Weather Bureau shows that in only two out of every five yeas is the
rainfall so distributed as to produce a good crop yield0) In the
other three the crop yield canbe increased tremendously by irriga-
tion. For instance, in 1951, which was not considered a drought
year, farmers who used irrigation were able to double their tobacco
yield as well as greatly improve the quality of their crop." Since
the amount of acreage that can be placed in tobacco is rigidly con-
trolled by federal regulations, the practice of irrigating to increase
crop yield will no doubt mushroom rapidly. A recent South Caro-
lina survey shows that in that state demand for water for industrial
uses has increased fourfold since 1945, and the demand for agricul-


case). One early Georgia case indicates that the court considers itself to
have some discretion to balance the equities, at least in the limited situation in
which the evidence of complainant and defendant is in practical equipoise,
Everett v. Tabor, 119 Ga. 128, 46 S. E. 72 (1903).
50. In Mississippi, on the other hand, while the doctrine has apparently not
yet been considered in connection with water cases, dicta in several recent de-
cisions indicate a more liberal approach toward it in appropriate cases; see
Smith v. Fairchild, 193 Miss. 536, 547, 10 So. 2d 172, 174 (1942); Williams v.
Montgomery, 184 Miss. 547, 556, 186 So. 302, 304 (1939); Reber v. Illinois
Cent. R. R., 161 Miss. 885, 898, 138 So. 574, 577 (1932). Early North Caro-
lina and Tennessee cases indicate that those states may also be prepared to take
a liberal stand on the application of the doctrine. See Brown v. Carolina
C. R. R., 83 N. C. 128 (1880); Lassater v. Garrett, 63 Tenn. 291, 4 BAXT. 368
5 1. Note, 40 KY. L. J. 424 (1952), quoting Thaxton, Irrigation Study on
Pastures in Kentucky, Feb. 17, 1951.
52. Ibid.

/! ___ _i i i_ l IIII I II

THE BALANCE op CONv sIscE DocTai 169

tural purposes has doubled in the same period Similar figures I
might be produced for most of our other South tern states.


Bef e discussing possible solutions of this problem of obtaining
maMum use of available water supplies, it may he well to consider
th three different judicial approaches to use of water from running
streams.55 The oldest is the English "natural flow" rule, under which
an upper riparian owner may not alter the natural flow of a stream
except in so far as he makes use of the water for purely domestic
purposes. This approach was introduced into Anglo-Americaa law ~0*t
through the writings of Kent and Story." It was adopted in Eng-
land at a time when the use of water for industry arid irrigation was
still on a very minor scale, and prevention of damage to streams
through pollution was the predominant problem.57 In such an
economy the rule was adequate to meet the social problems of the
time. This natural flow rule received early acceptance in the eas-
tern United States58 but was almost at once rejected in the Western
and Rocky Mountain states in favor of the second doctrine, that of
"prior appropr nation".
Under the prior appropriation doctrine, which had its inception i 1 '
in the needs of the early gold miners for large quantities of water'-
to carry on their operations,59 a riparian or other owner could "ap-

PMa NA.y RPOT 6 (1952).
54. See Black and Ea note 39.
55. Fra-me"Braed discussion orfioe three theories relative to the use
of water from watercourses see Busby, supra p. 106, particularly pp. 107-109.
56. The first authoritative statement of the rule is found in the opinion of
Mr. Justice Story-in Tyler v Wilkinson, 24 Fed. Cas. 472, No. 14,312 (C. C.
C. R I. 1827). Stores decision was buttressed by Igent a year later in 3
KmNT's Comi. 353 et seq. (1828). See Wiel, Watery: 4merican Law an
French Authority, 33 Haav. L. RBv. 133 (1919). For a recent Supreme Court
case outlining the background of the doctrine, see United States v. Gerlach
Live Stock Co., 339 U. S. 725, 744-745 (1950).
57. Mason v. Hill, 5 B. & Adol. 1, 110 Eng. Rep. W92 (1833); Wood v.
Waud, 3 Ex. 784, 154 Eng. Rep. 1047 (1849); Miner v. Gilmour, 12 Moore
C. P. 131, 14 Eng. Rep. 861 (1858); see Wiel, supra note 56, at 144-146.
58. Stein v. Burden, 29 Ala. 127 (1856); Roberts v. Martin, 72 W. Va. 92,
77 S. E. 535 (1913). The Alabama court quickly shifted its emphasis to the
reasonable use aspect of Kent's theory; see Ulbricht v. Eufaula Water Co., 86
Ala. 587, 6 So. 78 (1889). West Virginia now apparently also stresses that
aspect; see McCausland v. Jarrell, 68k S. E. 2d 729, 740 (W. Va. 1951). But
the natural flow rule has also recently been reiterated in some of our South-
eastern states, Robertson v. Arnold, 182 Ga. 664, 186 S. E. 806 (1936) Purcell-
ville v. Potts, 179 Va. 514, 19 S. E. 24 700 (1942); cf. Harris v. Norfolk &
Western Ry., 153 N, C. 542, 69 S. E. 623 (1910).
59. FoIM~n HirAnqAw RIGHTs it 14-15 (1887); se Wiel, Fifty wrs of
Water Law, 50 HABv. L. Rev. 252, 254 (1936).



propriate" the right to use as much water as he could successfully
divert and beneficially employ, so long as his appropriation was prior
to that of others, in which case his right, on a sort of first-come,
first-served basis, might in an extreme case extend to exhausting the
flow of the stream.60 This doctrine is now confirmed by legislation '~
in most Western states. 61
The third approach is through the theory of "reasonable use",%~F
under which a riparian complainant is entitled to protection onlyf
when defendant's diversion unreasonably interferes with complain-
ant's use of the water.62 Under this doctrine emphasis is placed
on full use of the available water supply, and each riparian owner
is entitled to make beneficial use of the water for any purpose to
the extent that his e does not unreasonably interfere with the bene-
ficial uses of others."

The problem of obtaining maximum use of available water sup-
plies in the Southeastern states can be met in two ways. The first
way, suggested in the South Carolina Preliminary Report,63 is
through legislative repudiation of the antiquated natural flow theory
and the substitution in its stead of the doctrine of prior appropriation
under the direction and control st at administrative agency.64

60. 44 COL. L. REV. 437, 438 (1944).
61. For excellent summaries of the water law doctrines of the 17 Western
states, with constitutional and statutory citations, see 3 REPORT OF THE PZESI-
3 (1950).
62. See 4 RESTATEMENT, TORTS c. 41, Topic 3, Scope Note (1939). For a
recent southeastern application of the doctrine see Dunlap v. Carolina Power
& Light Co., 212 N. C. 814, 195 S. E. 43 (1938).
64. See Busby, supra note 63, at 51-52. Such legislation would probably in-
clude provisions for injunctive enforcement. Wo11d the balance nf convenience
doctrine b _"a I. em st
c n lieryi The Texas court has heldini s v. Red Bluff Wateri e
that the court cannot refuse relief "
ance of convenencedoctrine ha s lace in injuncti w rce au

ethe existence of ia discretion has apparently not
tie lennesseeIclart in .ipas, L W Ii-ane te

bn e~ for an indbt-e inetn nnect o- n to
staitutory remedy bY wag of damages. Madison v. Ducktown Sulphur, Copper
Trust Co. v. Memphis Hotel Co., 124 Tenn. 649, 139 S. W. 715 (1911). Zs
t th;q nrffblem as tQ _ece_ u d|Ciscretion apparently not
fecting the use of water. It is submitted that when the problem does arise
w eP Me o To n t de ii econvi nce case-- s
would e most in consonance with the modern aanceo conveniencepre



This approach may provide the most feasible solution in those juris-
dictions, such as South Carolina, that have apparently rejected the
balance of c ence doctnrm AJinanA.Lpratilg ,nj tons
against minor violations of riarian rhts.5
Tiere is a second approach possible in those jurisdictions in which
the balance of convenience doctrine is available and the law concern-
ing appropriation of surface waters is not too rigidly bound up with
the early common law rule that all riparian owners are entitled to
the natural flow of a stream, whether they have any need for such
flow or not. This is to settle such disputes on the basis of the doc-
trine of reasonable which affords er therig
toAj eneficial useweien thereisnoappreciable damage to the lower
owner6 or in some cases e'The power owner is damaged but te
overwhelming uti, ty o i 'omp eating use militates against cutting
off that use~ A 'isensi'E iappIicaai ionTIeancetnce
doctre may a v se u'a 3 i-
cation of the reasonable use rule in those jurisdictions that are ree
to adopt t.

It may help to examine briefly the development of the law as ap-
plied by the Supreme Court of the United States in cases involving
disputes over the use of water in interstate streams. This examina-
tion should be doubly rewarding, since the remedy sought in the

i the Southeast But if the question should ar t of an administra-
tive request ', j, l*'*mio an agency order, e score
agency may-repiae: i e Itm ieoiorcin Icourt. This pre-
sents a proutenl yon e scope of tis article. See DAvis, ADMINIsTRATI
LAW 240 (1951).
65. See.note 48 supra. In this connection, however, a judicious application of
the de minimis principle might provide the court with some discretion in such
66. This doctrine was developed from one aspect of the natural flow rule as
enunciated by Story and Kent, and the first American case applying the reason-
able use doctrine cites Story's opinion in Tyler v. Wilkinson, 24 Fed. Cas. 472,
473, No. 14,312 (C. C. C. R. I. 1827) and KENT'S COMMENTARIES as authori-
ties, Elliot v. Fitchburg R. R., 10 Cush. 191, 196 (Mass. 1852). See note
56, supra. The doctrine has been recently restated in Dunlap v. Carolina
Power & Light Co., 212 N. C. 814, 195 S. E. 43 (1938).
67. Dumont v. Kellogg, 29 Mich. 420 (1874) (stream depletion from erection
of dam) ; Minnesota Loan & Trust Co. v. St. Anthony Falls Water Power Co.,
82 Minn. 505, 85 N. W. 520 (1901) (minor change in channel below dam) ;
Snow v. Parsons, 28 Vt. 459 (1856) tanbarkk residue from tannery discharged
COMMISSION, WATER RESOURCES LAW 161-162 (1950), to the effect that the
recent legislative trend in ground water law is toward the adoption of the
reasonable use doctrine.



great majority of interstate suits has been the injunctione and the
Supreme Court has frequently applied the balance of convenience
doctrine in working out its concepts of the law as applied to the use
of interstate waters.69
The Supreme Court has usually handled such cases on the basis
of equitable apportionment, a doctrine closely allied to that of reason-
able use. As Mr. Justice Holmes put it in the case of New Jersey i/.
New York,70
"A river is more than an amenity, it is a treasure. It offers
a necessity of life that must be rationed among those who have
power over it .The different traditions and practices in
different parts of the country may lead to varying results but
the effort always is to secure an equitable apportionment without
quibbling over formulas."
If the dispute is between states following the prior appropriation
doctrine the Court has felt free to apply that doctrine in the settle-
ment of the dispute,71 but even in cases of this sort the Court does
not consider itself bound by the municipal law of such states72 and
has turned to the equitable apportionment doctrine in cases in which(t4

Clorado, 320 I:. S. 383 (1943 o v. C r 298

Sersey v. New York .
(1930); Connecticut v. Mas husetts, 282 U. S. 660 (19; v.V.
; Kansas v. Colorado, 206 U. S.
); Missourii v os, 0 U. S. 496 (1906); Kansas v. Colorado,
185 U. S. 125 (1902); Missouri v. Illinois, 180 U. S. 208 (1901); South Caro-
lina v. Georgia, 93 U. S. 4 (1876).
69. Application of the doctrine appears evident in the following cases, though
the doctrine is not always referred to by the Court: bf ff
U. S. 383 1 ; Washington v. Oregon, 297 U. S,
v. N[L.. .S 336 (931Y81; Connectic. -- ..tt.i. I
660 (1i1T Wiconsin v. 1lli 281 1. S. 179 (1930); as
206-07.7T.46 (1907)1 Missouri v. Illinois, 200 U. S. 496 (1906Y"aisa '
'- Cntoraffoi r 11 25 (1902). e ki i .i t ". 1)
70. New Jersey v. New York, 283 U'S. 336, 342-343 (1931). See also 3
REsouRcEs LAw 58-64 (1950).
71. Wyoming v. Colorado, 259 U. S. 419 (1922). The argument supo.rting
the application of the doctrine is found at p. 470.
72. As the Court put it in a dispute between Connecticut and Massachusetts,
both of which recognized the natural flow theory, "For the decision of suits
between States, federal, state and international law is considered and applied
by,,this court as the exigencies of the particular case may require. The deter-
miination of the relative rights of contending states in respect of the use of
streams flowing through them does not depend upon the same considerations
and is not governed by the same rules of law that are applied in such states
for the- solution of similar questions of private right . And, while the
municipal law relating to like questions between individuals is to be taken
into account, it is not to be deemed to have controlling weight". Connecticut
v. Massachusetts, 282 V. S. 660, 670 (1931).

__ __


it considered that this doctrine provided a more equitable basis for
t settlement of the dispute. The most recent of these cases is
Kans v. Colorado,78 decided in 1943. The Court applied this ver-
sion othe reasonable use doctrine and balanced the equities in favor
of allowing Colorado to continue diversion of a considerable portion
of the Arkansas River when Kansas failed to show that such diver-
sion substantially injured Kansas users.74
Although it federal cases are of persuasive value only in most
intrastate coroversies as to me right to divert and use stream waters
it is wen to fememnter ath it me water im question is being di.
from a navia Ireaxn'he federal government rather than the
state may have the last say as to the continuance of the diversion _
If the a opriation affects the navi i of an estate stream
it may be enjoined at the behest of the United States;s and this is
S true even fou a e proposed diversion isn i- igble
S-reacorte tut_ oritv to allow dvere
waters i nstra rests with the Secretary of the Army, and
'tC.Gil dfscrt on to i WhW lUMchot the water
of navtgai'WJe s ma be diverted.- n e-_ th-ef1r
thl Jtr-refon ot the Secretary replaces the discretion of the chan-

Ir TIf thstr though navigable, lies wholly within a state, the mere
fact of navigablty does not vest junsadicon in te bcretary, an
te waters ot te stream are subject to he state c ntro until the
M1Gouesual&.L ayMeiflly .smSes jrUsMicMon tnro Ton-

on over in trtate navigable stream 8 One reason for
assmu on oo f eral authority over intrastate navigable streams is
for flood 1aso purposes, as, forexa
and Soo.ilarS-lorida FloodWater
73. 320 IT S. 383 (1943).
74. Id. at 398. In some of thC cases equitable relief has been refused on other
crtionary grounds, e. g., City of New York v. Pine, 185 U. S. 93 (1902).
use of the conditional injunction as a means of effecting a complete settle-
Sof the problem is also illustrated in this case.
l'*tlS. Sanitary Dist. of Chicago v. United States, 266 U. S. 405 (1925).
7. United States v. Rio Grande Irr. Co., 174 U. S. 690, 708 (1889).
7. 30 STAT. 1151 (1899), 33 U. S. C. $ 403 (1946), 11henny v. Broussard, 172
La. 895, 135 So. 669 (1931).
78. Pod v. Turck, 95 UT. S. 4
(18M?.. 2A..L.2 38- th-6.4--rtr"den edn.82
S0 (1936), 33 U. S-. C I 701a (1946); 58 STAT. 887 (1944), 33
U. S- C *,1 (1946), as amended, 61 STAT. 501 (1947), 33 U. S. C. I 701-1
S(Su :, Se 3 RE'omr, supra note 70, c. 4.
t80. Su of the Central and Southern Florida Flood Control Pro-
ject, Wat&r Survey and Research Paper No. 4, Fla. State Bd. of Conservation,



made available by such projects comes within the jurisdiction of the
Secretary of the Army.81
^ Conr~ltrielina l znn of federal watpr law: tlrei c ne
more valuable lesson to be studied by our Southeastern states. That
lesson may be drawn from the pattern of settlement of interstate
water disputes. We have already briefly considered the judicial
handling of this subject. The Constitution, however, provides for
another method of working out such disputes -through interstate
agreements or compacts.82 Such compacts, worked out between the
states, along with machinery for their application, usually provide
a much more satisfactory method of settlement than does sporadic
litigation over isolated points of disagreement.8 Similarly, in intra-
state disputes contractual arrangements between the parties will often
provide the most workable solution, especially if sufficient foresight
is exercised to work out such arrangements as a part of planning
for operations requiring extensive use of water.84 And it is well
to remember that, if it becomes necessary to seek judicial enforcement
of agreements through a suit for specific performance, the balance
I of convenience doctrine will be available in most of our jurisdictions
aa tempering factor in the granting of such relief.85

It must be realized that the doctrine of reasonable use has one
serious practical defect. While under it an injunction will be re-
fused to one not actually or prospectively using the available water,
if lower riparian owners should decide to make such use and should
take definite steps toward that end, they would then be entitled to

Aug. 1950. For a note on the state law related to this problem see Note,
Waters: Surface Water Drainage, 2 U. or FLA. L. REV. 392 (1949).
81. 58 STAT. 890 (1944), 33 U. S. C. 709 (1946), as amended, 61 STAT.
501 (1947), 33 U. S. C. 709 (Supp. 1952).
82. U. S. CONsT. Art. I, 10, "No State shall, without the consent of the
Congress ... enter into any agreement or Compact with another State ..
Congress has given blanket consent to the states to negotiate compacts for the
control of pollution, 62 STAT. 1155, 1156 (1946), 33 U. S. C. 466a(c) (Supp.
1952). S, .1 n+d i O X -__P" i

4rnmWtwtMatttIes. Stc a 3 I cn, wp 70, 41C a0 ,
83. See Frankfiurer and Landis, The Compact Clause of the Constitution,
A Study in Interstate Adjustments, 34 YALE L. J. 685, 707 (1925).
84. See Powell and Bacon, Magnitude of Industrial Demand for Process
Water, 42 J. AM. WATgR WORKS Ass'N 777, 785 (1950). Such planning may
be encouraged by wise state legislation, e. g., through the authorization of co-
operative irrigation districts, as in Florida. See FLA. STAT. 611.38 (1951).
85. See note 11 supra.


a fair share of the water, even though this might seriously impede
beneficial uses already being made by upper riparian owners.86 Fear
t of beiag cut off from such uses in turn may discourage upper ripari-
ans from establishing extensive irrigation systems or using the water
Al- to irrigate adjacent riparian lands and thus result in failure to make
full use of the available supply.87
Application of the prior appropriation doctrine can solve this prob-
lem, since once an appropriator begins diverting water of a stream,
he gains a right to continue indefinitely. Unless, however, some
method is provided for divesting a prior appropriator of his right
r to continue diversions when changed conditions demand the prior
appropriation doctrine may eventually become ad stifling to pro-
gress as the older natural flow theory.8 The California experience
with the latter doctrine may serve to illustrate this point.89
In California early judicial application of the natural flow theory
in favor of lower riparian owners who required the full flow of moun-
tain streams in spring and early summer for flooding and fertiliz-
ing their lowland pastures had resulted in shutting down the large
hydraulic gold mining industry of the 1880's.90 But by the 1920's
it had become apparent that requiring that all the water be left in

86. Thus in an earlier decision on the Kansas and Colorado dispute the
Supreme Court, while denying Kansas equitable relief, provided that its peti-
tion could be renewed upon a showing of real injury. Kansas v. Colorado, 206
U. S. 46, 117, 118 (1907).
87. See BusBY, supra note 53, at ix. This difficulty can be obviated to some
extent by contractual arrangements between the riparians similar to the inter-
state water compacts. See p. 174 supra.
88. The validity of this criticism is recognized by A. P. Black, Head Professor
of Chemistry, Univ. of Florida, a former president of the American Water-
works Association, who supports legislative adoption of the prior appropriation
doctrine in the area of ground water regulation. As Black puts it, in Basic
Concepts in Ground Water Law, 39 J. AM. WATER WORKS ASS'N 989, 994
(1947), "This principle [of prior appropriation] without question offers the
greatest protection to large investors whose appropriations are dependent upon
an adequate supply of water. On the other hand, it inevitably leads at times
to the use of water by a senior appropriator which would have been better used
by a junior, and we are faced again with the fact that the rule of reasonable
use must have a place in the administration of the doctrine".
89. For an excellent article on this experience see Wiel, Fifty Years of Water
Law, 50 HARV. L. REV. 252 (1936).
90. Woodruff v. North Bloomfield Gravel Mining Co., 18 Fed. 753, 756, 774
(C. C. D. Cal. 1884); People v. Gold Run Ditch & Mining Co., 66 Cal. 138,
4 Pac. 1152 (1884). The crux of these "debris" cases was not so much di-
version or appropriation as the prevention of pollution, but another famous
Case of the same era, ux v. Haggin, 69 CaL 255, 4 Pac. 919 (18g), n.- i,
69 Cal, 255, 10 Pac. ,671 etd ',e oT' recognition of the strict natural
flow theory as the law governing private riparians in California. The court,
in a 200-page opinion, rejected the prior appropriation doctrine as to such
owners, preferring to protect the "property rights" of the lower riparians with-
out regard to relative value of the use to which the water was being put. See
Wiel; Fifty Years of Water Law, 50 HARV. L. REV. 252, 254-259 (1936). -


the streams for the valley cattle interests was wasteful when much
of it could be better utilized for year-round irrigation in the uplands.
The upshot was a constitutional amendment in 1928 declaring that
"reasonable use" was the test for use of water resources in Cali-
It was, of course, predicted that the new doctrine would be im-
possible of administration,92 but by taking the position that reasonable
use does not necessarily mean equal use by all riparians,93 and re-
fusing injunctions in favor of damages on the balance of convenience
theory,94 or applying the de mnnimis principle to "nuisance value"
claims,95 the California Court, using a reference procedure under
which it obtains the advice of the State Department of Public Works
through the State Engineer in difficult cases,96 has made the amend-
ment work. Of course, if the injunction is refused the injured party
always has his action at law for damages, but parties with no real in-
jury have found the juries no more sympathetic than the chancellors.97

91. CAL. CoNST. Art. XVI, 3; see Peabody v. Vallejo, 2 Cal. 2d 351, 366,
40 P. 2d 486, 490 (1935). This rule of reasonable use is modified to the ex-
tent that California continues to recognize the right of prior appropriation as
applied to waters of streams in the public domain, a right established by legis-
lation in 1872. In addition, excess flow in watercourses above the quantities to
which riparian and other lawful rights attach have been held to be public
waters of the state and hence subject to its control and regulation. Meridian
v. San Francisco, 13 Cal. 2d 424, 90 P. 2d 537 (1939). See 3 REPORT, supra
note 70, at 715-721.
92. "If every person owning land over a water-bearing area shall be per-
mitted to share with every other person wherever he shall see fit to drive his
well, it is very probable, if not quite certain, that as the process of develop-
ment goes on, many, if not all, will find themselves restricted in their use of
the water they have brought to the surface to the extent of ruination". Jus-
tesen v. Olsen, 86 Utah 158, 169-170, 40 P. 2d 802, 807 (1935).
93. Peabody v. Vallejo, 2 Cal. 2d 351, 375, 40 P. 2d 486, 495 (1935). The
Supreme Court has taken a similar position concerning the application of the
equitable apportionment doctrine in the interstate cases. As the Court put it
in Connecticut v. Massachusetts, 282 U. S. 660, 670 (1931): ". such dis-
putes are to be settled on the basis of equality of right. But this is not to say
that there must be an equal division of the waters of an interstate stream
among the states through which it flows. It means that the principles of right
and equity shall be applied having regard to the 'equal level or plane on which
all states stand, in point of power and right, under our constitutional system'
and that, upon a consideration of all the pertinent laws of the contending
States and all other relevant facts, this Court will determine what is an equit-
able apportionment of the use of such waters". See Wiel, Fifty Years of
Water Law, 50 HAIy. L. REV. 252, 279 (1936), Theories of Water Law, 27
HARV. L. REV. 530, 536, 540 (1914).
94. Peabody v. Vallejo, supra note 93; Collier v. Merced Irr. Dist., 213 Cal.
554, 2 P. 2d 790 (1931).
95. Chow v. Santa Barbara, 217 Cal. 673, 22 P. 2d 5 (1933); see Wiel,
Fifty Years of Water Law, 50 HARV. L. Rev. 252, 286 (1936).
96. CAL. WATER COBE If 200G02050; see Waldo, F.raiati.t of Califoinia
Water Right Law, 18 So.; CALr. L. REV. 267, 268-269 (1945).
97. Wiel, Fifty Years of Water Law, 50 HARv. L. Rsv. 252, 288, n. 93 (1936).




Any system of water law, if it is to serve the Southeast over the
years, must be sufficiently flexible to adjust itself to the changing
social needs of the times. Inability to so adjust the natural flow
doctrine in California led to its downfall in that state. It had pro-
vided certaity at the expense of flexibility or epieikia, and, like other
mechanical concepts of jurisprudence, it eventually fell of its own
Prha"s a rnewr rion f t1h. p & agrrnirihttimn rnid arppd un-
der the guidance of a wise administrator, may be the solution in
states like South Carolina and Georgia, where the balance of con-
venience doctrine is not available as a tool to aid in developing the
reasonable use theory.98 But one thing is certain: flexibility is essen-
tial if we are to build a system of water law that will stand for future
generations. 'T'he reasonable use tho 0y inmure -falfr- 1= aary re-
m Vtft l moreover, the California experience has demonstrated
tharbrff reasonable use theory, applied by a judiciary working with
a technically qualified state agency and free to control that theory
through the balance of convenience doctrine, can provide a work-
able solution of the growing demand.100 It would, therefore, seem
Reasonable to conclude that, in those of our Southeastern states where
Sthe balance of convenience doctrine is now accepted, that doctrine
can become a most valuable tool in the construction of a sound water
law keyed to the demands of a modern democratic society.
98. See notes 46, 48 supra.
99. New Jersey v. New York, 283 U. S. 336, 348 (1931); see 2 WIa.,
WAT~a RIGHTS IN THE W aSTNM STATeS S9 752, 769 et seq. (3d ed. 1911).
It maybe argued that the prior appropriation theory also allows for revision,
inasmuch as appropriative rights may be lost by non-use, but loss by non-use
and surrender of such rights in favor of a more reasonable use in view of
Changed social conditions are two entirely different methods of change.
100. A complete revision of local water law is probably unnecessary in most
of our Southeastern states, where water supplies are relatively abundant. A
more likely development is legislative revision as applied to certain critical
areas where shortages are likely to occur. Such statutes might well be pat-
terned after recent ground water legislation in New Jersey and some of our
Western states. See ARIz. CODS ANN. II 75-145 et seq. (Cum. Supp. 1939);
Nev. CotbP. LAWS If 7993.11-7993.21 (Sutpp. 1949); N. f. STAT. ANI tit.
58, It 4A-1 to 4A-4 ( ). See also Current Developments in Ground Water
Law, 41 J. Am. WATER WORKS Ass'N 1002 (1949). It such area-type legis-
lation is enacted, provision for reasonable use in critical areas under the im-
mediate supervision of a state water control commission would seem more in
harmony with existing water law in the Southeast, and consequently more
likely of enactment, than a change to the prior appropriation doctrine.

Should the courts and legislatures in the Southeastern states have
under consideration defining riparian lands and consider limiting
These to the smallest tract held under nne titlein he chain of7title
leading to th T sent owner- then the following citations may be
of some help:
It appears that the first statement of this limitation in the form
above given was made by the California Supreme Court in Rancho
SSanta Margarita v. Vail, 11 Calif 2.TZ3d) 3 ac. (2dTA7
(a However, much earlier, on after gits sec. 771,
states that the California decisions tni toward *-i-x hr tA
of riparian land to the smallest parcel touching the stream in the
history of the title while in the' hands of the present owner". This
was written in 1911.
The statement in the Santa Margarita case, supra, however; is
a logical summation of the results of various California decisions. The
court in that case cited only one authority Boehmer v. Big Rock
Irr. Dist., 117 Calif. 19, 48 Pac. 908, in which 14 quarter-sections
of public land were granted to the same party, but by separate patents,
each based on a separate entry. Some parcels were contiguous to
a stream; others were contiguous to the (riparian) parcels but not
to the stream. The court held that for the purpose of determining
riparian rights, there were 14 distinct tracts, and that "mere con-
tiguity cannot extend a riparian right which is appurtenant to one
quarter section to another, though both are now owned by the same
person". The court relied on Lux v. Haggin, 69 Calif. 255, 424-
425, 10 Pac. 674, 773-774 (1886), wherein it was held that certifi-
cates of purchase issued by the California State Land Office were
admissible as showing ownership of land riparian to a watercourse,
but that "All the sections or fractional sections mentioned in any
one certificate constitute a single tract of land. If, however, lands
have been granted by patent, and the patent was issued on the can-
cellation of more than one section, the patent can operate by relation
(for the purpose of this suit) to the date of those certificates only,
the lands described in which border on the stream". This has been
relied upon in subsequent cases as a holding that the riparian right
extends only to land embraced within a single grant from the govern-
ment, and that such grant establishes the initial riparian title; and


----~IC-.------ ~~-~--i~-i~ .


as leading to the conclusion that annexation of a detached parcel to
t a parcel contiguous to the stream cannot extend the riparian right
of the latter even if physical conditions were favorable to use of
the water on the previously detached parcel.
Wiel severely criticizes the reliance upon Lux v. Haggin, supra, for
this principle, and strongly disapproves of the principle, which he
says did not exist either at the common law or the civil law. See
particularly sees. 770-772. Notwithstanding his disapproval, and the
esteem in which his work has been generally held by the California
Supreme Court, that court has since reaffirmed its adherence to the
principle. (See Miller & Lux v. James, 180 Calif. 38, 51, 179 Pac.
174, 180 (1919) ; Title Insurance & Trust Co. v. Miller & Lux, 183
Calif. 71, 82, 190 Pac. 433, 437 (1920).)
A riparian tract in California, then, cannot exceed the original
grant from the government, regardless of watershed limitations. It
can be reduced from the area originally so granted, but cannot be
extended after a reduction. This rule is based upon various deci-
sions of the California courts, of which some important ones follow:
It is stated in Anaheim Union Water Co. v. Fuller, 150 Calif. 327,
331, 88 Pac. 978 (1907), that:
If the owner of a tract abutting on a stream conveys to another
a part of the land not contiguous to the stream, he thereby cuts
off the part so conveyed from all participation in the use of the
stream and riparian rights therein, unless the conveyance de-
clares the contrary. Land thus conveyed and severed from the
stream can never regain the riparian right, although it may
thereafter be reconveyed to the person who owns the part abut-
ting on the stream, so that the two tracts are again held in
t one ownership. *
The finality of such severance is repeated in Rancho Santa Mar-
garita v. Vail, 11 Calif. (2d) 501, 538, 81 Pac. (2d) 533 (1938).
And see Hudson v. Dailey, 156 Calif. 617, 624-625, 105 Pac. 748
Preservation of the riparian right in a parcel thus detached from
a riparian tract and from contiguity to the stream may be effected
S by the deed of conveyance, even as against other riparian owners
(Miller & Lux v. J. G. James Co., 179 Calif. 689, 691-692, 178 Pac.
716 (1919). See also Strong v. Baldwin, 154 Calif. 150, 156-157, 97
Pac. 178 (1908); Hudson v. Dailey, 156 Calif. 617, 624, 105 Pac. 748
(1909).) Likewise, if the circumstances are such as to show that
the parties so intended, or such as to raise an estoppel (see Hudson


v. Dailey, supra, at 156 Calif. 624). It is preserved in a partition
decree (Verdugo Canyon Water Co. v. Verdugo, 152 Calif. 655,
662-663, 93 Pac. 1021 (1908); Frazee v. Railroad Commission, 185
Calif. 690, 693-694, 201 Pac. 921 (1921); see Strong v. Baldwin,
supra, at 154 Calif., 156-157), even when the decree is silent as to
the division of riparian rights (Rancho Santa Margarita v. Vail,
supra, 11 Calif. (2d) at 540). And preservation is effected by con-
veyance of the riparian right to a mutual irrigation company and
sale of parcels of land to individuals, accompanied by their propor-
tional part of the mutual company stock (Copeland v. Fairview Land
& Water Co., 165 Calif. 148, 161, 131 Pac. 119 (1913).)
It would follow, it would seem, that only the smallest tract held
under one title in the chain of titles leading to the present owner
could claim riparian rights. The reduction in area, of course, re-
lates to recession toward the stream. The rule would not be affected
if A were to purchase riparian tracts B and C from separate owners
D and E. It would apply independently to tracts B and C, A being
simply the "present owner" of both tracts.
In other states there are very few pertinent decisions.
A few citations follow:

Oreaon Jones v. Conn, 39 Oreg. 30, 39-41, 64 Pac. 855, 65 Pac.
1068 (1901), states the view that an owner of land contiulus to a
stream should be entitled to riparian rights "without regrd to the
extent of his land, or from whom or when he acquired his title".
In view of the dcne-tt ol rlparsam- iu J_.gon, tIns state-
ment is interesting but not of practical import.

Washington- Yearsley v. Cater, 149 Wash. 285, 288-289, 270
Pac. 804 (1928), holds that a parcel of land hed from a riparian
S tract and no longer 'iSn, f gr 1M h rahy bea iitpian
status; and that a tract, not riparian when title is acqurd, cannot
be made riparian by coming under the ownership of the owner
land lying between it and the stream.

Nebraska Ri an rights are limited ird b a
single entry or purchased from the government (Crawford Co. v.
Hat ,t,-- -__W.7 (I3) ;. McGinley v. Platte
Valley Public Power & Irr. Dist., 132 Nebr. 292, 297, 271 N. W.
864 (1937).) The right ot be enlar ed or extended b acquisi-
tion of adjoining lands (Crawford o. v. Ha tlt a 67 Nebr.
at 353).


S Kans-- Riparian land is confined to the watershed, but within
that aysic limit it, is not controed "by the accidental matter of
Sgvrnmerntzal sulrrlnns ot the land" (lark v.7 Allaman, 71 Kans.
206, 244-245, 80 Pac. 571 (1905).)
Texas- The riparian right cannot extend beyond the original
land survey, and "is restricted to land the title of which is acquired Y
by one {atkins Land Co. v. Clements, 98 Tex. 578,
5,86 S. W. 733 (1905).

University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs