Title: Iowa Law Review, Winter 1956 Symposium - Water Use and Control
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Title: Iowa Law Review, Winter 1956 Symposium - Water Use and Control
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Abstract: Richard Hamann's Collections - Iowa Law Review, Winter 1956 Symposium - Water Use and Control
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Full Text

Winter. 1956

Water Use and Control

Foreword John C. O'Byrne

Problems in. Water
Use and Control John F. Timmons

Districts Affepting Water
U'se CanTd roro i ... Robert L. Smith

Governing the Missouri Henry C. Hart

Water Rights in Iowa Eugene Davis

Water-Rights Legislation
in the Eastern States Harold H. Ellis

Bibliography of Legal Periodicals

. -, -. . I

Were The Pilgrims Communists?

During their first two years in America the Pilgrims were
deluded by their London bosses into trying a system of comP
munal living.
It wasn't the Russian brand, of course-that hadn't been
dreamed of. But there was no private ownership of land. No
reward for the industrious.
Everything was everybodys-and at the same time, nobody.
And what happened? Wll-the hard working and capable
were imposed upon by the idle andinefficient.
There were complaints and counter-complaints, bitterness, in-
dolence, and finally open revolt
And so, in the third year, it was decided to try another system.
Each man was assigned his own piece of land and allowed to
enjoy the fruits of his own labor.
The bountiful harvest that year was the start of a more
abundant life for the Pilgrims, based on free enterprise and
individual initiative.
Today, when millions of human beings in other countries have
lost or forsaken these privileges, we at Shepard's salute the
Pilgrims for teaching America more than three hundred years
ago that the other way just won't work.

Shepard's Citations
Colorado Springs

Phlam smad tgw UVIxW when Lindi wift oA*uiuum

-- --- -- -- .i....,.,,,..~_., ...

Iowa Law Review

$4.50 Per Year $2.00 This Issue


FOREWORD - - - John C. O'Byrne 157




WATER RIGHTS IN IOWA - - Eugene Davis 216

IN THE EASTERN STATES - - Harold H. Ellis 237 -



TRADING STAMPS - - --- - - -265


INCOME - - - - - 277

(continued on page viii)

Entered as second-class matter at the post office in Iowa City and Des Moines, Iowa, under
the Act of March 8, 1879.
Published quarterly Fall, Winter, Spring, and Summer. Office of Publication: College of Law,
Iowa City, Iowa.
Copyright 1956 by the State University of Iowa (Iowa Law Review).


~I~C___C_____CI__1 _-_ ------



Administrative Law-Social Security-Meaning of the Term "Employee"
(Irvin v. Hobby, N.D. Iowa 1955) - - - 286

Constitutional Law-Equal Protection of the Laws-Veterans' Exemptions
(Hanley v. State, Ind. 1954) - - - - 290

Constitutional Law-Regulation of Occupations-Licensing of Drive-In
Theaters (Central States Theater Corporation v. Sar, Iowa 1954) - 293

Contracts-Promissory Estoppel-Protection of Aesthetic Interest (Miller
v. Lawlor, Iowa 1954) - - - - 296

Creditors' Bights--Alimony-Right of Personal Representative to Amount
Due at Death of Divorcee (Siver v. Shebetka, Iowa 1954) - 300

Criminal Procedure-Insane Accused-Commitment to the Custody of At-
torney General (Greenwood v. United States, 8th Cir. 1955) - 303

Insurance-Notice-Agent's Refusal to Communicate to Insurer (Western
Mutual Insurance Company v. Wood, Iowa 1955) - - 307

International Law-Immunity of a Foreign Sovereign from Suit-Counter-
claim Not Based on Subject Matter of Sovereign's Suit Allowed (National
City Bank of New York v. The Republci of China, Sup. Ct. 1955) - 310

Water Rights-Surface Waters-Substantial Damage Must Be Shown to
Enjoin Artificial Change in Direction (Yonadi v. Homestead Country Homes,
Inc., N. J. Super. 1955) - - - - 313


The Administration of Criminal Law-Cases and Statutes
By Edwin B. Keedy and Robert E. Knowlton - Joseph Sloane 317

How to Win a Tax Case
By Martin M. Lore - - - Maurice E. Stark 318

Apokrimata: Decisions of Septimius Severns on Legal Matters
Text, Translation, and Historical Analysis by William Linn Westermann.
Legal Commentary by A. Arthur Schiller - Hessel E. Yntema 322

BOOKS RaomvD - - - --- - 324



[Vol. 41

Iowa Law Review


John 0. O'Byrne*

Words like "irrigation" and "prior appropriation" are creeping into
the patois of Iowans. Investments in pipe and pumps are not uncommon.
Farmers try to file appropriative claims for water to the consternation
of bewildered county officials. A homeowner is reluctant to air-condition
because the machine uses water. The Iowa Legislature establishes a
Water Study Committee. The Iowa Natural Resources Council reports
50 active permits for dams or pumps and wonders how many unpermitted
ones exist. The Izaak Walton League worries about falling water levels
and increased use of water. An agronomist warns that water is the
limiting factor in further development of crop yields. Chambers of
Commerce promoting industrial locations are asked for guarantees of
water supply. Landlords disclaim any warranty of adequate water by
provisions in their leases. A Missouri Senator tries to reconcile the
conflicts of federal agencies and state governments in the Missouri basin.
The list could continue indefinitely. Each instance is, perhaps, minor
in itself; yet each is a small bit of evidence that is accumulating into
full-scale recognition that water is a matter of concern. As Professor
John F. Timmons says, we have taken our water for granted, treating
it like air and sunlight as an unlimited Providential gift. Perhaps we
are ready to recognize that water, like land, is a limited resource and
that problems of water use and control must be faced at every level,
individual, district, state, regional and federal.
We are becoming concerned with something more than the old familiar
drainage and flood control-getting rid of water or fighting the common
enemy. The emphasis has shifted to use, control, storage, supply, dis-
tribution and conservation. Where to, now?
Hope for the solution of complex problems can come only from the
contributions of those skilled in different disciplines. But these contri-
butions have little meaning unless they are intelligible to and usable by
all of the respective contributors to the sum total of our knowledge. Here,
then, is an outstanding effort to bring together the thinking and the ideas
of men concerned with problems of water use and control. Each one is a
*Associate Professor of Law, State University of Iowa.

~-T----I -. --~.--~F---~*---l-c*rrr


man of substance in his own field. Each recognizes his responsibility to
convey and interpret the learning of his own profession to others who
must also be concerned with water. These men provide an unusually rich
background and breadth of understanding plus the ability to leave the
confines of their chosen fields to discuss problems of moment with their
colleagues of other professions. Cumulatively, they represent the agri-
cultural economist, the engineer, the political scientist, the lawyer-econo-
mist and the lawyer's lawyer. They encompass in their professional
capacities the private practitioner, the public servant-both federal and
state, the professor, and the consultant. All seek to give light, and per-
haps fire, to our understanding of the need for concerted research and
action. It may be that they will also generate the necessary steam in the
rest of us to face our water difficulties. We are not yet thirsty; we are
not yet fighting among ourselves over water use. There is still a period
that may be devoted to mature study of the entire problem. Research and
study of a matter so vital cannot be guided by partisan or vested inter-
ests, no matter how justifiable the interests may be. Independent,
unbiased research into Iowa water rights can be guaranteed if the work
starts before the interests are aligned and ,before our emotional bias
clouds our judgment.
Some of the research and thinking already underway is discussed in
this Symposium. Professor Timmons directs his attention to the critical
problems of water and their effect upon lawyers, farmers, researchers,
legislators, administrators and others. He raises the problems in a set-
ting of practical realism, considers some of the facts we have yet to
unearth, and suggests some of the difficulties-factual, legal, economic,
personal-that will be encountered. His colleagues examine the facts
and law of narrower segments of the water picture in greater detail, and
from varying points of vantage. Mr. Eugene Davis, as a lawyer, reviews
that basic Iowa water law against which any future recommendations
must be cast. Mr. Robert Smith, the Director of the Iowa Natural Re-
sources Council and an engineer, assesses the use of the district as a tool
to further water use and control. Mr. Harold Ellis, trained in both law
and economics and presently engaged in a study of water rights in the
Eastern States for the United States Department of Agriculture, ap-
proaches the problem from the point of view of state action, particularly
with respect to the enactment of Water Codes. Professor Henry Hart, a
political scientist from the University of Wisconsin, points up the enor-
mous complexity of the regional approach in his discussion of the Mis-
souri basin. His lucid command of facts, history and practical operation
offers a striking backdrop to his analysis of the future of the basin
As you read this Symposium issue, you will probably meet unfamiliar

[Vol. 41

words-words like "water control district", "watershed district", "in-
stitutional dimensions", "Public Law 556", "cost-benefit ratios", "off-site
benefits", "flood plain zoning", "basin account", hydrologicc cycle", "acre
inches", "ex-ante", "ex-post", and others. These are new words to many
of us concerned with the law, but they are words of growing import. These
are the word-tools of other professions, words developed and cloaked
with meaning by men trained in other and different disciplines. Yet, we
must learn to understand them and to be able to use them with facility in
dealing with the practitioners of other professions, as they indeed must
learn and understand the terminology of law if they are to discuss water
problems with us.
Through all of these papers l rig thay r y -nll fi& twe
recurring po2mt irt thwr in th. ..fi m nnplmna that__amaait
wATFr aws are inadequate for modern conditions. Second their is a
for adequate research upon e -combined efforts of eo
fiecm all of the related el. ere is anger at the latter may be
ignorea i LL. il ur egiaLv action, yet only a broad program
of detailed research can provide all of the facts required for the complex
task of drafting such legislation.
Lawyers, city and farm, will have substantial influence upon the
development of a sound water policy, not only as they affect legislative
decisions or try law suits, but primarily as they advise clients concerned
with water and as they assume leadership in group or community efforts
to discuss and understand local matters of watershed organization, use
of streams, rights in underground waters, irrigation, supply, sanitation
and so on. Our success or failure in handling wisely our water resources
will owe much to the activities of the practicing lawyer. Recognizing
this fact of life and law, the Editors of the Law Review have used their
Symposium to relate the overall problems of water use and control to
the current needs and future prospects of the private client.

P-------- ----------1-7---------I----R. ~



John F. Timmonst

The major purpose of this article is to provide ideas and information
relevant to the identification and diagnosis of current and emerging prob-
lems of water use and control. A correlative purpose is to stimulate
thought and discussion prerequisite to formulating preventative and
remedial measures dealing with water use and control problems.
These purposes are pursued through brief inquiries into (1) the nature
of increasing demands for and supplies of water, (2) a framework for
identifying and analyzing water problems, (3) objectives of water uses,
(4) conflicts among competing uses and uncertainties relative to water
rights, and (5) some elements of remedial action.
Water is absolutely necessary for human existence. This is a widely
recognized but little appreciated fact. Because of the seemingly unlim-
ited water supplies, people have devoted far less attention and effort to
the provision of water than to the provision of food and fiber. Yet,
people can survive for weeks without food and fiber but for only a few
days without water. Further, water is essential for the growth of plants
and animals that provide us with food and fiber. Beyond the mere
maintenance of life, water is necessary for many forms of recreation,
power, transportation, sewage disposal, manufactured goods and services.
Until recently, people in the humid one-half of the United States have
taken their water supplies for granted with air and sunlight as unlimited
gifts of nature. However, in recent years, aggravated by moisture defi-
ciencies and emphasized by growing demands on limited water supplies,
people residing in the humid as well as the arid parts of the nation are
becoming increasingly concerned about their water supplies. People
throughout the entire nation are gradually realizing that water can be
a scarce resource and that steps must be taken to determine rights of
control and privileges of use. During the last biennium, a dozen states
have set up study committees to report upon recommendations for action
on water problems.1 Within the last quinquennium, four Presidential
Commissions have dealt extensively with water resource problems from
national and regional viewpoints.2
Water deficiencies in Western and Southern Iowa and other areas
throughout the Midwest the past three years have re-emphasized the
t Professor of Economics, Iowa State College, Ames, Iowa.
1 Included are Iowa, Wisconsin, Virginia, Kentucky, North and South Carolina,
Florida, New York, Arkansas, Illinois, Louisiana and Georgia.
2 The President's Water Resources Policy Commission, The President's Materials
Policy Commission, The President's Missouri Basin Survey Commission and Commis-
sion on Organization of the Executive Branch of the Government.

I I I I I I I ii llKl

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importance of water to our farms and cities. Cities have had to resort
to more costly means of procuring adequate water for their citizens.
Farmers have been digging deeper wells, constructing ponds and hauling
water to meet their domestic and livestock needs. Many farmers have
started to use or have contemplated using water from streams to irrigate
their crops. In 1954, 139 Iowa farmers reported that they were using
water to irrigate their crops.O Industries are becoming increasingly con-
cerned with the availability of water as a major factor in locating and
expanding plants.
Increasing demands upon available water supplies are unmistakable.
These demands are growing at an increasing rate stemming from both
(1) our rapidly growing population (increasing 11/2 percent per annum)
as well as (2) our increasing per capital consumption (which is twice
as rapid as our rate of population growth). Water problems are aggra-
vated periodically by rainfall deficiencies. These periodic aggravations
merely emphasize; they do not explain the water problems before us.
The fundamental character of water problems lies in the increasing de-
mands as we shall see later.
So far, we have been introducing the "beneficial uses" of water. But
there is another side to water problems: the "detrimental effects."
Water can be a burden as well as a benefit. The detrimental effects
of water are characterized by flooding, pollution, improper drainage and
soil erosion. Thus, water problems are complex and multifaceted. Peo-
ple may experience too much as well as too little water in the same com-
munity within a relatively short time span. The problems of water
control embrace both beneficial uses and detrimental effects. The recent
President's Water Resource Policy Commission lists thirteen elements
of water resources including: drainage, irrigation, hydro-electric power,
municipal and industrial water supply, flood control, navigation, pollu-
tion abatement, recreation, fish and wild life, watershed management,
salinity control, insect control and sediment control.4
There are numerous interrelationships between these several elements
in problems of water use and control. One article cannot possibly cover
the range of all these elements. Consequently, this article is limited to
some of the more pressing problems of water use and control associated
with the beneficial uses which are rapidly becoming critical in light of
the increasing demands for water.

(Iowa, August 1955).
ASaIaoN PEOPLr, vol. I, at 47-48 (1950).


162 IOWA LAW REVIEW [Vol. 41

Water problems as interpreted herein are defined in terms of con-
flicts, confusions and uncertainties regarding future courses of action
in the use of water.5 To the practicing lawyer, these conflicts become
obvious since they are brought to him by the parties in conflict. To the
social science researcher, however, these problems may be vague, inar-
ticulate and obscure but none the less real. The crux of water problems,
as defined for inquiry, lies in the choice-making process. People as
private individuals, private groups, legislators, administrators, educa-
tors, and acting in other public and private roles, are confronted with
problems of making choices between alternative courses of action. Some
of the conflicts, confusions and uncertainties regarding future courses
of action, stem from insufficient knowledge of and uncertainties asso-
ciated with expected consequences of particular alternative courses of
action. Others stem from expected consequences being in conflict with
desired results.
Thus, water problems as interpreted herein are essentially ex ante in
nature. Ez post aspects of water problems are considered relevant only
insofar as they aid in the understanding of problems and probable con-
sequences of different courses of action.
The function of problem-solving inquiry is to provide ideas and facts
useful to private and public individuals and groups (1) in resolving
conflicts, (2) in bringing order out of confusion, and (3) in removing
uncertainties associated with future courses of action and (4) in devis-
ing means for bringing about desired consequences.
The norms sought by people in making decisions on the use of water
include production, distribution and stability elements. The production
norm is concerned with obtaining the maximum of goods and services
in terms of effort expended from both public and private viewpoints.
The distribution norm is concerned with the distribution of costs and
benefits in the production process. The stability norm is concerned with
providing a continuing flow of goods and services in an orderly manner.
To be used in the production process, water must be possessed. The
nature of this possession (defined by law) determines the share of the
benefits and costs received and borne by the possessor(s). These ex-
pected benefits and costs, in turn, motivate the user(s) of water to fol-
low certain practices which may be in conflict with the productive and
stability norms.

SThis concept of problems for legal-economic interdisciplinary research purposes
has been developed further in Timmons, Integration of Law and EconomOi in An-
alysing Agricultral Land Use Problems, 37 J. FARM EcoN. (Proceedings Issue 1955).


The report of the President's Water Resources Policy Commission
concludes that "we must admit that we do not even know how much
we use, to say nothing of how much we have to use."6 Estimates of
water use in this nation run as high as 265 billion gallons daily. Of
this amount, approximately 240 billion gallons come from surface
water7 and 25 billion gallons from ground water.8
Current uses of surface water are estimated to include around one-
fifth of the total run-off of our streams and rivers. I have not been
able to find similar estimates for ground water supplies. Considerable
proportions of water in current uses are available for further use and
most of the surface water and an undetermined amount of ground water
is renewed each year and hence becomes a renewable resource.
Availability of water is becoming an increasingly important factor in
the location of industries and in the expansion of agricultural produc-
tion in the subhumid as well as the semiarid areas. The President's
Water Resources Policy Commission takes the position that:

While use is increasing and there are areas of deficient water
supply for present and future needs, the overall situation re-
veals an adequate available supply for the Nation's needs.9
This statement may lead to serious misinterpretations since it appar-
ently refers only to the physical supply of water while the economic
and institutional supplies become more important in water resource
development policy. Therefore, it is necessary to inquire further into
the nature of water resources and the framework within which develop-
ment occurs.
Natural resources, including water, may be regarded as a function of
man's knowledge. Through increasing knowledge of his natural envi-
ronment, man is continually adjusting himself as well as continually
transforming the resources with which he comes in contact, in satisfying
his wants.1' At any given stage of knowledge, a wide range of physical

AMxzaIAN PEOPLE, vol. I, at 120 (1950).
7 Surface water use estimates in billions of gallons per day break down into the
following uses: irrigation 80; power generation, up to 50; industry, up to 100; public
water systems 9; rural use exclusive of irrigation, 1. Id. at 121.
8 Ground water use estimates in billions of gallons per day include: irrigation 15;
industrial 5; municipal 3; rural, exclusive of irrigation, 2. Id. at 120-121.
9 Id. at 121.
10 A similar view of natural resources is developed in Long, Freedom and 8eowrity
as Policy Objectives, 35 J. FARM EcoO. 317 (1953).



possibilities presents itself from which man may choose particular or a
combination of particular physical possibilities.
This range of physical possibilities undergoes continuous expansion
through technological discoveries and inventions. Man's choice of par-
ticular physical possibilities is motivated by his wants and achievement
of particular want satisfactions. At any particular time, man's choice
of particular physical possibilities as means toward achieving want sat-
isfactions is limited by rules of conduct between men governing their
behavior in resource use. These rules of conduct sometimes character-
ized as "institutions" either inhibit or facilitate both the choice of
means and the implementation of means for satisfying human wants.
According to a recent study, around 180 billions of gallons of water
are being withdrawn daily from the ground lakes and streams for use
on our farms, in municipalities, and business and industrial establish-
ments of the United States." In addition, over one billion gallons per
day pass through hydropower plants.
Of the 180 billion gallons of "withdrawn" water, 17 billion gallons
were used by cities and rural communities, 83 billion gallons in indus-
try and 80 billion gallons in irrigation.
Of this amount, about one-sixth was pumped from ground-water
sources. The remainder came from surface sources including rivers,
lakes and reservoirs.
Consumers of water in the nation's 14 largest cities paid 5 cents per
ton (or $60 per acre foot) for water delivered to them. The cost ranged
from $26 to $148 per acre foot.
Assuming that the U.S. population will reach 221 million people by
1975 (the U.S. Bureau of the Census estimate), the municipal water
consumption will increase about 4.5 percent per year. Over the next
25 years, the total estimated increase of domestic and industrial uses
of water will be around 145 percent. This increase represents addi-
tional demands of 145 New York Cities. Or, from another viewpoint, it
would require the total flow of 11 Colorado Rivers.
In water requirement studies conducted in Central Ohio during the
1940's, the water requirements varied from 334-586 pounds of water to
produce a pound of corn, to 660-762 pounds of water to produce a
pound of wheat, to 784-1550 pounds of water to produce a pound of
hay on second year meadow.12 Uses of water for supplemental irrigation
in the humid states is increasing rapidly. In Iowa, the number of

LYBIMmar~ 79 (U.S. Dep't of Agric. Tech. Bull. No. 1050, 1951).



farmers using crop irrigation increased from 76 to 139 from 1949 to
1954. In other Midwestern states the number of farmers reporting irri-
gation in 1954 were as follows-Illinois 273, Minnesota 348, and Wis-
consin 545.13 In 16 humid states, irrigation on farms has increased
almost 300 percent between 1949 and 1954-from 4,161 to 12,083 farms

If we define land as "space and situation," water is a land resource
just as is the sunshine, temperature, soil,,minerals, location and other
qualitative factors providing the valued character of a particular unit
of land. Unlike other land resources, water is a migratory resource both
in respect to (1) its occurrence and (2) its movement at any point of
occurrence. The nature of the hydrologicc cycle"'1 is necessary in
understanding the occurrence and movement of water. Thus, if we
begin with water at any point in this cycle and follow its movement,
eventually we return to the point where we started. Beginning with
atmospheric moisture, which is the major source of water in Iowa, con-
siderable variation is found in the amount and manner in which this
atmospheric moisture comes to us as a land resource. It comes (falls)
in the form of rain, snow, sleet, hail and dew. The amount of this
"waterfall" (or moisturefall) also varies in quantity and intensity from
year to year, season to season, month to month and even day to day.
Over the last 50 years, the waterfall in Iowa has averaged from 34 inches
in Southeastern Iowa to 28 inches in Northwestern Iowa.
This "inches" unit of measuring waterfall is defined as the amount of
water that would accumulate on a particular area of land if all of it
had remained where it fell over the year. However, an appreciable
proportion of this waterfall, around 25 percent, migrates because of
gravity over or through land in the form of streamflow. Streamflow
varies from as little as eight inches in level North Central Iowa to as
much as fourteen inches in the hilly parts of Northeastern and West-
ern Iowa. The amount of "runoff" is influenced by the topography of
the landscape, the permeability of the surface on which it falls, restric-
tions to flow (i.e., dams and terraces) and rapidity of "fall."
A considerable proportion of the moisture permeates into the soil and
part of this amount migrates under the surface of the landscape into

(Iowa, Illinois, Minnesota, Wisconsin, August 1955).
14 Id. for the 16 states involved.
15 See Cooke, Plain Talk about a Missouri Valley Authority, 32 IOWA L. REV. 365,
374 (1947) (diagram).


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'I_______________________i n m --------------- -

166 IOWA LAW REVIEW [Vol. 41

streams. Around 50 percent of the surface streamflow arises in this
Another part of the moisturefall "flies off" into the atmosphere from
whence it came; however, a larger part soaks into the soil which pro-
vides storage for as much as 16 to 24 inches of the annual moisturefall.
Some of this moisture, as much as 8 to 12 inches per year, subsequently
returns to the atmosphere through evaporation directly or indirectly
through transpiration. About one-half of the moisture which is retained
in the soil, however, is available for use by crops.
Thus, moisturefall begins in the atmosphere suprasurface of land, falls
to the surface of land, migrates laterally and vertically on and through
the surface and subsurface and eventually returns to the suprasurface
to rebuild the cycle. Moisture is under the control or potential control
of man while migrating on or through only the surface and subsurface
phases of the cycle.16 Moisture may be stored (or trapped) on the sur-
face or in the subsurface. Surface storage includes ponds, reservoirs
and lakes, both natural and man-made. Moisture may be stored in the
subsurface through natural sandstones and gravelly deposits or through
practices such as terracing, contour tillage, vegetative cover and in-
creased humus content of near-surface.
Much of our subsurface water supply is obtained from the great
sandstones varying from several hundred to several thousand feet be-
neath the surface. These sandstone strata come to the surface in North-
ern Iowa and Southern Minnesota where water is induced. This
"induced" water is transmitted slowly through the permeable sand-
stones which deepen as they stretch southward providing water reser-
voirs for wells throughout most of the northern and central parts of
the State.
In Northern Iowa, the rock layers are overlain by glacial deposits of
sand, gravel and earth. These deposits vary up to several hundred feet
in depth and frequently contain shallow sand and gravelly layers that
also store and transmit water and provide sources for more shallow
The reduced rainfall the, past several years, ranging from one-half to
two-thirds normal, has reduced the recharge of water in the shallow sand
and gravelly formations. As a result, numerous shallow wells in the
southern parts of the State have gone dry during critical summer pe-
riods. Likewise, reduced moisturefall has led to soil moisture deficien-
cies and reduced the water supplies in ponds, streams, reservoirs and
16 This statement may be revised by future developments in cloud seeding and re-
lated man-made measures for inducing moisture fall.



Certain fundamental characteristics of our water supply affecting its
use become obvious. First, water is a migratory resource in the surface,
subsurface and suprasurface phases of its occurrence. This means that
water moves across property lines. This also -means that the use of
water at one point in space affects the amount and quality of water
available for uses at other points. Second, water is largely a self-renew-
able resource to the degree of annual moisturefall. The portion that is
unused proceeds through the hydrologic cycle. Third, subsurface or
surface reservoirs of trapped water provide a fund resource which- may
be depleted or maintained depending upon the rate of drain similar to
other fund resources. Fourth, unused water may be stored through
structural and cultural impediments. These characteristics are physi1
cal in nature. Their consideration in water use and control depends
upon the economic and institutional characteristics.

The use and control of water resources embrace three intertwined
dimensions-the physical, the economic and the institutional-forming a
unified framework within which water resources are developed. Water
resource development policy and practice derives its basic elements from
each dimension in an integrated manner.
The physical dimension discussed in the previous section indicates
the range and limits of physical possibilities in terms of water sources,
supplies and uses. The range of physical possibilities is enlarged by
technological discoveries and inventions but it is not influenced by
prices and institutions. Obviously, the physical framework is necessary
but not sufficient to work out the basic elements of water resource devel-
opment policy.
In order to discover how to maximize want satisfactions, it is necessary
to proceed to the economic dimension. The range of economic feasibility
is enlarged by technological improvements and it changes with prices
and costs and with advantages and disadvantages, reflecting qualitative
as well as quantitative changing consumer wants for goods and services.
Obviously, the economic dimension is necessary but not sufficient in
working out the basic features of water development policy. The range
of economic feasibility is contingent upon both what is physically pos-
sible and what is institutionally permissible.
Thus, it is the institutional dimension which points out whether or not
it is institutionally permissible to put into effect measures which meet
both the physical and economic tests. The institutional dimension;
made up of laws, customs, organizations and other group controls of
human behavior, at any particular time and place may either inhibit

_______1 ____~1__1~_ ____ ~_~_



or facilitate the development of water resources in terms of what is
economic and what is physically possible. However, since other parts
of this Symposium deal exclusively with institutional arrangements in
water resource development, this dimension will not be further devel-
oped here. In analyzing policy aspects of water resource development,
we must, however, recognize clearly the interrelationships of physical and
institutional as well as the economic dimension.

Any public policy, including itsp i em Pj oentg.rgrams makes three
basic assumptions gnthat invite arn e t dly JFirst ,to develop water
reQ eif it results in cp eqenes diffeennt than the status quo, any
policy assumes that the present level or type of water resource develop-

bho reason for seeking different consequences. Second, any particu-
lar policy assumes its resulting benefits or a nta east
equt"L &dvanta estof uttiny into
O~~Trwe 1 icy could not be justified. Thirhe poimust
result in greater net relative benefits and advantage taer
kn-cnswnctieorwise, its adoption results in an opportunity
cost equal to the difference between the policy adopted and the alterna-
tive policy with the greatest net benefits and advantages.
The testing of these particular assumptions and their implications in
both an ex-post and ex-ante framework poses the core of research in
water resources development policy.
SThis research may be approached in three closely related steps: (1)
demitation of the oblem (2) d n ofthe problem, and (3)
* First, t"e itft should be delimited in terms of a gap character-
ized by uncertainty and contusion, between particular goals (ends or
objectives) and mte present situation (includmig ex-ante) with respect
to tnose goas. In the process o testingte l" elrmiting hpothe~s.ea,-
suits may not reveal a problem. Therefore, there is no basis for fur-
ther inquiry assuming the delimitiXg~hypotheses are both relevant and
exhaustive of problematic possibilities. Or, the results may reveal a
problem characterized as a gap between the present situation and the
goal to be achieved. In this event, the inquiry moves into the diagnos-
tic phase of investigation.
Second, after the problematic ga. beteenlth&goals, and present situ-
ation has been determined, attention turns to the reasons why the gap
exist and reasons h the gap is no larger. This is the diagnostic step
an is concerned with fndindg tihe eiemets of success as well as the


[Vol. 41


elements of failure, within the problematic zone previously delimited.
Elements of failure give rise to the problematic gap and present the
need for a solution. Elements of success either actual or potential (in
ex ante as well as ex post sense) prevent the problematic gap from being
larger or more serious than it is and constitute the foundations from
which remedial measures may be developed and discovered.
Third, after the diagnosis of the problematic area reveals (1) failure
elements which are to be overcome and (2 success elements to be ex-
pandi, re dt1Tffieasures may be formulated as hypotheses for closing
the ga -or-for-moving nearer the goal. Hence, the goa! serves as a
criTerino-n r tesTt-ngaTfeiiiative remedies in.this inatane,~,whareaa 2in
the'6eTtifiitiig step the same goal ser.e4 ta delimithbe problem atie area.
Obviously, the same goal used to delimit the problem must be used to
testvariuus remedial alternatives, if the consequences of both present
and remeial siTuafion(iniiTianarnesense) -e- are tod.

Proceeding wior inquiry, a first and essential step
is the formulation of water resource goals in an operationally applicable
manner for the two-fold purpose of (1) testing problem delimiting
hypotheses and (2) testing hypothetical remedial alternatives.
Consistent with national policy, and as stated in numerous reports
and legislative enactments, the three following goals previously sug-
gested may be restated: (1) optimum level of goods and services over
time and achievement of these goods aniiservices by using the lea-etost
approach, 2) i) su ring a stable and contiilnuous low-of fThe jth ic ed xl
of goods and services ove'r-fTii ean T sS the costs among
purposes and beneficiaries, both public and privateae T Iiei-
dence of lbeneits-(i '"idistriuling cbB-s, aid compensations among
res-inTZe biitors according to productivity of resources contributed
both intra- and inter-temporally). For example, the President's Mate-
rials Policy Commission reports summarize these goals as follows:

The over-all objective of a national materials policy for the
United States should be to insure an adequate and dependable
flow of materials at the lowest cost consistent with national
security. .... 17
In abbreviated form, these thee goals will be termed the maximiza-
tion, stability, and distribuon goals, respectively, and will be used sub-
sequently n this article to develop examples of problems.

3 (1952).



.70 IOWA LAW REVIEW [Vol. 41

Attention now turns to the task of outlining some of the major prob-
lem areas for further study. The problems in this discussion in-
clude: determining optimum level of production, selecting alternative
means of achieving the production optimum, benefit cost problems, allo-
cation of costs and benefits, integrating physical and economic research
and integrating planning at a national level.
No exhaustive treatment is attempted of any of these problem areas.
Instead, the general outline of each problem is provided, a few examples
illustrative of specific difficulties are given, and the direction that future
research might well take is indicated.
Since water resource development is interpreted as meaning increas-
ing the flow of goods and services derived from water under minimum
cost conditions, initial analysis faces the problem of determining the
present, future and contingent demands for such goods and services.
As a first approximation, do present and potential demand conditions
indicate increased needs at particular prices for the power, agricultural
products, recreation, flood control, industry and navigation that will
come from water resource development? Currently, the Reclamation
Service is authorized to invest billions of dollars of public funds in
the irrigation of Western agricultural lands which will bring into the
market more of the same products that another agency, the Agricul-
tural Stabilization and Conservation Administration, is spending bil-
lions of dollars to take off the market. There may be economic justifi-
cation for increasing agricultural production of products that are piling
up in warehouses and storage bins, but current programs have not been
subjected to the tests that would reveal such justifications.
Referring to the agricultural sector again, there is ample evidence
that current demands are being satisfied with products to spare. Look-
ing to the future, the President's Materials Policies Commission has
drawn on two independent studies which estimate the gain in agricul-
tural productivity over the next 25 years at 200 and 85 percent, respec-
tively. The Commission concludes:
The two independent studies leave no doubt that modern agri-
cultural technology, if widely applied, can increase production
to a point well above the probable levels of demand."s
However, the Commission points out that although the increase in agri-
cultural production of from three to eight percent annually is physi-
cally and economically possible, there is little likelihood of an increase
greater than one percent per year over the next quarter century mate-
rializing because of institutional limitations.19 This compares with
18 Iii. at 46.
19 Id. at 47.



increases of 0.75 percent annually from 1919 to 1939 and 2.75 percent
annually'from 1939 to 1949.
This expected actual increase of one percent per year is not sufficient
to meet the growing demands of our population which increases one and
one-half percent each year. An important consideration that becomes
covered up in aggregative demand and supply estimates is that over
the next 25 years an estimated 15 million acres of agricultural land
will be shifted to industrial, residential, transportation (roads and air-
ports) and recreational uses and an additional 40 million acres of crop-
land subject to severe erosion hazards will probably be shifted to non-
crop uses.
Contingent demands embrace such imponderables as protracted
droughts and the feeding of hungry Asians. Two decades ago, no one
clearly visualized the needs for power to serve the war industry of the
1940's, yet Bonneville power enabled the Northwest to assume a strate-
gic role in the war effort and the prosperity which follows. Potential
scarcities are much more serious than today's surpluses even though
Americans are coming to regard surpluses as plagues which, we might
add, is extremely difficult for about two-thirds of the world's people to
understand or appreciate.
The important point is that the assumptions including price and cost
elasticities behind needs for water resource development must be clearly
stated so that the citizens and their representatives in legislative and
administrative positions may make policy decisions in light of ordinal
ratings assigned to the assumptions.

The most difficult problem of water resources development is
the balancing of the interests, demands, responsibilities of indi-
viduals, local groups, States, and the Federal Government.2
In these words, the Hoover Commission poses one of the fundamental
problems of water use and control. This problem encompasses (1) con-
flicts among users within the same use, (2) conflicts between competing
uses including the users involved and (3) conflicts between controlling
units of government.
Let us look further into the nature of these conflicts. As long as water
is abundant these conflicts do not arise since everyone has sufficient
amounts for his needs. However, as water becomes scarce, competition
Arises for its use and control. Conflicts among users within the same use
constitute one manifestation of this competition. For example, two farm-

172 IOWA LAW REVIEW [Vol. 41

ers are competing for a limited amount of water from a stream which
contains only enough water to meet the needs of one farmer. Another
manifestation of this competition for water use and control arises in con-
flicts between competing uses. For example, farmers may be using water
for irrigation purposes from a stream that serves as a water supply for
a downstream city. Also, a manufacturing plant is polluting a stream
used for waste removal which kills the fish therein. Or, the use of under-
ground water for air conditioning depletes the underground water supply
upon which the city depends for human consumption. These and many
other kinds of conflicts arise when water becomes scarce.
Conflicts also arise among controlling units of government. The con-
flicts between Colorado and Kansas arising from the different doctrines
of water rights in the two states have emphasized this type of competi-
tion. No doubt, similar conflicts will continue to arise where water
migrates between states through surface and subsurface channels and
where the states subscribe to different concepts of water use rights.
Let us look into some of the means whereby such conflicts may be min-
imized or avoided.
Investment of public funds in water resources has important implica-
tions for citizens as taxpayers and as consumers. Citizens are interested
that funds which they contribute are used in a manner that has a maxi-
mum potential of want-satisfying consequences in relation to all available
alternatives. Stating this another way, citizens are interested in these
want-satisfying consequences of products and services coming available
at the least cost and least loss of other products and services from which
productive resources are transferred (assuming full employment condi-
As Dr. Whittaker has pointed out, the use of resources for constructing
an irrigation dam must be evaluated in terms of relative benefits from the
same resources if put to another use-say a school or a St. Lawrence
Waterway for improved navigation.22 The dam can be justified only if
the resulting benefits are greater than benefits from the school or canal
when the amount of resources used is held constant.
Assume that within a particular purpose, say agricultural production,
a given amount of funds are available. Would these funds yield a greater
net value product from irrigating Western lands, draining Louisiana
swamps, fertilizing the Piedmont of the Southeast, clearing the Arkansas
21 The same principle holds under less than full employment conditions but factor
costs are materially changed as pointed out by Whittaker, The Theory of the Bela-
tionship of Eesource Development to Economic Development, P IocEmDNGS OF THE
NoMICS RESEA CH COUNCIL 18 (Berkeley, California, March 2-3, 1953).
22 Id. at 19.


Delta or terracing Iowa's Ida-Monona soils? Reliable answers to these
kinds of questions are not available since the hypotheses yielding such
answers have not been adequately formulated and tested. Until these
kinds of answers are provided, water resource development policy ques-
tions appear destined to be decided by legislative action based on pres-
sures rather than on facts. Dr. Ulrich's provocative study of relative
costs and benefits from funds invested in the semiarid West and the
humid Southeast is a specific example of the type of research needed to
appraise alternatives within the agricultural industry.23
Similar problems exist in the inter-industry alternatives for water
resource development. The President's Materials Policy Commission esti-
mates that a gallon of water in industrial uses adds about one-half cent
of value to industrial products whereas in agricultural crops the same
amount of water adds only one one-hundredth of a cent. Expressed in
another manner, a given amount of water yields fifty times more product
value in industry than in agriculture, assuming the water costs the same
for both uses. Of course, the difference may be due in part to the differ-
ences in competitive positions of the two uses and to the differences in
elasticity of demand for the resulting products. At any rate this is an
example of the type of analysis that future research should embrace to
yield the kind of results needed for policy formulation.
The benefit cost analysis in dollar terms as currently formulated has
probably been greatly over-rated as a device for measuring both the
economic feasibility and scale of water resource developments. Its utility
as a justifying instrument has probably exceeded its use as an instrument
of evaluation. Built-in gadgets of interest components, various rates of
discount, secondary and tertiary benefits, intangibles, basin accounts,
national watershed accounting, compounded components of purposes and
related devices have rather successfully frustrated its limited utility.
Basic improvements are required in the benefit-cost approach if it is
to serve any useful function in indicating economic feasibility and scale
of development.24 From the volumes written on this subject, one would
hypothesize that little more remains to be said. Within the past few
years, at least six major attempts have endeavored to deal with this
problem by Presidential Commissions, Federal Inter-Agency River Basin
Committee, Bureau of Reclamation Panel of Consultants and the Bureau

23 Ulrich, Relative Costs and Benefits of Land Reclamation in the Humid Southeast
and the Seni-arid West, 35 J. FaR ECON. 62-73 (1953).
24 The need and some important means for improvement are suggested with con-
siderable clarity in: U. S. BUREAU OP THE BUDGET OCIcuLA No. A-47 (1952); SUB-
PRaoEW s (1950).




of the Budget.25 It is difficult to see how these reports covering strategic
aspects of cost benefit analysis could not help but have beneficial results.
It is equally difficult to understand why these reports have not resulted
in more accomplishments within our water resource development policies.
Apparently, the last word has not been written-nor will it ever be for
that matter. At least this may be used as an excuse for adding a few
words and possibly an idea or two to the perennial discussion of benefits
and costs in terms of the need and direction for further study.
To begin with, the benefit-cost analysis must embrace non-monetary or
extra market as well as monetary benefits and costs. Most direct costs
are susceptible of monetary measurement. So are many benefits. By ex-
pressing as many costs as possible in monetary terms and by pointing out
additional advantages and disadvantages, policy decisions of an ordinal
character may be made. The position taken by the President's Missouri .
Basin Survey Commission is:
An evaluation based on monetary values is only one type of
appraisal useful in weighing alternative courses of action....
Intangible benefits, not measurable in monetary terms are im-
portant and may sometimes justify construction of a given
project. In a case of this kind, economic evaluation serves to
establish the cost and part of the benefits.... "
The rule that estimated benefits shall merely exceed estimated costs in
use by Congressional Committees and evaluation studies by agencies is
not well adapted to achieving the maximization objective of water re-
source development. The point at which benefits equal costs is far to the
right of the point on an outlay curve to which investment is justified.
Every unit of investment beyond the point where marginal cost equals
marginal benefits (the point of greatest net benefits) yields less benefits
than it costs. Hence, these additional units of investment should be
shifted to another purpose or another project where their benefits are at
least unity, or else withheld. This rule is generally violated in water
resource development authorizations and appropriations. The gist of the
violation may be summarized as follows: Any project having a ratio in
excess of 1 to 1 is economically feasible and any project with a ratio of
less than 1 is not economically feasible. Obviously, this reasoning would
be valid only if the marginal productivity of all resources used in the
project were very low and only if no more productive alternative use of
25 Included are the reports of: the Hoover Commission, President's Water Resources
Policy Commission, Benefits and Costs Subcommittee of the Federal Inter-Agency
River Basin Committee, President's Missouri Basin Survey Commission and the
Panel of Consultants to the Bureau of Reclamation in evaluation of secondary or
indirect benefits of water use projects and the Bureau of the Budget.


[Vol. 41


the resources or means for accomplishing the project were known and
and available. Professor Boy Huffman in his excellent book straightens
out the reasoning in these words:
Water resource development should be formulated and evalu-
ated in such a way that the excess of benefits over costs is maxi-
mized rather than that the largest possible benefit-cost ratio is
Obviously, the point in outlay of a particular project where net
benefits are at a maximum is beyond the point of maximum ratio of
benefits to costs and short of the point where total benefits equal total
Although the rule that benefits must exceed costs is a necessary con-
dition, it is not alone a sufficient reason for undertaking water resource
developments. The second condition as stated above is that net benefits
be a maximum. A third condition is that each separable purpose yield
benefits at least equal to its cost and that separable segments of particular
purposes meet the same requirement. A fourth condition is that the
alternative adopted be the most efficient known means for achieving the
;purpose at hand. This particular rule has been difficult to apply partly
because reliable data on physical functions of alternative means have not
been available. For example, it is impossible with available physical data
to resolve the running argument between the Army Corps of Engineers
and the U. S. Department of Agriculture regarding the relative flood
control efficiency of large structures (dams and levees) and land treat-
ment measures (terracing, contouring and check dams). The Salt-Wahoo
Basin in Nebraska is one of the many instances where this problem has
arisen.2 It has become obvious that both alternatives cannot be justified
from the same benefits since each program claims part of the benefits
which must also be claimed by the other.
Another facet of the problem involved in the "most efficient known
means" rule is illustrated in the Little Sioux Watershed Flood Control
program. In this program, 94 percent of the total cost has gone into
gully control structures yielding benefits of $0.89 for each $1.00 invested.
The remaining 6 percent of the cost used in land treatment measures
has yielded $3.00 benefits for each $1.00 invested. In this example, public
funds appear to be much more efficient in the land treatment alternative
than in the gully control alternative, although it is difficult from avail-
able data to disentangle the joint costs and joint benefits associated with
both alternatives.



176 IOWA LAW REVIEW [Vol. 41

The general practice of assuming only one alternative means of ac-
complishing a particular objective has become widely accepted. This
practice may be summarized in the following words: If the benefits
"with" the project are greater than the benefits "without" the project,
then, of course, the project investment is justified. If the benefits "with"
the project are less in amount than they would be "without" the project,
then the project is not justified. This statement is true only if no other
known means of a more efficient character is available. The corrective
reasoning is supplied by Dr. M. M. Kelso in his stimulating report of the
work of the Bureau of Reclamation Panel of Consultants, in these words:
There should be no controversy over the general principles that,
if the government has a fund of dollars to invest, it should want
to select that investment for its funds which will return a maxi-
mum of net benefits to the people from the use of those
funds... 29
This particular rule of "most efficient known means" was recognized
in the President's Missouri Basin Survey Commission in the statement:
S.. some projects can be given a low priority even though they
have a favorable benefit-cost ratio. An alternative may be avail-
able for reaching the same goal and some other use of the avail-
able funds may be more desirable.30
Analyses confounded by several purposes, alternative means and proj-
ects compounded into single accounting units cannot be expected to
provide the data needed for sound water resource development. The
basin, watershed and national watershed accounts are examples in point.
Under the basin account concept as revealed by a Bureau of Reclamation
Power revenues will repay not only the cost of all the power
features, which always is incidental to the irrigation work, with
interest, but will return additional revenues to a total of $450,-
000,000 on the repayment of the entire cost.81
As mentioned earlier, the Little Sioux Watershed Flood Control Proj-
ect confounds gully and land treatment control alternatives into a unit
account. Furthermore, benefit-cost ratios for subwatersheds vary from
$0.94 (Masters) to $3.50 (Black Slough) but these individual subwater-
29 Kelso, Evaluation of Secondary Benefits of Water Use Projects, PROCEEDINGS Or
RESEARCH COUNCIL 51 (Berkeley, California, March 2-3, 1953).
30 Kelso, op. cit. supra at 90.
31Hearings Before the Suboommittee on the Control and Use of the Water Be-
sources of the Missouri River Basin, of the Senate Committee on Irrigation and Recla-
mation, 82d Cong., 2d Sess., at 40 (1944).


shed projects become lost in the over-all watershed benefit-cost ratio of
$1.82. Future research and surveys must ferret out benefits associated
with particular purposes, alternative means, and project units as a basis
for policy decisions on water resource development projects.
The preceding discussion of benefits and costs is helpful in providing
a framework for cost allocation. The function of cost allocation is to
distribute costs of water resource development among purposes and bene-
ficiaries in an equitable manner. Am equitable sharing of costs may be
defined in terms of each purpose and beneficiary assuming those costs
necessary for providing their respective benefits. In some instances,
certain resource contributors may not receive benefits commensurate with
their contributions. For such contributors, compensations should be
allocated to them equivalent to the productivity of their resource contri-
The means for achieving the function of cost-benefit allocation involves
each purpose absorbing its separable cost and no purpose absorbing
costs greater than its corresponding benefits. This same reasoning
holds for beneficiaries and contributors within purposes. Savings result-
ing from multiple purpose developments should be allocated among
purposes and beneficiaries according to their relative contributions, or
more specifically, the productivity of their respective contributions.
Likewise, joint costs which have not been allocated according to purposes
may be shared on a relative basis of benefits received by purposes. The
same reasoning would hold for beneficiaries and contributors within

Another fundamental water use and control problem arises from the
uncertainties associated with water rights. This uncertainty may prevent
the most effective use of water and it may well lead to serious conflicts/
among users and uses.
A recent Michigan study concludes that:
The uncertainty and indefiniteness of the present irrigation
water rights situation, particularly as it applies to the use of
water from lakes and streams, can be clarified only through
legislative or court action. In the absence of this type of action

32 See Ciriacy-Wantrup, Economio Analysis of Water Besources Politces, and Lee's
California, March 2-3, 1953).
ANALYSIs Or RIVE BASIN PROJECTs, at 53-57 (1950).






no one can say for sure just what rights Michigan irrigators do
This statement has considerable application to other humid states,
including Iowa.
Here again, the problem arises as water becomes scarce. As long as
ample water supplies were forthcoming for all uses, it made little differ-
ence whether the riparian, appropriations or modified doctrines of water
use were practiced. However, rights in resources assume greater impor-
tance as the resources become more valuable. As water becomes scarce,
it becomes more valuable, emphasizing the importance of use-rights.
Thus, it becomes very important to a farmer with a six or eight thousand
dollar investment in irrigation equipment as to the nature of rights he
possesses in a continuing source of water. If he is not sufficiently certain
that his right to a certain amount of water is assured, he may not under-
take irrigation even though it may be quite profitable to him and desirable
to the public.
Uncertainties associated with rights to use water constitute a major
obstacle to water use. Furthermore, these uncertainties will tend to
become more widespread and more serious with the increasing uses of
The removal of these uncertainties must come through legislative
action defining water rights, means whereby these rights may be estab-
lished, maintained and transferred, and use priorities.


Water is becoming increasingly scarce relative to the growing demands.
These rapidly growing demands stem both from the increasing popula-
tion as well as from the increasing per capital consumption. These two
elements of the increasing demand for water show no indication of relax-
ing their rates of increase.
The present and prospective increasing demands for water emphasize
the scarce as well as the essential character of water resources. As water
becomes more scarce, its value increases and rights of use become more
important. The supply of water available for use may remain relatively
constant, barring major developments in rainmaking. However, there
remains much unused moisture during the moisture available phases of
the hydrologic cycle. This heretofore unused moisture may be trapped
and stored within limits for future use periods.
Two fundamental elements of the water problem are: (1) conflicts
among competing uses and users and (2) uncertainties with respect to

34 Barlowe, Water Bights for Irrigation in Michigan, 3 MICH. Ae IO. EXPr STA-
TION Q. BULL. 30 -(1953).

[Vol, 41


water rights. Economic analyses based upon physical data provide the
basis for revealing the relative value of water in different alternative
uses. These findings, in turn, provide basis for resolving conflicts among
competing uses in order to maximize the goods and services forthcoming
from limited water supplies. Laws are needed, conforming with these
economic and physical findings, to remove the uncertainties associated
with the ownership, control and use of water.
The need for resolving the conflicts and minimizing the uncertainties
associated with water use is urgent. The role of the state in respect to
control and regulation of rights in surface and subsurface migrating
water should be clarified. The manner in which individuals may estab-
lish rights in surface and underground waters needs to be outlined. The
conditions which individual users must meet in continuing their eligibil-
ity in holding particular rights in water should be stated. The relative
importance of various alternative water uses should be outlined. The
resolution of these aspects of the water problem will require action by
the Iowa General Assembly. No doubt, the study committee established
by the last General Assembly will provide necessary bases upon which
the next General Assembly can act on these types of points.
Water uses are being increased and reduced to private benefit at a
rapid rate. Use of water for supplemental irrigation on Iowa farms is
doubling each five years. Water uses for industrial, urban, and recrea-
tional purposes are likewise increasing rapidly. Delay in defining water
rights will only result in further conflicts and confusions. However, the
urgency of immediate action should not compromise the importance of
remedial action and the thoroughness with which action should be under-
Prerequisite as well as concommitant to legal action on clarifying and
defining water rights and uses, is the need for sound economic and physi-
cal data and analyses upon which such legal action may be premised and
It has become evident throughout this discussion that the physical,
economic and institutional dimensions of the framework for water use
and control research be integrated and conducted as essential parts of the
same analysis. Physical functions and relationships are necessary for
economic analysis-but not the entire range of physical possibilities. In
scale of outlay, at any particular time, there is a strategic range of physi-
cal possibilities plus and minus the point where marginal cost equals
marginal revenue. More detailed physical data are required within this
strategic range and little if any physical data are needed beyond the
points where benefits equal costs or where the ratio of benefits to costs is
Also, much more physical data are needed on alternative means of




achieving particular objectives. Examples of these needs were cited in
connection with alternative means of achieving flood control in the Salt-
Wahoo and Little Sioux watersheds. Similar examples may be drawn
from alternative means of obtaining irrigation water and differential
benefits from water put to different uses, such as agricultural or indus-
Effects of the institutional dimension of the water use framework upon
the achievement of a particular alternative which is both physically
possible and economically desirable must be included in the analysis. As
part of the analysis, alternative institutional adjustments necessary to
the achievement of economic objectives should be developed and ap-


Robert LSmith+

The assigned objective of this article is a general review of past de-
velopment, together with certain possible future considerations, associ-
ated with district efforts affecting water use and control. The comments
expressed are directed at a rational development of (1) the need for
such districts, (2) the controlling elements of district development to
date, and (3) some of the trends and limitations districts may face in
the future. Water use and control districts have on occasion been widely
acclaimed and severely censured by various segments of society. The
word "district" is often greatly abused. It is advisable, therefore, to
establish the particular concept of the term as it is utilized herein.
Problems of water management are such that they require corrective
measures initiated by both individual and group action. The individual
approach is exemplified by -he insaR tiefi weevees, erosion con-
trol measures, and septic tanks serving a single farming, residential, or
industrial unit. Such activities are in every sense of the word a private
undertaking which may or may not have public implications. By con-
trast, group actions usually are a form of public undertaking. Although
there are exceptions such as private hydro-power and water companies,
the majority of the group organizational structures represent some
form of public enterprise.
Within the majority group the mechanics of procedure appear to
divide into two broad categories. First, there is that type of action which
is undertaken in the name of a particular level of government (i.e., city,
county, state, or federal) to promote the general welfare and social se-
curity of the people.1 In this approach the necessary financial resources
are derived from general revenues. The second approach to collective
action via the mechanics of public enterprise is represented by the crea-
tion of a separate public entity for the specific purpose of resolving the
water use and control problem presented. In this instance the financial
resources are obtained within the limits of the created entity, and usually
are apportioned according to the benefits received by the individual
units composing the entity. Although limited reference will be made to
the governmental approach it is the local entity type of group action
which is of primary concern in the following comments on "districts"
affecting water use and control.

Director, Iowa Natu-ral Bseeg il, Des Moines, Ioya-
1 E ples of this approach are The 1936 Fio~to71rol Act, 49 STAT. 1570, 1571,
1596 (1936), 33 U.S.C. 701(a)-(f) (1952); and The 1936 Soil Conservation Act,
49 STAT. 163-64, 1148-51 (1935-1936), 16 U.S.C. 590(a)-(p) (1952).

SL> Aa c^ K4-^L ^^7 ^



182 IOWA LAW REVIEW [Vol. 41

There are certain limiting considerations in the development of water
use and control projects whether the action is initiated individually or
collectively. Dr. J. F. Timmons has classified these limitations as physi-
cal, economic, or institutional.2 In illustrating his classification Dr. Tim-
mons presented the following example:
Let us assume that engineers, hydrologists, geologists, agrono-
mists, and other physical scientists conclude that it is physically
possible for "X" river to provide 12 acre inches of water per
year on "Y" acres of cropland at six intervals of two inches per
application. The range of physical possibilities thus runs from
zero to 12 acre inches of water for the cropland under study.
Under given cost and price conditions, it is economic to use only
six acre inches of the water that is physically available. How-
ever, since this particular river is covered by the riparian
doctrine of water rights,3 it is not institutionally possible to use
any of the water for cropland irrigation even though it is physi-
cally possible to provide 12 acre inches and economically feas-
ible to use six acre inches.
Thus the physical supply of water is 12 acre inches per
annum, the economic supply is six and the institutional supply
is zero. If the economic objective in agriculture of using six
acre inches is to be realized, the institutional dimension must be
altered since it is the limiting factor. But, in turn, it may not be
economically feasible to use any or all of this amount since the
value returns in a use other than agriculture, say urban con-
sumption and industry, are greater.
This example could be repeated many times in various set-
tings. The important point is that water resources development
must embrace and integrate physical, economic, and institution-
al dimensions. (Emphasis supplied.)
The foregoing concepts provide the key to the need for district organi-
zation. Many water use and control problems cannot be solved satis-
factorily by individual action because of excessive physical and economic
dimensions. Likewise, a brief discussion of the history of district
development will clearly indicate the institutional limitations confront-
ing the individual.
The Miami Conservancy District of Ohio is perhaps the nation's most
famous water control district. Its story portrays an outstanding example

2 Timmons, Some Policy Aspects of Water resources Developments. This paper
was presented at the meeting of the Water Resources Development Committee of the
Western Agricultural Economics Research Council, at Bozeman, Montana, on June 29,
3 It should be noted that the example cited assumes a very strict interpretation of
the riparian doctrine. See Davis, Water Bights in Iowa, supra this SYMPOSIUM.


of the need for group action in overcoming combined physical, economic,
and institutional limitations.4 The problem arose in the early spring of
1913 when flood waters swept through the valleys of the Miami River
Basin and in a period of a few days claimed more than 300 lives and
property damage in excess of $100,000,000. Subsequent studies showed
that a flood control system comprised of channel improvements and five
rather large earth dams was the desirable physical solution to the prob-
lem. This engineering decision immediately presented two additional
problems for the citizens of the Miami Valley. First, there arose the
question of project financing (the project ultimately cost about $31,-
000,000). Secondly, the realization developed that no entity existed, or
could be created without special enabling legislation, to exercise the
appropriate authority over a plan which extended beyond existing sub-
divisions of government. It is a matter of record that the leaders and
citizens of the Miami Valley were able to secure passage of the Ohio Con-
servancy Act5 and have since constructed and paid for the needed flood
control improvements
Although not as widely publicized as the previously mentioned Ohio
District, the need for pooled resources has been well illustrated in the
establishment of the many organized drainage districts found through-
out Iowa and the remainder of the Middlewest.6 Certainly the bulk of
those operations presented too large a physical and financial task for indi-
vidual resources to achieve. However, the most important concept con-
nected with the development of those districts was the legislative action
creating the procedures for district organization, thus removing the in-
stitutional limitation imposed on the individual by common law.7

Some of the factors which have influenced the past development of
districts will be set forth subsequently. First a brief indication of the

4See MocrAN, THE MIAMI CONSERVANCY DISTRICT (1951) for an intriguing de-
scription of that group effort.
5 OHIO REV. CODE e. 6101 (1953).
278 (1950) indicates that organized drainage and levee districts in Iowa contain
6,734,863 acres of land. Improvement made by the districts prior to 1950 is stated
to represent a capital investment of $88,820,687.
7 The strict common law concept of drainage is limited to areas where there is a
sufficient difference in elevation to indicate a definite natural drainage. It does not
permit one owner to cross another to obtain an outlet without prior consent. Statutes
providing for the establishment of districts recognize the principle of majority rule
in the construction of drains which would improve the economic and social develop-
ment of the surrounding area.


various concepts of group enterprise commonly found in the Midwest,
as illustrated by Iowa statutes, is warranted.
If volume is any measure of effort, examination of Iowa statutes will
readily indicate that considerable legislative attention has been devoted
to the problem of developing suitable institutional limits, and, in a sense,
economic limits for district organization needed to cope with physical
problems in this state. Approximately 60 pages of the 1954 Code of
IowaS are devoted to drainage problems. Set forth therein are the pro-
ce es to be followed in organizing, financing, and operating drainage
d levee districts under a variety of conditions including projects un-
ertaken at the intra- and inter-county level, at the interstate level, and
in cooperation with cities and agencies of the federal government
addion, one chapter9 enacted subsequent to the bulk of the dainage
a ochaptermin thate it-aide^w th
organization, financing, and operation of districts ,for flood control,
drainae, or soil erosion controTpurposes, or any combination thereof,
on the same basis as that followed for solely drainagendeawvmsOther
chapters10 provide for the establishment of benefited water districts
(water supply) and sanitary districts (sewage disposal) in a manner
quite similar to those followed in drainage districts. All <^the districts
'"*+i ~iI this paraarjph z "'.*'. iini 1y f ihy ither' special less-
nt, or by a combination of district-wide general vy and special

Brief mention should be made of the basic elements currently included
in the majority rule type of legislation just cited. One source, in discuss-
ing the development of drainage statutes, points out that the leading
objectives of such laws are:

(1) to establish means whereby effective community cooperation
may be achieved in obtaining needed drainage outlets for areas
not provided by nature with such, (2) to provide a method of
apportioning the cost among the landowners benefited, as nearly
as practicable in proportion to the benefits received, and (3) to
authorize a plan of distributing payments over a period of
To achieve those objectives with a minimum of organizational confu-
sion presents a tremendous legislative challenge to those formulating the
necessary statutes. The problem is that of weighing the rights of the
individual property owner against the authority of the governing body


SIOWA CooD ce. 455-67 (1954).
SId. e. 4670.
10Id. e. 357-78.

[VoL 41


to expedite a practical workable plan. Thus, the first mqjor element of
majority rule legislation is the setting forth of procedures to be followed
in organizing, establishing, and financing the district. Those familiar
with district operations know that the initial organizing procedures are
of necessity somewhat laborious. Again using drainage statutes as the
example, it has been indicated that there are some 12 steps which ,are
customarily specified in the organic statutes of various states.1 Experi-
ence has shown that the most critical stage is the assessment of benefits
and damages to individual landowners. Inability to translate the costs
of the physical plan into economic realities acceptable to all can either
delay district organization for an extended time or completely stop it.
Fundamental, of course, is the concept that anticipated benefits must
exceed costs plus damages incurred. If this were not true, there would
be no apparent need for changing the existing physical status of the
Two fundamental operational elements are normally included in ad-
dition to the organizing procedures just mentioned. Both are dictated by
the physical aspects of water problems First, the district must have the
authority to extend its operations across existing township, city, county,
or state boundaries. The practical necessity for this provision is well-
recognized. However, such was not always the case in the early days of
district development. Secondly, provisions must be included to allow the
district ample authority to execute future maintenance work. A critical
analysis of the adequacy of Iowa statutes on these or other points is not
intended in this article. However, the maintenance problem is generally
recognized more adequately in Iowa statutes than in those of certain
other Midwestern states.
One other element applicable to certain types of districts is the inclu-
sion, usually in separate regulatory statutes, of provisions to coordinate
the efforts of the individual districts via some method of technical super-
vision or review. Iowa statutes" provide for such review on sewage
disposal and flood control problems. On the other hand no such provision
applies to the basic drainage enterprise. A similar situation prevails in
most Midwestern States. A trend toward more uniform adoption of such
coordinative procedures has developed in recent years, partly in recog-

12Ibid. The twelve steps are: Petition for the establishment of district, prelim-
inary hearing, order denying or establishing district, final survey, apportionment o
benefits and damages, final hearing on apportionment of benefits and damages, ap-
peals to courts, establishment of administrative authority, letting of contracts, issu-
ance of bonds, assessment of benefits as taxes, payment of assessments. It should be
noted that these procedures are materially shortened in the ease of districts formed by
mutual agreement rather than by majority rule.
18 IOWA CODz es. 135, 455A (1954).

186 IOWA LAW REVIEW [Vol. 41

nition of the transient or interdistrict effect of water control projects.
The Ohio Legislative Research Commission concluded in a recent report14
that such review and coordination was desirable if adoption of sub-
standard designs prompted by various local pressures was to be avoided.
Other comments favoring such supervision have been advanced.15
The impression should not be left that district or group enterprise
affecting water use and control in Iowa is limited entirely to special as-
sessment improvement districts. Nothing could be farther from the truth
for some of the most active group action does not result from the special
assessment districts. For example, utilization of special assessment dis-
trict organization for soil erosion control work as indicated in earlier
comments should not be confused with the more common soil conserva-
tion district.le There are one hundred of these latter districts in the
State of Iowa and their boundaries are coincident with county lines17
rather than with watershed or drainage divides. The districts are
charged with coordinating, developing, and carrying out the soil and
water conservation programs on both individual farm units and on
groups of farms within the county. In this work they cooperate with
agencies of the federal government and are charged with the administra-
tion at the county level of state aid funds made available for soil conser-
vation work. They differ from the special assessment districts in that
they do not have authority to establish special assessments for the con-
struction of group enterprises. Construction of individual projects is
a cooperative effort involving the individual and the district. State and
federal funds are often involved and are derived from general state and
federal revenues. A law18 enacted by the 56th General Assembly ex-
pands the powers of the Soil Conservation Districts. It provides for the
creation of a subdistrict on a watershed unit basis at either the intra-
or inter-county level, and also establishes a procedure for levying an-

Report No. 2, January, 1955).
15 H. W. Hannah, Illinois Farm Drainage Law, UNivasIrr or ILLINOIs CIacurL
660, p. 44 (1950). Mr. Hannah states that: "It is significant that drainage districts,
though they have many identical problems and though many uniform procedures could
be introduced to save time and funds, have no state agency to which they may turn
for authoritative assistance and are guided by no administrative and policy-forming
body at the state level. The experience gained through successful organization and
operation in one district is seldom passed on to another except as the same legal or
professional personnel are involved in both. Each new district must, to a degree,
approach its problems as though it were completely isolated from other areas having
identical problems."
16 IOWA CODE c. 467A (1954).
17 It should be noted that there are two districts in Pottawattamie County.
is Iowa Laws 1955, 56th G.A. e. 225.


nually a uniform maintenance tax, not to exceed four mills, against the
lands in the subdistrict. This new law apparently represents an effort to
alter the present institutional limit on the soil conservation districts to
the extent that they will be able to take advantage of certain opportu-
nities made available by recent federal legislation.19
Still another law20 enacted by the 56th General Assembly appears to
provide a foundation for recreational development of water and other
resources on a county-wide basis. To what extent this statute will affect
water use and control is still to be determined.

The introductory comments expressed thus far provide a basis for
rational analysis of the primary factors that have governed the develop-
ment of such districts to date.
Obviously, the physical problems encountered have had much to do
with the nature of the tatutesn t ri e t i In the
Middle West, for example, the major portion of district legislation
been irete at te problem but in much of the Far est a
proportionately greatef-share of the efforts have been directed at physi-
ealproblems oT water use. One s figcf-antc jaetearaeterizes the influence
of physical problems on the development of the districts- organized
to date, regardless of the portion of the country involved. A vast ma-
jority of the district legislation established in this nation has been reed
at smgie purpose management. That is to say, the present district con-
cept m much of the nation is directed at the solution of but one physical
pr-oblem. Tus, a.t rage str t control district, and a sani-
tary district might each include some of the same lands, each district
performing a separate function and beinggoverned b .araLa -
mitrative boy The imitations ofthis single uros approach are
ilu stayed by the experience of nthe Miami Conservancy District of
Ohio, previously referred to. It is somewhat of a paradox to- na-i at
today the primary problem in the Miami Conservancy District is not
excess water, but rather a shortage of water.21 One solution now under
study by the district includes the possibility of surface impoundment
19 Federal assistance to states and their political subdivisions for works undertaken
to prevent erosion, flood water and sediment damage is provided for by 68 STAT.
666-68 (1954), 16 I.8.C. 1001-07 (Supp. II, 1955). One of the limiting con-
ditions that must be met prior to the granting of federal assistance is that local
organizations will make arrangements satisfactory to the Secretary of Agriculture
for defraying costs of operating and maintaining the improvements.
20 Iowa Laws 1955, 56th G.A. e. 12.
21 "Cons.ervancy" Takes a New Look at Its Biver, Engineering News-Record, May
19, 1955.

__ ___

188 IOWA LAW BE VIEW [Vol. 41

in reservoirs. Inasmuch as the original dams were constructed for flood
control use only and are equipped with a granite block carrying the
inscription "The Dams of the Miami Conservancy District Are For
Flood Prevention Purposes. Their Use for Power Development or for
Storage WoudSBe A Menace to the Cities Below", it is apparent that
such storage will have to be provided elsewhere than in the original
dams. Although existing legislation does allow the district to undertake
projects of a water supply natre,it will again be niecessy de
J take the expensive a ofpetion, earnings ancouTeuu, iu
e was not proposed in the original district plan.
iowas e tolegislative acion in removing institu-
tional limits imposed on the individual by the common law of drainage.
/Water law and water problems can be broadly classified under the head
r ins o wtand wt asic principles -o common law
present demte llations forn vidual action in either case. e,
the nature o3 district development todae na en nueneed materially
by the alterations that enabling legs ias-ei-h-nas effect \
common law prm(eipTes.Tn the Middlewesteritites the emphasis has
been on problems or water damage and, as yelittle attentionaseen
given the problem- ofcosumptive use. ..
In other instances the development of districts has been materially
influenced by various regulatory laws enacted in the public interest.
Perhaps this point can best be illustrated from a water quality stand-
point. For example, on the basis of very good reasons entirely removed
from district considerations, a state may enact regulations governing
the di'npalt of n nr-al-end other wastes into the surface and ground
waters of the state. As a result a fringe area outside existing tj limj
and including both commercial and residential property may be ordered
to'putsTifouse in order. The physical solution indicated may be a
waste treatment andt i oetmg sew ~fie mowever
unin-orporated area there is no organizational catalysivaiJaiaT for
soinge SBat e"aadminTsfraife,''aneinag, and operating tasks, and
so a as tast be created. Thus, it can be seen' fiatienact-
ment o regulatory powers within government itself has influ-
enced the development of certain types of districts associated with the
use and control of water.
-- -Governmental aid legislation has also been a factor in the development
of existing district concepts. The trend A in delp.pU as beento
assume an ever increasing share of JAiljftJr Lation,
fTFIa section, and other water use and control
activities. At the federal level the gov mental approach to water use
and corol original ver wor



g@a&e It gained impetus early in this century with the advent of la-
mation program in eAnm nf f.h
a pert-ent actor in Midwestern problems with the passage of the 1936
flood control and soil erosion laws. Initiation of uCl awu
the proc LW -ft S usal prom ted a cJurret euo.--
nomic need org indoubteadly t e aeand federal grams,
once conceived, are continued beyond the crisis stage as a matter of
political expediency. Others rightfully recognize the inability of un-
coordinated local action to acco snecesaryoecives. U eL,,
the government approach has made a majQr contribution to the devel-
opment of present ayd'waer use and control facilities.
Often times Wiie~'overnmei~i tal prograiis, stle or federal, are con-
tingent upon certain commitments by local cooperating organizations.
It is necessary, therefore, that proper enabling legislation be available
to allow these local groups to fulfill their required obligations if they
are to participate in the opportunities extended by higher levels of gov-
ernment. The effect of such inducement type legislation can also intro-
duce a ps problem. The temptation to grease the skids, as it
were, and develop a no-strings-attached authority to participate in
such work is sometimes apparent. However, prudent consideration
should never lose sight of an earlier statement that the problem is for-
ever tat o05 weighing the rights ofnividual propey ownersaga
the authority o! the ussMci to expeife a worKaoble pa.
Another factor wcn as mnuene present district concepts in many
of the states has been the enactment of various special" acts designed
to aid a single district perform a specific project. This method ofd 1ri-
ing the legal dimension appears to be potenti daero inamuch
as it is not bae W on funaenf taprmcignlgi applicable throughout a
region Actually the adverse results of this approach seem to be limited
more o Mtne nuisance of unused statutes and spec -courecnsons rather

celebrated need for codification nd clarification of the statutes and of
the judicial decisions rendered as a result of their passage.
Finally, it must be observed that the decisions of the judiciary have
been an important factor in the development of current district opera-
tions. Much of the true "code" of drainage in the Midwest, or water use
in the Far West, is contained in the recorded history of previous ex-
perience rather than being incorporated in the actual provisions of the
Although no attempt has been made to document specific instances
where the foregoing factors have influenced present district concepts,

22 See note 1 supra.


the rationalizations set forth are both logical and sound. The very na-
ture of these factors leads to the general conclusion that district dvelop-
ment has been a process of a,.m n.A and, t th. r t Of thorouak ob-
jective study. They also illustrate the principle that district concerts
are nnt static hut are ml t to change as physical economic, and insti-
tuitional limitations are encountered.
physical pressures forage existing water use and control
concepts are directly related to man's desire for increased economic gain.
In the Middlewest, drainage was the main physical problem initially
presented by nature. However, man's attempt to utilizebattoands
alone the streams hasontantly increased the pressure for flood control
activity. Likewise, his intense cultivationofn th i ~a4to aion
control pressures, and his desire to use water for a variety of purposes
has ree newer mre stringent concepts of quality control.
'conomie pressurees a- developed and are developing as a result of
man's desire to make multin~ Jg of available waters. Similarly, finan-
cial considerations in some areas seem to be proportional to the in-
creased complexity of the physical problems.
Institutional concepts in turn are affected by these physical and eco-
nomic pressures and are also quite receptive to changing social con-
cepts. Occasionally these various factors culminate in a new judicial
viewpoint which materially alters prior institutional concepts. A recent
experience in Ohio may be cited as an example. Pickels28 and other
authorities on drainage have cited the fact that OhbnJbs adopted the
civil law rule of drainage in contrast to the common-enemy rule. The
preilousyited report of the Ohio Legislature Research Commission24
summarizes a recent judicial decision which would tend to reverse this
conclusion. The report includes the following paragraph.
A common pleas court decision of 1951, involving the Bad
Creek (Henry-Fulton joint County) ditch, h~a] at ners
in a watershedji al nage ditcaessesment, if the
uplan are draining silt and sewage into the lower land. J]..
|e- e o ea "nds
have een taken f fv in t h Aonestflinp,
c | ivaona darti cial drainage that collets and accelerates
OhS'r .... -- ri '. vUnere s'ilt and sewage are depositedd

included against his will in a drainage district organized under statut, lqw
i effi -enemile, a dranage district or nized for the purpose
better le can assess the lands in the watershed served by the
etth e district. j
Report No. 2, January, 1955).


[Vol. 41

1 190




in the servient lands, it was the verdict that a seeial benefit is
confined onthe domian a hro remn-
t.ermiae- aetns h ~I- 'w -are
benefit a of drainage which does no
injury to lower channels, ureov
for damages. Tne court of app upe s decision and the
reme court refused to review.
Truly, the development of districts affecting water use and control is
a process of evolution that has not and will not remain static.
To date certain water use and control problems have proven more
adaptable to district organization than have others. Earlier reference
was made to the fact that Iowa statutes provide for the establishment
of districts to undertake drainage, flood control, and soil erosion control
improvements, or any comintion thereof. None of the foregoing types
of improvement are concerned with the u of water. All are primarily
concerned with the quantitative, rather than te qualitative, aspects of
water control. In the six years since the appropriate enabling statute
became law, only one small mutual agreement district25 has been formed
w ch formally recognized a combination of all three functions. On the
oth a, rainage act esalone have continued to flourish as of
old. 1asu as there are many places in tihe state where problems
similar to those found in the small mutual district exist to a more ad-
vanced degree, it is of interest to consider the factors that are in part
responsible for the lack of more widespread use of this enabling legisla-
Obviously, the nature of the physical function is the biggest single
influence. Drai blems are widespread throughout the state.
Further, they are of more or less constant concern. Their proper correc-
tion leads to an almost immediate increase in crop yields an so he
economic advantages are well understood by the individual landowner.
(n t he other hand, soil erosion control and flood control do not possess
an equal economic advantageT -tieyes of many individuals. Soil ero-
sion is often regarded as a problem for the future rather than an
econo~mgain for the present. Flood control is often a periodic problem
rather than an annual occurrenceoiic 6d improvements may be con-
structed for a few or even a number of years before they reap the neces-
sary dividends. The payout is not as immediate and, who knows, it may
not flood next year.
25 Webster County Drainage District No. 360, Webster County, Iowa, was formed
as a mutual district in 1951. It involves six parties who mutually agreed on a total
construction outlay of $2,803.15.

192 IOWA LAW REVIEW [Vol. 41

There is also the factor of habit. The original development of our
agricultural areas made drainage mandatory. It was a task that had
to be completed. Half a century and more of intensive agricultural ac-
tivity has continuously acknowledged the desirability of good drainage.
Consequently, the local spark and leadership is quick to see and evaluate
the need for drainage. Tht o c eadershi is extremely
important. Such leadership, endowed with sufficient fortitude to es-
tabs- Lthe collective decision to financial respon-
tsiity and an equal amount of patience to overcome the orouse-
taiof strc organization, as a primary req
a tas n experience n n alBocomp s ent of a
single type of physical function. In fact, the important concept is the
development of the habit of collective effort. Again using the Miami
Conservancy District of Ohio as an illustration, it seems logical to assume
that current local efforts to solve low water problems would not have
materialized as rapidly if the people had not previously solved, through
solely their own efforts, a pressing water control problem.
A major factor affecting the application of existing district concepts
has been the relative ability with which professional personnel are able
to present a realistic and acceptable assignment of benefits for the sev-
eral types of water use and control improvements. In drainage work,
experience and habit have materially reduced the complexity of this
problem, if not the accuracy of the resulting determination. In other
phases of water control the problem is not so well developed by experi-
ence, habit is materially influenced by the federal assumption of con-
struction responsibility, and the cost allocation and cost sharing
principles are appreciably more complex. For example, a water improve-
ment plan including both flood protection and soil and gully erosion
control features could be developed for a Western Iowa watershed on an
economically sound and financially feasible basis. Part of such a plan
could be expected to include a system of level terraces to reduce soil
and water losses. Further, utilization in one particular subwatershed
of more terraces than are needed from solely a soil conservation stand-
point might result in the elimination of a costly gully control structure
and thus attain a reduction in cost of the entire program. The basic ter-
race system would possess strictly on-site benefits, and the cost thereof
should rightfully be allocated to the individual landowner. However, the
additional terraces needed for gully erosion control could be considered
to possess certain off-site benefits. Allocation of the costa.asaiatd with
these off-site bene its anpp ly more complex and proportionately
more controversial. Technical and legal persi 'ca e'iieI' ffeii e-
velopment of the plan would have to look elsewhere than to past experi-

_ _I__~ _~~


enee for guidance in developing ebst allocation principles. It is safe to
assume that in the absence of suien information the technical and legal
personnel involved would be somewhat reluctant to undertake the re-
quirements of district organizational procedures. Thus our inability on
the basis of present knowledge to resolve the more complex physical
problems to equitable individual economic dimensions has influenced
materially the utilization of district organization in certain water use
and control problems.
Federal legislative policies have also influenced the relative applica-
tion of existing district concepts to the several water use and control
problems. The flood control and water retardation acts26 of the mid-
thirties and subsequent years have certainly influenced Midwestern
activities in these areas of interest. They have provided the impetus for
the formation of soil conservation districts, watershed organizations,
and flood control associations needed o provide educational, demonsa-
tion~iiand operationacooperation in the development of those Tederal
programs. Conceivably this -eral sa'iation si-de~v oo r
thiedevilopment of the special assessment improvement type district.
Particularly is this tre for those districts which assume financial re-
sponsibility in the construction as well as the maintenance stage. It can
be concluded, therefore, that the effect of this legislation has in many
areas altered appreciably the habit of organization initiated by the early
drainage enterprise.
Those familiar with the water development scene will readily ac-
knowledge the fact that the future will require increased stress on group
action and inter-group coordination. Physical economic and institu-
tional dimensions of the future may also differ somewhat from those ear-
rAeni UUet. ne 7 o6 ow comments are made toflfs rai

mts an oncetathat may be encounter
From the standpoint of the pure p pialroblem the future can be
assumed to present a more complex pattern of water use and control.
New flood problems will be created by unwise encroachment, thus pro-
ducing additional economic conflicts in the development of flood plain
areas. Pollution abatement and stream recreation programs will be
subject to increasing competition fraqgM gs iaL;. of water for
industrial and agricultural programs. The interrelationship of these
many problems will become proportionately more important in response
to the pressures of the expanding economy enjoyed in this country. An
26 See note 1 supra.


_ __ __ __ __


increased degree of technical review and coordination at the inter-dis-
tret and inter-asi evel be red. 'Prsumably such
review and coordination will have to be provided by thN respective state
governments, and it is anticipated that the several states will have to
establish more positive institutional dimensions governing matters of
water use and control.
The interrelationship of these physical problems could eventually lead
to aoandonment at the local level of government of the sJn~
district. Situations similar to that experienced by the Miami Conserv-
an district will recur, and as this fact is eventually acknowledged
pressures will develop for the creation of more comprehensive "water
imanaement" programs at the district or local level.27 The definition of
the latter term is such as to imply that future districts may have author-
ity to provide all physical water control functions under a single ad-
ministrative unit-a multi-purpose economy-sized package
/ The rapidity with which such a concept is explored will vary tremen-
r/ dously in various portions of the country. It will be governed in a large
part by the relative "preciousness" of the water resource as reflected by
local conditions of population, supply, and demand.
The multi-purpose concept is not as foreign to local government as
first thoughts might indicate. For example, city and town government
reflects a multi-purpose management. Undoubtedly, creation of multi-
purpose water control districts will be more readily accepted in those
states providing a cheek control in t+. fgrm of tiphninia r.ei and
regulation of those operations which pose possible inter-district problems.
Likewise, in some states the concept may never be seriously considered
owing to the nature of the physical problems encountered. In others the
concept may be explored and rejected because of the implication of
broad authority associated with multi-purpose phraseology. Certainly
such concern may seem warranted, for as stated earlier, the basic issue in
district legislation is the balance that must be maintained between the
individual rights of the landowner as contrasted to the authority of the
district to expedite a workable plan. Nonetheless, the institutional limi-
tation involved in the single purpose district will become more stringent
as the water use pattern becomes more complex.

27 ODWAY, A CONSERVATION HANDBOOK 47 (1949). Ordway defines water manage-
nLent as that Raitice which see to make available the mammumoniii ? aioiunof
water at times and places where it is needed in a ctleonditionB tc,
in a iusea
notwasted; that itanr^Pta5se Qt L distributed; anja ct
desareveforee heecked so that it will not destroy other resorees and human life
and property.


[Vol. 41


Finally, increased public understanding of the interrelationship be-
tee the various physical problems can be expected to lead owar
more practical utilization of true watersled boundaries than ha been
tne case m tne pas. Although current msmtutonal concepts Vr
tetnee to -c exiting count-y n' at pnlitflal1 .riAs. thee has
been -relatively little usage of true watershed boundaries in dtrict |
orgit For example, clting tne Midwestern drainage enrpr
al ,, taere are numerous instances where the efficiency and effectiveness
of operation has been im ended by piecemeal district orgbanization.,-
ste o organzing one over istrt, segment i problem
a reaftSh e org-s zeT(I a 'separate d ist rits. -On occasion 'ftiisgi" amii bnal
pattern has resulted in uMiuf u er-distriet controversies which
could have been settled by efficient intra-disrit instration. n
many instances this type of organization was prompted by the unwilling-
ness of certain landowners to join the original district. By contrast
those advocatin or anization were so anxious to obtain aLnyD9 le
relief that they adopted t ne i ~eaTi soit a bird in the hand
is worth two in the bush, and as a matter of organizational expediency
distreto~munries were adjusted accordingly. Public understanding of
tmi problem 1i increasing rapidly. Conceivably the first major change
in existing district organization will not be in response to additional
functional requirements, but rather a consolidation process designed to
cope with inter-district problems already encountered.
Emphasis has been placed on the special assessment improvement
district as a vehicle for illustrating the motivating factors that have
governed the development of local group action affecting water use and
control. Only brief and indirect mention has been made of the vast
water use and control programs initiated by the higher levels of govern-
ment. Such procedure is in keeping with the concept that water use and
control districts are a local entity. Nonetheless, any contemplation of the
nature of the problems facing future group endeavors relating to water
use and control must consider the impact of such governmental pro-
There is, of course, a pronounced difference in the economic limits
encouMtM,- 'y MP "peclVHtass s0Mment improvement -p
those en t e' Z ff -gTovernifTappr ~;ace fo water use jii'e hrol.
O nef s ^ats aatt fin +t na,.A i enfits; the other
assumes such benefits to be so widespread that project financingbecomes
responsibility of the populace at large.
There Ja heen a definite trend in rpppnt year tn fnllnw the gonvn..
mental approach, thus shifting the bulk of financial responsibility to
generartaxation sources. Increasing attention has thereby been directed

I 1

196 IOWA LAW REVIEW [Vol. 41

to the educational and operational or maintenance type of local organi-
zation. Yet it would be decidedly unrealistic to assume that the appli-
cability of the special assessment type district will be severely limited in
the future. No mention has been made of themechanies involyel in
obtainng governmental assistance for project develo t. Suffice it
to say that it is often tnime-consming and wisa uncertain
quantityuntil:construction is actually completed. In those instances
where water control needs become acute and wteC-
cious, the practical limitations on general taxation funds at higher levels
of-gvernment can be expected to force successively more local elements
of government into action. It seems logical, therefore, to assume that ooth
systems will continue to fin&a^SMi t tpaaah nnrI
some extent by this dual existence.
There are some indications that this melting or modifying process has
already begun. The governmental approach was conceived in large part
by the inability of local areas to overcome certain economic limitations.
It is apparently being modified by the realization that general taxation
sources alone cannot escape similar economic limits. Recent attempts
have been made at the federal level of government to adopt legislation
which would reassign some of the financial responsibility to local units
of government.2
Similarly the economic philosophies governing special assessment
improvement type districts may be expected to respond to the influence
of the governmental approach. Perhaps factual study and research will
indicate that wider use of the governmental philosophy in the form of a
district-wide ad valorem assessment should govern the partial assign-
ment of benefits within a local improvement district. The previously
(a) -032r-------wL~.
28 agater Facilities Act of 1937, 50 STAT. 869-70 (1937), 16 U.S.C. 590 (r),
(s), (x) (1 i W fe y been amene V 8 STAT. 734-35 (1954), 16 U.S.C.
0( 590 (r), (a), (x) (Supp. II 1955), so the provisions of the act, previously limited
to arid and semi-arid areas of the United States, are applicable to the entire country.
It provides for government loans on a repayment basis for soil and water con-
servation work. Individual loans are limited to $25,000 and organizational loans are
limi to $250,000. The act is administered by the Secretary of Agriculture through
Farmers Home Administration.
68 STAT. 666-68 (1954), 16 U.S.C. 1001-07 (Supp. II, 1955). This act contains
provisions for the establishment of cost-sharing principles relating to federal assist-
ance in watershed protection and flood prevention.
S. 1857, 84th Cong., 1st Seas. (1955). This bill is currently before the Senate Com-
mittee on Public Works. It was evidently prompted by a desire to realign federal
policy on problems of water resources development. It proposes among other things to
establish a procedure for repayment by states and local governments of those costs
which can be properly adjudged to be reimbursable.


cited drainage decision in Ohio, and relatively recent legislation in North
Dakota lend credence to such a possibility.29
The major conclusion to be drawn is the need for ascertaining suitable
economic principles which will enable the development of future insti-
tutional dimensions based on fact, not fiction. There is reason to believe
that the problems of cost-allocation based on physical functions, and the
distribution of cost sharing among individuals and the various levels
of government are going to present the stiffest challenge for future
collective action affecting water use and control. Knowledge of this
subject should not be restricted to a costly solution by trial and error.
There is a tremendous need for study and research on an inter-discipli-
nary basis m oraer tnat the lawyer, engineer, and economist may de-
velop a worng Lerspeeive an und eraneir several inter-
ests in a mutual problem.

29N.D. Session Laws 1955, 34th L.A. e. 348.

Henry 0. Hartt

Last July Senator Hennings of Missouri complained, admitting some
exaggeration, that "if we piled up all the volumes of research and all the
volumes of hearings and statements and reports" on the proper organi-
zation of our water development programs, "we would probably have
enough to construct any one of our big multiple-purpose dams without
any additional building materials." Thankful as researchers may be
for the eleven volumes published in six years by the two Hoover Com-
missions and their task forces, the President's Water Resources Policy
Commission and the Commission on Intergovernmental Relations, these
were not commissions appointed to do research. Their recommendations,
sometimes reiterated, have produced almost no action. And little wonder,
for their recommendations would take power from some of the most
powerful agencies and interest groups our history has produced, or
redistribute economic burdens among them. Yet, in view of their
national assignments, these commissions could scarcely heed the demands
of particular groups for change, or assess the political forces which might
be mobilized to support change. The purpose of this analysis of the prob-
lems and opportunities for governing the water development of a partic-
ular river basin, the Missouri, is to bring to light the potentialities for
improvement, not merely an abstract design.


Physically speaking, the accomplishments of the Corps of Engineers
and the Bureau of Reclamation in the Missouri basin are impressive.
They have been at work on permanent improvements since early in this
century. But two-thirds of their projects, in dollar terms, have been
installed within the past ten years since they were authorized by the
Flood Control Act of 1944.2 Along the central trunk of the Missouri,
the Corps is now operating Fort Peck, Garrison, Fort Randall and
Gavins Point reservoirs; the first three of which lead the world for the
bulk of their earthen embankments. These reservoirs are so capacious

t Professor Henry C. Hart, Associate Professor of Political Science, University of
Wisconsin. Much of the material in this article is drawn from Professor Hart's book
on the environment and history of government water development programs in the
Missouri River basin, to be published in 1956 by the University of Wisconsin Press.
1101 CONG. R c. 10691 (daily ed. July 30, 1955).
258 STAT. 887 (1944) (codified in scattered sections of 16, 33, 43 U.S.C. (1952)).
This computation has been made from Hearings Before the Subcommittee on Publio
Works Appropriations of the House Committee on Appropriations, 84th Cong., lst
Sess., central section, pt. 1 (1955).


that the river has not, in three dry seasons, filled them. They will have
no difficulty checking the sort of flood which engulfed Sioux City three
years ago, and almost overcame the defenses at Omaha and Council
Bluffs. In the western part of the basin, the Bureau has completed 23
dams, 14 of them since 1944. There is enough water behind all these
projects to supply a year's normal flow down the Missouri River.
Yet, eleven years after the Picks and Sloan4 plans were combined" and
approved by Congress, the very people most closely identified with the
going program have their doubts as to its pattern of management. The
SMissouri Basin Inter-Agency Committee, the forum of seven federal
agency representatives and the governors of the ten basin states, which
reviews the progress and plans of work each month, is attracting less
attention. Some construction agency heads, and at least one state rep-
resentative, wonder whether it should not be strengthened.6 And around
certain local features of the Pick-Sloan Plan rage some of the nation's
bitterest political controversies. It is a situation quite in contrast to
that of T.V.A. whose present controversies come from a changed national
Example: The Flood Control Controversy
This summer the Corps of Engineers won renewed appropriations for
their stalled construction of Tuttle Creek reservoir. This brings the
heated and sometimes tragic dispute over the protection of the Kansas
River valley from floods as near resolution as present administrative
arrangements permit.
The dam, which the Corps regards as the key storage site for the
protection of Manhattan, Topeka, Lawrence, and Kansas City, has
been authorized by Congress for 17 years and blocked politically by
farmers in the reservoir area for 15. Tuttle Creek land owners, whose
great-grandfathers homesteaded in Kansas to save it from the slavery
forces, are no doubt of a stubborn stock. But their opposition had an
additional cause. They did not trust the completeness of the Corps' view
of flood damages and flood remedies. "There is nothing in the engineers'
plans, to my knowledge," said the owner of a 500 acre farm adjoining

3H.B. Doc. No. 475, 78th Cong., 2d. Sees. (1944).
S8S. Doo. No. 191, 78th Cong., 2d Seas. (1944).
5 Representatives of Corps of Engineers and the Bureau of Reclamation compiled
a reconciliation report which actually is what is referred to as the Pick-Sloan Plan.
Beconciliation Beport on Problems on Missouri Valey Project, H.B. Doo. No. 784,
78th Cong., 2d. Sess. 9 (1944), and 8. Doe. No. 247, 78th Cong., 2d Ses. 5 (1944).
Congress passed this as The Flood Control Act of 1944.
6 See the remarks of Dick Fabrick, Montana Representative at a meeting of the
Missouri River States Committee, Rapid City, South Dakota, St. Louis Post-Dispatch,
Sept. 8, 1955, p. 9A, col. 1.

200 IOWA LAW REVIEW [Vol. 41

the reservoir site, "for any of the upper reaches." 7 This sort of opposi-
tion continued on the very day the nation's worst flood crested in
Kansas City, July 13, 1951.
In 1954, with Tuttle Creek still stalled for want of appropriations,
General W. E. Potter of the Corps took a bold stand. He insisted that
Congress decide on Kansas River flood protection as of one piece. Until
he knew the key storage dam would be built, he would not recommend
a single urban floodwall, nor even an agricultural levee along the Mis-
souri below Kansas City. For the river, unchecked by the necessary
reservoirs, could overtop the levees, which would thus be, in his words,
"deathtraps." In twelve months he had his money for Tuttle Creek. No
spokesman for the Corps had ever confronted a "conflict among local
interests" so bluntly. The 1951 flood had, in fact, come upon a metropo-
lis protected only by twenty-foot walls. The Engineers protested that
only the nonexistent reservoirs could keep extreme floods below 30 feet;
but still they built the Kansas City floodwalls 20 feet high.8
The question remains in the Kansas River basin as elsewhere on the
Great Plains, whether nature is not one crisis ahead of the present plans.
With Tuttle Creek and two other authorized but unbuilt reservoirs, the
local floodwalls could safely pass every historic flood on the Kansas River
-except that of 1951. To contain such a rare superflood the Corps has
had to find seven more small reservoir sites as close as possible to Kansas
City. The surveys are still incomplete. How many of the new dams
will evoke the resistance Tuttle Creek did? How much of the $300,-
000,000 required will Congress concentrate in this one tributary valley,
as new disasters strike other rivers in other states?
Less intensively, more extensively, this is the flood control problem of
the Missouri basin. On the main river itself, down to the mouth of the
Kansas River, the Pick-Sloan Plan has harnessed floods. But farms and
cities are steadily encroaching on the natural floodplains in hundreds of
other localities. Plains valleys are flat; storage reservoirs are expensive
in dollars and in farmers' resistance. But the Corps is trying to protect
every human occupation of the river bottoms as soon as the cost of flood
damages grows beyond the cost of reservoirs or floodwalls. The volume
of national investment cannot keep up. Over a very long period the flood
losses actually incurred in an average.year will probably mount side by
side with the savings from flood damage prevented. In the basin as in
7 Hearings Before the Subcommittee on Civil Functions, Department of the Army
Appropriations of the Senate Committee on Appropriations, 82d Cong., 1st Sess., at
451 (1951).
8 See testimony of the officer who recommended the project. Hearings Before the
Subcommittee on Defoinencies and Army Civi Functions of the House Committee on
Appropriations, 82d Cong., 1st Sess., pt.1, at 446 (1951).


the nation, the question is being more insistently asked whether zoning,
insurance and forecasting are not needed to supplement engineering
controls on the rivers.9 Politically speaking, each new flood catastrophe
will involve severe questioning of the Pick-Sloan arrangement.

Example: Pick-Sloan Irrigation
The grand design of the Sloan plan was to extend irrigation into the
subhumid eastern plains. Here was Glenn Sloan's "new irrigation fron-
tier."'1 He selected it because large amounts of water could be diverted
eastward from the main river in North and South Dakota, but also be-
cause these areas were the hardest hit portions of the "Northern Dust
Bowl" in the thirties. They suffered more than Colorado, Wyoming and
Montana, where agriculture was adapted to drought.
From 1944 to 1954 the basin acreage supplied in whole or in part by
Bureau of Reclamation water supplies grew from 656,000 to 1,430,000.11
But almost the whole increase is in the already extensively irrigated
states of Colorado, Wyoming and Montana. Half a million acres of the
added irrigation can be credited to the Colorado-Big Thompson project,
entirely independent of the Pick-Sloan Plan. Throughout the Dakotas,
the Bureau has achieved only eight thousand acres of new irrigation.
But perhaps irrigation in the subhumid plains will have to wait until
the dry years return. As it happens, we can test that assumption by
the situation in Kansas. Through 1952, 1953 and 1954, the years of phe-
nomenal drought in that state, the Bureau has failed to gain a single
permanent irrigator; farmers on a few hundred acres of land bought
water on a year-to-year basis. Three reservoirs designed partly for
irrigation-Bonny, Cedar Bluff and Kanopolis-stood filled with water
through the worst-stricken area without evoking the organization of an
irrigation district to use the water. Yet, while the Bureau was balked
in Kansas, private irrigators put 60,000 new acres under the ditch in the
single dry year of 1954.12
The Pick-Sloan scheme has favored irrigation by permitting electric
power and flood*control to bear a large part of the costs of the present

9 MIsso~I BASIN SURvzY CoMMIssIoN, MissounI: LAND AND WATER, at 190
(1953); HOYT AND LANGBEIN, FLOODS C. V (1955).
10 Report of the Secretary of Interior, Missouri Biver Basin, S. Doc. No. 191, 78th
Cong., 2d Sess. 96 (1944).
11 See testimony of the Commissioner of Reclamation. Hearings Before Subcom-
mittee on 8. 555 of the Senate Committee on Irrigation and Beclamation, 79th Cong.,
MIssou RI BVER BASIN ANN. REP. 13 (1955).
ANN. REP. 161 (1955).


______ ~I


projects. But, by the same token, the Bureau has been involved in going
ahead with dams primarily for flood control only to find out that soils are
unsuitable, or that they are not wanted by the local farmers for irriga-
tion. That is precisely the case of Bonny and Cedar Bluff reservoirs.
Pressure to keep abreast of the progress of the Corps of Engineers, too,
seems to have put a premium on ill-considered irrigation projects in
Wyoming and Montana.'s
But there is a more intractable reason why the Bureau, instead of
finding a new frontier of irrigation in the subhumid eastern plains,
has lagged behind the general advance of irrigation there. It is that
lands which the Bureau is trying to irrigate in the eastern, moister por-
tion of the basin are already under cultivation in wheat, corn, or mixed
crops. Bringing them under the ditch is an intricate engineering prob-
lem, but it is also very much a problem in agriculture. The Bureau can-
not really adjust to this situation because it must not jeopardize na-
tionwide policies, like the limit of 160 acres upon the size of an irri-
gated farm, which fit the reclamation of desert land farther west. More-
over, the Bureau must not overlap too far the jurisdiction of the U. S.
Department of Agriculture.
Cost and Returns
Through June 1955, the Bureau and the Corps of Engineers had spent
$1.1 billion on projects authorized under the Flood Control Act of 1944.
Another $600 million had been spent in the basin upon pre-existing
navigation and reclamation works. Congress is now appropriating at the
rate of another $150 million every year.
This year, members of the House Subcommittee on Public Works
Appropriations were particularly skeptical about the very large amount
being spent on irrigation projects beyond the capability of the benefited
farmers to repay.14 Three-fourths of the ultimate cost of the plan's five
million acres of irrigation will be taken out of electric power revenues.
One-fourth ($661,312,000 out of $2,713,152,000) is all the irrigators
can repay. What worried the Congressmen especially*was that irriga-
tion projects now being started depend for even more than three-fourths
of their support on power revenues, which raises the question whether
the repayment ability of the great generators in the main river dams
may not be overdrawn before the Bureau gets to its more difficult irriga-
tion schemes.
The Corps of Engineers is vulnerable in its financing of the channel
and levee work along the lower river-the 760 miles from Sioux City
TAsK Fouat REPOrT ON W ra RzSOURCES AND POWnE, vol. 2, at 699-713 (1955).
4 Heariags, supra note 2.

[Vol 41


to St. Louis. The Missouri Basin Survey Commission held that the cost
of these programs exceeded the likely benefits, and "postponement of
further work on channel stabilization therefore would seem desirable, ex-
cept to protect high-value installations."15 But local pressures are intense
to save farms, roads and bridges from the river's natural meandering.
The Corps has been at this "channel pegging" job for 43 years without
finishing it; if it lets up now, its piling and revetments will be washed
away. Each year it receives five to eight million dollars, but because this
barely keeps up with the river's normal depredations, the final stabiliza-
tion of the channel is further away than it was in 1948. Landowners
for whom the Corps' channel work builds up new land out of the shift-
ing river bed, or who get protection behind the authorized 1,500 miles of
levees along the river, make no payment toward the capital cost of these
improvements. Why should land be reclaimed by these techniques at
federal expense, whereas the cost of reclaiming land by irrigation must
be returned to the treasury? This sort of question will become trouble-
some as people in all parts of the basin become familiar with the Pick-
Sloan program.
The Pick-Sloan Plan began in controversy, and it has come under at-
tack, partial or wholesale, perennially since. There is no general confi-
dence in it today, but there is still less confidence in the specific proposals
that have hitherto been urged as substitutes. Nevertheless, a study of
these attempts at reform has something to teach us about the sort of
organization that will or will not work.

Transplanting the Valley Authority
Mr. David E. Lilienthal quietly predicted as early as 1943 that no
great American region would deign to copy the Tennessee Valley formula
for reconstruction.1l Yet thousands of public spirited Missouri Basin
residents, who realized that compared to their own basin the Tennessee
Valley was small, poor, agriculturally depressed and governmentally
undeveloped, sought in the very initials of their movement, M.V.A.
(Missouri Valley Authority) to make it their model. This is less strange
than it seems. Americans lack interest in organizational reforms per se.
The only way non-engineers could criticize the Pick-Sloan prospectus of
great river control works was to look to an even more highly controlled
15 Missouna BAsIN SuRVEY COMMISSION, MissourI: LANDND ND WATER, at 123
16 Informal address by Mr. David E. Lilienthal, to T. V. A. employees, Knoville,
Tennessee, 1943.

. ___________

204 IOWA LAW REVIEW [Vol. 41

Had they probed behind physical accomplishments, behind even Mr.
Lilienthal's "essentials of the valley authority idea," they might have
uncovered an equally fundamental lesson of the T.V.A. It is a lesson
George Norris could have taught had he lived: of the patient exploration
of a valley's distinctive resources and needs, of the pre-testing of all
interim solutions, and the stubborn rejection of partial ones, which at
the end of a twelve year legislative fight brought forth the T.V.A. Act.17
It fit the valley well enough so that in a drastically altered political
climate it stands virtually unchanged.
Senator Norris did not start with a clean slate in the Tennessee Valley.
His initial problem was to dispose of an existing War Department
dam and chemical plant. The Corps of Engineers was at work on
Wheeler Dam when T.V.A. came into existence. Rechartering of the
Missouri basin development must reckon with even more firmly-estab-
lished federal programs, but that is not the basic difference between the
two legislative situations."1 Norris, and later President Franklin D.
Roosevelt, conceived T.V.A., and won it, virtually without reference to
the states affected, their governments or people. The valley was, when
the Act was passed, inert. What the Missouri basin public, economic
groups, state legislatures, governors and Congressional delegations
have been proving since 1944, is how far they are from a parallel pas-
sivity. (The M.V.A. groups showed it most clearly of all.) A solution
cannot be designed and legislated for the Missouri basin from Washing-
ton, much less imported from another basin. But there is a real sense
in which basin people, discovering that fact since 1944, and beginning
to hammer out a solution appropriate to their own situation, are more
nearly applying the legislative lesson of T.V.A. than they were when
they were trying to import the finished administrative model.

Coordination from the Grassroots
Where Congress, the President, comity among federal department
heads, and the Missouri Basin Inter-Agency Committee failed to effect
team work among federal water planners, states and local districts in
the Missouri basin have here and there tried to become coordinators. The
most hopeful experiment in grassroots coordination of U. S. departments
was launched in 1951 in the small Salt-Wahoo watershed surrounding
Lincoln, Nebraska. The problem in this million-acre subbasin is floods.

TRATION 10-11 (1943).
1848 STAT. 58 (1933), 16 U.S.C. 831a-dd (1952). Here I differ from the Mis-
souri Basin Survey Commission. MIssOURi BASIN SuVEY COMMISSION, MISSOURI:
LAND AND WATER, at 9 (1953).


They do a million dollars worth of damage a year; half to railroads and
highways, $300,000 of it to upland farms, $200,000 to Lincoln and other
cities. A flash flood on Salt Creek in May 1950 entered 580 houses in
Lincoln and drowned eight people. Flood losses were high enough so
that the Corps of Engineers recalculated the benefits to be expected
from a flood control plan they had drawn up six years before. In October
1950 they published it: four dams and levees down parts of both Salt
and Wahoo Creeks.
Meanwhile, indignation at flood losses had been channeled into a purely
voluntary body, the Salt-Wahoo Watershed Association. Raymond A.
McConnell, Jr., Editor of the Lincoln Journal, and Otto Liebers, Lan-
caster County dairy farmer, were co-chairmen. Mr. McConnell's paper
soon published the stand of the Association that "under no circum-
stances" would it "be ready even to consider" the Engineers' plan until
a U. S. Department of Agriculture survey had been made, embracing
small reservoirs and soil treatment measures to reduce upstream damages.
The Association had access to the Nebraska delegation in Congress; an
Agriculture Department survey was authorized in 1950. Balked politi-
cally, the Corps agreed to reexamine its plan concurrently with the
agricultural flood control survey. Field men of both agencies agreed on
the estimate of annual damages which has been summarized above. When
another flash flood came in June 1951, it looked as though a joint study
would lead to a joint recommendation.
The joint survey was scheduled for submission to Congress on Janu-
ary 2, 1952. Sometime before then, to quote a Congressional subcommit-
tee, "the inter-agency honeymoon ended."19 The Corps could not com-
plete its survey until May. At the insistence of the Watershed Associ-
ation, the Department of Agriculture's flood control plan was released
on schedule, and independently.
The Missouri Basin Survey Commission has analyzed both plans.20 As
might be expected, it finds neither wholly meets the needs of the entire
watershed. The Corps of Engineers offered no solution for the $300,000
of annual damages on farm lands upstream. The Department of Agri-
culture plan provided inadequate protection for the city of Lincoln. But
the separate schemes are not designed to dovetail together; their pro-
posed works and benefits overlap, so that the sum of their flood benefits
exceeds the joint estimate of flood damages. The separate reports have

19 Subcommittee to Study Civil Works, Report to House Committee on Public
Works, The Flood Control Program of the Department of Agriculture, House Comm.
Print No. 22, 82d Cong., 2d Sess. 30 (1952).


206 IOWA LAW REVIEW [Vol. 41

gone to separate committees of the House of Representatives, which are
thus, as one Congressman complained, "viewing the same problem from
separate corners."21
The Salt-Wahoo watershed, entirely within one state, lying largely
within the trade area of the city of Lincoln, and informed by the Lincoln
newspapers, offered as favorable a setting for grassroots coordination
of federal departments as can be expected. The experiment failed. The
lesson is, and it is supported by other instances in the Missouri basin,
that state or local initiative can stop a single-purpose federal plan and
thus apply pressure for interdepartmental teamwork. But the teamwork
only comes if the departments want it. The departments, sometimes
their separate bureaus, have their own obligations to Congressional com-
mittees and to nationwide organizations of their beneficiaries. Neither
states nor watershed associations, apparently, can do the job of executive
The Compact
In September 1955 the Missouri River States Committee, a twelve-
year-old organization of the ten governors, meeting in Rapid City, South
Dakota, resolved no longer to support an interstate compact to govern
the development of water resources in the Missouri basin.22 It was a
rather startling denouement for a movement which had captured much
attention in the basin and in Washington. Bills authorizing the negoti-
ation of such a compact had in fact twice passed the Senate, though they
had not reached a vote in the House.
Desire for a compact reflected, in part, the great prestige of the com-
pact device in the semi-arid West as a means of agreeing upon the allo-
cation of interstate waters." Compacts have been ratified, and have won
Congressional consent, allocating the waters of the South Platte (1923),
the Republican River (1943), the Belle Fourche (1944), and the Yellow-
stone (1951).24 As the dates suggest, both the need and the ability of the
states to agree have been heightened by the new Bureau of Reclamation
plans for extensive storage and full exploitation of Missouri tributaries
in the last dozen years. Yet compact negotiations remain far from ex-
peditious. The Yellowstone River Compact was under negotiation for

21 Subcommittee to Study Civil Works, op. cit. supra note 19, at 35.
22 St. Louis Post-Dispatch, Sept. 8, 1955, p. 9A, col. 1.
23 Dean H. T. Person of Wyoming College of Engineering and the late Judge
Clifford Stone of Denver, leading proponents, long served their states as members of
compact commissions.
24 South Platte River Compact, 44 STAT. 195 (1926); Republican River Compact,
57 STAT. 86 (1943); Belle Fourche River Compact, 58 STAT. 94 (1944); Yellowstone
River Compact, 65 STAT. 663 (1951).

1956] GOVERNING THE MI88a UIs 207

19 years; the national average time required to complete, a river com-
pact from the start of negotiations is eight years, nine months.25 The
1952 Wyoming Legislature for the second time rejected the Cheyenne
River Compact to which her negotiators, along with those of South Da-
kota, had agreed.26
The Draft Compact for the Missouri River basin27 appeared superfi-
cially to do what these compacts did-to allocate rights among the
signatories-and therefore to involve their difficulties. Moreover, the
federal government, not merely states, was to be bound. "Certainly a
Federal-State Compact would raise constitutional questions....." warned
the majority of the Missouri Basin Survey Commission.28 But two
authorities on compacts, who took part as consultants in drafting this
one, saw no difficulty. Congress could, they clearly assumed, abrogate
a compact by new legislation, just as it could overturn any agency estab-
lished to manage federal programs on the Missouri.29 Or, it has been
suggested, Congress might merely terminate its consent to the compact.a0
Much of this argument becomes academic if the intentions of the
compact advocates are accurately reflected by the Draft Compact. It
allocates no rights. For all its stress on voting procedure in the federal-
state compact commission (federal commissioners to have a combined
vote equal to that of state commissioners), the commission would have
only the power "to review agency proposals."81 That power the states
were given ten years ago in the Flood Control Act of 1944. As consult-
ants in the drafting of the compact say, "[I]t is difficult to conceive of
any order that the joint agency could give to any federal officer, other
than an order to supply the agency with information in his possession."82

26 WYO. STATE ENGINEER ANN. RFPT. 17 (1953-54).
(1953). "To some it is unclear as to how Congress could dispose of matters in regard
to a compact that a future Congress would be bound thereby." COMMISSION ON
ON WATER RESOURCES AND PowER, voL 3, at 1719 (1955).
29 Zimmermann and Wendell, Bepresentation of the Begion in Missouri Basin Or-
ganisation, 48 AM. POL. SCI. RaV. 152, 160-61 (1954).
Draft 1953).
a2 Zimmermann and Wendell, op. cit. supra note 29, at 161.


That the limitation is apt to be imposed on any compact which wins
congressional approval became apparent in the last session of Congress
when the Senate passed the bill authorizing compact negotiations. The
bill was amended to eliminate from the scope of any resultant compact
the coordination of federal programs in the basin. That is, of course,
the need out of which present dissatisfaction arises.
All this made it clearer that the states cannot gain any legal right to a
portion of the power of decision in the wielding of federal constitutional
powers. Search for such a right is a chimera.
The true authority of the states, not as governments but as bodies of
citizens, in the exercise of federal powers lies, of course, through their
representation in Congress. Whatever procedure better informs that
delegation of twenty Senators and thirty to forty Representatives of the
interests of the basin populace will make more responsible the only, and
the amply potent, authoritative participation open to the people of the
states. The participation of the ten governors in the Missouri Basin
Inter-Agency Committee does that; the Salt-Wahoo Watershed Associa-
tion readily accomplished it on a small scale. The federal-state body
created by the Draft Compact might have done it better, and it is this
essentially political strengthening of influence which seemed to be the
aim of governors on the Missouri Basin Inter-Agency Committee like
Peterson of Nebraska and Anderson of South Dakota in seeking a com-
pact. The strengthening, however, would be a function of the public
interest and understanding generated in the negotiations, and the calibre
of representation on the resulting compact commission. The governors
had apparently decided by 1955 that a compact was an arduous way to
reach these simple gains.
Both the needs and the opportunities to strengthen the organization
of the development arise out of the work in progress in the basin. In all
the voluminous literature on water resources, there is only one report
based on a professionally competent, on-the-spot study of the Missouri
development. That is the report of the Missouri Basin Survey Commis-
sion in 1953. Appointed by a Democratic President without Congres-
sional sanction, and received in the first month of a Republican adminis-
tration, the report created no political stir. But the Commission com-
prised vigorous and independent Representatives and Senators of both
parties, along with citizens capably reflecting the viewpoints of various
professions and areas within the basin. Its chairman was the editor of
the Lincoln Star, Mr. James E. Lawrence, who led the diverse and
bipartisan group of eleven to the production of a report unanimous
except for one finding and one recommendation. Mr. Paul J. Cannell, the

[Vol. 41


Commission's staff director, was a distinguished consulting engineer; the
Commission had the staff help also of informed men of a variety of
Senator Thomas C. Hennings, Jr., of Missouri, who was vice-chairman,
has twice introduced bills which reflect the thinking generated by the
Commission's study. His latest bill, S. 2728, was introduced on July 30,
1955; presumably it will go to hearings in the Public Works Committee
early in the second session of this Congress. Senator Hennings seeks
in the bill to encompass the reconcilable positions of both the majority
report and the dissent on the only matter which divided the Commis-
sion.33 He provides appropriate roles both for the majority's federal
commission, and for the board created by interstate compact preferred
by the minority. Because the bill proceeds from such broad-based and
informed thinking, it has been selected to point up in specific form the
conclusions which are drawn below.

What Needs Coordinating?

The initial assumption of those who approach the problem is that the
real need for coordination of the Missouri River development arises from
the problem of operating the 30 reservoirs now storing water.34 The
Bureau has reservoirs above those of the Corps on the Kansas River
tributaries, and on the upper Missouri; almost every new reservoir will
be operated at least for flood control (which is the Corps' concern) and
irrigation (which is the Bureau's), in some cases for power and other
purposes. The agencies now hold that sufficient coordination can be
obtained by getting interagency approval of annual operating plans
once or twice a year. The Division Engineer of the Corps has in his
Omaha office a Reservoir Control Center, bearing on its door the names
of the Bureau and the basin states as well.35 It functions in this way,
but only for the large mainstream reservoirs. The Bureau through its
Denver and Billings offices makes up separate reservoir release plans,
considering its rights under state laws, and the irrigation storage avail-
able in non-federal reservoirs. On the Kansas River system the Bureau
has eight reservoirs and the Corps two; coordination is provided by

33 See his statement to this effect at 101 CONG. REc. 10692 (daily ed. July 30, 1955).
34 "Reservoir operation thus is of prime importance in terms of influencing the fu-
ture development of the Basin," concluded the staff study with which the Council of
State Governments approached the task of drafting a compact. COUNCIL or STATE
35 Except Wyoming, whose officials are debarred by law from recognizing an ap-
propriation of Wyoming water outside the state, except with legislative consent.



advance agreement to operating rules, modified by telephonic agreement,
if necessary.86
What present experience has not demonstrated is that mere intercom-
munication, without common direction, can deftly route a flash flood
through a chain of reservoirs taxed to capacity, or extract all the kilo-
watts which can be safely wrung by passing the water through the tur-
bines in the process.87
Operation, however, is not yet the main occasion for coordination. The
Pick-Sloan Plan is but one-fifth complete, even in terms of expenditures,
less so in terms of difficulty of development. It is in every phase of pro-
gramming the new work that, as we have observed, the shortcomings of
the present administrative pattern stand out. It is certainly not enough,
if these shortcomings are to be made good, to bring plans of several agen-
cies and several professional groups to a common table for reconciliation
after they have been drawn. Administration through a federal commis-
sion, as proposed by the majority of the Survey Commission and by
Senator Hennings, scores here over the compact commission, which for
want of national powers might not be able to direct joint surveys.38
What is not generally realized until one has watched a joint project
survey going on is that the differences between soil conservationists and
civil engineers on the flood-reducing capacity of small reservoirs, or the
difference between reclamation engineers and agronomists on the in-
creased yields which can be expected from irrigated farms are not mere
interagency disputes. They are interprofessional differences as well, on
which new research is needed, but which also call for the broadening of
the backgrounds and widening of the contacts of project investigation
parties. The Missouri basin needs men of new professions to plan its
flood control from the pastures down to the floodplains, and to design
irrigation for subhumid climates and going agriculture.39

ANN. BEP. 206-15 (1955).
37 The classic argument for a common service and direction of water dispatching
is advanced in McKinley, The Valley Authority and Its Alternatives, 44 Am. Pot.
COMPACT, art. VII, I 1 (Rev. Draft 1953); and S. 2728, 84th Cong., 1st Sess. 8(d)
(1955), assume that common control over the operators would be enough without an
integrated service.
4, 5 (Rev. Draft 1953), with S. 2728, 84th Cong., 1st Sess. 7(g) (1955).
3a The difficulty of trying to develop such new professional skills and biases within
a single bureau is highlighted by the reorganization of the Bureau of Reclamation
to include agricultural professions in 1947, and the training of the watershed sur-

[VoL 41


By far the greatest obstacle to sound development at present is the
process of logrolling by which projects are selected for construction,
priorities established among them, and their rate of progress fixed. It is
no good grasping this nettle lightly. The Hoover Commission, the U. S.
Bureau of the Budget, several Presidents of the United States, and most
recently the House Committee on Appropriations have alike been frus-
trated in attempts to establish a review of river projects on their merits.
Unless the raw materials for logrolling are eliminated at every step of
the process of budgeting and appropriation, the most careful economic
analysis and impartial review of projects will be disregarded in the
actual appropriations. The first step is to transfer to local districts and
state governments many of the spending decisions which, because of their
strictly local bearing, can only be considered via logrolling if they reach
Washington. It is upon this point that the greatest consensus can be
found among the reports of the second Hoover Commission, the Commis-
sion on Intergovernmental Relations, and the Missouri Basin Survey Com-
mission.40 Whether Salt Creek should be confined in floodwalls through
the city of Lincoln, Nebraska, for instance, is something the taxpayers of
that city, through their municipal government, should decide. Partial
plans, like the proposal to build floodwalls along the Kansas River with-
out the reservoirs that would make them safe, should not be presented
for support. A consolidated work program, with priorities, should be
presented annually to public hearing in the basin. A single appropriation
request should be made to the projects of river development in the basin,
so that decisions will come before a single subcommittee for congressional
hearing and action.4
Senator Hennings has provided, in his bill, a budgetary procedure
which would be of crucial importance in preserving the priority of pro-
jects agreed to in the basin. He calls for the basin budget to be prepared
upon at least three rates of investment, so that Congress will not act with-
out considered recommendations in adding or dropping projects as the
national rate of spending may require.42

veyors of the Soil Conservation Service today. The greater difficulty of trying to
develop irrigation-agriculture teams between bureaus stands out in the attempt to
employ the Wheeler-Case Act on Angostura, Mirage Flats and other basin projects.
REPORT ON WATER RESOURCES AND POWER, vol. 1, at 36-37, 73 (1955); COMMxIsION
41 There is no such provision in S. 2728, 84th Cong., 1st Sess. (1955).
42Id. $ 8(b).


212 IOWA LAW REVIEW [Vol. 41

A consolidated basin water development budget has one further advan-
tage. It would permit the suballocation of funds from the appropriated
budget to those departments and agencies whose work is peripheral yet
necessary to the program of water resource development. From the basin
water development budget, for instance, support might be given the U. S.
Department of Agriculture to accelerate its regular soils survey in a
county where an irrigation unit is planned. Such a use of grants within
the Department of the Interior has been the strongest instrument of
coordination among the Bureau of Reclamation, the Geological Survey,
and the other peripheral bureaus engaged on Missouri basin work.
A Basin Account
The present program suffers from the fact, evident in the case of costly
irrigation projects and flood control schemes of strictly local benefit, that
the basin public has no sense that pressure for such projects jeopardizes
the economic soundness of the overall development. There is no basin
Unfortunately, the Bureau of Reclamation has used the term "basin
account" in a way which has attracted criticism. For the Bureau shows
all its Sloan Plan works as reimbursable in a unit from power revenues.
Congress and the basin public are denied the responsibility of deciding
whether each separable unit added is a legitimate claim on power rev-
enues. What is needed is a basin account which will at the same time
show the economic soundness of each use of water and of each project
which can be undertaken separately. This requires, of course, a sound,
agreed cost allocation to flood control, navigation, irrigation, electricity,
municipal water supply and pollution abatement.43
Preparation of a basin account will encourage the redistribution of the
cost burdens of development programs more nearly in accordance with
benefits received. It will point up, for instance, the inequity in requiring
reimbursement of federal irrigation costs while presenting land reclaimed
by a different technique-accretion of alluvium in the floodplain-as a
windfall to the adjoining landowner. This sort of redistribution of the
burden will permit the development to focus on those works which have
the most general benefits.44
Support for Coordination
Political strength to accomplish the types of coordination suggested
might be exerted by a vigorous President, interested in the internal
development of the great sections of the country. It might be accumu-

48 MImsouRi BAsIN SUBVE CommissioN, MIssouI: LAND AND WATER, pt. V (1953).
44S. 2728, 84th Cong., 1st Sess. 8(e), (e) (1955).


lated patiently by a present-day Norris in Congress. If leadership should
appear from either source, the base of power of the administrative organ-
ization created would properly reflect federal initiative.
At the present time, however, support for organizational improvement
lies mainly in the state governments. It was Governor Forrest Donnelly
who forced the first joint flood-control survey of a subbasin (that of the
Osage River) in 1947. It was Governor Val Peterson who promoted the
interstate compact in 1951. But the qualifications of the state govern-
ments to exert a dominant influence for reorganization are not merely
personal. Missouri basin state governments are not patronage-ridden,
weak, or backward. On many fronts they have constantly improved their
internal organization and programs for irrigation, watershed protection,
ground water control, allocation of water rights, research and the collec-
tion of basic data. They have in their colleges of agriculture and engineer-
ing the basin's most powerful research staffs. It is state subdivisions-
watersheds, drainage districts, irrigation districts, soil conservation dis-
tricts, conservancy districts-which are already operating parts of the
basin program and collecting part of its cost.
Moreover, the potential role of the states is much greater. Effective
flood control through vast areas waits on their floodplain zoning laws
and programs. Irrigation in subhumid portions of the basin will require
much fuller responsibility on the part of the states. It is at present,
therefore, not only unavoidable but highly justifiable that state govern-
ments be given an intrinsic role in the coordinating machinery.
Senator Hennings' procedure for doing this is attractive. He proposes
that a Compact Board created by interstate compact along the lines
suggested by the minority of the Survey Commission or the Council of
State Governments act as a reviewing body to the federal Missouri Basin
There is an alternative for the representation of the states in the re-
view of basin programs. It would be based not upon a compact, which
seems at least for the present to have lost the support of the state govern-
ments, but upon the present Missouri Basin Inter-Agency Committee.
The strength of that body now is precisely its forceful representation
of the viewpoints of the state governments. Its weakness is that it can-
not decide questions involving federal policy, particularly federal inter-
agency policy. Its U. S. representatives, being at the regional level, must
refer important decisions to Washington. For them, suppose that their
Washington bureau chiefs be substituted. The committee could not then,
of course, meet every month or serve its present function as a peripatetic
forum for newspaper coverage of the basin program. It would not need
to if the program were coordinated at an earlier stage in the planning

_I_ 1_ __ ______ _~ __~_____


of projects. On the other hand, the governors would learn the consider-
ations of national policy which might make the Bureau cautious in modi-
fying the 160-acre limit on reclamation projects in the basin, or prevent
the U.S. Department of Agriculture from accelerating its programs of
watershed treatment in the Missouri basin beyond the nationwide rate
of expenditure. In turn, the federal agency heads, confronted with the
politically effective expression of interests within the basin, would be
impelled to commit their support to the coordinated program for the
basin unless sound national interests dictated otherwise. Without this
sort of direct confrontation of existing federal agency heads (whose in-
terests in the present administrative arrangement and lines of political
support are firmly vested) by the politically uninhibited champions of
program coordination, the necessary degree of administrative and budg-
etary coordination could scarcely escape covert resistance by the existing
Administrative Direction
Senator Hennings supports the recommendations of the Survey Com-
mission for a five-member federal commission to direct the coordinated
program.45 His suggestion that the President make his appointments
from a list of names submitted by the governors in consultation with
the members of the Congressional delegations from their states, three
names from each state, is justified by the governors' present responsible
position in the coordination of basin development.
Here, again, it is well to keep an alternative under consideration. If
a program of work is agreed upon by a Compact Board, or by a recon-
stituted Missouri Basin Inter-Agency Committee, policy might be clear
enough to entrust to a single basin "Water Conservator." He would have
great advantages in symbolizing the unity of programs, projects and
participating agencies in basin development. His prominence and ad-
ministrative flexibility as compared to a commission would permit him to
exact cooperation from the existing agencies with a minimum of compul-
sion and central staff. Would the state governments and public opinion
in the basin accept a single coordinator ? Now and then many groups and
communities within the basin have bestowed trust, even faith, upon a
single powerful administrator. General Lewis A. Pick won it, though as
a fighter of flood and blizzard. A man whose roots went deep in some part
of the basin might win it upon a steadier basis; if so, the contribution he
could make to unifying water programs in the basin would reach far
beyond the capabilities of a commission.
The Pick-Sloan Plan is not the first resource program designed for that
part of the United States drained by the Missouri River. Digging back,
45 Id. 3.


one comes upon the older reclamation and navigation schemes, the Tim-
ber Culture Act,46 the railroads' settlement programs, the Homestead
Act.47 A common thread runs through them all. Plans made from the
centers of government or trade, from Washington or Chicago, were ex-
tended upon the basin's transitional geography. They counted on more
favorable conditions of soil or moisture than nature could deliver on the
Great Plains-every year. Perennially, the larger plans were frustrated.
That was the time for interest groups, in the basin and out, to convert
them to parochial advantage. The basin itself was never enough alike, its
people never knew precisely enough what they could expect from nature,
could never communicate their hard-earned lessons well enough among
themselves, to revise the plans in their own interest. For the plans fit
country where it was always wet or always dry. Here, it is sometimes
one and sometimes the other, but usually in between.
There is no reason why this last grand design upon nature should fol-
low the accustomed cycle. But neither is there any reason to despair
if it takes some time to break free.

44 17 STAT. 605 (1873) (later amended by 18 STAT. 21 (1874) and repealed by 26
STAT. 1095 (1891)).
47 26 STAT. 1097 (1891), as amended (codified in scattered sections of 16, 30, 43,
48 U.S.o. (1952)).


Eugene Davist

It has been reported that several thousand acres of private farm land
in Iowa are under irrigation, and that there is greatly increased interest
among Iowa farmers in irrigating corn and pasture crops as a supple-
ment to natural moisture.1 The Iowa Natural Resources Council stated
in 1950, and again in 1954, that Iowa law governing the subject of pri-
vate water rights is somewhat indefinite and will hinder the expansion
of beneficial consumptive water uses in the state unless clarifying legis-
lation is enacted.2 The Council has also suggested that our system of
water rights is inherently inconsistent with the widespread use of water
for consumptive purposes, and that a change in the basic water law of
Iowa is, therefore, vitally necessary.3 In recognition of the rapidly in-
creasing use of irrigation in farming operations, the Iowa Legislature,
in 1955, passed a Joint Resolution providing for the appointment of a
water study committee, whose task it will be to make a comprehensive
study of this general subject (including drainage laws) and to report its
findings, together with proposed legislation, to the Governor before the
next meeting of the Legislature.4 It thus behooves the Iowa lawyer who
would keep up with the times to become cognizant of this situation, and
to acquire a certain familiarity with the Iowa law governing the subject
of private water rights. Iowa law on this topic is found chiefly in the
decisions of the Iowa Supreme Court (there being only a handful of
statutes which have any bearing on the field), and this article represents

t Member, Des Moines, Iowa, Bar.
1 Des Moines Register, March 14, 1955, p. 11, col. 1; Iowa Farm and Home Register,
June 5, 1955, pp. 6-7. The latter article describes in detail some irrigation projects
near Irwin, in Shelby County, Iowa. See also, Iowa Farm and Home Register, August
21, 1955, p. 7, describing an extensive irrigation project near Essex, Iowa, involving
the storage of water in reservoirs.
ING JUNE 30, 1954, pp. 10-11.
8 Ibid.
4 Iowa Laws 1955, 56th G.A. c. 326. The subject matter of the study is outlined in
section 2 of this chapter, as follows:
It shall be the duty of said committee to make a comprehensive study of
drainage problems, drainage laws, underground and surface waters within
the borders of the State, the present and prospective use of irrigation in
farming operations, water rights, existing legislation and court decisions
affecting such matters, and Federal laws providing for Federal assistance
in such matters.



the author's conception of the present Iowa law on this subject, under
such decisions.5


There are two systems of law prevalent in the United States governing
the use of water flowing in streams--the doctrine of riparian rights, and
the doctrine of prior appropriation.6 The doctrine of riparian rights pre-
vails in the 31 Eastern States, which group includes the tier of states
bordering the Mississippi river on the west, while the system of prior
appropriation is recognized in the 17 Western States-in some of which
it is superimposed upon the system of riparian rights.7
The doctrine of riparian rights is built around the general proposition
that the owner of land adjacent to a stream is entitled, as a property
right incident to the ownership of such land, to have the stream flow
naturally through or past his premises, neither diminished nor artificially
augmented in quantity, and unimpaired in quality. He is entitled to
use as much of the water in the stream as he needs for household and

5 This article does not cover the question of ownership of the beds of lakes or
streams nor the related question of acquisition of title by accretion except insofar
as such questions relate to the subject of rights in water. In general, title to the beds
of navigable lakes and streams, and of non-navigable lakes and streams which were
meandered in the government survey, remains vested in the government; while title
to other streams and lakes is in the owner or owners of the adjoining land-each
taking to the thread of the stream if it forms the boundary between them. Holmes v.
Haines, 231 Iowa 634, 1 N.W.2d 746 (1942); Shortell v. Des Moines Electric Co.,
186 Iowa 469, 172 N.W. 649 (1919); Watt v. Bobbins, 160 Iowa 587, 142 N.W. 387
(1913); Bennett v. National Starch Mfg. Co., 103 Iowa 207, 72 N.W. 507 (1897);
Noyes v. Collins, 92 Iowa 566, 61 N.W. 250 (1894); Brown v. Cunningham, 82 Iowa
512, 48 N.W. 1042 (1891); Serrin v. Grefe, 67 Iowa 196, 25 N.W. 227 (1885). This
article is likewise not primarily concerned with the subject of the flow of surface
waters, nor with the matter of prescriptive rights in water, although those matters
will be mentioned briefly later. Finally, this article does not cover the question of
rights of navigation on streams and lakes nor the subject of the right of a riparian
owner or a member to use the surface of the stream or lake for boating, fishing and
kindred purposes. See, however, on the latter question, Peek v. Olsen Construction Co.,
216 Iowa 519, 245 N.W. 131 (1931); Board of Park Comm'rs v. Diamond Ice Co., 130
Iowa 603, 105 N.W. 203 (1905). See, generally, Woodbridge, Bights of the States
in Their Natural Resources Particularly as Applied to Water, 5 S.C.LQ. 130-40
SSee 56 AM. JUR., Waters 273-322 (1947); RESTATEMENT, TORiTS 850, Scope
Note at 340-1 (1939); Wiel, Fifty Years of Water Law, 50 HARV. L. RaE. 252 (1916).
7 Ibid. Coates, Present and Proposed Legal Control of Water Besources in Wisoon-
sis, 1953 Wis. L. Ray. 256; Busby, American Water Rights Law, 5 S.C.L.Q. 106-7

i _____



other domestic purposes, and may use the water for other purposes, sub-
ject, however, to the equal right of each riparian owner above and below
him to make use of the water in the stream for similar purposes. The
owners of land up and down the stream are tenants in common, so to
speak, of the water contained and flowing therein, and if there is not
enough water to go around each owner must curtail his own uses (other
than domestic uses) so as to give effect to the equal rights of other ripar-
ian owners in the water.8 Generally speaking, owners of non-riparian
land and members of the public have no right to make consumptive uses
of the water.9
Under the system of prior appropriation, the right to divert and make
consumptive use of a certain amount of water from a stream can be ac-
quired by making claim thereto, under the applicable procedure, and by
diverting such amount of water and devoting it to a beneficial use. The
right does not depend on owning land next to the stream, and if there
is not enough water to go around among all of the appropriators the one
who is "first in time is first in right," even if it means that junior ap-
propriators will get no water at all.10

8 56 AM. Jua., Waters $ 273-76 (1947); RESTATEMENT, TORTS 850-57 and Intro-
ductory Note at 341-50 (1939). The doctrine is stated by Coates, supra, note 7, at 264,
as follows:
The riparian owner, as such, is entitled to have the stream or lake flow by or
through his land substantially undiminished in quantity or quality. This
strict right to the natural flow of the stream or natural level of the lake is
subject however to a privilege on the part of an upper riparian owner to make
a reasonable use of the water as it flows past his land.
See also, Agnor, Biparian Bights in the Southeastern States, 5 S.C.L.Q. 141, 143
(1952), summarizing the doctrine as follows:
Each riparian proprietor is entitled to have the watercourse flow by or
through his land in its natural course, quantity, and quality, subject only
to reasonable use by other proprietors. He, in turn, is entitled to make use
of the water in the stream while on his land in any way he sees fit, provided
that he does not by such use unreasonably affect the rights of an upper or
lower riparian proprietor.
The doctrine of riparian rights is said to have originated in decisions of the American
jurists Story and Kent, who borrowed it from the French Civil Code. It was later
adopted by the English Courts, and, having thus achieved respectability, finally be-
came a part of the common law of most of the states of this country. See Busby,
supra, note 7, at 109-16. According to the Restatement of Torts the doctrine breaks
down into two theories-the "natural flow" theory and the "reasonable use" theory.
RESTATEMENT, TORTS 850, Introductory Note at 342-46 (1939). However, as the
Restatement recognizes, the two theories tend to become blended in practice. Certain-
ly it could not be said that the Iowa Supreme Court has consistently followed one
theory or the other.
9 56 AM. Jun., Waters 283 (1947); Busby, supra, note 7, at 107.
10 6 AM. Ju., Waters 291-305 (1947); Busby, supra, note 7, at 107; Huron-



The doctrine of riparian rights has always prevailed in Iowa. Some
of the cases applying the doctrine to specific problems are discussed later
herein, but first it is necessary to clarify further the area of discussion
by defining two terms: "natural watercourse" and "riparian land."

Natural Watercourses
The law of riparian rights in streams attaches to any natural water-
course; and the term "natural watercourse" has been defined very broadly
by the Iowa Supreme Court. If water naturally and habitually follows
a certain line of flowage, within reasonable limits as to width, the line
of flow is a natural watercourse.1 A natural watercourse need not have
a definite channel or banks, and the term includes a swalee."12 It need
not be entirely natural, but can be "aided by the hand of man," as by
deepening or straightening a swale or stream.13 An artificial ditch may
become a natural watercourse by lapse of time (10 years) as between
private individuals, on principles akin to the creation of an easement by
prescription,14 but not when the rights of the public are involved, be-
cause neither the statute of limitations nor prescriptive rights may be

Water Bights in Nebraska, 29 NzB. L. ERz. 385 (1950). The doctrine is described
at p. 396 in the latter article as follows:
Prior appropriation is generally defined as the doctrine by which a property
interest in the use of a definite quantity of the water of a natural stream may
be acquired by appropriating and applying it to a beneficial use. Once an
appropriation is made the right acquired is deemed to be superior to the
rights of all subsequent appropriators upon the same stream. Thus the
maxim 'First in time, first in right' is the essence of the principle. It is
quite common, therefore, to refer to a vested water right as a priority.
The doctrine is said to have grown out of the practices of gold miners in early days
in California and to have spread to other western states when irrigation became im-
portant to the economy of the West. Id. at 393-96. In some of the western states
the doctrine of riparian rights has never been applied. In others it has been tried and
later rejected, and in some the doctrine of prior appropriation has been super-imposed
upon the riparian system. Ibid. See also, Busby, supra, note 7, at 117-29; RESTATz-
MzNT, TORTs 850, Scope Note at pp. 340-41 (1939); Coates, supra, note 7 at 268;
Heman, Water Bights Under the Law of Montana, 10 MONTANA L. BV. 13 (1949).
11 See, e.g., Durst v. Puffett, 181 Iowa 14, 163 N.W. 201 (1917); Hinkle v. Avery,
88 Iowa 47, 55 N.W. 77 (1893); RESTATEMENT, TORTS 841 (1939).
12 Ibid. Chicago B.&Q. By. v. Board of Supervisors of Appanoose Co., 182 Fed. 291
(8th Cir. 1910); Dodd v. Blezek, 66 N.W.2d 104 (Iowa 1954); Stouder v. Dashner,
242 Iowa 1340, 49 N.W.2d 859 (1951); Hunt v. Smith, 238 Iowa 543, 28 N.W.2d
213 (1947); Hull v. Harker, 130 Iowa 190, 106 N.W. 629 (1906).
18 Logsdon v. Anderson, 239 Iowa 585, 30 N.W.2d 787 (1948); Falcon v. Boyer,
157 Iowa 745, 142 N.W. 427 (1913).
14 See Nixon v. Welch, 238 Iowa 34, 24 N.W.2d 476 (1946).


220 IOWA LAW BRVIEW [Vol. 41

urged against the public.16 Under the foregoing principles, open drain-
age ditches which have been in place for 10 years should be considered
to be natural watercourses, as between the private owners of land ad-
jacent thereto, particularly where the ditch is primarily a deepening or
straightening of a pre-existing watercourse.16

Riparian Land
The Iowa court has stated that a riparian owner is one "whose land
abuts upon a river."17 The question sometimes arises, however, whether
a riparian owner can purchase land contiguous to the riparian land, but
apart from the stream, and claim riparian rights as to the newly ac-
quired land which does not abut upon the stream. It is generally held
that riparian rights do not accrue to subsequent additions to the original
tract, but are limited to the smallest abutting tract held under one chain
of title leading to the present owner.'8 In any event, land which is out-
side the watershed of a stream is not considered riparian,19 nor is land
riparian which is separated from the stream by a highway or railroad
right of way.20
Interference With Natural Flow
The Iowa Supreme Court has consistently held that interference with
then--atuWra o .. I. r.-:-g- nak otin rmrR nther ring-
ian owner, is actionable. In the early case of Moffett v. Brewer21 the
deiendant's mill wheei had become fouled, at times, by backwater from
the plaintiff's dam and mill pond, a few miles downstream. Defendant,
who owned land across the river from plaintiff's mill, then dug a ditch
on his own land around the end of plaintiff's dam, thereby diverting the
water away from plaintiffs mill wheel. The court held that the defend-

15 Droegmiller v. Olson, 241 Iowa 456, 40 N.W.2d 292 (1949); Wheatley v. Cas
County, 239 Iowa 932, 31 N.W.2d 871 (1948); Brightman v. Hetzel, 183 Iowa 385,
167 N.W. 89 (1918). Cf. Logsdon v. Anderson, 239 Iowa 585, 30 N.W.2d 787 (1948)
(ditch doesn't become a natural watercourse by being maintained on defendant's own
land for more than 10 years).
SCI f. 56 AM. Jun., Waters 155, 282 (1947); Drainage District v. Suburban
Irrigation District, 139 Neb. 333, 297 N.W. 645 (1941) (holding that riparian rights
do not apply to artificial conduits such as drainage ditches). See also IowA CODE
455.159, 455.160 (1954), which may limit somewhat the exercise of riparian rights
in drainage ditches.
17 Peck v. Olsen Construction Co., 216 Iowa 519, 532-33, 245 N.W. 131, 137 (1933).
18 See collection of cases on this point in 5 S.C.L.Q. 178-81 (1952); 56 AM. JuR.,
Waters 277 (1947); RESTATEMENT, TOnTS 848-44 (1939).
1956 AM. Jun., Waters 278 (1947).
20 Id. 280; Cook v. City of Burlington, 30 Iowa 94 (1870).
21 1 Greene 348 (Iowa 1848).


ant would have had the right to collect damages by reason of the inter-
ference with his mill caused by plaintiffs dam, or perhaps to have plain-
tiff's dam lowered to the extent that its backwater would not create a
nuisance. However, said the court, the defendant's conduct in digging
the channel so as to divert the stream away from plaintiff's mill wheel
went further than was necessary to secure defendant's riparian rights-
was akin to using excessive force to repel a battery; thus it was a wrong-
ful interference with plaintiff's riparian rights, giving plaintiff the right
to recover damages for the wrong done.22 On several other occasions the
Iowa court has recognized the right of an upper riparian owner to have
the water in a stream flow naturally by or through his premises, unob-
structed by a dam placed downstream by the defendant.2
Another leading case involved a conflict arising out of the construction
of a dam across a river by the defendant for the purpose of creating a
pond from which to harvest ice in the winter.24 The dam, if completed,

22 The court said:
If the principle which appears to be well-recognized is correct, that a person
has no right to conduct a stream from its natural course to the injury of
others, though he has title to the land over which it passes, a diversion in a
case like this would we think be unjustifiable, even if done for the purpose
of abating a nuisance.
The right to have a stream fow on its accustomed course is recognized to be
universally incident to the property in the adjoining lands. It is a right
which the riparian proprietors on one side of a stream can, under no pretext,
be justified in drawing from those on the opposite side, though accomplished
by excavating a channel through their own land. By virtue of their owner-
ship, they are entitled to the use of the water flowing by, or over their land
in its natural current, without diversion, material diminution, or obstruction;
but no such proprietor has a right to divert or use the water to the prejudice
of another.
Id. at 351.
4 28 Harp v. Iowa Falls Electric Co., 196 Iowa 317, 191 N.W. 520 (1923); Watt v.
Robbins, 160 Iowa 587, 142 N.W. 387 (1913); Gibson & Kloppenstein v. Fischer &
Orton, 68 Iowa 29, 25 N.W. 914 (1885); Decorah Woolen Mill Co. v. Greer, 49 Iowa
490 (1878). In Gibson & Kloppenstein v. Fischer & Orton, supra, the court held that
priority in time of one use over another has no bearing on the riparian rights of the
two owners unless it amounts to prescription. Cf. 56 Am. Jun., Waters 343 (1947).
In Harp v. Iowa Falls Electric Co., supra, at 321-22, 191 N.W. at 522, the court made
the following statement as to riparian rights generally:
The nature of the right which a riparian owner has with reference to a stream
or river which crosses land owned by him is well settled in this state. Such
an owner is entitled to have the flow of water on his land at his upper prop-
erty line, and off his land at the lower property line, as the natural grade
at the bed of the stream will permit, with this qualification: that the upper
owner may reasonably detain and reasonably use the water as it passes over
his property.
The court also held, in the latter case, that the defendant could not excuse its wrongful
act by claiming that if plaintiff's machinery were more modern it would not be
adversely affected by the backwater from defendant's dam.
24 Gehlen Brothers v. Knorr, 101 Iowa 700, 70 N.W. 757 (1897).


would have temporarily obstructed the flow of the stream, and thus
would have interfered with the operation of plaintiff's mill downstream.
The plaintiff secured an injunction against the construction of the dam,
but on appeal the Iowa Supreme Court reversed the decree of the trial
court. After stating the general proposition that the riparian owner's
right to have the stream flow through his premises in its natural state
is qualified by the rights of other riparian owners to make reasonable use
of the water,25 the court enumerated several criteria to be employed in
determining whether a given use is a reasonable use within the meaning
of this rule, as follows:26
No statement can be made as to what is such reasonable use
which will, without variation or qualification, apply to the facts
of every case. But in determining whether a use is reasonable
we must consider what the use is for; its extent, duration, ne-
cessity, and its application; the nature and size of the stream,
and the several uses to which it is put; the extent of the injury
to the one proprietor, and of the benefit to the other; and all
other facts which may bear upon the reasonableness of the use.27
Applying these principles to the facts of the case, the court noted that
it would only take about 2/2 days for defendant's pond to fill, and then
the water would spill over the dam, flow on downstream, and turn plain-
tiff's mill as before. Under such circumstances, said the court, the de-
tention of the water by the defendant was not an unreasonable inter-
ference with plaintiff's rights. The court observed that if the riparian
rule as to natural flow were applied strictly it would eliminate almost
all beneficial uses of water in streams; and, to achieve a reasonable re-
sult, the right of a riparian owner to use the stream for power must yield
to the rights of upper riparian owners to gather water in reservoirs for
subsequent beneficial uses, if done in good faith and with as little inter-
ference as possible with the rights of others.

25 The court said:
Broadly stated, the general rule is that the owner of the land through which
a stream of water runs, has a right to have it flow over his land in the natural
channel, undiminished in quantity, and unimpaired in quality, except in so far
as diminution or contamination is inseparable from a reasonable use of such
Id. at 704, 70 N.W. at 758.
26 Id. at 705, 70 N.W. at 758-59.
27 Other criteria include:
[ [C]limatic conditions; the uses and customs of the neighborhood; con-
venience in doing business, and the indispensable public necessity of cities
and villages for drainage.
56 AM. Jun., Waters 342 (1947); see also, EBSTATEMENT, TORTs, 852-53 (1939),
setting out some general standards.


A riparian owner is not entitled to embank against the natural over-
flow of the stream, or to otherwise obstruct the flow of the same, when
the effect of such action is to cast increased water on the lands of other
proprietors, to their injury.2 This privilege against wrongful flooding
extends to non-riparian owners as well.29 Where the flooding is caused
by the acts of several downstream proprietors, each of whom obstructs
the flow of the stream somewhat, the tortfeasors are not jointly and sev-
erally liable, and the plaintiff must recover separately from each for
the damages arising from his wrongful act."8
No dam is tobe-eenatructed, maintained or operated in Iowa streams,
nor is water tjo be taken from such streams for industrial purposes unless
a permit has been secured from the Iowa Natural Resources Council.81
Apparently the Council has considerable discretion in granting such
permits,82 and it is directed by statute to determine and promote those
methods of constructing and equipping dams which will conserve and
protect public and private riparian rights.88 However, the riparian
rights, and the land itself, of owners who will be affected by the con-
struction of the dam, can be taken by condemnation, if necessary.84
Although the condemnation proceedings are binding on those made
parties thereto, the issuance of a permit under this chapter does not
prevent an injured landowner who was not joined in the condemnation
proceedings from securing the abatement of the dam as a nuisance or
from collecting damages.88 Once the improvement is in, the right of the
owner of the dam to utilize the fall created by the structure, and to
deepen the raceway if he wishes, is secured by statute."6

Diversion of Water from the Stream
Undoubtedly a riparian owner has the right to divert a stream flowing
through his own property and to make uses of it which do not diminish

28 Falcon v. Boyer, 157 Iowa 745, 142 N.W. 427 (1913); Keek v. Venghause, 127
Iowa 529, 103 N.W. 773 (1905).
29 Healey v. Citizens Gas & Electric Co., 199 Iowa 82, 201 N.W. 118 (1924).
so Tackaberry Co. v. Sioux City Service Co., 154 Iowa 358, 132 N.W. 945 (1911).
BINNIUM ENDINT JUNE 30, 1954, pp. 18-19, lists 50 active permits under this section.
Cf. IowA CODE c. 469A (1954), requiring a certificate of convenience and necessity
from the Executive Council for a hydroelectric plant.
82 IowA CODzE 469.5 (1954).
88 Id. 4 469.10.
84 Id. 4 469.17. Cf. id. c. 470, granting power of eminent domain for waterpower
improvements generally.
85 Healey v. Citizens Gas & Electric Co., 199 Iowa 82, 201 N.W. 118 (1924); Gehlen
Brothers v. Knorr, 101 Iowa 700, 70 N.W. 757 (1897).
86 IowA CODE 469.25 (1954).

*____________________________ ________ -. ___ --- __________ L U __ .-.- or -


224 IOWA LAW REVIEW [Vol. 41

its quantity or impair its quality, so long as he returns the water to the
stream before it leaves his land in such manner as not to cause injury to
others.37 On the other hn~ th "nnawful" diversion of any river,
stream, or pond from its natural course or state, to the injury or prej-

-er the Iowa Code._ Ithas been noted that the use of running water
aS"s Soce of power is a permissible use of the stream, so long as there
is no unreasonable interference with the flow thereof, to the detriment
of others. It is the consumptive use of water which causes the nt saerinn
problems, n aou which there is the most uncertainty.89 In dealing
with this ate t r- t h iar between so-eaM eq
"na ra uses" and "artificial uses" of water.

(a) Natural Uses. It is well settled that a riparian proprietor is en-
titled, as a real property right, to take from the stream, and consume,
such amount of water as he requires for his ordinary or natural uses. Use
of a stream as a watering place for one's livestock is a natural use of the
water, and interference with that right by diverting the stream so that
it does not follow its natural course across the pasture is an actionable
wrong.40 As against a lower riparian owner, an upper riparian owner
can consume all of the water in the stream, if that much water is required
by his livestock.1
In Willis v. City of Perry,42 the Iowa Supreme Court, after quoting
the classic statement of the riparian doctrine first formulated by Mr.
Justice Story in 1827,4' went on to state:

37 See, e.g., 56 AM. JUR., Waters 345 (1947); Logsdon v. Anderson, 239 Iowa 585,
30 N.W.2d 787 (1948).
3 IowA CODzE 657.2(4) (1954). Cf. id. 455A.18, referring to the duty of the
Iowa Natural Resources Council to make sure that the rights of private owners will
not be adversely affected before permitting the State Conservation Commission to
divert waters from any natural watercourse, drainage ditch, or settling basin.
39 Agnor, supra, note 8, at 145-46.
40 Hinkle v. Avery, 88 Iowa 47, 55 N.W. 77 (1893); MeCord v. High, 24 Iowa 336
41 Spene v. McDonough, 77 Iowa 460, 42 N.W. 371 (1889).
42 92 Iowa 297, 60 N.W. 727 (1894).
43 The general rule governing surface streams is that "prima facie every pro-
prietor on each bank of a river is entitled to the land covered with the water
to the middle of the thread of the stream, or, as is commonly expressed, usque
ad flium aquae. In virtue of this ownership, he has a right to the use of the
water flowing over it, in its natural current, without diminution or abstrac-
tion; but strictly speaking, he has no property in the water itself, but a
simple use of it as it passes along." Tyler v. Wilkison, 4 Mason, 400, Fed.
Cas. No. 14,312; Kin. Irr., sec. 59, and eases cited. In other words, every
riparian owner has a right to use the water in the stream as it passes along,
and an equal right with those above and below him to the natural flow of
the water in its accustomed channel, without unreasonable detention, or sub-


Now, each riparian owner has a right to use the water of a sur-
face stream for ordinary or natural uses, ... and the better law
seems to be that he may use the water for his natural and ordi-
nary wants, regardless of the effect upon other proprietors on the
stream; that is, as we understand the rule, one riparian pro-
prietor may, for his natural wants, if necessary, use all of the
water in a surface stream, to the exclusion of every other such
proprietor, certainly so as against the other proprietor using the
water for artificial purposes. .. If there is not water enough
to more than supply the natural wants of the several riparian
owners, none can use the water from the stream for artificial
The court then itemized the recognized natural uses of water, as follows:
Ordinary or natural uses have been held to include the use
for domestic purposes, including household purposes, such as
cleansing, washing, and supplying an ordinary number of horses
or stock with water, and it is said that natural uses are limited
to the purposes above stated.45
(b) Artificial Uses. Uses of water nthir than th+Ie rgnairn a oa
natural uses are labeled artificial or eranrdin r To Willis v. City
o erry, supra, the plintiff took water from an underground stream,
through an artesian well, and used it in a bath house wherein she had
"built up a large and profitable business."46 The court pointed out that
each riparian owner has a right, under certain circumstances, to use the
water of a stream for artificial uses, and added:
In case, however, such a proprietor puts the water to an extraor-
dinary or artificial use, he must do so in such a manner as
not to interfere with its lawful use by others above or below
him upon the same stream.47
The court pointed out the relationship of artificial uses to one another
and to natural uses, as follows:
As to extraordinary or artificial ht f all propri-

toN SlWte to the natural use.48
stantial diminution, either in quality or quantity, and none of such owners
have the right to use the water to the prejudice of the others, unless such
a right has been acquired by license, grant, or prescription.
Id. at 301-02, 60 N.W. at 729.
44 Id. at 302-03, 60 N.W. at 729.
45 Id. at 303, 60 N.W. at 729.
46 Id. at 298, 60 N.W. at 728. Riparian principles apply to water flowing in under-
ground streams. See notes and text ciroa notes 65-67 infra.
47 Id. at 303, 60 N.W. at 729.
48Ibid. See also, Gehlen Brothers v. Knorr, 101 Iowa 700, 70 N.W. 757 (1897),
notes and text circa notes 24-27 supra. In the 17 western states, priorities or prefer-

__ _. _____



The court then listed some of the criteria for determining the legality
of a particular artiftial use, as against the claim that it unreasonably
interferes with another's artificial use of the same stream." The city, in
this case, had tapped the same stream for the purpose of selling water
to its inhabitants. 'l court held that both he plaintiffs use of the
water in her bath ho nd th ritV'S ne of th w. triml
uses, and at e ality of right prevailed between them. The evidence
showed tharpt ith i WP1 mlnut nff MhP flnur nntjfAj wn] t j "t]a,
fflftis Was held to be an nnrnannahia infA fno with her riparian
rights; nerefore, the jury's award of damages to the plaintiff was al-

Diversion of water to non-riarian land or outside the watershed
stands on the same footing as a use for artincial purposes. nversely,
ences among different kinds of uses are generally fixed by statute. In each of these
states, domestic and municipal uses are granted top priority. Then, in varying orders
of priority, come uses for irrigation, manufacturing, mining, and rail transportation.
Last in each instance come uses for power and navigation. See Trelease, Prefere#es
to the Use of Water, 27 RooxC Mr. L. B1 R. 183 (1955). In Wisconsin, considerable
conflict is said to have developed between agricultural interests, diverting water from
streams to irrigate potato crops, and sportsmen's groups, who claim that such diver-
sion seriously endangers fish life in the streams and is harmful to recreational inter-
est. See Coates, supra, note 7 at 256-57. Impending changes in water rights law in
riparias states are causing organizations dedicated to the conservation of waters and
wfldlie no little concern. See Busby, Western Water Law Jtoes Eastward, Outdoor
America, May-June 1955, pp. 78-82; Dunten, Water Law Tr-reds rom the League's
Point of View, id. at 82-84 (Outdoor America is the publication of the Izaak Walton
League). In the latter article the author expresses the view that change in the water
law of eastern states is inevitable, but cautions them against wholesale adoption of
western water codes because of certain claimed defeiencies therein. He says that four
safeguards should be fought for: (1) minimum stream flow sufficient to maintain all
aquatic life, (2) highest possible standards of pure water, .e., appropriation and
diversion should not be allowed to aggravate existing pollution problems, (3) assur-
ance that present lake levels will be maintained, and (4) positive recognition of the
recreational uses of water.
49 Now, what is a reasonable use of the water of a surfaee stream for artificial
purposes Clearly, such a use as permits the return of the water used to the
stream in its natural channel, without corruption or sensible diminution in
quantity. By this is not meant that all the water must be returned to the
stream, because in the use some will necessarily be lost or wasted What
is or constitutes such reasonable use must be determined in view of the size
and capacity of the stream, the wants of all other proprietors, the.fatl of the
water, the character of the soil, the number of proprietors to be supplied,
and all other circumstances. In no case, however, is reasonable use to be
determined in view of the necessities or business of any one proprietor, but
the rights of each in the stream for artificial uses are to be determined in
view of all of the circumstances as affecting all of the proprietors.
Willis v. City of Perry, 92 Iowa 297, 303-04, 60 N.W. 727, 729-80 (1894). See also
quotation from Gehlen Brothers v. Knorr, text oirca note 26 supra, and authorities
quoted and cited in note 27 supra.
so 56 A. Jvu., Waters 351 (1947).

- ~-C------~I ~II- ~~l~-~~--~---~-~-~TT 1

_ ~~ L _^ Ij

[Vol 41


a riparian owner is entitled to enjoin the diversion of water from an-
other watershed into the stream flowing by or through his premises if the
increase of water in the stream will cause him substantial injury.51

(c) Irrigation. The right to take water from a stream for purposes
of irrigation is somewhat of a question mark in Iowa. It has been stated
general ly: -...............--............--
Subject to certain qualifications hereinafter noted, it is a uni-
versally recognized rule that a riparian proprietor may lawfully
divert the wnfo af wm othe purpose of irrigatmig mt a
lands- ---
The cases cited in support of this statement, however, are mainly from
western states, where irrigation has long been widely practiced and is
protected by common law and by statute.68 Moreover, the qualifications
referred to are very similar to the restrictions placed upon every ri-
parian owner with respect to his use of water for artificial purposes, as
discussed above." It might be argued that the use of water from a
stream flowing by or through one's farm for purposes of watering the
crops grown thereon is every bit as natural as using such water for the
purpose of watering the livestock kept on the farm. However, iwol
seem that, in the absence of legislation to the contrary, the Iowa Supreme
Courlf were aced wil e uesion, would hold that irrigation is
an artiFieial use, and subject to the limitations placed upon such uses
by the common law oif-riarian hts.5 Henee if the diversion of after
fum a t y a iarmr for irrigation purposes unreasonably inter-
fered with the use of the stream b an owner downstream uff (saay)
purposes o eneratineectric current, such irrigation could be enjoined,
or the farmer might be held liable in damages, depending on the form
of action chosen or appncable under the circumstances.

51 Thomas v. City of Grinnell, 171 Iowa 571, 153 N.W. 91 (1915) (relief denied for
lack of proof of substantial injury).
52 30 Ax. Jun., Irrioation i 9 (1940).
NM See, e.g., Meng v. Coffee, 67 Neb. 500, 93 N.W. 713 (1903).
M 30 AM. Jua., Irrigation 14 (1940).
55 See Willis v. City of Perry, 92 Iowa 297, 302, 60 N.W. 727, 729 (1894), where
the court remarked in dictum:
Now, each riparian owner has a right to use the water of a surface stream
for ordinary or natural uses, and, under certain circumstances, for artificial
uses, sach as for irrigation and the like.... (Emphasis supplied.)
It shoai pArhans. be mentioned at this point that it i a criminal offense maliciously
to draw off water from a mill pond, reservoir, canal or trench, or to drain or attempt
dra a lake orionmeaner ie government survey. IowA oes. 4 716.1, %


228 IOWA LAW l BVIZW [VoL 41

(d) Municipal Uses. Cities and towns have power to purchase, or to
secure by condemnation, if necessary, sources of, water for distribution
to the inhabitants of the community." However, the distribution and
sale of the water is an artificial use, and is subject to the law relating to
such uses, insofar as its effect on other riparian owners is concerned;
provided, of course, that their riparian rights haven't been taken in
the condemnation proceedings.5


Pollution of the water of any river, stream, or pond is acri a f-
fense in Iowa, punishable as a misdemeanor, and abatable as a nuisance.5
It is also subject to regulation by the State Department of Health, whose
orders in such matters are enforceable by contempt proceedings."5 Pol-
lution of the water of a stream is also an interference with private ripar-
ian rights. It has long been recognized that the lower owner has the
right to have the water which flows by or through his premises be in as
pure a condition as a reasonable and proper use by the upper owner will
permit, and that interference with this right may be actionable in dam-
ages,0e or, if damages are not an adequate remedy, such contamination

56IowA CODE 397.7-.8, 397.20 (1954). See also IOWA CODE chapters 398-99
57 Willis v. City of Perry, 92 Iowa 297, 60 N.W. 727 (1894); 56 Ax. Jun., Water-
works 41-49 (1947).
58IowA CoDE 657.2, 657.3 (1954).
9 IowA CODE 135.18-.29 (1954), as amended, Iowa Laws 1955, 56th G.A. c. 95. It
is noteworthy that the term "pollution" is defined in the recent amendment as such
contamination as will be detrimental to "public health, safety or welfare, or to domes-
tie, commercial, industrial, agricultural, recreational, or other legitimate beneficial
uses ." (Emphasis supplied.)-thus recognizing that the listed uses are legitimate
and beneficial.
eo Ferguson v. Firmenich Mfg. Co., 77 Iowa 576, 42 N.W. 448 (1889). In this case
the court said:
S. [T]he lower owner has the right to have the water which flows from
the land of an upper owner in as pure and wholesome a condition as a
reasonable and proper use of the stream by the upper owner will permit. The
upper owner will not be allowed to poison or corrupt the stream. Washb.
Easem. 332; 1 Hill, Torts, 601. In many cases he may use all of its water,
to supply what are termed his natural wants, as for household purposes
and for his stock, but cannot appropriate it all for so-called artificial pur-
poses, as for manufacturing, to the damage of a lower owner. Washb.
Easem. 330; Gould, Waters, sec. 205. The upper owner may, as a rule, use
the stream in a reasonable manner, for reasonable purposes, even as a means
of carrying off waste matter. Whether the use to which he wishes to devote
it is reasonable must be determined by the circumstances of the case.
Id. at 578, 42 N.W. at 449.
See also Vogt v. City of Grinnell, 133 Iowa 363, 110 N.W. 603 (1907).


of the stream may be the basis for injunctive relief, to abate the private
nuisance.61 Contributory negligence is no defense to such an action.62

Rights of an owner of property abutting upon a lake or pond are simi-
lar to those of a person owning land next to a flowing stream, but are
properly called littoral rights rather than riparian rights.63 As explained
by the Iowa Supreme Court in a case involving the right of access to
a navigable lake held by an abutting proprietor:

... [A] riparian owner is one whose land abuts upon a river. If
his land abut upon a lake, he is deemed to be a littoral owner.
The distinction is wholly immaterial for the purpose of this case.
The case law is the same whether the ownership be riparian or
littoral, and such case law has been developed largely in riparian


In general, if an underground stream flows in a well-defined channel,
capable of being distinctly traced, the owners of the land overlying such
stream have riparian rights therein, the same as if it were flowing on the
surface." The principal exception to this rule has to do with the propo-
sition that a landowner through whose land a surface stream flows can

A Newton v. City of Grundy Center, 70 N.W.2d 162 (Iowa 1955); Spence v.
McDonough, 77 Iowa 460, 42 N.W. 371 (1889); of. Thomas v. City of Grinnell, 171
Iowa 571, 153 N.W. 91 (1915) (no injunction where harm not proved-city sewage
disposal system emptying into stream is not a nuisance per se).
02 Bowman v. Humphrey, 132 Iowa 234, 109 N.W. 714 (1906).
63 56 Ax. Jun., Waters 282 (1947); Peck v. Olsen Construction Co., 216 Iowa
519, 245 N.W. 131 (1931).
04 Peck v. Olsen Construction Co., id. at 532-33, 245 N.W. at 137. The court held
that the littoral owner's right of access must yield to the paramount right of the
state to erect improvements in aid of navigation, and refused to enjoin the construc-
tion of a pier which interfered somewhat with the plaintiff's freedom of access to
the lake. The right of a littoral owner to make consumptive uses of the waters of
a lake is limited by the statute making it a criminal offense to drain the waters of a
meandered lake (IowA CODE 6 716.5 (1954), see note 55 supra) but normally it would
seem difficult to prove that the abutting owner was trying to drain the lake, if he
were merely diverting a portion of the water and devoting it to beneficial uses. Cf.
State v. Jones, 143 Iowa 398, 122 N.W. 241 (1909), af'd sub nom. Marshall Dental
Mfg. Co. v. State of Iowa, 226 U.S. 460 (1913), involving an actual attempt to drain
a meandered lake.
6A Burroughs v. Saterlee, 67 Iowa 396, 25 N.W. 808 (1885); Willis v. City of Perry,
92 Iowa 297, 60 N.W. 727 (1894); 56 AM. Jun., Waters 109-10 (1947).

~ ~



230 IOWA LAW REVIEW [Vol. 41

divert and use the entire stream for extraordinary or artificial purposes,
so long as he returns it to its natural channel without sensibly diminish-
ing its volume or impairing its quality. This privilege does not attach to
underground streams, because of the impossibility of returning the water
to the stream.6 However, underground water is presumed to be percolat-
ing water, and riparian rights do not arise until it is proved that the
water is flowing in a definite channel.7

Certain of the older cases in England and in this country, applying
the proposition that percolating water is real estate, held that the owner
of land could extract the underlying percolating water and do as he
pleased with it-even waste it-regardless of the effect of such use (or
waste) upon his neighbor.68 The Iowa Supreme Court, on the other
hand, while recognizing the right of the landowner to draw as much
percolating water from under his lands as he chooses to devote to benefi-
cial uses in the operation of his farm or in the improvement of his land,
has held that a landowner must not draw off percolating water and
waste it, if such diversion injures another and prevents the latter from
devoting such water to a beneficial use." In the leading Iowa case on
the subject, the Iowa Supreme Court said:
It [the Iowa doctrine] interferes with no valuable right of the
defendants. It shields from destruction property rights of great
value belonging to the plaintiff and others. It goes no farther
than to say that a landowner may not collect, drain, or divert
waters percolating through the earth merely to carry from his
own land for no useful purpose, when such action on his part
will have the effect of materially injuring or destroying the well
or spring of another, the waters of which are devoted to some
beneficial use connected with the land where found. It applies
in principle the doctrine of correlative rights to the control of
sub-surface waters whenever the appropriation proposed is

60 Willis v. City of Perry, id. at 304, 60 N.W. at 728.
67 Barclay v. Abraham, 121 Iowa 619, 96 N.W. 1080 (1903).
68 Typical of this kind of holding is the Wisconsin case of Huber v. Merkel, 117
Wis. 355, 94 N.W. 354 (1903), severely criticized in Comment, The Law of Under-
ground Water; A Half-Century of Huber v. Merkel, 1953 Wis. L. RBv. 491.
69 Barclay v. Abraham, 121 Iowa 619, 96 N.W. 1080 (1903); DeBok v. Doak, 188
Iowa 597, 176 N.W. 631 (1920) (wasteful use of water by defendant for hog wallow
which interfered with flow of spring on plaintiff's land used for human consumption
and domestic purposes); Hougan v. Milwaukee & St. Paul By., 35 Iowa 558 (1872)
(permissible for railroad to pump water underlying its right of way for use in its
engines although this diminished the flow of water in a spring on plaintiff's land).



unconnected with the use, enjoyment, or improvement of the
land from which taken.70
It is clear, then, that a landowner's right to use percolating water
under his premises is greater than his right to make use of water flowing
in a stream by, through, or under his land.7 The only restriction on
his right to use percolating water is that he not waste it-that he devote
it to some beneficial purpose.72 This ought to include the right to make
use of the percolating water for purposes of irrigating the crops on the
farm, so long as good husbandry is followed and the water is not wasted.
Pollution of Percolating Water
Contamination of percolatingwater by another is an interference with
the private right of the owner of the overlying land to the use of the
same, unimpaired in quality; and is actionable in a lawsuit for damages,
or in equity for an injunction, depending on the seriousness and per-
manence of the nuisance.78

The term "surface waters" has been defined by the Iowa Supreme
Court, as follows:
"Surface waters" have been described, as the term indicates, as
water on the surface of the ground of a casual or vagrant char-
acter following no definite course, of a more or less temporary
existence, which spread at random over the ground and are lost
by percolation into the soil and by evaporation. They are to be
distinguished from the water of creeks, streams, rivers, ponds,
and lakes having a substantial existence and a substantially
definite location.74
Little has been written about beneficial interests in, and the right to
make use of, surface waters. The general rule is that the landowner has
To Barclay v. Abraham, id. at 631, 96 N.W. at 1084.
71 See, e.g., Burroughs v. Saterlee, 67 Iowa 396, 25 N.W. 808 (1885); 56 AM. Juo.,
Waters 117 (1947).
72 See note and text circa note 69 supra.
78 Iverson v. Vint, 243 Iowa 949, 54 N.W.2d 494 (1952) (damages awarded for
contamination of well from defendant's dumping of molasses in ditch); Mann v. Des
Moines Water Co., 202 Fed. 862 (8th Cir. 1913) (defendant enjoined from interfering
with effectiveness of natural sand filter in Raccoon River bed, used to purify water
collected underneath same and distributed to the populace of the City of Des Moines);
Payne v. Town of Wayland, 131 Iowa 659, 109 N.W. 203 (1906) (city enjoined from
locating cemetery at point where it would contaminate wells and springs nearby); 56
AM. Jun., Waters # 122 (1947).
74 Hunt v. Smith, 238 Iowa 543, 555, 28 N.W.2d 213, 218-19 (1947); 56 AM. Jun.,
Waters 65 (1947); RESTATEMENT, TORTS 846 (1939).



232 IOWA LAW BEVIBW [Vol. 41

the absolute right to the surface water thereon, and may make such
use of it as he chooses.' Drainage of surface water has attracted far
more attention from the Iowa Legislature, and from farmers, lawyers,
and the courts. Surface water is sometimes referred to as a "common
enemy," and it is sometimes stated that each landowner has the right
to guard himself against such water and its injurious effects by such
means as he sees fit; but this privilege is subject to the rule that he must
exercise such right with regard for the rights of his neighbor.76
The rules with respect to the right of the owner of the dominant estate
to have the surface water flow onto the servient estate, and preventing
the dominant owner from substantially augmenting the flow, or the ser-
vient owner from substantially interfering with the flow, to the material
injury of the other, are familiar to the reader, and will not be dwelt on at
length here. A few of the cases are set out below." Attention is also
directed to the statute which is declaratory of the common law rules on
this subject.78

Riparian rights will pass, without being mentioned, to the grantee
named in the deed of the land to which they are appurtenant.79 Generally
speaking, they can be severed from the land by express conveyance.s0
Riparian rights are not lost by mere non-user, but, like other real prop-
erty rights, can be lost by prescription or adverse user.81 Loss, by adverse
user, of the right to have water flow in its natural fashion has been

75 56 AM. Jun., Waters 66 (1947); Coates, supra, note 7 at 270-71. This is cer-
tainly a wholesome rule of law. Without a doubt, any principle of law which denied the
right of a landowner to let rainwater sink into his land would meet with considerable
opposition from farm interests, and would be most difficult of administration.
76 Lamb v. Stone, 178 Iowa 1268, 160 N.W. 907 (1917). See comment on Surface
Water, infra, this SYMPOSrux for a discussion of this problem.
77 Morrow v. Harrison County, 64 N.W2d 52 (Iowa 1954); Schmitt v. Kirkpatrick,
63 N.W.2d 228 (Iowa 1954); Stouder v. Dashner, 242 Iowa 1340, 49 N.W.2d 859
(1951); Wheatley v. Cass County, 239 Iowa 932, 31 N.W.2d 871 (1948); Hunt v.
Smith, 238 Iowa 543, 28 N.W.2d 213 (1947); Heinse v. Thorborg, 210 Iowa 435, 230
N.W. 881 (1930); Schwartz v. Wapello County, 208 Iowa 1229, 227 N.W. 91 (1929);
Parizek v. Hinek, 144 Iowa 563, 123 N.W. 180 (1909); Hull v. Harker, 130 Iowa
190, 106 N.W. 629 (1906); Wharton v. Stevens, 84 Iowa 107, 50 N.W. 562 (1891).
7 IowA CODE 465.22 (1954). See, applying this section, Dodd v. Blezek, 66
N.W.2d 104 (Iowa 1954); Cundiff v. Kopseiker, 61 N.W.2d 443 (Iowa 1953); Parizek
v. Hinek, supra, note 77. See also Iowa CoDz 314.7 and 465.23 (1954); Droegmiller
v. Olson, 241 Iowa 456, 40 N.W.2d 292 (1949).
7956 Ax. Ju., Waters ff 252, 254, 287 (1947).
oIld. 0$ 253, 288.
81 Id. 286.


recognized by the Iowa Supreme Court, both in cases involving flowing
streams,82 and in cases involving swales through which surface water
naturally drains.88


Although Iowa is a riparian rights state, it has recognized the doctrine
of prior appropriation to a limited extent in supreme court decisions re-
lating to the right to take ice from public streams. These cases might
take on considerable significance as guideposts in the field of appropria-
tion if legislation were enacted in this state making such practice per-
missible generally.
In Brown v. Cunningham," the defendant was the owner of land
adjoining a stream which, though not navigable, was meandered in the
government survey. The plaintiff (not a riparian owner) entered upon
the river, cut, and put in an icehouse a large quantity of ice; he was
making preparations to cut and move to the icehouse still more ice. The
defendant brought an action to enjoin the plaintiff from doing this, on
the theory that the ice belonged to the defendant as riparian owner.
The petition was dismissed, following a trial, and the injunction was
dissolved; but by this time the ice had likewise dissolved, and plaintiff
brought this action for damages, on the injunction bond. The trial
court directed a verdict for the defendant, but the Iowa Supreme Court
reversed, holding that the plaintiff had acquired a property right in the
ice marked off by him with which defendant had no right to interfere. The
court reasoned that, since the bed of this meandered stream was still
owned by the United States,86 the plaintiff, as a member of the public, had
the right to enter upon and use the water in the stream, for proper pur-
poses. The court then stated that the same rights to the ice exist which
may be held in the water, "for the ice is water in another form,-is con-
gealed water,"8s and that the rules of natural justice afforded to the
plaintiff the right to go upon the stream and take a reasonable amount

2 See, e.g., Shortell v. Des Moines Electric Co., 186 Iowa 469, 172 N.W. 649 (1919);
Marshall Ice Co. v. LaPlant, 136 Iowa 621, 111 N.W. 1016 (1907).
as Fennema v. Menninga, 236 Iowa 543, 19 N.W.2d 689 (1945); Trumbo v. Pratt,
148 Iowa 195, 126 N.W. 1122 (1910).
84 82 Iowa 512, 48 N.W. 1042 (1891).
8 Id. at 516, 48 N.W. at 1043. See note 5 supra.
a Id. at 516, 48 N.W. at 1043. This holding (that ice is congealed water) haa
withstood the test of the years. This point has not even been questioned in subse-
quent decisions, and has been reaffirmed on several occasions.


___~__ l~i~l~


,of ice.s8 Where the stream is neither navigable nor meandered, and the
landowner thus owns the bed and banks of the stream (or to the thread
thereof if it is the boundary of his premises), he can prohibit others
from taking the ice, and he, or his lessee, enjoy rights in and to the ice,
comparable to riparian rights in flowing water in the stream in the
summertime.88 The same distinctions between natural and artificial uses
are applicable and the same priorities follow as in the case of running
The doctrine of appropriation of ice in public streams was elaborated
upon somewhat in a case decided in 1901.90 It appears that controversies
little short of open warfare sometimes developed with respect to the
right to take ice from certain places on a stream. In defining what
amounted to a true appropriation so as to establish some tests by which
to decide such controversies, the court held that there can be an appro-
priation of ice on public waters only (1) when the ice is fairly merchant-
able; (2) when he who seeks to appropriate it has the present intention
and ability to proceed at once to the harvest thereof; and (3) does so
with reasonable diligence. Staking out a portion of the stream before
the ice has frozen is not enough,91 and the rights are good only for one

87 The court used the following vivid language:
It cannot be doubted that, in accord with the views we have expressed, any
citizen who may lawfully go upon the stream may gather ice from it under
the regulations prescribed by law. He is entitled to the ice he prepares by his
labor to be removed. It is plain that, if he cuts ice for transportation to his
icehouse, another cannot rob him of his labors by carrying away his ice; and
it is plain that when he makes preparations to use the ice upon a certain part
of the stream, prepares its surface for cutting, erects machinery to handle
the ice, makes walks or ways for workmen, or in any other proper manner
indicates the part of the stream which he occupies in his operations, which
must be reasonable in extent and in all other respects, he has a property right
to the occupation of such locality during the ice season, and to the ice formed
there. When men are thrown together without government or established
rules to regulate their possessions and use of the land they occupy, they
tacitly assent to just such rules as follow from the doctrines we have an-
nounced. This has been done by settlers and miners in every territory of
the Union, as well as in every land where the ideas of civilized justice, and
especially the Anglo-Saxon ideas of the protection of individual property,
prevail. Shall not the courts, where there is established government, recog-
nize, protect and enforce rights which are instinctively recognized by our
people Indeed, courts are established to enforce and protect all rights held
by men not surrendered to the state, thereby promoting order and peace of
the state.
Id& at 517, 48 N.W. at 1043.
88 Gehlen Brothers v. Knorr, 101 Iowa 700, 70 N.W. 757 (1897); Marsh v. Me-
Nider, 88 Iowa 390, 55 N.W. 469 (1893).
9 Ibid.
0 Becker v. Hall, 116 Iowa 589, 88 N.W. 324 (1891).
9 Id. at 592, 88 N.W. at 325.
92 Board of Park Comm'rs v. Diamond Ice Co., 130 Iowa 603, 105 N.W. 203 (1906).



The right to appropriate ice from a public stream is subject, however,
(as is every other use of the stream by the public) to reasonable regula-
tion by public authority. Where, therefore, the state delegated power
to the city to regulate a state-owned stream, and the appropriate board,
exercising the delegated power, ruled that public use of the river for
ice skating took priority over the harvesting of ice therefrom by riparian
proprietors, no constitutional rights of the latter were invaded.s


A conclusion which might be drawn from the foregoing discussion is
that, if the legislature were to pass a statute allowing members of the
public to appropriate and use certain amounts of water from streams
whose beds are owned by the state (or the United States), the consti-
tutional rights of riparian owners on such streams would not be
infringed. That such would be permissible so far as the Federal Consti-
tution and statutes are concerned is beyond question.9" However, as
to streams whose beds are privately owned, serious constitutional ques-
tions would arise if riparian rights of abutting owners were abolished
or taken without just compensation.95

98 Ibid. See also 56 AM. Jui., Waters 289 (1947).
94 See Connecticut v. Massachusetts, 282 U.S. 660 (1931); 19 STAT. 377 (1877),
as amended, 43 U.S.C. 321 (1952); 14 STAT. 253 (1866), as amended, 43 U.S.C.
6 661 (1952); 25 STAT. 526 (1888), as amended, 43 U.S.C. 662 (1952); 26 STAT.
1101 (1891), 43 U.S.C. 0 663 (1952); 29 STAT. 599 (1897), 43 U.S.C. $ 664 (1952); 80
STAT. 1233 (1899), 43 U.S.C. $ 665 (1952); 66 STAT. 560 (1952), 43 U.S.O. 666
(1952); 56 Ax. Jun., Waters# 289, 295 (1947). This is not to be construed to
mean that anything has taken place in Iowa to date impairing the rights of riparian
owners on navigable and meandered streams, other than the decisions on the right of
the public to take ice therefrom. No attempt has yet been made, by statute or de-
cision, to allow members of the public to divert water from such streams to the
prejudice of riparian owners. The small amount of water taken from the stream by
ice cutting operations is too trivial to be of significance from this point of view.
95 See McCord v. High, 24 Iowa 336 (1868), where the court said:
The owner of land over which a stream of water flows has a right thereto
without diversion, interruption or diminution of that element so indispensable
to life, both animal and vegetable, and so useful as a propelling power for
machinery. The law recognizes a water-course as subject of property, and
guards the rights of owners thereof with the same care that it extends to
all other things that are the subjects of exclusive ownership. The right which
the owner of lands has to a water-course bowing over them is in the nature
of a freehold right, and it cannot be taken from him constitutionally for
public use without just compensation (citing cases).
This right, being thus secured by the Constitution and laws, cannot be
indirectly taken away while protected from direct deprivation. The supreme
power in the State cannot enact a law which will authorize the diminution
or diversion of the stream from its natural channel for public purposes with-



The rules of law in Iowa on the subject of riparian rights are well
settled, but the application of these rules to a given fact situation is diffi-
cult and the result is often uncertain. Too often it will turn on a
jury's verdict. The Iowa Supreme Court has certainly tried, within
the limitations of the riparian rights doctrine, to promote the efficient
and beneficial use of our water resources. The question with which we
are now faced is whether the doctrine is inherently unable to cope with
te manitold proMles ne wil arise and adjustments of ineres
which must occur i beneficial uses of water, and particularly sump-

toie sort of legislation, if any, which is neededM and asto the e-o-i-
ttional difficulties involved in making such legislation effective.

out providing adequate compensation for the right-the property to be so
appropriated to public use.
Id. at 342.
On the constitutional question, see also State ex rel. Emery v. Knapp, 167 Kan.
546, 207 P.2d 440 (1949); Coates, supra, note 7 at 286-96; Agnor, supra note 8, at
147-48. On the subject of proposed water codes and other alternatives for the
future, see article by Harold H. Ellis in this SYMPOSIUM.

Harold EUist

In the past, most of the concern over water rights has quite naturally
centered in the 17 arid and semi-arid Western States. But with the ex-
panding practice of farm irrigation and the growing municipal, indus-
trial, and other uses of water, attention given to this subject in the East
has increased in recent years.1 Concern over tl equa&jiaeyfiii ixa19 War
to cope with eme-g-m ter-resource problems has led, among other
things, to the initiation of various executive or legislative study commit-
tees, or to studies by existing committees or agencies, in several Eastern
States, including Iowa.2 Attention also has been or is being given to such
problems by various local groups or organizations, regional and national
organizations, private research foundations, and some Federal agencies.8
This article involves a review of some current and proposed legislation
on water rights in te TEastern- States lying east of Texas and the
Several Eastern States enacted statutes many years ago to regulate
the construction and maintenance of illdams These often provided, in
general, that permission must.be obtained from some local court to build

t Agricultural Economist, Production Economies Research Branch, United States
Department of Agriculture, and member of Illinois Bar.
ErzIZNG WATEa Laws (Mimeo. June, 1954); OrrIC or THa SOLICITOR, U.S.D.A.,
1952); Coates, Present and Proposed Legal Control of Water Besources in Wisconsin,
1953 Wis.LT-RBv. 256; Evans, Irrigation in Kentucky as Afected by the Law of
Biparian Bights, 40 KY. L.'T423 (1952); Marquis, Freeman and Heath, The Move-
ment for New Water Bights Laws in the Tennerssee m-tey es, TENN. L. RBv.
797 (1955); Prince, Busby, Woodbridge, Agnor, Cross and Maloney, Water Rights in
the Southeastern States--A Symposium, 5 S.C.L.Q. 103 (1952); Barlowe, Proposed
Water Rights Legislation in Michigan, 26 LAND ECON. 300 (1950); Maloney-Laws
of Florida Governing Water Use, 47 J. AM. WATEr WORKS Ass'N. 440 (J5.5); Busby,
"Water Rights in Our Expanding Economy," J. Soil and Water Conservation, March,
May, July, 1954.
2H.J. BRs. 4, 56th Iowa G. A., 1st Sess. (1955), created an interim committee to
study the state's water resource problems, including the question of water rights.
3 The subject of water rights was on the agenda of the 1955 annual meeting of the
American Farm Economics Association, and the Southern and Midwestern 1955 Be-
gional Conferences of the Council of State Governments.
SA number of such acts had already been enacted by the early colonies and terri-
tories. See Head v. Amoskeeg Mfg. Co., 113 U.S. 9 (1855).



a milldam across a stream, after compensating other riparian landown-
ers, whose lands might be flooded, for any damages. But they frequently
also provided that no such dam could be erected to the injury of any
validly existing dam. (This feature, which contains _anldmenat he
prior appropriation doctrine, appears to v been ahered to ysme
ear yt rt out reterdnf Tf&iTiieh a statute.) A number of these
acts are s Itin effect or have been otherwise modified, although some
now apply to dams used for a variety of manufacturing and other pur-
Some Eastern States, particularly in recent years, have enacted
various other types of statutes relating to the use of either surface or
groundwaters, or both. Some states, including Georgia, Louisiana, In-
diana, and Kentucky, have simtues ih L
elements the oan ot e r hte
a few states ineldi icons and
h Caroimay need to be from some
t ae water or irrigation r other uoses from a water-
o or, in some cases, froma und source.ut In mo slIh
staa s dut ter these permits, when granted, create any
substantial property rights the permitted. oreover such statutes
ofn in e ipr. example, fa -
laS-'wu-rueia esu o'tit waters appears to
excepthe diversion and use of such waters for "domestic and farming
purposes," and also excepts certain small dams, reservoirs, farm ponds,
and low-capacity wells.6 A New Jersey statute relate to
not re uire permits for certa
permits are requia mar wfleasEre withirrna thtoa to o-agno
l p ,en. as determined by the state' on De-
partmen from time to time.7 ..
Some statutes are intended to prevent poUtl n, or the intrusion of
sal ,ter, to maintain or replenish undaror&g w r su lies or lake
or stream water levels, to regulate the operations of well illers or re-
iuire the capping 0o1 abandoned wells, hor
such things as navi on, public water supply, fishing, and recreation. In
addition, fewt av ttetshp tht. n+p fWr
far ion eits, and some state statutes have provisions which
enae ercompan es, drainage or soil conservation district ori-r

SGA. CODE ANN. 105-1407 (1935); IND. ANN. STAT. 27-1401 to 27-1405 (Burns
Supp. 1955); KY. BXV. STAT. ff 262.680, 262.690 (Supp. 1954); LA. CIv. CODE art.

AM L A. CD GEN. Lws art. 660, 666 (1951).
TT. STT. ANNi 0 58:4A-1 (pp. )----

__ __~_*~F_ __

[Vol 41

---- ---------- -- -. ";; .^-:--------------- *- ;-'-----:i


types of local organizations, to facilitate farm irrigation or other enter-
prises in ce
have condemnation powers, as do many municipalities, to acquire needed
water rights.- ...
' Executive, legislative, or other study committees have been established
recently in several Eastern States to review the state's water situation
and problems and to help decide on remedial measures. Some of these
states have enacted statutes which, in general, declare the state's policy
that the use of part or all of the waters in the state, either surface or
underground, or both, shall be subject to state regulation in order to
attain its more beneficial use, conservation, and to prevent waste. But,
with some exceptions, such a declaration of policy generally has not as-
yet been fofwed with anvubstantial legislation to implement it.
Let us take a closer look at _he syst ef permi tsestabTied in
Wisconsin, Minnesota, and North Carl
Thk rmit System
In ,m5 e Wisconsin legislature enacted a statute which apparently
requiresT at permits be obtained from the state's Public Sei Com-
mission for the diversion of watefrom anstream for agriculturee or
irntiion."' The qua .of water to be taken and thetes when it
%Taken are to be controlled by the Commission. The ute pro-
vides that water may not be diverted to the injury of public rihs n e
stream diver other than 1suri1ii-Wi-a
definedd as water "which is not being benficially use oe
consent of "any riparians located on the stream", who may be injure
thereby, IS obane
The Wisconsin Attorney General has interpreted this statute to m
that "such a permit may be withdrawn or amended by the Ommi at
any timeI 'irigh trevested artj Iantby its issue, the matter
being %gonet o m continuing control of the commiion."
e no g in respect to the is- LAP,
suanceof permits to nonriparian o rg:T F 1 ..W .d at the

8 Wis. STAT. 31.14 (1953). This statute also permits diversions of water from
a stream into another watershed to reestablish and maintain navigable lake and
stream levels. In addition, section 144.03 provides that no wells in excess of 100,000
gallons a day may be dug for any purpose without a permit from the State Board
of Health, which may limit or prohibit wells that adversely affect public water sup-
plies. Other statutory provisions relate to the erection and maintenance of dams.
9 The State's Attorney General has stated that this would appear to mean all ri-
pariao BWrgmT5R WE--' poIit of diversion, between it. m thwn TT the
stream emptied into another stream or body of water. 39 OPS. ATTI' GO. 564
(190). ~Tier-tBer ain~Ri 1i, as generally apIi7 the rights of riparian
owners even below this point might need to be considered.


common law applies."10 He indicated that owners of nonriarian lands
should not be given such permits, although riparian landowners might
be permit~ t e u stea waters on their own nonriianan dsJ
other riparian owna suffer no nalenjoy-
i-cut o th... p._rty 4t-weold appear that-the -statute is ng so
administered, and the Comm on inl nA in each permit the express
condition that it ma e ar amended if deemed necessarybecause
o er applications to use same steam, apparent
the vi aTeaeh riparian owner is entitled to mae some reasonae use
ofthe stream.11
The Commission apparently operated until 1950, the date of the At-
torney General's opinion, without any such guidelines or any other defi-
nite standards for issuing or rejecting permits.12 Certain general guide-
lines were adopted by the Natural Resources Committee of State Agen-
cies in 1951, which recommended, among other things, that permits be
granted in cases where the percentage of the water diverted under the
permit would be so low that no injury to public or private rights could
be anticipated, and where any required consents of riparian owners are

lqI od3 fi'nr to o D ity& person mihsAiit
would adversely a-eet e suu-e-ei-ref1itfton has-been-sel-
SThe Minnesota Permit System
The Minnesota Legislature in 193 enacted a statute which was re-
placed in 1947 with a similar statute that provides, inter alia, that
"subject toe rih all waters in streams and lakes ... which are
aubs l public use, shall be public water, and shi- sub-
jec to the control of the State d-o-on ay w te
oruise any waters oTthle State, surface or underground" without a per-

10 H noted that another statute (see Wis. STAT. 30.01 (1953)) provided that
rights to waters should be governed by the common law except as modified by legis-
11 Basd on "pe inr MB en Water Be-
source. at Madisoa W.Ve, May 10, 1955, sponsored by the Natural oreeburoe
inuttee of jitataAgnies. .-.-. -------
12 Coates, supra note 1. The statute requires that a public hearing be held on
each application, and there are provisions for judicial review of the Commission's
NATtRAL RsoncnsE COMMxran or STATB AGENCIEs (1951).
14Wxs. STAT. 31.02(1) (1953).

[VoL 41


mit from the Commission of C Mrvation except for the use of water
for domestic purposes sevhe use of water for
any purpose "originating within the geographical limits of any mumci-

193Z However, each such permit (except for certain mining pur-
poses) shall be s among other things, to cancellation "at any time
if dm neces by the Commissioner, "or any cause ror mepr-
tection of the public interests." S a reservation apparently is
expressly included in most permits, and permits which have been issued
for irrigation and most other purposes expressly refrain from affecting
t0e r riparian owuexs or thepubi as against ermi A
fiewsrut trtse ed to nonrinarian owner for temporary
sand and gravel washing, providing they had obtained access rights
from a riparian owner.
There Appear to be few specific guidelines or standards, in the statute
or otherwise, with respect to the granting or denial of permits, other
than that permits are not to be refused unless the proposed use is waste-
ful, dangerous, impractical, or would be against the public interest or, in
the case of irrigation, would deprive another of his rightful share of such
waters, which he has requested.16 Permits issued have included limita-
tions on rates of diversion, and certain other express conditions. Limi-
tations have sometimes been included against wing ths trl~
below a certain minimum level, particularly on the smaller streams.17

The North Carolina Permit System
The North Carolina Legislature enacted a statute in 1951 wih re-
quires simulv that pnm t. ,nhtbtAied from the Department of Con-
servation and Developmen iiwatersinastream or l
foTepur ose atirton" in such an amount as to s
eof."18 A ioants arer submit
a proposed irrigation Ian
vesgate sua safety and public interest and to approve
plans anascicationsand issue permits." As the staiute says essen-

158MINN. STAT. ANN. 105.38-.64 (Supp. 1954). The statute also includes provi-
sions relating to the maintenance of lake levels, the construction and maintenance
of dams, and certain other matters.
1 A public hearing is not mandatory, unless the applicant .#mands it after his
permit has been denied or certain conditions have been included in it. Failure to act
on an application to use water for irrigation, a seasonal use, constitutes approval
thereof after a certain period of time.
17 Based on discussions with former Commissioner Chester 8. Wilson, and on cor-
respondence received from the present Commissioner, George A. Selke, Sept. 30, 1955.
18 N.C. Gr.. STAT. j 113-8.1 (1952).



tially no more than this, it seems questionable whether any sub-
stantial legal rights, as against riparian owners or their are created
the applicant by the issuance of-.su.cpermit.
No de euregor standards appear to have been promulgated
to date as an taidi S toe onsfitatute. ~~permitimi
isse gene granted or an definite period of time, but contains
express reservations to the effect that: _( will be revok'edai tom t-
ically if at any time it interferes with any institutional or municipal
water supply-anf(2 WlrYi ssing a new
permit e r request the s water fo the 'sre am.
Al!thougpermitsare not expressly made subject to riparian ri hts,
they arcntiiiinually held in fiiid, and every possible o is e to
potet s" Each permit includes a provision regamg te
.verio.. In conormyifwiti a.pr- i oiio ilI ;eIi-sai which
authorizes the Director to investigate the applicant's proposed irrigation
plan "as to safety and public interest," the Director sometimes includes
such express conditions in the permit as may be considered necessary to
insure such protection.19
Neither the Wisconsin, Minnesota, nor North Carolina statutes men-
tion anvthi conceding what eefft, an; ypla-
tion would have. While the determination of this question by each of the
admnistering agencies has not been definitely ascertained, it would
appear that priority in time has little, if any, significance. Apparently,
none of these statutes, as interpreted and administered, would purport to
Tave any substantial effect uon riparian rights, other than that certain
iad state restriction have been imon xer

SWe now turn to consideration of some specific and rather extensive
S legislation on water rights which has been proposed, but not yet enacted,
- in five states---uth Carolina, North Carolina, Ark n Michigan, and

regard ing the use of surface watercourses. This does not mean to imply
that in a number4f states e i ns regarding rights to use gundwates
may not be just as important, nor that current and prospective n-
water laws should be ignored in the development of any legislation with
respect to surface watercourses.
19 Based on correspondence and form used for issuing permits, received from B. C.
Snow, Chief Engineer, Division of Water Resourees, Augnut 29, 1955.


[VoL 41


The North Carolina and Wisconsin proposals would involve an expan-
sionana moimeaton or the existing permt systems in
while the other proposals would constitute a definite, -tuh on a pa-
ti1 departure from the riparan common law systeE s in thosg a
would involve a t toward some version of the prior appror
tion doctrine which has d velopedi thI e Wees. JtE v somewhat in
the typeof water sources to wh' i they would apply, in the extent to
which they purport to abrogate or limit riparian rights, and in certain
other respects. But several identical or similar n all
of them. All would involve re atin ya state administrative agency.
Because of some ambiguities in certain of thiel provs os mme-
times difficult to determine precisely what was intended. Moreover, the
eaUecf achngro ed bill would depend partly upon how it is interpret-
ed in liht of the existinleilahe In
certain instances some of the existing legislation which a bill
would supplement or modify is described and, in a few instances, some
description of the existing common law is included. But no attempt has
been made to be exhaustive in these respects.
A Proposed Bil for South Carolina
One of these legislative proposals was incorporated as part of a Report
of the Water Policy Committee, submitted to the General Assembly of
South Carolina in 1954.20 The proosed bill included several details
l we aot go into here. But, inessence it would appear to ao
Many of the principal feature of tnt. prvmily uted i Oregon,
Hanma, andi some other Western States."- It would declare the States
< policy to promote the attainment o the ullest beneficial use of its water
resources and theprevention of waste or unreasonable use. In general, it
purports to estabtli -e dtrUi7:eofirior appropriation with respect to
wafers m surface watercourses, except for customary domestic uses- ana
suclwau as a aUy Uilg p to some foner beneteia WS when
the law goes into effect (or within 8 years prior thereto), wh e
ia_ "rtr rights" This would also include instances where works
were under construction on the bill's effective date, provided they are
completed and the water is applied to the allotted beneficial use within a

20 The proposed bill appears to incorporate a number of the suggestions included
21 The proposed bill is critically discussed in Marquis, Freeman, and Heath, espra
note 1.
2 "Domestic uses" are defined as the use of water for household purposes, the
watering of farm livestock, poultry, and domestic animals, and the irrigation of home
gardens and lawns.


limited number of years. Diffused surface waters, as defined in the bill,
would not be subject to appropriation, but would be subject to owner-
ship by any landowners who collect them on their lands. This would
also be true of any basins, lakes, or ponds on their lands which have no
natural outlet.
Subject to domestic uses and to vested rights as defined above, appro-
priations of definite quantities ot water iua-a
specific times, places, and rates of diversion, could be granted by the
Sta te arCom ssiwould be creaoeTjy the
bill. '-ae _uch. arppria pc ype
beneial use. Beneficial use would be the limit of each appropriative
right, regardless of thespecific quantity of water a groprite' ppi-
cations would be appro e t of ar finds the proposed use is rea-
sonablte md b--e-ik-ti aIJfLt itrnictitl athe iciinterest,"vested
rig li ar"alid prior appropriati~9ns_The Board is authorized _topro-.
mulgate regulations that will have thfe o gdffect of law.
Pesumna'lly, appropriations could be granted for an indefinite length
o ti although the appropriative right would be forfeited by f
to use the water for the specified beneficial purpose for a period of three
consecutive years. No legal acquired appropriation could be declared
fo eited excel t b a determined "
Appropniative rights would become appurtenant to the specified lands
on which the water is to be used "except as otherwise provided by writ-
ten contract between the landowner and the owner of any ditch, reser-
voir, or other works for the storage or conveyance of water," and such
rights would pass with the land when its title is transferred, unless
otherwise provided. The right could be transferred to other lands only
on the approval of the Board.
The principle of priority in ti &P PM rppTnifrt.n would be established,
although the implementation thereof is not clearly spelled out. Presum-
ably, m times of shortage, senior appropriators woulfr me eoclusnely
entitled to the available waters ovwr j ajpp1opLalrs mrom the same
Source. Appropriations could be granted for use on any la U rlan-
or otherwise, although this was not expressly provided.
also provided that "where future ai nations of water for
different purposes conflict, they shall take precedence in the following
order, namely: domestic municipal, irrig o industrial, recreational
andwater owr use." This could an perhaps was mended to mean
that the order of preference should be applied only in the event two or
more competing applications are pending for future appropriations from
the same limited source, with priority in time being the determining fac-

28 Priority would generally be based upon the date that applications are filed.


tor as between different appropriations once they are granted. But it
could also mean that in times of shortage an appropriationfor ai-~e .of
use might De given preference, perhaps eienexcl ve .prefprn C ""ver
an appropriation p f use, regardless f rrity-i
time. Under more or less asu .'rofs s fW t ros,
courts have held that compensation would need to be pai.d fmnnp.h
Although the proposed bill presumably allows nonriparian owners to
obtain appropriations, it provides no condemnattiW. rjni or othe e-
cial procedures to help such anaupropriator atta access to the stream,
as do several Western statutes. Apparently he would have to obtain
such access rights by such voluntary measure~ asm the purchase of a right-
of-way across a riparian owner's d.
Except for domestic purposes, riparian rights, to the extent that they
were not being put to some beneficial use (or the construction of facilities
for their exercise was not actually in progress) within 3 years prior to
the bill's effective date, would P nt be abrogated w ouT m-
enjjtw1 Those riparian owners who were thus making use of the
water, for other than domestic purposes, would not be permitted to in-
cerase-suh use in the future without obtaining an appropriation tere-
for from the Board. Their riparian rights would thus have a quantitative
limitation (based on past use) like appropriative rights, although such
rights perhaps would not be lost through later nonuse.
The proposed bill contains provisions relating to the nfmlniatrative
deter atn and establishment hert of all riparian owners who
th ec o e act are making beneficial use of water, and
arous provisions re to ts enforcement, lud the btang
ofm t an derm s ons prevent unauthorized di-
vers or anges in the place of diversion or use of water.2
ne who wishes to buildad and reservoir would need to obtain
written statement from the Boardthat lansorte properfo- the`

propose i was ouceed in the 1954, and an amended version
in theJTt r sessions of the South Carol Legature. Bti nt
as yet been enacted. The amended bill was referred to, and is currently
in the hands of',te AgricuIttu-r~eIommlt.".----r --.
25 The proposed bill also empower& the board to divide the state into water disa
tricta if a necessity aes therefor, and to assess the costs of its operation aga
'-W r users therein. The purposes for which such a district would be created are not
otherwise indicated.

_ _,__ ___


/ Among other changes considered in the bill in 1954 was a revamping
of the order of priorities by t pe .of. xsae-wieh awM
Iountered some ositi Thebill as amended in 1955 incdned the
following changes:26
1. The order of preference by type of use was discarded, e t
domesi*'- ^ ma Sti e iven top Drio0l e F arwod w simply
hav.e-lhg, mFLTjt iffuiic(uction included in the nrininal hill t ~ ejpa t or
m ppiations in which the proposed appropriation "is not for
beneTfi~l~gi i1Tw5-.-1 not .W fi~ rim IT ff 'r. would impair
vested rigtsTorppropriations, or be detrimental to the public in-
2. A provision was added whih wond hori he Board to estab-
lish the "average minimum flow" for anv eam
"when reasonably re irefor the urp f t Appropriations
c'ti era nted'ronlnyo as to stream wass o nis
"average minimum his was defined as "the average of the mini-
m ndaay oltw UCUirrmg -rng eacoth fihe
period of the preceding twehty~eoesecntve years, to be based upon
stream flow data. supplemented, iT inu6mp1r'e, 1y"esunatt caIeuia-
tions." Exceptions therefrom could be granted only for domestic and
municipal purposes, or in instances where the water used would be
returned in such measure as to "insure the maintenance of the estab-
lished minimum flow at all times." But in no event could an appropria-
tion be authorized that would "impair the effect of stream standards
set by the Water Pollution Control Authority based upon a minimum
average stream flow."27
3. Certain other amendments would tend to narrow the types of
watercourses *tes itwvMipp^" Etn s which
the enstruc iorn' l dams would be subject to i.''----

26 See Proposed Amendments in the 1955 session of the South Carolina General
Assembly to H. 1095 and S. 43, S.C.G.A.
27 Presumably this means stream standards established as provided in S. CAR. CODE
70.114 (1952), which empowers such authority to classify the state's waters and
adopt standards of purity, taking into consideration the rate of flow and other factors.
28 The definition of a "natural watercourse" to which the act would apply was
changed as follows: The words "with visible evidence of the occasional flow of water"
were changed to: "with visible evidence of the flow of water, under normal condi-
tions." Furthermore, a proviso was added to the effect that the act would not deprive
any landowner of the right (a) to use waters in a spring arising on his land so long
as rights of lower landowners are not thereby interfered with or (b) "to place a
dam across a gully on his property; or a stream that originates on his property so
long as provision be made for continued established average minimum stream flow,

[Vol. 41


4. A proviso was added to the effect that the act would not interfere
"wi any relationship between legal waterusers estabsiei ynt a ;
nor shall any action of the Board materia y aecr fh7- Lt ightor
contractual rig t oTf any ~person wftholut his consent."
If this means contractual arrangements entered into either before or
after the act's effective date, this would appear to broaden materially the
extent to which contractual arrangements would be permissible without
obtaining the Board's approval.
Notwithstanding these amendments, a gva y- a tion has been raised
to the possibility of grant roriaite aimo- t f
water to anyone in peetut In li t of this Obj~eco some
action is currenntlyenoncuding pro
to the effect that no appropriaon could e a perpetuty, ut
ou ave e some efite, not toexcee a ce ammaxi-
mum, oerm o .t plena on V
existing circumstances when such renewal was sought.29

A Proposed Bill for North Carolina

A bill substantially similar to the original South Carolina proposal
was prepared for nmtroduetion into the North Carolina Legislature in

However, the proposed bill was killed in the Commitee Conserva-
tion and Development, and never was voted on y te Legislature. Ihe
bil differ Am tia Ario
respects. It provided, for example, that: "Where future appropriations
o w for different purposes conflict, they shall take precedence in the
following order, namely: (1) water for human consumption; (2) water

if and when required to protect the right of landowners below." In any event, any-
one could build or maintain a dam, subject to riparian rights, on any stream having
a minimum flow of not more than a half million gallons per day and utilize the im-
pounded waters without a permit, so long as the established average minimum flow
below the dam is not adversely affected.
29 Letter from L. G. Merritt, director of the Legislative Council of the S.C. Gen-
eral Assembly to the writer, Sept. 6, 1955.
30 S.B. 153 and H.B. 298, N.C.G.A. (1955). This constituted one of a number of
legislative proposals which were given consideration following a 1955 report on Water
Resources of North Carolina by the North Carolina Department of Conservation and
Development, the Division of Water Resources, and the Committee on Water Resources,
Inlets and Coastal Waterways. The report recommended, among other things, that
permits should be required for all uses of water for all purposes, instead of only
for irrigation, as is the case under the existing North Carolina law.


for agricultural and industrial production; and (3) water for other
beneficial purposes."81
Itlf6iffditeiioted, however, that the proposed bill for North Carolina
would not be as much of a departure from the existing water laws of
/the state as would the South Carolina proposal, since existing legislation
in North Carolina already re uires p F 'ff pu e.
though e a ove usse proposal was not enacted, at least three,
bills were passed in 1955 which have some bearing on water rights in the
state. One of these bills includes a statement of policy similar to that
in the proposed bill for South Carolina. But the bill oes no further
than (1) to create a Board of Water Commsioners y tJ e water
resource situ o .n ..'.a..proBlesa.mas e .en. -and (2) to
rovi e the oard wi ertito act in emerge situations.82
never e governor declares the existeneeof a water emergency
within any pa iclar area of the state, the Board may authorize-any
c"0illtcMi -Tw n ierinu-e ae-n ^Fle-Fal f panypart
oft iewatr in the area. to aecare of the needs of human cons'ur pTn on
and necessary sanitat ion i aS ~ it ic ~fet, ~-t~ oi,;;XQ- rIrses.
Anyoie making such an emergency diversion would be liable to others
w5ft-uffer any loss do 'dfiMn na i fEm itL and would be required to
post bond. Such diversions could continue only during the emergency
period. They would not be permitted in a subsequent year unless reason-
able plans had been acted upon to eliminate future emergencies by
adequately enlarging one's water supply.88

A Proposed Bill for Arkansas
Another appropriation doctrine statute, somewhat similar to the North
and South Carolina proposals, was proposed in the 1955session oF e
Lr~jC js IiegiI ~re, u wasi wn wi nrv
-f u lh'nlgt, lMe VMoeMU bu declared tha "the old common
law theories of stream flow are no longer practicable in providing a fair
and equitable division of water supplies. The app rrifiti. "j-t4m. is

S1 The act would not interfere with customary domestic uses. But the watering of
farm livestock would be considered a "domestic use" only as to such farm animals as
are necessary to the sustenance of the farm family, and would not include herds main-
tained for commercial purposes.
32 H.B. 962, N.C.G.A. (1955).
33 Two other bills passed in the 1955 session which have some bearing on water
rights in North Carolina include H.B. 809, which permits the formation of water and
sewer authorities and H.B. 1035, which permits the joint acquisition, construction, im-
provement, maintenance and operation of water supply facilities by two or more
34 See S.B. 69, 60th G.A., Beg. Sess. (1955).

[VoL 41


hereby adopted except for domestic riparian uses, as a practical means
of providing a quantitative rule of guidance for apportionment of
water .....
The proposed bill expressly provided that priority in time would give
the superior right and that when the water supplies were not sufficient
for all on the same watercourse they would be available for appropriation
and use only by the holders of the earlier priorities, to the full extent
of their rights. No holder of an appropriative right could divert or use
the waters when such water was needed to satisfy a right with an earlier
date of priority. The proposed bill did not include a listing of prefer-
ences as between different types of water use, other than that domestic
uses would be excepted or otherwise preferred. A- State Water Control
Commission would have been p.hlihed to =ass on applications for ap-
propriations and otherwise to adminster the act.
One draft of the proposed bill provided that persons having actually
applied water to "reasonable beneficial" use prior to its effective date
would be given vested rights to continue to use uch aioutt, provided
su from the time it was first applied to such use. These provisions, however,
were deleted in a later drafjLth opos
wultff-iiiFser' woui; e required to apv for an appropriation and use
pier-u te a-t'seffetive iate llt
cant to preferential treatment. But those who were already making use
of "the.-air"ob-nh?"' et's effective date would be in position to make
immediate application, while some of the others might not be so favorably
situated. Any riparian rights to divert water from surface watercourses
for other than domestic purposes would apparently be abrogated,
whether or not the water had been actually used for such purposes.36
The proposed bill stated that an ad hn-
ever te propose use wo conflict with th "pblie interest." If two
or- orea-epplications were pending for a quantity of water, inadequate
for all, or which might otherwise conflict, the Commission could approve
the application which appears to best serve the public interest, and
reject the rest. In determining whether an appropriation would be in
the public interest, full consideration would need to be given to fish and
, wildlife values.
Users of water would be permitted to rotate their use of waters o
which they alre -e recvely entitled, with the Commission's approval, so

35 See S.B. 69, 60th G.A., Beg. Sess. (1955) (as amended).
86 There is some question as to whether there are such riparian rights in Arkansas,
as will be pointed out later. If there are such rights, a serious constitutional question
might be involved here.



long as rights of others are not injuriously affected. Theholders of
appropriative rights would be entitled to use no more water than is
neessa or t t e'el- purpose," and they would not be
entitled to use "unreasonable methods of diversion."
The proposed bill differed somewhat from both the North Carolina
and the South Carolina proposals with respect to the ahudnlent or
forfeiture of appropriative rights. Abandonment could occur through ex-
press or implied intent, accompanied by cessation of use, or it would be
conclusively presumed for a continuous failure of beneficial use for
tfireeomore years. But no such intent could be presumed when, during
stienperi-d,-Tiheavilable supply is inadequate for such use, or irriga-
tion is unnecessary. Abandonment of only a portion of one's appro-
priation would not invalidate the whole.
The bill would also differ somewhat in that the owner of land upon
which there is a spring would have absolute ownership of and th ght
to-Bs`uBfiiE pofrtlo of the flow from thesprig as is nfededlr 0 ene-
fiea, purposes on such land. This might severely limit the rights of any
lower riparian owner, who might already be making use of a watercourse
flowing therefrom.37
Although the proposed bill was withdrawn by its sponsor, without
being voted on, it appears to have generated some lively debate in the
legislature when it was brought up for discussion. Among objections
which appear to have been raised were: (1) the state would control e
use of Jw tr cal area here suc control might not be wanted; and
(2) under the nrior appropriation doctrine many s a rmers might be
exeludedThepreferential treatment accorded to those who were already
making use of stream waters was also ob3eect to, an presuma ly
promptd th etion of such provisions mi tlaen e i -ra'i g --the
'" lieu of the proposed bill, another bill was enacted in 1955 which
simply declared the state's jely toco nrole deloment ad use
of watefor all beneficial purposes and established a commit to
sfiyfEeit matter and recommend ways of implement ing su w aT
p~ol PaIU-Aryas- natural streams and lake waters.
PttV1fa -to-Mthis, -the ase'-6t: uaBrre2 v. L.y onwaT O had come
before the courts and reached the Arkansas Supreme Court for determi-

37 But rights of use for other than domestic purposes are open to some question in
Arkansas, as discussed below.
88 See The Arkansas Gazette, Jan. 26 and Feb. 10, 1955; Arkansas Farm Bureau
Federation, Press Release, Jan. 21, 1955.
39 Ark. Acts 1955, No. 250.
40 Harrell v. City of Conway, 271 S.W.2d 924 (Ark. 1954).

[Vol. 41


nation in 1954. The court noted that in. pri .ases.it.ha not had
the occasion to make any definite choice between the two opposing
riparian theories oft natural tIow anhJd~reasonle use. Tie couffrteflrined
from malng such a choiceinthe arrell case. as this was unnecessary
in lis determination. So this important. uneftjBo is Stilljlunganw ,red.
Th ii~urtf itth~:t under the natural flow theory a riparian owner
may withdraw water for domestic uses but not for such artificial uses as
the irrigation of crops or the operation of a factory. It would appear,
therefore, that rights to use natural watercourses for irrigation and
other so-called "artificial" purposes is definitely open to some question in
the state.
A Proposed Bill for Michigan
Another proposed appropriation doctrine statute was given some con-
sidceration in 'oM by the interim G.egslative Committee established to
T er probletsin Mchigan.41 In some respects this proposed
bill would appear to be the least far-reahing of the lot for it provided
that the holder of any tract of land that conforms to the definition of
riparian land included in the act would have a "Class A vested right" to
the "reasonable use" of the stream or other body of water to which his
land is riparian, for purposes of domestic use (as defined in the act),
power, recreation, and fishing on or in connection with such land. Failure
to use water for such purposes apparently would not impair a riaria
ownersright to do so in the future.
Actual application of watixa" a"- ay- "r^c- -8n8at le b "ia1 ure" other
than of the type constituting Class A vested rights, prior to the effective
date of the act, would be dCmc d 'to create "Cla B vBested rihts" in
such users to the extent of .their ctual aplica tion of the wateTrfor
these purposes, prove id ,o -p hd ._ n ,n,-nn.ed.
Water in any stream in woaa ,, +tT_ ruirmtnentsneejded to satisfy
Class AA vM hcould.I. be aronriate on application to the Mich-
igan War R-ources Commission for use on slgnaepa
an o.--. lers of ass B and
would be given priorities, based on the time of application to beneficial
use nthe-aseofClass B rights, and te an appcation was filled
in the case propriative rights one (theran holders of lass A
rights) could divert or impound any water required to satisfy the rights
of Class B or appropriative rights with earlier dates of priority. This,
in effect, would create retroactive priorities among holders of "Class B

41 For another discussion of this proposal, see Barlowe, supra note 1.
42 Nonriparian owners were not provided with any condemnation or other special
powers to acquire access to a stream.


252 IOWA LAW REVIEW [Vol. 41

vested rights," who otherwise would not have had such preferences over
one another43
Although the proposed bill includes no provisions for establishing
preferences as between different types of uses, other than as outlined
above, if, in the opinion of the Commission, there appears to be "assured
prospective uses" of the water that would better erve the public intLrPS,
or -e e, it may reject or postpone approval of an applica-
TThe fate of the proposed bill is uncertain. One objection raised con-
cers file coustitutionality or such a proposal. Recent correspondence
fom a former proponent To tMe Win manifests serious apprehension
regarding it on other grounds, and suggests that consideration perhaps
should be given to an alternative procedure which would leave the ad-
ministration of water rights in the courts, with certain legislative
directives, or to a system of permits having limited duration.

A Proposed Bill for Wisconsin
A proposed bill for the regulation of water resources in Wisconsin
was included in an article by Glenn R. Coates in the Wisconsin Law
Re'vew inm 45 ... .
This proposed bill would apply to both surface watercourses and
groundwaters, and wouldin general, adot the rior appropriation
doctrine. It would enlarge the scope of the existing Wisconsn gs-
MIalo15 discussed previous n number of ways, and wo
adniini o I % hts leslation rind aip un e one

purposes, and no authorized diversions of stream wa rs ou r t'ne"uTrne
fire consent 6frriparian owners, as is often required under the exisi ing
The bj I resembles all of the proposed bills discussed above in several

43 It will be recalled that a similar provision in the proposed bill for Arkansas
was deleted in an amended draft. Such a provision might be held by some courts to
be unconstitutional. The proposed bills for South and North Carolina purported to
create such priorities as among persons who had started construction of works but
had not begun actual use of water on the effective date of the act. But this provision
appears to have been deleted in the amended South Carolina proposal.
44 Existing Michigan legislation already authorizes County Drain Commissioners
or Supervisors and/or the State Conservation Commission, under prescribed circum-
stances, to establish and maintain the "normal" level of various public and private
inland lakes, with powers of condemnation. See MICH. STAT. ANN. 11.211 (1952).
There are other Michigan statutes relating to the construction and maintenance of
45 Coates, supra note 1. The article includes a discussion of how the proposed bill
would change or relate to the existing Wisconsin legislation and common law.

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