Title: The Adequacy of the Prior Appropriation Doctrine Today
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 Material Information
Title: The Adequacy of the Prior Appropriation Doctrine Today
Physical Description: Book
Language: English
Publisher: University of Michigan
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collections - The Adequacy of the Prior Appropriation Doctrine Today
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003137
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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THE ADEQUACY OF THE PRIOR APPRO
DOCTRINE TODAY*

J. Byron McCormick**


The doctrine of prior appropriation, which prevails in the western
states, had its origin in the practices of water users of that area to di-
vert water for use on lands not necessarily owned by the user nor ad-
jacent to the stream from which the water was diverted. The use on
non-riparian lands, and often by a non-owner of the lands, did not con-
form to the established law of the eastern and midwestern states,
known as the doctrine of riparian rights. Under that doctrine, only
those owning land on the banks of a stream, or in privity with the owner
of such land, had a right to use its waters. The custom of the western
users, originating largely in the use made of water by prospectors dur-
ing the California Gold Rush of 1849, was later sanctioned by the courts
of the states and territories of that area, and subsequently crystallized
into constitutional provisions or statutory law declaring the waters of
the state to be public and subject to appropriation for beneficial use,
without limitations as to the place, or extent, of the use.
Under the doctrine of prior appropriation, first in time gives first
in right. To perfect the right, in the absence of prescribed statutory
procedure, an intent to put the water to beneficial use, plus diversion,
and plus the application of the water to such use, are essential, but
when there is compliance with these essentials of a valid appropriation,
Sthe water right vests in the user. His right is superior to that of any
subsequent appropriator and inferior to any valid prior appropriations
Made from the same source.
Modern statutes of the western states define the procedure for per-
fecting a water right and prohibit the diversion of water from a stream,
lake, or other waters declared public and subject to appropriation,
without first securing a permit from a designated state agency. The
usual statutory requirement in this respect exacts an application for a
permit to appropriate a certain amount of water from a particular
source for a prescribed use. If the permit issues, the proposed user
must complete his diversion within the time prescribed by statute, and

S*Paper presented at the Conference on Water Resources and the Law, Uni-
versity of Michigan Law School, September 4-6, 1957.
**Professor of Law, University of Arizona College of Law.







WATER RESOURCES


upon a showing of diversion and beneficial use is then issued a water
right certificate.
ter rights acquired under the doctrine of prior appropriation are
usufructua incnd do not extend to ohe r
itnu It e right to its use. However, the rights acquired are
excuive they are prop -Ttyglts that may be sold and conveyed as
other such rights; the nature of their use or the place of use may be
changed; provided the new use is a beneficial one and the change in
either the nature or place of use is not to the injury of other appropri-
ators from the stream whose rights have vested, whether the rights of
the other appropriators are prior or subsequent in time. Even water
rights for the irrigation of lands, although they attach to and become
appurtenant to the lands upon which the water is applied, may, in most
of the western states, be severed from, and sold separate and apart
from, the lands. The water rights acquired under the prior appropri-
ation doctrine classify as an interest in realty and title passes by deed.
A contract for the sale of such rights comes within the land clause of
the Statute of Frauds, with the doctrine of part performance taking an
oral contract out of this clause of the statute applying to the same ex-
tent as in contracts for the sale of other real property.
Conservation of water resources does not result from theadoption
of the western water law of prior appropriation. Under this doctrine,
a water supply may be entirely exnaustea. the case of a relatively
siia-airs-e it may be exnause y e appropriator and as a con-
sequence only one user may benefit from this natural resource. This
doctrine is in no sense designed to afford all the people of the commu-
nity the use of the waters of a stream. Itsuorts the 6,ggd indi
vidualist theory and not the share-the-wealth rincile as applied to
this great natural resource. If one user can put an entire stream to
bene-tcial use, he can acquire the exclusive right to the use of the
waters of that stream, a vested right continuing so long as he puts the
water to such use. And, should such an appropriator decide to discon-
tinue his use for beneficial purposes, he has a valuable property right
which he may sell and convey at any time prior to his voluntary
abandonment of his water right or its loss by nonuse for the prescribed
statutory period, usually five years. The grantee of a water right,
like the original appropriator, must put the water to beneficial use or
suffer the loss of the right for nonuse, should the nonuse continue for
the statutory period.
Utilization. thr than conservation, of this natural resource is
the gumtng principleunder the doctrine of prior appropriation. Th
f M trTeam as it is wont to flow until muchILtsvwat rach
the ocean discouraged unde.rJh rior appropriation doctrine.


_ __~_







AND THE LAW


Diversion and use is the rule. A benefit to the community or the state
as a whole is recognized under this doctrineeven thuse
be y e few and without r ar oo wn
inLta it permits of the use of water where it ma( be mo .
Fu p a re~iam mayi7Brtow rug roc y canyons, with the ad-
jacent lands non-irrigable or uninhabited, but by diversion to non-
riparian lands the water may be applied to the irrigation of fertile
lands, or for domestic, municipal, stock-watering, industrial, or
other beneficial use, some distance from the stream-in fact, out of
the watershed of the particular stream. In addition, in the arid areas
of the western states little benefit would result if the water of a stream,
in every instance, must be divided between various users according to
their needs. This could result in the spreading of the water so thin that
no great benefit would be realized in the form of the production of crops
due to the insufficient supply of water, while the exclusive use by one
or more appropriators would result in sufficient water to provide such
production.
It is in times of scarcity of water that a user's priority takes on
value f all f the users have at all times sufficient wae an
earlier priority i of no greater value than that of a user with a ri-
o if a muchlater date. In te western states, however, where
the doctrine of prior appropriation has een a op e s normal-
ly a searcty water anu onsequenFy an ioIasa very
fre value in that area. A prior right to one miner's incfwater
(the-a iuniof7 watr that will flow through an opening one inch square)
may have a value well in excess of one thousand dollars in the arid
west Adding miners' inches, and multiplying each inch by that
amount, soon makes a capitalist out of a western rancher with an early
priority.
It has been suggested at this Conference that concern with respect
to water resources has developed as a result of the creation of a com-
petitive demand for the use of water. This is not a new situation to the
western states. There was a competitive demand for this resource in
that area from the beginning. As early as 1850, it was found that there
was not sufficient water in the arid sections of the west to meet the de-
mand. There has also been the suggestion here that the development
of large metropolitan areas in the eastern and midwestern states has
prompted consideration of the need for the conservation and control of
the water resources. This is very evidently true so far as the mid-
western and eastern states are concerned, but in the west the develop-
ment of metropolitan areas has in some measure helped to solve the
water shortage problems of that area; or the develop ment of Qjoli-
tan areas may well take land which has been under irrigation for the


I







WATER RESOURCES


production of crops into urban communities. This results in the utiliza-
tion of the water largely for domestic and to some extent for industrial
use, requiring normally much less water than was needed for the irri-
gation of the same land. Consequently, the very thing that has tended
to create a greater demand for water in certain sections of our country,
that is, the development of metropolitan areas, has reduced the demand
for water in other sections of the country. The amount of water needed
fr irrigation in the product rops in the west approximates
on the average some two or three acre-feet annually per acrefii
irriga5[e Theeedor f6i domesti-c use on the same land wien subdi-
videdTi homes would approximate about one-half of that amount of
wate ;' When water use is under consideration, the east ise aa iFd
west is west.
The doctrine of prior appropriation has not been applied in the
western states generally to all classifications of water. It is generally
applicable to streams, lakes, and ponds on the surface and to under-
ground streams and definite bodies of underground water, but it is not
usually applied in the western states to underground percolating water.
Only two or three of the western states apply that doctrine to all
classes of water, both on the surface and underground. The law appli-
cable in the western states to underground percolating water follows
generally the law of the eastern and midwestern states, giving the
owner of the overlying land the exclusive ownership of such water.
Some of the western states have departed from this so-called common
law rule as to percolating underground water and apply the doctrine of
correlative rights, closely analogous to the doctrine of riparian rights,
applicable to surface streams; and some of the states in the west have
adopted the doctrine of reasonable use, which is a modification of the
old common law doctrine and limits the taking of such ground waters to
purposes incident to the beneficial enjoyment of the land from which
they are obtained.
Nor is the doctrine of prior appropriation considered controlling
or even desirable as applied to thA 'fhts of states includingAthe w^t
o d inc A
Sern states, in an interstate stream In Wyoming v. Colorado, 1 decided
in 1922, a case involving the conflicting rights of those states in-the
Laramie River, an interstate stream, the United States Supreme Court
did declare that prorpropriatipn determines the rights to waters of
a stream between states, hath of which rengnize that doctrine; but in
subsequent cases involving interstateights n t streams that
cour-fthfi li-ig itrecgnizingthat the orities of wateusers in-
states involved a ito be considered, has generally applied the
/ i appo in de ermini r g T1e f i4fiLt. L(.tates,

1. 259 U.S. 419, 42 S. Ct. 552 (1922).







AND THE LAW

including states committed exi

It is possible, in framing
under consideration at this Co
doctrine of prior appropriation
meet the needs of eastern and
entirely new. Massachusetts
legislature authorized diversii
the Boston metropolitan area
preme Court, in answering thi
under the doctrine of riparian
and Massachusetts, water mi
adjacent to the river, and eve
dared that the water law of t
from a stream for use on non
watershed; and that there was
departing from the riparian
that commonwealth the approp
the use of the water on non-
I entertain a dou LL
trine of prior appropriation il
states east of the Mississippi
parable to those prevailing in
proposed by the Model Water
This model act is designed to
upon the use of the state's wa
and it would require permits
respects it conforms to the w
would, however, grant such
not the law o me western sta
a me. The water right
and the certificate has issued
ficial use, is for all time, sa
over the statutory pei ud.
But this model act is not
bring about uniformity of wat
an act, as its title suggests,
states desiring to revamp the
natural resource, and tailor
mitted as may best suit the n
The act as drafted may i
considered objectionable, bu


37

lusively to the prior appropriation doc-

a model water use act, such as the act
erence, to borrow profitably from the
even though the statute is designed to
midwestern states. To do this is not
borrowed from the doctrine when its
ns from the Connecticut River for use in
Af that state, and the United States Su-
e objection of the state of Connecticut that
rights, recognized in both Connecticut
;ht not be diverted for use on lands not
a out of the watershed of that stream, de-
e western states permitted diversions
-adjacent lands and located outside of its
nothing to prevent Massachusetts from
ghts doctrine and adopting as the law of
riation doctrine which would permit of
parian lands. 2
wouo ea advantageous to adopt the doc-
all of its aspects for application in the
River, where conditions are not com-
the arid west, and I note that this is not
Use Act submitted for consideration here.
impose state control and restrictions
er resources, with certain exceptions,
beforee water may be diverted. In these
Lter codes of the western states. JL ..-
ermits only for limited periods. This is


esforth rmits there are not


here acquire, when the permit is granted
upon the application of the water to bene-
re only for a loss of the right for nonuse

submitted as a uniform law designed to
r law throughout the United States. It is
.hat may be used as a pattern by those
.r laws with respect to the use of this
i by such modifications of the act as sub-
eds of that particular state.
pose administrative burdens that are
most of these objections may be overcome


2. Connecticut v. Massachusetts, 282 U.S. 660, 51 S. Ct. 286 (1931).


-I--T:- ---


:!


-----~~ ------~--







38

by exempting, in addition to domestic uses, those uses that do not ex-
ceed a certain amount of water. This would be a departure from the
doctrine of prior appropriation as it applies generally throughout the
west, for there, regardless of the amount of water involved, or the
nature of its use, waters declared public and subject to appropriation
may not be diverted without complying with the requirements of the
state water code. But water users in the west have lived for the past
one hundred years with regulations and restrictions on the use of water.
This is something new to the water users of the midwestern and eastern
states and the less burdensome the administration and procedures under
the act, perhaps the better.
In adopting a new water use act which represents a departure from
the existing law of the state, that is, departing from the doctrine of
riparian rights and adopting some of the aspects of the doctrine of prior
appropriation, certain constitutional law problems naturally arise, as
is always the case where the invasion of vested property rights may be
asserted, but assuming that the change may be effected without any un-
constitutional invasion of vested rights, it is then only a question of
which doctrine best lends itself to the needs of the particular state. It
is rather evident from the proceedings at this Conference that the time
has arrived when even those states endowed with large rivers and great
inland bodies of water, the midwestern and eastern states, should give
concern to their water resources. Certain aspects of thejrior appro-
prltinn dnrin. ,, as state control and the permit s ten
into this Model Water Use Act. ofer w r law possiblili for these
areas of the country. have beenapplied to advantage over a long
period of years in the arid west.----












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