Title: The Reparian Right as Property
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Title: The Reparian Right as Property
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann's Collections - The Reparian Right as Property
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 9
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THE RIPARIAN RIGHT AS PROPERTY
Theodore E. Lauer

TABLE OF CONTENTS

Page
I. INTRODUCTION: LEGISLATIVE MODIFICATION OF
THE RIPARIAN DOCTRINE . . .... 133
I. CONSTITUTIONAL SAFEGUARDS OF PROPERTY . 137
A. "No person shall.. be deprived of... property without
due process of law". ................. 137
B. Constituent Elements of the Constitutional Safeguards 138
1. Property Under the Constitution . ... 140
2. Taking Without Due Process Under the Constitution 143
C. Conclusion .......... ........... 149
m. THE ABSOLUTE RIGHT OF PROPERTY . ... 149
A. The Legal Institution of Property. . . ... 149
B. Practicability and the Common Good . ... 152
C. Subjects of Property ............. 154
1. The Sea, the Air, and Other Unique Subjects of
Property ................... 155
2. Watercourses and Flowing Water . ... 159
D. Conclusion .. .. . .. .. .. 165
IV. A LEGAL ANALYSIS OF THE RIPARIAN RIGHT TO USE
WATER .. . . . . . 166
A. Introduction . . . . . 166
B. The Property Interest in the Riparian Right . .. 169
1. Judicial Statements As to the Property Nature of
the Riparian Right ................ 171
2. Analysis of the Development and Nature of the
Riparian Right .. ....... ...... .. 175
a. Physical Basis of the Riparian Right . .. .175
b. Legal Basis of the Riparian Right . ... 177
c. Adjusting Between the Equal Rights of Riparian
Owners . . . . 190
C. Conclusion . . . . . 208








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V. RECOGNIZED LIMITATIONS UPON THE RIPARIAN
RIGHT . . . . . .
A. Limitations in Respect to Members of the Public .
1. Navigation . . . . .
2. Fishing . . . . .
3., Hunting . . . . .
B. Limitations in Respect to the State and Federal


Governments ....


Page


211
212
213
216
221


. . . . 223


1. Proprietary Power of Federal and
ments . . .
a. Federal Proprietary Power. .
b. State Proprietary Power .
2. Control over Navigable Waters .
a. Federal Control . .
b. State Control . .
3. "General Welfare" . .
4. Treaties and Interstate Compacts
a. The Treaty Power . .
b. Interstate Compacts . .
5. Interstate Apportionment .


State Govern-


6. Governmental Acquisition of Riparian Rights by
the Eminent Domain .............
VI. MODIFICATION OF THE RIPARIAN DOCTRINE .
A. Judicial Modification . . . .
B. Legislative Modification . . . .
C. Constitutional Modification . . .
VII. CONCLUSION: THE EFFECT OF THE MODEL WATER
USE ACT UPON.THE RIPARIAN DOCTRINE . .


. 223
223
230
. 234
234
S. 243
244
S. 245
246
248
S. 249

251
255
255
. 259
S. 263














THE RIPARIAN RIGHT AS PROPERTY


Theodore E. Lauer*


I. INTRODUCTION: LEGISLATIVE MODIFICATION OF THE RIPARI-
AN DOCTRINE
Solutions to the problems of water use and supply in the United
States are often framed in terms of legislative modification by the
states or by the federal government of the "riparian" doctrine regard-
ing the use of the water of streams and lakes. 1 Generally stated, this
doctrine, which exists presently or has existed in the law of all but a
very few of the states, 2 and which furnishes the exclusive legal basis
for the use of the waters of streams and lakes in the eastern states, 3
provides that water from streams and lakes may be used only by per-
sons owning land adjacent to these bodies of water, and that each owner
must use the water reasonably in relation to the uses which other per-
sons similarly situated are making. The doctrine further qualifies the
use of water by limiting it to those tracts of land actually in contact
with the body of water and prohibiting its use upon other lands, at least

*Legislative Analyst, Legislative Research Center, University of Michigan
Law School.
1. Strictly speaking, rights to the use of the water of ponds and lakes are
termed "littoral." However, the general practice has been to use the
phrase "riparian rights" to include both true riparian rights-those aris-
ing from natural watercourses-and littoral rights. Therefore in this
monograph the term "riparian" is employed to refer both to watercourses
and to ponds and lakes.
2. The riparian doctrine has at some point in time been a part of the law
in virtually all of the states; eight states have either never adopted it or
have subsequently repudiated it entirely: Arizona, Colorado, Idaho, Mon-
tana, Nevada, New Mexico, Utah, and Wyoming. See Hutchins, Selected
Problems in the Law of Water Rights in the West 30 (1942).
3. The term "eastern states" used when speaking of American water law
has traditionally included the thirty-one states east of the ninety-sixth
meridian which have recognized the riparian doctrine as the exclusive
basis of their water rights law. Very recently, however, there have
been two defections from the ranks of the strict riparian doctrine states.
Iowa's legislature in 1957 passed a permit-type water use. statute, there-
by modifying the common law in that state. Iowa Code Ann. 455A.1
to 455A. 39 (1957 Supp.). In 1956 the Mississippi legislature adopted a
prior appropriation type statute whose precise effect upon riparian rights
is unknown. Miss. Code Ann. 5956-01 to 5956-30 (1956 Supp.).


.-.








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when uses made upon lands actually adjacent to the streams or lakes
are interfered with. These lands in contact with, and adjacent to,
streams and lakes are termed "riparian lands"; their owners are
termed "riparian owners" or "riparian proprietors."4
The riparian doctrine undoubtedly was adequate to govern the use
of the waters of streams and lakes in the eastern United States at the
time of its development in the first half of the nineteenth century. 5
During this era of societal and economic expansion, the watercourses
were important predominantly because of their ease of use for travel,
and secondarily for furnishing the power to run mills and other kinds
of early industry. Rainfall was generally ample for the production of
crops, and the ground water table in most places was sufficiently high
to allow facile access to a supply of potable ground water adequate for
domestic and stock purposes. Where persons did not rely upon wells
and springs for water for domestic use but took it from watercourses
instead, the quantities abstracted were so small as to be unnoticeable
on all but the tiniest of streams. 6 In a setting of this nature, the
riparian doctrine, with its basic tenet of reasonable use, clearly did
not hamper economic and other progress, but instead encouraged water
use for many divergent beneficial purposes by all persons owing
riparian land.
With the enormous increase of population and industry in the east-
ern United States during the first half of the twentieth century, how-
ever, the wisdom of retaining the riparian doctrine in all its facets has
been sharply questioned. Even the most ardent supporters of the
riparian doctrine admit that some of its elements present an impedi-
ment to future development, and its critics imply that it is largely re-
sponsible for the impending water crisis in the eastern states. There-
fore it is now highly appropriate-as the time approaches when

4. In the seventeen states west of the ninety-sixth meridian, the riparian
doctrine either is not recognized as part of the legal system or exists
in conjunction with the doctrine of prior appropriation.
5. It may be seriously questioned whether, with the possible exception of
the humid regions of California, Oregon, and Washington, the riparian
doctrine was ever adequate to meet the needs of the western states. In
many of these states in which this doctrine was recognized, it was ap-
parently thought to have been included within the wholesale adoption of
the common law by legislative enactment, and thus it was recognized by
the judiciary.
6. The few early controversies which did arise concerning the abstraction
of water from streams for consumptive use usually involved watercourses
which were so small that they allowed of no more than the use of water
for domestic purposes. See, e.g., Mastenbrook v. Alger, 110 Mich.
414, 68 N.W. 213 (1896), in which an irrigator was enjoined from tak-
ing water from a stream only large enough to satisfy the domestic needs
of the riparian owners.








AND THE LAW


important decisions will have to be made by each of the states whether
to retain or discard the various tenets of riparianism-to inquire into
some of the possible legislative modifications which can be made in the
riparian doctrine in order to meet the demands of the future. 7
In the consideration of any proposal to modify the existing riparian
doctrine, attention must be directed to two basic problems. In the first
place, the wisdom of any proposed piece of water legislation must be
carefully examined to determine whether it provides the optimum
means for insuring beneficial use of the existing water supply, and
whether it will suitably encourage future industrial, agricultural, mu-
nicipal, and other development necessary in order to furnish the needs
of life to an ever-increasing population. Put in another fashion, the
wisdom of the proposed legislation, in view of social, cultural, and
economic factors, must be ascertained; no new or modified system of
water rights should sacrifice those basic values which are sought to be
protected by the very establishment of such a system. 8
In the second place, regard must be had to the validity of the pro-
posed legislation from the viewpoint of constitutional law. The mere
fact that a particular piece of proposed legislation is believed to be
wise and prudent does not insure that the courts will find it to be con-
sistent with the provisions of state constitutions or of the national
Constitution. Carefully considered legislative enactments aimed at
modifying or limiting private property in the public benefit have in the
past been set aside with dismaying frequency by the courts as depriv-
ing persons of property without due process of law. 9 The presence of
these constitutional safeguards of property and their strict enforce-
Sme~t by the courts in recent decades has led to considerable concern

7. Conceivably the riparian doctrine can be modified judicially as well as
legislatively; in fact, the historical development of the riparian doctrine
has come through judicial development and modification. In recent
years, however, the courts have made little modification or improve-
ment in the doctrine and have apparently come to look to the legislature
for guidance in this respect. See Harrell v. City of Conway, 224 Ark,
100, 107, 271 S.W. 2d 924 (1954), where it was recognized in a con-
curring opinion that legislation is necessary to solve the problem of
water use regulation. All of this, of course, is as it should be, since
the legislature is the instrument of the public will and therefore primari-
ly responsible for policy-making of the kind necessarily embodied in any
modification of the riparian doctrine.
8. Some of the factors involved in ascertaining the wisdom of any proposed
piece of water rights legislation are discussed in the other papers in
this volume.
9. For the last twenty years this has not been true of the federal courts;
yet it still remains altogether too valid in the case of many state courts.
See King, "Regulation of Water Rights Under the Police Power," infra.









WATER RESOURCES


that legislative enactments designed to modify the riparian doctrine and
to initiate a new or changed system of legal rules to govern the use of
the water of rivers and streams may be declared unconstitutional. It
is true that the question of compatibility with basic law has been raised
most often by those persons who are opposed, by reason of their own
personal interests or otherwise, to any modification of the riparian
doctrine. But even proponents of change have been troubled by the
problem of whether their proposals may not have the effect of violating
constitutionally protected property rights.
Certainly, as far as the right to the use of water under the riparian
doctrine can be considered property, the validity in the courts of pro-
posed legislation regulating or modifying this right cannot be foretold
with complete assurance. Accuracy to this degree is virtually unknown
to American constitutional law. Unfortunately, however, the presence
of any substantial doubt as to the validity of such a proposal may well
prove fatal to it. Not even the most abstract-minded legal theoreti-
cian, much less a practical-minded legislator, will propound legisla-
tion foredoomed to be declared void because in opposition to fundamen-
tal safeguards. 10 Worse still, because of the widespread lack of
understanding as to the character of property under the law, there is
considerable hesitation to advocate any proposals which will directly
affect property, it being feared that since property is "sacred" it can-
not be modified by the legislature.
This monograph seeks to dispel some of the mysterious and spur-
ious sanctity which surrounds the riparian right in order to disclose
its true nature as property. It is only by treating the matter squarely
and removing the veil of nescience that an adequate understanding can
be acquired of the relationship between the riparian owner, the public,
and the sovereign as to rights to the use of the water of streams and
lakes.
The thesis which will be pursued is thatthe riparian right to use
water, although "property" in the legal sense of the word, is not abso-
lute. By its very nature this right is subject to substantial limitations.
In the following pages an effort is made to set forth in brief order the

10. In dealing with men of "hard, practical affairs" in the field of water use
and water rights, it has been my personal observation that although
these men understand little of constitutional law, nevertheless they
are unwilling to grant serious consideration to, much less espouse, any
proposal regarding legislative modification or regulation of water rights
upon which a substantial degree of doubt as to its constitutionality has
been expressed. So true has this been, that the most effective method
of combatting any proposal is to express vociferous doubts as to its
constitutionality, whether or not these doubts are founded upon a basis
which may logically be sustained.








AND THE LAW


scope of these limitations, in the hope that their enumeration will en-
able the reader to comprehend more fully the legislative and judicial
power to regulate or modify the riparian doctrine.

II. CONSTITUTIONAL SAFEGUARDS OF PROPERTY
A. "No person shall... be deprived of... property without due process
of law"
At the outset it may be well to set forth, without elaboration in
great detail, the constitutional safeguards of property which must not
be abridged by any legislation modifying the riparian doctrine. These
constitutional clauses and the general understandings which they under-
lie cannot, as will be shown, of themselves provide a necessary basis
for the further discussion of the riparian right as property within the
constitutional safeguards.
Both the United States Constitution and the constitutions of the
several states contain safeguards against certain kinds of governmen-
tal interference with private property. The Fifth Amendment to the
United States Constitution provides that the federal government shall
deprive no person of property "without due process of law; nor shall
private property be taken for public use, without just compensation."
The Fourteenth Amendment makes applicable to the states the princi-
ple that no person shall be deprived of property without due process of
law; and it has been held that due process of law requires the payment
of just compensation when private property is taken. 11 Similarly, the
constitutions of the various states provide either that private property
shall not be taken for public use without the payment of just compensa-
tion, 12 or that property shall ,not be taken without due process of law
or its equivalent. 13 Further, although the federal and state constitu-
tions refer expressly only to the taking of private property for public
purposes, it is amply clear that there is an absolute prohibition
against the taking by any governmental action of private property for a
strictly private purpose. 14

11. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 17 S. Ct. 581 (1897)
12. 1 Nichols, Eminent Domain 1.3 (3d ed. 1950). Only North Carolina is
without such a provision in its constitution. Ibid.
13. Id. at 4.1. All of the states except Indiana, New Jersey, Ohio, Ore-
gon, and Vermont have such a provision in their constitutions; the equiv-
alent of the due process provision in the Maine and Rhode Island consti-
tutions applies only to criminal prosecutions. Ibid.
14. Cole v. La Grange, 113 U. S. 1, 5 S. Ct. 416 (1885). See also the cases
cited in 2 Nichols, Eminent Domain 7.1 (3d ed. 1950). It should be
noted in this regard that the determination of what constitutes a public
purpose is for the state courts and legislatures to determine.








WATER RESOURCES


Therefore the legislature, in the light of the constitutional clauses
protecting private property, (1) may pass without restraint measures
which do not affect private property to such a degree that there has
been a taking without due process of law, (2) may pass measures which
effect a taking of private property for public use only if provision is
made for the payment of just compensation to the owner of such
property, and (3) is absolutely prohibited from passing measures which
effect a taking of private property for purely private purposes.
Looking at the effect of these constitutional limitations upon any
proposed legislation which would modify the existing property relation-
ships in regard to water use, it is plain that only a measure which does
not constitute a taking of private property without due process will be
fully adequate. Any water legislation which could be held to constitute
a taking of private property for public use, thereby making it impera-
tive that the state pay compensation to a sizable class of persons, is
obviously undesirable from the viewpoint of practicability; it would
prove almost impossible to induce any state legislature, or, for that
matter, the United States Congress, to enact any water law doctrine
whereby large sums must be paid directly out of governmental coffers
in order to compensate the many injured riparian owners. Further, a
statute which would require the assessment of compensation might well
prove unwieldly from the judicial point of view, in that the courts would
probably be required to ascertain the rights of virtually countless num-
bers of persons. Although theoretically an enactment by which the
state would acquire the water rights of private persons through exer-
cise of the eminent domain and then issue licenses or permits for water
use conditioned upon the payment of a fee sufficient to cover the costs
of condemnation, would be feasible, it would be vulnerable politically
and perhaps difficult of administration. Therefore, the optimum water
legislation must fall within the first category above; it must be a meas-
ure which will not result in a taking of private property without due
process.
B. Constituent Elements of the Constitutional Safeguards
The state and federal constitutional provisions outlined in the fore-
going discussion proscribe, for all practical purposes, any legislation
to modify existing water rights doctrines which will result in a taking
of property. Any analysis of these constitutional safeguards must take
into account two principal elements: first, the existence of a relation-
ship between a person and an object which amounts in legalsignificance
to property, and second, a governmental act which results in a taking
thereof without due process. It should be clear that if the interest af-
fected is not property, or if the governmental act does not result in a
taking without due process--no matter how much it may otherwise








AND THE LAW


appear to affect the property-then the constitutional provisions out-
lined above have not been infringed. Thus, as a matter of theory, in
considering the constitutionality of any proposed legislation which would
modify the riparian doctrine, two questions must be posed. Initially,
it must be ascertained to what degree rights of water use under the
riparian doctrine are properly describable as property. Secondly, if
indeed property rights do exist to water use under the riparian doc-
trine, then the legislation must be examined to discern whether it would
operate as a taking of any of this riparian property without due process
of law. Conceivably, it could be found in a particular jurisdiction that
there is no such thing as private property in the right to use water
under the riparian doctrine. In such a case, there would be no neces-
sity to inquire further as to whether the prospective legislation ef-
fected a taking of the property; constitutionally, since no property
existed, the legislature could modify or abolish these rights at its
pleasure. On the other hand, all facets of the right to use water under
the riparian doctrine could, in another jurisdiction, be treated as prop-
erty. This would necessitate the further examination of the problem to
establish whether a taking would be effected by the proposed legislation.
In actual practice, however, the delineation of the issues is never
so clear or concise; instead, there is a tendency to lump the whole
matter under a single heading, whereby the problem becomes: has
there been a taking of property without due process? This question is
simply answered positively or negatively, and the case decided by this
determination. The courts do not break down the broad issue into
separate legal niceties; it is almost as if they are reluctant to lay bare
the throbbing nerve fiber of private property and further dissect it into
its constituent elements.
In spite of the practice of judicial obfuscation, the problem of es-
tablishing the constitutionality of proposed water rights legislation
would be made a hundredfold more simple if there existed a consensus
of thought among all men. as to what interests constituted property, or
if there were some easily applied formula to ascertain whether a
governmental act affecting property resulted in a taking without due
process. It would then be very simple to discover whether the riparian
right had a place in an ironbound formula of property, or whether the
effect upon property made by a particular legislative enactment could
be brought within the clear bounds of a taking without due process.
Regardless of how the courts chose to treat the matter, differentiating
the issues or not, such guides would be useful to legislators, lawyers,
and citizens in general.
But unfortunately, the problem is too complex to admit of a simple
solution; it is not one which can be resolved by a comparison of two
areas which are respectively clearly black and white, with a sharp








WATER RESOURCES


dividing line between property and non-property, or between a taking
which violates due process and a taking which does not. Instead, in
spite of the fact that from time to time the courts have offeredgeneral
formulae which purport to make child's play of the issue, the problem
of delimiting the constitutional safeguards of private property is one of
the most difficult and least understood phases of constitutional law. A
brief examination of the definitions of "property" and "taking without
due process" offered by the courts and the writers will demonstrate
that they are altogether too general to be of any substantial aid as con-
crete guides. Rather, as we shall see later, it is necessary to examine
the nature of the riparian right and compare it with specific instances
of rights of similar kinds which have been ascertained by the courts to
be within or without the pale of constitutional protection, if any basis
is to be found for an accurate prediction of the constitutionality of any
proposed water rights legislation.
1. Property Under the Constitution
There are few terms within the framework of the law which encom-
pass a broader scope than does the word "property." The notion of
property may relate to things tangible or intangible or, to express the
matter in legal terminology, things corporeal or incorporeal. Proper-
ty may embrace a person's relationship to a plot of ground, an over-
coat, a bank deposit, or even a tradename. Indeed, a great portion of
civil as well as criminal law involves the relationship between persons
and the multifarious objects of property.
Any concept which may include things so diverse in their nature as
a shoelace and a share of preferred corporate stock must necessarily
be difficult of precise definition. Therefore, it is to be expected that
attempts to define the term "property"-which it is imperative to do in
order to ascertain what it is that may not be taken for public use with-
out the payment of just compensation, or what cannot be taken at all for
private use-will be extremely uncertain and highly unsatisfying to one
who seeks to understand the limits of property. No wholly adequate
definition of any precision exists. For example, in the Encyclopaedia
of the Social Sciences, Walton Hamilton and Irene Till employ the fol-
lowing definition:

Property is a euphonious collocation of letters which serves as
a general term for the miscellany of equities that persons hold
in the commonwealth. 15

15. "Property," 12 Encyclopaedia of the Social Sciences 528 (1934). The
remainder of the article traces the history of property from the earli-
est times.








AND THE LAW


This definition may sound utterly inadequate, verging upon the non-
sensical, but it is difficult to find one more satisfying. Others define
property in terms of a legal conclusion, as does Black's Law Diction-
ary, which says that property is:

That which is peculiar or proper to any one person; that which
belongs exclusively to one; in the strict legal sense, an aggre-
gate of rights which are guaranteed and protected by the govern-
ment. 16

There is apparently no perceptible distinction which can be drawn
between property in the everyday sense and property in the constitu-
tional sense. Although some attempt has been made to distinguish
property constitutionally protected by terming it a vested right, as op-
posed to non-vested and consequently non-protected rights, it is clear
that the term "vested" is used solely as a make-weight. As John
Austin correctly observed nearly a century ago:

When it is said that the legislature ought not to deprive
parties of their "vested rights," all that is meant is this: that
the rights styled "vested" are sacred or inviolable, or are
such as the parties ought not to be deprived of by the legisla-
ture. Like a thousand other propositions, which sound spe-
ciously to the ear, it is either purely identical and tells us
nothing, or begs the question in issue.
If it mean that there are no cases in which the rights of
parties are not to yield to considerations of expediency, the
proposition is manifestly false and conflicts with the practice
of every legislature on earth.I7

Nevertheless, the use of the term "vested right," to indicate those in-
terests which the constitutions protect, was widespread during the
closing years of the last century and the opening years of the twentieth
century. For example, Justice Bradley, in a noteworthy dissenting
opinion, described constitutionally protected property as embracing:


16. Black, Law Dictionary 1382 (4th ed. 1951). Legal writers appear to
favor this method of defining words only in terms of legal conclusions.
In 1 Lewis, Eminent Domain 63 (3d ed. 1909), is found: "Property
may be defined as certain rights in things which pertain to persons and
which are created and sanctioned by law.... A person's right of prop-
erty in things, therefore, consists of the right to possess, use and dis-
pose thereof in such manner as is not inconsistent with the law of the
land." 3 Bouvier, Law Dictionary 2750 (Rawle's 3d revision 1914), is
substantially similar to Black and Lewis.
17. 3 Austin, Jurisprudence 70 (1st ed. 1863).








WATER RESOURCES


... [A11 valuable interests which a man may possess outside
of himself, that is to say, outside of his life and liberty. It
is not confined to mere tangible property, but extends to every
species of vested right.18

The use of the term "vested right" to indicate property constitutionally
protected seems to have declined in recent decades, and the United
States Supreme Court apparently has abandoned it entirely in this re-
spect. In the 1945 case of United States v. General Motors Corpora-
tion, for example, Mr. Justice Roberts referred to the term "proper-
ty" in the Constitution as denoting "the group of rights inhering in the
citizen's relation to the physical thing, as the right to possess, use
and dispose of it. The term "property," according to the opinion, is
identical with "what lawyers term the individual's 'interest' in the
thing in question.... The constitutional provision is addressed to every
sort of interest the citizen may possess. "19
But defining property in general terms, it is clear, adds little to
the solution of the problem of determining the nature of the rights to
use water under the riparian doctrine. In fact, the essence of the
problem is such that no general definition can be framed which will
give a concrete indication whether any claimed personal interest falls
within the constitutional safeguard. Although the courts struggle
valiantly to make clear the full implications of the term "property," its
meaning is so enmeshed in centuries of Anglo-American legal develop-
ment that general definitions are misleading at best and a true working
definition impossible. The courts do not-indeed, they could not-begin
with an all-inclusive formula of property into which they seek to fit in-
terests of various kinds in order to determine whether these interests
are to be afforded constitutional protection against infringement by
legislative action. Rather, the judiciary has begun by determining
whether the interest in question warranted protection, based upon ju-
dicial experience and personal insight into American constitutionalism
and the present needs of the public. If the conclusion is in favor of
protection, then the questioned interest is awarded the exalted denomi-
nation of "property" and on that basis defended against legislative
action. As Hamilton and Till point out, "It is incorrect to say that the
judiciary protected property; rather they called that property to which
they accorded protection. "20
Therefore, in order to ascertain whether any interest actually
falls within the scope of "property" it is necessary to examine with

18. Campbell v. Holt, 115 U.S. 620, 630, 6 S. Ct. 209 (1885).
19. 323 U.S. 373, 378, 65 S. Ct. 357 (1945).
20. "Property," 12 Encyclopaedia of the Social Sciences 528, 536 (1934).








AND THE LAW 143

particularity the interest itself. In the quest for constitutional under-
standing the deductive method invariably fails; it is not feasible to begin
with a general postulate to be applied to the individual instance. In-
stead, one must proceed inductively to examine a multitude of individual
instances and from them to venture an hypothesis. In the examination
of the riparian doctrine this method involves a consideration of the
character of the subject matter of the doctrine-namely, individual in-
terests in the waters of rivers and streams-in the light of judicial de-
cisions and dictum, both ancient and modern.
2. Taking Without Due Process Under the Constitution
What constitutes a "taking" of property "without due process of law"
within the terms of the constitutional safeguards outlined above is fully
as uncertain as what constitutes "property." A "taking" of property
may result either from the governmental acquisition of property for a
Public purpose under the eminent domain, or from a governmental act
which operates to "deprive any person of... property, without due
process of law." In the first instance, compensation must be paid; the
second is proscribed. The courts have ventured that a taking rfrs
only to a "direct appropriation," rather than to mere "consequential
injuries resulting from the exercise of lawful power. "21 Recently, the
United States Supreme Court has asserted that property is "taken" with-
in the meaning of the Fifth Amendment, "when inroads are made upon
an dwner's use of it to an extent that, as between private parties, a
servitude has been acquired either by an agreement or in course of
Time. "22 Although expressions of this nature do not indicate precisely
whether in any given case there has been a taking, nevertheless they
are accurate enough to convey a general idea of what will constitute a
taking.
The real difficulty in this area lies in determining what is meant
by "due process of law";23 for if due process of law is followed, then
it would appear that persons and their property may be legislatively
separated. Altogether too often in the past this point has been over-
looked by the courts which have construed the constitutional safeguards
to mean that any legislative taking of property-unless for public use,

21. Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1872).
22. United States v. Dickinson, 331 U.S. 745, 748, 67 S. Ct. 1382 (1947).
See also 1 Lewis, Eminent Domain 65 (3d ed. 1909), which asserts
that there is a taking "whenever the lawful rights of an individual to the
possession, use or enjoyment of his land are in any degree abridged or
destroyed."
23. When the taking is for public use, rather than through the operation of
unequal or confiscatory legislation, the problem arises of determining
what constitutes a "public use."








WATER RESOURCES


and upon the payment of compensation-is per se without due process
of law. This approach has caused the ossification of property law in
the forms of a century ago, because the courts have repeatedly ham-
strung the legislatures in their attempts to modify property interests
while at the same time disavowing any power in themselves to modify
the principles of the common law through judicial means.
Originally, the understanding of due process was that it is largely
a matter of procedural regularity-that men should not be deprived of
life, liberty, or property except in strict accord with legally estab-
lished procedures. 24 Viewed in this context, the due process clause
of both the Federal Constitution and the state constitutions wherein it
was found, was largely ignored prior to the Civil War. Thus William
Rawle, in his 1825 View of the Constitution, after enumerating the
specific protections contained in the Fifth Amendment adds:

It follows from all the antecedent precautions, that "no one can
be deprived of life, liberty, or property, without due process
of law," and the repetition of this declaration is only valuable
as it exhibits the summary of the whole, and the anxiety that
it should never be forgotten.25
To this extent, the Due Process Clause simply was a rewording of the
provision of Magna Carta, whereby no freeman was to be imprisoned,
disseized of his freehold, exiled, or condemned, except by the lawful
judgment of his peers or "per legem terre"-by the law of the land. 26
In the decade before the Civil War, however, the United States
Supreme Court twice gave an inkling of an expanded concept of the Due
Process Clause. In Murray's Lessee v. Hoboken Land and Improve-
ment Co. Mr. Justice Curtis pointed out that the Due Process Clause
was not simply a restraint upon the executive and judicial branches of
government, but also limited the procedures which Congress might put
into law: "It is manifest that it was not left to the legislative power to
enact any process which might be devised. The article.. cannot be so
construed as to leave congress free to make any process 'due process
of law,' by its mere will. "27 To ascertain whether congressionally

24. See Hamilton, "The Path of Due Process of Law," in Read, ed., The
Constitution Reconsidered 167 (1938). As Hamilton points out, prior to
the Civil War "In reputable opinion due process of law was firmly fixed
within the ancient domain of procedure." Id. at 168.
25. Rawle, A View of the Constitution of the United States of America 129
(1st ed. 1825).
26. See 9Hen. III, c. 23 (1225), which is the first statutory confirmation of
John's original grant of 1215, and which is the Magna Charta text most
often referred to by legal historians.
27. 59 U.S. (18 How.) 272, 276 (1856).








AND THE LAW 145

authorized proceedings under a distress warrant were "due process,"
the court compared them with similar procedures at English common
law and under early English statutes. An approach of this nature to
the due process matter was clearly at variance with the earlier under-
standings that it embraced only procedural aspects, ensuring that
existing legal procedure be followed in all cases. Here the court, by
examining the procedure itself to ascertain its quality, was instilling
into American constitutional law the concept of substantive due process,
whereby the courts examine legislative acts to determine whether they
are consistent with the judicial understandings-from whatever source
derived-of what constitutes due process of law. One other pre-Civil
War decision contains evidence of a similar broadening of the scope of
due process. In Dred Scott v.' Sandford Chief Justice Taney indicated
a decidedly "substantive" outlook on due process, as distinguished from
due process as being mere adherence to established procedure: "And
an act of Congress which deprives a citizen of the United States of his
liberty or property, merely because he came himself or brought his
property into a particular Territory of the United States, and who had
committed no offence against the laws, could hardly be dignified with
the name of due process of law."28
After the adoption of the Fourteenth Amendment in 1868, which im-
posed a due process limitation upon state action, the floodgates burst;
substantive due process became the constitutional limitation to which
resort was most frequently had in defending private interest against
governmental action. As Mr. Justice Miller complained in 1878, it
seemed that the Due Process Clause "is looked upon as a means of
bringing to the test of the decision of this court the abstract opinions
of every unsuccessful litigant in a State court of the justice of the de-
cision against him, and of the merits of the legislation on which such a
decision may be founded. "29 A substantial part of the battle of sub-
stantive due process ended virtually as soon as it began; for although
it was 1905, in Lochner v. New York, 30 before the Supreme Court de-
clared a state statute to be void because a violation of due process of
law, nevertheless after the adoption of the Fourteenth Amendment it
was hardly questioned whether or not due process was substantive; the
court simply assumed that it was. The issue over the intervening
years was the scope of the state police power.
The extended interpretation by the courts-the state courts followed
the lead of the United States Supreme Court-of "due process of law"
appeared to leave to the legislatures the power to regulate property

28. 60 U.S. (19 How.) 393, 450 (1857).
29. Davidson v. New Orleans, 96 U.S. 97, 104 (1878).
30. 198 U.S. 45, 25 S. Ct. 539 (1905).


I








WATER RESOURCES


rights only when a pressing public need is present. Where private
property is limited by governmental regulation incident to legislation
passed in order to protect or enhance the public health, safety, or wel-
fare, the property is not considered to have been "taken without due
process" in the constitutional sense, but instead, simply to have
yielded to the overriding public interest. The power of the legislature
to pass regulatory measures of this nature is called the "police power,"
and is inherent in all organized government although constitutionally no
mention is made of it. The basis of the police power is that all prop-
erty is held-subject to the supervening interest of the public in maintain-
ing the general health, safety, and welfare.
The use of the police power is largely a matter of legislative dis-
cretion, and in theory at least it seems to be generally agreed that only
in the most extreme instances of abuse of this discretion should the
courts interfere with its exercise by the legislature. Ideally, the legis-
lature will protect private property wherever possible-just as it will
protect life and liberty; but wherever the public health, safety, or wel-
fare is threatened, and the threat may be removed or diminished by
the regulation of property relationships, such regulation may be en-
forced, if reasonable, and will not be considered to be a violation of
the constitutional safeguards relating to private property. Thus, what
might amount to a taking of property without due process in the absence
of public need is adjudged merely to be a proper exercise of the police
power if the public need exists. The employment of the police power
to modify existing doctrines of water law is considered fully in another
monograph in this series. 31
The possession of the police power does not exhaust the inherent
ability of the legislature to make law for the common good. The police
power is generally understood to relate to the regulation of business
enterprises or private property rights in behalf of the public health,
safety, or welfare. As far as property is concerned, the police power
acts simply to impose limitations upon recognized property rights.
Aside from directing the manner in which property rights may be en-
joyed, the police power does not affect the underlying structure of
property. The legislature, however, has a more basic function than
regulation: it must define property rights themselves. As the legis-
lature is the main repository of the lawmaking power in a republic, it
possesses the ability to create new rights of property as well as to
modify or even abrogate existing rights.
Sometimes the lawmaking power is lumped into the police power,
and both of these inherent abilities of government considered under a

31. King, "Regulation of Water Rights Under the Police Power," infra.








AND THE LAW


single heading. 32 For clarity and understanding, however, it is neces-
sary to distinguish between the power to regulate existing rights of
property and the power to make new law or modify old law respecting
property.
The relationship between the fundamental lawmaking power and the
Due Process Clause has never been made clear. The primary reason
for this has been the general lack of legislative modification of recog-
nized rights of private property. American legislatures have cus-
tomarily-with some few exceptions-been content with regulation of
the outward incidents of property, rather than with concerted attempts
to shift the foundation-stones of the legal institution of property. The
basic role in the changing of property rights has fallen to the courts of
the common law jurisdictions, which have felt themselves free and
competent to modify or abrogate private property rights where reason
dictated a modification in the existing pattern. Reason, it was said, is.
the life of the common law.
Certainly it goes without saying that the late nineteenth-century
American courts did not apply to their own judicial acts the same con-
stitutional limitations of substantive due process which they imposed
so relentlessly upon the legislatures. A court might revise a common
law property rule without concerning itself with constitutional limita-
tions. It is of course true that few such common law rules were
amended during this time; the affection of most judges for the time-
honored principles of private property was too great.
Largely, it was this very stagnation of the American common law
through the inertia of the judiciary which compelled the legislatures to
assume their rightful position as the lawmaking organs of republican
government. Moreover, the legal problems of modern society had at
the same time begun to assume a magnitude which placed their solution
beyond the ability of even a vigilant and active judiciary. Positive and
forward-looking law was needed; extensive statutory regulation and
ad inistrative control were becoming necessary to direct at first hand
the complex activities of business. Even the courts themselves began
to look to the legislature for guidance. The common law, long the
foundation of the American legal system, was dying.
An institution as venerable and deep-rooted as the common law
doe not pass from the scene without a struggle. The judiciary, both
federal and state, sought in the decades at the turn of the century to

32. Cf. Holmes, J., dissenting in Tyson & Brother v. Banton, 273 U.S. 418,
445, 446, 47 S. Ct. 426 (1927): "[P]olice power often is used in a
wide sense to cover and, as I said, to apologize for the general power
of the legislature to make a part of the community uncomfortable by a
change."








WATER RESOURCES


retain what was possible of the old order. Inroads by the legislatures
upon the time-honored functions of the judiciary were resisted, often
successfully. The great battles between court and legislature in the
United States were fought during the era of economic and social revo-
lution between the close of the Civil War and the present time. The
recent constitutional history of the United States can better be under-
stood if the struggle of the courts to retain their ancient lawmaking
function is taken into account.
Even today the matter is not a closed question. Although the
Supreme Court of the United States has adopted a position of noninter-
ference with regard to the power of Congress to make new law, acting
only to restrict congressional enactments which impair First Amend-
ment liberties or other essential human rights, nevertheless the state
courts have not all followed the same path. Many state courts today
would not admit that a fundamental modification in the institutions of
American government has occurred in recent years. For this reason,
the relationship between the constitutional due process safeguards and
the legislative lawmaking power is not entirely clear at this time.
Given the passage of another decade or two, unquestionably this relation
ship will be much better defined. Currently, however, it can only be
said that the legislative power to modify the existing rules of property
will be subjected by the courts to the scrutiny of substantive due process
Certainly the courts presently hold the upper hand. So long as the
principle of substantive due process remains in force-and the indica-
tions are that it will not be abandoned within the foreseeable future-
the judiciary has the power to overturn legislative policy determina-
tions which it believes to be arbitrary or unreasonable. One can hard-
ly dispute the wisdom of having certain limitations upon the power of
the legislature to affect life, liberty, or property. There must be
limits to the fundamental lawmaking function, in the light of the pre-
vailing beliefs of American constitutional law. Although conceivably
these limitations could be left to the self-discipline of the legislatures
as the English have done, we have instead chosen to rely upon judicial
as well as legislative self-discipline to determine what enactments
conflict with basic law.
Clearly there is a danger inherent in the existing doctrine of ju-
dicially administered substantive due process: the whole elaborate
edifice falls andthe ends of democratic government are thwarted if
the judiciary does not exercise the highest degree of self-restraint in
passing upon legislative enactments. The courts must not pass upon
the wisdom of legislative measures, disguising under the name of
"constitutional safeguards" their own social philosophies, as they have
done altogether too often in the past, and as several of the state courts
have continued to do even in the present decade. By enforcing








AND THE LAW 149

substantive due process, the possibility of legislative disregard of the
just and proper ends of society has been averted; but at the same time
the possibility of a dictatorship of the judiciary has become very real.
Some governmental body must have the upper hand, the last word, in
this matter, and this powerful prerogative has been given to the courts.
The American judiciary as a whole must demonstrate that the pos-
session of unlimited power does not ipso facto lead to tyranny.
C. Conclusion
As not all private interests are raised by the courts to the status
of property, similarly not all legislation affecting property can be de-
noted a taking without due process of law. However, general principles
do not suffice to distinguish between property and non-property, or be-
tween a taking which violates due process and a valid exercise of the
police power or the fundamental lawmaking power, although the courts
have laid down formulae purporting to satisfy the widespread desire for
such general principles.
In the following sections the riparian right as property is examined
from the viewpoint of limitation and modification by the fundamental
lawmaking power of government, whether exercised by the courts or
by the legislatures. It will be observed that the nature of the private
riparian right has historically been treated as strictly relative to the
subsisting public need of the time and place. The nature of running
water alone makes it different from other subjects of property; when
the powerful public interest in water as a resource is added to this,
the riparian right becomes peculiarly subject to many limitations.
Certainly, for the legislature to modify the riparian right to use water,
when it no longer is consistent with the fullest public benefit of water-
courses, is entirely in keeping with the past development of the law in
this regard.

III. THE ABSOLUTE RIGHT OF PROPERTY
A. The Legal Institution of Property
Property under the law is not an absolute right. All property is
subject to substantial limitations. In order to understand this funda-
mental principle, it is necessary to separate property in the legal
sense from property in its broad, philosophical meaning. When the
jurist speaks of "property" he seldom employs the term in its generic
sense, but invariably has in mind a specific property right under the
law-the property in a parcel of land, an automobile, a share of cor-
porate stock. On the other hand, when the political philosopher uses
the word "property" he is referring to an abstract concept consisting
Sof all the interests a man may possess outside of his life and liberty.








WATER RESOURCES


The distinction lies in the fact that whereas American law deals in the
particular matters raised by specific disputes, political philosophy
treats of sweeping general concepts which comprehend as much as pos-
sible within a single term.
Undeniably, from the philosophical point of view it can be said with
considerable justification that there is a "natural right" to property, or
that the right to property is "absolute." In the nature of things property
rights must of necessity exist. It is impossible to conceive of a society
of men in which property rights of some kind are not recognized to a
very considerable degree. Because the very existence of mankind is
intimately entwined with the use and consumption of the fruits and sub-
stance of the earth, it follows that one of the primary goals of any
society must be to provide an orderly and secure distribution of these
necessaries of life. Certainly rights with respect to the physical things
of the environment must be recognized and protected.
Essentially, the natural or absolute right of property is strongly
tied to the equally natural and absolute rights of life and liberty; this
right of property includes a right to acquire the essential corporeal
things-food, clothing, and shelter-which must be possessed in mini-
mal quantities by every person if the rights of life and liberty are to
mean anything at all. Since these things are derived from the earth
itself, and only through the application of labor, the natural or absolute
right of property is often expressed in terms of objects of property ap-
propriated through labor, or in terms of the active occupation of par-
cels of the land itself.
No political philosopher in discussing the right of property ever
goes so far as to elaborate specific means of acquisition of property
or particular rights of property in organized society as being within
the absolute or natural order of things. 33 These minutiae, consisting
of specific rights of property, are recognized as being correctly within
the sphere of the legal order. The precise details of the law relating
to property must be left to the determination of the properly constituted
lawgiver, whether it be king, courts, or legislature, because the rules
governing what a person may "own" and how he may use it must be
relative to time and place. The conditions of society invariably dictate
the exact application of the broad principles that private property must
be recognized and protected under the law.
From the earliest times American jurists have recognized that
particular rights of private property are the creation of the law.

33. Although political philosophers often describe Utopian societies, these
are laid down as ideal conditions of mankind reached through the de-
velopment of human reason and virtue, and are not meant to represent
the essential, absolute, or natural condition of things.








AND THE LAW


Justice Chase, writing for the United States Supreme Court in the 1798
decision of Calder v. Bull, 34 observed:

It seems to me, that the right of property, in its origin,
could only arise from compact express, or implied, and I think
it the better opinion, that the right, as well as the mode, or
manner, of acquiring property, and of alienating or transferring,
inheriting, or transmitting it, is conferred by society; is regu-
lated by civil institution, and is always subject to the rules
prescribed by positive law.35

Although it has sometimes been contended that property existed
prior to law, it is very difficult to sustain such an assertion rationally,
and the sounder view is that property is created by law and only sub-
sists by virtue of the organization of mankind into society. John Locke,
for example, argued that property existed in the presocietal "state of
nautre," and declared that the "great and chief end therefore, of Mens
uniting into Commonwealths and putting themselves 'under Government
is the Preservation of their Property. "36 But even Locke was forced
to admit that in society under government, property is controlled by
the positive laws of the commonwealth. 37 Bentham sums up the mat-
ter nicely:

Property and law are born together, and die together.
Before laws were made there was no property; take away laws,
and property ceases.38

American writers have taken a similar view of the dependency of
property upon law. In The American Democrat, published in 1838,
James Fenimore Cooper observed that civilization could not exist
without property, and went on to assert that the rules of property were
made by society. Oftentimes civilization has, in relation to property,
drawn "arbitrary and unjust distinctions," Cooper wrote. "These are
abuses, the tendency of man being to convert into curses things that
Providence designed to prove benefits." But although inconsistent with

34. 3 U.S. (3 Dall.) 386 (1798).
35. Id. at 394. (Italics in original deleted.)
36. Locke, An Essay of Civil Government 124, in Two Treatises of Gov-
ernment (1698).
37. Id. at 38. Blackstone's theory of property rights is similar to that of
Locke; in society, property becomes conventional and is subject to the
laws of government. See 2 Blackstone, Commentaries on the Laws of
England 1-9 (Wendell ed. 1854); Blackstone, supra. vol. 1 at 279. This
work is hereafter cited as Bl. Comm.
38. Bentham, The Theory of Legislation 113 (Ogden ed. 1931).








WATER RESOURCES


reason and justice, these rules are nevertheless law, acting to deter-
mine the rights of property. 39
In the final analysis, one should observe with Bentham that proper-
ty and law are inseparable. For what is law but a system of rules re-
lating to persons and property? As there can be no property without
law, neither can there be law without property. What we call property
is nothing more than the outline of certain rules of law governing the
relationships between persons with respect to impersonal things.
B. Practicability and the Common Good
Property under the law consists of specific rights in relation to
particular things. The things themselves are not property in the legal
sense; they are merely the objects of property. The nontechnical mind
tends to confuse the legal right of property and the object of property
in saying that property is what a man "owns." In either sense, how-
ever, it is very clear that the right of private property is not absolute,
but is limited in all cases by superior rights in favor of the public.
This may be perceived by the most cursory survey of private property
rights under law in the United States.
In the United States, one of the most fundamental legal and political
precepts is the protection of private enterprise and private property.
Universally, American leaders in government and the law have sup-
ported the principle that private enterprise and private property are to
be given the most widespread adoption and protection possible. 40 In
effect, this is the extension of the American concept of liberty to the
sphere of economic activities. The only limits upon freedom of enter-
prise and the rights of property are twofold: practicability and the
common good.
A short explanation of these limitations is helpful. Specific rules
of property are created and allowed to exist only because they are use-
ful to humanity. By the adoption of particular doctrines of property
the law seeks to enable each individual to realize his human potential
and to strive for happiness. So long as a legal doctrine performs this
function, it operates in the common good. However, when a rule
ceases to operate in the interest of a substantial portion of society, it
no longer is consistent with the common good, and the lawmaking
organs are under a duty to modify it to conform to the common good.
There is nothing collectivistic about the common good; it is simply the
cumulative sum of the interests of the many persons who comprise

39. Cooper, The American Democrat 133-39 (Vintage ed. 1956).
40. This is true of all responsible American political leaders including the
socialists; the only dispute is over what degree of individual property
and enterprise is most consistent with the social good.








AND THE LAW


society. The common good then is actually the great fundamental prin-
ciple upon which society, law, and all other human institutions are
founded. Practicability, on the other hand, has a more specific conno-
tation; it relates to the effect of the character of an object of property
upon the rules which can feasibly be adopted in regard to that object.
For example, it is clear that even aside from the common good, the
actual rules of property respecting a canary in a cage must differ from
those relating to a tract of land. Due to the wide divergence in the
possible objects of property, as well as the almost infinitesimal differ-
ences between objects of nearly similar kinds, it is necessary that
rights of different kind and quality be recognized in the rules of law
adopted. Both the common good and practicability must be considered
when a rule of property is first promulgated, and thereafter they con-
stantly remain to limit and modify that rule of property.
Few if any persons today would contend that every phase of civil-
ized activity could or should be in private hands. The magnitude of
some governmental functions is such that they are beyond the scope of
private means. Prominent among these functions is the operation of
the armed forces. Although private armies may have been common in
Europe during late medieval and early modern times, it is today al-
most inconceivable that private enterprise could maintain in a practi-
cable fashion the arsenal of national defense that is felt essential in
the atomic age. Likewise, other necessary functions within society
are believed best operated by government rather than by private enter-
prise. For example, no one would at this day contend that the courts
should be privately operated. The ideal of equal justice to all is
thought to be unattainable through a system of private enterprise in
which unyielding selfishness is a basic tenet. Courts must be impar-
tial; the concept of impartial private enterprise is self-contradictory.
It follows, therefore, that enterprises are prohibited altogether from
being privately organized and operated if they are not properly sus-
ceptible to private ownership. Other enterprises, although privately
owned and operated, are, because affected with the public interest,
subjected to varying degrees of public control by means of legislation
alone, or legislation coupled with administrative regulation. That is
t0 say, when it is to the common good to require certain quality
standards, to fix prices, to control production, to enforce the uniform
furnishing of goods or services, or otherwise to regulate an economic
enterprise, then it may be said that to this degree at least, this enter-
prise is affected with the public interest. Although much of this regu-
lation of private enterprise is performed under the state policy power,41
nevertheless other sovereign powers are often directed toward its

41. See King, "Regulation of Water Rights Under the Police Power," infra.


-.-i








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accomplishment. Many enterprises fall under government control to-
day. Especially where services are of a monopolistic nature, as in
the supplying of domestic necessities such as water, electricity, and
natural gas by privately owned enterprises, there is all but universal
agreement that public regulation in the general interest is appropriate
and needful. Transportation and communications companies are sub-
jected to similar regulation in the public behalf. It must be emphasized
that the regulation of private enterprise is not static. In recent
decades an increasingly wider area of private economic activity has
been subjected to at least a modicum of control. Even the traditionally
least public of pursuits, such as farming, have been regulated in order
to help maintain a sound national economy. Conceivably, with the in-
creasing complexity of American government-business relations and
the rapid growth of population, in the future years many more private
enterprises will be brought under an enlarged public control. It is
certain, in view of past experience, that as conditions within society
change, the entire regulatory pattern will be modified; new regulation
will be added, and the need for some old regulation will be obviated.
Private property is subject to the same twofold limitation as is
private enterprise: practicability and the common good. The first
limitation is fairly stable, since it is an intrinsic part of the nature of
any property right: the practicability of recognizing, defining, and
protecting rights of ownership in the particular objects of the property
right. Limitations in behalf of the common good, on the other hand,
are relative to a great many changing factors; it is to be anticipated
that in different eras the prevailing belief as to the common good will
induce varied conceptions of what limitations or modifications of
property rights are essential.
C. Subjects of Property
In regard to the corporeal objects of property, the juristic mind
has long been able to deal best with those which, because they are inert
in character and occupy an ascertainable situs, may be subjected to
"effective and exclusive control" -to borrow a phrase from Sir
Frederick Pollock. 42 Legal thinkers are quite used to dealing with
objects of property of this nature-a parcel of land, a house, a book,
a motor vehicle. When confronted with corporeal objects of property
which may not be so dealt with, a substantial degree of confusion has
been the inevitable result. Jurists have been troubled not only by
questions of what rights can be acquired in such objects, but also by
problems of how to classify whatever rights may exist. Invariably,
property rights in objects of this kind are far more uncertain and of


42. Pollock, A First Book of Jurisprudence 174 (6th ed. 1929).








AND THE LAW


less substance than corresponding rights in the more conventional land
or chattels.
Watercourses and flowing water are only one of the things possess-
ing this legally anomalous character; others include the sea, the air,
light, wild animals, oil and gas, and percolating water. The law has
found itself quite unable to deal with these things in the same fashion
as land or chattels because their nature is substantially different.
Nevertheless, an unceasing effort has been made to fit them into the
traditional forms of legal classification. To each of them, so far as
possible or necessary, the law sought to assign an "owner. For, as
Holmes noted, "the general tendency of our law is to favor appropria-
tion. It abhors the absence of proprietary or possessory rights as a
kind of vacuum. "43
1. The Sea, the Air, and Other Unique Subjects of Property
Nevertheless, the sea and the air have over the centuries success-
fully resisted reduction to private property. From the time of the
Romans, the sea and the air have been said either to be "res nullius"--
nobody's property-or to be the common property of everyone. 44 The
most that the law has done is to create.negative rights in regard there-
to. As Pufendorf pointed out nearly three centuries ago, "So though on
other accounts no one will pretend to fix a Property in the Wind, yet we
may appoint a Service or Duty of not intercepting the Wind to the
prejudice of our Mills. "45 Generally, it has been the magnitude of the
sea and the air which has restricted their inclusion within the normal
legal categories of property; there has always been more sea and more
air than could possibly be appropriated to human use, and access to
virtually unlimited quantities of both has been readily available. For
nearly all uses that man has yet devised, the sea and the air have
served as more than sufficient. 46 Furthermore, the matter of reduc-
tion to possession of any but the smallest part of the sea or the air has
proved not only difficult, but also purposeless.
Light has had a somewhat similar experience under the law. Not
only was its true essence unknown-scientists still are debating whether

43. Holmes, The Common Law 237 (1881).
44. Justinian, Institutes 2.1.1 (Moyle trans. 4th ed. 1906).
45. De jure nature et gentium, libri octo, lib. IV, c. V, 1 (Kennett ed.
1710).
46. An exception to this general rule clearly lies in respect to pollution;
minute quantities of noxious or poisonous matter added to the air can
make persons uncomfortable or even ill, and added to the sea can kill
fish and other forms of nautical life. Legislation respecting air pollu-
tion is fairly widespread, while it seems to be almost nonexistent in
respect to the seas.


. .-W








WATER RESOURCES


light is matter or wave-motion47-but it could not be possessed and
only existed for as long as its source, the sun, remained above the
horizon. Although sunlight was necessary to activity of almost every
sort, its supply was generally adequate beyond question. It was only
in the cities, where buildings were constructed side by side and sev-
eral stories high, that rules of law had to be devised in regard to light.
The common law of England recognized that an easement of light could
be gained by a building's owner through an uninterrupted enjoyment of
light for the prescriptive period;48 but generally in the United States
the English doctrine has not been followed, 49 and rights to uninter-
rupted sunlight are created only by express grant. 50 Thus in most
American jurisdictions private rights to the uninterrupted passage of
light to one's dwelling or other structure are nonexistent, and the state
government-like any private person-can erect elevated railways,
buildings, or other structures which cut off light from adjacent
houses. 51 Quite evidently light has not been treated in the same man-
ner as air, for while air is essential to human life, natural sunlight
can be replaced by artificial lighting; and to enforce even the rule of
the English common law concerning rights to light would doubtless im-
pair growth and development.
Wild animals are another class of things which have given the
jurists of the Anglo-American world a considerable amount of difficulty
in classifying within the traditional legal structure of property. So
long as an animal is wild and at large, certainly no person has over it
the degree of control necessary to enable him to assert a right of
property. Property in such animals "ferae naturae" could only be ac-
quired by reducing them to possession and lasted only so long as pos-
session continued. At common law, with some substantial exceptions
in favor of the king, 52 wild animals in their natural state were con-
sidered "res communes"-as belonging in common to all persons. 53
In the United States the common law concept was modified into a
doctrine whereby title to wild animals is held by the state in trust for
the people. 54 Doubtless the theory of state ownership was adopted in

47. See Einstein and Infeld, The Evolution of Physics 97-126 (1938).
48. Cf. Cox v. Matthews, 1 Ventr. 237, 239 (1673).
49. Cf. Sauer v. City of New York, 206 U.S. 536, 27 S. Ct. 686 (1907).
50.\ See, e.g., Baird v. Hanna, 328 ill. 436, 159 N.E. 793 (1927); Keats v.
Hugo, 115 Mass. 204 (1874).
51. Sauer v. City of New York, supra note 49.
52. See 1 Trevelyan, History of England 174 (Anchor ed. 1954).
53. 2 Bl. Comm. 14.
54. See, e.g., Mo. Rev. Stat. 252.030 (1949), which declares that title to
all wildlife within Missouri, whether alive or dead, is in the state "for
the purpose of control, management, restoration, conservation and regu-
lation thereof."








AND THE LAW


order to provide a regulatory basis upon which the taking of wild ani-
mals could be controlled, especially in view of the nineteenth century's
emphasis upon "ownership." So long as wild animals were unowned, it
was difficult to explain why under all circumstances the first taker
would not acquire property rights in them. But the theory of state
ownership was not without inherent difficulty. Although the United
States Supreme Court in 1896 apparently approved of the doctrine of
state ownership as a basis for regulation, 5 less then twenty-five years
later Mr. Justice Holmes, in Missouri v. Holland, 56 sought to de-
molish the theory of state ownership:

To put the claim of the state upon title is to lean upon a slen-
der reed. Wild birds are not in the possession of anyone; and
possession is the beginning of ownership. The whole foundation
of the State's rights is the presence within their jurisdiction of
birds that yesterday had not arrived, tomorrow mar be in an-
-other State and in a week a thousand miles away. 5

Holmes' prestige dealt a severe blow to the state ownership of wild ani-
mals; however, this theory continues to be the express law of most of
the states, primarily because it provides a highly satisfactory regula-
tory foundation. Other legal problems have arisen in attempting to
distinguish between wild animals, in which property ceases when pos-
session is lost, and domestic animals in which private property rights
continue to exist when actual possession is absent. 58 In addition,
there have occurred other questions relating to the manner in which
capture of wild animals is made in order to acquire this property in-
terest in them. 59 When A is chasing a fox and is on the point of re-
ducing Reynard to possession, and B suddenly intervenes and kills the
animal, what are the rights of each?60 If problems of this kind are
not solved satisfactorily by the courts, the cause must be laid to the
fact that animals "ferae naturae" do not fit readily into the usual legal
classifications of objects of property.
Related problems have arisen in connection with petroleum and
natural gas deposits; unlike the solid minerals, oil and gas have been
thought to be much in the nature of wild animals, fugitive and vagrant
55. Geer v. Connecticut, 161 U.S. 519, 16 S. Ct. 600 (1896).
56. 252 U.S. 416, 40 S. Ct. 382 (1920).
57. Id. at 434.
58. See, e.g., McKee v. Gratz, 260 U.S. 127, 43 S. Ct. 16 (1922) (mussels);
E. A. Stephens & Co. v. Albers, 81 Colo. 488, 256 Pac. 15 (1927) (sil-
ver fox born in captivity).
59. Cf. Jones v. Metcalf, 96 Vt. 327, 119 Atl. 430 (1923).
60. See Pierson v. Post, 3 Caines 175 (N.Y. 1805), which awarded the fox
pelt to the intruder on the basis that until the pursuer had actually re-
duced the animal to possession, he had no rights in it.








WATER RESOURCES


beneath the surface of the earth. For this reason, it was believed im-
practicable to attempt to treat oil and gas in the same legal fashion as
minerals pf a solid nature. Initially, there is the rule of the common
law that the owner of the surface owns the land down as far as the cen-
ter of the earth. Under this rule, the landowner would own the oil and
gas within the bounds of his land. However, the fact that a neighbor,
by sinking a well on the adjoining tract of land, could drain the oil and
gas from a landowner's premises, caused logical difficulty with the
rule of ownership. In regard to the ownership of the oil and gas be-
neath the surface, some courts concluded that the person owning the
overlying land had absolute property rights in these minerals;61 others
adopted the doctrine that there was no property in oil and gas until they
were actually reduced to possession. 62 However, without regard to
which abstract ownership theory was adhered to, the various states
adopted, as a basis for reducing oil and gas to possession, the "rule of
capture," by the terms of which any person might sink an unlimited
number of wells upon his own land and extract from these wells all the
oil and gas which it was physically possible to take. The fact that a
well drew oil or gas from beneath the land of a neighbor was, under the
rule of capture, immaterial. 63 Since it was impossible to determine
the exact quantity of oil or gas beneath any particular tract of land, the
courts were led by necessity to adopt the rule of capture. The only al-
ternative was a system of closely supervised regulation of production,
which the judiciary could not, of course, administer. The result was
the enforcement of a rule which was highly wasteful of basic and essen-
tial natural resources. In this regard, it seemed impossible for the
judiciary to work out a truly practicable rule pertaining to property in
oil and gas. It was necessary for the legislatures of the several states
to adopt regulatory measures, which could be administratively enforced,
in order to create a truly practicable legal doctrine for governing the
production of oil and gas.
Ground water is highly similar to oil and gas in its physical char-
acter. Again there is the problem of ownership of the water beneath

61. See, e.g., Westmoreland & Cambria Natural Gas Co. v. DeWitt, 130 Pa.
235, 18 Atl. 724 (1889); Stephens County v. Mid-Kansas Oil & Gas Co.,
113 Tex. 160, 254 S.W. 290 (1923).
62. See, e.g., Watford Oil and Gas Co. v. Shipman, 233 Ill. 9, 84 N.E.
53 (1908); Frost-Johnson Lumber Co. v. Selling's Heirs, 150 La. 756,
91 So. 207 (1922); Rich v. Doneghey, 71 Okla. 204, 177 Pac. 86 (1918).
Cf. Manufacturers' Gas and Oil Co. v. Indiana Natural Gas and Oil Co.,
155 Ind. 461, 57 N.E. 912 (1900), in which Indiana's "correlative rights"
theory is set out.
63. Cf. Barnard v. Monongahela Natural Gas Co., 216 Pa. 362, 65 Atl. 801
(1907). See 1 Summers, Oil and Gas 61-65 (1954).








AND THE LAW


the surface and, more importantly, the issue of rights of extraction.
In the nineteenth century, some courts were inclined to follow the prin-
ciple of absolute ownership where ground water was concerned and, as
a logical consequence, held that a landowner might extract any quantity
of ground water from his land that he wished, and any effects upon his
neighbor were "damnum absque injuria. "64 In other jurisdictions,
however, it was concluded that the doctrine of absolute ownership was
"not well founded in legal principles, and is not so commended by its
practical application as to require its adoption,"65 and a rule of
"reasonable use" or "correlative rights" was adopted. 66 But even this
rule of reasonable use is not wholly satisfactory, especially in view of
increasing need for ground water use brought about by population and
industrial growth. Recourse to legislative regulation has been found
necessary to control ground water appropriation. 67 To date, however,
legislative intervention to make practicable the rules relating to ground
water has been less extensive than with oil and gas, doubtless due to
the fact that ground water is far more common than oil and gas and has
been worth less on the market, and also because the judicially wrought
doctrines relating to the use of ground water were in many instances
more restrictive than those concerning oil and gas. But it is certain
that in the years to come the states-or even the federal government-
will come to place an ever-increasing reliance upon statutory law to
control the use of ground water.
2. Watercourses and Flowing Water
The character of a watercourse is singular, consisting of an ever-
changing flow of water which follows a course or channel in which it is
confined. Because of its vagrant nature, legal writers have been known
to describe flowing water as a mineral "ferae naturae." Although in
recent years it has been quite correctly pointed out that a watercourse
is only a segment of the hydrological cycle, and that ideally the law
should create a comprehensive system of rules of water use which
govern under a single heading watercourses, ground water, and diffused
surface water, nevertheless, watercourses have historically received

64. See, e.g., Acton v. Blundell, 12 Mees. & W. 324 (1843); Tampa Water-
works Co. v. Cline, 37 Fla. 586, 20 So. 780 (1896); Houston & T.C.R.
Co. v. East, 98 Tex. 146, 81 S.W. 279 (1904); Huber v. Merkel, 117
Wis. 355, 94 N.W. 354 (1903).
65. Pitney, Ch., in Meeker v. City of East Orange, 77 N.J.L. 623, 626,
74 Atl. 379 (1909).,
66. See, e.g., Schenk v. City of Ann Arbor, 196 Mich. 75, 163 N.W. 109
(1917); Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482 (1924). Cf.
Bassett v. Salisbury Mfg. Co., 43 N.H. 569 (1862).
67. See, e.g., Ind. Stat. Ann. 27-1301 to 27-1316 (1957 Supp.); Md. Ann.
Code, Art. 66C, 735-755 (1957).


m- -








WATER RESOURCES


separate treatment in the law, as though there were no connection what-
ever between the various forms in which water is found upon or in the
earth. Therefore, while recognizing that it is only reasonable to treat
water resources in an integrated fashion, including entire river basins
within one system, at this point watercourses will be dealt with in the
time-honored fashion, as though they were wholly separate entities.
Watercourses are not at all similar to other objects of property,
which consist of substance which remains, for virtually all purposes,
constant. The stuff of which an automobile or even a tract of land is
made does not alter radically from day to day. But a watercourse is
composed of constantly changing molecules of water, which flow from
the highlands to the sea, passing successively over the lands of many
persons. As the philosopher Heraclitus observed nearly twenty-five
centuries ago, "One cannot step into the same river twice. "68 Water-
courses consist of two constituent parts: a stable, relatively unchang-
ing channel and ever-changing flowing water. It was perhaps the dif-
ference between the two which led to a separation of them in the law by
which a watercourse is treated as being something more than mere
flowing water.
Who owns the water as it flows from the land of A onto the land of
B onto the land of C and so on? Generally, it has been considered that
the flowing water cannot be privately owned; in this sense it resembles
an animal "ferae naturae," which does not become the subject of pri-
vate property while at large, but must first be reduced to possession.
To say that the water was owned successively by the persons over
whose land it passed strained the legal imagination, which was ac-
customed to relatively stable theories of ownership, based upon at
least an indirect sort of possession or dominium. Therefore, it was
determined long centuries ago that there is no private property in the
substance of flowing water; the most a person can have in this regard
is a usufructuary right-a right to use the water.
The inherent instability of flowing water has made it difficult to
predicate a firm system of legal rights. For the most part, it has
proved expedient in the law to employ the more abstract concept of a
watercourse as a foundation upon which to construct a doctrine of
rights and duties; this is quite in keeping with the popular idea of a
watercourse as being a stable and permanent thing. At this point,
however, arose the immensely important problem of what kinds of
rights in watercourses should exist. Ignoring for the moment the very
real fact of pressure from individuals to create private property rights
in watercourses and flowing water by which the greater number of the
public would be excluded from using them, it is observable that several

68. As quoted in Edman, The Uses of Philosophy 190 (Frankel ed. 1955).








AND THE LAW


possible courses of action were open to the lawmaker.
As water is vital to life itself, the doctrine of water use which first
commends itself is to allow all persons to use the water of water-
courses. Necessarily, certain negative regulations must accompany
this doctrine-for example, that no one shall muddy the common water-
ing place or throw filth into the stream. Moreover, rules prohibiting
waste of water or prescribing certain uses might be imposed where an
unlimited demand would seriously deplete the existing supply. Two ob-
jections may be asserted in opposition to this doctrine, however. In
the first place, many streams are too small to admit of use by more
than a very few persons. To allow the entire general public to use tiny
rivulets conceivably would have the actual result of preventing their ef-
fective use by anyone. Besides, many persons could acquire a more
readily available water supply of higher quality by the simple expedient
of digging a well. In the second place, to allow universal access to
watercourses conflicted with the legal theories of property in land which
the society had accepted. By the rule of near-absolute private dominion
which had been adopted in regard to nearly all of the arable land-in-
cluding particularly that near watercourses-A could no more cross
the land of B in order to take water from a stream which flowed there
than he could trespass for any other reason. Certainly this could not
be brought within the scope of an easement created by necessity. Thus,
having the only lawful access to a stream which flowed upon his land,
it was'perhaps inevitable that the landowner should come to think of the
watercourse as being "his own."
Another feasible doctrine of water use is simply that of "first
come, first served"-that a prior use gives a superior right. Certain-
ly where demand exceeds supply this is one means of regulating water
use among the many users. However, this doctrine is best suited for
a rude and primitive society in which it is more important to establish
some method of apportioning water among the persons desiring to use
it than it is to insure that the water is used efficiently or beneficially.
Wherever this doctrine is retained, there results a stagnation of that
portion of society which is dependent upon water use, for the natural
tendency of the law where rights are acquired by first use is to look
only backwards, disregarding the present needs of the public, and
freezing the water use pattern in its original form. New water rights
become impossible to acquire; existing rights are seldom prone to
change hands, and the purpose for which they are employed is almost
never changed.
One logical difficulty arises regarding the doctrine of prior use
giving superior right: by what right does the first user acquire the
power of absolute property in a part of a public stream? Jean Jacques
Rousseau suggested:








WATER RESOURCES


The first man who, having enclosed a piece of ground, be-
thought himself of saying This is mine, and found people sim-
ple enough to believe him, was the real founder of civil socie-
ty. From how many crimes, wars and murders, from how
many horrors and misfortunes might not any one have saved
mankind, by pulling up the stakes, or filling up the ditch, and
crying to his fellows, "Beware of listening to this impostor;
you are undone if you once forget that the fruits of the earth
belong to us all, and the earth itself to nobody."69

Perhaps Rousseau's declaration is an overstatement, but nevertheless
it does suggest one problem inherent in the prior use doctrine. Con-
ceivably it was this underlying question of "quo warrant" which im-
pelled the courts of England, at the time when the prior use doctrine
was in its ascendancy there, to require that a use of water, in order to
be entitled to legal protection, must not only have been prior in time,
but must have existed for a period sufficient to create a prescription-
presumably against other persons interested in the use of the water-
course or against the general public. In the western United States,
where the doctrine of prior use-there it is called "prior appropria-
tion"-has been adopted, the foundation is put upon the twin bases of
necessity and common practice and reinforced by subsequent legisla-
tive recognition of the doctrine. The statutory sanctification of this
primitive doctrine was doubtless due more to pressure brought to bear
upon the legislatures by the "vested interests" than by a detached and
rational consideration of the merits of the rule of prior use itself. In-
terestingly enough, the western states have averted the trespass prob-
lem encountered in gaining access to waters by those persons not own-
ing land adjacent to watercourses, which is one of the major objections
to allowing the general public to use watercourses freely. Expanding
upon the concept of "public use," these states have brought within the
eminent domain the power of private individuals to acquire by condem-
nation private lands for the purpose of irrigation ditches, conduits, and
other means of conveying water. 70
A third method of reconciling the problems of sufficiency of supply
and access is found in the so-called "riparian doctrine." In this doc-
trine of water use, both difficulties are resolved with a single stroke:
water use is limited to those persons owning land adjacent to water-
courses. The adoption of a restriction of this nature at once eliminates
the greater portion of the populace from using the water of rivers and
streams and also lends authority to the sentiments of those persons

69. Rousseau, The Social Contract, in Man and the State 261 (Commins and
Linscott ed. 1947).
70. See, e.g., Clark v. Nash, 198 U.S. 361, 25 S. Ct. 676 (1905).








AND THE LAW 163

owning favored land that they somehow own the watercourses next to
their land. By this doctrine, watercourses in effect cease to be the
common property of the public and become the common property only
of those persons owning land upon the banks of the streams and rivers-
"riparian" land. Watercourses become simply an incident of the land
upon which they flow.
Certainly the fact that only riparian owners can gain lawful access
to watercourses is an important basis for the use restriction which
forms the fundamental tenet of the riparian doctrine. Thus in the 1948
Wisconsin case of Munninghoff v. Wisconsin Conservation Commission,
it was said:

The riparian's exclusive right to use the water arises directly
from the fact that nonriparians have no access to the stream
without trespass upon riparian lands.71

But it is impossible to discount the additional factors of the relatively
limited supply in any watercourse compared with the overall public de-
mand and the impetus in Anglo-American law to reduce everything
capable of ownership to the status of an object of private property. In
the latter regard, it must be observed that during the years in which
the riparian doctrine was being developed by the courts, the interest of
the public was not represented in the proceedings; indeed, it was gen-
erally ignored completely.
Among riparian owners, there is no precise system recognized by
the law for ascertaining the specific quantity of water to be taken by
each. Certainly it is not determined by measuring the exact riparian
frontage owned by each. Instead, the rule of "reasonable use" has
been applied-which provides that, as against other riparians, each
riparian owner is entitled to make a reasonable use of the water in the
river or stream. What is reasonable must be determined by the pre-
cise conditions under which a use is made; and therefore a use of water
reasonable at one time and place may well be wholly unreasonable at
another. The only consistent exception to this rule has been the pre-
ferred position accorded domestic use; it can be explained either that
domestic use of water is per se always reasonable, or that the use of
water for human need transcends the reasonable use requirement.
A further important aspect of the riparian doctrine limits the situs
where riparian owners may use the water. Although a limitation of
this nature seems not to have arisen until about a half-century after
the riparian doctrine was first promulgated, nevertheless it is now
generally held by both English and American courts that the water of a

71. 255 Wis. 252, 259, 38 N.W. 2d 712 (1949).








WATER RESOURCES


stream can only be used upon those tracts of land actually riparian to
the stream. There are also a few decisions elaborating upon this con-
cept and adding further restrictions-for example, that riparian land
is limited to the smallest tract in the chain of title which is actually
adjacent to the watercourse, or that any part of a riparian tract which
extends beyond the limits of the watershed will not be considered
riparian. The reason for this additional restriction is not fully com-
prehensible; perhaps it is due to fear that without it the riparian doc-
trine does not limit strictly enough the use of water, or that if water
is diverted for use to land distant from the watercourse, the surplus
water may not be returned to the stream.
The riparian doctrine of water use is only a little less primitive
than that of prior use. It operates best where there is sufficient water
available for human need from sources other than watercourses, and
the principal use of watercourses is for the generation of power. By
the adoption of the plainly Utopian concept of reasonable use, the
riparian doctrine has been rendered largely useless for the development
of other permanent water uses than power. The insecurity of invest-
ment under the riparian doctrine in enterprises requiring an assured
supply of water has been one of the chief objections to its retention.
Much of the trouble comes from the nature of the common law system.
Unable to plan for the future or to regulate in a consistent manner the
use of water, the courts have created a system by which the rights of a
few are highly protected but which of necessity leads to the disregard
of the common good, since under the judicially conceived doctrine there
can be no assurance that water, a vital natural resource, will be put to
the highest beneficial use. Instead, the courts have been forced to
settle for a mediocrity which, because only second best, may actually
be a detriment to the common good. As the Arkansas Supreme Court
remarked in a recent decision:

In all our consideration of the reasonable use theory as
we have attempted to explain it we have accepted the view that
the benefits accruing to society in general from a maximum
utilization of our water resources should not be denied merely
because of the difficulties that may arise in its application. In
the absence of legislative directives, it appears that this rule
or theory is the best that the courts can devise. 72

Thus, the solution lies with the legislatures. In the western states,
starting with the crude and primitive doctrine of prior use, the state
legislatures over the years have been able to derive a statutory system
of water use which is both workable and beneficial to the common good.

72. Harris v. Brooks, 225 Ark. 436, 446, 283 S.W. 2d 129 (1955).








AND THE LAW 165

It is certainly true that within the legislatively defined doctrine of prior
appropriation there still exist many faults. However, through the ap-
plication of techniques peculiar to legislation, it has been possible in
the western states to progress substantially from the rude doctrines of
seventy-five years ago. For the most part this change has been due to
the enactment of two legislative policies: the introduction of a standard
of beneficial use into the prior appropriation doctrine73 and the forma-
tion of administrative agencies to regulate water use among prior ap-
propriators. In spite of not inconsiderable judicial antagonism toward
the statutory enactments, lasting until the present time, 74 the harsh-
ness of the primitive doctrine of prior appropriation has been consider-
ably ameliorated through the actions of the legislatures. Much remains
to be accomplished in the west, however; and in view of past history it
can hardly be doubted that any new water doctrines for the west will
come only through legislation.
Likewise, the riparian doctrine, although probably workable from
the aspect of practicability, leaves much to be desired when the com-
mon good is considered. The rapid growth in population and the even
more rapid increase in the need for water have served to make im-
practicable the common law method of creating rules of law to govern
water use. What is needed, unquestionably, is the power to plan for
the future, combined with the ability to regulate specifically the use of
water upon the various watercourses of a state. This salient fact has
been recognized throughout the eastern United States, and an ever-
increasing number of states are acting through their legislatures to
modify the riparian doctrine and replace it with administrative regula-
tion along the lines of the common good.
D. Conclusion
In the preceding pages the concept of property as an absolute right
has been discussed, with the conclusion that although there may be an
absolute right of property in the abstract sense, nevertheless there
are no absolute specific rights of property. Especially with regard to
property in natural resources, it is clear that many difficulties inhere
in attempting to apply the notion of property to watercourses and other
'*wild" things. For this reason, the law concerning specific property
rights in the air, the sea, flowing waters, and the other resources
discussed above, is in a state of flux. What is today believed to be a
property right in these things is often different from yesterday's

73. See Hutchins, supra note 2 at 314-20.
74. See, e.g., State v. Cochran, 138 Neb. 163, 292 N.W. 239 (1940), hold-
ing unconstitutional an attempt by an administrative agency to restrict
the waste of water.


-.o







166 WATER RESOURCES

notion; and there is no promise that with the coming of tomorrow the
property interest will not have undergone further change. This change
necessarily comes about as our knowledge of the true nature of these
things increases, and as the common need-upon which all property is
based-alters with the passing of time and the modification of society
and the way of life.
As has been pointed out, it has been questioned whether the doc-
trines governing the property rights in watercourses and the use of
their flowing waters are adequate to meet the present and anticipated
future needs of society. In the subsequent sections of this paper there
will be considered a legal analysis of the riparian right, some of the
limitations to which the interest of the riparian owner is subject in
favor of both individual members of the public and the state, and the
problem of modification of property under the state constitutions.

IV. A LEGAL ANALYSIS OF THE RIPARIAN RIGHT TO USE WATER
A. Introduction
An adequate understanding of the legal nature of the riparian right
is a valuable aid to constructive thinking concerning solutions to the
impending water crisis in the eastern states. As it is generally agreed
that modifications will have to be made in the existing doctrine of
riparian rights in order to insure the optimum utilization of available
water, it is essential to know the basis for prevailing legal attitudes
relating to the legislative power to alter existing law governing the use
of the water of rivers and streams. Especially is this knowledge im-
portant in view of the constitutional protections afforded private prop-
erty, which pose a very cogent challenge to any legislation seeking to
change subsisting legal rules pertaining to land and its natural inci-
dents.
Speaking generally, it cannot honestly be denied that the riparian
right, if considered as an entity, is "property." This proposition has
been authoritatively voiced by too many courts upon too many occasions
for its validity to be seriously challenged at this time. But to concede
this much does not close the issue and signal the downfall of all legis-
lative efforts designed to bring about a more beneficial use of the water
of rivers and streams. For what is commonly designated the "riparian
right" is in reality not a single right, but a complex legal structure
composed of a number of individual rights. Certainly, not even in the
heyday of absolute judicial protection of private property from legisla-
tive regulation would it have been asserted that all of the multiple as-
pects of the "riparian right" are entitled to constitutional protection.
And living as we do in a more enlightened age, we will hardly question








AND THE LAW


that broad segments of the "riparian right" do not fall within the pro-
tection accorded private property by the due process provisions.
It is not a matter of the simplest sort to ascertain how much of the
riparian right to use water can properly be described as "property"
which the legislatures are not free, in the light of traditional judicial
reasoning, to modify or abolish. Past legislative enactments are of
almost no help whatever, and authoritative judicial pronouncements
are very scarce. The problem has generally been approached, by
legal writers as well as by the courts, from the point of view of seek-
ing to determine whether some specific modification or curtailment of
the riparian right is consistent with legal and constitutional safeguards.
Seldom if ever has an effort been made to ascertain the nature of the
riparian right as property, and from this foundation to formulate what
modifications may be made in the riparian doctrine without infringing
upon the private property in the riparian right.
Recognizing, then, that the following analysis probably contains
numerous imperfections, it is proposed to examine the riparian right
in the light of judicial and textual statements concerning its nature, as
well as Judicial decisions serving to indicate the extent of the riparian
doctrine, in order to discover how much, if any, of the riparian's
right to use water can properly be described as "private property." A
substantial part of the discussion may seem to be on an elementary
level, and to some extent a reiteration of earlier statements, but it is
only through resorting to basic principles that the true nature of the
riparian right as property can be known.
One preliminary observation should be made. Many of the pro-
nouncements of the American judiciary and American legal writers
concerning the riparian right have been made with reference to the
western states, where the riparian doctrine, if recognized, exists to-
gether with the doctrine of prior appropriation. While these western
decisions cannot be wholly discounted, neither should they be accorded
full weight in discussing the riparian doctrine as it applies to the east-
ern states. The combination in the west of singular climatic conditions
and a dual water law doctrine has brought about in these states specific
trends in legal development which are unsuited to the east. For ex-
ample, it has been the west where the most uncompromising restric-
tions have been imposed upon riparian use. Unfortunately, this salient
fact has not always been recognized in the eastern states, where west-
ern decisions have often been cited to support "water law determinations.
Furthermore, the recent awareness on the part of the eastern states of
Their water law crisis has been brought about, at least in part, by ex-
perts on western water problems, who have almost invariably suggested
the western solution to the eastern problem, thereby emphasizing the








WATER RESOURCES


western treatment of the riparian right. 75 But we must not overlook
the fundamental difference between eastern and western water law;
whereas in the east the courts have had the relatively simple task of
adjusting between the competing interests of riparian owners, the
western courts have been confronted with two virtually incompatible
doctrines of water use, each of which has given rise to a large number
of private interests and each of which claims a theoretical predomi-
nance. The history of California water use law, for example, has been
shaped by the conflict between riparians and prior appropriators,
either of whom, if given the upper hand, would unhesitatingly have ex-
panded his own interests at the expense of the other. In shaping the
California doctrine of riparian rights, the courts were forced to decide
between the claims of riparian owners that they were entitled to the full
flow of the state's streams, and the demands of appropriators that they
be allowed rights to the use of all water above that required to satisfy
the bare minimum uses of riparian owners. This early dispute was
decided in favor of the water user whose rights had first accrued; the
issue was whether the riparian's land had been patented before the
initiation of the appropriation upon public land. 76 As against an up-
stream junior appropriator, the riparian owner was held to have a
vested property right to the full flow of the stream;77 this stringent
rule was modified only by means of a 1928 California constitutional
amendment78 after numerous unsuccessful legislative attempts at re-
striction. 79 But for all of their staunch judicial defense of the riparian
right, nevertheless the California courts did not hesitate to impose
limitations upon the riparian's use of the water. California was one of
the first American jurisdictions to hold that use of water upon non-
riparian land is not embraced within the riparian right, 80 and seems
to have originated the further limitation of riparian rights to land

75. See, e.g., Busby, "American Water Rights Law," 5 S.C.L.Q. 106
(1952); Hutchins and Steele," Basic Water Rights Doctrines and Their
Implications for River Basin Development," 22 Law and Contemp. Prob.
276 (1957); Trelease, "A Model State Water Code for River Basin De-
velopment," 22 Law and Contemp. Prob. 301 (1957).
76. Lux v. Haggin, 69 Cal. 255, 10 Pac. 674 (1886). Under California law
it has been held essential that an appropriation be initiated on-public
lands; if it were to be initiated on private lands the appropriator would
gain no rights to the use of the water. Cory v. Smith, 206 Cal. 508,
274 Pac. 969 (1929).
77. Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 Pac.
607 (1926).
78. Cal. Const., Art. XIV, 3, as adopted November 6, 1928.
79. See, e.g., Herminghaus v. Southern California Edison Co., supra note
77.
80. Lux v. Haggin, supra note 76.








AND THE LAW


within the watershed of the stream81 and to the smallest parcel of ripar-
ian land in the chain of title.82 These limitations not only governed the
correlative rights of riparian owners, but also worked in favor of junior
appropriators whose appropriation had been made at a point downstream
from the riparian tract. Had the riparian in such an instance been al-
lowed to use the water for any reasonable purpose, without a situs re-
striction, the appropriator would have had no defense against a total ex-
haustion of the stream due to the riparian's use of the water to irrigate
an unlimited amount of land. To what extent the adoption of these re-
strictive rules of riparian use was explicitly intended to aid appropri-
ators is unknown; but that it actually did serve that purpose is unques-
tionable. In a jurisdiction such as an eastern state, in which only a
single doctrine of water use prevailed, however, it is doubtful whether
it would have been either wise or expedient so to restrict the use of
water. But in any event an examination of the California cases discloses
that the peculiar conditions existing in that state have been responsible
both for excessive judicial protection and for excessive formalized judi-
cial restriction of the riparian right. Although perhaps not in so pro-
nounced a manner as in California, the other western states which rec-
ognize the riparian doctrine have also experienced a development along
the same rigid lines, due to the need to resolve controversies between
riparians and prior appropriators. For this reason, western decisions
enunciating the riparian doctrine should be looked upon with some mis-
giving, and not be accepted as declarative of appropriate law for the
eastern states without a careful examination of the underlying facts.
B. The Property Interest in the Riparian Right
Reduced to its essentials, the property interest in the riparian
right consists of a limited number of particular rights arising from the
ownership of land adjacent to a stream. 83 In order to ascertain the

81. Chauvet v. Hill, 93 Cal. 407, 28 Pac. 1066 (1892); Bathgate v. Irvine,
126 Cal. 135, 58 Pac. 442 (1899). In its original form, the restriction
of water use to the watershed may have been simply an application of
the rule that the surplus water remaining after use must be returned to
the stream from which taken. Cf. Stanford v. Felt, 71 Cal. 249, 250,
16 Pac. 900 (1886).
82. Boehmer v. Big Rock Irrigation Dist., 117 Cal. 19, 48 Pac. 908 (1897).
Cf. Lux v. Haggin, supra note 76 at 424-25.
83. It is generally said that ownership of the land adjacent to the stream-
giving lateral contact with the water-is enough to attach riparian rights
to that land. Lyon v. Fishmongers' Company (1876) L.R., 1 App. Cas.
662. 4 Restatement, Torts 843 (1939), however, contends that owner-
ship of at least some of the land underlying the water is necessary to
riparian ownership, on the somewhat questionable basis that otherwise
there could be no access to the water without trespassing. Moreover,
it has commonly been held that ownership of the bed alone confers no


i








WATER RESOURCES


exact nature of these rights, two avenues of exploration are open. The
express statements of the courts which declare that the riparian right
is property can be examined, collected, and woven into the fabric of a
statement of the law. This task is relatively easy, and provides re-
sults whose sources are at once objectively verifiable. On the other
hand, it fails to take account of the intricacies of legal reasoning which
lie behind these overt judicial assertions. It is never altogether cer-
tain, for example, whether a nineteenth-century court which speaks of
"property" does so in substantial conformity with the meaning of con-
stitutional provisions, or whether, as the Alabama court did in Drake
v. Lady Ensley Coal, Iron & Railway Co., its words are simply an
exclamation, tinged with bravado, of the essentially restricted spirit
of the age:

Under the provisions of the constitution, private property
can not be taken for public uses, or for corporations, without
just compensation being first made to the owner, except by his
consent. The courts, and it was never intended to be under-
stood otherwise, are not the "masons" to "chisel" away the
vested rights of property of private individuals, however hum-
ble and obscure the owner, for the benefit of the public, or
great corporations. It is the pride of this Republic, that no
man can be deprived of his property without due process of law,
and that the poorest citizen can find redress for an unlawful in-
jury caused by his wealthy neighbor, by appealing to the courts
of his country.84

Although one will not quarrel with the principles of equal justice under
law, nevertheless it is doubtful whether this paragraph of the opinion
was at all necessary to resolve the controversy before the court, which
dealt with the pollution of a stream.
A second approach consists of scrutinizing the development of the
riparian right to use water, and determining the nature of the riparian
right to use water from the decisions of the courts and opinions of legal
writers. From this finding can be postulated a theory of what portions
of the riparian right to use water are actually property in the constitu-
tional sense, and what portions are simply legal rules established for
the convenient and just disposition of controversies which arise over
water use, and which cannot in any event be said to be property. The
results achieved by this method may be open to more doubt than those

(Footnote continued)
riparian rights. See Iux v. Haggin, supra note 76. But in McCarter
v. Hudson County Water Co., 70 N.J. Eq. 525, 61 Atl. 710 (Ct. Ch.
1905), it was said that state ownership of the bed of the stream is suf-
ficient to give the state riparian rights in the stream.
84. 102 Ala. 501, 508, 14 So. 749 (1894).








AND THE LAW 171

arrived at by a simple examination of the outward statements of the
courts, but at the same time will prove to be of greater value in that
understanding of the riparian right may thereby be enhanced and a por-
tion of the surrounding mystery removed.
In the following discussion, both approaches to the problem will be
explored, with the hope of acquiring as much knowledge as possible
about the nature of the riparian right to use water.
1. Judicial Statements as to the Property Nature of the Riparian
Right
Turning first to the express statements of the American courts, it
has been said on many occasions that "Riparian ownership is a property
right of which the owners cannot be deprived without due process of
law,"85 or that "Riparian rights are property rights and cannot be
taken away without just compensation made therefore. The state cannot
do it nor authorize anyone else to do it. "86 This was stated somewhat
more elaborately by the Supreme Judicial Court of Maine in 1919:

All these rights which the riparian proprietor has in the run-
ning streams are as certain, as absolute, and as inviolable as
any other species of property, and constitute a part of his land
as much as the trees that grow thereon, or the mill or the
house that he builds thereon. He can be deprived of them only
through the power of eminent domain constitutionally exercised.87

Broad generalities of this nature, usually found in the form of dictum,
are of little actual aid in delineating between the property and non-
property segments of the riparian right.
In particular, it is necessary to examine the judicial assertions as
to the existence of property in specific rights under the riparian doc-
trine. Thus, in more specific terms, the courts have held that the
riparian owner's right to construct wharves upon riparian-owned beds

85. Leitch v. Sanitary District of Chicago, 369 Ill. 469, 473, 17 N.E. 2d 34
(1938). See also Philadelphia v. Commonwealth, 284 Pa. 225, 232, 130
Atl. 491 (1925): "Riparian rights are property rights for which compen-
sation is guaranteed by the Constitution when taken." In Hilt v. Weber,
252 Mich. 198, 225, 233 N.W. 159 (1930), the court said: "Riparian
rights are property, for the taking or destruction of which by the State
compensation must be made, unless the use has a real and substantial
relation to a paramount trust purpose."
86. Petraborg v. Zontelli, 217 Minn. 536, 545, 15 N.W. 2d 174 (1944). In
Fuller v. Shedd, 161 ll. 462, 492-93, 44 N.E. 286 (1896), it was said:
"Riparian proprietorship is a property right of value, and to it are at-
tached rights and privileges conferred by law, of which the owner can-
not be deprived by an illegal proceeding. "
87. Opinion of the Justices, 118 Me. 503, 507, 106 Atl. 865 (1919).








WATER RESOURCES


of watercourses is a property right to be accorded constitutional pro-
tection. 88 The riparian owner has a property right in the banks of the
stream89 and in free access to the- stream. 90 Ice which forms upon a
stream whose bed is owned by the riparian is, in a corporeal sense,
the property of the riparian owner;91 and the right of the riparian to
take such ice is similarly a property right. 92 A riparian owner on a
non-navigable stream has exclusive rights in the bed and in the waters,
which constitute property that the legislature cannot lawfully take by
declaring the stream to be navigable and thereby creating public rights
in the bed and waters. 93
On occasion, the courts and writers have sought to set out in com-
prehensive form what they believed the constituent rights of the ripar-
ian doctrine to be. According to the Michigan Supreme Court:

Generally speaking, riparian rights are:
(1) Use of the water for general purposes, as bathing,
domestic use, etc. (2) To wharf out to navigability. (3) Ac-
cess to navigable waters.... (4) The right to accretions.94

In a similar vein, the Maine court has said that the riparian owner has,
"inter alia," a right to the ice which forms in the winter, a right to
take fish from the waters whose bed he owns, a right to the momentum
of the stream for water power, and "the right to the natural flow of the

88. Yates v. Milwaukee, 77 U.S. (10 Wall.) 497 (1871); City of Chicago v.
Laflin, 49 Ill. 172 (1868). In City of Janesville v. Carpenter, 77 Wis.
288, 301, 48 N.W. 128 (1890), it was held that the owner of the bed of
a stream had the right to drive piles into it to support buildings, and
that a statute forbidding him to do so constituted an unlawful taking of
his property: "Any restriction or interruption of the common and neces-
sary use of property that destroys its value, or strips it of its attri-
butes, or to say that the owner shall not use his property as he pleases,
takes it in violation of the constitution." This statement discloses the
absolute form in which the judiciary regarded property as being pos-
sessed in the late nineteenth century.
89. Water Power Cases, 148 Wis. 124, 134 N.W. 330 (1912).
90. Thiesen v. Gulf, F. & A. Ry. Co., 75 Fla. 28, 78 So. 491 (1918); Phila-
delphia v. Commonwealth, supra note 85. But cf. Home for Aged Women
v. Commonwealth, 202 Mass. 422, 89 N.E. 124 (1909).
91. Lake Auburn Crystal Ice Co. v. City of Lewiston, 109 Me. 489, 84 Atl.
1004 (1912).
92. Washington Ice Co. v. Shortall, 101 Ill. 46 (1881).
93. Olive v. State, 86 Ala. 88, 5 So. 653 (1888); Hood v. Murphy, 231 Ala.
408, 165 So. 219 (1936); People v. Economy Light and Power Co., 241
Ill. 290, 89 N. E. 760 (1909); Murray v. A. & L. M. Preston, 106 Ky.
561, 50 S.W. 1095 (1899); Crenshaw v. Slate River Co., 27 Va. 245
(1828).
94. Hilt v. Weber, supra note 85 at 225.








AND THE LAW


the stream, and the right to the use and benefit of it, as it passes
through his land. "95 Another authority has said that the riparian right
consists of part-rights of access to the water, accretions, erection of
wharves, the continued flow of the water, and a right to the use of the
water. 96 Each of these enumerated rights is describable as property.
It must be emphasized, however, that none of them is absolute, but all
are subject, upon occasion, to various governmental restraints. 97
For example, although the riparian owner has a vested right to the land
which has been formed by accretion, 98 it is highly probable that the
law could validly be modified by legislation so as to cut off the right of
the riparian owner to future accretions, and vest such future newly-
made lands in the state. 99 Nevertheless, since these presently-
existing riparian rights do constitute property, they are entitled to the
full protection of the constitutional safeguards.
Turning more particularly to the use of water, the courts seem to
have recognized three distinct rights whose nature has been described
as property: the right of access to the water, the right to the continued
flow of the water, and the right to the use of the water. In the greater
number of jurisdictions, there seems to be accord that all three of
these riparian rights are to be treated as property. The riparian's
right of access to the water adjacent to his land has already been men-
tioned; this right would appear to exist for purposes of abstracting the
water as well as to give the riparian the privilege of passing from his
land into navigable waters without hindrance. It can be asserted with-
out fear of exaggeration that without the right of access, the greater
part of the riparian owner's rights could not be guaranteed to him.
The right to the continued flow of the stream has been expressed
by the courts in several different ways. Some courts have treated this
right as tantamount to a kind of ownership in the stream. Perhaps
Chancellor Kent had this concept in mind when in Gardner v. Village of
Newburgh, decided nearly a century and a half ago, he said:
A right to a stream of water is as sacred as a right to the soil
over which it flows. It is a part of the freehold of which no
man can be disseised "but by lawful judgment of his peers, or
by due process of law."100

95. Opinion of the Justices, supra note 87 at 506-07.
96. See, e.g., Doss, The Law of Riparian Rights 261 (1891).
97. See Part V, infra.
98. See, e.g., Anderson-Tully Co. v. Murphree, 153 F. 2d 874 (8th Cir.
1946).
99. Scurlock, Retroactive Legislation Affecting Interests in Land 62-67
(1953).
100. 2 Johns, Ch. 162, 165-66 (N.Y. 1816). See also Harding v. Stamford
Water Co., 41 Conn. 87, 93 (1874), in which it was said that a stream
of water "is property as much under the protection of the constitution








WATER RESOURCES


Generally, however, the right is not expressed as being a right to a
stream of water but rather a right to the flow of a stream of water,
thereby avoiding the objection that watercourses are not proper sub-
jects of property. Thus in an 1882 Illinois decision it was said:

The owner of land over which a stream of water flows, has, as
incident to his ownership of the land, a property right in the
flow of the water at that place for all the beneficial uses that
may result from it.... 10

Likewise, the Supreme Court of Arkansas has recently described the
right to the continued flow of the stream as one which inheress in the
soil" and is "vested. "102
The right of the riparian owner to the use of the water has re-
peatedly been described as a property right. Turning once more to
the Illinois Supreme Court, we find that:

It would seem, when once it is established, that the only
property right recognized by the law, as respects running water,
is in its use as it passes along and as incident to the soil over
which it passes.... 103

Numerous other courts have also described the right to the use of the
water as constituting property; this right is, in fact, the crux of the
riparian doctrine. Nevertheless, the courts have failed to elaborate
upon the relatively bare concept of use, except to point out that this
right is common to all riparian owners. There is virtually no authori-
ty as to whether the particularized rules which have been developed
within the riparian doctrine over the past century are embraced within
the notion of "property." For example, could the legislature deter-
mine thatmunicipalities are in all cases to be treated as riparian own-
ers in their use of the water, without colliding with the constitutional
safeguard of property? Could non-riparian use be allowed under the
principle of reasonable use without amounting to a taking of property?
Both the courts and the legal writers have generally remained silent
in regard to these problems; and the sparse comment that exists can
hardly be said to favor legislative modification. In 1948 the Wisconsin
Supreme Court asserted in a dictum that "It is not within the power of
(Footnote continued)
as the land over which it flows." See also Clark v. Allaman, 71 Kan.
206, 80 Pac. 571 (1905).
101. Druley v. Adam, 102 Ill. 177, 193 (1882). See also Kasuba v. Graves,
109 Vt. 191, 194 Atl. 455 (1937).
102. Thomas v. La Cotts, 222 Ark. 171, 177, 257 S.W. 2d 936 (1953).
103. Druley v. Adam, supra note 101. See also Higgins v. Flemington
Water Co., 36 N.J. Eq. 538, 543 (1883).








AND THE LAW


the state to deprive the owner of submerged land of the right to make
use of the water which passes over his land, or to grant the use of it
to a nonriparian."104 Henry P. Farnham, addressing himself to the
same problem in 1921, concluded that non-riparian use can be made
only for a public purpose, and then only under an exercise of the power
of eminent domain, with the payment of compensation to riparian own-
ers. 105 For the most part, however, there has been no discussion of
this vital aspect of the legislative power over the riparian right.
Doubtless this absence of discussion has led many persons, seeking an
answer to the problems set forth above, to rely only upon the broad
statements made by the courts, and to conclude that since the riparian
right is property, any changing of the currently recognized legal doc-
trines of water use must necessarily constitute an unlawful infringe-
ment of the private property of the riparian owners.
In view of the lack of particularized legal determinations relating
to the right of riparian owners to use water, it becomes very difficult
to predict with any hope of accuracy whether a legislative change in the
minutiae of the riparian doctrine will be upheld by the courts, if the
prediction is to be based upon these vague, general judicial statements
alone. One guess is about as good as another. The first avenue of ex-
ploration of the property interest in the riparian right has provided
some small degree of insight, but has at last merely led into a blind
alley. Therefore, it is necessary to turn to the second approach to the
problem.
2. Analysis of the Development and Nature of the Riparian Right
a. Physical Basis of the Riparian Right
Even a superficial investigation will disclose that the riparian right
is dependent upon two basic physical facts: the existence of flowing
water in the form of a watercourse and a means of lawful access there-
to. It is upon these two simple but fundamental elements that the often-
times seemingly elaborate structure of the riparian right is founded.
According to the consensus of authority, a watercourse consists of
a regular flow of running water confined in an ascertained channel
comprised of bed and banks. 106 More properly, perhaps, a water-
course can be said to be a regular and substantial stream of water
existing in such a relationship to the land that its situs is relatively
permanent. A watercourse, then, is actually nothing more than a

104. Munninghoff v. Wisconsin Conservation Commission, supra note 71 at
259.
105. Anno., 14 A.L.R. 330, 331 (1921).
106. See, e.g., 1 Kinney, Irrigation and Water Rights 301-06 (2d ed.
1912); 4 Restatement, Torts 841 (1939).








WATER RESOURCES


natural phenomenon caused by the successive flow of particles of water
in a regular fashion over the surface of the land, unified within re-
stricted bounds due to the tendency of water to seek the lowest level of
the topography. In this sense, a watercourse is physically only water,
and nothing more. This has been pointed out by some legal writers.
Samuel Wiel, for example, noted that a "river as distinguished from
its waters is but a form or mental picture, and not, taking away its
waters, a substance at all. "107 Nevertheless, as will be seen in the
succeeding pages, there is a distinct tendency under the riparian doc-
trine to treat a watercourse as being something more than the water
which comprises it. Conceptually, at least, a watercourse is viewed
in the law as a substantial and relatively permanent entity which does
not itself change-in spite of the fact that it consists of an ever-changing
flow of molecules of water running from the high places to the low
places, impelled by the force of gravity. In this sense, the legal image
of a watercourse conforms to human experience, in that a river is com-
monly thought of as being as real and lasting as a tree. Although
strictly fictitious, this concept of a watercourse is important in the
law, both because it is easily grasped by the mind and because it
furnishes a firm basis upon which to predicate permanent rights relat-
ing to the flow and use of the water. The law has always been hesitant
to attach property rights to substances which are elusive, almost
chimerical, in nature; to admit that a watercourse is comprised of only
the water currently flowing within its banks-to which can be added the
prediction that more water will continue to flow in the channel tomorrow
and the next day-would undermine the traditional conceptual basis of
the riparian doctrine.
Access to the source of water supply is an essential part of any
doctrine of water use. The physical ability to get to the water is
necessary for one to be able to use it. This is as true of a nomad
stopping to drink from a brook as it is of a large city obtaining its
daily municipal water supply from the Mississippi River. Under the
riparian doctrine the natural requirement of physical access to the
water has been supplemented by certain legal qualifications; the simple
ability to gain access to the water will not alone give a right to the use
of the water, according to the legal reasoning of over a hundred years.
These legal qualifications may be traced directly to Anglo-American
doctrines of real property; at their foundation is the very basic princi-
ple of the common law that one's land will be protected against "un-
privileged intrusion" on the part of others. 108 Since the land adjacent

107. 1 Wiel, Water Rights in the Western States 697 (3d ed. 1911). This
work is hereafter cited as Wiel, Water Rights.
108. Dougherty v. Stepp, 18 N.C. 371, 372 (1835): "... [E]very unauthor-
ized, and therefore unlawful entry, into the close of another, is a








AND THE LAW


to watercourses has, by and large, passed into private hands, it follows
that these private owners have the legal power to exclude other persons
from gaining access to the stream. Through the unfortunate process of
legal ossification, however, this power of owners of land adjacent to
streams to exclude other persons from access to the stream has been
modified into the widely prevalent notion that for a person to have legal
access to a watercourse, he must own land adjacent thereto: "The
right to use the water is primarily based upon the ownership of land ad-
joining the stream, and persons whose land is not in contact with the
stream are in no sense riparian owners, and are not entitled to any
rights in the use of the water as private individuals. "109 Under this
doctrine, anyone is to be accounted a riparian "owner" who has a pos-
sessory interest in the land adjacent to the watercourse. Thus,
lesseesl10 and licensees in possession111 have been determined to be
qualified as riparians; while a licensee without any possessory right
cannot properly be described as a riparian owner. 112 Wiel suggests
that a trespasser in possession should be considered a riparian owner
for the purposes of water use. 113 However, as will be shown in the
following pages, the concept that water use should be restricted to
those having a possessory interest in tracts of land bordering the
watercourse has not gone without challenge from both the courts and
the writers. What is essential at this point is to recognize that under
the riparian doctrine something more than mere physical access to a
stream has generally been required in order to use the water of the
stream in a lawful manner.
b. Legal Basis of the Riparian Right
The foundation of Anglo-American common law thinking as to
watercourses lies in the judicial concept of their fundamental charac-
ter. Over the centuries, two essentially different theories of the
fundamental character of watercourses have been entertained by the
courts and have shaped the legal doctrine of water use. The earliest
theory, whose origins can be traced at least as far back as the Roman
law, is that watercourses are a natural resource of the community
whose bounties may be enjoyed by all persons; watercourses are said

(Footnote continued)
trespass. From every such entry against the will of the possessor,
the law infers some damage; if nothing more, the treading down the
grass or herbage...."
109. 2 Farnham, Waters and Water Rights 463 (1904).
110. Clough v. State, 208 Misc. 499, 144 N.Y.S. 2d 392 (Ct. Cl. 1955).
111. Roberts v. Huggins, 253 Ala. 305, 44 So. 2d 752 (1950).
112. Stoner v. Patten, 132 Ga. 178, 63 S. E. 897 (1909).
113. 1 Wiel, Water Rights 724.


i








WATER RESOURCES


to be "res communes," whose use is free to all persons, subject only
to necessary legal regulation. In the eighteenth and nineteenth cen-
turies, however, there arose a competing theory that watercourses do
not belong to the community at large, except perhaps for limited uses
such as navigation, but are the property of the owners of the adjacent
land. This theory commended itself to the judicial spirit of the age,
which tended to favor the private individual interest against the com-
munity interest; by 1900 it constituted the backbone of American water
rights law in the eastern states. Much of the history of American
water rights law in the twentieth century has revolved about the at-
tempt to restore to the law of water use the concept of the community
interest.
It seems to have been agreed in English law from very early times
that a watercourse should be allowed to continue to flow in its estab-
lished course. As early as Glanville, written about the end of the
twelfth century, it was said to be wrongful to turn"public waters from
their right course. "114 By the early years of the seventeenth century
it was recognized by the courts that "aqua currit et debet currere ut
currere solebat"--water flows and ought to flow as it has always
flowed. 115 At the same time, a plea of water "qui currere consuevisset
et debuisset" -which customarily flowed and ought to flow-was proper
to maintain an action for the diversion of a stream by a stranger. 116
These early legal determinations seem to have been based primarily
upon the notion that man should not disturb things which were time-
honored or established by God, rather than upon any claim of particular
private rights in a specific person. Clearly, the natural origin of
watercourses influenced legal thought as to their flow. As late as 1824
Angell wrote that:

A water-course derives its origin from the law of nature.
By the same law it moves in a certain direction, and by a cer-
tain bed or channel to the ocean.... Aqua currit et debet cur-
rere is the language of the law. Water flows in its natural
course, and ought always to be permitted to run there....117

This theory of law was thoroughly consistent with recognition of the
community interest in watercourses. As long as it was held that any
man who achieved access to a watercourse might partake of the water,
an obvious concomitant would be that streams should not be diverted
from their customary channels.
114. Glanville 9.11 (Beames trans. 1900).
115. Cf. Sury v. Pigott, Palm. 444 (1625).
116. Anonymous, Cro. Car. (3 Cro.) 499 (1638); Anonymous, Cro. Car. (3
Cro.) 500 (1638).
117. Angell, Water-Courses 5 (1st ed. 1824).








AND THE LAW


By the first quarter of the nineteenth century, however, it was
clear that the doctrine of community ownership of flowing waters was
being much restricted. The owner of the land upon or adjacent to which
a watercourse flowed had begun to be thought of as having some exclu-
sive right to the water. It is difficult to pinpoint the origin of this con-
cept; doubtless it is traceable as much to the Lockean theory of prop-
erty as to any source. Thus in the 1831 case of Liggins v. Inge Chief
Judge Tindal, remarked:
Water flowing in a stream, it is well settled, by the law
of England, is public juris.... And, by the law of England,
the person who first appropriates any part of the water flowing
through his land to his own use, has the right to the use of so
much as he thus appropriates, against any other.118
This statement contains twb interesting elements which serve to dis-
close the current of judicial thinking of the age. In the first place, the
recognition of first use as giving superior right is nothing less than a
literal application of the doctrine of John Locke that the natural right of
property arises from the fact that originally all things were the common
property of mankind, and that they could be turned into private property
simply through the act of first occupancy. 119 Connected with this rec-
ognition is the further assumption that for a person to acquire rights to
use water flowing in a stream, it must first be running through his
land. Why this new-and certainly non-Lockean-restriction was added
is difficult to understand; but that it had come to be recognized is clear.
In the United States Justice Story declared in the landmark decision of
Tyler v. Wilkinson that: "The natural stream, existing by the bounty
of Providence for the benefit of the land through which it flows, is an
incident annexed, by operation of law, to the land itself. "120 Why
Providence only meant watercourses to benefit the particular tracts of
land through which they flow does not appear in Justice Story's opinion.
But when the question came before other courts, they answered it in the
same fashion; riparian owners, and not the general public, were the pos-
sessors of rights to the flow of watercourses and the use of the water. 121

118. 7 Bing. 683, 692-93 (1831).
119. Locke, An Essay of Civil Government 26-34, in Two Treatises of
Government (1698).
120. Fed. Cas. 14,312, 24 Fed. Cas. 472, 474 (D.R.I. 1827).
121. In Opinion of the Justices, supra note 87 at 507, it was said:
The only limitation upon the absolute rights of ri-
parian proprietors in non-tidal rivers and streams is
the public right of passage for fish, and also for pas-
sage of boats and logs, provided the streams in their
natural condition are of sufficient size to float boats or
logs. Subject to this qualified right of passage, non-
tidal rivers and streams are absolutely private.








WATER RESOURCES


Several different reasons for the exclusive right of the riparian
owners to the flowing waters of streams have been offered from time
to time by the courts and legal writers. Although these attempted jus-
tifications for denying the community right to the use of the water have
not been wholly successful examples of legal reasoning, nevertheless
they have been voiced by the courts as presenting the rational basis for
the exclusive right of riparian proprietors, and therefore are of pres-
ent day importance. Primarily, there have been four reasons ad-
vanced for assigning to the owners of riparian lands exclusive rights in
watercourses: (1) ownership of the underlying lands gives ownership of
the watercourse; (2) the right to the watercourse is a natural incident
of the ownership of the adjoining land; (3) since riparians have the right
to exclude all others from access to the watercourse, they have exclu-
sive rights in the watercourse; and (4) limitation to riparian owners is
a legal doctrine compelled by the existence of a limited amount of water
and a theoretically unlimited demand for its use.
The first theory is that ownership of the bed of the watercourse
gives rise to ownership of the watercourse itself. Turning to Angell,
we find the following elaboration of this doctrine:

The right of private property in a watercourse is derived,
as a corporeal right or hereditament from, or is embraced by,
the ownership of the soil over which it naturally passes. The
well-known maxim, cujus est solum, ejus est usque ad coelum,
inculcates, that land, in its legal signification, has an indefi-
nite extent upwards; ...and a stream of water is, therefore, as
much the property of the owner of the soil over which it pass-
es as the stones scattered over it.122

Doubtless this theory arises from the doctrine that the riparian owner
has title to the bed of the stream "usque ad filum aquae"-as far as the
thread of the stream. But the owner of the adjoining land does not al-
ways in fact own the lands constituting the bed of the stream. Often
the bed of a watercourse is owned not by the proprietor of the adjoining
lands, but by a different person or by the state in its proprietary ca-
pacity. Can it be asserted that where title to the bed of a stream is in
the public, the owners of the adjoining land have no rights in the water-
course? Certainly this position would be contrary to the view general-
ly taken by the common law, which has been that ownership of land in
lateral contact with the water is sufficient to bestow rights in the
watercourse. It has repeatedly been demonstrated that the very word

122. Angell, Watercourses 5 (7th ed. 1877). In the first edition, Angell
was content to assert only that "the proprietors of the land over which
a water-course passes, are as such the proprietors of the water-
course." Angell, Water-Courses 2 (1st ed. 1824).








AND THE LAW


"riparian" is derived from the Latin term meaning the bank of a
stream, and consequently the doctrine itself only has required owner-
ship of the bank in order to give rise to rights in the watercourse and
to the use of the water. 123 Therefore, the theory of the ownership of
the watercourse is to this extent inconsistent with the riparian doctrine.
A more serious logical difficulty arises in the distinction that this
theory makes between a watercourse as a corporeal entity and the
water which comprises the watercourse. It is almost universally
agreed that there is no property in the flowing water itself;124 the most
that a riparian owner has is a usufructuary right in the water, which
right is of an incorporeal, rather than a corporeal, nature. The only
corporeal aspect of the watercourse is the water which comprises it.
Yet if this water is not subject to ownership, then certainly no cor-
poreal rights can exist in the watercourse. Thus, since the "cujus est
solum" doctrine applies only to corporeal things, it does not apply to
watercourses, and therefore a fatal blow is dealt to this theory of
ownership of watercourses.
A second theory which has been advanced as the foundation of the
doctrine that owners of riparian land have exclusive rights in water-
courses is that the rights in the watercourse are a "natural incident"
of the ownership of land adjoining the watercourse. As the Illinois
Supreme Court said in 1950, the riparian owner "has, as an incident
to his ownership of land, a property right in the flow of the water at
that place for all beneficial uses that may result from it. Similar in-
cidents of ownership, or natural rights as they are sometimes termed,
are had to light and air above the land. "125 This theory is not a new
one, and traces of it can be found at least as early as Lord Hale's


123. The leading common law authority is Lyon v. Fishmongers' Company,
supra note 83. See also Webb v. Portland Mfg. Co., Fed. Cas.
,17,322, 29 Fed. Cas. 506, 510 (D. Maine, 1838), where Justice Story
said that riparian rights were incident to the ownership of the bank of
the stream; Diedrich v. Northwestern U. R. Co., 42 Wis. 248 (1877).
On the other hand, a modern authority asserts that the ownership of
some land beneath the water is necessary for the riparian right to ac-
crue. 4 Restatement, Torts 843 (1939).
124. See, e.g., Leake, Uses and Profits of Land 148, 226 (1888).
125. Clark v. Lindsay Light & Chemical Co., 405 Il. 139, 142, 89 N.E. 2d
900 (1950). See also, for another recent expression of this theory,
Amory v. Commonwealth, 321 Mass. 240, 246, 72 N.E. 2d 549 (1947):
"A riparian owner, as an incident to the ownership of the land, has
the right to have the natural flow of a stream come to his land...."
In 2 Washburn, Real Property 1284 (6th ed. 1902), it is said that "the
proprietor of land bordering upon a running stream has a right to the
benefit to be derived from the flow of water thereof, as a natural in-
cident to his estate...."








WATER RESOURCES


time, in the late seventeenth century. 126 The basis of this theory, ap-
parently taken from natural rights thinking, seems to be that water-
courses were somehow "intended" for the benefit of the lands through
which they flow. 127 From a human-centered outlook upon the resources
and condition of the earth, it would not be unreasonable to suppose that
the landscape had been planned for the use of mankind; it could be urged
that it is something more than fortuitous circumstance that every fertile
valley is furnished with a stream to provide water for its inhabitants.128
Assuming this basis, however, it is more logical to conclude that water-
courses are "meant" for the use of the entire valley than for the sole
use of those persons who possess the land immediately adjacent to the
streams. If the rights to use the watercourse are a "natural" incident
of land, then it would follow that before artificial boundaries of owner-
ship are established upon the land, these rights are incident to all of
the land within the watershed. Consequently, it is difficult to see how,
if these rights are natural incidents of the land, they are lost to the
greater portion of the land simply through the abstract legal process
of dividing the surface of the land into tracts for private ownership.
Justice Story escapes this impasse by asserting that it is only "by op-
eration of law" that rights in the watercourse become an incident to the
adjoining land. 129 Such an approach to the question, however, fails to
explain why these rights to watercourses are incident only to the adjoin-
ing land, and not to all land; it is not enough to assert that "This is law
because the law says so. This attitude is a negation of the fundamen-
tal precept that reason is the life of the common law. Nevertheless,
there are sufficient seeds of truth in the concept, that a watercourse
is a part of the land upon or adjacent to which it flows, to justify the
statement that it is an "incident" of this tract of land, while not an "in-
cident" of another tract of land upon which it does not flow. Whether
this is competent rational authority for asserting that the watercourse
is to be used only by the owners of the tracts through which it does flow,
however, is an entirely different matter.
Closely connected with terming rights in watercourses "incident"
to the adjoining land is the principle that only those persons who own
land upon the banks of streams have access to the water, and therefore
they have an exclusive right to the use of this water. Access, it has
often been said, is the true basis of riparian rights. 130 Clearly, if all

126. Cf. Hale, De Jure Maris 5, in Hargrave, Law Tracts (1787).
127. See, e.g., Tyler v. Wilkinson, supra note 120 at 474, where Justice
Story said that a natural stream exists "by the bounty of Providence
for the benefit of the land through which it flows."
128. Cf. 3 Kent, Commentaries 354 (1st ed. 1828): "Streams of water are
intended for the use and comfort of man... ."
129. Tyler v. Wilkinson, supra note 120 at 474.
130. See, e.g., 1 Wiel, Water Rights 692-95.








AND THE LAW


of the land adjacent to a watercourse is owned by one or more private
riparians, these riparians have the legal right to keep other persons
from using the stream since the only manner in which non-riparians
could then gain access would be by a trespass upon the lands of one or
more of the riparian owners. But this does not account for the legal
refinement that prevents a riparian owner from effectively allowing a
non-riparian an easement across his land in order to gain access to
and use the water in such a case; the non-riparian will not be protected
against interference by the other riparians and will not be allowed to
make any use of the water which infringes at all the unrestricted uses
made by the riparian owners. The non-riparian is in the position of a
mere licensee who has no legal recourse whatsoever against third per-
sons who interfere with the exercise of his privilege. 131 This restric-
tion may be explained in terms of a fear that to allow a riparian owner
to subdivide his right to the use of the water would destroy the funda-
mental equality existing between riparian owners by making possible a
grievous surcharge of the usufruct. 132 But even this explanation must
assume that the riparian owners as a class have an exclusive right to
the use of the water. All discussion of this theory must finally center
upon the question: can the exclusive right of riparian owners to access
account for the doctrinal change from the principle that all persons
have a right to the use of running water to a new principle that only
persons owning land adjacent to watercourses have a right to the use of
the running water? Certainly the fact that many persons were not able
to exercise their rights or were not even desirous of enjoying them
could not be said to have caused this atrophy and loss of the common
right; even today it is said that nonuse will not extinguish the right of a
riparian owner to the usufruct of the flowing water. 133 The explana-
tions of the legal writers are singularly inept. Wiel, for example,
says that "All but riparian proprietors were thus shut out from the
stream, for all others would have to trespass on the riparian estates
to reach it; and the law prohibited the trespass for this or any other
,purpose. "134 But he thereby overlooks or ignores the fact that since
131. Stockport Waterworks Co. v. Potter, 3 H. & C. 300 (1864).
132. See, e.g., the opinion of Lindley, L. J., in Ormerod v. Todmorden
Joint Stock Mill Co., (1883) L.R., 11 Q.B.D. 155, 170: "if we were
to hold that the defendants non-riparian grantees of rights to use
water are riparian proprietors, it would follow that a riparian pro-
prietor might grant rights over flowing water to any number of per-
sons, and that these rights would be of an unlimited kind." Cf. Miller
v. Lutheran Conference & Camp Ass'n, 331 Pa. 241, 200 Atl. 646
(1938).
133. See, e.g., Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation
Dist., 3 Cal. 2d 489, 45 P. 2d 972 (1935).
134. 1 Wiel, Water Rights 693.








WATER RESOURCES


time immemorial landowners have been granting easements to others
in the form of rights of way or licenses in a similar form to pass
through the land or to gain access to a spring, stream, or other source
of water or minerals upon the land. The courts have generally avoided
any thoroughgoing discussion of the reasons for limiting water use to
riparian owners; they seldom have had more to say concerning access
than that "The riparian's exclusive right to use the water arises direct-
ly from the fact that nonriparians have no access to the stream without
trespass upon riparian lands, "135 which clearly resembles the argu-
ments brought forward by Wiel.
Finally, on at least one occasion it has openly been admitted by
the courts that the changed conditions of modern times required an
abandonment of the doctrine that all persons, irrespective of their
possession of land on the banks of watercourses, have a right to the
use of the water. At the trial level in Ormerod v. Todmorden Mill Co.,
an English case decided at the appellate level in 1883, Cave, J., after
conceding that under the earlier English cases running water was one
of the "res communes" and open to use by all, concluded that:

Owing, however, to the greater demand for water for manufac-
turing purposes it has been found necessary in our law to limit
the right to running water, and as is pointed out in Mason v.
Hill, running water can no longer be said to be public juris in
the original sense of those words.136

This statement, which may come as close as any to the reason for re-
stricting the use of flowing water to persons having a possessory in-
terest in lands adjacent to watercourses, is consistent with the inclina-
tion of nineteenth-century courts to create strict legal doctrines and
veritably absolute rules of right and delict. Rather than trust to an
equitable standard such as reasonable use to govern the multitude of
rights to the use of water, the courts struck on a more ironbound solu-
tion whereby the use rights of a large portion of the community were
abolished.
In the final analysis, the judicial extinguishment of the common
right of all persons to useflowing waters can probably be attributed to
several factors: the exaggerated predominance quite generally ac-
corded to the creation of "absolute" private property in land, the
recognition of the fact that industrialization and increased population
would require a relatively stable doctrine of water use and would

135. Munninghoff v. Wisconsin Conservation Commission, supra note 71 at
259.
136. Supra note 132 at 160.








AND THE LAW


demand vastly increased uses, and doubtless the observation on the
part of the courts-that some parcels of land seemed by nature to be
more favored than were others in the matter of access to the water.
Undeniably the English water law doctrines of the seventeenth and
eighteenth centuries were cumbersome and unsettled from the view-
point of private uses of water, and the underlying principle of a com-
mon right in all persons to the use of the water must have added some-
what to the confusion. To the judicial mind of the early nineteenth cen-
tury, the riparian doctrine unquestionably appeared to be wholly con-
sistent with that current of human reason which dictates the develop-
ment of the common law.
Whatever the exact cause for the restriction of water use rights to
riparian owners, the doctrine is a very real one in the eastern United
States today; in fact, it is this very restriction which serves to dis-
tinguish between the riparian doctrine and other doctrines of water use.
The basic equality of right under the discarded doctrine was carried
over into the riparian doctrine. According to Chancellor Kent, "Every
proprietor of lands, on the banks of a river, has naturally an equal
right to the use of the water which flows in the stream adjacent to his
lands.... "137 Justice Story described the right to the use of running
water as "being common to all proprietors on the river";138 conse-
quently there is "perfect equality of right among all the proprietors of
that, which is common to all. "139 The same basic conception is found
in Angell. 140 These statements do not mean that the watercourse is
held as common property by the riparian owners, but rather that each
riparian has a right to the use of the water which, in legal signification,
is similar to the rights of other riparians.
Moreover, the riparian doctrine retained the principle of earlier
centuries that flowing water does not give rise to proprietary rights to
its substance but only to usufructuary rights to its flow. As Baron
Pollock said in Kensit v. Great Eastern Railway Co., decided in 1883:

... [I]t is a right of the same character as the right to the
pure flow of air, and is a right of such a nature that the per-
son who enjoys it cannot at any time fix upon a particular por-
tion of water to which he is entitled. He cannot say of any
pint or globule of water that that pint or globule is his.14T

The water flowing in the stream remains a substance which, unless ab-
stracted from the watercourse and reduced to possession, is not a

137. 3 Kent, Commentaries 353 (1st ed. 1828).
138. Tyler v. Wilkinson, supra note 120 at 474.
139. Ibid.
140. Angell, Water-Courses 5 (1st ed. 1824).
141. (1883) 23 Ch. D. 566, 569.


1








WATER RESOURCES


proper subject of private ownership.
Viewed in the abstract, the principle of the riparian doctrine which
dictates equality of right between all of the riparian owners insofar as
water use is concerned, is tinged with the aura of the ideal; all riparian
owners of land upon a stream form a democratic society whose mem-
bers exercise similar rights and privileges and are subject to similar
restrictions in the common behalf. In actual practice, however, the
problems of seeking to assure, through judicial means, a true equality
of right to use the water have offered no simple solutions. For ex-
ample, the reconciliation of the rights of the lowest riparian owner on
the stream with the rights of the highest riparian is an extremely diffi-
cult matter since for particular purposes the location of each is favored
over that of other riparian owners. Thus, no riparian can complain of
the uses of the water made by the lowest riparian on the stream unless
the water is cast back upon the upper lands. The lowest riparian can
use all of the water flowing in the stream for any purpose, utterly
wasting it or even selling it to non-riparian owners, and the upper
riparians'have no cause for complaint. But on the other hand, the low-
est riparian owner has no guarantee that any water at all will even flow
down to him, as, for example, in an instance in which the stream is
wholly consumed by the upper owners for domestic purposes.
In order to preserve the basic equality of right of each riparian
owner in the use of the water of the stream, the courts have adopted,
over the last century and a half, various legal rules of water use whose
purpose is to restrict and govern the use of the water in such a manner
that no riparian owner will be able, to the detriment of other riparians,
to "surcharge" his usufructuary right by appropriating more than his
share of the water. These rules, as adopted and modified over the
decades, have come to constitute much of the substance of the prevail-
ing riparian doctrine.
The right of each riparian owner under the riparian doctrine is to
the use of the water and to have the watercourse continue to flow to him
so that he is able to use it. In effect, this is the same right that all
persons theoretically had before the use of the flowing water was re-
stricted to riparian owners. By American standards of constitutional
law, these rights to the use and flow of the water are readily describ-
able as property and are consequently entitled to the protection of due
process and similar constitutional clauses. In the absence of qualify-
ing legal doctrine within a given jurisdiction, this conclusion seems to
be assured, no matter from what direction one approaches the issue.
As the usufructuary right is a positive incident of the ownership of land
adjacent to a watercourse, it is difficult, in view of historical develop-
ment and traditional understandings of the nature of property, to dis-
cover a rational basis from which it could be argued that the right to








AND THE LAW


the use of water is not entitled to constitutional protection. Interest-
ingly enough, this conclusion is similar to that reached by simple con-
sideration of judicial utterances related to the property interest in the
riparian right.
It has sometimes been suggested that a water use right which is
presently being exercised possesses a higher status as property than
a similar right which is not presently being exercised. According to
this view, these usufructuary rights which are not now being enjoyed
could be abolished without raising a serious constitutional problem;
this has been described, somewhat less than accurately, as "cutting
off the future use." If the right to the use of water is property, as the
above investigation certainly indicates, then neither the validity of this
right nor its status as property is determined by whether it is present-
ly being exercised. The test of whether a right exists, or the nature
of that right as property if it does exist, does not depend upon its con-
stant enjoyment. Without the presence of additional facts-such as
another person in adverse possession or making ah adverse use-a
legal right to property is neither lost nor rendered less certain by
nonuse. Therefore to destroy a right to the use of water not now being
exercised is not essentially different from destroying one which is
being exercised. The property right is a right to the use of the water;
it is not qualified by the factor of present enjoyment. However, this
does not foreclose the possibility that rights to the use of water not
now being exercised can be restricted through an exercise of police
power regulation or by a legislative abolishment of the riparian doc-
trine. Nevertheless, a serious constitutional problem may be raised
by action of this kind unless a reasonable basis can be found for
destroying the rights of some persons to the use of the water, while
retaining the rights of others. Unless a valid reason exists for such
unequal treatment of water right holders, it is highly possible that the
courts will find both due process of law and equal protection of the law
to be denied by this legislative action.
A further consideration at once presents itself. The riparian right
to the use of water is not a simple naked usufruct which allows its
possessor to use unlimited quantities of water in unlimited fashion. As
mentioned earlier, the riparian doctrine as it presently exists consists
of the fundamental riparian right to the use of water, but in addition is
comprised of numerous rules of law relating to the manner in which
the usufructuary right may be exercised. If these rules of law can be
legislatively modified or abolished without constituting a taking of
property, then, irrespective of whether the riparian usufruct is or is
not considered to be property, a method will have been found whereby
the riparian doctrine can itself be modified in order to attempt to solve
in some small measure the present and impending water crisis. Two








188 WATER RESOURCES

questions must therefore be considered: first, do the legal rules re-
lating to the exercise of the riparian right to use water in themselves
constitute property? Second, if the rules do not constitute property, to
what extent may existing rules be changed or new rules added before a
taking of the usufructuary right will result? These questions are dis-
cussed, and answers sought to be provided, in the following subsection.
At this point, however, it should be observed that not all courts
and writers are in accord with the views of riparian property enumer-
ated above. In at least one jurisdiction it is questionable whether the
riparian right to the use of water is property. This challenge to the
traditional point of view arises from a legal doctrine which minimizes
the absoluteness of the rights of individual riparian owners and empha-
sizes instead the interest of the community in controlling the use of
flowing waters. Basically, this doctrine recognizes that flowing waters,
being "res nullius" or at most "res communes," are in fact the prop-
erty of the community and that upon the foundation of this ownership
the state may regulate or even prohibit water use. 142 Access to the
water is treated as an incident of the property in the adjoining land,
but of itself access gives no particular rights to the use of the water.
Noyes, in The Institutionof Property, after pointing out that the law
has tended to confuse the right of access to the water with the right to
use the water, says:

The fact is that, like the riparian's right defined above, access
to common resources is a part right or attribute of the proper-
ty in all abutting land. But the privilege of appropriating any
part of such resources is a license granted by the state upon a
wholly independent sanction, though it may be, by the nature of
the terrain, only available to persons whose property includes
the right of access to such resources. 43

Justice White of the United States Supreme Court recognized the
basis of this doctrine in the 1900 decision of Ohio Oil Co. v. Indiana:

... [T]hings which.. .belong to the "negative community".. are
public things subject to the absolute control of the State, which,
although it allows them to be reduced to possession, may at its

142. The fact that this doctrine recognizes that the sovereign is simply the
embodiment of the will of the community is in itself a. departure from
nineteenth century judicial thinking. The former tendency was to ac-
cord no more rights to the sovereign than to the individual citizen.
Thus, in Sweet v. Syracuse, 129 N.Y. 316, 335, 27 N.E. 1081, 29
N.E. 289 (1891), it is said "Neither sovereign nor subject can acquire
anything more than a usufructuary right" in flowing water.
143. Noyes, The Institution of Property 361 (1936).








AND THE LAW 189

will not only regulate but wholly forbid their future taking....
[A]11 are endowed with the power of seeking to reduce a por-
tion of the public property to the domain of private ownership
by reducing [it] to possession.... [A]s the public are the
owners, every one may be absolutely prevented from seeking to
reduce to possession. No divesting of private property, under
such a condition, can be conceived because the public are the
owners, and the enacting by the State of a law as to the public
ownership is but the discharge of the governmental trust rest-
ing in the State as to property of that character.144
Although Justice White was referring in the above excerpt primarily to
things "ferae naturae" in the light of the earlier decision in Geer v.
Connecticut, 145 nonetheless the language is also applicable to flowing
water.
The doctrine of community interest was brought to full flower in
the 1942 New Hampshire case of St. Regis Paper Co. v. New Hamp-
shire Water Resources Board, 146 an action in which a riparian owner
sought to require the Water Resources Board to install a sluiceway in
a dam so that the riparian owner might float its logs to market. In an
opinion holding against the riparian owner, the New Hampshire Supreme
Court reduced almost to oblivion the concept of a riparian right to the
use of the water which would prevail against state control. Employing
a unique test, the court first established that the river in question was
public: "When a river or stream is capable in its natural state of
some useful service to the public because of its existence as such, it
is public. "147 Moreover, it appeared that anyone using public waters,
whether a riparian or not, did so based upon rights which were derived
from the public right; apparently private rights in public waters did not
exist:

Their rights are not property rights and are not vested. Strict-
ly, the rights are more properly to be termed privileges, which
may be taken away, altered or qualified. Aside from their
treatment under the constitutional principle of equality, the priv-
ileges are all measured by the extent of the public right....
This privilege is to be distinguished from riparian rights
which are property rights and which may not be invaded or
taken from the owner without compensation. But riparian rights
include no rights against the State in the exercise of its due
control of the public waters which the riparian's land reaches.
The exercise of control may not rightfully damage the land but


144. 177 U.S. 190, 208-09, 20 S. Ct. 576 (1900).
145. Supra note 55.
146. 92 N.H. 164, 26 A. 2d 832 (1942).
147. Id. at 170.


-I








WATER RESOURCES


it may affect its value. If the legislature saw fit to permit the
lowering of Lake Winnipesaukee to the detriment of owners of
property on its shores, they would be without legal redress, but
if the Lake were raised to flow upon their land, it would be
valid only under condemnation and an award of damages.148

Therefore, when the public right to float logs was lost when the dam
was built, the private right also ceased to exist. The riparian owner's
only recourse was to the legislature.
It is clear that in New Hampshire the constitutional problems of
legislative control over water use are much less than they are in the
vast majority of other states. The recognition of the public or com-
munity interest in waters as being paramount insures that there will be
no judicial disturbance of necessary changes for the future iri New
Hampshire's water use doctrine unless the legislation violates the
fundamental concept of equal treatment under law. It is a matter of
considerable conjecture to predict how many states will follow New
Hampshire's lead in the years to come.
c. Adjusting between the Equal Rights of Riparian Owners
Each riparian owner has an equal right to the use of water and to
the continued flow of the water to his premises in order that he may
use it. In its simplest form, the limit of the right of each riparian to
use the water is the point at which it interferes with the equal right of
another riparian proprietor. Angell says that:

Water flows in its natural course, and ought always to be per-
mitted to run there, so that all through whose land it pursues
its natural course may have the privilege of using it, though
not to the injury of another. Subject to the restriction imposed
by this limitation, the water may unquestionably be appropri-
ated to any use, and so restrained and regulated in its prog-
ress, that its power may be advantageously applied to the opera-
tion of mills, manufactories, &c.149-

This principle, however, is hardly the product of the riparian doctrine.
About 1250, for example, Bracton laid down the maxim that "no one
may do in his own estate any thing whereby damage or nuisance may
happen to his neighbour. "150 But unquestionably the principle is far
older than Bracton; it is essentially a legal recognition of the basic
moral precept of society to "Do good and avoid evil," stated in terms


148. Id. at 170-71.
149. Angell, Water-Courses 5 (1st ed. 1824).
150. Bracton, De Legibus et Consuetudinibus Angliae, Libri Quinque 4.37.1
(Twiss ed. 1880).








AND THE LAW 191

of the effect upon one's fellow man. The law cannot operate upon rules
as ephemeral as this one; there must be a more concrete means of as-
certaining in any given case what does constitute injury to the other.
To what extent or in what manner must a riparian owner's right to the
use and flow of water be invaded or restricted before the law will inter-
vene and give him a remedy because he has been injured? Inevitably,
conflict will arise between riparian owners concerning their use of the
water of streams; the lavwmaking agencies of the state-the courts and
the legislatures-will be forced to find a means whereby the interests
of each riparian can be measured against some objective standard in
order to resolve the controversy in a just and expeditious manner.
This end is achieved through the process of prescribing rules for the
use of the water. These rules are essentially restrictive in their na-
ture, since they are directed toward delimiting the theoretically vir-
tually unlimited right of each riparian owner to the use of the water.
This is not an infrequent legal problem with which the courts and legis-
latures are faced: that of resolving between conflicting rights or inter-
ests of various persons through the creation of rules of law which pro-
tect a particular interest of one person at the cost of limiting a con-
flicting interest of another. The entire fabric of the law of property,
contract, and tort is woven of prohibitions and commands whose pur-
pose it is to restrict particular interests of individuals in order to pro-
tect other interests.
The question to which an answer is here sought is whether these
rules which restrict the right of each riparian owner to use the water
constitute property in themselves. Can any riparian owner be said to
have a right of property in a rule which proscribes certain uses of the
water? In other words, does a person have a property right in a rule
of law regulating the exercise of his property and of the property of
others within the same class? In effect, the problem is double-edged:
is there a right of property in the rules which now exist in one's behalf,
and is there a right of property to have no new rules imposed? But
since each rule is of a dual nature, having a positive side which pro-
tects some interest as well as a negative side which restricts another
interest, perhaps there is no essential difference between removing
existing rules and imposing new ones.
Before examining the particular forms which the legal regulation
of the riparian right to use water has taken, it must be pointed out that
these restrictive rules of use have been imposed for two reasons: first,
in behalf of society, and second, in behalf of all riparian owners as a
class. The most prevalent control of the riparian's use of water which
has been imposed in behalf of the community is the restriction of the
pollution of watercourses. Although it has long been held that an indi-
vidual riparian owner who is affected thereby has a cause of action


Ii








WATER RESOURCES


against one polluting the stream, 151 in more recent years it has been
determined that there is a strong public interest in preventing the pol-
lution of watercourses, and consequently legislation has universally
been enacted which controls the amount of polluting matter which may
be added to streams. Although legislation of this nature has in fact
benefited individual riparian owners, it has primarily been adopted for
the protection of the entire community. This restriction of the rights
of individual riparians in the use of the flowing water has generally
been upheld as an exercise of the state police power when challenged
as an infringement of the property right of the riparian owner. 152
On the other hand, the greater portion of the riparian doctrine has
developed through the growth and particularization of rules intended to
protect the equal right of water use of each riparian by the imposition
of restrictions upon the extent of riparian uses. In short, the riparian
owners comprise a class of persons which as a group has an exclusive
right to the use of the water of streams. Within this class, each per-
son has an equal, right to the use of the water. If each riparian were
allowed to make an unlimited use of the water, it is certain that soon
there would arise conflicts between various users in instances when
the demand exceeded the supply. Therefore, in order to preserve the
equality of right, regulation of use of the water is required. As is im-
perative within every society, certain rights must be relinquished in
exchange for an assurance that others will be protected. In order that
some uses of water may be secured to all, all must relinquish the
privilege of making other uses. This has been the essence of the de-
velopment of the riparian doctrine although it has often been lost sight
of by the courts through the process of ossifying particular rules. Un-
questionably, restriction of each riparian's theoretically unlimited
right of use has tended to benefit society, in that it has averted the de-
velopment of an altogether nihilistic practice of water use; but the pri-
mary impetus for the development of these rules has been the need to
protect the individual interest of each riparian owner. In this sense,
the restrictions placed by the courts upon particular uses of water have
represented a rational attempt by the judiciary to ensure to each
riparian that degree of equality which is theoretically his under the
riparian doctrine. However, if the particular rules which have been
adopted relating to the use of water should begin to appear unduly re-
strictive or overly lax, in that the equality of riparians is threatened
or that great quantities of water are allowed to go to waste, new rules
should be adopted by the courts or by the legislatures which cure these
defects. As long as the equality of right between riparian owners is

151. See, e.g., Wheatley v. Chrisman, 24 Pa. St. 298 (1855).
152. See, e.g., State v. Glidden Co., 228 N.C. 664, 46 S.E. 2d 860 (1948).








AND THE LAW 193

thereby recognized and sought to be enhanced, it is extremely doubtful
whether serious questions of constitutionality will arise.
Beginning with the principle that each riparian owner has an equal
right to the use of the water and, as an incident of this right of use, a
right that the water should flow to his premises, it will be perceived at
once that countless rules of law could be devised in order to protect
and regulate this fundamental equality. In the eastern United States
over the past century and a half, at least four distinctly different prin-
ciples of adjustment between the conflicting interests of riparian own-
ers have seriously been put forward.
At an early date, contentions were made in the course of litigation
over water use that prior "occupancy" of a stream gave a superior
right to the continued use of the water as against subsequently initiated
uses. For the most part, the doctrine of prior occupancy as giving
superior right was rejected by the courts;153 but in one important
area the doctrine was legislatively adopted. This was the provision
under the so-called "mill acts" whereby the first person to establish a
milldam upon a river obtained a favored right to its continued main-
tenance, upon payment of compensation to other riparians whose lands
might be flooded thereby. 154
Furthermore, the courts and legal writers had difficulty eliminating
the concept that twenty years use of a stream in a particular manner
gave a vested right to continue making this use in the future; after this
period, the reasonableness of the use, or its effect upon other riparians
could no longer be challenged. Both Justice Story155 and Chancellor
Kent156 in their writings detailing the riparian doctrine advert to the
fact that by twenty years' exclusive enjoyment of the water in a par-
ticular manner a riparian gains a conclusive presumption in his favor
that he is making this use under a grant from all other riparians whose
interest may be affected thereby. Interestingly enough, then, the early
discussions of these great legal savants relating to the riparian owner's
right to a reasonable use of the water were concerned only with the
rights of those riparians who had not made a use in uninterrupted
fashion for a period of twenty years. How large a portion of the com-
munity they felt themselves to be addressing in terms of "reasonable

153. Palmer v. Mulligan, 3 Caines 307 (N.Y. 1805); Platt v. Johnson, 15
Johns. 213 (N.Y. 1818).
154. The leading cases which discuss the rationale and the constitutional
problems of the mill acts are: Head v. Amoskeag Mfg. Co., 113 U.S.
9, 5 S. Ct. 441 (1885), and Otis Company v. Ludlow Mfg. Co., 201 U.S.
140, 26 S. Ct. 353 (1906).
155. Tyler v. Wilkinson, supra note 120 at 474.
156. 3 Kent, Commentaries 355 (1st ed. 1828). See also Ingraham v. Hutch-
inson, 2 Conn. 584 (1818); King v. Tiffany, 9 Conn. 162 (1832).








WATER RESOURCES


use" is not certain; but it is clear that had the doctrine of twenty years
uninterrupted use been retained, the rules of reasonable use would
have applied to a smaller and smaller class of persons. By 1850,
however, this vestige of the past had been abandoned, and prescriptive
rights to the use of water were gained only by a use which was actually
adverse to the rights 6f other riparians. 157
It is noteworthy that both of the doctrines of rights to water use
mentioned above were based upon the assumption that in the beginning
all riparian owners had an equal right to the use of the water, but
through the passing of time and the exercise of this right by some
riparians, the equality vanished in favor of a more certain system of
water use rights. In the two following doctrines, however, which have
been of substantially more importance in the history of American water
law, this equality of right is not lost but retained throughout as the
basic principle of water use.
The so-called "natural flow" doctrine of riparian use is far more
notorious in American water law for its bark than for its bite. For a
good many years, the natural flow doctrine has been pointed to by
legal writers as a shining example of an unjust and wasteful water use
system. 158 The natural flow doctrine has arisen from scattered state-
ments which the courts have made to the effect that every riparian
owner has a right to the natural flow of the stream, without diminution
from any source. In the 1848 Georgia decision of Hendrick v. Cook is
found an excellent statement of the natural flow doctrine:

Each proprietor of the land on the banks of the creek, has a
natural and equal right to the use of the water which flows
therein as it was wont to run, without diminution or alteration.
Neither party has the right to use the water in the creek, to
the prejudice of the other. The plaintiff cannot divert or dimin-
ish the quantity of water which would naturally flow in the
stream, so as to prejudice the rights of the defendants, with-
out their consent; nor can the defendants, without the consent of
the plaintiff, throw the water back upon him to his injury, for
it is his right to have the water run in the channel of the
stream as God made it to run. 159
This, however, may be described as a relatively common form of ju-
dicial overstatement; the issue before the court concerned the backing

157. In the cases of Twiss v. Baldwin, 9 Conn. 291 (1832), and Buddington
v. Bradley, 10 Conn. 213 (1834), the court was clearly wavering be-
tween retention and abolition of the doctrine of twenty years naked user;
shortly thereafter it disappeared altogether from judicial consideration.
158. See 4 Restatement, Torts 342-44 (1939).
159. 4 Ga. 241, 256 (1848). See also Wharton v. Stevens, 84 Iowa 107,110-
11, 50 N.W. 562 (1891).








AND THE LAW


up of the waters of defendant's mill pond onto plaintiff's millsite.
Therefore, the "natural flow" with which the court was here concerned
was the flow of the water away from plaintiff s land, rather than to it.
When there actually arose before the Georgia court the issue of a
riparian owner's right to have the water flow down to him from the
upper lands, the reasonable use test was applied. 160 Many of the
other judicial utterances of this nature seem to fall within the same
category as the Hendrick case: they are in the form of dictum, and the
courts simply did not mean what they said. In a number of other deci-
sions frequently cited to support the natural flow theory, the upper
owner was diverting the water, which would be wrongful under any
theory of riparian rights; the natural flow doctrine has either been read
into the language of the court, or the court's natural flow statement
was gratuitously included in the opinion. 161
But whether fanciful or real, the natural flow doctrine exhibits as
its foundation the principle of equality of right to the use of water
among all riparian owners. As expounded in the Restatement of
Torts, 162 under the natural flow doctrine each riparian owner may use
the water freely, but only to the extent that the natural quantity and
quality of the water in the stream are not affected thereby. It is wrong-
ful to diminish the flow of the stream or to pollute the water, irrespec-
tive of whether any actual injury is inflicted upon a use of water being
made by a lower riparian; this rule of course prevents many uses of
water of a consumptive nature from being made. Although forbidding
the beneficial use of most of the water may appear to be a strange way
in which to protect equality of rights to the use of the water, nonethe-
less the intensely restrictive nature of the natural flow doctrine is
meant to do that very thing. Arising in an era in which the most im-
portant private uses of watercourses were for domestic purposes,
stock watering, and the furnishing of power to mills through the motive
force of the flowing water, the natural flow doctrine-if indeed it ever
did exist to any sizable extent outside of the minds of present-day legal
writers-granted maximum protection to all of these uses.
The distinction between the natural flow doctrine and the reason-
able use doctrine is relatively slight; instead of being restricted to
uses of water that do not diminish the flow of the stream, under the
reasonable use doctrine riparian owners are allowed to use as much of
the water of the stream as is reasonable in the light of all the surround-
ing factors, including particularly the uses which other riparians are
making of the water.

160. Pool v. Lewis, 41 Ga. 162 (1870).
161. Cf. Webb v. Portland Mfg. Co., supra note 123; Garwood v. New York
Central & H.R.R. Co., 83 N.Y. 400 (1881).
162. 4 Restatement, Torts 342-44 (1939).








WATER RESOURCES


The principle of reasonable use as the standard for determining
conflicts between riparian owners over the use of water is not a new
one. For example, in the 1783 Connecticut decision of Howard v.
Mason, 163 the defendant turned a substantial quantity of water from a
small stream onto his land in order to "manure and enrich it, and make
profit. "164 This use diminished the flow of water to plaintiff's down-
stream grist mill which had stood for some-seventy years. It was held
that the defendant had a right to make this use "provided he did it pru-
dently, and did not deprive the plaintiff of the surplus. "165 Both
Justice Storyl60 and Chancellor Kent167 advocated the standard of
reasonable use, and during the course of the nineteenth century it was
adopted both throughout the eastern United States168 and in England169
as the controlling principle of the use of water of streams.
Under the reasonable use doctrine, then, it would clearly appear
that uses of water of rivers and streams must be made by riparian
owners, and must be reasonable. In practice, however, the applica-
tion of this doctrine is not as plain or consistent as it might at first
seem. Although the courts at least pay lip service to the standard of
reasonable use, there seems to be a considerable divergence of opin-
ion as to how reasonableness is established in individual cases. The
fact is that two entirely different means of determining what constitutes
a reasonable use have been applied in controversies arising under the
reasonable use doctrine.
The first might be aptly described as an "internal" means of de-
termining reasonableness. Courts employing this means carefully ex-
amine all of the factors in the controversy which relate to the use of
the water, including the purpose for which the parties use the water,
the uses which are being made of the water by other riparians, the
amount of water taken and the amount consumed, the amount of water
available for use, the availability of alternative sources of water sup-
ply, and any other matters which may bear upon the over-all issue of
what constitutes a reasonable use of the water between the particular
parties before the court. Each dispute is considered to be "sui
generis," and is governed wholly by the actual factors in the case,

163. As reported in Perkins v. Dow, 1 Root 535, 537 (Conn. 1793).
164. Ibid.
165. Ibid.
166. Tyler v. Wilkinson, supra note 120 at 474.
167. 3 Kent, Commentaries 353-54 (1st ed. 1828).
168. See, e.g., Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. 78 (1888);
Dumont v. Kellogg, 29 Mich. 420 (1874); Canfield v. Andrew, 54 Vt. 1
(1882).
169. Embrey v. Owen, 6 Ex. 353 (1851).


__








AND THE LAW


combined with the abstract ability of the judicial officer to determine,
in view of all the facts, what is a, reasonable use. This approach to
determining reasonableness is primarily equitable as it seeks to do
justice between the parties on the basis of the evidence before it. In
doing so, a wide discretion is given to the court in framing a decree,
allowing an apportionment of the water between the parties, and
further permitting injunctions forbidding use, as well as the awarding
of damages. This means of determining reasonableness is highly
flexible and able to meet the needs of society as well as the needs of
riparian owners, as it recognizes that essentially what is a reasonable
use varies widely, not only between place and place within a state or
upon a single stream, but also from time to time at any given place
upon a stream.
The second means could well be termed an "external" means of
determining reasonableness, as it minimizes many of the facts existing
in the controversy between the parties and resorts instead to rigid ex-
ternal, pre-existing rules to arrive at a determination of what consti-
tutes a reasonable use. Courts employing this means simply determine
the nature of the uses being made by the parties, and then turn to an "a
priori" rule of law governing these particular uses, which dictates
whether they are preferred uses, merely reasonable uses, or unreason-
able uses. Thus the function of the judge employing the external means
becomes largely mechanical, since he merely has to discover the shape
of the peg with which he is dealing and then fit it into the proper hole.
Of course, from time to time a new situation may arise, compelling
the courts to add a new rule to their collection; but basically, there is
no great value judgment to be made in the great majority of the cases.
This method of ascertaining reasonableness is essentially static since
it is framed in a spirit which refuses to recognize that human institu-
tions or needs ever change, and therefore it is committed to the posi-
tion that rules of law once laid down should serve for all time. In all
of this there is the merit of certainty; a riparian owner can easily de-
termine whether a use of the water which he proposes to make has
legal approbation, and there will be no need to resort to protracted
litigation as there might well be if every conflict over the use of waters
could only be determinedthrough appeal to the courts.
A concrete example may serve to differentiate between these two
means of establishing reasonableness. Assume a situation in which
there is a conflict between two riparian owners as to the use of water;
the upper riparian is using a substantial amount of the water to irri-
gate a non-riparian tract owned by him, while the lower riparian is
seeking to force the upper riparian to discontinue the non-riparian use
in order that he, the lower riparian, may have a sufficient supply of
water for cooling purposes in his factory located upon the riparian







WATER RESOURCES


tract. If the internal means of establishing reasonableness is to be em-
ployed, the court will reach its decision upon the basis of all of the
factors in the case: the amount of water in the stream, whether de-
fendant's irrigation is excessive or wasteful in its use of the water,
whether either riparian has access to a suitable alternative source of
water, such as ground water, whether the plaintiff's use for cooling is
inefficient or wasteful, the general suitability of the area for farming
and manufacturing and the activities carried on by others in the vicinity,
and so on. The court may well determine that a just result lies some-
where between the claims of both parties and upon this basis award
damages or issue a decree founded upon an equitable apportionment of
the waters of the stream. On the other hand, if the external means of
establishing reasonableness is to be used, the court will merely look
to the nature of the uses involved: a non-riparian, agricultural use on
the one hand, as against a riparian, industrial use on the other hand.
Looking then to the "a prior" rules of law, the court sees that non-
riparian uses are per se unreasonable. On this basis the upper riparian
is enjoined or compelled to pay damages, being denied the right to fu-
ture irrigation of his non-riparian lands from the stream. If non-
riparian use is not found to be unreasonable, then the court will turn its
attention to ascertaining whether agricultural or industrial use is tn-
reasonable under the rules of law explicitly laid down; if neither of
these uses is unreasonable, then there is a question as to which use, if
either, is preferred. Finally, if the existing rules dictate no prefer-
ence between these uses, then, unless the court is willing to formulate
a new rule, the upper owner will prevail, simply because the water
flows upon his premises first, thereby allowing him to use it before it
reaches the lower riparian.
Can either means of determining reasonableness be described as
property, which the constitutions will safeguard against infringement?
This problem is central to any legislation which would modify the
minutiae of the riparian doctrine; for even if the legislation retained
the principles of exclusive use and of equal rights to the use of the
water which are presently enjoyed by the riparian owners, conceivably
it might nevertheless be held unconstitutional if a court were to view as
property any of the particular rules governing the use of the water.
Perhaps a further elucidation of the development of the reasonable use
doctrine will provide some additional basis upon which to answer this
question.
At the present time, it is extremely doubtful whether any court
adheres strictly to either means of determining reasonableness. Most
courts appear to resort to both the internal and external means to a
varying extent, relying upon some external rules, but at the same time
resorting in many instances to determining cases solely upon the merits








AND THE LAW 199

of the factual situation which is before them.
The Restatement of Torts is perhaps the strongest advocate in the
legal world today of employing a pure internal means for determining
reasonableness of use. The Restatement position is that ideally each
individual case should be weighed upon its merits and decided accord-
ingly. 170 In the language of the Restatement, the problem is simply
one of balancing the "utility of the use" against the "gravity of the
harm. "171 A number of factors are suggested as proper considera-
tions in ascertaining both the utility of the use172 and the gravity of the
harm. 173 Although the Restatement recognizes that whether a use is
of a riparian or non-riparian nature is in fact of importance in the
actual application of the reasonable use doctrine in most states, this is
attributed to what is described as a "crystallization" of the law of
reasonable use in those jurisdictions. 174 The position of the Restate-
ment is that "there is no reason in strict logic why an arbitrary dis-
tinction should be made between riparian uses and non-riparian uses
in respect to unreasonableness. "175
The courts have not evidenced any great inclination to adopt in
wholesale fashion the internal means of determining reasonableness.
Unquestionably, there exists a judicial reluctance to undertake the
enormous burden of deciding every water use controversy upon all of
the facts of the case and in participating in appellate review of such
decisions. The external means is much more easily administered.
Moreover, there has existed a substantial agreement among jurists
that domestic uses are to be accorded a preferred position over all
other uses and that pollution and use on non-riparian lands are per se
unreasonable. In spite of this, however, there have been some few
glimmerings of hope for advocates of a pure internal means of ascer-
taining what uses of water are reasonable. Thus, in the Vermont de-
cision of Lawrie v. Silsby, where non-riparian uses were held not to
be wholly unreasonable, but that their reasonableness should be ascer-
tained in the same manner as other uses under the riparian right, it
was said that "reasonable use is the only limit that can be set to the
exercise of these rights. "176 Some courts have also applied the

170. 4 Restatement, Torts 850-57 (1939).
171. Id. at 852.
172. Id. at 853. These factors include the "social value" of the use, the
nature of the watercourse and the customary uses made of it, the prac-
ticability of avoiding harm by a different means of use, and whether
the use is riparian or non-riparian.
173. Id. at 854. These factors include, in addition to those named in the
previous footnote, the extent of the harm involved.
174. Id. at 855.
175. Id. at 855, comment b.
176. 76 Vt. 240, 252, 56 Atl. 1106 (1904). See also Gillis y. Chase, 67 N.H.
161, 31 Atl. 18 (1891), in which a similar decision was given.








WATER RESOURCES


internal means to ascertain whether, in view of all the facts of the case,
pollution of a watercourse was reasonable. 177 Similarly, although
uses for stock watering have often been held to be included within the
preferred domestic uses, it was said in a case in which a downstream
user for stock-watering purposes sought to compel upper owners to
allow a suitable supply of water flow down the stream:

Obviously the watering of cattle is a reasonable beneficial use,
and if they can only be watered from the surface stream with-
out unreasonable expenditure, respondent may be entitled to
such an injunction. On the other hand, it would be an unrea-
sonable use to require the flow of the surface stream if such
cattle can reasonably be watered at reasonable expense by some
artificial means.178

In addition, there are numerous decisions regarding agricultural, in-
dustrial, and water power uses which have resorted to the procedure
of considering all of the facts of the case in order to determine reason-
ableness. 179 In general, since these cases fall in an area in which
there are few external rules, a determination of water use contro-
versies upon the basis of what constitutes a reasonable use between the
parties to the cause is the ordinary practice of the courts; therefore,
the application of the internal means in cases of this nature excites
little notice.
External rules of reasonableness under the reasonable use doctrine
have fallen into several well-defined categories: (1) reasonable uses,
(2) reasonable uses which are to be accorded preference over other
reasonable uses, and (3) uses which are per se unreasonable.
The courts of the various jurisdictions have tended to place within
the first category the more common uses of water, such as uses for
irrigation, power, and industrial purposes. In the initial instance, the
status of a use of water for a particular purpose as being reasonable
is determined by a judicial finding of fact based upon some or all of the
circumstances which surround a particular controversy before the
court. It may be held, for example, that irrigation is a reasonable
use. The tendency in subsequent decisions within the same jurisdic-
tion has been to declare that irrigation is a reasonable use, based upon
the authority of the first decision, without any further investigation of

177. Barnard v. Sherley, 135 Ind. 547, 34 N.E. 600, 35 N.E. 117 (1893);
Attorney General v. City of. Grand Rapids, 175 Mich. 503, 141 N.W.
890 (1913).
178. Rancho Santa Margarita v. Vail, 11 Cal. 2d 501, 561, 81 P. 2d 533
(1938).
179. Cf. the opinion of Chief Justice Shaw in Elliot v. Fitchburg R. Co.,
10 Cush. 191 (Mass. 1852).








AND THE LAW


the particular facts involved in the later controversies. 180 Where a
development of this nature has occurred, the question of what consti-
tutes a reasonable purpose of use is foreclosed, and the fact-finder is
relegated to determining whether the manner of the use is reasonable,
or, in other words, whether the particular use of the water is wasteful.
Although the courts in many states have been quick to declare that uses
for particular purposes are reasonable, they have been hesitant to fix
upon any hard and fast rules as to what constitutes a reasonable man-
ner of use. This, apparently, is because of the impossibility of making
rules to cover the innumerable ways in which water can be wasted or
otherwise misused while being put to a useful and reasonable purpose.
It is unquestionably easier for a court to determine that within the state
of X irrigation of lands for agricultural purposes is a reasonable use
than it is for the same court to lay down a rule that it is unreasonable
for a riparian to irrigate his lands in such a manner whereby more
than Y gallons per year are lost from each mile of his irrigation
ditches through evaporation and seepage. Generally, the courts have
resisted any attempts to set rigid rules as to what constitutes a reason-
able or an unreasonable manner of water use within the riparian doc-
trine181 although, as we shall see, with reference to some manners of
use there has come to be a nearly unanimous practice of establishing
rigid rules.
Domestic use is easily the most important-and in many jurisdic-
tions the only-water use which is not merely reasonable in its nature,
but furthermore is given preference over all other uses of water. In
effect, domestic uses of water are removed altogether from the test
of reasonable use and are given an absolute priority. It is very much
in consonance with human reason and experience to accord a prede-
termined preference to uses of water which supply the natural needs
of human beings. The courts both in Englandl82 and the United
States183 have recognized for well over a century that domestic use of
watercourses is by far the most important. Generally, human

180. As noted by Wiel, "There is a tendency in the common-law States of
the West to ignore all uses but irrigation, and to disregard any right
in a riparian proprietor against other riparian owners, where his land
is incapable of being irrigated." 1 Wiel, Water Rights 743. See also
Jones v. Conn, 39 Ore. 30, 36, 64 Pac. 855, 65 Pac. 1068 (1901).
181. Cf. Herminghaus v. Southern California Edison Co., supra note 77 at
116-20, where it was held to be an improper exercise of legislative
power to determine that it was unreasonable to use more than two and
one-half acre feet of water per acre in irrigating lands.
182. Miner v. Gilmour, 12 Moo. P.C. 131, 156 (1858).
183. Perkins v. Dow, supra note 163; Wadsworth v. Tillotson, 15 Conn. 366
(1843); Evans v. Merriweather, 4 Ill. (3 Scam.) 492 (1842).








WATER RESOURCES


consumption and household use are embraced within the term "domestic
use," although from time to time there have been indications that cer-
tain auxiliary uses such as watering a small garden or supplying the
needs of livestock should also be included within this concept. 184 The
term "domestic use" itself has not always been employed to denote
uses of water which satisfy primary human needs; oftentimes, especial-
ly in the last century, this use of water was described as a "natural"
or "ordinary" use, as distinguished from an "artificial" or "extraordi-
nary" use of water for other purposes. 185
It is within the third category, that of uses which are predeter-
mined to be unreasonable per se, that the riparian doctrine has experi-
enced the most development. In a substantial number of states, three
uses have been determined at some time to be unreasonable per se:
pollution, non-riparian use, and municipal use.
At the present day, pollution of running water is almost wholly the
subject of statutory regulation; under this legislation the attempt is
made to keep existing polluting uses of the water within reasonable
limits and further to prohibit additional pollution. Before the imposi-
tion of statutory control, although some jurisdictions held pollution of
rivers and streams to be governed by the reasonable use standard, 186.
many others indicated that all pollution was wrongful. 187 Unquestion-
ably, the, very nature of pollution tends to make both the courts and the
community at large look upon it with extreme disfavor. The addition
of a small amount of noxious polluting matter to the water by one
riparian may render the water unusable by all lower riparians. This
fact has led many courts and legislatures to determine that there can
be no such thing as reasonable pollution, and that therefore it all must
be wrongful. It should also be noted that while some pollution of water-
courses results from a purposeful use of the stream to carry away
sewage and industrial wastes in instances in which no other practicable
means of disposal exists, on the other hand a great amount of pollution
is caused through carelessly allowing oil, sawdust, acids, and other
polluting matter to seep or fall into the stream or through using a
watercourse as a sewer to carry away wastes although other methods
of disposal are practicable and perhaps also readily available.
Quite generally, it has been held that non-riparian use is wrongful,
at least insofar as it interferes with a use being made on riparian

184. See 1 Wiel, Water Rights 740.
185. See, e.g., Gould, Waters 205-07 (3d ed. 1900)..
186. See Barnard v. Sherley, supra note 177; Attorney General v. City of
Grand Rapids, supra note 177.
187. Wheatley v. Chrisman, supra note 151. See Agnor, "Riparian Rights
in the Southeastern States," 5 S.C.L.Q. 141, 144 (1952).








AND THE LAW


lands. 188 Within the term "non-riparian" use can be comprehended
three separate kinds of use: a use by a riparian owner upon his own
non-riparian lands; the supplying of non-riparians by a riparian own-
er; and the permission by a riparian owner to allow non-riparians to
have free access to the watercourse in order to take water for use
elsewhere. In a sense, all three constitute a use by the riparian own-
er since they are either made directly by him or by others through his
authority; all are treated substantially alike by the courts.
A distinction must be drawn between a diversion of a watercourse
and a use made on non-riparian lands, both of which are said to be
wrongful. A diversion is the turning aside of all or a substantial part
of the water of a stream from the customary channel into a new chan-
nel so that persons who formerly made uses of the water along the old
channel are deprived of the water. It is this deprivation of the water
to which lower users would otherwise be entitled which forms the gist
of the wrong involved in a diversion. Therefore, insofar as the water
is diverted from its customary channel on one person's land and
promptly returned to the channel before it runs onto the land of
another, the diversion is permitted since no one is deprived of any of
the flow. The rule against diversion which is at least six hundred
years old in Anglo-American law, 18 has its genesis in the right of all
persons to the continued flow of a watercourse: "Aqua currit et debet
currere ut currere solebat." By this rule, a right to diminish a water-
course could be gained only through twenty years diminution, and not
otherwise. Since the primary purpose of water use in this early time,
other than for domestic uses which consumed very little, was for power
purposes, diversion to a mill located away from the natural channel
was in fact the turning aside of a stream from its ordinary course.
Once severed from the original course, in many instances the water
was not returned there, but allowed to flow into a wholly different
watercourse. As the taking of this water disturbed the flow to other
persons, it was held to be wrongful if they chose to maintain an action;
otherwise at the end of twenty years a right to divert the water was
gained by the diverter. There was no element of reasonableness or
reasonable use applied; a diversion constituted a diminution of the flow
of the stream and was therefore wrongful. Although with the develop-
ment of the reasonable use doctrine there was no longer a need to re-
tain an explicit rule against diversion, since a diversion would almost
invariably be declared unreasonable by the courts if it worked an injury
to lower riparians, the rule has been retained in the law of water use,

188. See, e.g., Williams v. Wadsworth, 51 Conn. 277 (1883).
189. See Anonymous, Y. B. 12 Edw. III, Horwood's ed. 464 (1339), as set
out in Bingham, Cases on Water Rights 2 (1916).








WATER RESOURCES


a vestige of an age long past. 190 At the present day, for example, it
is provided in the Alabama code that: "Any person, diverting any
stream, whether navigable or not, from its natural channel, is liable
to any party aggrieved for the damages sustained. "191
The rule against non-riparian use, on the other hand, seems to
have developed out of the reasonable use doctrine. In the English case
of Swindon Waterworks Co. v. Wilts and Berks Canal Navigation Co.,192
decided in 1875, to which many of the succeeding decisions proscribing
non-riparian use can be traced, it is clear that the court did not believe
itself to be laying down a rigid rule to be applied in all cases when it
enjoined as unreasonable the taking of large quantities of water from a
stream in order to supply a town a sizable distance away. This taking
of the water was said by Lord Chancellor Cairns to be as serious as if
the defendant "had changed the entire water-shed of the country, and in
place of allowing the stream to flow towards the south, had altered it
near its source, so as to make it flow towards the north. "193 In short,
the taking of water from the stream almost completely deprived the
lower riparians of the flow of the stream. In virtually every case a
taking of this magnitude would be declared to be unreasonable; one can
hardly gather from this fact that the court felt itself to be laying down
any absolute rule against non-riparian use. Nor in its decree did the
court lay down that non-riparian use in general was unreasonable; it
merely declared that this particular taking, to the amount which de-
fendant had taken the water, was not within the scope of an ordinary or
reasonable use. Nevertheless, subsequent English194 and American195
decisions have cited the Swindon case as laying down an ironbound rule
to the effect that non-riparian use is always wrongful.
In the United States, the development has largely been the same;
what the courts originally determined as an unreasonable use in a par-
ticular case or cases seems to have been later turned into a concrete
prohibition. 196 This entire development took place over a very few
190. See: Chestatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 118
Ga. 255, 45 S.E. 267 (1903), where it was said that "the diversion of
the water would be an injury to the petitioner's property and property
rights."
191. Ala. Code tit. 38, 108 (1940).
192. (1875) L.R. 7 H. L. 697.
193. Id. at 704-05.
194. McCartney v. Londonderry and L.S.R. Co., Ltd., [1904] A.C. 301;
Owen v. Davies, [1874] W.N. 175. Cf. Roberts v. Gwyrfai District
Council, [1899] 1 Ch. 583, [1899] 2 Ch. 608.
195. Williams v. Wadsworth, supra note 188 at 292; Town of Gordonsville
v. Zinn, 129 Va. 542, 558, 106 S.E. 508 (1921).
196. See, e.g., Stein v. Burden, 24 Ala. 130, 146-47 (1854), where it was
said that an abstraction of the water of a stream for use three to five
miles away, and to the injury of other riparian proprietors, "would be
unreasonable in itself."








AND THE LAW


years time during the last quarter of the nineteenth century; by 1893 it
was asserted that "The appropriation and diversion of the waters of a
natural stream, for the benefit of a tract of land not situated upon one
or both of its banks, are wholly unknown to the common law. "197
There is much evidence to show that the courts of this period treated
a non-riparian use as being essentially a diversion of the water of the
stream, and for this reason held it to be wrongful without any explora-
tion of the question of reasonableness. For example, in the 1883 Con-
necticut decision of Williams v. Wadsworth, 198 the defendant argued
that a non-riparian use should be tested by the standard of reasonable-
ness; the court rejected the claim, saying that defendant's contention
put "in jeopardy the well established rule that the right of riparian land
to water for man and beast shall yield to nothing except like needs upon
like land above. "199 The court very evidently misconstrued the argu-
ment which the defendant had made, failing to perceive that the reason-
able use test been extended to non-riparian'use, the domestic uses of
lower riparians would not have been impaired, since in any event they
would have prevailed over the non-riparian use. The courts in the
eastern states, by holding that non-riparian use is per se wrongful,
were committing one of two errors: they were either harking back to
the prior age when any diversion of the water from the stream had been
wrongful or were placing too great reliance upon the decisions of the
western courts. The danger in too great reliance upon the western de-
cisions has already been mentioned; many western courts in limiting
the use of water by riparian owners to the riparian tract were in effect
promoting the position of the prior appropriators who had the right to
use the water anywhere. This limitation was one of the basic means
of restricting riparian rights which were felt to be unsuited to western
conditions, but which were in many situations superior to the rights of
the prior appropriators. Clearly, there was no need in the eastern
states to resort to this limitation since there were no persons with
proper appropriation rights. In treating non-riparian use as tanta-
mount to a diversion of the water, the courts were overlooking a very
important historical distinction, as the basis of diversion as a wrongful
act had been the abstraction of a quantity of water which would have
otherwise flowed on to be used by other riparian owners. In essence,
however, historically it was as wrongful to diminish the flow of the

197. Pomeroy, Water Rights 147 (1893).
198. Supra note 188.
199. Id. at 305. During and after this period a non-riparian use was com-
monly described as a "diversion" of the water. Stein v. Burden, supra
note 196; Gould v. Stafford, 77 Cal. 66, 18 Pac. 879 (1888); Kelly v.
Nagle, 150 Md. 125, 132 Atl. 587 (1926); Lord v. Meadville Water Co.,
135 Pa. 122, 19 Atl. 1007 (1890); Town of Gordonsville v. Zinn, supra
note 195.


1









206 WATER RESOURCES

the stream by a use on the riparian tract of land as it was elsewhere.
Thus, in the 1848 Pennsylvania decision of Miller v. Miller, 200 the
use of water by an upper riparian for the purpose of irrigating his land
was treated as a diversion because it reduced the quantity of water in
the stream. To hold, therefore, that it was a diversion when the water
was taken off the riparian land for consumptive use, but not a diversion
when it was consumed on the riparian land and not returned to the
watercourse, was patently a deviation from the common law rule of
diversion which the courts were allegedly espousing. If a reasonable
use approach was to be employed in one place, it should be consistently
employed in another.
There may well have been, of course, the fear upon the part of the
eastern courts that if non-riparian use were permitted, the supply of
water in the stream might not prove sufficient for all purposes, and
for this reason some riparians would be denied a use of the water, or,
at best, litigation over water uses would be increased. Arguments to
the effect that the right to the use of the water were incidents of the
riparian land, or that only riparians had access to the watercourse and
therefore only they should use it, were developed largely to allay the
fear of the courts that non-riparian use, if allowed, would prove unjust
and would end by defeating the basic principle of equality which was
said to exist between riparian owners. That these arguments had little
logical force if the riparian owner actively permitted others to use the
water, was unimportant in view of the fact that the arguments were
authoritatively voiced by the courts themselves. Unfortunately, the
virtues of the doctrine of reasonable use as a true measure of the
rights of riparian owners was ignored. But interestingly enough, in
spite of the reluctance of the courts to allow riparians to take the water
off of the riparian land, nevertheless in the winter the very same
riparian owners were allowed to engage in a very flourishing business
of cutting the ice which formed upon the water and selling it to non-
riparians. 201
The rule of the riparian doctrine prohibiting the use of water upon
non-riparian lands has served to confuse the courts and to lead them
to some questionable decisions. 202 Many courts, on the other hand,
have recognized the difficulty in justifying an absolute rule against
non-riparian use and have sought to avoid its full effect. Some states
have refused to recognize the rule. 203 Others, in a much larger

200. 9 Pa. 74 (1848).
201. Wright v. Woodcock, 86 Me. 113, 29 Atl. 953 (1893). Cf. Gehlen Bros.
v. Knorr, 101 Iowa 700, 70 N.W. 757 (1897).
202. See Hendrix v. Roberts Marble Co., 175 Ga. 389, 165 S.E. 223 (1932);
Town of Gordonsville v. Zinn, supra note 195.
203. See Gillis v. Chase, supra note 176; Lawrie v. Silsby, supra note 176.








AND THE LAW


number, will only give relief against a non-riparian use when it actual-
ly interferes with a reasonable use being made by a riparian owner. 204
Within the present decade the Supreme -Judicial Court of Maine, while
holding that a non-riparian use is not a reasonable use, 205 nevertheless
indicated that an unreasonable use of a stream by an upper riparian
owner which interfered with a non-riparian use by a lower riparian
owner might be actionable in some circumstances. 206
Municipal use of the water of rivers and streams to furnish water
to homes and business establishments within the municipality has quite
generally been accorded an inferior treatment by the courts, being de-
clared wrongful at least to the extent to which it interferes with uses
being made by riparian owners. The reason which the courts have
generally assigned to this rule against municipal use is'that the water
is being used on non-riparian lands. 207 This is invariably true be-
cause either the entire town is located away from the stream208 or
most of the various lots within the town to which water is being sup-
plied are not adjacent to the stream. 209
A substantial argument may be advanced against treating a mu-
nicipality as a riparian owner and allowing it to supply water to all of
its inhabitants; a legal rule of this nature would in many cases permit
the municipality to exhaust.the watercourse and deprive downstream
riparian owners of the use of the water. 210 Doubtless it has been this
fear that individual riparian owners would be made to suffer severely
which has prompted the courts to relegate municipal use to a subordi-
nate position. Denominating municipal use as non-riparian has not only
provided a suitable category in which to place it, but has also

204. At the present day, the greater number of eastern states which have
passed upon this question seem to have taken this position. See, e.g.,
Stratton v. Mt. Hermon Boys' School, 216 Mass. 83, 103 N. E. 87
(1913).
205. Kennebunk, Kennebunkport and Wells Water Dist. v. Maine Turnpike
Authority, 145 Me. 35, 71 A. 2d 520 (1950); Kennebunk, Kennebunkport
and Wells Water Dist. v. Maine Turnpike Authority, 147 Me. 149, 84
A. 2d 433 (1951).
206. Kennebunk, Kennebunkport and Wells Water Dist. v. Maine Turnpike
Authority, 147 Me. 149, 84 A. 2d 433 (1951).
207. See Anno., 141 A.L.R. 639 (1942).
208. Stein v. Burden, supra note 196; Gardner v. Village of Newburgh,
supra note 100.
209. Hartzell v. Village of Hamburg, 155 Misc. 345, 279 N.Y.S. 650 (1935),
affirmed sub. nom. Caudwell v. Village of Hamburg, 248 App. Div. 667,
289 N.Y.S. 910 (1936).
210. See City of Canton v. Shock, 66 Ohio St. 19, 63 N.E. 600 (1902), in
which the city was treated as a riparian owner in its use of water for
the domestic purposes of its inhabitants; the downstream riparians were
wholly subordinated to this upstream use.








WATER RESOURCES


strengthened the rule against non-riparian use. Persons advocating re-
peal of the rule against non-riparian use are often reminded that to
abolish the rule would leave the riparian owner defenseless against the
depredations of municipalities.
Moreover, there seems to run through the cases dealing with mu-
nicipal use a strange, half-formed notion that since a municipality is a
public organization, therefore when a municipality abstracts water
from a stream for the use of its inhabitants there is a taking for public
use and compensation must be paid. 211 By this view, even though a
municipality owned riparian land, it would have no right to use of the
water. Although this theory overlooks the basic distinction between a
legal taking for public use, by which the governmental entity obtains
larger rights in property than it previously had possessed, and a "tak-
ing" of water for municipal use, which if lawful is simply the exercise
of a right which already exists in the municipality, it appears to have
a degree of popular support in the attitudes of riparian owners.
In the final analysis, these rigid rules of water use which com-
prise a part of the riparian doctrine have for their sole purpose the
protection of the equal right to the use of water which is held by every
riparian owner. Without them, it is felt that particular users of the
water would be able to make virtually unlimited uses, depleting the
watercourses so as to deprive others of any opportunity to exercise
their rights. Some of these rules remain as vestiges of water use
doctrines of the past; others have been incorporated into the riparian
doctrine to serve a specific purpose. All, however, are merely means
whereby adjustments may be made in the uses of water which each
riparian is permitted to make, and have for their end the protection of
the fundamental equality which exists at the basis of the right to use
water held by all persons holding a possessory interest in lands adja-
cent to a watercourse.
C. Conclusion
In the foregoing pages we have seen that the right of every person
holding a possessory interest in land to the use of water flowing upon
or adjacent to that land is a property right. This conclusion is com-
pelled both by the express language of judicial decisions and by an
analysis of the decisions themselves. It is safe to say, therefore, that
this right to the use of water is entitled to the protection of the consti-
tutional safeguards of property and cannot be taken without due process
of law. As property, however, it is not absolute, but is subject to
legislative and judicial modification, to regulation through the exercise
of the police power, and to other paramount powers of government.

211. Cf. Burden v. Stein, 27 Ala. 104 (1855).








AND THE LAW


Although the simple right to the use of water may be a property
right, there remains the substantial problem of whether the elaborate
legal doctrine which the courts have formulated to govern the enjoy-
ment of the usufructuary right can itself be described as property.
Almost without exception, the courts have given very little indication
of whether these particularized rules of use can be denominated
"property." In this instance, however, the very fact of judicial silence
seems to be evidence that they are not property. The solution to the
problem lies in examining the purpose of the rules themselves.
If there existed an unlimited amount of water available for use, so
that the enjoyment of a use by one person could never interfere with the
enjoyment by another, it would not be necessary for the lawmaker to do
more than recognize an unlimited right of use. Unfortunately, such an
ideal state of affairs does not exist. Persons using water from streams
must take the water from a common source which is shared with other
persons. It is not adequate merely to allow each to have an unlimited
right to use the water; specific rules and limitations must be created
in order that water users may so order their affairs as to avoid con-
flicts of use, and for the purpose of justly reconciling whatever dis-
putes do arise. The elementary right to use the water of a single
source may be held by each of a great number of persons; in the eyes
of the law the right of each person who has lawful access to the supply
of water is equal to every other right of the same kind. The goal in
making rules to govern water use is therefore twofold: enabling the
water to be put to its maximum beneficial use and insuring that the
equal right of each person in the use of the water is protected. All
systems of water use in the Anglo-American world have as their theo-
retical starting-place these basic aims.
The doctrine of reasonable use as well as the particular means of
determining reasonableness employed within the doctrine are merely
rules of this nature. As such, they are not property in themselves;
they are merely judicially-adopted guides for ascertaining the extent
of the usufructuary right of each person who has access to a water-
course. These rules are created for the purpose of safeguarding
property and do not in themselves rise to the status of property merely
by virtue of their adoption.
It is true, of course, that although these rules relating to the right
to the use of water are not property, they are not altogether colorless
in their effect upon property. For this reason, they cannot be freely
abolished either in whole or in part, without at least raising the prob-
lem of whether the abolition impairs property in that the remaining
rules of use fail to give equal or just protection to the usufructuary
right. For example, to do away with all rules of law relating to water
use and leave merely a bare right to use the water, allowing anyone








WATER RESOURCES


who gains access to the water to use as much as he desires in any
fashion, would have the effect of impairing the equal right to the use of
the water now existing. Furthermore, the addition of new rules may
infringe upon the right to the use of the water if their effect is to dis-
turb the fundamental equality of all persons possessing this usufructuary
right.
The problem in any event is whether the removal of old rules of
use or the addition of new ones constitute a reasonable means of attain-
ing a proper end. Among the ends which are unquestionably within the
bounds of propriety are those of protecting individual water right hold-
ers, through insuring their equality of status or by making possible a
greater beneficial use of the water, and of protecting the general public,
through health and safety measures or by enabling a more optimum use
to be made of the community's natural resources. What is a reasonable
means of attaining these ends is, in the firstinstance, a question for
the lawmaker to decide; subsequently, this determination will be re-
viewed both by the public in the arena of practical affairs and by the
lawmaker on numerous occasions.
It is clear, therefore, that if a doctrine more protective of the
aims of the law in respect to water use than that of reasonable use
could be formulated, no private property would be infringed if the new
doctrine were to be adopted in the place of reasonable use. The ease
with which a change of this nature could be made is to a great extent
enhanced by the fact that under the riparian doctrine the only property
in the use of the water which could be described as "vested" is the sim-
ple right of use itself. The riparian doctrine has never recognized an
unqualified right in any person to the use of a specified quantity of
water at a given time for a particular purpose; the right has always
been denominated as simply usufructuary in its nature and dependent
upon the peculiar surrounding circumstances which might exist at any
given time. The same is not true, for example, of the western states
in which prior appropriation rights to water have been allowed to be
acquired by various persons. To adopt a new standard of water use in
the western states, no matter how much more suited to the needs of
water users and society it might be than the doctrine of prior appro-
priation, would be more difficult than in the eastern states since the
effect upon recognized property rights would be more substantial.
In the same manner, any state might determine that within the
riparian doctrine the single standard of reasonableness would apply in
regard to all uses of water, thereby abolishing the rules that certain
uses are per se unreasonable. No property would thereby be infringed,
for the simple reason that the legal effect of the over-all standard of
reasonableness would be exactly the same as the rule of certain uses
as being unreasonable per se. For example, the theoretical genesis










of the rule that non-riparian use is unreasonable must lie in the premise
that the lone factor of non-riparian use must overbalance any other fac-
tors in the case. It is questionable whether this premise is either legal-
ly or factually sound. But in any event, the rule is nothing more than
what has been termed a "conclusive presumption" of unreasonableness.
Whether this rule is a rule of evidence, as it might seem on first
glance, or a rule of law, as Wigmore and others have insisted, it is
clear that the legislature may change it provided the effect of the change
is not so unequal in its impact upon affected persons that it is unreason-
able. 212 Thus it would seem that the legislature of any state could de-
termine that under the riparian doctrine reasonableness of use is to be
the guiding standard in every case and is to be ascertained through a
weighing of all of the facts and circumstances which pertain to the con-
troversy. Under such a rule, the element of non-riparian use would be
given some weight by the finders of fact, but not necessarily a conclu-
sive amount; whether the use was made away from the watercourse
would be simply one additional factor to be considered. Municipal use
could be treated in a like manner, simply on the basis of its reason-
ableness.
Summing up, it can be stated with assurance that the property in-
terest in water use under the riparian doctrine is simply the right to
an equal use held by every person who can gain lawful access to a
watercourse. Rules regulating the enjoyment of this usufructuary
right are necessary both to insure that the water can be used in a bene-
ficial manner and to protect the equality of right of each person. As
long as these goals are pursued in a reasonable and just manner, and
the effect is not destructive of the fundamental equality, legal rules
governing use may be adopted, modified, or abolished in consonance
with constitutional safeguards of due process of law and equal protec-
tion of the law.

V. RECOGNIZED LIMITATIONS UPON THE RIPARIAN RIGHT
Practicability and the common good, the twofold restriction upon
all private property, substantially affect the riparian right as recog-
nized by the American courts. The interest of the riparian owner in
the waters of the streams adjacent to his land is not absolute, but
subject to a number of acknowledged limitations in favor of both the
individual members of the public and the state as the representative
of the public interest. These limitations have a dual aspect; on the

212. Cf. Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 31 S. Ct.
136 (1910); Hawkins v. Bleakly, 243 U.S. 210, 37 S. Ct. 255 (1917);
James-Dickinson Farm Mortgage Co. v. Harry, 273 U.S. 119, 47 S. Ct.
308 (1927).


211


AND THE LAW








WATER RESOURCES


one hand they consist of restrictions which the law has already recog-
nized, and on the other hand they also include the power of the lawmak-
ing organs to impose additional restrictions in the future, as conditions
may require. This section is concerned both with a brief enumeration
of those limitations in favor of the public and of the state which are
recognized at the present time and with the power to add new restric-
tions. The ability to modify the legal basis of the riparian doctrine,
inherent in any sovereign power, is considered in a subsequent section.
The limitations discussed in this section indicate the law's recog-
nition of the overriding public interest in watercourses. These limi-
tations, it should be noted, have been modified and enlarged upon from
time to time as the needs of society have changed through urbanization,
industrialization, and the immense population growth in the United
States. In large measure, those recognized limitations which favor
the sovereign pertain to the federal government rather than to the
states; this is due primarily to the constitutional division of powers
between the states and the national government, which placed in the
hands of Congress extensive control over navigation. Certainly this
should not be taken to mean that the states have substantially less
power over water use and development than does the federal govern-
ment. It is simply the natural outgrowth of the fact that the states
have not taken the lead in this field, having in the past been content to
depend largely upon time-honored, although perhaps slightly stagnant,
rules of water law. In the decades to come this trend will have to be
abandoned, and the states must acquire a dynamic outlook upon water
rights. If they do not, unquestionably the federal government's powers
over this vital natural resource will continue to grow, and the states
will, in this regard, become largely vestigial organisms.
A. Limitations in Respect to Members of the Public
From the earliest times the interest of the public at large has been
recognized in those watercourses which are susceptible of public travel
or use for related activities. Since the dawn of civilization, rivers
have been among the most accessible routes for human travel. Civil-
ized cultures were largely born along the banks of rivers. The taking
of fish from rivers and lakes has provided over the ages an important
source of food and also, more recently, a primary recreational pas-
time. The recognition by the law of the public interest in traveling
upon and taking fish from accessible waterways is not a recent thing;
reference to this public right is found in the earliest common law
writers. 213 In the United States the determination of the relative

213. Bracton, De Legibus et Consuetudinibus Angliae 1.12.6 (Twiss ed.
1878).


212








AND THE LAW


rights of riparians and members of the public in regard to the use of a
state's waterways is a matter for each state to decide in the light of its
view of the public interest in this natural resource. 214
1. Navigation
A public right to travel upon watercourses susceptible of naviga-
tion is an important attribute of commerce and has long been recog-
nized in the western world. Originally the waterways of the United
States provided the main routes of trade and travel for the early in-
habitants. The importance of public navigation was recognized by
Article IV of the Northwest Ordinance of 1787:

The navigable waters leading into the Mississippi and St. Lawr-
ence, and the carrying places between the same, shall be com-
mon highways, and forever free, as well to the inhabitants of
the said territory, as to the citizens of the United States, and
those of any other States that may be admitted into the confed-
eracy, without any tax, impost, or duty therefor.215

While at first a public easement of travel upon all navigable waterways
was essential to life itself in the United States, at a later time naviga-
tion became largely a matter of commercial importance and need.
More recently, to the commercial aspects of navigation has been added
in the United States a recognized need for the use of streams for recre-
ational purposes.
Under the common law of England, rivers which were in fact
capable of use for navigation by members of the public were deemed to
be public waters and open to public navigation. 216 The same distinction
was drawn by the early civil law. 217 American jurisdictions have
adopted this doctrine of public right and universally maintain that
streams and lakes which are navigable in fact are subject to the ease-
ment of public navigation. 218 Unquestionably it was the existence of
this public interest in waterways which gave rise to the power of the
federal government to control navigable waters under the Commerce
Clause of the United States Constitution. 219

214. See Barney v. Keokuk, 94 U.S. 324 (1877).
215. Act of July 13, 1787; note, 1 Stat. 51, 52 (1789).
216. Orr Ewing v. Colquhoun (1877), 2 App. Cas. 839. See Coulson and
Forbes, Waters and Land Drainage 505 et seq. (6th ed. 1952).
217. Code Napoleon, Art. 538 (1804).
218. See, e.g., The Daniel Ball, 77 U.S. (10 Wall.) 667 (1871); Moore v.
Sanborne, 2 Mich. 519 (1853); State v. Narrows Island Club, 100 N.C.
477, 5 S.E. 411 (1888); Fulmer v. Williams, 122 Pa. 191, 15 Atl. 726
(1888).
219. See text infra for a discussion of the federal power.








WATER RESOURCES


The public right of navigation upon rivers navigable in fact does
not depend upon public ownership of the bed of the waterways, nor upon
whether the tide ebbs and flows within the water. 220 Although the bed
of navigable waters may have passed into private hands through the op-
eration of state law, nevertheless the rights of such private persons in
these beds are clearly subordinate to the rights of members of the
public to use the waters for navigation;221 any interference by the own-
ers of the bed with public navigation has repeatedly been held to be
wrongful. 222 This public right does not render the ownership of the
bed of navigable waters entirely worthless, however, since fairly wide
latitude is allowed persons owning the bed to erect structures there-
upon which do not interfere with the exercise of navigation by members
of the public. 223
In determining what waters are navigable, the courts take into ac-
count "the purpose for which the public requires the use of its streams,"
rather than "any particular mode of use. "224 Therefore, it is not ab-
solutely necessary that a watercourse, in order to be subject to the
public easement of navigability, be traversable by vessels of a com-
mercial nature. If streams can be used for the purpose of floating logs
or timber to market, whether the year around or only in certain sea-
sons, they may be held navigable to that extent. 225 In short, it is the

220. See cases cited in note 218, supra.
221. In this regard, it has been said that when the states came into the
Union and took title to the beds of navigable waters, they held such
title impressed with a trust in favor of the public for navigation and
associated activities. When this title passed out of the states into the
hands of private riparians, it remained impressed with the trust, and
hence the subordinate position of the riparian owner where navigation
rights are concerned. Collins v. Gerhardt, 237 Mich. 38, 211 N.W.
115 (1926).
222. See, e.g., Economy Light & Power Co. v. United States, 256 U.S. 113,
41 S. Ct. 409 (1921); Barney v. Keokuk, supra note 214; David M.
Swain & Son v. Chicago, B. & Q.R. Co., 252 Ill. 622, 97 N.E. 247
(1911); Lepire v. Klenk, 169 Mich. 243, 134 N.W. 1119 (1912); Viebahn
v. Board of County Commissioners, 96 Minn. 276, 104 N.W. 1089
(1905); State v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884
(1909); Stevens Point Boom Co. v. Reilly, 46 Wis. 237, 49 N.W. 978
(1879).
223. In Yates v. Milwaukee, supra note 88, for example, it was held that
restrictions by governmental agencies upon the construction of wharves
upon privately-owned beds of navigable waters must be reasonable, and
will not be upheld if they bear no relation to the actual protection of
public navigation. See also Kretzschmar v. Meehan, 74 Minn. 211, 77
N.W. 41 (1898).
224. Per Martin, J., in Moore v. Sanborne, supra note 218 at 525.
225. Ibid. See also The Montello, 87 U.S. (20 Wall.) 430 (1874); Lewis v.
Coffee County, 77 Ala. 190 (1884); Thunder Bay River Booming Co. v.








AND THE LAW 215

capacity for beneficial use by the public which determines whether any
waterway is to be considered "navigable in fact," and actual use by the
public may be considered to be the best gauge of such capacity,226 al-
though the fact that the public no longer uses a particular waterway for
navigation or that the use is commercially unimportant will not rule
out the status of that waterway as navigable. 227
The public right of navigation, which is described as an "easement,"
is in the main restricted to the right of passage upon waterways which
are determined to be navigable. Thus a member of the public is not
entitled to go upon privately owned lands adjoining a watercourse in
order to gain access to the water for the enjoyment of this right228 or
to use such adjoining land for a landing place for logs or vessels. 229
One exercising the public right of navigation may, however, moor his
vessel in the stream for a reasonable length of time without regard to
whether the riparian or the state is the owner of the land comprising
the bed of the stream. 230
The limitation upon the riparian right in favor of members of the
public for the purpose of navigation is not static in its nature, as
though molded at one point in history in a form in which it must remain
for all time. Instead, this limitation is highly flexible in character and
has been judicially modified from time to time to conform to the public
interest and the general need. In recent years the courts have en-
larged the scope of the public right so as to meet the modified public
demands of the present era. The United States Supreme Court has
(Footnote continued)
Speechly, 31 Mich. 336 (1875); Olson v. Merrill, 42 Wis. 203 (1877).
In Collins v. Gerhardt, supra note 221, it was held that Michigan
streams capable of floating logs were subject to the general public
right of navigation, in spite of the fact that the lumbering industry had
become almost nonexistent, and that the effect of this holding would
merely be to allow members of the public to fish where otherwise they
would have no right to do so.
226. See The Daniel Ball, supra note 218 at 563.
227. See United States v. Appalachian Electric Power Co., 311 U.S. 377,
61 S. Ct. 291 (1940); United States v. Utah, 283 U.S. 64, 51 S. Ct. 438
(1931); Economy Light & Power Co. v. United States, supra note 222;
Olive v. State, supra note 93; Reelfoot Lake Case (State v. West Ten-
nessee Land Co.), 127 Tenn. 575, 158 S.W. 746 (1913). Cf. Rhodes v.
Otis, 33 Ala. 578 (1859), where it was suggested that prior nonuse by
the public is a determining factor.
228. Cf. New England Trout and Salmon Club v. Mather, 68 Vt. 338, 349,
35 Atl. 323 (1895).
229. See, e.g., Bellaire v. Worcester Lumber Co., 177 Mich. 222, 143
N.W. 63 (1913) (logs); Bainbridge v. Sherlock, 29 Ind. 364 (1868) (ves-
sels).
230. See, e.g., Pollock v. Cleveland Ship Building Co., 56 Ohio St. 655,
47 N.E. 582 (1897).








WATER RESOURCES


expanded the concept of navigability so as to bring within the federal
power to aid and regulate navigation virtually all of the nation's
streams of any size. 231 And while it is true that the main concern of
the federal government in expanding the public easement of navigability
has been to develop hydroelectric power, nevertheless the federal gov-
ernment has always been very much concerned with the improvement
of navigational facilities. In addition, at a time when providing public
recreational facilities has become a matter of prime importance in all
the states, the concept of public navigability has been employed by
state courts as a basis for recognizing public rights of travel and boat-
ing. 232 There has been in the twentieth century an increased recogni-
tion of the fact that waters not capable of sustaining financially valuable
commerce in any substantial amount may nonetheless serve an impor-
tant public interest in being made available for recreational activities
of all kinds, including pleasure boating. 233 Thus there is a slow but
steady retreat from the early test of navigable waters being only those
susceptible of use "as highways for commerce, over which trade and
travel are or may be conducted in the customary modes of trade and
travel on water. "234
In addition to giving individual members of the public certain rights
to use streams and lakes for commerce, travel, and pleasure, the con-
cept of a substantial public interest in waters which may in fact be
widely used by the public also creates a firm basis for state regulation
of riparian rights and activities in favor of the public use. Both the
federal and state governments have limited the private rights of
riparian owners in order to enhance the public benefit in these waters.
This aspect of limitation, since it is primarily governmental, is con-
sidered in a subsequent section.
2. Fishing
A second public right in watercourses involves the taking of fish.
Although at one time fresh waters were an important source of food,
and fishing was carried on either for limited purposes of commerce or
to supply a family larder, at the present time the major interest of
persons fishing in the greater number of America's watercourses is
recreation. As population has increased, and will continue to increase
in the future, the public demand to be allowed to fish in any boatable

231. United States v. Appalachian Electric Power Co., supra note 227.
232. Cf. Collins v. Gerhardt, supra note 221; Elder v. Delcour, 364 Mo.
835, 269 S.W. 2d 17 (1954).
233. State v. Korrer, 127 Minn. 60, 148 N.W. 617, 1095 (1914); Colemanv.
Schaeffer, 163 Ohio St. 202, 126 N.E. 2d 444 (1955); Baker v. Voss,
217 Wis. 415, 259 N.W. 413 (1935).
234. Field, J., in The Daniel Ball, supra note 218 at 563.








AND THE LAW


waters to which lawful access can be gained has become more insistent.
At the common law of England, the right of fishing in streams fol-
lowed the ownership of the bed. Thus in tidal waters, whose bed was
held by the crown for the benefit of the subjects of the realm, 235 the
public had a right to fish; but in non-tidal waters there was no such
right, since the beds were privately owned. 236 The existence of a
public right of navigation in non-tidal waters did not carry with it a
public fishing right. 237 The early civil law apparently went somewhat
further, supporting a public right to fish in all rivers "where the flow
of water was perennial," on the basis that these rivers were owned by
all of the members of the public in common. 238
In general the American jurisdictions have followed the common
law, holding that the ownership of the bed of waters determines the
rights of fishing. 239 Certainly in waters which are wholly lacking in
navigable or floatable characteristics there is nowhere recognized a
public right of fishing; for not only are the beds of these waters owned
by private persons, but also the public has no lawful means of acquir-
ing access to them. 240 It is only in waters which are navigable or
floatable, and whose beds are privately owned, that any question has
arisen as to the extension of the public right.
The effect of the adoption of the common law rule of fishing rights
in those states which have allowed ownership of the beds of navigable
or floatable waters to vest in private riparian owners has been to re-
strict the public right of fishing much more sharply than had actually
been done in England. In England, waters experiencing the ebb and
flow of the tides comprised a substantial proportion of the waters
suitable for fishing; and, as noted above, the ownership of the beds of

235. See infra for a discussion of the powers of control which this proprie-
tary interest in the soil beneath waters may give to the sovereign.
236. See, e.g., Reece v. Miller (1882), 8 Q.B.D. 626; Pearce v. Scotcher
(1882), 9 Q.B.D. 162. See also 2 Bl. Comm. 39-40; 3 Kent, Commen-
taries 329-32 (1st ed. 1828).
237. See note 236 supra.
238. Wood, New Institute of the Imperial or Civil Law 65-66 (1704); 3 Kent,
Commentaries 332 (1st ed. 1828).
239. Hood v. Murphy, supra note 93; Adams v. Pease, 2 Conn. 481 (1818);
Schulte v. Warren, 218 Ill. 108, 75 N.E. 783 (1905); Millspaugh v.
Northern Indiana Public Service Co., 104 Ind. App. 540, 12 N.E. 2d
396 (1938); State v. Bollenbach, 241 Minn. 103, 63 N.W. 2d 278 (1954);
Rice Hope Plantation v. South Carolina Public Service Authority, 216
S.C. 500, 59 S.E. 2d 132 (1950). Insofar as fishing rights in lakes
are concerned, the ownership of the bed is the determining factor. See
Anno., 57 A.L.R. 2d 569 (1958).
240. See, e.g., Beach v. Morgan, 67 N.H. 529, 41 Atl. 349 (1893); Griffith
v. Holman, 23 Wash. 347, 63 Pac. 239 (1900).








WATER RESOURCES


these waters is in the crown and the public right of fishing attaches to
them. In the American states, however, many of which are devoid of
tidal waters, the effect of vesting title to navigable or floatable waters
in the private riparian owners has been effectually to deny the existence
of a public right to fish in the waters of the state, with the exception of
those waters whose beds are owned by the state and in which the public
is expressly permitted to fish. On the other hand, if the state has re-
tained full title to the bed of navigable waters, and the exclusive right
of fishing is held to follow ownership of the bed, the public rights may
be substantial, and the right of riparian owners limited accordingly.
Speaking generally, therefore, a public right of fishing exists only upon
those waters where title to the bed has been retained by the states. It
is clear that no necessary connection exists between the existence of a
public right of navigation and a public right of fishing. 241
More particularly, however, several of the states have departed
from the general rule that fishing rights follow the ownership of the
bed and have determined that a public right of fishing exists upon all
navigable or floatable waters in spite of the private ownership of the
bed. It is important to note that in all of the states in which the public
right has been extended to waters whose beds are privately owned, fish-
ing, whether for recreation or for commerce, is of substantial public
interest; and doubtless it has been for the common good that the English
common law rule has been rejected in these jurisdictions.
In some of the states which have taken this view of the right to fish,
the modification has been purely within the workings of the American
common law. 242 The most recent case of this nature is Elder v.
Delcour, 243 which arose in Missouri in 1954. Prior to the Elder
case, it had been held in Missouri that title to the beds of waters which
were clearly navigable, i. e., susceptible of substantial commercial
usage by the customary modes of water travel, 244 was held by the

241. As noted by North, J., in Smith v. Andrews, [1891] 2 Ch. 678, 695-
96:
The idea is sometimes entertained that the right to
pass along a public navigable river carries with it the
right to fish in it, but so far as regards non-tidal rivers
this is not so. No lawyer could take that view. Persons
using a navigable highway no more acquire thereby a right
to fish there than persons passing along a public highway
on land acquire a right to shoot upon it.
The American states are generally in accord. But cf. Anno., 47
A.L.R. 2d 381 (1956), in which the writer advances the theory that
navigability and fishing are interconnected.
242. Collins v. Gerhardt, supra note 221; Elder v. Delcour, supra note 232.
243. Supra note 232.
244. See Slovensky v. O'Reilly, 233 S.W. 478 (Mo. 1921).








AND THE LAW


public. 245 Other streams, however, whose beds were privately owned
but which were susceptible of limited use for floating logs and for small
boats, were held to be floatablee" and subject to an easement of travel
in favor of the public. 246 In the Elder case, the issue was whether a
public right of fishing existed in a small stream whose bed was pri-
vately owned, and which had no other public utility than for fishing.
The question had not previously been adjudicated in the state of
Missouri, 247 and due to the importance of recreational fishing in the
Ozark region's many streams, the case was watched with much inter-
est. The court concluded that a public fishing right existed upon Mis-
souri's small, floatable streams:

Respondent... was not a trespasser and he was fishing where he
had a lawful right to be wading in or floating upon public wa-
ters, which were flowing down a public highway.
... Since the ownership of the fish in the stream belonged
to the state and since respondent was not a trespasser in pass-
ing down the stream by boat or by wading, he had the right to
fish and to take fish from the stream in a lawful manner.248

In short, fishing was an incident of the right of navigation. The most
interesting facet of the Elder case, however, is the fact that it was
only because the stream was usable for fishing that the public had any
real concern with it; it might almost be said that because the spot was
a good place to fish, the public acquired a right to fish there. The
Michigan Supreme Court has likewise extended the public right to
fish. 249
A number of states have legislatively extended the public right to
fish to boatable waters whose beds are privately owned. Enactments
of this nature have not always been upheld by the state courts, however,
since they constitute a modification of property rights and therefore
have been open to the objection that they deprive riparian owners of
property without due process of law.
In Massachusetts250 and in Maine251 it is generally held that the

245. See State v. Longfellow, 169 Mo. 109, 69 S.W. 374 (1902); Cooley v.
Golden, 117 Mo. 33, 23 S.W. 100 (1893); Benson v. Morrow, 61 Mo.
345 (1875).
246. Hobart-Lee Tie Co. v. Grabner, 206 Mo. App. 96, 219 S.W. 975 (1920);
State v. Wright, 201 Mo. App. 92, 208 S.W. 149 (1919); McKinney v.
Northcutt, 114 Mo. App. 146, 89 S.W. 351 (1905).
247. But cf. Dennig v. Graham, 227 Mo. App. 717, 59 S.W. 2d 699 (1933).
248. Supra note 232 at 848.
249. Collins v. Gerhardt, supra note 221.
250. Waters v. Lilley, 21 Mass. (4 Pick.) 145 (1826).
251. Opinion of the Justices, supra note 87 at 507.


I _








WATER RESOURCES


riparian owner has the exclusive right of fishing in waters whose bed
he owns. Historically, however, the legislature in these states has
always been acknowledged to have power to amend this rule. As the
Supreme Judicial Court of Massachusetts has pointed out, from the
earliest times "There was much jealousy on the subject of exclusive
individual privileges in fisheries, and much desire to protect the public
in the enjoyment of such privileges. "252 As early as 1646, therefore,
Plymouth Colony laws controlled fishing in the common good. 253 Given
this background, the Supreme Judicial Court of Maine in 1839 upheld as
consistent with constitutional provisions a legislative enactment giving
a town power to regulate fishing in the Sebasticook River and allowing
riparian owners on the river to be prohibited from taking fish, while
other persons were given privileges to fish there. 254 Some forty years
later the Massachusetts court held that, as against the sovereign pow-
er, riparian owners upon non-navigable streams have no property in
rights of fishery and that therefore the legislature could grant to a town
a right of fishery in a stream in which a riparian had previously pos-
sessed the only privilege of fishing. 255 This public power, however,
did not mean that the riparian owners had no rights of fishing whatever
in the streams adjacent to their lands: "As against all others than the
public, the riparian owners of these fishing privileges have the rights
which belong to private property. "256
The Supreme Court of Wisconsin, in Willow River Club v. Wade,257
decided in 1898, upheld a Wisconsin statute allowing the public to take
fish in the public waters of the state, even where the bed of those waters
was owned privately. The court seems to have offered two grounds for
its decision. In the first place, although it conceded that at common
law the ownership of the bed determined fishing rights and that under
Wisconsin law the bed of the waters in question 'here had passed into
private hands, the court concluded that the private riparians held the
bed of these waters "in trust for the use of the public. "258 Moreover,
fishing in navigable waters was "nothing more than the exercise of a
right common to the public. "259 In other words, the right of navigation
includes the right to fish; fishing is an incident of navigation. 260

252. Devens, J., in Cole v. Inhabitants of Eastham, 133 Mass. 65, 67-68
(1882).
253. Ibid.
254. Lunt v. Hunter, 16 Me. 9 (1839).
255. Cole v. Inhabitants of Eastham, supra note 252.
256. Id. at 70.
257. 100 Wis. 86, 76 N.W. 273 (1898).
258. Id. at 102.
259. Id. at 103.
260. See Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816 (1914).








AND THE LAW


Two cases decided in the first decade of the present century have
held that an extension of the public fishing right to waters whose beds
are privately owned would be a taking of property without due process
of law. In 1903 the Colorado General Assembly passed an act which
provided: "That the public shall have the right to fish in any stream in
this state, stocked at public expense, subject to actions in trespass for
any damage done property along the bank of any such stream. "261 The
Colorado Supreme Court held that in effect this act took the private
property of one person and gave it to another and was therefore incon-
sistent with the Colorado Constitution, in that it deprived the owners
of the beds of non-navigable streams of their exclusive fishing
rights. 262 A strong dissent was filed, which argued that in view of the
history of legislative control of the state's streams, and the constitu-
tional provision declaring that the unappropriated waters of the state
were the property of the public, the decision was improper. Five
years later the Superior Court of Pennsylvania, interpreting a statute,
held that an enactment which extended the public right of fishing at the
expense of the rights of riparian owners was a wrongful taking of prop-
erty unless compensation was paid. 263 It is submitted that in both of
these cases the court failed to appreciate the proper position of the
legislature as the lawmaking organ of government. Certainly today, in
the light of modern needs and modern judicial philosophy, decisions of
this nature would be anomalies.
In view of the acknowledgement in recent years, by the courts of
both Michigan and Missouri, that the public right of fishing extends to
all waters which are subject to a public easement of travel, it seems
clear that when the public interest in fishing becomes substantial
enough the courts themselves will cut the bonds of the common law and
limit the exclusive interests of riparian owners in order to insure gen-
eral enjoyment of the precious resource of water. Likewise, the
legislatures could act to enlarge upon the public fishing right. If the
courts are reluctant to admit that the legislature possesses the power
to modify fishing rights as an incident of its sovereign powers, then
doubtless they will admit the existence of an implied trust in water-
courses in favor of the public, as found by the Wisconsin court in Wil-
low River Club v. Wade.
3. Hunting
Hunting and fishing are often considered together, and not unreason-
ably so; the aim of both is to reduce to possession animals "ferae

261. Colo. Laws 1903, c. 112, 7(7).
262. Hartman v. Tresise, 36 Colo. 146,84 Pac. 685 (1906).
263. Commonwealth v. Foster, 36 Pa. Super. 433 (1908).








WATER RESOURCES


naturae. As with fishing, the rights of hunting and trapping generally
follow the ownership of the bed of waters. In most jurisdictions which
have to date passed upon the issue it has been held that a trespass is
committed by hunting or trapping upon waters whose bed is owned by
another, regardless of whether the waters are navigable or not. 264
Hunting is not so intimately related to navigation as is fishing, however;
and trapping on water generally involves the anchoring of traps to the
bed or banks of the watercourse, thereby departing entirely from the
concept of an easement of travel. 265
Although the public right of trapping invariably follows the owner-
ship of the bed, in several jurisdictions the public right has been ex-
tended so that the right to hunt upon waters is coexistent with naviga-
bility, and the ownership of the bed is not a deciding factor. In Wis-
consin, for example, hunting on navigable waters has been held to be
an incident of the right of navigation, in the same manner as fishing.266
On principle, the Wisconsin court confessed that it could perceive no
distinction between fishing and hunting as incidents of navigation. More
recently, the Federal District Court for the Eastern District of North
Carolina, in an alternative holding, determined in 1953 that a public
right of hunting exists in navigable waters in North Carolina although
the beds of the waters are privately owned. 267 In the course of the
opinion, the court made it clear that undoubtedly the present trend was
the extension of public rights to all waters navigable in fact. The
Court of Appeals for the Fourth Circuit, affirming the decision, indi-
cated its approval of the trust doctrine: that privately owned beds of
navigable waters are subject to the same trust in favor of the public as
are publicly owned beds. 268 In view of the present judicial attitude, it
seems safe to venture that when the public interest in hunting upon
watercourses becomes substantial enough, the courts will disallow the
fact of private ownership of the beds in favor of an extension of the

264. Hunting: see, e.g., Schulte v. Warren, supra note 239; Sewers v. Hack-
lander, 219 Mich. 143, 188 N.W. 547 (1922); Hall v. Alford, 114 Mich.
-165, 72 N.W. 137 (1897); Sterling v. Jackson, 69 Mich. 488, 37 N.W.
845 (1888). Trapping: Johnson v. Burghorn, 212 Mich. 19, 179 N.W.
225 (1920); cf. Sewers v. Hacklander, supra; Munninghoff v. Wisconsin
Conservation Commission, supra note 71.
265. In Johnson v. Burghorn, supra note 264, the defendant had anchored
his traps either to the bed of the stream, or to the ice upon the
stream; both were in the nature of real property, and owned by the
plaintiff. It was at least partially the fact that these acts constituted
a trespass to the land of plaintiff that caused the court to hold against
the defendant. Cf. Munninghoff v. Wisconsin Conservation Commission,
supra note 71.
266. Diana Shooting Club v. Husting, supra note 260.
267. Swan Island Club v. White, 114 F. Supp. 95 (E.D. N.C. 1953).
268. Swan Island Club v. Yarbrough, 209 F. 2d 698 (4th Cir. 1954).








AND THE LAW 223

public right, either upon general principle alone or through utilization
of the trust doctrine. Certainly in this area the riparian right is far
from absolute, but is subject to existing limitations as well as addi-
tional rights in favor of the public which can be created by the courts
and the legislatures.
B. Limitations in Respect to the State and Federal Governments
In addition to the rights which have been recognized as inhering in
individual members of the public to use watercourses, there exists a
still more substantial limitation upon the interests of individual
riparian owners in the form of governmental power to regulate or
limit their rights to the use of rivers and streams. Both the state and
federal governments possess this power to a considerable degree, pri-
marily due to the recognized importance of watercourses and flowing
waters to the general welfare of all the people. The legal basis of this
governmental power to control the uses of watercourses may take one
of several particularized forms; nevertheless through all of these
forms run the common threads of the public good and those govern-
mental powers inherent in any organized society. Unquestionably all
property in society is held subject to being affected by the powers of
the sovereign, exercised in the common good. However, it is note-
worthy that the governmental power over watercourses is more sub-
stantial than that relating to property rights in things other than
natural resources. The explanation of this fact lies in the greater
public interest in natural resources.
1. Proprietary Power of Federal and State Governments
A power to limit the rights of individual riparian owners based
upon the proprietary interests of the federal and state governments is
determined by the possession of some degree of title in the governmen-
tal entity to the bed or banks of a watercourse, or ownership of the
water itself. For the most part the power arising from this govern-
mental title has lain dormant during the past century and a half, and
not more than a moderate number of regulations have been founded
upon it; however, in the future it can be expected to provide the basis
for much regulation of the use of watercourses.
a. Federal Proprietary Power
Outside of the original thirteen states, title to most of the present
territory of the United States was, at one time, held by the federal
government as part of the public domain. 269 Although a great portion
of this land has in the course of the years passed into private hands,

269. Ogg and Ray, Introduction to American Government 627 (10th ed. 1951).








WATER RESOURCES


nevertheless the federal government still holds, as part of the public
domain, over four hundred million acres, almost wholly situated in the
western states. 270 The control and disposal of these lands and other
lands which may hereafter be acquired by the federal government is
delegated to Congress by the Constitution, which provides that:

The Congress shall have Power to dispose of and make
all needful Rules and Regulations respecting the Teritory or
other Property belonging to the United States....

In the ownership of public lands, the United States does not occupy
the position of an ordinary private landowner, but stands in a sovereign
relationship to the lands. The fact that federally owned lands are lo-
cated within the boundaries of a state does not mean that the title of the
United States is subject to the same control by the state as are the
lands of private persons similarly located. Certainly the state cannot
regulate this property or otherwise so act as to interfere with the in-
terest of the federal government, at least in the absence of congression-
al assent. 272 This limitation is applicable whether the federal lands in
question are those forming the original public domain or have been sub-
sequently acquired through purchase or the exercise of the federal
power of eminent domain. 2'3 The federal interest in lands forming the
bed or banks of watercourses whose title is held by the United States
clearly limits the power of the states, in the absence of congressional
consent, to affect adversely the federal interest in the use of the waters
through legislation or other action. As Justice Brewer pointed out in
the 1899 decision of United States v. Rio Grande Dam and Irrigation
Co., "[I]n the absence of specific authority from Congress a State
cannot by its legislation destroy the right of the United States, as the
owner of lands bordering on a stream, to the continued flow of its
waters; so far at least as may be necessary for the beneficial uses of
the government property. "274
Likewise, it was this paramount federal interest in the public do-
main which allowed Congress in 1866 to recognize the western custom
of prior appropriation as to water rights and to separate the rights to

270. Clawson and Held, The Federal Lands 36-37 (1957).
271. U.S. Const., Art. I, 3, cl. 2.
272. Cf. Camfield v. United States, 167 U.S. 518, 526, 17 S. Ct. 864 (1897).
273. See, e.g., Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 5 S. Ct.
995 (1885). It must be noted in this regard that the federal govern-
ment may also acquire lands which, by federal consent, are subject to
state-imposed limitations, which may include state power to regulate
incidents of ownership such as water rights. See United States v. Un-
zeuta, 281 U.S. 138, 50 S. Ct. 284 (1930).
274. 174 U.S. 690, 703, 19 S. Ct. 770 (1899).








AND THE LAW 225

the use of water from the ownership of the land upon which that water
rose and flowed. 275 This recognition of prior appropriation as appli-
cable to the public domain without regard to water law doctrine under
state law did not in fact conflict with the then-existing state water law
doctrines in the west, and was enacted by Congress primarily at the
urging of western senators and representatives. 276 The passage of
the 1866 legislation, however, clearly indicated that Congress has full
power to regulate the use of the water resources upon the public do-
main. Furthermore, although the issue has not been authoritatively
decided, 277 it would appear that insofar as any unappropriated waters
remain flowing upon the public domain, Congress still retains control
over rights to use them, and that the rule as to their use by private
persons can be changed at any time regardless of the effect upon state
water law. 278
It is true that the federal power, based upon its proprietary inter-
ests, to regulate the use of waters upon or adjacent to the public do-
main or other federally owned property is predominantly a western
problem and that to date the eastern states have not been seriously af-
fected thereby. Nevertheless, this power cannot be overlooked in view
of recent controversies concerning the water rights attaching to feder-
ally owned lands.
The full extent of the proprietary interest of the federal govern-
ment in watercourses to which government oyned lands are adjacent is
not known at this time. However, a considerable apprehension exists
on the part of both the states and private riparians and others holding
water rights that the power of the federal government to use the water


275. 14 Stat. 251, 253. See 43 U.S.C. 661, which contains the 1866 act
as amended.
276. National Resources Planning Board, State Water Law in the Develop-
ment of the West 7 (1943). The Desert Land Act of 1877, 19 Stat.
377, 43 U.S.C. 321 et seq. (as amended), further strengthened the
position of state water law doctrine by allowing the western states to
exercise jurisdiction over the use of water on the public domains. See
California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S.
142, 55 S. Ct. 725 (1935).
277. Cf. Nebraska v. Wyoming, 325 U.S. 589, 611-16, 65 S. Ct. 1332 (1945).
278. To claim the alternative, that by the 1866 act and its successors Con-
gress completely surrendered all power over waters upon the public
domain to the states, it must be asserted that Congress meant to re-
lease substantial control over the public lands themselves since in the
arid regions of the west the value of lands depends upon the possession
of water rights. It is doubtful that the Supreme Court of the United
States would cripple federal holdings in the west by upholding this view.
See Federal Power Commission v. Oregon, 349 U.S. 435, 76 S. Ct. 832
(1955).








WATER RESOURCES


of any watercourses to which its holdings may be riparian exceeds, and
is paramount to, the rights of individuals or any state water rights
doctrine which may exist. The recent trend of federal judicial decisions
seems to bear out the belief that the federal government's proprietary
rights extend far beyond what the popular mind-or even the legal
mind-had imagined. In the so-called "Tidelands" case, for example,
the federal title to lands underlying the marginal seas was declared, in
spite of a considerable feeling on the part of the states bordering the
seas that this was not properly exclusive federal domain at all. 279
The matter was attended with considerable emotionalism, particularly
upon the part of those persons belonging to the "states' rights" con-
tingent.
In the present decade, beginning in 1951, considerable attention
has been focused upon the controversy between the federal government,
on the one hand, and the state of California and private persons holding
water rights under California law, on the other, regarding the federal
right to use the water of the Santa Margarita River to supply the fed-
eral military installation at Camp Pendleton, California, together with
its accompanying naval hospital and naval ammunition depot. This
controversy has popularly been titled the "Fallbrook case."
The federal government had in 1941-1943 condemned the land for
the installation with the consent of the state of California, which gave
the federal government exclusive jurisdiction over this area of some
135,000 acres adjoining the Pacific Ocean. The Santa Margarita
River runs through this military reservation for some twenty-one
miles before reaching the ocean; the federal government therefore
owns the lowest riparian land on the river. 280 The large needs of
water upon this reservation were supplied at first by pumping from
wells within the basin of the Santa Margarita River; in 1948, however,
these wells began to show signs of salt water intrusion due to their
excessive use. 281 On January 25, 1951, therefore, the federal gov-
ernment brought action in Federal District Court to ascertain its
rights in the flow of the Santa Margarita River, serving a large num-
ber of persons as defendants. In its complaint the federal government
set forth the facts of its situation at the reservation and then asserted
the federal right:

To meet the great demands arising from these military instal-
lations for military, agricultural and other needs, the United

279. United States v. California, 332 U.S. 19, 67 S. Ct. 1658 (1947).
280. People of the State of California v. United States, 235 F. 2d 647, 652
(9th Cir. 1956).
281. See Comment, 31 Tex. L. Rev. 404, 407 (1953).








AND THE LAW 227

States, as against the defendants herein named, asserts that it
has a paramount right to 35,000 acre-feet of water annually
from the Santa Margarita River.282

The assertion of this "paramount right" immediately aroused great
public clamor, for it was feared that the position of the federal govern-
ment would be that its proprietary interest in these lands gave it a
right to the full flow of the river if it was necessary to supply the
reservation, to the complete exclusion of all others holding rights
under California law to the use of such water. As was observed by
Judge Fee of the Ninth Circuit:

The theory of the government agents seems to be that, if a
military post be established upon the mouth of a stream and
the State voluntarily cedes sovereignty of the area, on the
ground of military purposes and future military necessities, the
government obtains the right to use all of the water which in
the state of nature flowed there, even if the land and water is
located in a state where the United States had no sovereignty
except by the admission of the state to the Union. 283

Thus, apparently the sides were clearly drawn: it was a question of
federal proprietary right against state and private right, at least in the
eye of the public. In fact, however, the United States claimed only
"such rights to the use of water as it acquired when it purchased the
Rancho Santa Margarita," which had originally comprised the area now
occupied by the reservation, and claimed no rights to any greater
amount of water "by reason of its sovereign status." The rights of the
parties in the waters of the river were to be determined in full accord
with the laws of California. 284
In spite of this, in the public imagination the action remained one
to determine the relationship between the sovereign rights of the United
States and thbse of private persons under California law. At this point
congressional interest in the pending litigation became sufficient that a
special subcommittee of the House of Representatives began hearings
in southern California on the water rights controversy, at the behest
of local citizens and organizations. The subcommittee concluded that
the impending litigation was unnecessary and recommended legislation
to construct a dam on the Santa Margarita River to ease the water sit-
uation and further legislation to make all water distribution from

282. United States v. Fallbrook Public Utility District, 101 F. Supp. 298,
300 (S.D. Cal. 1951).
283. Supra note 280 at 655.
284. Yankwich, "'Short Cuts' in Long Cases," 13 F.R.D. 41, 47-48 (1952),
commenting upon the pre-trial conference in the Fallbrook litigation.





,IJ







WATER RESOURCES I


non-navigable streams-whether to the federal government or to pri-
vate persons-subject to state law. 285 Clearly, the congressional sub-
committee was opposed not only to the federal claim in the Fallbrook
litigation, but also to any federal claim of superior water rights on the
public domain. The immediate result of the congressional inquiry into
the pending litigation was a limitation in the 1952 Justice Department
Appropriation Act prohibiting the use of appropriated funds in the
prosecution of the government's action. 286 Although the Comptroller
General of the United States ruled that the intention of this limitation
was to prohibit participation in the action by any government agency,287
the Attorney General appointed a member of the Judge Advocate Gen-
eral of the Navy's staff to serve as a Special Assistant to the Attorney
General, without compensation from the Justice Department, in the
litigation against the private holders of water rights. The Fallbrook
Public Utility District, one of the principal defendants in the govern-
ment' s action, petitioned the Court of Appeals for the Ninth Circuit for
mandamus to compel the district court to take no further steps in the
litigation, contending that the Department of Justice Appropriation Act
had deprived the Justice Department of all authority to proceed with
the action, and that the Navy Department was not authorized to expend
funds for this purpose. The Ninth Circuit, however, held that the
Fallbrook District had no standing to question the acts of the executive
department in this matter. 288
On February 24, 1953, Chief Judge Yankwich of the United States
District Court for the Southern District of California gave judgment in
the Fallbrook case for the federal government, holding that the federal
use of the waters of the Santa Margarita was a reasonable exercise of
the rights of the United States under the law of California and that
these rights took priority over those of the Fallbrook Public Utility
District and the other appropriators who were defendants. 289 Subse-
quently, after a lapse of some three years, the Court of Appeals for
the Ninth Circuit reversed the judgment of the district court and re-
manded the case for further proceedings on the ground that the

285. Hearings before Special Subcommittee on Irrigation and Reclamation of
the Committee on Interior and Insular Affairs on Santa Margarita Water
Rights Controversy, 82d Cong., 1st sess. 32, 33,134 (1951), as set
forth in Comment, 31 Tex. L. Rev. 404, 411 (1953).
286. 66 Stat. 556, 560; Pub. L. 495, 82d Cong., 2d sess. 208(d), July 10,
1952. See also Fallbrook Public Utility District v. United States Dis-
trict Court, 202 F. 2d 942, 943 (9th Cir. 1953).
287. Ruling D-110945, Aug. 29, 1952, 21 U.S.L. Week 2132 (1952).
288. Fallbrook Public Utility District v. United States District Court, supra
note 286.
289. United States v. Fallbrook Public Utility District, 110 F. Supp. 767
(S.D. Cal. 1953).








AND THE LAW


judgment was too broad in that it completely cut off the rights of de-
fendants in the river. The finding of the district court that there were
no surplus waters in the river which might be appropriated by private
persons was held incorrect, in view of the fact that only three litigants
were directly involved in the action, although the judgment purported to
affect the rights of all persons in the waters of the river, especially in
the finding that the United States had gained a prescriptive right to the
use of the water. 290
The most important aspect of the Fallbrook litigation has been the
public outcry which it has impelled. Interested persons plainly fear
that the federal government may successfully assert a paramount right
to water use wherever it holds land adjacent to a watercourse; this
right could make existing private water rights, acquired under state
law, worthless in some instances. Thus, although in point of law, the
federal government was contending only that it had certain rights under
the law of California as a riparian owner, nevertheless public pronounce-
ments were widely made to the effect that the federal government was
asserting a superior right which overrode state law. 291 Certainly, no
small part of this public clamor was the fault of the federal government
itself. Although the federal government had agreed to assert only those
rights which it might have under the laws of California, apparently the
counsel for the United States argued that the rights of the federal gov-
ernment should be paramount and that its functions should take prece-
dence over the water uses of all other persons. As Judge Fee of the
Ninth Circuit noted:
The question of "sovereign rights" of the United States
pervades this entire case and has done so from the beginning.
Not only that, but the steady beating of the war drums in the
government's brief by references to "military necessity" tends
to deflect full consideration from the property rights of ordi-
nary citizens.
It is true enough that, at the time of the establishment of
Camp Pendleton in 1942, military necessity was a prime con-
sideration. There are elaborate disclaimers by the government
attorneys of any appeal to the doctrine of sovereignty in set-
tling this case. These appear likewise in the opinions and find-
ings of the trial court. On the surface, it is agreed by all
that the law of the State of California should be applied. For
all that, the sovereign rights of the United States seem to have
had a controlling effect upon the findings and judgment.292

290. People of the State of California v. United States, supra note 280.
291. See, e.g., Saturday Evening Post, vol. 224, no. 27, pp. 26, 56 (Jan. 5,
1952), for statements of Price Daniel of Texas and Earl Warren of
California. See also Elliot, "The Importance of the Fallbrook Case,"
49 P.U. Fort. 465 (1952).
292. Supra note 280 at 655-56.


I-








WATER RESOURCES


The Fallbrook litigation may well eventually be determined by the
United States Supreme Court; but in view of the actual legal issues in
the case, it is doubtful whether the burning question of paramount fed-
eral proprietary rights will be decided. To the contrary, Congress
has quite generally provided for compensation to be paid whenever
federal legislation impairs private water rights under state law,
whether such compensation is actually necessary or not. 293 Further-
more, it has been held that where the federal government acquires
lands adjacent to a watercourse, its water rights are limited at least
to the extent of any riparian rights which had previously vested under
state law. 294 But in spite of this, the specter of paramount federal
power still hangs over all rights to the use of watercourses, whether
in the western states or in the east.
b. State Proprietary Power
For the most part, the proprietary powers of the states over
watercourses based upon state ownership-whether for governmental
purposes or in trust for the people-of the beds and banks of rivers
and streams or of all of the flowing water within the state's water-
courses has been sparingly used in most states. In others, however,
it has provided a substantial foundation for state regulation of water
use.
In the first place the state as a quasi-independent sovereign has
an inherent proprietary interest in all property within its boundaries.
This right of the states has generally arisen only where a state is
seeking, as against other states or persons with other states, to pro-
tect the interests of its citizens. As was said in Georgia v. Tennessee
Copper Co.,295 an action seeking to enjoin pollution of the air by the
Copper Company in Tennessee, which adversely affected persons and
property in Georgia:

This is a suit by a State for an injury to it in its capacity of
quasi-sovereign. In that capacity the State has an interest in-
dependent of and behind the titles of its citizens, in all the
earth and air within its domain. 296

Actions may also be brought upon this theory by a state for interference
with the alleged water rights of its citizens by another state. 297 It is

293. See, e.g., United States v. Gerlach Live Stock Co., 339 U.S. 725, 70
S. Ct. 955 (1950).
294. See, e.g., United States v. Central Stockholders' Corp., 43 F. 2d 977
(S.D. Cal. 1930), modified and affirmed, 52 F. 2d 322 (9th Cir. 1931).
295. 206 U.S. 230, 27 S. Ct. 618 (1906).
296. Id. at 237.
297. Cf. Kansas v. Colorado, 206 U.S. 46, 27 S. Ct. 655 (1907).




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