Title: Tennessee Law Review, April 1955, The Movement for New Water Rights Laws in the Tennessee Valley States
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Title: Tennessee Law Review, April 1955, The Movement for New Water Rights Laws in the Tennessee Valley States
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Language: English
Publisher: Robert H. Marquis, Richard M. Freeman and Milton S. Heath, Jr.
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Abstract: Robert Hamann's Collections - Tennessee Law Review, April 1955, The Movement for New Water Rights Laws in the Tennessee Valley States
General Note: Box 12, Folder 8 ( Collected Materials on Water Law - 1952 -1957 ), Item 5
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TENNESSEE LAW REVIEW

Volume 23 QAPRIL, 1955 ) Number 7

THE MOVEMENT FOR NEW WATER RIGHTS LAWS IN THE
TENNESSEE VALLEY STATES
BY ROBERT H. MARQuIs, RCHARD M. FREEAN,
AND MnXiLoS. HEATH, JR.*
I. THE MOVEMENT AND ITS GENESIS
Expanding and sometimes conflicting uses of water, coupled with three
successive years of abnormally low rainfall. ar resulting in reexamination
of legal rules aplicable to water rights in number of southeastern states,
inclung thoe of the Tennessee Valley. With thr Wrrminat;;nn-i1akL
at times seemin to t ahead of it-hae 1nme a aidlv b nrnn m e
meIt ?or legal change. The change beine proposed fisindamental and far
reaching: t would involve repacing the existing doctrine of rinarian ri
at least in so far as it applies tosurface waters, with the doctrine
appropriation developed in the arid and semiarid states of the West.
This proposal has come closest to acceptance m ountm arolina. It was
first formally advanced in a report prepared in 1952 for the South Carolina
Soil Conservation Committee.2 A year later, the South Carolina General
Assembly passed a joint resolution declaring it to be the policy of the state so
to control its water resources as to effect their full utilization and protection,
and creating a special committee to recommend methods of rendering the
policy effectual.8 The committee filed its report the following year, together
with a draft bill.' This proposed legislation failed of passage during the 1954
Session of the General Assembly, but plans to reintroduce it in the 1955
Session were under active discussion as this article was being written.5 In
summary, the bill as introduced in 1954 would declare waters occurring in
any natural stream, lake or other natural body of water to be a public re-
*Mr.- Mar is Assistant General Counsel and Mr Freeman and Mr. Heath
are r em s oft e uivo vf I
exrened3=ti A=e UeftUWv xU noet1 access Bct ino O Tcnnessee
Valley Authority.
Average annual precipitation in the Tennessee River Basin during the period
1890-1952 was 51.54 inches. Precipitation during 1952, 1953, and 1954 amounted
to 44.06, 46.84 and 47.02 inches, respectively. 1 TENNESSEE VALLEY AUTHORITY,
TECHNICAL MONOGRAPH No. 55, pp. 2-6 (1954); TENNESSEE VALLEY AUTHORITY,
MONTHLY REPORTS ON PRECIPITATION IN TENNESSEE RIVER BASIN for the years
1953 and 1954.
2. ByJsT H a BENEFICIAL USE OF WATER IN SOUTH CAROLINA (1952).
3. South Carolina Acts and Joint Resolutions 1953, No. 377, p. 627.
4. Journal of the Senate of the State of South Carolina, January 29, 1954,
pp. 3-49.
5. SOUTH CAROLINA WATER POLICY COMMIrTEE, OPEN LETTER "To ALL
SOUTH CAROLINIANS INTERESTED IN THE DEVELOPMENT OF A NEW WATER POLicY,"
November 30, 1954; The Charlotte Observer, January 5, 1954.
797









798 TENNESSEE LAW REVIEW [Vol. 23

source to the extent they were not alr1j IN _4 t I F1 .
i90would create a board of water commissioners with power
to control development and allotment of such waters "according to the
principles of beneficial use and priority of appropriation" and to promulgate
regulations having the force and effect of rlaw. "-i" ...hf u~rot
except "customary use ... for domestic purposes"' would be cut off except
to the extent they were actUally being exercised, or construction f acilities
for their exercise was actually in progrs on th j t f the i's enactment.
ii tle isnuretpersons-deslrig to make use or increase their use of- water,
includingriparian annonnpanaran own ae wo e to apy
for an ota
missioners.7 Applications would be numbered and given priority of filing
by LTB1rd in accordance with the date and time of their receipt.8 They
would be approved, in terms permitting withdrawal of definite quantities of
water at definite times and places, if the board found the proposed use to
be reasonable and beneficial and not in conflict with the public interest,
vested rights, or valid prior appropriations. "Where future appropriations
of water for different purposes" conflicted, they would "take precedence in
the following order, ngmy: domftig munii al, irrition. a
reetnal and water power uses."9 Orders f the boar of water com-
missioners would be appealable to the courts. The board, in addition to its
other duties, would be directed to make an inventory of both surface water
and ground after resources of the state and to. report ifiind gs and recom-
mendations concern t to the General Assembly as soon as


6. The bill defines domestic use as meaning "the use of water for household
purposes, the watering of farm livestock, poultry, and domestic animals, and the
irrigation of home gardens and lawns."
7. The bill does not make clear how nonriparian owners would obtain rights
across intervening riparian lands necessary to the installation and operation of pipes
or other water using facilities. Presumably, some form of condemnation procedure
would have to be established.
8. While the bill does not provide expressly that applications should be accorded
priority according to date of receipt, this is an accepted feature of prior appropriation
systems generally and seems dearly implied. See note 138 infra.
9. Apparently this provision refers only to the order of precedence to be
observed by the board of water commissioners in passing upon competing applications
for use of water. See Journal of the Senate of the State of South Carolina, January 29,
1954, p. 33. The question arises whether, once all the waters of a particular stream
were appropriated for low-ranking uses, one desiring such waters for a higher ranking
use could obtain them. Condemnation or some other form of proceeding involving
payment of compensation presumably would be necessary. Cf. Loup River Public
Power Dist. v. North Loup River Public Power & Irr. Dist., 142 Neb. 141, 5 N.W. 2d
240 (1942). While this article was being prepared, a number of suggestions were
being advanced in South Carolina for modification of the schedule of priorities
provided for under the bill. One of these would establish the order of precedence
as "domestic, municipal, irrigation, agricultural and other purposes," with priority
of appropriations among "other purposes" to be determined by the board of water
commissioners in each case. See SOUTH CAROLINA WATER POLICY COMMITTEE, OPEN
LETTER "TO ALL SOUTH CAROLNIANS INTERESTED IN THE DEVELOPMENT OF A NEW
WATER POLICY," November 30, 1954.


L, __ --- A









1955) NEW WATER RIGHTS LAWS 799

A pattern of events similar to that which resulted in introduction of
the foregoing legislative proposals in South Carolina is in progress, though
not yet as far advanced, in the Tennessee Valley states. Unofficially con-
stituted committees in and V ni a.plus the lattes Advisory
ative n t all o w h Mr. C. Eth nited States
Soil Conservation Service r as a incpa consultant have issued
reports very samnuar m
sB tor e serva in 1952.10
hnse l"W0U t ,t-Ugther wit-ih ILettkuy and lTennessee, nave enacted
legislation providing for studies by officially constituted committees and
di*tinr that thy nort their recommendations in 1955 (Virginia) or 1956
(Kentuky, Mississipi and Tenesse)." In Mrth aliin a committee
degnated by ithe Governor withoutRrior legislation has recommended
enactment o a water riots l w similar to that proposed in South Ca-
a a bill to this effect and another less fariosal, applicable
only under emergency conditions, were before the North Carolina legislature
as this article went to press.18 In Geori a study has hPPni inritalken by
a number of interested groups on an unofficial basis.14 L nation viding
for an official study of water resources in Alabama is expected to beitro-
cea wh ha State glature enes em session in May of
this year." Another study on a r rgeo piil basis apparently is
soont initiated by the Council of State Governments.x1
In all of the states specifically mentioned above, the growing problem
10. MISSISSIPPI INTER-ORGANIZATIONAL COMMITTEE ON WATER RESOURCES,
THE BENEFICIAL USE OF WATER IN MISSISSIPPI (1953); WATER RESOURCES IN
VIRGINIA; REPORT OF VIRINIA ADVISORY LEGISLATIVE COUNCIL TO GOVERNOR AND
GENERAL ASSEMBLY OF VIRGINIA (1953).
11. Kentucky Acts, 1954, Ch. 247; Mississippi Gen. Acts, H.R. 7, advance,
1954; Tennessee Public Acts, 1955, H.B. 149; Va. Gen. Assembly H.J.R. 91, 1954
Sess., March 13, 1954.
12. NORTH CAROLINA INSTITUTE OF GOVERNMENT, LEGISLATIVE SERVICE
BULL. No. 6, February 19, 1955.
13. North Carolina S. Bs. 153 and 186, 1955 Sess.
14. Atlanta-Journal, January 14, 1955.
15. Decatur Daily, November 24, 1954.
16. At its December 1954 meeting, the General Assembly of the States adopted
the following resolution:
The various problems relating to the use and conservation of water
resources and rights thereto need review and possibly revision in the light of
increasing demands upon water resources. The Twelfth General Assembly of
the States requests that the Council of State Governments and its Drafting
Committee of State Officials consider recommendations, including model-
legislation, as to the improvement of state water law. This consideration shall
include, among other things, appraisal of the merits and applicability of the
various legal doctrines relating to water rights and the possible evolution
of new legal principles in this field and development of legislation fostering
watershed organization for management purposes.
A continuing survey of the water laws and roble of both the eastern and
nates 3 eenl al tulgure. t es
conaucae By mr. Wes A. nuli anX ose relating to eastern laws by Mr.
Harold H. Ellis.


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TENNESSEE LAW REVIEW


involved in supplemental irrigation has furnished the primary impetus for
Sstdy and proposed legal changes. The reason though not fully spelled out
in the various committee reports so far published, seems apparent. Irriation
i h o m iveuse; it has been estimated that about two-ti o
the w c.pseju or ,-p iser-
riparian owners who use water for tionuroses find themselves,
if located on small streams with limited amounts of water, involved in con-
flicts with other riparan owners. including other irrigatorisN.wal .
owners may tu access to _surfcg fttate -4arr -puqipetoe rJga tion an
impos~ibility.
The needs of municipal and industrial wter users are also increasing.18
But municipal in
arter it has been e waterivert
tfaU 5icia and industrial purpose is ultimately retured. Acordin ,
use of water by municiales and industries less ely (apartfrom
uton em to re t m concts oer more consuptve water
use. M ities if unble to obtain there water requirements by other
eas, can awt to the power of eminent domain; and industries
in a position to p h nan ds at e ocatio
virtue o status as riparian owners
flowing through or along the borders of their properties. e primary need
a I and is thus rao a C tsn

HI argument for legislation such as that n South
Carolina rests on the proposition at the istin s m of law is iaduat
17. See study prepared for The President's Materials Policy Commission and
included in its report, sounRC Foa FREEDoM Vol. 5, p. 85 (1952) (the Paley
Commission report). Water evaporated or transpired is of course largely returned in
the form of rnfall, but the place of return may be many miles away, in a different
watershed or different section of the country, or even over the ocean.
18. The study referred to in note 17 states that, since 1900 the total withdrawal
of water in the United States has doubled on the average of about every 25 years
and suggests "that the constantly rising standard of living and the increasing per
capital consumption of raw materials may require that the Nation's water supply be
doubled again from 1950 to 1975." The study forecasts the following increases in
water needs between 1950 and 1975: from 17 to 25 billions of gallons per day for
domestic use; from 80 to 215 bgd for industrial use; and from 88 to 110 bgd for
irrigation. In explaining the relatively large expected increase in industrial use, the
report notes that technical advances add greatly to both the quantity and quality of
industrial water requirements. It notes, for example, that manufacture of synthetics
requires much larger quantities of water than manufacture of cotton or wool; that
synthetic rubber products require water not needed in production of natural rubber;
and that increased quantities of water are similarly required for other new products
and processes. Rasovaos woa FaaREED, op. cit. supra note 17, at 85, 93-94.
19. RnEOURaES FOR FREEDno, op. cit. supra note 17, at 85.
20. See infra pp. 15-17. A recent survey idicated little concern on the part of
industry concerning its ability to obtain access to necessary future water supplies in
the eastern section of the country. See Bello, How Are We Fixed for Water? 49
ForTUNE 120 (March 1954). The same article argues strongly for according industrial
use of water a higher priority than it now enjoys m the West
21. Their remedies in this connection under existing law are illustrated by cases
cited in notes 60 and 64 infra.


(Vol. 23







NEW WATER RIGHTS LAWS


to resolve such water conflicts and problems on a bas conformin with
e and the highest beneficial use of the water resource. Un
law, it is pont outwater notactuy beg ut to use by riparian pro-
pnietors may be unusable by anyone, since nonparan owners g
obtain access to it only as trespassers and an actual g to t only pre
scnption.-ven riparan owners, being entitled to a reasonable use of
water rather than any adenie qUangty, may possess a right too uncertain
to justify sizableine investment aid of a consumptive use such a-igaon.
Under the proposed ripFrlpropHati'n s't on the other hand, owners
of nonn!panan land would be placed on an equal footing i riparian pro-

Ri arian and nonnpanan d ave Rm-jA j
as well as over otner competitors except domestic users
fipalitiesnthe a ent l water not a bm usTor
beneficial puriposesmi-enthe nation was p asse pWy wld i
preference, moreover, without bein forced to comnn
for oss of or miurv to nr.ntlv unused but r tivvw al -


could take under con.. o
usershaving prior claims to water under conditions of less than nor
supply, an, accordingly, the extent the risk involved in nyiven '-


it i ed, the water p now arising in this area
iffer only in adnotinki successful sIvea 'he
western states through adoption of the prior appropriation stem, an e
states of the Sout stve only to follow their example.
e argument i appealing an in some respects eraivee Water
unquestionably is an mvuable resource and any legal system which prevents
its beneficial use or which encourages its waste should be replaced or
modified; means must be found to permit use bnonri owners of at
least such amounts o water asare surplus to the needs of riparans, an
to encourage locally desMrale mves nt i wa r ml uu y h.
One may agree enthusiastically to all of these ropositions, however,
and still entertain doubts whether theresent system does
important adyanta Wl as well son of a
sem of prior appropriation Eke at n-

require en agfomic and h o c terms-than


22. See infra pp. 18-19.
23. See infra p. 11.
24. B nr ti n c al nut-m ,,,.
Ulbricht v. Eaula after Co., 86 a. 6 So. 7 burtonn v.
Hobbs, 121 Ga. 749, 49 S.E. 779 (1905); Robertson v. Arnol, 182 Ga. 664, 186
S.E. 806 (1936); Smith v. Town of Morganton, 187 N.C. 801, 123 S.E. 88 (1924);
Gordonsville v. inn, 129 Va. 542, 106 S.E. 508 (1921).


7


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i .ypi -~yy L


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1955)


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802 TENNESSEE LAW REVIEW [Vol. 23

has so far been provided ;.2 and whether those needs, when fully defined,
may not be better met by one of several pssie alternatve solu
thus far given any extensive consideration in this area,tanbyaopron
of legislation such as that proposed n Mouth iaron-m Inh8_0ectve
adanta and disadantaes of the riarian and riDr-OK aavstemis
and some of the possible alternative solutions to the area's water- ro
lemsare consi erel aar section of this article.2 It seems appropriate
to note here, however, a number see ies Jith certain aump.r
tions underlying the a r,-
winch are partly responsible for the reservations expressed above.
um I--That the "problem of providing adequate supplies of
water an an for all needs [in Mississippi and, presumably, other south-
eastern states] presents the same general type of situation that has occurred
throughout the western 17 states in one form or another. The only -al
difference is one of deree."7
s f if wide enough. are like to prve st as basic
as deren m kind. Average earlrainfall in the southeastern statesis
in the neighborhood A :i es; that in many wte
Ine"ii52leaestaeup mental irrigation offer aj mAs f mcTra-
in agricultural yields and can expeed to mre ut
economics of such irri toni retWioW dffe
petng uses fRia capit, aidthe extent ofthe demands t is
makeosfi-iBieaimern water supplies, are stiN largely unlnhow q-U'etitfie'"
infi-e tion "alone make possib le noit oriy aghie
very life of the people m this vast semiarid region."80 Both the amount of
water available in the humid East and theof s usevar tly
frnomi sTR 5auonm the West; to one es te9 ent oT a
waters m ie western statessor and onlv_ percent for
mndus w ..... ..8 tof toa1 .. .
25. The an nint fnneerflnnin hich virl all nilthnriti-n" n ir-QC nmoblrnm
nadeuacy of present t formation. The 1950 Report
of The resident's Water Kesources rollcy jmmission, AWATRPtICY FOR THE
AMERICAN PEOPLE, states that "Our basic information as to past and present water
uses and as to future requirement tIaequate" (Vol. 1, p. 120). It then
quotes from a statement prepared for the Com(mis T use by the U. S. Geological
Survey to the effect that "we must admit that we do not even know how much
[water] we use, to say nothing of how much we have that can be used" (Ibid).
26. See infra pp. 35-41.
27. MISSISSIPPI INTER-ORGANIZATIONAL COMMITTEE ON WATER RESOURCES,
\/THE BENEFICIAL USE OF WATER IN MISSISSIPPI 49 (1953).
28. 23 Encyclopedia Americana 189-193 (1952 ed.).
29. "Although more water is likely to be used in the East for supplemental
irrigation, the over-all requirements likely will be small. However, in some local hreas
requirements for irrigation possibly may cause shortages." RESOURCES FOR FREEDOM,
op. cit. supra note 17, at 89. Cf. Critchlow, Irrigation Water Rights in the Humid
Areas, 78 PROCEEDINGS AMERICAN SOCIETY OF CIVIL ENGINEERS (1952).
30. A WATER POLICY FOR THE AMERICAN PEOPLE, op. cit. supra note 25, at
152.


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1955] NEW WATER RIGHTS LAWS 803

ovr ne tfr ;gg 1 st1 T. seems prima facie open to question whether
ws tailored to one pattern of ;ersup n usecan be ed fit
another so widely UimeCrM1
Assumption 'Tfat laws based on prior appropriation have proidv jA
a soluts ff'. West's water problems, and that such laws have therefore
quaifi or tr plantation estward without momfication.
n fact, the Wess current water problems are enormous, and while there
is no suggestion thatthe basis of its water rights laws is likely to be changed,
there seems to be a growing body of indigenous opion that they may be in
need of substantial revision. In 1953, for example, a meeting of the Commit-
tee on the Economics of Water Resources Development of the Western Agri-
cultural Economics Research Council, made up of representatives from the
agricultural experiment stations of eleven western states and Hawaii and the
Bureau of Agricultural Economics, U. S. Department of Agriculture,
produced technical papers containing such statements as the following:
The a ro riation tem of water rights has brought with it...
a element o i me use o1 wasucz. Tuat IS.-- 10l HVIUM fM
( arrgn ke n ins) mav t oo pre e rean es.

a .. serious lo wise water development that wlhave
St6 be elpt with in the near future is the fiA1 ,f tfat- watPr w..,
IIndividual rights to water need to be recognize as propery,_but
hs acquired decades ago should not serve as an estoppel to pr
/ JLa-, / wJ tfLum ,;-T, t proLvide a wiser use of water nmu.frr. rth stand-
jomto me overal.puublic m Mt. The-states wIl have tO revise
their water codes to estaplhPal & i/eentLframework of preferences.
nlies sme adjustments are worked out in western water law,
the-wsaL,..; La3 n 17

A study included in the 1952 report of The President's Materials Policy
Commission (more generally known as the Paley Commission) sets forth
similar conclusions in even stronger terms. Thestudy notes that manufactur-
ing produces many more times the dollar value of products per lon of
water used than irrigation.4 It then goes on to state:
31. Hamman, Water Policy and Western Industrial Development, PROcEEDINGS
COMMITTEE ON ECONOMICS OF WATER RESOURCES DEVELOPMENT OF THE WESTERN
AGRICULTURAL ECONOMICS RESEARCH COUNCIL 77 (1953). For another and generally
similar estimate see Bello, op. cit. supra note 20, at 121.
32. HuffmnA Fra,-ar"..r. fkd w r. prif;; Plrev. PROr EEDINgS OF COM-
MITTEE ON ECONOMIC U WATER RESOURCES DEVELOPMENT OP WESTERN AGRI-
CULTURAL ECONOMICS RESEARCH COUNCIL 71 (1953).
13 ECslhert PlKicaljspcqsS o. Future Water Resources Development in he
West, PROCEEDINGS OF COMMITTEE ON O'rCOMICS OF 'WATR SOURCES EVEL-
OPMENT OF WESTERN AGRICULTURAL ECONOMICS RESEARCH COUNCIL 89-90 (1953).
34. "*eave to avi une o mter
In 1947, aboutof c
at about l..4biion dollars, of whichover percent was -own in
USwas a
were used nationally m 1i4/ m producing goo navg a va ae fa


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i ,n. .







TENNESSEE LAW REVIEW


Except for the Pacific Northwest, most of the economicaly available
S te tatess ocateorirrigation and is not now
o"jJan "S=S ind p=PXtief.... The West has gotten onl a smal
percentage of existing indutri e a may t an en smWrp /
portion uture expansion unless large quantities of cheap water I
-or Manat rOer industrial
There is probably only one method y Wichtm-
plished-curtailing a part of existing irrigation or plans for new /
irrigation when industrial needs develop.... the West must soon
decide whether its future must be sacrificed by its antiqatei pi-
6ritses system in water ise. "Io a
-'I ,h-.n -hjet wnn-' under-industrializaiona and.below average


/per capital levels of income have long been reconzed as connect parts
of a fundamental economic problem, such expressions thd


appear to constitute i n
both rpannripan nr nnrTarjan g rrio-thk r npn man=MM
users to I -
tion 3-That the waterigts aws 1o e various western states
are similar, both to each other and to the legal code proposed
for South Carolina, and that the Southeast must choose between such a code
and the riparian law as it now stands.
In fact. the water rights laws of the western states arv widely; the
aSouth oa hs. v Ort
ap~propriation y tem than thtolwd or. m .aS~&


Sand number of possibilities other k thej existing riparian law
or the South Carolia prpear derv of study.
optimum use of water resources will result from

- state. esasch
'"t'i n fact, there are good reasons for believing that particular streams
and pa .. .... one pur e, o-- F
pa ts of streams tor dMterent p ses. Nortm arona n specay
pted this point of view in its portion control statute, which authorizes
the State Stream Sanitation Committee to caSSuy SUr s a cor-ing to tne
ht ss to wch t eyF can sbe utfor g water quaM
standards Ther;, 2xi reason to believe, particja~ly6ie
tre of 74.4 bl- las B b al E- 11.. f j
sameaount of water athe conumptive u
wter b iirradon was a or 10 gf as toM asm atulasf.r BtIR- I
35. Id. at 86,' 0, .
36. See infra pp. 29-31.
37. STAT. 143-215-- iaWL See STATE STREBA SANITATION
COMM=rIT uL Lt. STANDARDS AND THE RULES AND
RGUoLATIONs RELATING TO CLASSIrYING AND AsIoNINo WATER QUALITY STANDARDS
TO TMEB WATERn OF NORTH CAROLINA, November 19, 1953.


V


(Vol. 23


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I\~I~JY









NEW WATER RIGHTS LAWS


West's experience, that the best use to which a stream can be ut is subject
to chage, and that acquisition of unconditional rights to use specified
q nties of water for one purpose may make difficult shiftsto oter uses
which come to be regarded as more desirable from the public standpoint.

concurrent estruti thut nmrinejion of rnnrin rishta not actally
bein used when the new system isous robems eiter
of constitutionality or equity.
Prior appropriation w
largely unsettled and when the principle f first-come, first-served was a
rIM relatively easy of application, whether to mining caimu,
nomesteads, or water. UbviOIsiou.sl .- Ii, .,,,iint hii 61PlT",
edctine to a og settled area where water rights have already attached
under a different system of law. The constitutional problem is outlined
later;88 it is sufficient for present purposes to note that a possible consti-
tutional difficulty does exist. But the problem is not only one of consti-
tutionality but of basic equity. As already notd, ri aan.s

rinanan lauds an e emnt nf v^ Ih i thev wnon1t nt thram nr.
What i proposed is to destroy the investment of riparian owners represented
b such values, larl in order to anor security o investment for non-
riparian as well as riparian irrniators.' If public policy indeed, requires
destruction of presently unused ri rights, the question remains whether
such destructzonsouldlsuming it a plh -
penation, or it ugt to be accompanie by acceptance o t
principlesef forth by the United States Supreme Court in a s-mewhat anal-
ogous situation:
No reason appears why those who get the waters should be spared
from making whole those from whom they are taken. Public in-
terest requires appropriation; it does not require eropriation."
We do not suggest that the above caveats concerning Te prior appro-
priation argument, taken singly or together, are at all conclusive. Adoption
of legislation such as that proposed in South Carolina may prove, after full
38. See infra pp. 32-35.
39. See note 24 supra.
40. The problem'-niustrated by the not uncommon situation in which an
industry has purchased riparian land with the intention of later erecting a plant, or
on which it has already erected a plant which it intends later to expand. If the
industry's riparian rights not presently in actual use are destroyed, its contemplated
future plant construction or expansion will depend on its obtaining an appropriative
right; and this, in turn will depend on whether surplus water is available after the
claims of irrigators and other users entitled to prior consideration have been satisfied.
The problem is not limited, however, to possible conflicts between industries and
irrigators. For example, a riparian owner of agricultural land who intends to irrigate
it at some future date may find that no water is available for that purpose because
his unused riparian rights have ceased to exist and nonriparian irrigators have
obtained senior appropriative rights to the water in the stream.
41. United States v. Gerlach Live Stock Co., 339 U.S. 725, at 752-53 (1950).


1955)








TENNESSEE LAW REVIEW


consideration, to be the best available answer to the water problems of the
southeastern states. The purpose of this article is not to draw conclusions,
but to outline the probem, te araan or a rotation systems,
/ van e and d vntagesof each and some alternatives seem
worth cm duration. In our view, te most imporanT n ent nec y
to preparation of a desirable final legislative product is still largely lacking.
Before satisfactory legislation can be drafted, much more data concerning
wat, probable tiur needs and the relative economic values of
c uses tan is so ta ld by economic ts
agrono miusBsengineers i ff rtyi irn ,ogists .
II. THE EXISTING LAW IN THE TENNESSEE VALLEY STATES
Waters may be divided, for purposes of considering private rights and
obligations with respect to their use,42 into four broad categories: (1) sur-
face waters in well-defined streams; (2) surface waters which spread in a
diffused state after falling as rain or snow or rising from springs; (3) under-
ground waters in well-defined streams; and (4) underground percolating
waters.
(1) Surface Waters in Well-Defined Streams
The doctrine of riparian rights in surface streams is said to have
originated in the French civil law, to have been introduced into American
jurisprudence by Story and Kent, and thereafter to have been adopted in
reliance on decisions by these American jurists as part of the common law
of England.43 In any event, the doctrine is now an established common law
/ concept and prevails, with variations such as might be expected, throughout
the eastern United States.44

42. No attempt is made in this article to deal with the effect on private rights
and obligations of such factors as the navigability or interstate character of particular
waters which may be involved, or the extent to which, or manner in which the Federal
Government may have asserted jurisdiction over them.
Navigable waters are of course subject to a paramount public easement for navi-
gation and other purposes, and title to all or part of the beds of navigable streams,
depending on state law, may be in the state; but the principles governing private
rights and obligations of riparian owners, inter sese, are generally similar, in the case
of navigable as well as non-navigable streams. 56 Au. JuR., Waters, 212, 274
(1947); I FARNHAM, WATERS AND WATER RIGHTS, 29, 64b (1904).
Interstate waters may present conflicts between states as to their use, in which
event the principle of equitable apportionment is followed. See, e.g., Connecticut v.
Massachusetts, 282 U.S. 660 (1931); New Jersey v. New York, 283 U.S. 336 (1931).
As respects the extent of Federal jurisdiction and powers, see THE REPORT OF THE
PRESIDENT'S WATER RESOURCES POLICY COMMISSION, WATER RESOURCES LAW
Vol. 3, pp. 1-58 (1950).
Another matter not discussed herein involves distinctions between private rights
in lakes and other standing waters as distinguished from those in flowing streams.
Subject to special rules relating to ownership of the beds of the former, the rights and
obligations of riparian owners in the two types of waters appear to be substantially
similar. 56 Am. JuR., Waters, 51, 58, 61 (1947).
43. Wiel, Waters: American Law and French Authority, 33 HARv. L. Rav. 133,
133-148 (1919).
44. 56 Am. JUR., Waters, 284 (1947).






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[Vol. 23








1955] NEW WATER RIGHTS LAWS 807

In its original form, the riparian tr, ..e ,.-.r iph.in
the right of all owners of land bordered or crossed b a stream to have its
wai flow to them inter normal course undim quantity or_.
q ity. As needs for water and means of effectively utilizing it increased,
emphasis ie to i each ripaan owner to mae reason e use
of the water e rst uses e-
ognized were for domestic and household purposes and the watering of farm
animals-so-called "natue l uses. Later, recognition was accorded "arti-
ficial" uses for agricultural, manufacturer an similar Th
disVMCMMn betWieenVn5tFal and artificial uses wasaxc rMp any-ievlp-
ment of a rule distinathenhi exrertwcpse ,hfri e; under this rule,aM-i-
owner may use sufficient water to satisfy s natural w
of the effect on other owners, whereas for atifiil lfp g he may ake
onv a asonable use, tak"n t o consderation the equal rights of other
riparian o ers, of water which is surplus to the natural wants of all_ of
them.4 The mo re rce end-has benAo b hg isinction teen


hat riparian owners have common trn tte stream an
ta n ma use of it as ieasonabe under e circum-
stances.F
45. What constitutes riparian land has received little consideration in the
Tennessee Valley states. In jurisdictions where the issue has been litigated, it has
usually been held that' (a) a tract of land is not riparian unless some portion of it
is in actual contact with the stream; (b) land entitled to riparian rights does not
extend beyond the watershed of a stream, even though it may be a part of a tract
which does abut on the stream; (c) riparian rights do not attach to subsequent
additions to the original tract; and (d) if the owner of riparian land conveys a part
of the tract not contiguous to the stream, the riparian rights appurtenant to the part
conveyed are cut off unless the conveyance declares to the contrary, and such rights
cannot be revived even if the two tracts later come again under common ownership.
56 AM. JUR., Waters, 277-278 (1947); 2 FARNHAM, WATERS AND WATER RIGHTS,
463, 463a (1904).
The view that riparian rights do not attach to subsequent additions has been
rejected in Oregon. Jones v. Conn, 39 Ore. 30, 64 Pac. 855 (1901), rehearing denied,
65 Pac. 1068 (1901). This view is also criticized in WIEL, WATER RIGHTS, 771
(1911). The Restatement of Torts rejects even the watershed limitation. 4 RESTATE-
MENT, TORTS 843, comment c (1939). And see, in this connection, Jones v. Conn,
supra; and cf. Fackler v. Cincinnati N. O. & T. P. Co., 229 Ky. 339, 17 S.W. 2d 194
(1929); Harris v. Norfolk & W. Ry., 153 N.C. 542, 69 S.E. 623 (1910) (holding use
of water by railroads to supply their steam locomotives to be a reasonable exercise of
riparian rights; possibility that water would be carried outside watershed not
discussed).
In Gordonsville v. Zinn, 129 Vp p, p r ( ) E,
the "watershed on but y on the
au a tract o riparian land. "
46.. 2 FARNHAM, of. ect. supra nte 45, 464 (1904); 4 RESTATEMENT, TORTS,
Ch. 41, topic 3, pp. 341-342 (1939).
47. 2 FARNHAM, op. cit. supra note 45, 466-4671 4 RESTATEMENT, TORTS,
Ch. 41, topic 3, pp. 342-346 (1939).
48. See notes 49-53 infra.






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TENNESSEE LAW REVIEW


Variations in the riparian rihtd n alied in differentsta
related ass
to
W nnessee, NoroLUA
and r appear to have gone urest 1m unciLa oS
c notn decision states
the rule to be
S. tht-a riparian owner has an equal right to have the stream
flowL through his an i chnelw oth jgi.
tion or qual1caon, however, -ft ch proprietor is entitle
the reasonable use of the water or domresc agrcutura or

In DrPower & Light Co., the North Caro Supreme
Court, after criticizing decisions placing emph ison he right to natural
flow, stated that the right of each individual riparian owner to make reas-
onable use of water
S. for manufacturing purposes as well as for domestic and agri-
culim purposes ... "a..rnnl it
must be enjoyed with reference to the similar rights of other riparian
owners.... What constitutes a ireasnabl -use is a question of act
having regard to te suoject-matter and the use; the occasion and
...ang i apetelnt ano necessity; oWean
Sad size of the stream;the kind of business to wcn it is
subservient; the importance and necessity of the use claimed by
one party and the extent of the injury caused by it to the other.50
The Supreme Court of Alabama has on several occasions quoted with ap-
proval the statement of Chief Justice Shaw in the Massachusetts case of
Cary v. Daniels, 49 Mass. 477 (1844), that:
"Each proprietor is entitled to such use of the stream, so far as it is
reasonable, conformable to the usages and wants of the community,
and having regard to the progress of improvement in hydraulic
works, and not inconsistent with a like reasonable j jther
proprieto rfan lifeai 6aliove and below."51
Geostreams which
the Georia courts have held to be merely elaJgtgry o e
and wch rete to permit reasonable use by Zllriparian
rs "for domestic or b se
Of remaining Tennessee Valley states, the )iginia Supreme Court
of Appeals has used and quoted approvingly language sting the reasonable

49. American Association, Inc. v. Eastern Kentucky Land Co., 2 Tenn. Ch.
App. 132, 173 (1901), affrmed by Tennessee Supreme Court without modification.
50. 212 N.C. 814 820 195 S.E. 43, 46-47 (1938).
51. Ulbricht v. Eufaula Water Co., 86 Ala. 587, 591, 6 So. 78, 79 (1889);
Tennessee Coal, Iron & R. R. v. Hamilton, 100 Ala. 252, 258, 14 So. 167, 169 (1893);
Elmore v. Ingalls, 245 Ala. 481, 482 17 So. 2d 674, 675 (1944).
52. GA. CODE 105-1407 (1933).
53. White v. East Lake Land Co., 96 Ga. 415, 416, 23 S.E. 393, 394 (1895).


1 ~r ~L ~L-r dr _


[Vol. 23








1955] NEW WATER RIGHTS LAWS 809

use test in more circumscribed terms, though in a case where the actual result
is in accord with the great weight of authority;"4 Kentucky still adheres to
the natural flow rule which it interprets as permitting artificial or extra-
ogyam g rthLf do not materially and injuriously affect otherri
wners55and in Mississippi there is a paucit o auonty except for e
cfWliich seem to recognize the reasonable use principle to an undefined
extent.56
OLtkectual water rights controversies which have arisen in the area,
a substantial nuibrter have involved, notdefendant's right tou water, but
the extent to which liability attaches Wten exercise of he right results in
physical invaso property. Suchas c hers,
tose im which construction o asor other obstructions results in flooding
upper land by backwater, where iabltyi generally imposed except for
injuries caused solely by floods which are so great s oun foreseeable
and to constitute acts of God;57 those in which construction or operation
54. Purcellville v. Potts, 179 Va. 514, 19 S.E. 2d 700 (1942), holding that a
municipality owning riparian land has no right to divert water from the stream to
provide a public water supply.
55. nderson v. Cincinnati Southern Ry., 9 Ky. L. 275, 5 S.W. 49 (1887);
Fackler v. Cincinnati N. O. & T. P. Co., 229 Ky. 339, 17 S.W. 2d 194 (1929);
Louiville v. Tway, 297 Ky. 565, 180 S.W. 2d 278 (1944). In the Tway case, the
court stated that it saw little distinction between the "natural flow" theory as
interpreted in the Kentucky decisions and the "reasonable use" theory.
56. Mississippi Mills Co. v. Smith, 69 Miss. 299, 307, 11 So. 26, 28 (1892);
American Sand & Gravel Co. v. Rushing, 183 Miss. 496, 503, 184 So. 60, 62 (1938) ;
Southland Co. v. Aaron, 72 So. 2d 161, 165 (Miss. 1954). But see (stating the
natural flow rule): Mississippi Central R. R. v. Mason, 51 Miss. 234, 247-248
(1875); Liles v. Cawthorn, 78 Miss. 559, 29 So. 834 (1901).
57. The following cases involve flooding by dams: McCary v.,McLendon, 195
Ala. 497, 70 So. 715 (1915); Gulf Starfe 3Se.1v. Law, 224 Ala. 667, 141 So.
641 (1932); Goodyear Tire & Rubber Co. v. Gadsden Sand & Gravel Co., 248 Ala.
273, 27 So. 2d 578 (1946); Ellington v. Bennett, 59 Ga. 286 (1877); Kentucky
Electric Development Co's. Receiver v. Wells, 256 Ky. 203, 75 S.W. 2d 1088 (1934);
Chaffin v. Fries Mfg. & Power Co., 135 N.C. 95, 47 S.E. 226 (1904); Teseneer v.
Henrietta Mills Co., 209 N.C. 615, 184 S.E. 535 (1936); Webster v. Fleming, 21
Tenn. 518 (1841); Hurley v. American Enka Corp., 93 F. Supp. 98 (E.D. Tenn.,
1950); Portsmouth v. Weiss, 145 Va. 94, 133 S.E. 781 (1926). In two North
Carolina cases, liability or non-liability for impairment of upper riparian owners'
drainage was predicated upon the doctrine of riparian rights: Sink v. Lexington, 214
N.C. 548, 200 S.E. 4 (1938) (reversing involuntary nonsuit); Forest City Cotton Co.
v. Mills, 218 N.C. 294, 10 S.E. 2d 806 (1940), rehearing, 219 N.C. 279, 13 S.E. 2d
557 (1941) (affirming jury verdict for defendant, on rehearing, by divided court).
The following cases involve oodin caused by other obstructions, such as
inadequate railroad culverts: Lindey v. Southern y, a. a 3 So. 139
(1907); Atlanta & St. A. B. Ry. v. Knight, 211 Ala. 213, 100 So. 233 (1924);
Williams v. Southern Ry., 140 Ga. 713, 79 S.E. 850 (1913); Southern Ry. v. Lester,
33 Ga. App. 136, 125 S.E. 722 (1924); Southern Ry. v. A.M.E. Church's Trustees
of Harrodsburg, 121 S.W. 972 (Ky., 1909); Chesapeake & O. Ry. v. Saulsberry, 262
Ky. 31, 88 S.W. 2d 949 (1935); Mississippi Central R.R. v. Mason, 51 Miss. 234
(1875); Ferris v. Wellborn, 64 Miss. 29, 8 So. 165 (1886); Adams v. Durham &
N. R. R., 110 N.C. 325, 14 S.E. 857 (1892); Fleming v. Wilmington & W. R. R.,
115 N.C. 700, 20 S.E. 714 (1894); Louisville & N. R. R. v. Mossman, 90 Tenn. 157,
16 S.W. 64 (1891); Southern Ry. v. Neal, 146 Va. 229, 135 S.E. 703 (1926);
Southern Ry. v. Jefferson, 185 Va. 384, 38 S.E. 2d 334 (1946).
Special rules have been developed in M.isssppi denying liability for damages
caused by obstruction of "vagrant flood waters." Cubbins v. Mississippi River Comm'n,








TENNESSEE LAW REVIEW


of dams or other obstructions causes flooding of lower riparian lands, where
a similar generalization may perhaps be made, though with somewhat less
assurance;58 ad those in which changes in the stream channel or filling it
with debris resu v w of te lnds of others, where defendant is
g l Another group of cases w hi rs sn imves
1 wrongful acts, such as sodivertin c u f astream-" de-
prive others o vI3ll t flnsw wh"x inijnrtive "- ,therrelief
is always available0 Stil other andv seable grup invol pllu-
ti e e courts in the area have consistently followed a s tictrule of
.iabili J4f-Ahepolutin resultsntmaterial injury, (despite which facf-he

241 U.S. 351 (1916); Covington v. Cassidy Bayou Drainage Dist., 154 Miss. 119,
122 So. 205 (1929), and cases cited therein. For a contrary holding in a state not
faced with similar flood control problems, see Clark v. Patapsco Guano Co., 144 N.C.
64, 56 S.E. 858 (1907).
58. It is clear that no liability attaches where injuries result solely from
unprecedented floods. Alabama Consol. Coal & Iron Co. v. Turner, 145 Ala. 639, 39
So. 603 (1905); Rector v. North Carolina Electrical Power Co., 180 N.C. 622, 105
S.E. 422 (1920); cf. Goble v. Louisville & N.R.R., 187 Ga. 243, 200 S.E. 259 (1938);
Lincoln Coal Co. v. Deaton, 229 Ky. 330, 17 S.W. 2d 249 (1929). And of course
liability is imposed for negligence. Shell v. Town of Evarts, 296 Ky. 602, 178 S.W.
2d 32 (1944); Supervisor and Comm'rs v. Jennings, 181 N.C. 393, 107 S.E. 312
S1921); Koone v. Carolina Mountain Power Corp., 217 N.C. 286, 7 S.E. 2d 565
1940 ; ef. Sloss-Sheffield Steel & Iron Co. v. Wilson, 183 Ala. 411, 62 So. 802
1913).
Where neither negligence nor vis major is present, however, the results are less
predictable. It appears to be most frequently held in such circumstances that the
obstructer of the stream is liable for all direct and proximate injuries to others. Sloss-
Sheffield Steel & Iron Co. v. Webb, 184 Ala. 452, 63 So. 518 (1913) (dam broke
during high water); Lincoln Coal Co. v. Deaton, supra (damage caused by bridge
pilings); Kitchen Lumber Co. v. Tallassee Power Co., 206 N.C. 515, 174 S.E. 427
(1934) (damage caused by floodgate operation during flood time); cf. Winchester
Water Worka Cb. v. Holiday, 241 Ky. 762, 45 S.W. 2d 9 (1931); Ford Lumber &
Mfg. Co. v. Clark, 24 Ky. L. 318, 68 S.W. 443 (1902). But see Bruton v. Carolina
Power & Light Co., 217 N.C. 1, 6 S.E. 2d 822 (1940).
59. E.g., Tennessee Coal, Iron & R. R. v. Franklin, 17 Ala. App. 115, 82 So.
563 1919); Cane Creek Coal Mining Co. v. Braden, 25 Ala. App. 256, 144 So. 143
(1932); Parish v. Parrish, 21 Ga. App. 275, 94 S.E. 315 (1917); Roughton v.
ThWic Kaolin Co. 209 Ga. 577, 74 S.E. 2d 844 (1953); Chesapeake & O. Ry. v.
Weddington, 231 *y. 745, 22 S.W. 2d 131 (1929); Noe v. Bengey, 276 Ky. 807,
125 S.W. 2d 721 (1939); F. A. Bartlett Tree Expert Co. v. Stamper, 306 Ky. 311,
207 S.W. 2d. 752 (1948); Carpenter v. Carolina, C. & O. Ry., 162 N.C. 277, 78 S.E.
158 (1913); Virginia Ry. v. Jeffries' Adm'r., 110 Va. 471, 66 S.E. 731 (1910);
Mullins v. Morgan, 176 Va. 201, 10 S.E. 2d 593 (1940). Some of the above cases
also involved poutive aspects, e.g., the Braden and Roughton cases.
60. raamv. Dahoega Gold Mining Co., 71 Ga. 296 (1833); Goodrich v.
Georgia R. & Banking Co., 115 Ga. 340, 41 S.E. 659 (1902); Oostanaula Mining
Co. v. Miller, 145 Ga. 90, 88 S.E. 562 (1916); McNabb v. Houser, 171 Ga. 744,
156 S.E. 595 (1931); Williamson v. Canal Co., 78 N.C. 156 (1878).
61. Cases illustrative of the rule of strict liability in this area include Tennessee
Coal, Iron & R.R v. Hamilton, 100 Ala. 252 14 So. 167 (1893); Jones v. Tennessee
Coa, Iron & R.R., 202 Ala. 381, 80 So. 463 1918); Elmore v. Ingalls, 245 Ala. 481,
17 So. 2d 674 (1944); Hodges v. Pine Products Co., 135 Ga. 134, 68 S.E. 1107
(1910) Cairo Pickle Co. v. Muggridge, 206 Ga. 80, 55 S.E. 2d 562 (1949); Kraver
v. Smt, 164 Ky. 674, 177 S.W. 286 (1915); Covington v. Faulhaber, 177 Ky. 623,
197 S.W. 1065 (1917), rehearing denied, 178 Ky. 586 199 S.W. 32 (1917); Latonia
Reining Corp. v. Dusing, 246 Ky. 328 55 S.W. 2d 23 (1932); Misssippi Mills Co.
v. Smith, 69 Miss. 299, 11 So. 26 (1892); Masonite Corp. v. Steede, 198 Miss. 530,
21 So. 2d 463, modified, 198 Miss. 530, 23 So. 2d 756 (1945); Southland Co. v.


[Vol. 23




-7
I ~---------------"



1955] NEW WATER RIGHTS LAWS 811

growth of the pollution problem has led to efforts in all Tennessee Valley
states to deal with it by statute)."e
The cases involving questions of competing rights with respect to water
use--other than pollution, which of course is a use from the standpoint of
the polluter, and domestic use, which is mentioned in many cases but has
not been a source of controversy) fall generally into the following categories:
Construction of dams to utilize flow. Construction of dams by riparian
owners for power or other purposes has long been recognized as a proper
use of the stream, provided the dam is of a size commensurate with that of
the stream"s and is so constructed and operated as not to affect unreasonably
the rights of other riparian owners.68 This particular use has always been
subject to statutory regulation, beginning with the early milldam actss6 and

Aaron, 72 So. 2d 161 (Miss. 1954); Cook v. Town of Mebane, 191 N.C. 1, 131
S.E. 407 (1926); Nance v. Merchants' Fertilizer & Phosphate Co., 200 N.C. 702, 158
S.E. 486 1931); Clinard v. Kernersville, 215 N.G. 745 3 S.E. 2d 267 (1939);
H. B. Bow Coal Co. v. Ruffner, 117 Tenn. 180, 100 S.W. 116 (1906); Sumner
v. O'Dell, 12 Tenn. App. 496 (1930), cert. denied; Trevett v. Prison Ass'n, 98 Va.
332, 36 S.E. 373 (1900); Arminius Chemical Co. v. Landrum, 113 Va. 7, 73 S.E. 459
(1912); Panther Coal Co. v. Looney, 185 Va. 758, 40 S.E. 2d 298 (1946).
Carolina goes to the oe f holindepen tr and
severally % lv .Moses v. -own o[ Morganton, .02, 133 S.E. 421 (1926).
One dfn available to the alleged polluter, occasionally asserted with some measure
of success, is lack of causation. Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295
(1934); Masonite Corp. v. Dennis, 175 Miss. 855 168 So. 613 (1936). Another is
the defense of lack of material injury. Parsons v. Tennessee Coal, Iron & R.R., 186
Ala. 84, 64 So. 591 (1914); French v. Chapin-Sacks Mfg. Co., 118 Va. 117, 86 S.E.
842 (1915).
62. ALA. CODE, tit. 22, 1132, 133, 135, 136, 140(1)-140(5) (1940 and Supp.
1953); GA. CoiDE 26-3701 (1933); Ga. L. 1949, No. 34, p. 2129; Kr. Ray. STAT.
3104.400, 220.550-570, 220.580-990, 438.060 (1953); Mass. ConD AnN. 12415,
5929-01 to 5929-17 (1942); N.C. GEN. STAT. $382 (1953), 8244-246 (1952),
1108-120 (1952); 211-215.7 (1952); TENN. CODE 15749.1-749.110, 10876,
10878 (Williams 1934 and Supp. 1952); VA. CODE 335.1-35.2, 10-61 (1950 and
Supp. 1954).
63. For example to obtain a water supply for railroad purposes, Fackler v.
Cincinnati N. O. & T. P. Co., 229 Ky. 339 17 S.W. 2d 194 (1929).
64. Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S.E. 87 (1909); Anderson
v. Cincinnati Southern Ry, 86 Ky. 44, 5 S.W. 49 (1887); Davis v. Harrisonburg,
116 Va. 864, 83 S.E. 401 (1914).
65. North Alabama Coal, Iron & Ry. v. Jones, 156 Ala. 360, 47 So. 144 (1908);
Hendrick v. Cook, 4 Ga. 241 (1848); White v. East Lake Land Co., 96 Ga. 415, 23
S.E. 393 (1895); King v. Board of Council, 128 Ky. 321, 107 S.W. 1189 (1908);
Puh v. Wheeler, 19 N.C. 50 (1836); Williamson v. Canal Co., 78 N.C. 156 (1878);
MLaughlin v. Hope Mills Mg. Co., 103 N.C. 100, 9 S.E. 307 (1889); Dunlap v.
Carolina Power & Light Co., 212 N.C. 814, 195 S.E. 43 (1938); Cox v. Howell,
108 Tenn. 130, 65 S.W. 868 (1901); Miller v. State, 124 Tenn. 293, 137 S.W. 760
(1911); Tallassee Power Co. v. Clark, 77 F. 2d 601 (C.C.A. 6th, 1935); Davis v.
Harrisonburg supra note 64; cf. Liles v. Cawthorn, 78 Miss. 559, 29 So. 834 (1901);
Forest City Cotton Co. v. Mills, 218 N.C. 294, 10 S.E. 2d 806 (1940), rehearing,
219 N.C. 279, 13 S.E. 2d 557 (1941); Mumpower v. Bristol, 90 Va. 151, 17 S.E.
853 (1893).
66. A.A. CODE, tit. 19, 34-55 (1940); GA. CODE 72-205, 72-206 (1933);
KY. Rzv. STAT. 182.170-182.240 (1953); N. C. GEN. STAT. 73-5, 73-28 (1950);
TENN. CODE 3047, 3049, 3052, 3054-3055, 3082-3091 (Williams 1934); VA. CODE
1362-5-62-8, 62-95--62-106 (1950). See Hester v. Broach, 84 N.C. 252 (1881)
and Norfolk & W. Ry. v. Hayden, 121 Va. 118, 93 S.E. 77 (1917) for a review of
early mill acts in North Carolina and Virginia.








TENNESSEE LAW REVIEW


including both state67 and federal68 enactments governing construction of
hydroelectric dams.
Manufacta This use has been recognized in many cases as a
rpergiven rise (excldingpolution cases) to comparatively
few actual controversies,0 prsm al as was suggest earlier, because it is

SExpressions are be found m decisions of the courts of
four stes-Alabama, Kentucky, North &jalina, and Tennessee-
recogn irrigatid ror wateruse.71 The propriety of water use
for irrigation m north Carolina is negatively recognized by a statute for-
bidding use of streams, rivers, creeks or lakes for irrigation purposes "in such
an amount as to substantially reduce the volume of flow thereof" without first
obtaining approval of the Director of the Department of Conservation and
Development.72 The Virginia Supreme Court of Appeals has recognized
the propriety of use for "agricultural" purposes without specifying irrigation
as one of them.78 Mississi i liable has
67. ALA. CODE, tit. 10, 178-188, and tit. 38, 116-118 (1940); GA. CODE
36-801-36-807, 85-1306 (1933); KY. Rav. STAT. 182.010, 416.130 (1953);
Miss. CODE 2777 (1942); N. C. GEN. STAT. 5-10, 134 (1950); TENN. CODE
3167, 3937-3942 (Williams 1934); VA. CODE 68-94 (1950).
68. See 41 STAT. 1077, as amended, 16 U.S.C. 791a, et seq. (1952); 30
STAT. 1151, as amended, 33 U.S.C. 403 (1952); 49 STAT. 1079, 16 U.S.C. 831y-1
(1952).
69. Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. 78 (1889); Tennessee
Coal, Iron & R. R. v. Hamilton, 100 Ala. 252, 14 So. 167 (1893); Alabama Consol.
Coal & Iron Co. v. Turner, 145 Ala. 639, 39 So. 603 (1905); North Alabama Coal,
Iron & Ry. v. Jones, 156 Ala. 360, 47 So. 144 (1908); Elmore v. Ingalls, 245 Ala.
481, 17 So. 2d 674 (1944); Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S.E.
87 (1909); Rome Ry. & Light Co. v. Loeb, 141 Ga. 202, 80 S.E. 785 (1914);
Anderson v. Cincinnati Southern Ry., 86 Ky. 44, 5 S.W. 49 (1887); Fackler v.
Cincinnati N. 0. & T. P. Co., 229 Ky. 339, 17 S.W. 2d 194 (1929); Walton v. Mills,
86 N.C. 281 (1882); Dunlap v. Carolina Power & Light Co., 212 N.C. 814, 195
S.E. 43 (1938); Cox v. Howell, 108 Tenn. 130, 65 S.W. 868 (1901); American
Ass'n, Inc. v. Land Co., 2 Tenn. Ch. App. 132 (1901), affirmed by Tennessee Supreme
Court without modification; Purcellville v. Potts, 179 Va. 514, 19 S.E. 2d 700
(1942); cf. Southland Co. v. Aaron, 72 So. 2d 161 (Miss. 1954).
70. In Rome Ry. & Light Co. v. Loeb, supra note 69, defendant, a municipal
power supplier, used water from plaintiff's mill pond for cooling purposes, thereafter
returning most of the water to the pond. The use was held reasonable and defendant
escaped liability. Three cases bearing a tinge of nostalgia, two of which went in
defendants' favor, involved complaints by lower riparian owners against use of water
by railroads to supply their steam locomotives. Anderson v. Cincinnati Southern Ry.,
supra note 69 (judgment for plaintiff); Fackler v. Cincinnati N. O. & T. P. Co.,
supra note 69; Harris v. Norfolk & W. Ry., 153 N.C. 542, 69 S.E. 623 (1910).
71. Tennessee Coal, Iron & R.R v. Hamilton, 100 Ala. 252, 14 So. 167 (1893);
Alabama Consol. Coal & Iron Co. v. Turner, 145 Ala. 639, 39 So. 603 (1905);
Anderson v. Cincinnati Southern Ry., 86 Ky. 44,-5 S.W. 49 (1887); Louisville v.
Tway, 297 Ky. 565, 180 S.W. 2d 278 (1944); Pugh v. Wheeler, 19 N.C. 50 (1836);
Williamson v. Canal Co., 78 N.C. 156 (1878); Cox v. Howell, 108 Tenn. 130, 65
S.W. 868 (1901). The view has been expressed, in an article discussing the Kentucky
cases, that "the future legal status of irrigation should be encouraging to the farmer
in Kentucky." Evans, Irrigation in Kentucky as Affected by the Law of Riparian
Rights, 40 Ky. L. J. 423, 432 (1952).
72. N.C. GEN. STAT. 113-8.1 (1952).
73. Purcellville v. Potts, 179 Va. 514, 19 S.E. 2d 700 (1942).


[Vol. 23





1

1955] NEW WATER RIGHTS LAWS 813

7 authorizing commissioners of drainage districts to "permit the use of water
/ from the ag ...f ot esowater or streams,
for the puposeof irrigationoaimand In Geooaf as ar ote
the use of water For any raUdiha- .prpse, which presumably would in-
clude irrigation, is proper.
The fact that irrigation may bhe a proper use does not of course, answer
the question of how ..a .e ay be used by a particular riparian owner.
Even in North Carolina, a permit from the Director of Conservation and
Development under the statute noted above presumably would be, at most,
of only evidentirvalue rather than conclusive in the event of legal chal-
lenge by another ripanan owner to withdrawals of water in accordance with
its terms.
Munici alwater suply. Although there is authority,76 including a
Tennessee decision -Tothe contrary, the generally accepted rule is that
ordinary riparian rights do notclude withdrawals of water for municipal
water supply purposes even ought the municpalit is a riparan -In1,3 M *
Th-e two reasons generally given are, first, that the withdrawal of water for
use not merely by a riparian owner and his immediate family or other group
but by a great number of persons is an extraordinary e t properly an
incident of riparian status, and second, tat a large art of the water with-
drawn will inevitably be used on n r~~a Tan
le this the general rule, the cases applying it furnish one of the
best available examples of judicial flebility in the water rights field and
suggest possible means of getg at he problem presented by irrigation.
In the leading Alabama case of Ulbricht v. Eufaula Water Co.,80 ak arian"
owner who wasn't himself making any use of the stream sought to enjoin
withdrawal of water or municipal use which had not been preceded by any
condemnation or other acquisition of his riparian rights. The court held
that an injunction should ijs9Ja hu Obu-ly interm-prohibiting interference
(except, of course, by eminent domain) with thet ightL-oLplaintiff, as a
74. Miss. CODE ANN. 4673.5 (1942).
75. See note 53 supra.
76. See 56 Am. JUR., Waters, 283 (1947); See Note: Waters: Right of
Municipality, as riparian owner, to use of water for public supply, 141 A.L.R.
639-640 (1942).
77. American Ass'n, Inc. v. Land Co., 2 Tenn. Ch. App. 132 (1901), affirmed
by Tennessee Supreme Court without modification.
78. Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. 78 (1889); City of
Elberton v. Hobbs, 121 Ga. 749, 49 S.E. 779 (1905); King v. Board of Council, 128
Ky. 321, 107 S.W. 1189 (1908); Smith v. Morganton, 187 N.C. 801, 123 S.E. 88
(1924); Pernell v. City of Henderson, 220 N.C. 79, 16 S.E. 2d 449 (1941); Purcell-
ville v. Potts, 179 Va. 514, 19 S.E. 2d 700 (1942); see 56 Am. JuR., Waters, 283
(1947); See Note: Waters: Right of municipality, as riparian owner, to use of water
for public supply, 141 A.L.R. 639-640 (1942); cf. Bank of Hopkinsville v. Western
Ky. Asylum for Insane, 108 Ky. 357, 56 S.W. 525 (1900) (water supply for mental
institution).
79. Ulbricht v. Eufaula Water Co., supra note 78; Pernell v. City of Henderson,
supra note 78; Purcellville v. Potts, supra note 78.
80. 86 Ala. 587, 6 So. 78 (1889).


i








TENNESSEE LAW REVIEW


riparian owner, to reasonable use of the stream when he should be spared
actlj t.xercise it Plaintiff's riparian rights, the court said, were property
and as suc entitled to legal protection. "But," it continued, "inasmuch as
he is taking no advantage of his usufructuary rigtbut allows te water
to flow by unutilized, and it appears to be of no special value toi will
not be perminsed to can tor equtaDlemteriTrence min s behalf, further than
to vindate of it by dverse user
time."81 Thus, by applying simple euit principles, theAlabama Supreme
Cou arrived in 18 9 at a result substantially conforming to the general
re adopted, as hereinafter noted, by Caliornia after much travail and
t p I are to
through enactment o a constituionalamendent in MUM2 are to be
fos s reach compare results in this
and related situations through application of the balance of convenience
tests2 or other equitable devices.88
Diversio, onriarian land. The rule is often broadly stated that
diversion o water to nonriparian land for any purpose is not a permnttea


81. Id. at 80.
82. Herr v. Central Kentucky Lunatic Asylum, 110 Ky. 282, 61 S.W. 283
(1901) (mental institution polluted Lream by reducing its flow and dumping sewer-
age; injunction denied); Kentucky Electric Development Co.'s Receiver v. Wells,
256 Ky. 203, 75 S.W. 2d 1088 (1934) (mandatory injunction to remove part of
permanent structure of power dam denied, because of hardship to defendant and the
public disproportionate to injury to plaintiff, an upper riparian owner); Eason v.
Perkis, 17 N.C. 38 (1931) (injunction against erection of milldam denied because
there was nothing "but the interest of a single individual, to weigh against public
utility," p. 41); Wilder v. Strickland, 55 N.C. 387 (1856) (similar to Perkins case);
Tucker & Carter Rope Co. v. Southern Aluminum Co., 165 N.C. 572, 81 S.E. 771
(1914) (injunction sought by small milldam owner against power dam for multi-
million dollar plant, denied; lack of irreparable injury and balance of convenience);
Tennessee Coal, Iron & R. R. v. Paint Rock Flume & T. Co., 128 Tenn. 277, 160 S.W.
522 (1913) (refusing to enjoin defendant's use of a flume over plaintiffs land;
balance of convenience and lack of equities in plaintiffs favor). But cf. Chestatee
Pyrites Co. v. Cavenders Creek Gold Min. Co., 118 Ga. 255, 45 S.E. 267 (1903);
City of Elberton v. Hobbs, 121 Ga. 749, 49 S.E. 779 (1905) (enjoining diversion for
municipal water supply, though plaintiff may not at once be seriously injured (head-
note only)); Robertson v. Arnold, 182 Ga. 664, 186 S.E. 806 (1936) (citing Hobbs
case favorably); Anderson v. Waynesville, 203 N.C. 37, 164 S.E. 583 (1932) (hold-
ing discharge of raw sewerage by municipality to be not "of such an exigent nature"
as to deny relief by abatement when irreparable injury is done). It is not clear
whether the courts of Mississippi accept the balance of convenience doctrine. See
Green v. Lake, 54 Miss. 540 (1877); Moss v. Jourdan, 129 Miss. 598, 92 So. 689
(1922); and compare Reber v. Illinois Cent. R. R., 161 Miss. 885, 138 So. 574
(1932); Williams v. Montgomery, 184 Miss. 547 186 So. 302 (1939); Smith v.
Fairchild, 193 Miss. 536, 10 So. 2d 172 (1942). o a discMn S .f
conni- ndo at, e M Te Balance of Con-
venience Doctrine in the Southeastern States, Aas d u Water
83. 5ostanaula Mining Co. v. Miller, 145 Ga. 90, 88 S.E. 562 (1916) (grant-
ing injunction against substantial diversion unless defendant piped adequate water
to plaintiff, a lower riparian owner, for his cattle); Purcellville v. Potts, 179 Va. 514,
19 S.E. 2d 700 (1942) (postponing injunction against diversion for municipal water
supply, to permit municipality to bring condemnation proceedings).
84. Gordonsville v. Zinn, 129 Va. 542, 106 S.E. 508 (1921); Purcellville v.


II/ ~lj


[Vol. 23








1955] NEW WATER RIGHTS LAWS 815

is authority which indicates that the owner f a tract f riaan land, in
selling a part of it, none of which fronts on the stream, may stipulate that
the parcel sold shall carry w it ta pro oi te sare n r
rights originally appurtenant to the entrr pmp.W."8 Again, the severance
of npanan rights as such from riparian property and their sale as rights in
gross is a transaction which would be effective in some urisdiio And
the cases mentioned above in the discussion of municipal water supply prob-
lems indicate that sale of anvn even greater quantity of water, in the event no
other riparian owner suffers present injury as a result, may be poible in
practice if not permissible in theory.
SRigli.sto make what was oifinly an imnp--"., "s -,+, ;h.
riparian or nonriparian property, may be acquired by prescription.8s -Wke- V
prescriptive right, once the statutory period has run, is as effective as if it
had originally existed. As m thecaeofother of prescriptive rights,
however, those min-voing use of water will be limited strictly to the extent
of the usatually made during thel statutory ais.8 s
(2) Diused Surface Waters
Decisions in the TennesseeValley states volving diffused surface waters
have dea mainy with y stones of da P rther than right of use. In
other jurisdictions where the question o e right to use surface waters-'as
arisen, it generally been held that an owner of land has an absolute right
to _etain ana use them tor Hus own purposes.s Dicta in Mis l an
Potts, supra note 83; 2 FAIRNAM, op. cit. supra note 45, 1$463, 497. Note: Transfer
of riparian right to use water to non-riparian land, 14 A.L.R. 330, 333 (1921).
85. Hite v. Town of Luray, 175 Va. 218, 8 S.E. 2d 369 (1940); 56 AM. Ju.,
Waters, 277 (1947).
86. Ficklen v. Fredericksburg Power Co., 133 Va. 571, 112 S.E. 775 (1922);
Hite v. Town of Luray, supra note 85; 56 AM. Jun., Waters, 1288 (1947); 2 FARN-
HAM, op. cit. supra note 45, 497; 3 FARNHAM, id. 1724a. Contra: Hendrix v. Roberts
Marble Co., 175 Ga. 389, 165 S.E. 223 (1932). And, in this connection, see also
4 RESTATEMNT, TORTS, Ch. 41, Topic 3, pp. 343-345 (1939).
87. To polute a stream: Stouts Mountain Coal & Coke Co. v. Ballard, 195 Ala.
283, 70 So. 172 (1915) (right to pollute which amounts only to a private nuisance
may be obtained by prescription); Anneberg v. Kurtz, 197 Ga. 188, 28 S.E. 2d 769
(1944); W. G. Duncan Coal Co. v. Jones, 254 S.W. 2d 720 (Ky. 1953) (right to
pollute which amounts only to a private nuisance may be obtained by prescription);
Mississippi Mills Co. v. Smith, 69 Miss. 299, 1 So. 26 (1892) (dictum).
To overflow upper riparian lands by damming stream: Terrell v. Terrell, 144
Ga. 32, 85 S.E. 1005 (1915); Harrodsburg v. Cunningham, 299 Ky. 193, 184 S.W.
2d 357 (1944); Alcorn v. Sadler, 71 Miss. 444, 14 So. 444 (1894); Wilson v. Wilson,
15 N.C. 154 (1833); Gerenger v. Summers, 24 N.C. 229 (1842); La Roque v.
Kennedy, 156 N.C. 360, 72 S.E. 454 (1911); Field v. Brown, 24 Gratt. 74 (Va.,
1873); Kirk v. Hoge, 123 Va. 519, 97 S.E. 116 (1918).
To use for a municipal water supply: Geer v. Durham Water Co., 147 N.C.
349, 37 S.E. 474 (1900) (dictum).
88. Rqundtree v. Brantley, 34 Ala. 544 (1859); Cobia v. Ellis, 149 Ala. 108,
42 So. 751 (1906); W. G. Duncan Coal Co. v. Jones, supra note 87; Mississipp
Mills Co. v. Smith, supra note 87; Morris v. Commander, 25 N.C. 510 (1843);
Powell v. Lash, 64 N.C. 456 (1870); Armstrong v. Spruill, 182 N.C. 1, 108 S.E.
300 (1921); Field v. Brown, supra note 87.
89. 56 AM. Jun., Waters, 66 (1947); 3 FARNHAM, op. cit. supra note 45,
883.








816 TENNESSEE LAW REVIEW [Vol. 23

North Carolina decisions are in accordance with this view.9* There is some
case support (outside the Tennessee Valley) limitinthe right to detain
cdius es ace'Waters in accordaiice wi-tt test of reasonable use.'9
Ines t to damage rom such waters, a fruitful source of litigation
in m Wosi Tennessee Valley states, two competing rules exist One, the
"common law" rule, regards diffused surface water a mmon enemy,
and permits lower owners to repel it by such obstructions as ey choose to
employ and without liability'to--~5ir owners who may be damaged as a re-
sult. This rule is followed in Virginia, subject to the qualification that one's
right to fight off must not be so exercised as to injure the property
of another negligently or ,_ Aad y.92 The second, or "ci law" rule, ac-
cords the owner of upper land an easementor e age of surface water
across lower land to wnchit natiir j flows adtorbids any injury usmin-
terference with such flow by the lower owner. This l is ow yt
other six Valley states. As trprete these states, the rule contains a
further element-that the upper owner artificially increasete natural
quanttyof water, orchng of flow bycollectin it and

90. Alcorn v. Sadler, 66 Miss. 221, 5 So. 694 (1889); Harvey v. Illinois Cen-
tral R. R., 111 Miss. 835, 72 So. 273 (1916); Williamson v. Canal Co., 78 N.C.
156 (1878).
91. 56 AM. JUR., Waters, 66 (1947).
92. Third Buckingham Community v. Anderson, 178 Va. 478, 17 S.E. 2d 433
(1941); Mason v. Lamb, 189 Va. 348, 53 S.E. 2d 7 (1949); Howlett v. South
Norfolk, 193 Va. 564, 69 S.E. 2d 346 (1952). Negligent or needless injury exception:
Farmville v. Wells, 127 Va. 528, 103 S.E. 596 (1920); Raleigh Court Corp., v.
Faucett, 140 Va. 126, 124 S.E. 433 (1924); Harris Motor Co. v. Pulaski Furniture
Co., 151 Va. 125, 144 S.E. 414 (1928). Other exceptions to the rule are said to be
that a landowner cannot collect diffused surface water in an artificial channel and
deposit it on the land of another, and cannot interfere with the flow of diffused
surface water along a well-defined channel worn or cut into the soil. Third Bucking-
ham Community v. Anderson, supra; Howlett v. South Norfolk, supra. Of course,
easements by prescription or by implication for the flow of diffused surface water may
arise in favor of an upper owner. Sanderlin v. Baxter, 76 Va. 299 (1882); Riverside
Cotton Mills v. Lanier, 102 Va. 148, 45 S.E. 875 (1903); State Highway Commission
v. Nock, 138 Va. 212, 120 S.E. 869 (1924).
93. E.g., Alabama Great Southern R. R. v. Prouty, 149 Ala. 71, 43 So. 352
(1906); Sloss-Sheffield Steel & Iron Co. v. Nance, 216 Ala. 237, 113 So. 50 (1927);
Tennessee, A. & G. Ry. v. Cordon, 27 Ala. App. 585, 177 So. 171 (1937); Farkas v.
Towns, 103 Ga. 150, 29 S.E. 700 (1897); Hendrix v. McEachern, 164 Ga. 457, 139
S.E. 9 (1927); Pickerill v. Louisville, 125 Ky. 213, 100 S.W. 873 (1907); Franz v.
Jacobs, 183 Ky. 647, 210 S.W. 163 (1919); Dugan v. Long, 234 Ky. 511, 28 S.W.
2d 765 (1930); Porter v. Durham, 74 N.C. 767 (1876); Winchester v. Byers, 196
N.C. 383, 145 S.E. 774 (1928); Bonapart v. Nissen, 198 N.C. 180, 151 S.E. 94
(1930); Louisville & N.R.R. v. Hays, 79 Tenn. 382 (1883); Garland v. Aurin, 103
Tenn. 555, 53 S.W. 940 (1899); Davis v. Louisville & N. R. R., 147 Tenn. 1, 244
S.W. 483 (1922).
In Mississippi,, early cases adopted the common enemy rule, subject to the
qualification that the lower owner was required to select a reasonable method of
defense most favorable to the upper owner. Sinai v. Louisville, N. O. & T. Ry., 71
Miss. 547, 14 So. 87 (1893); Yazoo & M. V. R. R. v. Davis, 73 Miss. 678, 19 So.
487 (1896); Holman v. Richardson, 112 Miss. 216, 72 So. 921 (1916), rehearing,
115 Miss. 169, 76 So. 136 (1917). Although this rule may remain applicable with
respect to drainage of railroad roadbeds, the Mississippi Supreme Court subsequently
accepted the civil law rule. Steed v. Kimbrough, 197 Miss. 430, 19 So. 2d 925 (1944);
cf. Palmer v. Massengill, 214 Miss. 379, 58 So. 2d 918 (1952).









1955] NEW WATER RIGHTS LAWS 817

discharging it upon the servient land at a different place or in a different
manner u u natural ic e. he curts o Alabama make an excep-
ti favor of lower ur propertyfilled, graded
aronerwise-ltered, provided the work is reason ndp ore th
du~cae, wilh-tit liability for resulting interference with natural drainage."

94. This formulation of the rule has been employed in Georgia, Mississippi,
Tenhessee, and occasionally in North Carolina. Rinzler v. Folsom, 209 Ga 549,74
S.E. 2d 661 (1953); Cox v. Martin, 207 Ga. 442, 62 S.E. 2d 164 (1950); Mayor,
Etc., of City of Albany v. Sikes, 94 Ga. 30, 20 S.E. 257 (1894); Hendrix v.
McEachern, supra note 93; Steed v. Kimbrough, supra note 93; Illinois Cent. R R.
v. Miller, 68 Miss. 760, 10 So. 61 (1891); Filtrol Corp. v. Hughes, 199 Miss. 10, 23
So. 2d 891 (1945); Louisville & N. R. R. v. Hays, supra note 93; Slatten v. Mitchell,
22 Tenn. App. 547, 124 S.W. 2d 310 (1938), cert. denied by Tennessee Supreme
Court (1939); Porter v. Durham, supra note 93; Rice v. Norfolk & C. R. R., 130
N.C. 375, 41 S.E. 1031 (1902); Barcliff v. Norfolk Southern R R., 168 N.C. 268,
84 S.E. 290 (1915). More frequently the rule in North Carolina has been said to be
that the upper owner may increase and accelerate the flow but cannot divert it from
its natural flow to the injury of the lower owner. Staton v. Norfolk & C. R. R., 109
N.C. 337, 13 S.E. 933 (1891); Parker v. Norfolk & C. R. R., 123 N.C. 71, 31 S.E.
381 (1898); Hocutt v. Wilmington & W. R. R., 124 N.C. 214, 32 S.E. 681 (1899);
Lassiter v. Norfolk, & C. R. R., 126 N.C. 509, 36 S.E. 48 (1900); Briscoe v. Parker,
145 N.C. 14, 58 S.E. 443 (1907); Roberts v. Baldwin, 151 N.C. 407, 66 S.E. 346
(1909); Hooker v. Norfolk & S.R.R., 156 N.C. 155, 72 S.E. 210 (1911); Sykes v.
Sykes, 197 N.C. 37, 147 S.E. 621 (1929); Phillips v. Chesson, 231 N.C. 566, 58 S.E.
2d 343 (1950). However, the Supreme Court of North Carolina has said that the
two formulations of the rule are equivalent. Brown v. Southern R. R., 165 N.C. 392,
81 S.E. 450 (1914).
In Alabama it is said that an upper owner cannot change the natural course of
drainage of surface water or collect and discharge it in increased quantity and volume
on lower land. Crabtree v. Baker, 75 Ala. 91 (1883); Southern Ry. v. Lewis, 165
Ala. 555, 51 So. 746 (1910); Walshe v. Dwight Mfg. Co., 178 Ala. 310, 59 So. 630
(1912); Atlantic Coal Line R. R. v. Woolfolk, 178 Ala. 190, 59 So. 633 (1912);
Mobile v. Lartigue, 23 Ala. App. 479, 127 So. 257 (1930); Kay-Noojin Development
Co. v. Hackett, 253 Ala. 588, 45 So. 2d 792 (1950); Kay-Noojin Development Co. v.
Kinzer, 259 Ala. 49, 65 So. 2d 510 (1953). It is also said, however, that the upper
owner may control and redistribute the flow by ditches provided he does so with
"prudent regard for the welfare of his neighbor," and in exceptional circumstances
may increase the concentration, volume and rapidity of it at any given point;
whether exceptional circumstances exist, and whether the upper owner acted prudently
being questions for the jury. Hughes v. Anderson, 68 Ala. 280, 286 (1880); Killian
v. Killian, 175 Ala. 224, 57 So. 825, 829 (1912); King Land Co. v. Bowen, 7 Ala.
App. 462, 61 So. 22, 27 (1913); Perry v. McCraw, 226 Ala. 400, 147 So. 178
(1933); Vinson v. Turner, 252 Ala. 271, 40 So. 2d 863, 865 (1949),
In Kentucky the rule is sometimes set forth as follows: The dominant owner
may drain and ditch his land without liability to the servient owner, even though the
flow onto the servient estate is accelerated, so long as he does not tap additional water-
sheds or divert water from natural drains which otherwise would not have flowed onto
the servient estate. Wallace v. Schneider, 310 Ky. 17, 219 S.W. 2d 977 (1949); City of
Ludlow v. Broderick, 181 Ky. 123, 203 S.W. 1082 (1918); Board of Trustees of
Town of Auburn v. Chyle, 256 Ky. 283, 75 S.W. 2d 1039 (1934); Jarvis v. Cornett,
257 S.W. 2d 524 (Ky. 1953). Elsewhere it is more restrictively phrased: The upper
owner may not, as by regrading or ditching, collect and cast the water upon the lower
owner in an accelerated or unnatural volume, or collect into one channel waters
usually flowing by several channels and thereby increase or accelerate the flow upon
the lower ground. Pickerill v. Louisville, supra note 93; Frank v. Dierson, 235 Ky.
229, 30 S.W. 2d 950 (1930); Stone v. Ashurst, 285 Ky. 687, 149 S.W. 2d 4 (1941);
Gott v. Franklin, 307 Ky. 466, 211 S.W. 2d 680 (1948); Rutherford v. Louisville
& N. R. R., 243 S.W. 2d 1017 (Ky. App., 1951).
95. Hall v. Rising, 141 Ala. 431, 37 So. 586 (1904); Atlantic Coast Line R. R.
v. Woolfolk, supra note 94; Ex Parte Tennessee Coal, Iron & R. R., 206 Ala. 403,




; : I








818 TENNESSEE LAW REVIEW [Vol. 23

Tennessee has rejected this exception for urban property9e and its status in
Georgia, Kentucky, Mississippi and North Carolina is not clear.97 Mississippi
and North Carolina adhere to the rule that an upper riparian owner may
drain his diffused surface waters into a natural stream without limit, even
if the result is to damage a lower riparian owner by increasing the flow of
the stream.9s
(3) Underground Waters in Well-Defined Streams
The usually accepted princLipl, rcgzed -Ine6-Teessee Valley
states wherever the question has arisen, is that riparian rights exist in under-
gund streams having definite and ascertainable channels, and that such
rights are governed b the sameer Jle in the case of well-
defined surface streams."9 Accordingly, the test of reasonableness is appca-
ble. 7~ Oeof a well-defined stream must be demonstrated, however;
underguroi waters are sume to pcruladng i te aisence of clear
tgw[to thecontrary.100
90 So. 876 (1921); Drummond v. Franck, 252 Ala. 474, 41 So. 2d 268 (1949). The
exception does not apply in favor of railroad or street railway property. Southern Ry.
v. Lewis, supra note 94; Alabama Power Co. v. Alford, 210 Ala. 98, 97 So. 224
(1923). Two recent cases have held that the exception applies only in favor of lower
owners. Kay-Noojin Development Co. v. Hackett, supra note 94; Kay-Noojin Develop-
ment Co. v. Kinzer, supra note 94.
96. Garland v. Aurin, 103 Tenn. 555, 53 S.W. 940 (1899).
97. In none of these four states is a distinction between urban and rural
property articulated (with the exception of an early Kentucky decision, refusing to
make such a distinction in favor of a lower owner. Johnson v. Marcum, 152 Ky. 629
153 S.W. 959 (1913)). In Georgia an upper owner in an urban area has been held
liable for injuries to lower land resulting from apartment construction (creating six
acres of roof and paved area which approximately doubled the maximum runoff),
and in Mississippi grading and terracing of upper land in an urban area to the
injury of lower land has been held actionable. Rinler v. Folsom, 209 Ga. 549, 74
S.E. 2d 661 (1953); Newton Coca-Cola Bottling Co. v. Murphrey, 212 Miss. 823
55 So. 2d 485 (1951). Perhaps it may be inferred that in Kentucky an urban land
"exception" is, in effect, applied by the courts in favor of upper owners in urban and
suburban areas, by applying in such cases the formulation of the rule on drainage of
diffused surface waters which is more favorable to upper owners. Wallace v. Schneider,
310 Ky. 17, 219 S.W. 2d 977 (1949); Jarvis v. Cornett, 257 S.W. 2d 524 (Ky. 1953).
But cf. Gott v. Franklin, 307 Ky. 466, 211 S.W. 2d 680 (1948).
98. Board of Drain. Com'rs, Etc. v. Board of Drain. Com'rs, Etc., 130 Miss.
764, 95 So. 75 (1923); Jones v. Walker, 44 So. 2d 466 (Miss., 1950); Mizell v.
McGowan, 120 N.C. 134, 26 S.E. 783 (1897); Jenkins v. Wilmington & W. R. R., 110
N.C. 438, 15 S.E. 193 (1892). But cf. Hooker v. Norfolk & S. R. R., 156 N.C. 155,
72 S.E. 210 (1911).
99. Saddler v. Lee, 66 Ga. 45 (1879); St. Amand v. Lehman, 120 Ga. 253,
47 S.E. 949 (1904); Kevil v. City of Princeton, 118 S.W. 363 (Ky. App., 1909);
Nourse v. Andrews, 200 Ky. 467, 255 S.W. 84 (1923); Feldhaus v. Jefferson Co.,
264 Ky. 829, 95 S.W. 2d 790 (1936); Nashville C. & St. L. Ry. v. Rickert, 19 Tenn.
App. 446, 89 S.W. 2d 889 (1935), cert. denied by Tennessee Supreme Court (1936);
Heninger v. McGinnis, 131 Va. 70, 108 S.E. 671 (1921); Clinchfield Coal Corp. v.
Compton, 148 Va. 437, 139 S.E. 308 (1927); cf. Board of Sup'rs v. Mississippi
Lumber Co., 80 Miss. 535, 31 So. 905 (1902); Rouse v. City of Kinston, 188 N.C. 1,
123 S.E. 482 (1924); Masten v. Texas Co., 194 N.C. 540, 140 S.E. 89 (1927).
100. Shahan v. Brown, 179 Ala. 425, 60 So. 891 (1913); Woodward Iron Co.
v. Earley, 247 Ala. 556, 25 So. 2d 267 (1946); Stoner v, Patten, 132 Ga. 178, 63 S.E.
897 (1909); Atlanta v. Hudgins, 193 Ga. 618, 19 S.E. 2d 508 (1942); Nourse v.
Andrews, supra note 99; Feldhaus v. Jefferson Co., supra note 99; Board of Sup'rs
v. Mississippi Lumber Co., supra note 99; Heninger v. McGinnis, supra note 99;









NEW WATER RIGHTS LAWS


(4) Underground Percolating Wates
The use of underground percolating waters is governed by one of two
different rules. Under the so-called English omm law rule, an owner
of land is deemed to own also all percoatg water death it an
widraw anduse uch water as e sees t wiout regard to the eect on
other owners. This rule at one time prevailed gerally inthe United
States.1O1 It appears still to be in effect in 9!rgia, Kentucky,'o and
Mississippi.104 It has also been recognized in .igg u-ab10 u at state's
highest- court has said that earlier pronouncements approving it were un-
Snecessary to decision of the actual controversies involved and that it regards
the question as still open.106 Alabama,107 North Carolina,108 and Tennes-
seex10 follow the alternative doctrine, variously ownas th m
reasonable useor correlative rights rule under which the reasonable use test
applies to unerround percolating waters on the same basis as to well-defined
underground streams.

Clinchfield Coal Corp. v. Compton, supra note 99. A Georgia statute provides: "The
course of a stream of water underground, and its exact condition before its first use
are so difficult of ascertainment, that trespass may not be brought for any supposed
interference with the rights of a proprietor." GA. CODE 105-1408 (1933). Saddler v.
Lee, supra note 99, construing the statute, appears to hold that, after the first use,
if a well-defined underground course is clearly established, the reasonable use rule
applies.
101. 56 AM. JuR., Waters, 113 (1947).
102. Saddler v. Lee, 66 Ga. 45 (1879); Stoner v. Patten, 132 Ga. 178, 63
S.E. 897 (1909). However, a malicious diversion or wasting of percolating under-
ground waters would be actionable. St. Amand v. Lehman, 120 Ga. 253, 47 S.E.
949 (1904).
103. An early case states the rule to be that the proprietor has an absolute right
to appropriate percolating waters to his use, but that damages can be recovered for
pollution of percolating waters if proven. Kinnaird v. Standard Oil Co., 89 Ky. 468,
12 S.W. 937 (1890). Accord, as to pollution Rogers v. Bond Bros., 279 Ky. 239, 130
S.W. 2d 22 (1939). A later case, however, in one breath indicates that Kentucky
applies the English rule to appropriation of percolating waters, but in the next breath
states that the American rule is sounder. Sycamore Coal Co. v. Stanley, 292 Ky. 168,
166 S.W. 2d 293 (1942). The confusion i amplified in a discussion of liability for
nuisance by a very recent case. United Fuel Gas Co. v. Sawyers, 259 S.W. 2d 466
(Ky. App., 1953). It may be that the rule in Kentucky is similar to that in Georgia-
percolating waters are subject to appropriation for use, but not to malicious or
wasteful diversion or injury.
104. Board of Sup'rs v. Mississippi Lumber Co., 80 Miss. 535, 31 So. 905
(1902).
105. Miller v. Black Rock Springs Imp. Co., 99 Va. 747, 40 S.E. 27 (1901);
Heninger v. McGinnis, 131 Va. 70, 108 S.E. 671 (1921); Couch v. Clinchfield Coal
Corp., 148 Va. 455, 139 S.E. 314 (1927).
106. Clinchfield Coal Corp. v. Compton, 148 Va. 437, 139 S.E. 308 (1927).
107. Sloss-Sheffield Steel & Iron Co. v. Wilkes, 231 Ala. 511, 165 So. 764
(1938).
108. Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482 (1924); Masten v.
Texas Co., 194 N.C. 540, 140 S.E. 89 (1927).
109. Nashville C. & St. L. Ry. v. Rickert, 19 Tenn. App. 446, 89 S.W. 2d 889
(1935), cert. denied by Tennessee Supreme Court (1936).




i

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1955)








TENNESSEE LAW REVIEW


III. THE EXISTING LAW IN THE WEST
(1) Surface Waters in Well-Defined Streams
The body of statute and case law governing use of surface waters in the
western states10 is so vast as to preclude any attempt, within the limits of
this article, to do more than sketch some of its principal features in barest
outline. Such an outline seems most easily constructed around the common
western acceptance of the doctrine of prior appropriation and the consid-
erable variations among the different states in its application, including the
use of it by some as the exclusive method of determining water rights and
by others as part of a dual method which involves recognition of riparian
as well as appropriative rights.1"
Origin and. nature of the prior appropriation doctrine. A form of
prior appropriation was legally recognized in parts of what is now the south-
western United States while they were under Spanish and Mexican sov-
ereignty.11' The doctrine in its modern form stems primarily, however,
from the nineteenth century California gold rush and the ensuing search
for precious minerals in various parts of the West. The custom of the min-
ing camps accorded the first locator of a mining claim a right to it good
against all later comers, and this right was quickly extended to include ap-
propriations of water for working the claim. The miners were trespassers
on the public domain (which at that time included most of the land in the
West), but their presence was tacitly accepted by the Federal Government
and their appropriative custom recognized, as between themselves, by various
state and territorial courts.x11 Over the miners' bitter objections, similar
recognition was shortly accorded appropriations for irrigation and other
purposes.114 Legislation enacted by Congress in 1866 expressly validated
appropriative rights on the public domain which had accrued under state
and territorial laws and customs.115 And the Desert Land Act, as passed
in 1877 and amended in 1891,116 declared all previously unappropriated non-
navigable waters within the public domain in 13 western states and territories
110. The 17 states so denominated are Arizona, California, Colorado, Idaho,
Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma,
Oregon, South Dakota, Texas, Utah, Washington and Wyoming.
111. In preparing this section the authors have drawn extensively on the
excellent summaries of water law in the various western states prepared by Mr.
Wells A. Hutchins, U. S. Department of Agriculture, for The President's Water
Resources Policy Commission and included as Appendix B to Volume 3 of its report
entitled WATER RESOURCES LAW (1950).
112. Boquillas Cattle Co. v. Curtis, 213 U. S. 339, 343 (1909).
113. United States v. Gerlach Live Stock Co., 339 U.S. 725, 745-748 (1950).
114. Tartar v. Spring Creek Water & Mining Co., 5 Cal. 395 (1855); Rupley
v. Welch, 23 Cal. 452 (1863). Settlement of Utah by the Mormons resulted in
independent formulation of prior appropriation principles in that state for the benefit
of irrigation initially. 2 KINNEY, A TREATISE ON THE LAWS OF IRRIGATION AND
WATER RIGHTS 402-403 (2d ed. 1912).
115. 14 STAT. 253 (1866).
116. 19 STAT. 377, as amended, 26 STAT. 1096, 43 U.S.C. 321 (1952).





; '1 -


[Vol. 23








1955] NEW WATER RIGHTS LAWS 821

subject to appropriation under their respective laws. Thus, use of water
generally in the West, both within and outside the public domain, became
subject to determination in accordance with whatever principles of law
individual states and territories might choose to adopt.117 These principles,
in turn, were evolved in relation to the needs of settlers in a region which the
United States Supreme Court once described as follows:
From a line east of the Rocky Mountains almost to the Pacific
Ocean, and from the Canadian border to the boundary of Mexico
-an area greater than that of the original thirteen states-the lands
capable of redemption, in the main, constituted a desert, impossible
of agricultural use without artificial irrigation.118
Basically, the resulting doctrine of prior appropriation provides a
means by which an individual may acquire a right to divert a given quantity
of water, at given times and from a given place, and-initially, at least-for
use at a given place (which of course need not be on riparian land) and for
a given purpose. When there is insufficient water to meet the claims of all
possessors of such appropriative rights, their positions depend on the dates
when their respective rights were acquired. The system is based on the prin-
ciple of "first in time, first in right," each appropriator being entitled to receive
his lull uanty of water before a ro riators junior to tun becomeeTnuted
to an water at all. The value of an appropria Ve ig tus Fepen s upon
its place in the priority schedule.119
Preferences in appropriations of water for different uses. Most
a= -- --
western staes apro
o~v5R~gf bsdon me use to wmcn it is tobe put. GeneraUymem d
mtcff, ParI.,Tlre8reerred over = nd irrigation over mi bu -|
ing.Io However, several western stano system of pXnt-

Texas s niue aci an iga ift g .12h2 and Wash-
i ington leaves detemrmaM n 1 each case.x2
"- ITe -order of priority, whatever it may be, constitutes a basis for choice
among pendi ... l aronate water focgp tFig

117. Power Co. v. Cement Co., 295 U.S. 142 (1935). In Nebraska v. Wyom-
ing, 325 U.S. 589, 611-616 (1945), the United States contended that the Acts of
1866, 1870 and 1877 did not divest it of ownership or control of unappropriated
waters in non-navigable western streams. The Court found it unnecessary to decide
this issue. See WATER RESOURCES LAW, op. cit. supra note 111, at 35-43.
118. Power Co. v. Cement Co., supra note 117.
119. REPORT TO WATER RESOURCES COMMITTEE OF NATIONAL RESOURCES
PLANNING BOARD, STATE WATER LAW IN THE DEVELOPMENT OF THE WEST, 10-11
(1943).
120. ARIZ. CODE ANN. 75-106 (1939); COLO. CONST. ART. XVI, 6; KAN.
GEN. STAT. 82a-707 (1949); NEB. CONST. ART. XV, 6; ORE. REV. STAT. 540.140
(1953); UTAH CODE ANN. 73-3-21 (1953).
121. IDAHO CONST. ART. XV, 3.
122. TEX. VERNON'S Civ. STAT. ART. 7471 (1948).
123. WASH. REV. CODE 90.04.030 (1951).






^f. <^'*








TENNESSEE LAW REVIEW


purposes.124 Ordinarily, when a right is once established to appropriate
water for any purpose, it can be displ ,... in favn, n an anoropriation for
a higher ranking use only on payment of just compensation.l? Some states
ma n exception to is rule in favor of munc tiTex all
app ropriave rglmtslt tr or ot er than domestic or municipal
purposes are acquredsubject to l ispacement w out com-
RnsatioTn ar or any municipality which may nee 1diiTs f
wa 126 Arizona, alorniaan o ya e statutes under which munici-
plities may estabh a eight to use m the future water which is excesstoi~fi "
-b
others in the meant Somewhat similarly, a Colorado statute protects
Denver's future needs, and authorizes it to lease water to others until actually
required for the city's own use.128
Administration. All of the western states except Montana have
established some centr.a-ed-.con S.ro oiTdFi -
righ-ts-, Tut w t' varying auZtonty" and functions.129 The area iaMi!n-
israuon includes primarily: (a) adjudication of existing rights in cases of
conflict; (b) procedures for acquiring new rights; and (c) procedures for
controlling the actual diversion of water in accordance with established
rights.
(a) Adu di tion ajL"Atii im rights. Some states lodge no authority
in the a nistrave agency o p ar ate in adjudicatiop of conflicting
r leaving the matter entireidIy courtr w o W Ie prw lawJade
fo ci aqon one of several methods maybe followed.
Under the "Wyoming method"'1s the admnisatre agency makes an initial
determination Uo u ,, m wlc any aggrieved partymay
appeal. In te absence of an appeal, the adminstra-tve aecmson Ms inal.

124. See statutory and constitutional provisions cited in notes 120, 121, 122,
123 supra.
125. Montrose Canal Co. v. Loutsenhizer Ditch Co., 23 Colo. 233, 48 Pac. 532
(1896); Montpelier Milling Co. v. Montpelier, 19 Idaho 212, 113 Pac. 741 (1911);
Loup River Public Power Dist. v. North Loup River, Etc., 142 Neb. 141, 5 N.W. 2d
240 (1942); WYo. COMP. STAT. 71-402 (1945).
126. Tax. VzRNON'S Cxv. STAT. ART. 7472 (1948).
127. ARiz. CODE ANN. 75-106 (1939); CAL. WATER CODE 106-5, 1203, and
1460 to 1464; ORE. REV. STAT. 540.610 and 538.410 (1953).
128. COLO. STAT. ANN., ch. 193, 398 (1935).
129. STATE WATER LAW IN THE DEVELOPMENT OF THE WEST, Op. cit. supra
note 119, at 103.
130. The Supreme Courts of Idaho and Texas have declared procedures for
administrative adjudications unconstitutional. Bear Lake County v. Budge, 9 Idaho
703, 75 Pac. 614 (1904); Board of Water Engineers v. McKnight, 111 Tex. 82, 229
S.W. 301 (1921); but see Corzelius v. Harrell, 143 Tex. 509, 186 S.W. 2d 961
(1945). On request of the courts in Idaho the state agency supplies a hydrographic
survey of the stream in issue. IDAHO CODE, 42-1401 (1948); see also COLO. STAT.
ANN., ch. 90, 193 (1935).
131. WYO. Coup. STAT. ANN. 71-203 to 71-216, 71-225 to 71-237 and
71-256 to 71-263 (1945); NEB. Rzv. STAT. 46-226, 46-230 to 46-232 (1943);
KAN. GEN. STAT. 82a-708 (1949).


[Vol. 23








NEW WATER RIGHTS LAWS


In Texas this method has been held unconstitutional (as providing for ad-
ministrative exercise of judicial functions).1'2 Under the "Oregon
method"18s the administrative agency makes a determination which is
filed automatically with the appropriate court M I aubjec T aMimance
or moiiication by the court. Other methods evolve nitaton by the at-
torney genel f actions to determine rights in a stream following mple-
tion of a hydrographic survey by the state administrative agency;a18 and
reference by the courts of issues involved in actions initiated by private
parties to the administrative agency for findings.185
(b) Procedures for acquiring new rights. In the early days of the
West the procedures for acquiring appropriative rights were simple; usually
an appropriator needed merely to post and record notice of his appropriation
and commence construction of the necessary works or actually divert water
for use.18' Colorado, Idaho and Montana187 still recognize these modes of
acquisition, but Idaho and Montanas88 also provide alternative statutory
procedures. Generally, however, the statutory method is exclusive.189 The
most common statutory procedure requires the intending appropriator to efie
an application with the administrative Toer t, s
supplemented by a certificate after the applicant has completed conItru-con
of his works, and by a license when he actually diverts water to use in ac-
cordance with the terms of the permit.1x4 A unique variation exists in Okla-
hoa hose highest court baJbelkthataadrographic survey and adjudi-

132. See note 130 supra.
133. Amz. CODE ANN. 75-114 to 75-127 (1939); CAL. WATER CODE 552500
to 2900; NEV. COMP. LAws SS7905 to 7923 (1929) ORQ REv. STAT. 539.020 to
539.220 (1953); UTAH CODE ANN. SS73-4-1 to 73-424 (1953).
134. N. M. STAT. ANN. 77-404 to 77-410 (1941); N. D. Rav. CODE
61-0316 (1943); OxLA. STAT., tit. 82, 11 to 14 (1941).
135. Aalz. CODE ANN. 75-114 (1939); CAL. WATER CODE 2000 to 2050;
S. D. CODE 61.0119 (1939).
136. U. S. DEPT. or AGRICULTURE SELECTrD PROLauMS IN THE LAw or
WATER RIGHTS IN THE WEST (Miscellaneous Publication No. 418, 1942), p. 74.
137. The Colorado and Idaho constitutions apparently require continuance of
simple acquisition procedures by providing that the right to divest water shall not be
denied. COL. CONST. AaT. XVI, 5; IDAHO CONST. AnT. XV, 3. In Montana
continuance of simple procedures results from restrictive interpretation of a statute
providing an alternative procedure. See Murray v. Tingley, 20 Mont. 260, 50 Pac.
723 (1897).
138. IDAHo CODE 42-202 to 42-311 (1948); Mowr. Ray. CODE ANN.
589-810 to 89-812 and 89-829 to 89-844 (1947). The advantage of following the
statutory method is the resulting applicability of the doctrine of "relation back."
Under the statutory method priority of an appropriative right dates from the time
the first procedural step has been taken to acquire it (provided the remaining steps
are taken with due diligence). A right acquired by the constitutional method dates
from the time the appropriation is completed. Sand Point W. & L. Co. v. Panhandle
Development Co., 11 Idaho 405, 83 Pac. 347, 350 (1905); Vidal v. Kensler, 100
Mont. 592, 51 P. 2d 235 (1935).
139. SELECTED PROBLEMS IN THE LAW OF WATER RoIHTs IN THE WEST, Op.
cit. supra note 136, at 77.
140. N. M. ANN. 177-501 to 77-521 (1941); N.D. REV. CODE 5161-0402 to
61-0415 (1943); OxLA. STAT., tit. 82, 21 to 59 (1941); IDAHo CoDa 1542-202
to 42-311 (1948).


( ___ ___I_


1955]








TENNESSEE LAW REVIEW


cation of existing water rights are conditions precedent to the granting of a
valid permit to appropriate water for irritioitifino tohe issuance-of a

(cJ r-cedtreo-for controlling actual diversions of water. The
western states have established elaborate administrative machinery to assure
that actual diversions of water accord with rights established by license or
adjudication. In some states such machinery includes a centralized state
agency, interim e isons forage Si iwter cnTcts ormaler
areas.12 The centralized stat e ead a single official,
su c a s a e n ---m- --a tr rs
oversee versions on individual streams, or parts of streams, requiring closing
of heai ij aopriai' whe-rft.ere is suflrmien-T-MrftrW e-e"t
only the need~ps.aapp opriators having senior rights.145
Transferability of rights. Historically, "'ppropriative rights were
usually regarded as freely transferable."4 In recent years, however, there
has been a trend in the West toward making water rights appurtenant to
the land on which originally used and to condition their severance and
transfer for use in connection with other lands on the approval of the state's
administrative agency.147
Abandonment and forfeiture. The common law doctrine of abandon-
ment applies generally to appropriative rights.148 In addition, almost all the
western states provide for statutory forfeiture on failure to exercise an ap-
propriative right for a given number of years. The period specified varies
from two to five years.149
141. Owens v. Snider, 52 Okla. 772, 153 Pac. 833 (1915); Grand Hydro v.
Grand River Dam Authority, 192 Okla. 693, 139 P. 2d 798 (1943).
142. COLO. STAT. ANN., ch. 90, 201 to 345 (1935 and Supp. 1947); NEB.
REV. STAT. 46-215 to 46-225 (1943); Wyo. COMP. STAT. ANN. 71-101 to 71-108
and 71-301 to 71-309 (1945).
143. AmRI. CODE ANN. 75-103 (1939 and Supp. 1951); N. M. STAT. ANN.
77-201 to 77-211 (1941).
144. N. M. REV. CODE 61-0301 and 61-0314 (1943); TEX. VERNON'S Civ.
STAT. ART. 7477 (Supp. 1954); WYO. CouP. STAT. ANN. 201 (1945 and Supp.
1953).
145. ARIz. CODE ANN. 75-128 to 75-136 (1939); CAL. WATER CODE 4000
to 4407; IDAHO CODE 42-604 to 42-802 (1948); NEB. REV. STAT. 46-223 to
46-225 (1953); N. M. STAT. ANN. 77-301 to 77-305 (1941); ORE. REV. STAT.
540.010 to 540.440 (1953); UTAH CODE ANN. 73-5-1 (1953); WASH. REV.
CODE 90.08.010 to 90.08.070 (1951).
146. SELECTED PROBLEMS IN THE LAW OF WATER RIGHTS IN THE WEST, Op.
cit. supra note 136, at 385-386.
147. Ibid.
148. STATE WATER LAW IN THE DEVELOPMENT OF THE WEST, Op. Cit. Stpra
note 119, at 17.
149. 2 years-OKLA. STAT., tit. 82, 32 (1941); 3 years-CAL. WATER CODE
1241; KAN. GEN. STAT. 82a-717 (1949); NEB. REv. STAT. 46-229 (1943 and
Supp. 1951); N. D. REV. CODE 61-1402 (1943); S. D. CODE 61.0139 (1939);
TEX. VERNON'S Civ. STAT. ART. 7544 (1948); 4 years-N. M. STAT. ANN. 77-526
(1941); 5 years--Aaz. CODE ANN. 75-101 (1939); IDAHO CODE 42-222 (1948);
NEV. CouP. LAWs 7897 (Supp. 1949); ORE. REV. STAT. 540.610 (1953); UTAH
CODE ANN. 73-1-4 (subject to extension) (1953); WYO. Coup. STAT. 71-701
(1945).


[Vol. 23








1955]


NEW WATER RIGHTS LAWS


Prior appropriation in lieu of or in addition to riparian rights.
E t of the western sttesArizona Colorado, Idaho Montana, Nevada,
New M o, h, and Wyon -earlyFrj&ted the riparan doctrine as
unsuited to their climatic and economic conditions.s1' In these ":Oirad
or tes as they are co on d raran r ts never existed.
Inthe other western states, referred to as the ornia




more than a legal fiction in Oregon; has been reduced o relavely
importance in ansas, Nebraska, and Washington;1 and continues to
represent aln ImpUal ii not the paramount principle ot water rights law ,, f?
in ornia, North kota, kloma, South Dakota, an

150. See Pima Farms Co. v. Proctor, 30 Ariz. 96, 245 Pac. 369 (1926);
Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882) Jones v. McIntire, 60 Idaho 338
91 P. 2d 373 (1939); Mettler v. Ames Realty Co., 61 Mont. 152, 201 Pac. 702
(1921); Jones v. Adams, 19 Nev. 78, 6 Pac. 442 (1885); Snow v. Abalo, 18 N.M.
681, 140 Pac. 1044 (1914); Gunnison Irr. Co. v. Gunnison Highland Canal Co.
52 Utah 347, 174 Pac. 852 (1918); Moyer v. Preston, 6 Wyo. 308, 44 Pac. 845
(1896).
151. An early Nvada case, VanSickle v. Haines, 7 Nev. 249 (1872), recognized
the riparian rights docimf but was overruled by Jones v. Adams, supra note 150.
152. See Lux v. Haggi, 69 Cal. 255, 10 Pac. 674 (1886) Clark v. Allaman,
71 Kan. 206, 80 Pac. 571 (1905); State v. Knapp, 167 Kan. 46, 07 P. 2d 440
(1949); Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W.-781 (1903); Bielow v.
Draper, 6 N.D. 152, 69 N.W. 570 (1896); Smith v. Stanolind Oil & Gas Co., 197
Okla. 499, 172 P. 2d 1002 (1946); In Re Hood River, 114 Ore. 112, 227 Pac. 1065
(1924); St. Germain Irrigating Co. v. Hawthorn Ditch Co., 32 S.D. 260, 143 N.W.
124 (1913); Mot v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926); Benton v. Johncox,
17 Wash. 277, 49 Pac. 495 (1897).
153. The appropriation statute of Oregon, upheld by the courts in 'l Re Hood
River, supra note 152, limits vested riparian rights to water actually applied to use
prior to the act or within a reasonable time thereafter with works then under
construction. Oas. Rav. STAT. J539.010 (1953). In addition, a riparian owner cannot
claim both riparian and appropriative rights, the claim of one being treated as a
waiver of the other. Caviness v. LaGrande Irr. Co. 60 Ore. 410, 119 Pac. 731
(1911); In Re Water Rights of Deschutes River and Tributaries, 134 Ore. 623, 286
Pac. 563, 294 Pac. 104.(1930).
154. See iftfrfa .
155. The situa n in California is discussed infra pp.&3Si .
North Dakota and Oklahoma adhere to the riparan righi doctrine but have
had no decisions resolving conflicts between apprprative and riparian rights.
The South Dakota Supreme Court, overrulin earlier decisions, now holds that
the rights of rantees of public lands must be determined by the riparian doctrine.
Platt v. Rapid City, 67 S.D. 245, 291 N.W. 600 (1940). The court also has held
that riparian rights are not affected by an appropriation statute which dedicated all
water within the state to the public and provided for forfeiture for non-use. St.
Germain Irrigating Co. v. Hawthorn Ditch Co. 32 S.D. 260, 143 N.W. 124 (1913).
In Texas riparan riht of tees of .-
ract. i waters

of diversions
SC v. pp., Ors error 3 614,


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826 TENNESSEE LAW REVIEW [Vol. 23

Among the states in the last mentioned group, the California experience
is perhaps the most interesting as wel as themost tgiously extensive.
California adopted the English common law at its legislature's first session
ini .8 iadtii6n to nholig, as already noted,-"' that miners on the
pubic domain might acquire water rights good as between tiemseive
a proportion, the Calfrnia eurs i h a t
lry l riparian rights by occupancy of public land along a stream.158
ii b..m.oowe by recognition of bothappropriative and riparian rights
on lands which had passed from the public domain to private ownership
Yand By a decision, in the leading case of Lux v. Haggin,159 that riparan
land passing into private ownership carried with it water rightiiuperior to
those of later appropnators on the same stream. Subsequent Califo
decisions strengthened the relative position of riparian owners_1holdring teir"
rights superior to- conflict-ingt appropriative rights even where the latter had
beena uiredunaerexpre statute and at a time en e parian ts
were not actually being used; to the extent statutes pro ei rwis ey
were held unconstuunai.-," in caX cI sunai itT
natural How theory of riparian rights paramountcy wucn as so extreme,
as related to the factual situation involved, as to lead to ase
on water rights law and the adotion, in928 of an amendment to the
California constitution establishing the respective rights of riparian owners
an4propriators.1 .
Under the amendment, the riparian right is still the dominant right to
the extent the riparian owner is making or at future time can make,
rason ae and benefcial use of water b reason ble methods of diversion.
A'n y water surp us o su resen anripi use ect to ap-
Spro hion. lnadition, water surplus to present but not o future riarian
ay be approriat on a temor basis until the riparian use actually
S. eventuates. Theiarian right is uhnon-use a wp 6,er
Amayn obt a judicial decree wlich-t at rendered as ntedearierby
the Alabama supreme Court inUlbricht v. Eufaula Water Co'-enjoins
an appropriator irom iejfcieii wire ome riparian rignhj~tia wwner
chooses actually to exercise it. T he a..orma law thus Imuith
150 S.W. xix (1912); Biggs v. Leffingwell, 62 Tex. Civ. App. 665, 132 S.W. 902
(1910).
156. Lux v. Haggin, 69 Cal. 225, 10 Pac. 674, 746 (1886).
157. See note 113 supra.
158. Crandall v. Woods, 8 Cal. 136 (1857).
159. 69 Cal. 255, 10 Pac. 674 (1886).
160. Miller & Lux v. Madera Canal & Irrigation Co., 155 Cal. 59, 99 Pac. 502
(1907, 1909); California Pastoral & A. Co. v. Madera Canal & Irr. Co., 167 Cal. 78,
138 Pac. 718 (1914); Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202
Cal. 56, 259 Pac. 444 (1927).
161. Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 Pac.
607 (1926).
162. CAL. CONST. ART. XIV, 13.
163. 86 Ala. 587, 6 So. 78 (1889).








1955] NEW WATER RIGHTS LAWS 827

right to one of reasonable use, as aains comnin nrarian as well as
riparian users, and permits permanent appropriation of water wichi
toriparis nees au e.puruy apprpnanon water for which riparian
owners may have a future ut not a present use.Jio
(2) Diffused Surface Waters
As in the eastern states, there is little case law in the West relating to
the right to use diffused surface waters.1e6 North Dakota, Oklahoma, and
South Dakota have statutes under which an owner of land has complete
freedom in the use of water standing on or flowing over the surface of his
property but not forming a definite stream.166 Courts of the few other western
states where the matter has been judicially considered appear to adopt a
similar view.167
(3) UndergrounAdStreams
The western states, lke those in the Eat. anply the ae general rules
to underground streams as to surface streams, whether those rules are based
on p'Qr.a wDrtpp atlonor on a emhinAtbn o-f. prinr annp ration. and ri-
parian rights.'68
.... (4) Percolating Ground Waters
Until comparatively recently, use of percolating waters in virtually all
of the western states wasgove iterby e Aercan ru o reasonable
use or the common law rule of absolute ownership.'u Within the past two
decades, however, a number of adopted statutes mak-
ing the d in of rior appropriation applicable to percolating ground
waters. -which continues to deal with percolating waters
through the judicial process, has developed a substantial body of law on the
subject. A recent California Supreme Court decision held that overlying
owners, likeripariain owners in the case of surface streams, have a right to
reasonable useof ground water. Water not needed for the reasonable uses

164. Meridian, Ltd. v. City and County of San Francisco, 13 Cal. 2d 424, 90
P. 2d 537, rehearing denied, 13 Cal. 2d 424, 91 P. 2d 105 (1939); Peabody v. Vallejo,
2 Cal. 2d 351, 40 P. 2d 486 (1935).
165. Liability in damage cases is determined in accordance with the same
general alternative rules which prevail in the East. 56 Am. Jun., Waters, 167-84
(1947).
166. N.D. REV. CoDE 47-0113 (1943); OxLA. STAT., tit. 60, 60 (1941);
S.D. CODE 61.0101 (1939).
167. STATE WATER LAW IN THE DEVELOPMENT OF THE WEST, Op. cit. supra
note 119, App. C, at 118-127.
168. WATER RESOURCES LAW, op. cit. supra note 111, at 159-160.
169. STATE WATER LAW IN THE DEVELOPMENT OF THE WEST, op. cit. supra
note 119, App. C, at 118-127.
170. ARzz. CODE ANN. 75-145 to 75-160 (1939 and Supp. 1951); IDAHO
CODE 42-226 to 42-239 (1948 and Supp. 1953); KAN. GaN. STAT. 82a-701,
82a-707 (1949); Nav. Coum. LAws 17993.10 to 7993.24 (Supp. 1949) OKLA.
STAT., tit. 82, 1001 to 1019 (1941 and Supp. 1949); UTAH CODE ANN. 73-5-10
(1953); WASH. Rzv. CODE J90.44.010 to 90.44.240 (1951); WYO. Coup. STAT.
71-404 to 71-413 (1945 and Supp. 1953).








828 TENNESSEE LAW REVIEW [Vol. 23

of ovrlying owners is considered sulus water available for nonoverlyig


IV. CONSTITUTIONAL QUESTION PRESENTED BY LEGISLATION
DESTROYING UNUSED KIPARIAN RIGHTS
WITHoUT COMPENSATION
The 1952 report to the South Carolina Soil Conservation Commission
reommenucu a uPtioLu uf a system of statutory appropriation, which rec-
iz~esp potyofuse ut EggE*tg ealli ni tsl npanan or-otfer-
wy" ae ya ompnation for limitations placed upon
unused rights."17' The legislation actually proposed, however, would term-
inate unused rights of an owners wiout compensation, while author-
i-mg state grants tooth of approriative rigt water to which the
unused riparian rights formerly attached. The constitutional i"pbriid
by suc iegafonf apparentn' wo ifepres
police power, or would it constitute a taking of private property without
compensation in violation of the Fourteenth Amendment to the Federal
Constitution or of similar state constitutional provisions?
Thiquestion has been presented ineveral "California doctrine"
western states withsarylt T' n'i
(in a 4- decision) and the Circuit Court of Appea orhet
(byf Ztq 1) have held such legislation good;17" the courts of Ca*ifgj iaql d
South Dakota have heldi b ahitda d the Nkor akota and Texacourts have
so interpreted constitutional and statutoryrvisions as to avoid destruction
ot intima tig at to c- ons
othe e would require their Invauation. Ne an wa" s
hai- pk -n6 u-iune- wi- w .. mn the manner in which
they can be legally asserted without totally destroying them or raising any

171. Pasadena v. Alhambra, 33 Cal. 2d 908, 207 P. 2d 17 (1949), cert. denied,
California-Michigan Land & Water Co. v. Pasadena, 339 U.S. 93(T1950).
172. BusBY, THa BzNasncmt Usa or WATER IN SoUTr CAROLINA 37 (1952).
173. In Re Hood River, 114 Ore. 112, 227 Pac. 1065 (1924), writ of error
dismissed, 273 U.S. 647 (1926); California-Oregon Power Co. v. Beaver Portland
Cement Co., 73 F. 2d 555 (C.C.A. 9th, 1934), affd on other grounds, 295 U.S.
142 (1935).
174. Fall Rive VaUov Ir. r t M. Shasta Power Corp.20Cal. 56 259
Pac. 444 (1927); Herminghau v. SouthernUaltrna Mion to, c200 al. 81, 252
Pac. 607, cert. dismissed, 275 U.S. 486 (1927); St. Germain Irrigating Co. v.
Hawthorn Ditch Co., 32 S.D. 260, 143 N.W. 124 (1913). Cf. Gin S. Chow v. Santa
Barbara, 217 Cal. 673 22 P. 2d 5 (1933); Peabody v. Vallejo, 2 Cal. 2d 351, 40
P. 2d 486 (1935); Tulare Irr. Dist. v. Linday StrathmoIrr. Dist., 3 Cal. 2d 489,
45 P. 2d 972 (1935).
175. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570 (1896); Ozark-Mahoning
Co. v. State, 76 N.D 464 37 N.W. 2d 488 (1949); Mud Creek Irr., Agr. & Mfg.
Co. v. Vivian, 74 Tex. 170, 11 S.W. 1078 (1889); Mot v. Boyd 116 Tex. 82, 286
S,W. 458 (1926); Barett v. Metcalfe, 12 Tex. Civ. App. 247 33 S.W. 758, writ of
error denied, 35 S.W. xvii (1896); Freeland v. eltier, 44 S.W. 2d 404 (Tex. Civ.
App., 1931).








NEW WATER RIGHTS LAWS


bstantial constitutional question"17 and in Kaas where the problem has
been most recently presented, the legislation has been upheld, but in a de-
cision which leaves a doubt whether the court may not have so cm-i~s ed
the'statute as u ,.. ll t* ..o ...,d-aild ^Enc a
i i s s u e . . . . .. .. -
"^As p might be expected in connection wi a olcue proc
problem, the opposite results reached by the first two groups of courts men-
tiond above seem largely explainable in terms of the dirent intereta-


tions they put on the purpose and effect of the statute involved and their
differing evaluations of the reasonableness of the means employed by the


U


l5slMlilLUEC IU iMUlVC L" AI..J U


Court of Appeals for the Ninth Circuit, the primary purpose and effect of
the Oregon statute which bothupeld were mo e comm'n_ d
theitastr iai thiW e mificationwould destroy existing water rights orsome
atnd-iffer t permit their transference-to others seemed incidental. I di-
ton e decision ot e u n court which was the first of the two in
k point of time, noted eataroave isa r



111 That-


In Re Willow Creek, 74 Or. 592, 623, 625, 144 Pac. 505, 146 Pac.
475, this court held in effect that the common-law rule as to a ri-
parian owner prevails in this state onl to a limited t- The
recognition by law of the right o- appropriation is of necessity
an infringement or curtailment of the common-law rule as to a
riparian owner.... .The commnA" 1 h gg p *''y anrpt
by statute, it is lain that the common-law ue tn ti "n.
tenuous fow" of a stream, orriparan dtrne- mv Irhnngaw
b statute. except as sh ch ia m te right....
Ftwas withite provmcefo -eLe- y act- f u 9209 ta-
ea vest rg o a ripanan owner, or to establish a rule as
to when an under what condition and to what extent a vested
right should be deemed to be created in a riparian proprietor.178
To the courts of California and South Dakota pt othr d the
? primaryurpti u iv statutes
was to vest existing riparian oihsain'oder to make possiblewhatamo-tII
--'tSio Irrigation & Water Power Co. v. Crews, 70 Neb. 109, 96 N.W.
996 (1903), 70 Neb. 115, 102 N.W. 249 (1905); Cline v. Stock, 71 Neb. 70, 98
N.W. 454 (1904), 71 Neb. 79, 102 N.W. 265 (1905); Brown v. Chase, 125 Wash.
542, 217 Pac. 23 (1923); State v. American Frtut Growers, 135 Wash. 156, 237 Pac.
498 (1925); Proctor v. Sim, 134 Wash. 606, 236 Pac. 114 (1925); In Re Rights to
Use Waters of Sinlahekin Creek, 162 Wash. 635, 299 Pac. 649 (1931).
177. State v. Knapp, 167 Kan. 546, 207 P. 2d 440 (1949).
178. In Re Hood River, 114 Ore. 112, 227 Pac. 1065, 1085-1087 (1924).


i' ; -- -


~I~V~IY~UY Uuull~ r rIlra~ Ir: -~u~U~


1955]
(


h








TENNESSEE LAW REVIEW


to their modification of the common law was
mere a means to m e a ena hts to water tey ,
w esested whetheror o ina 1 lsaturewas at
liberty to terminate p=dm. oddo ~ t eor
compensating the riparian owners.
f i jis inseparably annexed to the soil, not as
an easement nor as an appurtenance, but as a part an parcel of
the land itself. Use does not create it, and disuse cannot destroy
suspend it. .-. Th- t
IwduijL9. T*
able beneficial use of the waters oflwin store r dome
and irrigaton purposes Isa vestea o erty nt and is entted to
proec o e same extent as prope riht


taksg or property tor public use without compensation.1
Nebraska continues to recognize unused riarian rights as property while
permitting their vindication onlv throuhsuits for damages against those
M cn a n-nrannrahe fieghits.O r eAs ult such a o^ative
rimghts abeobtained without prior condemnation of unused riparian
rights or an risk bin enji
teconii against subsege't Jntc'dcNr fsam ripaian ownw-At-the same
time, the riparian owner has isemed and the fact th t Vs reti' to
ast oraananorae ose any ndue vroces ssuez- in
YWEMMHan rights have been judicially defined as extending only
to' watrs actually being used on riparian lands or capable of being so used
within a reasonable time.182
-"" n Kansas, a new water code was adopted in 1945 and upheld by
the state supreme court four years later. The court's~c7 i-oi seems to place
Kansas in the same category as Oregon with respect to the question under
discussion. However, there is language in both the statute and the court's
opinion which seems possibly susceptible of being construed to mean, not
that unused riparian rights have been abrogated without compensation,
but that possessors of such rights can assert them only through suits for
a4 i hide'lfosiujersessive appropriative rights. Shoui l such
a construction prove ultimately to be e one which was actually intended,
Kansas would be classifiable with Nebraska rather than Oregon.18
179. St German Irrigating Coy. Hawthorn Ditch Co., 32 S.D. 260, 143
N.W. 124, 49-97 (191:g IM.
180. See note 176 supra.
181. Compare Hurley v. Kincaid, 285 U.S. 95 (1932) with Lynch v. United
States, 292 U.S. 571 (1934).
182. See note 176 supra.
183. The Kansas statute involved was passed in response to recommendations
of a committee favoring establishment of a system of water rights law based on prior
appropriation "but without depriving the common law [riparian] owner of relief by
proper compensation for limitations placed on unused common-law rights." The
statute as enacted provided that waters within the state might be appropriated subject
to vested rights; that none of its provisions should "impair the vested right of any
person except for nonuse"; and that vested rights should be deemed to include only


titlim Me purview ot a constitutin~lcT\lion p ohbitina~ the


[Vol. 23








NEW WATER RIGHTS LAWS


In the face of such a conflict of judicial opinion, the writers do not
presume to venture any opinion as to the reception likely to be accorded
by the courts of the Tennessee Valley states to legislation providing, "ik .that
proposed in South Carolina, for termination of unused riparian rights with-
out compensation. 5uch legislation does seem to present somewhat more
diffcuti this area than in the West, fecse arn rith havve
attached during a E wn en ~.paropiative rights did not exist,
and second because unused h have already been general rec-
og as cies of vested property.s84 In addition, such judicial pre-
cedents as exist m an ogous stua ns are not favorable.s18 These consid-
ations cannot, however, be regarded as conclusive. It seems possible to say
with assurance only that the constitutional problem is sufficiently serious to
require consideration, along wih other factors in draft any water rights
legislation.

V. So OSSBT. A TI
Selection of one system o water rigts aw taer than another will not
increase the supply o r. ere ere is insufficient water ava e to
meet total demands ction roprtionate or
continuance of existing uses of water and future uses for which construction of
facilities was actually in progress. It also contained a further provision reading:
If any appropriation, or the construction and operation of authorized
diversion works results in an injury to any common-law claimant, such
person shall be entitled to due compensation in a suitable action at law
against the appropriator for damages proved for any property taken. An
appropriator who has acquired a valid right under this statute may prevent,
by injunction, a subsequent diversion of a common-law claimant of private
rights without being required to first condemn possible private rights.
The constitutionality of these statutory provisions was presented to the Kansas
Supreme Court in a quo warrant proceeding with stipulated facts, a list of specified
questions presented for decision, and no actual adversary interests apparently repre-
sented. The court remarked that, based on an approach to the problems presented
from the public interest standpoint: "Unused or unusable [riparian] rights predicated
alone upon theory become of little if any importance." It then went on to say:
"Considering the portions of the statute dealing with details and procedure we find
nothing seriously wrong with them. We have difficulty in seeing that the owner of
land in Kansas riparian to the Republican River has a vested interest in flood waters
of the river impounded in the Harlan dam, eighty miles or more from his property.
If he thinks he has such rights, and they have been damaged by the impounding of
the water in the dam and its use for irrigation in Nebraska and Kansas, the statute
gives him a right to bring a suit for such damages" (State v. Knapp, 167 Kan. 546,
207 P. 2d 440, 445-448 (1949)).
184. See note 24 supra.
185. See Hood v. Murphy, 231 Ala. 408, 165 So. 219 (1936); Birmingham v.
Lake, 243 Ala. 367, 10 So. 2d 24 (1942); Olive v. State, 86 Ala. 88, 5 So. 653
(1889); Murray v. Preston, 106 Ky. 561, 50 S.W. 1095 (1899); Miller v. State, 124
Tenn. 293, 137 S.W. 760 (1911); Allison v. Davidson, 39 S.W. 905 (Tenn. Ch. App.,
1896), affirmed by Tennessee Supreme Court (1897). A.~lm.- ., ".-
of cases has led one writer to conclude: "Thus it would *U6, $a '_
enactment." Agnor, Riparian Rights the outheastern States, 5 S.C.L.Q. 141, 148
(17.37rT)7. Coates, Present and Proposed Legal Control of Water Resources, 1953
Wis. L. Rav. 256, and see in connection therewith State v. Bancroft, 148 Wis. 124,
134 N.W. 330 (1912).


1955]








832- TENNESSEE LAW REVIEW [Vol. 23

otherwise, in the amount available to them, or some must be deprived of
water altogether. The resulting conflict involves not only the equities as
amo com ting users themselves but the public reventmg waste
of water and promoting its most d ,. wells
Itis m ramewor t the merits off Lo so nl e
conflict t m evaluated.
iewedin ese terms, the riparian reasonable use rule and the prior
appro naton doctrine both haeimnportant advantages an drawacs. _he
major advantage of the riparian system is flexibility. Since the social
"unty r any given use is one of the key actorsconsourts im
deiteninl m an ablness, a use wchi soc desable tay a
be accorded preMently pietrred status; new uses may be given recogmuion
Sda a use
is reasonable todmaecomesm e mayye
appriately re t dic decisions. ne these pects, reasonable
use auu t and tendsto romote thfulles beneli of.
l waer" The maior disadvantage of the riparian system is
it affords prosctive investors in water-usm equment,
ig of sedepend on the circumstances involved, is not
always readily determinable in advance, and may be subject to change. A
second disadvantage associated with the system is that non an owners
ordinarily can acquire no 'wter qri F .. .. y prfestsr 'm: but, aserein-
r--tedr n -..is..aae is not inherent and can rLercom
Prior appropriation avoids much of the uin ty rent in the
riparian rights rule. It gives eacha ritorelatie ete as to the
amount of water which wil valable for his use, the extent of such cer-
Stainty depending upon tine parucular appropriator's pace in the pnrionity
schedule. also 3laces- nanty wit paona m'
Sobt access to water. The prce ai or ese s ac on
Sand a poon e and development. ce the
to aUp ,tr.ani mod- ma x &i m,,iM,,! or 'racfica*le
t ,meet newo and ....i ..l..r ^ d'oiltmpracticab ^
-Tlegal system be evolved which preserves e v a
of the-p an rigts an pnor appropriaon sys whilelimnat
their disadvantages? The answer is probaym thenetive, since the two.
186. 4 RESTATEMNT, TORTS4. Ch. 41, topic 3, pp. 345-346 (1939).
SThe Balance of Convenience Doctrine an the Southeastern States, Par-
tf ras Applied to Water, 5 S.C.L.Q. 159, 177 (1952): "Bt one -
tain: fUbility is essential if we are to build a system of wat a w Ita
or. ..a.g-gg y -aso use t -hemy allows tor necessa a son.
187. A qualification u eceearwifr espct to the disadvantage o ability to
use water for nonnparia lands. onrpaan use of water m or a t e
I dedrable. Tt major necessity is to assure use o w-. to ..aohi. h.. if
..4- i Aaflable water can e pu mten e n paan and, there ma be no
|M a5arnpagtng sla are tOf suc water to be used on nonrpaian land,








NEW WATER RIGHTS LAWS


are in some degree antithetical. Certain alternatives do seem avail-
able, howev which may combine in somemeasure e pnncpal avan es

ME-"tined below.188 We advance them with the the Sou Mtjn _ang
of the five necessarily or resents the best final answer to
the problem, but that they may help make clear that the range of possible
choice s conseray an seec an rights on the
one hand and prior appropriation as proposed in South Carolina on the

( Extension of the reasonable use doctrine. The authors of the
Resta tenof the Law of Torts suest that most courts which have adopted
the reasonable use theory of riparian rights have never carried ttat theory
to its logscal conclusions.185 Under the reasonable use rule as th expound
it r inndamentaj right of each riparian pR rtor would t only n
being free from an unreasonable interference by others wtth his use of water.,
Water use By any npan ownerfor either riparian or nonriparian p
would be privileged so long as reasonab in the sense of not interfering wth
reasonable use bv others.'io Th, ,r"',jnr;r-,"' n> ,,w w old be frely
severable from the land and transferable to nonriparians. *-Aid'aGi a ri-
parian proprietor wouai nave tme rgnt only to -U e irosm uaul ke
interference with ins own use of war, he womui nave no ground lor com-
paint unless andndnd e period presc
woul n enora ai n ess an until such injury actually
occurred.191
dnptinn nf thim tihnry wmnil preserve all of the present advantages
of the riparian system and would facilitate use of water on nonriparian land.
It would not of course, provide the certainty associated with rior appro-
priation. Some measure of by oming
propoa with either ot me jawoBmjer^.tiine ,n ) arnd J HjminW.
extension of the power o eminent domain To the extent exist-
ing law prevent use or e, emri y riparian owners who rezquireTIia lete
188. No attempt has been made to deal with problems of administration or the
extent to which responsibility can or should be lodged in the courts, an administrative
agency or both. The range of possible variations in administrative arrangements under
any system of water rights law is great.
189T.4N, To' ", 5. 5"P8 -).
190. In aaamon to providing for use of water on nonnparian land, the
SRestatement would define riparian land broadly to include "a continuous tract or plot
of land in one possession, no part of which is separated from the rest by intervening
land in another possession." 4 RESTATEMENT, TORTS, 843, p. 327 (1939). Cf. note
45 supra.
191. The rule suggested in the Restatement has much in common with the
equitable apportionment principle accepted and applied by the United States Supreme
Court in dealing with conflicting state claims to water. See note 42 supra. It is also
fundamentally similar to the theory espoused by Mr. Samuel C. Wiel, which he terms
the "correlative rights" rule. Wiel, Fifty Years of Water Law, 50 HARv. L. REv. 252
(1936). See also Maloney, The Balance of Convenience Doctrine in the Southeastern
States, Particularly as Applied to Water, 5 S.C.L.Q. 159 (1952).


C


1955)








834 TENNESSEE LAW REVIEW [Vol. 23

degree of certainty than the reasonable use rule provides or by nonriparians,
it may be possible to provide such certainty by permitting them to acquire
rights by eminent domain.192 Some means should be provided to assure
that a propDfeidi con tio y m e public interest. And i
orer to reta flexibility, it might be desirable to limit the rights acquired
to a te=ofyears with provision for ioeihlp etpngion.
(J -remjits fr water u A degree of certainty can be provided
Through negative prohibitions rather than g ts posted rights. AS p
Sviousiy Indicate, North arol has recent ly adopted a statute prohibiting
suStanai withdrawal of water for igaon without first obtaining a
permit.23 buch a permit system should pro users orwaterfor urposes
ot n irrigation. Itmay also provide a bringing a
equitable resutsamong competing irrigators and of givin rmttees some
assurance against issuance of other permits which would impair their invest-
ment while preserving (through appropriate limitation and conditioning of
pets reasi ble fle l194 Other states have empTyedT7X fflar
approach on a broader basis.'g
SM a tem. The dilemma involved in seeking a
reasonable balance between fle3ili to ermit future development in the
puc interest and certainty to encourage present developed, e
public interest, is nowhere better illustrated than in the enc a-
fornia. As previously indicated,196 the particular solution adopted 6by"that
state was a constitutional amendment which recognizes both riparian and
anronriative ihts; preserves riparian rights to the extent they can be
beneficially used at anyTuiitie and puims pue-mannt. appjlupdLlu-
of water which is us an t 2rar2 a ropra ono'
wer w mcn itemporaisurplus to riparian needs. This device preserves
192. This solution raise the consiution al ueti f ,ht .Antin
would be for a puoic useme answertco u de d in large measure on the
leitrsmrsrrespect to the pubcT d
au n t connection, compare MlarN v.
Nad1M;ny 1 ""-U land Bay Mining Co., 200 U.S.
527 (1906) with Alfred Phosphate Co. v. Duck River Phosphate Co., 120 Tenn. 260,
113 S.W. 410 (1907) and see Notes, 9 A.L.R. 583 (1920), 27 A.L.R. 519 (1923),
54 A.L.R. 7 (1928).
193. See note 72 supra.
194. In a speech before the Technical Society of Knoxville on January 10,
1955, Mr. L. J. Strickland, of the University of Tennesse Agricultural Extension
Service, stated that "The growing scarcity [of water] has now created conflicts among
landowners and between farmers and cities." He then cited a number of cases in
which irrigators had dried up streams and thereby reduced or cut off the water
supply available for the City of Athens, a mill in Washington County, and a number
of farmers on the West Harpeth River who required water for livestock. Knoxville
News-Sentinel, January 15, 1955. Such situations do not imply a need for encouraging
additional investment in irrigation equipment in the areas involved, but rather a need
for discouraging over-investment.
195. See MD. CODE ANN., ART. 66C, 666-681 (Flack, 1951); MINN. STAT.
ch. 105, 37-6T(1 49); Wis. STAT. 31.14 (1949). *
196. See supra pp. 30-31. I







NEW WATER RIGHTS LAWS


flexibility hv permitting any future desirable rinarian use. At the same time,
it permits nonriparian use of water and provides some degree"otertlm!y
ifiassuring appropriators a right to a fixed quantity of water to the extent
tha it its s lus to rnpanan needs. Although this solution provides cer-
tainty to a lesser extent than s proved under strict prior appropraton, i
has not prevented Camorma Trom becoming by far the largest water-using
state in the country.197
5') 0 Moaofe prior apro riation. If full study indicates that the
advanr approprlon great as to warrant its adoption,
several modifications nevertheless seem possible in the interests of mmm
the disadvantages associated with the system in its usual form. Three such
modifications seemparticu portant:
(a) The inflexibility associ with rior appropriation is magnified
by the usual adoption of an order of preferences among water uses appacable
uniformly on a ste _i';a b-'I-. -One method of eliminating this difficulty
would hb thmhlgh a n n of the ine fnlnw' in Wainon wMcn per-
mits the superior use to be determined separately in each ,aicar case.i19
Another would be to apply the Drin a


I


(b) The basic argument made for prior appropriation is that a grant
of appropriative rights is necessary to encourage desirable use of water in
the public interest. If this argument is accepted, it seems inconsistent to
grant such rights on an atoeymakm dctor
ti cble shIts to other uses which maY prove more desirable in the future,
if mOrei s -t ngits make possible the uses n roped.
Ssuested that consideration should be given t
the aUnsUon 6o aln lpa i t" f. ury sucient


to amuli e mvun n uy e appropnauL pL j J.
At' te end ot tht perL d, mater could again oe reviewed and the
a p p r ppl tir e e-e ', *If ... .. ... ....M a ... ... .. .. t d -i
not developed.
~ ()""' the interest both of equity and of avoiding constitutional
difficulties, it may be desirable to protect the presently unused rights of
riparian owners. is could be acco!mpi co nd ingor oter-
197. See B llo How Are We MFxedfor Water?, 49oRTUNE 121 (ach 1954).
See also Waldo,'Taluation of California Water Right Law, iu o. AT L. REV. 267
( 198. WASH. REV. CODE 90.04.030 (1951).
199. See note 37 supra. What agency administers the appronative system
becomes particularly important i .. li: Nrth .ri lin c ass es
for ution control purposes. Administration
glalu~i e b h'samn~acc-ih.a~Uannsrlw~ncs


A


VIOO


g-


i


1


1955)


I










Acquiring such rights and chain a"ropriator fee neceary
cover the cost, or, as in Nebraska, giving riparian owners a direct right of
Section against appropriators.00

To suggest that lawyers can sit down today to write the most desirable
water law for the southeastern states seems to us to put last things first.
Before the drafting process begins, some real thought needs to be devoted
to the hard questions which must be answered by others. Is the particular
state prepared to decide at this time the needs of its future economy? Does
tat economy, to theextent that its needs can now be forecast require
ari y increased irrigation increased industrialization, or both? If both,
whIM suld be "v reference where thMr i onI mt
any general answer be given, or will the response depend on such consi-
raons as the land anodrRa
affected theextent to which use for the one purpose will interfere with use
for tMe other, thetype and location of the stream involved, and tme present
and possible uture needs of still other usrs? If these and other simEarW
factors are to be considered before an answer is given, who is to weigh them,
and according to what standards, in reaching a determination.? An when
the udeanlnauon is reached, should t be one seiumg e issue on a

facilitate future cange
',mereiyTuTpomeisuch questions emphasizes the difficulties involved and
the improbability of achieving any completely satisfactory solution. As one
of the best known authorities in the field has stated, "claims of perfection
promise too much as well for one system of water law as for another," and
t choice of a particular doctrine or controlling legal principle "need not signify
an excellence in itself, but only that in this naturally difficult and elusive
subject the evils of this test are less than the evils of its alternative."201
Giving full recognition to the difficulties, the importance of the problem
to the future of eacn state concerned is nevertheless so great as to warrant
utmost eort to ave at the most satiactor ossble answer.
seems most needed at present i ore facts.2n0 Information is necessary con-
cermng e area's supply of 5rT, ground water; the
existing use ana ot compenuon am g c cu usesi fe
ter can be used ecnom y or rr on purposes in e re
extent of the problem represented by nonnpanan land and its possible need
200. See supra p. 34.
201. W l Fifty Years of Water Law, 50 HARv. L. Rzv. 252, 304 (1936). See
also Conkli, Administrative Control of Underground Waters: Physical and Legal
Aspects, 102 TRANSACTIONS AMERICAN SOCIETY OF CIVIL ENGINEERS, 753, 769-770
(1937).
202. A similar point of view has recently been expressed by the Georgia section
of the American Socety of Civil Engineers. See The Atlanta Journal, January 11,
1955.


[Vol. 23


TENNESSEE 1,AW REVIEW








1955] NEW WATER RIGHTS LAWS 837

fe r; probable future needs for different purposes in so far as they can
be forecast; and numerous other matter.
'Whin such facts are available, there will be a solid basis for decisions
as to what water uses and future changes in water uses the state's economic
development is likely uire. And onl when h d
can lawyers hope to wite a ter lw that will best meet these reire-
ments.


L









THE MODEL WORKMEN'S COMPENSATION ACT*
BY ARTHUR LARSON
Under Secretary of Labor
The idea of a model workmen's compensation act has been a dream of
mine for quite a long time. Several times in the past few years I have pub-
licly proposed that the effort be made, but nothing came of it. What brought
the possibility to my mind again and again was the process of writing a book
on every phase of the subject, in the course of which one could not avoid
forming judgments at every point on what were good and what were bad
statutory treatments of particular topics. It seemed obvious that if one
could only identify and consolidate all the good treatments and eliminate
all the bad, one would be a long way toward a model statute.
When I came to Washington, then, you can imagine how pleased I was
when, on my second day in office, Secretary of Labor James P. Mitchell
asked me to form a department committee to study what the Department
of Labor could do to help bring about improvements in workmen's com-
pensation. The committee was immediately formed, consisting of Mr. Paul E.
Gurske and Mr. Bruce A. Greene of the Bureau of Labor Standards, Mr.
William D. Driscoll of the Bureau of Employees' Compensation, Mr.
Frank S. McElroy of the Bureau of Labor Statistics, Mr. Ward E. Boote of
the Solicitor's Office, and myself. The committee went right to work on
the model act matter, and a rough first draft was produced, which we are
now working over section by section. When we get it into a little better
shape, we want to send it around to state administrators, to insurance car-
riers, and to other experts in the field, to get all possible additions, changes,
and criticisms. Ultimately, we hope to reflect in this act the best thought
and experience of the people working in this field. We need a lot of help.
We know our present draft is very crude and full of controversial passages.
But we feel a certain excitement when we realize that we are working on
what is probably the first full-scale attempt at a model act since the original
attempt was made in Chicago in 1910.
The first question that naturally comes to mind is: Why draw a model
Act? What good will it do? Well, there are several answers.
I think the most immediate and direct purpose to be served by such an
Act would be to call to the attention of each state the best statutory provi-
sions that have been worked out by any state. Emerson, at the beginning of
his Essay on Politics, said, "Every law and usage was a man's expedient to
meet a particular case."

*Address delivered at the Sixth Annual Conference of Southern Association of
Workmen's Compensation Administrators, Orlando, Florida, October 28, 1954.


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