codes and irrigation-district
sands of decisions by "court
States, deciding or attempting
they wdre prested and ne
Statutes and decisions have c
since then. We shall not attA
with its multiple variations I
noted, however, that Append
pendently prepared summary
Our direct co4ern is with
ticipation in irrigation under
part of the background, ho,
rally the divergent doctrine
irrigation, including the use
flow. Similarly, we shall
ments leading t as ption
ties. Then con-es a mi
and scope of federal irrigate
will thus be devoted to Re
shall use to refer to the Re
mented and amended over a
than 175 general, basic, and a
tion, we shall consider other
lating directly or indirectly
laws, and the addition of thou-
of last resort of these Western
g to decide many propositions as
w phases of rights to waters."~
f course continued to accumulate
pt here-to treat this mass of law
om state to state. It'should be
B of this volume contains inde-
es of portions of such state laws.
federal responsibility for and par-
takings. To provide a necessary
ever, we shall first discuss gen-
s of water law in their relation to
of underground water and return
mmarize the significant develop-
of federal irrigation responsibili-
ation in more detail of the nature
n activities. Principal attention
lamation Law, a term which we
lamation Act of 1902, as supple-
period of nearly 50 years by more
special acts of Congress." Inaddi-
federal statutes significantly re-
o federal irrigation undertakings.
A water right is a right only tq use of water-a right usu-
fructuary in character, not right to the corpus of the water
itself.' Wiel has described he right as "real property," saying
"1 Kinney, IBmIATIOIN At1D W4iTs ReHTS, Preface (2d ed. 1912).
SAct of June 17, 1902, 82 Star 888, as amended and supplemented, 48
U. S. 0.4891 et seq. These and other statutes applying to specific projects
have been printed in a stlgle volmne entitled FEDr] A REC AMTIOI iLAWS,
AxonrATim, Department of the interior, Bureau of Reclamation (2d ed.
1943). An annotated cumulative supplement thereto carries a collection
See, e. g., Lue v. HaggJn, 69 Cal. 255,890,10 Pac. 674, 753 (1886) ; Mettler
v. Ames Realty Co., 61 Mont. 152, W61-162, 201 Pac. 702, 704 (1921).
that it is "as fundamental under the law of riparian rights as
under the law of appropriation." With respect to the
riparian doctrine, the Supreme Court has recently said: a
The riparian system does not permit water to be reduced
to possession so as to become property which may be
carried away from the stream for commercial or non-
Correspondingly under the appropriation doctrine, a water
right is only a right to use."
RIPARIAN AND APPROPRIATION DocTRlNEs.-There are two
basic though fundamentally divergent doctrines controlling the
use of waters of natural, surface watercourses. A 1943 sum-
mary of the situation in the West points out that: "
The western law of water rights embraces the com-
mon-law doctrine of riparian rights and the statutory
doctrine of prior appropriation. The principles under-
lying these two doctrines are diametrically opposed to
each other, the former being based on the ownership of
land contiguous to a stream, without regard to the time
of use or to any actual use at all, and the latter on the
time of use and on actual use without regard to the
ownership of land contiguous to the watercourse.
The riparian doctrine is recognized in varying degrees in seven
of the 17 Western States but has been specifically repudiated in
"This usufructuary right or 'water right,' is the substantial right with
regard to flowing waters; is the right which is almost invariably the subject
matter over which irrigation or waier power or similar contracts are made
and litigation arises; and is real property. It is as fundamental under the
law of riparian rights as under the law of appropriation.'* I Wiel, WATEB
RIRGT IN THE WESTEsR S ATZ, is, pp. 26-21 (3d ed. 1911). See also 56
AMbYTo., Waters, 2292, p. 742.
United States v. Gerlach Live Sdok Co., 889 U. S. 725, 745 (1960). See
also supra, n. 142, p. 35.
See, e. g., Rook Oreek Ditch & Flume Co. v. Miller, 98 Mont. 248 258,17TP.
2d 1074, 1076 (1988).
"STATE WATr 'LAw m Tam DnvIEoTMTrr OF THE WEar, Report to the
Water Resources Committee by its Subcommittee on-State Water Law,
National Resources PlannIlg Board, p. 5 (1943).
eight of them, the situation being les clear in the remaining
t*o; on the othetliand the appropriation doctrine is variously
recognized in all 17.
Under the riparian doctrine, only an owner of hands riparian
to a stream may make reasonable use of its waters, hut only on
his riparian lands., His.right is subject to the same right in
all others similarly situated, each of whom is entitled to share
equitably in the water use.", Moreover, this doctrine enttles
a proprietor of riparian land to the continued natural flow of
the stream, a right enforceable by judicial process." The right
of a riparian owner is not gained by actual use of water, or lbst
by failure to useiit. The iparia doctrine has undergone
varying modificat in those W stn States still according it
The appropriation doctrine, on the other hand, rests on
the proposition that beneficial use of water is the basis, meas-
'""The riparitn doctrine has been recognized to varying degrees in North
Dakot,' SouthiDahota, Nebraska, KansasW-Texas, California, and Washing-
ton. In Oklahoma it has been assumed that the riparian doctrine is in effect
but the right of a riparian owner against an appropriator of the water of
the same stream has not yet been defined by the Supreme Court. --t is
theoretically recognized in Oregon, but statutes and court decisions in that
State are such that iwas. been practically discarded. The doctrine has been
specifically repudiated in toto in Arizona, Colorado, Idaho, Montana, Nevada,
New Mea co, Utahi and Wyoming.:' :
"The appropriation doctrine has been adopted in all 17 of the arid and
semiarid Western States. In such of these States as also recognize the
riparian doctrine, the two doctrines are recognized concurrently. The two-
fold system is often referred to as the 'California doctrine' and the exclusive
appropriation system as the 'Colorado doctrne.'" Id. p. 8 See also a -
mariesin Appendix B of this volume.
"See, .i., LUe v. naggin, (Cl q 10 Pae. t74 (1886).
;," Head v. Ampckeag-Maueacturing Co.,lS U. 8, 9, 23 (1885)
United States v. Rio Grande Irrigation Oo.q 174 U. 690, 702 (18898)
Kansas v. Colorado, 206 U. S. 46, 85 (1907).
Chandler, ELEMENTS O WESTERN WATEr LAW, p. 27 (1918).
See supra, n. 142, p. 35. Views of early writers differed as to the extent of
modification which the common-law riparian doctrine has undergone. For
example, compare the .4uesionas to Lw v. 1~4 gn by Chandler and WieL
C(anadle ,,.fratawrTae WW S IA WA Law, p. 18 (1918); I WielL WArW
RIGHTS IN THE WESTERN ST4ATsii 8781 4,P i 7 745-747 (3d ed. 1911).
tre,! and limit if the ep-rprprstive right.0 The first in time
is prior in rightA. Neither the dit-iido df watr 'alone nor
intent alone will suffice to vest an appropriative right." Per-
fected onlyiby use, the right is lost by abandonment." Simi
larly, under provisions of many state statutes, forfeiture will
follow failu-rew to nse beneficially for a specified, i e. An
apprprpiative water right not identified by ownership of
riparian lands." On the contrary, its existence and relation-
aspt'othe sights the sne.stream are identified in.tems
of time of initiation of the right by starting the work to divert
water, coupled with an intent to make beneficial use of.it,
and the diligence with which the appropriator prosecutes to
completion his diversion works and actually Applies the water
to beneficial user ,,,,, ., .; .:*.: ,;;o
The term "appropriation of water" under the arid-region
doctrine bas been defined as follows: ;,
The appropriation of water consists in the taking or
diversion of it from some natural stream or other sodrie
of water supply, in accordance with laIw, with the intent
S ,to apply it to some beneficial use or purpose, and opn-
.Ie 'v Unied States, 28 '. jl 47, 1S66 (1924), citing the Wyoming
statite declaratory of the pteneple4 elT COmP. sI~k. 191O ; ,4 4
It should also. be Rated that Section .8 qf the 1902 Reclamatlon Act
contains a proviso that "the right to the use of water acquired under the
provisions of this act shall be apprant to the land irrigated and bene-
ficial use shall be the basic; e tbisure, and the limit of the #t*it' Act
of Juiae l190, s ; 82 Stat.'s8; 380,43 U. S.'O.L72.
AZaiLaOv. 0atforei, ~ U. ~58, 568 (1938); A-o tla d Copper er v.
Gilteapte, 12 ariz. 190, 202, 100Pac. 45, 489 (1a0). -
"AlbuM erque Land d Irri,~ tiesa v. Oatierrea,! 1N. Mes. 177, 240, 1
Pac. 357, 361 (1900).
. fWtiW:WT4 RI'OreI iN, THe WESTERB STATES, ij 58-5, pp. 6038-07
(ad- f4. 9 e .,.\ .. -, ;*. ;
SSee, e. g., N. M=X. STATS. ANN., 1941, 77-526, which works a forfeiture
of. "anpprppriative right to use water, except that for storage reservoirs,
upon failure to exercise the right r four years, unless caused by conditions
beyond control of the owner of the right.
Boquillas Land d Cattle Co. v. 'Ourts, 213 0. S. '8, 847 (1900).
"Arizona v. 'alifornia, 28 U. 8:.!558, 566 (19886). See also the meaning
df the term "to appropriate water* as iet forth In Arffona v. Californi,
2883 1. S. 423, 459 (19Q1): 1
"2 Kinney, IaGIoATeON AND WATE RIGHTS, 1 707, p. 1218 (2d ed 1912).
summated, within a reasonable time, by the actual ap-
plication of all.of the water to the use designed, or to
some other useful purposes.,
The steps taken toward acquisition must accord with the laws
of the state where the water is found." And "every State is
free to change its laws governing riparian ownership and to
permit the appropriation of flowing waters for such purposes
as it may deem wise. '"
It should also be noted that all of the western irrigation
states excepting Montana have adopted comprehensive stat-
utes controlling the acquisition, Administration, anid control
of water rights.' i The Supreme Court of the United States
has pointed out that the reason for passage of such statutes
lies in the deficiency of the ordinary procedure and processes
of law to meet the need for segregation, by various individuals
or companies, of water taken by separate canals or ditches at
different points along the same stream under appropriative
GROUND WATmR.-With the diminution of the quantity of
unappropriated water in the normal flow of western surface
streams, increasing attention has been turned to ground water
for additional supply." :It has been estimated that the 1945
daily use for irrigation of water pumped from wells reached an
SArizona v. California, 283 U.S. 423, 45 (1981).
Connectiout v. Mass8ae1etts, 282 U., S. 608670 (1981). See also CALr.
CoNer., Art XIV, S 8, spaeifying certain li ttations, on riarian rights.
'STATE WATER LAW Ii TiB DEVrLOPuEr o UE w WEST, Report to the
Water Resources Committee 'by its Subcommittee on State Water' Law,
National Resources Planning Board, pp. 99-111 (1943).
"Monteauma Canai Co. v. Sm.ithvie COd~s Co., 218 U .871, 385 (1910),
citing with approval Farm Investment Co. v. Carpenter, 9 Wyo. 110, 125, 61
Pac. 258, 260 (1906).
SIn Utah, for example, "The U. S. Geological Survey has made a careful
study of ground-water resources. The State Engineer's Office has devoted
special attention to the clarification and recording of rights to ground water.
Perplexing legal questions and costly water-right litigation have, neverthe-
less, retarded ground water development." IraBGATON COMPANIES IN UTAH,
Bulletin 322, Agricultural Experiment Station, Utah State Agricultural
College, p. 80 (Marchrl94b6.
unprecedented 10 billion gallons, about half the total pumping
for all purposes, and that more than 90% of that irrigation use
occurred in the 17 Western States."
As compared with surface waters, it is more difficult to ascer-
tain the occurrence and characteristics of ground water. Con-
siderable expense often attaches to attempts to use the latter,
and naturally surface waters !were generally used first. Thus,
the legal principles applicable to ground water use have not
crystallized as rapidly as those applying to surface waters.
Classification presents on' resulting source of difficulty.
Some hydrologists consider tht all water in the "zone of satura-
tion" should be encompassed in the single classification "ground
water." But in the current state of the law that approach,
however sound hydrologically, at once encounters difficulty if
applied in legal actions. Fo* courts have generally divided
ground waters into two classifications, waters flowing in definite
underground streams and percolating waters.' Moreover, in
the absence of another statutory basis, ground waters are pre-
sumed in some states to be percolating waters unless it is evi-
dent that they flow in a defined channel.' And the burden of
proving the existence of an underground stream rests with the
party alleging it.7
In the case of defined subterranean streams, the previously
mentioned 1943 survey states that: "
It seems well settled in the Western States that de-
fined subterranean streams are subject to the same rules
SPaulsen, GQPomD-WATE PaOBLEMS nW TaE UED STATES, Department of
the Interior, Geological Survey, p. (September 1949).
See, e. g., Thompson and Fiedle, Home Problems Relating to Legal Cot-
trol of Ue of Ground Waters, AMEICAN WATERWORKS ASSOCIATION JOURNAL,
Vol. 30, No. 7, p. 1061 (July 1988).
STATE WATEB LAW Il THE DEV MEIo NT OF THE WEST, Report to the
Water Resources Committee by its Subcommittee on State Water Law, Na-
tional Resources Planning Board, p1 70 (1943).
"See, e. g., Evans v. City of Seattle, 182 Wash. 450, 453, 47 P. 2d 984, 985
(1985). See also 56 AM. Jui., Waters $ 108, n. 17.
See, e. g., CUnehfield Coal Corp v. Compton, 148 Va. 437, 448, 139 S. .
308, 312 (1927). See also 56 AM. RTU., Waters 108, n. 18.
STATE WATER LAW IN TIux DE~BrEPMNT OF THE WeST, Report to the
Water Resources Committee by, t Subcommittee on State Water Law,
National Resources Planning Board, p.71 (1943).
of law which are applicable to surface streams. Conse-
qie: itly, iii any State, the appropriation and ripariani
doctrines apply to subterranean streams to the sam.ie
extent to which thIy apply to surface streams. Regard-
les of whether or not th'p pprioprition statutes refer to
S undergrbufidistreams, court decisions in the Western
States have invariably bipel 'the appropriability of
unappropriated waters of lnownl and' defined under-
ground store subject to vested rights.
SIn the case of percolating waters, that survey outlines thee
concepts of rights a applied in different jurisdictions.'. The
first is the comnmo-la~ rzle based upon the principle that te
owner of the soil haa absolute right: to use all that is foud
therein. Thus, the ~landowne;n may withdraw percolating
waters without limitation and regardess of effect elsewhere.0
The second is the reasonable e use" rule, under which a land-.
owner may make only, a reasonable use f, perQlaaing. water
underlying the land, Bh ing due regard fo the equal right of
all other owners of land overlying thp same common supply.1
In an adaptation of tis, rl, Califoreia follow the rule of
"correlative rights," under which the rights of all owners of
overlying lands are considered cor7elative and coequal." The
third is the appropriation doctri~i, previously discussed i
its relation to surface waters.,
The 1949 California opinion in Pasadena v. Alhdmbra merits
notice here." In that case, the plaintiff sought to enjoin over-
drafts and a determination of groundwater rights in tho 40
square mile, alluvial-filled Raymond Basin Area. The 'Su-
preme Court of California reviewed i'tl rrelative-_ght prij
I. pp. 7T-7T. .
l4. p. 72. ,
"Id p. 7. .. .. .
See; e g., Katz v. Walkinsfaao, 141 Cal. 116, 70 Pac. 668 (1902), 74 Pac.
STATE WATER LAW IN THE DEVELOPMENT OF THE WEST, Report to the
Water Resources Committee by its Subcommittee on State Water Law,
National Resources Planning Board, pp. 75-76 (1943).
"s3 Cal. 2d 908, 207 P. 2d 17 (1949), cert. den. sub won. Cfiifornia-
Micisan, Land & Water Co. Pasadea4, 3S U. g. 087 (1980).
ciple and declared the classification of rights in an underground
basin to embrace overlying% appropriative, and prescriptive
righ-ts. It held that appropriative rights may attach only to
surplus ground water; that the surplus is nojt subject to pre-
scription as against an overlying owner because, if surplus, no
right of the overlying ownitr is invaded; that surplus water
may be exported from the basin 'fo. nonoverlying uses; and
that appropriative rights in such surplus are, in, time of short-
age, subject to the rights of overlying owners'which are para-
mount to appropriative rights except a invaded by prescrip-
tiO., The Court limited aE withdrawals to the amdi~i of
the estimated safaeyield' ,
'In general, recent legislative trend appears moving toward
conservation of ground water on the reasonable-use basis, aid
toward applying to ground water the principles of use and
administration applicable towsurface waters." It may also be
8 Cal. 2d at 925,207 P. 2i at 2
1 33 Cal 2d at 25, 926, 207 P. 2d at 28-29.
*833 Ca. 2d at 986-87, 207 P. 2d at 34-85.
SFor a summary of the ground-water law in each of the 17 Western
States see STATi WATEa Law IN THE DEVELOPMENT OF THE WEST, Report
to the Water Resources Committee by its Subcommittee on State Water
Law, National Resources Planning Board, App. C, pp.,118-127 (1943).
From the date of the foregoing report, May 1943, through 1949 legislative
sessions,, no change of major significance appears in the relevant laws of
Colorado, Idaho, lontana, Nebraska, North Dakota, Oklahoma, Oregon,
South Dakota, and Washington. ;Abbreviated indications of the general
nature of principal subsequent altation4 in other Western.States follow:
,Asizoa.--Adopted a ground-water code in 1948, including provision for
"critical groundwater areaa" wherein Irrigation wells may be constructed
only by permit. ABm. CODE ANN. 1I89 CUM. SUmP., 75-145 et seq.
California.-In 1949, added prov sons for investigating damage to quality
of underground waters and for reporting data upon, completion of water
wells or upon conversion of oil agld gas wells to water wells. D m~e's
CAuONuro~ CODES, WATER, 1949 CUK. SUPP., 16 281, 7076,,7077 .
Kansa.-G-rolnd waters made subject in 1945 to enactments providing
for appropriation for enumeratedi,beneficial uses, subject to prior vested
rights and forfeiture on nonuse for three years. 1947 CuM. Sure. KIAs.
,.eaa.e-Act for conservation and distribution: of underground waters
amended in 14&47 and; 1949 to provide for exempting domestic appropriations
not exceeding two gallons per minute and for designating basin areas
noted that there is little federal legislation dealing expressly
with ground waters.
RETuN FLow.-Another increasingly important aspect of
water law concerns the right to return flow, the right of the
wherein underground waters shall be administered pursuant to the act.
New provisions as to drilling of wells, waste, procedure for appropriation,
adjudication of rights, forfeiture, and abandonment. NEV. COM. LAWS,
SuPe. 1943-1949, 1 7993.11-799831.
New Mexico.-Added 1043 amendment to clarify recognition of existing
rights in connection with applications for use of underground water, and in
1949 required licenses for the drilling of wells from chartered underground
sources. N. M=x. STaT. 1941, 1949 SuPW., 577-1108, 77-1116-17-1121.
Texas.-In 1949, authorized creation of Underground Water Conservation
Districts with such powers as issuance of ales and regulations, and also
permits for drilling wells. Recognized owner of overlying land as owning
ground water subject to district regulations. VEBNON'S ANN. REV. CIVIL
STATS. OF TEXAS, 1949 CUM. SuPP., Art. 880-3e.
Utla.-In 1945, provided for control of artesian wells wasting water and
required that notice of all claims to the use of underground waters be filed
with the State Engineer, such notice since 1949 being pr ma face evidence
as to all rights defined in the claim. UTa CODE ANN. 1943, 1949 CUM. SUPP.,
100-2-21, 100-5-12, 100-5-15.
Wyoming.-In 1947, provided for broader regulation of underground
water rights. Reasonable use of all underground waters declared a matter
of public interest. Reasonable, economic, benflcial use the basis, measure,
and limit of the right. Domestic, culinary, .aid stock-farm uses exempted.
So also use for irrigation for lawns and gardens not exceeding four acres.
Claims, descriptions, and applications to appropriate to be filed with State
Engineer. Upon determlnati of capacity and extent of underground water
formations, State Board of Control may adjudicate rights therein after
hearing, subject to appeal, and issue certificates of right of appropriation.
Abandonment subject to same laws as in case of surface waters. Change
of location of appropriation may be made within same underground basin
without loss of right. WYo. CoMP. STATS. 1946, 1949, CUm. SueP., 5i 71-408-
"The Secretary of the Interior is authorized to issue permits for not more
than 2,560 acres of public land in Nevada, for exploration and develop-
ment of "water beneath the surface," on condition that the permitted shall
commence "development of underground waters" within six months from
the permit date. When sufficient water has been developed for a profitable
crop production, other than native grasses, on not less than 20 acres, a patent
may be issued to as much as 640 acres. The statute says nothing respect-
ing state laws and apparently proceeds on the assumption that, as owner
of the public lands, the United States owns and may dispose of underlying
waters. Act of October 22, 1919, 41 Stat. 298, as amended, 43 U. '8. C.
original diverter of waters to reuse them." For example, water
escaping from a reservoir by leakage may collect in low areas
or percolate through the subsoil later to augment the flow of
the stream from which it was diverted. Litigation involving
return flow has arisen in connection with a number of large
irrigation projects under Reclamation Law." Like ground
water, return flew presents complicated physical problems not
present in the case of surface waters, such as that encountered
in efforts to trace and identify return flow."
As large-scale irrigation operations progressed, irrigated
areas experienced a rising water table. At times, this resulted
in widespread waterlogging of lands irrigated by the project and
of other lands." Remedies have included use of deep, open
drainage ditches or sumps from which water is pumped into
wasteways. Recovery of significant flows in this manner
sharpened interest in legal rights to their use.
Some states have enacted legislation regarding rights in seep-
age from constructed works." A 1941 New Mexico statute
furnishes an interesting example." It defines "artificial sur-
face waters" as:
waters whose appearance or accumulation is due to es-
cape, seepage, loss, waste, drainage, or percolation from
SJudicial opinions variously refer to "waste waters," "seepage and waste
waters," or "return flow." See, e. g., Nebraska v. Wyoming, 325 U. S. 589,
600 (1945); a4amshors Ditch (o. v. United States, 269 Fed. 80, 85 (0. A. 8,
a For example: Salt River Project, Lambeye v. Garoia, 18 Ariz. 178,157 Pac.
977 (1916) ; Boise Project, Griiths v. Cole, 284 Fed. 869 (D.C. Idaho 1919);
North Platte Project, Ramshorn Ditch Co. v. United States, 269 Fed. 80 (C.
A. 8, 1920); Boise Project, '7n ed States v. Haga, 276 Fed. 41 (D. C. Idaho
1921); Shoshone Project, Ide v. United States, 263 U. S. 497 (1924); North
Platte Project, United States v. ttiey, 124 F. 2d 850 (C. A. 8, 1941); Ken-
drick Project, Nebraska v. Wyoming, 325 U. S. 589 (1945),
See, e. g., the reference to the "obscurity in the movement of percolating
waters" in Natron Soda Company v United States, 257 U. 8. 188, 146 (1921).
See, e. g., Nampa d Meridian rrigation District v. Bond, 268 U. S. 50,
52 (1925). For more extensive discussion of the facts, see Nampa &
Meridian Irrigation Dist. v. Bond, 288 Fed. 541 (0. A. 9, 192).
See, e. g., the review of the law of several states in Binning v. Miler, 55
Wyo. 451, 466, 102 P. 2d 54, 59 (1940).
N. Mzx. STAT. ANN. 1941, 77-525.
constructed works either directly or indirectly, and which
depend for their continuance upon the acts of man.
Such waters are declared to be primarily private and subject to
beneficial useby the owner or develioper It is provided, how-
ever, that they shall become subject to appropriation Wihen they
have passed 'beyond the'dbtminoii of te developer anu have
reached a natural stream without having been used by him for
a four-year period aftirtheir first appearance.
But under the statute no appropriator may require the
owner or developer to continue such a water supply, except by
contract, grant, dedication, or condemnation. In this respect t
it incorporates principles similar to those enunciated in the
1916 Arizona opinibn[ in Lambeye- v. wGatcia." Still earlier,
Kinney had said in 1912 that a like rule was generally followed,
in the case' f irrigation water which, becauseO.f the lay of the
land of a prior appropriator, flows on to the land of another."
Similar principles were applied in United States v., Haga,
a case arising in Idaho.6 1There, a United States District Court
upheld an original appropriator's right to wastage, both in the
form of surface run-off and deep percolation,: so long as he
can identify it and his right has not been abandoned or for-
feited by nonuse.- The Haga pi onwasquoted wth ap-
proval by the United States Supreme Court when it examined
rights in seepage waters of the- Shoshone Project in; Ide v.
United States.' E The Codrt there upheld the right of the United
States to straighteif and use a ravine to''cbllect retain flow
from water used for irrigation and to reuse such water."o, In
cono action. with the North Platte Project, the United States
Cburt of Ajpeals for the Eighth 'ircuit used like reasoning
in holding. that an ,ppropriator has a reasnable ti# within,
which to reclaim seepa.ge Over 20 years-later, similar ques.
tions arose in connietion:with this Project, arcdthe same Court
ir~ Ariz. 178, 81-182,157 P:e.. 976, It7 (1916).
"2 Kinnby, InBirATION ANDW WAT B RIGuOTi, 661, p. 1150'(2d ed. 1I2').
S276 Fed. 41 (D. C. Idaho 1921).
276 Fed. at 43-44.
"26 U. S. 497, 506 (1924).
"263 U. S. at 507.
RmaNtom DOMtct Go. v. Us'tea States'289 Fed. 80, 85 (0. A. 8, 1i9).
sumsaiaed ithe, right oftb ,th united, Stawes to collect seepage
waters and apply them on'ay of the lands of the Project."7s
Also important here! is Nebraska ,v,.Wyomnig, in which
those States sought an apportioamenta of ithe waters, of the
North Platte River.'4 Colorado wasimpleaded s defendantn,
and the United States was granted leave tointervene."' One
question bcoedrned! hei recapture in Wyomiih ofreturn-flow
water from the Kendriek Project after its return to the River
and coinmingling with the general flow. Another concerned
diversions from the River at or above the Alcova Reservoir as
"in lieuf'" Xendri&; Project return flow reaching the River
below Alcovae.W While. the Project was not then completed,
it was estimated that nturandrainage and that from drainage
facilities, including sump areas, would contribute return flow
of 96,000 acre-feet k year, of which an estimated 46,000 would
occur during the. irrigation period.F The Court's opinion ex-
presaly empld i 'thi-tiem "'natural flown as including return
flow reaching the River.": < *
Reafirming the principles of the Ide case, the Court held
that theiUnited States, as owner of the Project, is entitled to
obtain full uwse' water for the. Project and to retain control
oyer it until abandonment.7T Iniconection with return flow
from drainage facilities, the 1Court deferred consideration on
the merits pending ascertainment' oJftheextent of the con-
tribution from artificial drainage. It accordingly concluded
that, when the Project had been put in operation and there is
a full development of return flow, application might be made
for rev* on of the decrpe to permit "in lieu of" diversions at
or, above Aleo.B': .t ,. -5. *n
Worthy of note here is an 1899 Colorado statute providing
thaj ditches ~~buitto f sq "'waste, seepage or spring waters of
fite State. yr TIa. 124 F.2d,850 (O. 8,441).
"325 U. S. 589. 683-887 ( 45)..,
See supra, ppi 47-4& .
"325 U. S. at 6838-837.
"25 U. S. at 634.
325 U. a. at 887.
the state" shall be governed by the same laws as control appro-
priations from ditches constructed tn utilize water of running
streams, a statute frequently subject to judicial scrutiny."
While it reserves prior right in the owner of lands on which
such waters arise, such a right has been held to attach only to
waters not tributary to a natural stream, and the right may be
lost by prescriptions A recent case in point also holds that
one asserting that water is not tributary has the burden of
proof, the natural presumption being that all water finds its
way to a stream.5
In another recent case, the Supreme, Court of California re-
jected a contention that leakage from the Rodriguez Dam in
Mexico on the Tijuana River and return flow from an adjoin-
ing irrigation project constituted "waste" or "foreign" waters."
The Court held such waters to be portions of the natural stream
flow which, after interruption by storage and use, find their way
back into the surface and underground channel of the River
and flow over the international boundary, becoming subject to
appropriation under the laws of California."8
The foregoing considerations indicate a lack of uniformity in
the law respecting return flow. Significant, however, are such
recent holdings as that permitting prescription against a land
owner's unexercised right of use in favor of others willing and
able to use the water, and the mounting insistence upon widest
practicable use of return flow."
"1935 CoLw. STATE. Ai;., vol. 3, ch. 90, S20 and cases there cited.
"Lomas v. Websler, 109 Colo. 107, 110-ii2,i122 P. 2d 248,250-251 (1942).
=De Ha"s v. Benesch, 116 Colo. 344, 385(, I;8 2d 453, 456 (1947).
SAllen v. Califordia Water & Telephone Co., 29 Cal. 2d 408, 482, 176 P
2d 8, 18. (1946).
The Supreme Court of Ciiifornia has said, "it is the policy of the state
to foster the beneficial use of water and discourage waste, and when there is
a surplus, whether of 4 aice or ground water, the holder of prior rights
may not enjoin its appropriation." Pasadena v. Alhamtbr, 83 Cal. 2d 908,
926, 207 P. 2d 17, 28 (1949). See also Lomas v. Webiter, 109 Colo. 107, 111,
112, 122 P. 2d 248, 250-251 (1942).
Quoting from the Ide case, the United States Supreme Court said in
Nebraska v. Wyoming, "The State law and the National Reclamation Act
both contemplate that the water shall be so conserved that it may be sub-
jected to the largest practicable use." 825 U. S. 589, 635 (1945).
INTERSTATE RVERms.--Many important rivers or their tribu-
taries originate in the highlands of one state to pursue a course
through others. As we later point out, there is a growing
awareness of the multiple benefits to be derived from basin-
wide development of river systems and their watersheds under
comprehensive plans."' In the process of comprehensive de-
velopment, particular projects are of especial concern to the
people within their immediate area.
In the case of irrigation projects, the availability of suitable
land, characteristics of local economy, lesser financial outlay
required for diversion works, and other factors sometimes pro-
mote downstream development before projects are initiated for
use of waters upstream. On the other hand, opportunities for
diversion first occur in upstream areas.
Just as in the case Qf individual water users on a stream,
questions have arisen between states in regard to their respec-
tive rights in waters of interstate rivers. Despite the differ-
ences in basic systems of state water law, some of which we have
already noted, the relative rights of states litigating a water
controversy do not depend upon their respective systems of
law." On the contrary, in settling interstate water contro-
versies, the Supreme Court has applied the principles of equi-
table apportionment, a doctrine which resolves the controversy
on the basis of the equality of rights without adherence to any
Use of water for irrigation is vitally affected by determina-
tion of such interstate water controversies. As we have al-
ready pointed out, such controversies may be settled by
original suits brought in the United States Supreme Court, or
by interstate compacts."
Irrigation Water Companies and Irrigation Districts
Outstanding among organizations for group irrigation de-
velopment are irrigation water companies and irrigation
SSee Chapter 9, Comprehensive Development, infra, pp. 383-491.
Connecticut v. Massaclusetts, 282 U. S. 660, 670 (1931).
See supra, pp. 58-64.
See aupra, pp. 64-70.