Title: Due Process and the Effect of Eastern Appropriation Proposals on Existing Rights, with Special Emphasis on the Michigan Proposal by Clyde O. Fisher, Jr.
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Title: Due Process and the Effect of Eastern Appropriation Proposals on Existing Rights, with Special Emphasis on the Michigan Proposal by Clyde O. Fisher, Jr.
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Abstract: Richard Hamann's Collection - Due Process and the Effect of Eastern Appropriation Proposals on Existing Rights, with Special Emphasis on the Michigan Proposal by Clyde O. Fisher, Jr.
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 31
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Full Text




Fisher

Draft for discussion




THE CONSERVATION FOUNDATION


SYMPOSIUM ON THE LAW OF WATER ALLOCATION
IN THE EASTERN UNITED STATES


Cosmos Club, Washington, D. C.
October 4-6, 1956








IXe Process and the Effect of Eastern Appropriation
Proposals on Existing Rights, with Special emphasis
on the Michigan Proposal

by


Clyde O. Fisher, Jr.


THE CONSERVATION FOUNDATION
30 East 40th Street
New York City


YII- 1 I_








Due Process and the Effect of Eastern Appropriation
Proposals on Existing Rights, with Special E~phasis
on the Michigan Proposal

Clyde 0. Fisher, Jr. *



As the title suggests, this paper concerns itself only with those possible

attacks on the constitutionality of the proposed Michigan appropriation law2/

which are based on the due process clause of the Fourteenth Amendment and

similar state constitutional provisions. The legal literature on due process

contains ample general statements to support almost any proposition. Little

is gained by a review of cases which do not decide issues closely analogous to

the question here presented. On the whole, analogous constitutional cases are

not found in Michigan and appear largely among western state and federal court

decisions. However, Michigan water law cases will be emphasized when relevant,

to show the extent to which the Michigan proposal modifies Michigan riparian

law. Despite the fact that many of the particular arguments and conclusions

will therefore apply only to Michigan, the issues which would be raised by an

attempted enactment of the Michigan proposal in another jurisdiction will pro-

bably be quite similar, and it is hoped that this paper will be helpful to

further studies. Among the reasons for choosing the Michigan proposal as a

model for discussion was the fact that, of the various appropriation proposals

recently drafted in the eastern states, it contains the most intricate provisions

for preserving vested rights. These provisions, combined with the rest of the

proposed law, seem to raise most of the due process issues arising in connection

with the statutes proposed or enacted in other states, as well as some additional

questions. Consequently, the Michigan statute was singled out for purposes of

achieving maximum coverage of possible due process issues.


Attorney, City Plan Commission, New Haven, Conn. LL.B., Yale University;
M.S., Yale Conservation Program. Member of the Connecticut Bar.

The Author is indebted to Mr. David Haber for his suggestions.


----r- r---I'Y






-2 -


I.

* Discussion of the validity of Michigan's proposed statute must begin with the

sections that purport to preserve "existing rights". If these provisions should

turn out to be all-encompassing, the proposal's enactment could not possibly re-

sult in a "taking" of property, and the "due process" issue would not arise.- a

It should be noted that, in considering the "existing rights" sections, certain

differences between the riparian and the appropriation system, as they are general-

ly understood, will be emphasized. Later in the paper, it will be suggested that

some of these differences might not be so drastic as they at first appear. There

it will also be shown that the smaller the differences between the riparian and

appropriation systems appear to be, the greater is the chance that an appropria-

tion law will be held constitutional in an eastern state. But, under this argu-

ment, emphasizing the similarity between the two systems of water law, it is on

the whole unnecessary to rely on provisions explicitly attempting to preserve

all existing rights. To evaluate the efficacy of these provisions, therefore,

it is important to emphasize the differences between riparian and appropriation

methods of water allocation. Only in this way can one know whether the law

might be upheld on the ground that vested rights are saved, no matter how great

a change in the methods for creating future rights the proposal is held to bring

about.

In the Michigan proposal, the provisions purporting to preserve existing rights

read as follows:

"Section 2. EXISTING RIGHTS PRESERVED. Nothing in this act is intended
to impair any existing valid right in the use of water, or to interfere with
the continuance of any such right, or to prevent the maintenance of such stream
flows or lake levels as are necessary to the reasonable exercise of private
vested rights and to the reasonable use of natural streams and lakes for
public purposes of recreation, fishing, sanitation, and navigation.

"Section 7. VESTED RIGHTS. Class A. The holder of any tract of land
that now conforms, or hereafter shall conform, to the definition of riparian
land in Section 3, supra, shall be deemed to have a Class A vested right to
the reasonable use of the stream or body of water to which his land


1








-3-


is riparian, for purposes of domestic use as defined in Section 3, supra,
power, recreation, and fishing on or in connection with such land.

Class B. Actual application of water under reasonable methods of di-
version to reasonable beneficial use other than in the exercise of a Class A
vested right, on or in connection with either riparian or nonriparian land,
prior to the date upon which this Act shall go into effect, shall be deemed
to create in the person effecting such use or in his successor in interest a
Class B vested right to the extent of the actual application to such reason-
able beneficial use; provided such use has not been abandoned in the manner
provided in Section 23, infra. The priority of such right shall date from
the time of actual application of water to beneficial use.

'Section 8. EFFECT OF PRIORITY OF RIGHT. The natural supply of water
in any natural watercourse or lake shall be available at all times for the
requirements of Class A vested rights as provided for in Section 7, supra,
and for the other uses provided for in Section 2, su ra. The excess over
such requirements at any particular time shall be available for the require-
ments of Class B vested rights provided for in Section 7, supra, and for the
appropriative rights acquired after the effective date of this Act under the
procedure provided for that purpose in Section 11 et sec., infra, in the
order of their respective dates of priority. No holder or claimant of a
Class B vested right or of an appropriative right shall be entitled to divert
or impound or use water at any time when such water is required to satisfy
both (a) the Class A vested rights and other uses hereinabove referred to,
and (b) any Class B or appropriative right or rights with an earlier date or
dates of priority." (emphasis supplied.)

Section 2 seems to preserve three categories of rights: "existing valid rights",

"private vested rights", and the use of water for certain "public purposes".

"Private vested rights" are specifically defined in section 7. "Public purposes"

are explicitly listed, but the meaning of "existing valid rights" is nowhere

spelled out. These may be construed to encompass all other than "public purpose"

uses and "vested" rights which courts have in the past or might in the future

regard as constituting "existing valid rights" at the time of enactment of the

proposed law. Under this construction, all new rights obtainable under the

statute are held subject to rights which the courts in the future might decide

deserved protection, with the consequence that the proposal cannot be attacked

on due process grounds. However, this view of the law tends to defeat pains-

taking limitations imposed by section 7, underscored by a sentence in section

11 (not quoted above) to the effect that "it is the expressed intention of the

legislature that rights to the use of water vested on the date of this Act ...


I~_____


_~ ____ __








-4-


shall comprise only those rights declared vested in section 7".2/ A close look

at Section 2 reveals that phrases dealing with "existing valid rights" speak of

impairment of, or future interference with, rights themselves, while provisions

dealing with vested rights are couched in terms of maintenance of stream flows.

It seems probable, therefore, that Section 2's statements about "existing valid

rights" and "private vested rights" are but two ways of saying the same thing,

with "existing valid rights" intended as no more than an elliptical synonym for

what is later spelled out in somewhat greater detail. In the discussion which

follows, this interpretation will be assumed to be correct.

As to Section 7, its effectiveness in preserving existing rights depends on

the scope of the Class A provisions. For even a cursory glance at the Class B

provisions makes it apparent that these are insufficient to preserve existing

riparian rights. Class B rights are not available to nonusing riparians and,

as Class B claimants, even riparians using water may lose some of their status.

Under Section 8 their rights are subject to a preference in favor of Class A

users, who include others than the domestic users preferred under riparian law.

Unlike what would generally be true under riparian law, section 8 retroactively

favors Class B claimants with an earlier priority based on the time of commence-

ment of use. Under section 23, referred to in section 7, Class B claimants,

unlike riparians, may lose their rights after continuous nonuse for a period of

five years. Moreover, former riparians claiming Class B rights are not preferred

over other Class B claimants whose uses are on nonriparian land or for non-

riparian purposes.3-

The Class A provisions seem more promising. Unused rights are not excluded

or terminated, and in relation to each other each riparians are allowed a

"reasonable use". Courts are left free to act as they always have: to make

priority in the.time of commencement of use more or less important; to prefer

domestic users and perhaps upper users; to obey demands of the public interest








-5-


when such are called to their attention; or, where there are no other overriding

policies, to protect investment if at all possible.

Still, the protection afforded by the Class A provisions seems to be in-

complete, especially when these provisions are read in the light of other sections

of the proposal. For example, section 5 of the statute provides that any rights

to use water "shall not ... include the right o use more water than is necessary

for reasonable beneficial purposes, nor shall it include the right to resort to

unreasonable methods of diversion". No ce may transgress this limit, not even

a Class A user who interferes only with nonriparian Class B and appropriative

rights. In contrast, the riparian law, as generally understood, restricts

riparian uses only in relation to each other and nonriparians cannot insist that
5/
riparians behave. Because of the restriction imposed on them by section 5,

therefore, riparians might complain that as Class A users they have lost the

right to hurt nonriparian neighbors with impunity.

Riparians may also complain about section 3's narrow definition of riparian

land, referred to in section 7:

"The term 'riparian land' shall mean land lying (a) within the
watershed of a watercourse or lake, (b) continuous to such watercourse
or lake, and (c) consisting of the smallest tract held under one title
in the chain of title leading to the current owner."

No Michigan case has thus far held that riparian land cannot extend beyond the

smallest tract in the chain of title, or the watershed. While there is no

precedent opposed to these limitations, a constitutional issue would arise were

the courts, when presented with the issue, to refuse to confine riparian land

as the statute does.

Nor have Michigan cases explicitly held that riparians may not use water

for purposes other than the ones which entitle them to Class A rights under

section 7. On the contrary, among the uses thus far called riparian by the

courts, reasonable pollution and the commercial breeding of fish are excluded







-6-

7J
from the Class A list.7 Perhaps it can.be argued that reasonable pollution is

permitted under section 2's "reasonable use" for the public purpose of "sanitation",

and that Class A "fishing" includes commercial fish breeding. But ice cutting -

also recognized as riparian by Michigan law---remains left out. And since there

is no precedent prohibiting the courts from adding many more uses to their list,

the Michigan courts may in the future do so, and declare that the legislature's

failure to anticipate this development renders the law unconstitutional.

From what has been said, it is apparent that section 2, as well as section

7's Class A and Class B provisions, do not fully preserve riparian rights. Nor

is this picture substantially altered by the fact that the proposal also permits

riparians to apply for appropriative rights. The restrictions of section 5 are

again applicable and, in addition, former riparians claiming as appropriators

are allowed to use only the amount of water remaining after all Class A and

Class B rights and all prior appropriative rights are satisfied. Thus, at times

not only other riparians are preferred on bases other than those generally

understood to prevail under existing riparian law -- but also nonriparian Class

B users and appropriators with an earlier priority are favored. Moreover,

riparians claiming as appropriators, like Class B riparians, lose their rights

according to section 23 after nonuse for a period of five years. Finally, to

acquire new appropriative rights, former riparians are forced, by provisions of

the proposal not quoted above, to subject themselves to what sometimes will

turn out to be elaborate and perhaps costly proceedings to obtain licenses and,

prior thereto, provisional permits.-

These possible deprivations which former riparians might suffer as a con-

sequence of the proposal's enactment raise the question: Does the proposed law

amount to a taking of property without due process of law in violation of state

constitutional provisions and the due process clause of the Fourteenth Amendment?

In seeking an answer, it must be noted at the outset that, before one can claim


__________________________________^








-7-


that property has been taken without due process of law, one must be able to show

that one's property right extends to what has allegedly been impaired. Only then

does a second issue arise, namely, whether the new law actually effects a

"taking", for which the owner must be compensated, or whether, on the other hand,

the legislation is within the scope of the state's police power.

These two aspects of the due process issue are reflected in the two ap-

proaches taken by state and federal court cases passing upon legislative modi-

fications of riparian rights in other states. A number of cases hold that,

even though the riparian law was to some extent the law of the state prior to

the decision in question, a riparian owner has no vested right for constitutional

purposes that is coextensive with particular water allocation rules established

by the general common law or by judicial precedents in the state. These cases

will be discussed first. Thereafter, this paper will deal with a second group

of opinions which look at legislative modification of water rights as an impair-

ment of property; a number of decisions viewing modification of rights to other

natural resources as an impairment will also be discussed briefly. This second

group of decisions includes both those which hold the particular modification

involved to be invalid, either with or without considering the police power, as

well as other cases which justify the impairment of property rights as a valid

exercise of the police power.

II.


The cases upholding modification of riparian rights on the theory that a

riparian has no fixed rights in the particulars of the riparian system of allo-

cation, since the state's law is always subject to change by judicial opinion

or legislation, frequently rely on the particular wording of the state's common

law adoption statute, Though these cases have all arisen in the western states,

the reasoning employed in them is not necessarily inapplicable in many eastern








-8-


states, since the wording of the adoption statutes in the jurisdictions where

modifications have been upheld is not uncommon.-/ These western cases do not draw

any fixed line. All permit modifications subsequent to the patetrng of the land.

In some cases the opinions emphasize that only unused rights are affected, and

some cases involve facts where this is so though the opinions fail to stress

the point. Other cases, however, uphold modifications of both used and unused

rights. All one can say is that the extent of permissible change probably de-

pends on how drastic it is. Change must not be so drastic that, in the light

of past decisions and changing circumstances, it could not reasonably have been

expected to occur in the course of the gradual development of the law.

The most recent case is Emey v. Knap, -decided in 1949, in which the

Kansas Court upheld that state's appropriation law of 1945-3/ against possible

objections that the property of riparians was taken without due process of law.

The principal justification offered by the court for upholding the legislative

change of the status of riparians was Kansas' common law adoption statute,-/

which reads as follows:

"The common law as modified by constitutional and statutory law,
judicial decisions, and the conditions and wants of the people, shall re-
main in force in aid of the general statutes of this state; but the rule
of the common law that statutes in derogation thereof shall be strictly
construed shall not be applicable to any general statute of the state,
but all such statutes shall be liberally construed to promote their
object." (emphasis supplied)

While not too explicit, the court's opinion in the ery case seems to imply

that under this common law adoption statute common law rights were held by

riparians subject to legislative change.2/ Riparians, therefore, did not have

vested rights or constitutional purposes coextensive with the particular pro-

visions of riparian law at any specific point in its development. According to

the adoption statute, as interpreted by the court, their rights were always sub-

ject to modification by the legislature, at least to the extent required by the

conditions and wants of the people.


__ I_ ___1_~_








-9-


Despite this very broad theory implicit in the opinion, the Rnery case is

not too strong a precedent for upholding the Michigan law. The opinion never

makes clear to what extent the legislature may modify riparian rights, and the

change in the status of riparians under the Kansas law is not as extensive as

the possible modifications which would be effected by adoption of the Michigan

proposal. As the Michigan law, the Kansas law preserves used rights, which

it defines as rights under which beneficial use had been made at some time

within three years prior to enactment of the law.1!/ But under the Kansas law,

used rights are not assigned retroactive priority and do not seem to be subject

to forfeiture upon nonuse after the enactment of the statute; furthermore, un-

used rights, lost because of nonuse prior to the statute, though not protected

by injunction, seem to entitle their holders to damage awards under a general

clause in the statute which provides that all injured common law claimants may

bring a suit for damages. This clause is specially emphasized by the court in

one part of its opinion.

This emphasis on the damage remedy explains certain other statements in

the opinion which at first glance seem to offer poor reasons for upholding the

statute. For example, the court states that the "heart of the statute" is a

declaration that "all water is ... dedicated to the use of the people ... sub-

ject to the control and regulation" of the appropriation law, and the court

characterizes all specific provisions dealing with riparian rights as mere

matters of procedure, / This view must be based largely on a conclusion that

all the statute does in modifying riparian rights is to eliminate the

injunction remedy previously available to nonusing ripariansdesiring to commence

a use of water. Substantive rights are preserved because the common law claim-

ant can still sue for damages.

The court's emphasis on the available damage remedy also explains why the

opinion seems to treat the statute's effect on riparian rights as no more than


____________________________________








- 10 -


the result of a further step in the same direction as the change from a "natural

flow" to a "reasonable use" rule, which some of its own previous decisions17/

had adopted without the aid of legislation;

"(The declaration that all water is dedicated to the use of the people)
*. forms the basis of a different approach to the solution of questions
concerning water rights than we have had in some of our opinions. Hereto-
fore we have approached the questions largely on the basis of individual
interests alone. Under this declaration and other provisions of the act
we now approach them upon the basis of the interest of the people of the
state without losing sight of the beneficial use the individual is making
or has the right to make of the water. Unused or unusable rights are
predicated alone upon theory become of little if any importance. road
statements found in some of our opinions, such as 'Every man through
whose land a stream of water runs is entitled to the flow of that stream
without diminution or alteration ... must be disregarded or modified to
harmonize with this declaration. The chane is n appropriate one for
the legislature to make." (tphasis supplied )_

In other words, the legislature has the power firmly to establish the change in

Kansas from a "natural" flow to a "reasonable use" rule. It may abrogate the ef-

fect of broad "natural flow" statements found in some Kansas cases by eliminating

the injunctive remedy with respect to nonusers who do not contemplate immediate

use of the water. The legislature may take the further step of denying equitable

relief even to ripar-l ho do contemplate immediate use. However, the new

approach of the Kansas statute does not lose sight of the "beneficial use the

individual is making or has the right to make of the water". To the extent

that he is using water, the statute preserves the individual's right to continue

using it. As to the right of a riparian to use water in the future, the statute

gives him a chance to become an appropriator. Or, if the riparian cannot do so

because senior appropriators are using the entire supply, he may sue for

damages.

Thus, while the Inery case seems to hold the riparian rights are not

"vested" to the full extent established by previous precedent and are subject

to legislative modification, the modification actually effected here, insofar

as it abrogated any rights, eliminated only the natural flow right which, as








- 11 -


was said, some Kansas cases had already done. As to any other modifications,

the statute, unlike the Michigan proposal, effected a change only in the avail-

able remedy or, as the court put it, only in a mere matter of procedure, not

S of substance. On its facts and in the light of some of the language in the

opinion, therefore, the Bery case does not directly support the power of the

legislature to change riparian rights as drastically as the Michigan proposal

S seems to do.

However, when the likely effectiveness of the damage remedy is further

analyzed, a possibility emerges which might make the Emery case more important

than it seems. At the time of the Ber case, a somewhat similar t

change effected by the Kansas statute had previously occurred i Nebraska.

In MCook Irrigation Company v. Crews and Cline v. Stock the Nebraska

Court, relying on statutes giving the power of eminent domain to irrigation

and power projects as works of internal improvement, but without the aid of

the type of provision found in the Kansas law, had granted irrigation appropria-

tors injunctions against upstream riparians, and had refused to grant down-

stream riparians injunctions against upstream irrigation appropriators. The

court held that appropriators for irrigation do not need to condemn riparian

rights before commencing their appropriations. They can proceed to use water

and protect their use by injunction, and they are only liable for damages to

the extent of a riparian's injury. The McCook opinion also indicated that the

rights a nonusing riparian are probably "infinitesimal", and that his

damages are likely to be only "nominal".-L

At first it is difficult to see why a nonusing riparian who contemplates

an immediate use, should not receive a substantial amount in a permanent

damage suit. Later in the paper several reasons are offered.- Pbr present

purposes, it is sufficient to indicate that one possible reason which the

court in the McCook case might have had in mind may be that, in a suit for


______-___l








12 -


S pman nt m-ges, the riparian's inability to obtain an injunction will be

taken into consideration, and his damages will be declared nominal because, no

matter what uses he might contemplate, he could not possibly carry them out.

If this view were ultimately adopted in Kansas, the Kansas statute will in ef-

fect have eliminated riparian rights to the extent they were not used within

three years prior to enactment. It will thus have effected some of the changes

which mightfossibly result from the adoption of the Michigan proposal.

Whatever doubts may remain about the importance of the erym case, there

are a number of other opinions which uphold more explicitly the legislature's

freedom to modify riparian law and to re-define the extent of the riparian's

"title" to use water. Some of these cases have dealt with legislative changes

occurring under circumstances where riparian law had never been applied by the

court but seemed unwittingly to have been adopted by the common law adoption

S statute% and, other cases have involved circumstances where prior to the modifica-

tion a number of cases had held that the riparian system was part of the law of

the State.

Arizona is an example of a Western Territory where the riparian sys-

tem never had been recognized by the courts. In Bouquillas v. St. Davis Ass'n.,

would-be water users claimed riparian rights on the basis of the Howell Code of

1864, which contains the Territory's common law adoption statute:

"The Common law of England, so far as it is not abrogated or in-
consistent with the Constitution of the United States or the bill of
rights or Laws of the Territory, is hereby adopted and shall be the
rule of decision in all the courts of this Territory."24/

This adoption statute, which, on the face of it, did not seem to contain as

strong a modification clause as the Kansas adoption law, was, nevertheless,

held not to prevent legislative elimination of riparian rights, at least to

the extent that these had not been put to use:

"If the Legislature of the Territory may confer riparian rights
by statute, it seems to us clear that it may do so upon the condition

,,,, ,, ,,, ,,, ", ,,,______







- 13 -


that such rights as conferred may subsequently be modified or abrogated.
Where the legislature has, subject to future legislation, conferred
riparian rights to the use of water from flowing streams upon riparian
owners, the lattereannot be said to be vested in such a sense as that
they may not be subsequently abrogated by statute. At any rate, when
the riparian owner has made no use of the water permitted him at
common law.2 /" (emphasis supplied)

When this case came before the Supreme Court of the United States Mr.

Justice Holmes found other sections in the Howell Code which justified the

abrogation of riparian rights. But he indicated that even without these

sections the Legislature would have been justified in changing or abrogating

the riparian system, despite the general adoption of the common law:

"...We agree with the Territorial Court that, construed with the
rest of the code, (the adoption statute) .. is far from meaning that
patentees of a ranch on the San Pedro are to have the same rights as
owners of an estate on the Thames.

"In the first place, this is merely the adoption of a general
system as against another general system (the Spanish-Mexican) that
has been in force.... If there were nothing more in the Code, it
would be going a great way to say that such a broad phrase forbade
the court to hold that the common law was adaptable... It might be
argued with force that an amendment, inserting the words 'so far
only as consistent with and adapted to the natural and physical
conditions and the necessities of people thereof' merely expressed
what was implied before. (Rev. Stats. 1887, Sec. 2935) And the like
might be urged with regard to Section 3198 of the Revised Statutes
1887, which declared that 'the common law doctrine of riparian rights
shall not obtain!"27/

Perhaps the Territorial Court's emphasis on unused rights and the fact

that the case occurred in a jurisdiction where riparian law had never been ap-

plied weakens the authority of the Bouquillas decision for purposes of justify-

ing the changes contemplated by the Michigan law. But there are other instances

where western courts, without the aid of special legislation, have effected the

abrogation or modification of riparian rights, though these rights previously

had been judicially recognized. While these cases did not always involve ex-

plicit constitutional determinations, they do help to illustrate the wide range

afflux in a riparian's so-called "vested" right. In one jurisdiction, Nevada,

the court was willing to overrule an earlier decision in order to accomplish the

i~_








14 -


ultimate rejection of riparian law.2- In jurisdictions like Texas and Washington,

where both riparian and appropriation rights are recognized, the judiciary has

been willing to modify riparian rights to make more water available to appropria-

tors. While, as shall be seen later on, the Texas courts have held certain

modifications of riparian rights unconstitutional,2l/some Texas decisions have

gone so far as to limit riparian rights to the ordinary flow and have held that

waters above the line of "highest ordinary flow" are flood waters to which ri-

parians have no claim superior to that of appropriators.3- Because of the

peculiar conditions of rainfall and run-off prevailing in Texas, the "highest

ordinary flow" usually amounts to a relatively small portion of annual stream

flow. Moreover, Texas has limited riparian owners to whatever portion cf te ordinary

flow is reasonably sufficient for their needs and has made any excess available

to appropriators. California and Washington do not permit riparians to store

water for any great length of time.3./ Of course, these limitations in the amount

of use are, at best, analogous only to the Section 5 restrictions in the Michigan

proposal and do not support that proposal's additional modifications of riparian

rights. But in Washingtqn, the Supreme Court has effected a more extensive

reduction of riparian rights. Despite an earlier history of defending "vested"

riparian rights against encroaching appropriations,2/that Court in 1923 began

to make final and conclusive adjudications awarding to riparian owners only

that amount of water which they were already beneficially using or which they

proved they would use within a reasonable time after the adjudication.3/ How-

ever, it should be noted that this change is analogous to the Michigan proposal

only to the extent of that proposal's effect on unused rights.

One important case supports the constitutionality of the Michigan proposal

to a greater extent than all the decisions discussed thus ftr. In In re Hood River-

the Oregon Supreme Court upheld sections of the 1909 Water Code which preserved

riparian rights only to the extent of use at the time of its enactment or shortly


i.:d


IC~ __~


~I-~--~---~--C~I--X~-9-IL*~L-Q








- 15 -


prior thereto.L- The opinion pointed out that the Oregon riparian law had

always been a modified version. The Court emphasized that, at the time of

the patent of the land held by the riparian claimants in the case and at the

time of the adoption of the common law in Oregon in 1864, the appropriation

system was also in effect; riparians were not the exclusive water users; many

previous cases had dealt only with conflicts between riparians and did not

settle their rights against appropriators; and that, the very existence of the

appropriation system should have been an indication that riparian rights were

subject to modification. While "vested" and established rights, including

those of riparians, had been preserved by all Oregon laws prior to the 1909

Code, the Court held that the legislature nevertheless had the power in 1909

to re-define the scope these "vested" rights was to have in conflicts between

riparians and appropriators:

"The very essence of the common law is its flexibility and
adaptability. It does not consist of fixed rules, but it is the
best product of human reason applied to the premises of the ordinary
and extraordinary conditions of life, as from time to time they are
brought before the courts. Although the common law is homogeneous,
yet it finds widely different expression in different jurisdictions.
If the common law should become so crystalized as to require that
its expression must take on the same form wherever the common law
system prevails, irrespective of physical, social or other condi-
tions peculiar to the locality, it would cease to be the common law
of history and it would be an inelastic and arbitrary code. It is
one of the established principles of the common law which has been
carried along with its growth that precedent must yield to the
reason of different and modified conditions.

"The common law having been partially adopted by statute, it is
plain that the common law rules as to continuous flow of a stream or
riparian doctrine may be changed by statute, except as such change
may affect some vested right ... those obtaining title to land take
the same, subject to the aws then prevailing ... when the State con-
veyed the land to the riparian's predecessors the law prevailing in
this State authorized the appropriator, subject to rights existing
at the time of his appropriation, to take water from the streams of
the State for beneficial use and convey the same to non-riparian
land provided he could legally obtain access to the stream. No
one has any property in the water itself but the simple usufruct.
It was within the province of the Legislature by the Act of 1909 to
define the 'vested' right of a riparian owner, or to establish a
rule as to when and under what condition and to what extent the








16 -


'vested' right should be deemed to be created in a riparian appropriator."
(Bnpbasis supplied.)

The Hood opinion thus explicitly sanctions the modification of unused rights

by retroactive legislative re-definition. The change was as extensive as the

modification of riparian rights other than Class A rights contemplated by the

Michigan proposal. Moreover, the Hood case and subsequent Oregon cases indicate

that the 1909 Code also effected a further modification of the rights it pre-

served. Although the statute itself preserves used rights and does not rank

them retroactively in terms of their priority, as the Michigan proposal does,

the Hood case, as well as cases prior and subsequent thereto, have held that

a riparian who claims a specific amount of water on the basis of use begun at

a particular time waives his riparian status and claims as an appropriator. It

also has been held that all rights obtainable in an adjudication must be for a

given quantity of water. Thus, used rights receive effective protection in

Oregon only after they are converted to appropriative rights; as in the case of

the Class B rights under the Michigan proposal.

There is, however, one remaining important difference between the Michigan

proposal and the modifications considered by the Hood case and other cases dis-

cussed thus far. These cases all occurred in states where the riparian and

appropriation systems had already existed side by side, prior to the 1945

statute. It can, therefore, be argued that in these states modifications of

riparian rights in favor of appropriators were not as drastic a change in the

law as that effected by the Michigan proposal. The contention could be made

that Michigan and other eastern states never had an appropriation law and did

not allocate water to nonriparlans. Therefore, in Michigan the effect of the

proposal is to take water from riparians and allocate it to entire newcomers,

whereas in the western states the changes in question effected merely a re-

adjustment between two groups of water users who acquired their rights by


~--- --~1








-17-


different, previously recognized methods. As will be seen, this argument is also

applicable to many of the police power cases which will be discussed presently.

Its final evaluation must await consideration of these cases.

Aside from the possibility that modification of riparian rights in favor of

appropriators may not be permissible in a state which never had the appropriation

system, the cases thus far discussed do not establish a definite line beyond

which the legislature may not go. It is clear that the change may occur after

the land is patented. And except for an offhand remark in the opinion of the

Arizona Territorial Court in the Bouquillas case, the cases sustain modifica-

tions of both used and unused rights. Several of the opinions, however, stress

a previous trend to modify the common law and the existence of local conditions

which call for further change. Thus, the only limitation on the Legislature 's

power seems to be that the change must be one which can be reasonably anticipated

in the light of the trend of past decisions and the wants and needs of the people

under ever changing conditions. The extent to which a riparian right is "vested"

caEnot be expressed with a greater degree of certainty.



III.


Cne also cannot be certain how far a riparian's right -- once it is found

to be "vested" -- may be modified under the police power in the face of objec-

tions that the Fourteenth Amendment and similar state constitutional provisions

are violated. Occasional assertions that according to many Supreme Court

decisions, there can be no Federal constitutional objections to a state's

modification of its water law are based on cases that are not as far reaching

as they are sometimes thought to be. A number of these cases deal merely with

the power of the states to control navigable waters.-~ Statements in other

cases are mere dicta, and, at any rate, are not specifically focused on the








18 -


extent to which a change in law may impair "vested" rights.37/ Cases allowing a

change merely have permitted a state to authorize condemnation by declaring that

certain uses serve a public purpose or have dealt with laws which were construed

as protecting holders of rights previously superior by providing for compensation.

One United States Supreme Court opinion frequently cited tains very power-

ful lanaage which does seem to sanction actual modification of riparian rights

but under very social circumstances. In Hudson Water Co. v. McCarther3-2 the

Supreme Court of the United States upheld a New Jersey statute prohibiting the

diversion of water from an intrastate stream for use in another state. It was

not clear whether this diversion would have been permissible under state law

even without the statute. But Mr. Justice Holmes was willing to assume that

without special legislation out-of-state diversion was permissible. At least,

by way of alternative ground, he upheld the statute as a proper police power

measure.

"All rights tend to declare themselves absolute in their logical ex-
treme. Yet, all, in fact, are limited by the neighborhood of principles
of policy which are other than those on which the particular right is
founded and which become strong enough to hold their own when a certain
point is reached. The limits set to property by other public interests
present themselves as a branch of what is called the police power of the
State. The boundary at which the conflictinginterests balance cannot be
determined by any general formula in advance, but points in the line,
helping to establish it, are fixed by decisions that this or that con-
crete case falls on the nearer or farther side ...

"It sometimes is difficult to fix boundary stones between the
private right of property and the police power when, as in the case at
bar, w know of few decisions that are very much in point. But it is re-
cognized that the State, as quasi-sovereign and representative of the
interest of the public, has a standing in court to protect the ... water
within its territory ... irrespective of the assent or dissent of the
private owners of the land most immediately concerned ... What it may
protect by suit in this court from interference in the name of property
outside of the State's jurisdiction, one would think that it could pro-
tect by statute from interference in the same name within.

"The problems of irrigation have no place here. leaving them on
one side, it appears to us that few public interests are more obvious,
indisputable and independent of particular theory than the interest of
the public of a State to maintain the rivers that are wholly within it
substantially undiminished, except by such drafts upon them as the

__. -.... .









- 19 -


guardian of the public welfare may permit for the purpose of turning them
to a more perfect use. This public interest is omnipresent wherever there
is a State, and grows more pressing as population grows. It is fundamental,
and we are of opinion that the private property of riparian proprietors
cannot be supposed to have deeper roots, Whether it be said that such an
interest justifies the cutting down by statute, without compensation, in
the exercise of the police power, of what otherwise would be private rights
of property, or that apart from statute those rights do not go to the height
of what the defendant seeks to do, the result is the same. ... The private
right to appropriate is subject not only to the rights of lower owners but
to the initial limitation that it may not substantially diminish one of the
great foundations of public welfare and health,"40/

It seems that no all-encompassing generalization is possible. The outcome

of a police power case cannot be readily predicted. The particular problem the

legislature seeks to cope with and the particular methods adopted determine the

decision to a certain extent. The general rule is that the legislation must be

reasonably necessary to accomplish the ends sought. But every legislative action

reasonably necessary for the accomplishment of proper legislative ends does not

free a state from the obligation to compensate injured property holders. The line

is not easily drawn. The question is one of degree. The best one can hope to

find in the search for precedent are "boundary stones."

Most of the state court cases which seem to invalidate legislative modifica-

tion of used and unused riparian rights do not clearly indicate that a statute

such as the Michigan proposal reaches beyond the bounds of the police power. In

some cases the invalidated law does not on the whole involve the type of change

the Michigan proposal contemplates, and these cases sometimes assert that police

power regulation of riparian rights is possible by a properly drafted measure.

Other cases discuss vested rights and the police power only in dicta, and still

others simply mention the importance of vested rights without consideration of

the police power justification.

For example, in Texas, a jurisdiction, where, as previously noted, the

courts themselves have somewhat narrowed the scope of riparian rights,-/the

Court of Civil Appeals in the 1931 case of Feeland v. Peltier--. seemed to








- 20 -


hold unconstitutional provisions of a 1917 statute, on the whole affecting only

unused rights, which declared that an appropriator, after three years' use, was

to acquire a title by limitation against all other claimants, including riparians.

The decision, in holding the provision inapplicable to riparians, seems to be based

on constitutional considerations, but it is not too explicit and contains no mention

of the police power. Similarly, in a holding significant for both used and unused
42/
rights, the North Dakota Court held in Bigelow v. Draper that a constitutional

provision to the effect that "all flowing streams and natural water courses shall

forever remain property of the State for mining and irrigation and manufacturing

purposes" was not "framed to divest the rights of riparian owners." The court said

that if the provision were differently construed it would violate the Due Process

Clause of the Fourteenth Amendment. However, the opinion left open the possibility

of valid police power modification of riparian rights, as, for example, by legisla-

tion prohibiting a group of riparians from uniting to use water for purposes which

would result in the utter destruction of a stream. In 1913 the South Dakota Court
43/
stated, without differentiating between used and unused rights, that a 1907 law

dedicating all waters to the public, requiring a fee for a permit to use water,

compelling payment by users of the cost of hydrographic surveys, and providing for

loss of rights after three years non-use, could not constitutionally be applied to

riparians. However, these statements were not necessary to the outcome of the case,

and the State has since felt free to enact legislation modifying riparian rights.

A 1955 appropriation statute preserves riparian rights only to the extent to

which they were put to beneficial use within a specified period prior to enactment.

This law has not yet been tested before the courts.

One of the strongest statements against a particular police power modification

of both used and unused riparian rights is the opinion in the 1926 California case

of Herminghaus v. Southern California Edison Company. At least since 1886 Calif-

ornia has been a state where riparians have been accorded maximum protection in con-








21 -
-21-


tests with appropriators. While riparians were limited to a reasonable use in
4Z/
relation to each other, they could demand that a junior pproprator not diminish

or in any other way affect the natural flow of the stream. Downstream riparians

frequently benefited from a natural irrigation of their land by overflowing flood

waters at certain times of the year, and the courts readily granted riparians in-

junctions to protect their rights to the natural flow of these flood waters when

junior appropriators attempted to impound them at upstream points. But to exercise

this right a riparian had to have a great quantity of water flow by his land so that

the stream would overflow; most of this water was not actually used for irrigation

but served only to lift a very small portion of the total flow onto the riparian

land, and after it had done its lifting job it frequently flowed on unused to the

sea. California, by a 1913 statute, had sought to remedy this situation somewhat by

limiting the use of a water for natural irrigation on certain lands to A yearly

amount of 2J acre-feet per acre. It was this statute which the Hermingus case

held to be unconstitutional in the following language:

"It may be conceded that the phrase 'police power of the state'
has, in its scope and meaning, been subjected to quite a severe strain
of recent years, in the endeavor to expand it as to cover all sorts of
legislation sought to be enacted in the asserted interest of modern
progress. But we have yet to be referred to a case where it has been
judicially so far expanded as to invest the legislative department
of this State with arbitrary power to destroy vested rights ... when ..
employed in the useful and noise harmful production of wealth and
when such use and product thereof cannot be said or shown to be
inimical to public health or morals or to the general welfare, but on
the contrary must be conceded to be beneficial to each and all of
these ... The extent to which such riparian land owners need the use
and are entitled to have the benefit of the flow and overflow of such
waters under their vested riparian rights therein is a matter which
depends on the circumstances of each particular case, upon location,
aridity, rainfall, soil porosity, responsiveness, adaptability to par-
ticular forms of production, and many other elements which make the
question essentially one for judicial inquiry ... If the state were
here essaying to uphold an effort on its part to work out impartially,
unselfishly, and ... in the interests of the whole people some general
plan or system for the equitable adjustment of rights and uses in its
flowing streams with a view to conservation, development, and distribu-
of the dynamic forces and generative and fertilizing fructabilities of
their waters, it might well be argued that public policy and public
interest, and a most liberal interpretation of the police powers of the

_____________








22 -


states might rightfully be invoked in support of such an effort.

It is readily seen that even this very forceful opinion did not object to

police power modification of used and unused rights as such. The opinion stated

that a fair and equitable modification truly designed to benefit the economy and

conserve water might be upheld. Only the specific modification before the court

was objectionable, and that because it did not take into account particular circum-

stances and deprived the courts of the power to do so. The Herminghaus case did not

say explicitly that determinations of reasonableness of riparian uses cannot be

taken out of the hands of the courts and delegated to an administrative agency. It

has been held in California and other states and by the Supreme Court of the United

States that the determination of water rights in the light of particular circum-

stances need not always be in the hands of the courts, at least not in the first

instance. Administrative agencies can be empowered to do a great deal of the

initial fact-finding and water allocation, and the few cases which have ruled other-

wise occurred prior to the development of modern administrative law and procedure.

Even where the legislative generalizes to a certain extent on what constitutes a

reasonable use, thus taking away a certain amount of discretion from the courts and

administrative agencies, the legislation is not always invalid. That the Herming-

haus remarks about legislative generalization were addressed only to a particular

generalization under particular circumstances is borne out by other California

cases which have upheld legislation limiting losses of ground water used for irri-

gation to a specific percentage and restricting the use of ground water to domestic,

irrigation, and fish propagation purposes only.

Other developments in California tend to support the conclusions that the

Herminghaus objections to use of the police power refer only to the particular

legislation before it. A 1928 California Constitutional Amendment fared better.

While this amendment did not bestow new quasi-judicial power on administrative

agencies, it did compel the courts to modify both used and unused riparian r s.

The amend nt ovthings, that a riprian's right in relation to







- 23 -


that of a junior appropriator was henceforth not to extend to the natural flow or

to wasteful and unreasonable uses as had previously been the case, but was to be

limited to the reasonable beneficial use of water. The provision reads as follows:

"It is hereby declared that because of the conditions prevailing
in this State the general welfare requires that the water resources
of the State be put to beneficial use to the fullest extent to which
they are capable, and the waste and unreasonable use or unreasonable
method of use of water be prevented, and that the conservation of
such water is to be exercised with a view to a reasonable and bene-
ficial use thereof in the interest of the people and for the public
welfare. The right to water, or to the use or flow of water in or from
any natural stream or water course, is and shall be limited to such
water as shall be reasonably required for the beneficial use to be
served, and such right does not and shall not extend to the waste or
unreasonable use or unreasonable method of use or unreasonable method
of diversion of water. Riparian rights in a stream ... attach to but
to no more than so much of the flow thereof as may be required or used
consistently with this section, for the purposes for which such lands
are or may be made adaptable, in view of such reasonable and beneficial
uses; provided, however, that nothing herein contained shall be construed
as depriving any riparian owner of the reasonable use of water of the
stream to which his land is riparian under reasonable methods of diver-
sion and use; or of depriving any appropriator of water to which he is
lawfully entitled. This section shall be self-executing, and the
'Legislature may also enact laws in the furtherance of the policy in
this section contained.'"

In Gin Chow v. Santa Barbara, decided in 1933, the California Supreme Court held

that this amendment modified the degree of protection accorded ri

earlier decisions. But the court went on to say that the amendment constituted a

"legitimate exercise of the police power" not violative of the Due Process clause

of the Fourteenth Amendment, or in conflict with other provisions of the State

Constitution:

"... (The Amendment) is the highest and most solemn expression of
the people of the state in behalf of the general welfare. The present
and future well-being and prosperity of the state depend upon the con-
servation of its life-giving water ... the amendment purports only to
regulate the use and enjoyment of a property right for the public bene-
fit, for which reason the vested right theory cannot stand in the way
of the operation of the amendment as a police measure. A vested right
cannot be asserted against it because of conditions once obtaining. /

While this language is very broad, the fact remains that the California amend-

ment is analogous, at best, only to the Section 5 restrictions of the Michigan pro-

posal. Moreover, the amendment imposed these restrictions on riparian rights in a


__iII_____. ....... .....







- 24 -


State where the appropriation and riparian systems have existed side by side. What

hes involved was an adjustment between riparians and appropriators. One is thus met

again by the argument mentioned in the previous section, that the situation in an

Eastern State is entirely different, because the excess water made available by re-

strictions on riparian rights is not allocated to others who are also entitled to

a share of the common supply, but to newcomers. As indicated earlier, this argument

can be made about many of the cases allowing modifications of water rights on po-

lice power grounds, and it will be examined more thoroughly in a succeeding section

of this paper. For the moment, it serves to point up possible doubts about the

scope of the Gin Chow case.

Further doubts about the importance of the Gin Chow case are raised by the

opinion of the United States Supreme Court in United States v. Gerlach Live Stock
5Z/
Co. The court had to decide whether, subsequent to the 1928 amendment, lower

riparians should be compensated for loss of the benefit of natural irrigation due

to diversion of water by an upstream Federal irrigation project. Mr. Justice Jack-

son, answering in the affirmative, pointed out that Congress, in authorizing the

project, did not intend to interfere with vested water rights. He then held that

the California amendment, despite the absence of clear cut California decisions,

must have intended to withdraw only equitable remedies against junior appropriators

from riparians not making a "reasonable beneficial" use of the water; the damage

remedy must have been preserved; otherwise, one would have to reach the unlikely

conclusion that California intended to take valuable property rights without com-

pensation. The opinion is so eloquent that it becomes difficult to avoid quoting

certain passages at length:

"Riparianism pressed to the limits of its logic enabled one
to play dog-in-the-manger. The shore proprietor could enforce by
injunction his bare technical right to have the natural flow of
the stream even if he was getting no substantial benefit from it.
This Canine element in the doctrine is abolished. 'The right to
water or to the use or flow of water in or from any natural stream
or water course in this State is and shall be limited to such water


iyy








25 -


as shall be reasonably required for the beneficial use to be serv-
ed.. This limitation is not transgressed by the awards which
compensate one for the actual beneficial use. Any hazard to claim-
ant's cause lurks in the following clause: 'and such right does
not and shall not extend to the waste or unreasonable use or un-
reasonable method of diversion of water.' Since riparian rights
attach to and only to so much of the flow of the San Joaquin as
may be put to beneficial use consistent with this clause, claimants
can enforce no use of wasteful or unreasonable character.

"We assume, for purposes of this decision, that the prodigal use,
inseparable from claimant's benefits, is such that the rights here
asserted might not be enforced by injunction. But withholding equit-
able remedies ... does not mean that no right exists. There may still
be a right invasion of which would call for indemnification ..

"... The public welfare, which requires claimants to sacrifice
their benefits to broader ones from a higher utilization, does not
necessarily require that their loss be uncompensated any more than
in other takings where private rights are surrendered in the public
interest. The waters of which claimants are deprived are taken for
resale largely to other private land owners not riparian to the river
and to some located in a different water shed. Thereby private lands
will be made more fruitful, more valuable, and their operation more
profitable. The reclamation laws contemplate that those who share these
advantages shall, through water charges, reimburse the Government for
its outlay. This project anticipates recoupment of its cost over a
forty-year period. No reason appears why those who get the water should
be spared from making whole those from whom they are taken. Public
interest requires appropriation; it does not require expropriation.

troyed and confiscated a reco ised and adjudicatd private property
right, or that it remain cmnable although no er eorcible by
injunction." g/ (hphasis supplied)

At first glance, the last quoted sentence seems to draw a line beyond which the

police power cannot impair riparian rights. The court seems to say that the damage

remedy cannot be taken away without violating the Fourteenth Amendment. But the

Fourteenth Amendment is not actually mentioned, and the whole context of the dis-

cussion seems to be one of speculation on what California was likely to have intend-

ed in the light of considerations of fairness, rather than a context of serious

constitutional consideration. Moreover, it is not clear whether Mr. Justice Jackson

meant to speak of the effect on both used and unused rights or whether he had only

used rights in mind. It should also be noted that the sentence in question speaks

of "adjudicated" rights. This is a reference to a part of the opinion not quoted,

where it is pointed out that the particular riparian rights in issue in the Gerla1h








26 -


case had been protected by an earlier California decision. Perhaps Mr. Justice

Jackson, in speaking of expropriation, meant to apply this strong language only to

those specific rights which had, prior to the 1928 amendmentbeen upheld in the

course of litigation. Still, one cannot be sure and the Gerlach case may foreshadow

important limitations on the states' police power.

In seeming contrast to the Gerlach case, many decisions by the Supreme Court of

the United States and by federal and state courts have upheld a wide range of police

power regulations of the extraction of ground water and oil and gas, which regula-

tions have affected both used and unused rights and did not preserve a damage remedy

for the deprived "owner." With respect to ground water, judicially approved police

power measures have included imposition of a tax on artesian wells to prevent

waste, authorization of public officials to repair and/or plug wasteful artesian

wells at the owner's expense, the previously mentioned restriction on the use of

artesian water by allowing only domestic, fish propagation and irrigation uses and

limiting irrigation uses so that the water lost could not exceed a maximum percent-
6l1/
age, and prohibition of pumping of ground water for the sole purpose of extracting
62/
gas for public sale. In connection with oil and gas regulation, the courts have

upheld prohibitions of gasflaring at the wellhead, restrictions on the use of
64/
sweet gas for the production of carbon black, regulations of the use of vacuum

pumps, and well spacing, gas-oil ratio, proration, and compulsory unitiza-
69/ 70/
tion laws. These statutes have generally been upheld on the basis of two theor-

ies: the state has the power to protect relative rights of owners in a common
71/
source of supply, and the state may take measures to prevent physical waste and

assure maximum recovery and use of an important resource; in the oil and gas cases
Z3/
the state also has the power to prevent economic waste, which occurs when the mar-

ket becomes depressed because of oversupply.

The decisions adverse to regulation of ground water or oil and gas extraction

are not controlling for purposes of this study. There is at least one decision in

_________________________






- 27 -


a rule-of-capture state denying the state's power to regulate wasteful use of

artesian wells. The opinion rests, however, on the theory that the statute inter-

fered with the overlying owner's absolute right to capture water no matter what the

effect on his neighbor. The riparian owner has no such absolute right to stream

water. Moreover, the case is not in accord with the general trend of decisions up-

holding regulation of ground water waste without regard to the particular ground
water use rule prevailing in the state. Similarly, while certain oil and gas

regulations have been held invalid because of the particular oil and gas ownership

theory prevailing in the state, most federal and state decisions have upheld

a great variety of oil and gas measures regardless of particular "ownership" theor-
11/
ies. These cases generally involve measures which have as their purpose both

conservation in the public interest and the protection of common rights of private

owners, but some of the opinions have upheld measures solely on the ground that
correlative private interests are protected, without relying on any benefit derived

by the general public. And, while there is an implication in a 1909 New York

ground water opinion that a pure conservation measure which does not at the same

time protect ccmmon rights might be unconstitutional, there are more recent oil and
gas cases which have held that where there is a conflict between the goal of pro-

tecting private rights and the public interest goal of conservation and economic

welfare, the public interest goal must prevail.
Despite the broad range of the aforementioned cases, it is arguable that they

are not very strong authority for upholding the Michigan proposal. Some of the pos-

sible objections are similar to those mentioned in connection with the Gin Chow case.

It might be argued that the type of regulation is not analogous, except perhaps to

the extent that in certain instances it may seem similar to the Michigan proposal's

Section 5 limitation on amount and method of use, and perhaps to that proposal's
restriction of Class A rights to certain types of use. But even this analogy does

not fully hold true, because the restrictions upheld in the aforementioned eases
benefit all or some individuals having a ccanon interest in the resource, while the
Michigan proposal's Section 5 & Class A restrictions make the excess water available


-1








28 -
to newcomers. In addition, it can be argued that thou some of the aforementioned cases
stress the public interest in waste prevention as more important than the interests

of private individuals in the protection of their rights in a common resource, what

is involved is the prevention of waste of an exhaustable and not a renewable re-

source, such as stream and lake water.

Two cases have dealt with ground water statutes more analogous to certain as-

pects of the Michigan proposal than the waste regulation measures discussed above.
81/
In Southwest Engineering Co. v. Ernst, decided in 1955, the Arizona Court passed

on the validity of a statute authorizing administrators to prohibit new irrigation

wells in basins where existing uses exceeded annual re-charge and the amount of

remaining storage was necessary to maintain the level of existing use. The statute

was upheld, despite the fact that in Arizona groundwater was not subject to appro-

priation but governed by the American rule of reasonable use. Part of the opinion

reads as follows:

"Where the public interest is thus significantly involved, the
preferment of that interest over the property interest of the indiv-
idual even to the extent of its destruction is a distinguishing char-
acteristic of the exercise of the police power. The principle which
we recognize here as controlling rests upon historic precedent ex-
tending back into the common law ... and has had continuous recog-
nition almost to the present moment.

"... there is a preponderant public concern in the preservation
of the lands presently in cultivation as against those potentially
reclaimable. And where as here the choice is unavoidable because a
supply of water is not available for both, we cannot say that the
exercise of such choice, controlled by considerations of social
policy which are not unreasonable, involves a denial of due process."8/

The Arizona statute is analogous to the Michigan proposal only to the extent

that that proposal eliminates unused rights where there is insufficient water for

Class A, Class B, and appropriative rights with an earlier priority. The Ernst

case is not very good authority for upholding the Michigan proposal's provision for

retroactive priority amongst Class B users. And while the Arizona statute is more

drastic than some of the previously discussed groundwater and oil and gas waste

provision measures in that it cuts off entirely the rights of some to protect the








- 29 -


interest of others, those others are not newcomers in the way that some of the appro-

priators under the Michigan proposal might be. Moreover, the Arizona statute, like

some of the oil and gas conservation laws, involves to a large extent the conserva-

tion of an exhaustible resource.

It is also arguable that the Arizona statute does not change the judicial

groundwater allocation rules of the state as drastically as the Michigan proposal

would change the riparian law. The groundwater reasonable use rule, unlike the

riparian rule as that rule is often understood, has on the whole been interpreted

to permit one who uses the water on his own land to make a reasonable use even if

the result is to cut off the water of a neighboring landowner. In other words,

reasonable use by one who uses water on his own land is judged solely in terms of

the relation of the water to the needs of the land on which it is being used, not in

relation to the needs of others. The argument can therefore be made that the Arizona

statute does not take away the rights of the nonuser because he really has no right

where a neighbor is free to cut off the supply. This argument has many weaknesses

and was not stressed by the Arizona court since the court had frequently held that a

land holder owns the percolating water under the surface of his land. Still, this

argument has substantial backing by authority in view of its similarity to arguments

offered by opinions in partial justification for upholding ground water, and oil and

gas, waste prevention measures. In contrast to the hazardous position in which each

land holder finds himself under the ground water reasonable use rule, a riparian's

rights supposedly cannot as readily be cut off by his neighbor, since the reasonable

use of each is measured in part by the reasonable needs of the other. To the extent

that the Michigan proposal impairs this substantial right, it goes far beyond the

Arizona statute.

This reason for discounting the -significance of the Ernst case finds some sup-

port in City Mill Copany v. Water Commission, decided in 1929, where the Supreme

Court of Hawaii held that the denial of a ground water use permit because the supply








- 30 -


was already overdrawn constituted a violation of the Fourteenth Amendment. The

opinion's principal ground was that the police power cannot be invoked to cut off

one landowner while others may continue to make full use of the water. While the

court did not believe that it had to decide the question of what judge-made rules

was to govern a landowner's right to use ground water in Hawaii, the opinion did

indicate that probably the rule of correlative rights would be deemed to prevail.

This rule is similar to the riparian rule in relating the amount of water each is

allowed to use to the amount needed by others. Still, there are many reasons why

the case is not a strong precedent against the validity of the Michigan proposal.

The correlative rights doctrine, on the whole, is more of an equalitarian distribu-

tion doctrine than the riparian law under which it is at least theoretically possible

to cut off another's use where the interfering use is decidedly more beneficial to

the public interest. This cutting off is especially possible in Michigan where the

courts on the whole have not apportioned water between riparians, but in the case

of equally reasonable uses have intended to prefer the upper user. Moreover, the

Hawaii Court, in addition to leaning towards the correlative rights doctrine,

seemed to favor the theory that overlying landowners were, in a certain sense,

"owners" of the ground water supply. The riparian doctrine does not include the

notion that riparian owners are "owners" of stream water; their rights are generally

asdto be usufructuary. Furthermore, the Hawaii Court was especially concerned by

the fact that new users were refused permits while previous users were guaranteed

permanent rights. As will be shown in greater detail below, this does not necessar-

ily hold true under the Michigan proposal, which provides a number of grounds on

which prior appropriators can be cut off to let in new users.

The strongest case upholding the type of changes contemplated by the Michigan

proposal on police power grounds is the decision of the Ninth Circuit in California-

Oregon Power Co. v. Beaver Portland Cement Co. In that case the constitutionality

of the 1909 Oregon Water Code was again put to the test and again upheld. It








- 31 -


will be recalled that that code, as interpreted by the Hood case, modified both used

and unused rights in a manner similar to the Michigan proposal. The Ninth Circuit

opinion makes several important points. First, it asserts that not only conservation

of the physical resource but the general economic welfare of the community is the

proper object of water rights modification under the police power:

"The question is whether or not the modification of riparian rights
effected by the Statute of 1909 ... could reasonably be regarded as es-
sential to the accomplishment of the ends sought. That those ends may
properly include the economic welfare of the community as wall as its
peace, health and safety is, of course, well established ... It can not
be doubted that the economic welfare of the people of Oregon was one of
the principal aims sought to be permitted by the Water Code ..." 8/

Second, the opinion treats water rights under the riparian law as use rights, the

modification of which, by subsequent legislation, has generally been more readily

upheld than retroactive alterations of other incidents of ownership of real property:

"Under the common law, the right of the riparian owner is to the
usufruct of the water and not to the water itself. Legislation limit-
ing the right to its use is, in itself, no more objectionable than
legislation forbidding the use of real property for certain purposes,
Euclid v. Ambler ... To argue, as plaintiff does, that riparian rights
are real property rights attached to the land does not put such rights
beyond the reach of the police powers! 88/

Third, the opinion treats the reallocation of water between riparians and appropria-

tors not as the reduction of the rights of one group for the benefit of the other

but as a fair adjustment between claimants to a common supply, which, as was pre-

viously seen, has frequently been held to be a proper object of police power legis-

lation. From what is quoted below it will also be seen that to a certain extent it

is not too clear whether the court treats the statute as effecting a readjustment
between riparians and "former" appropriators or only among riparians who after the
enactment of the statute were forced to claim as appropriators. In other words,
some of the opinion's reasoning seems applicable to a change from riparian to ap-
propriation law in the East where no appropriation law exists at the time of the
change.
"That the common law rights to the relative use of certain
natural resources may be modified in the interest of securing
fairer distribution thereof as well as prevent physical or economic
waste is established by Champlain Refining Co. v. aGkahcma ...
The modification of riparian rights which the Act of 1909 has








- 32 -


effectuated is not so drastic a change as to amount to taking
of property without Due Process of law. At camnon law the usu-
fruct of the property owner was not absolute. It was conditioned
on the equal right of every other riparian owner to the use of
the water. By the Oregon Code his usufructuary privilege was
not destroyed. His right to access to and to the equal use of
the waters for ordinary domestic purposes was preserved ... (As
to the other uses) on the one hand his unrestricted right reas-
onably to use his fair share of the water for beneficial purposes
is now subordinated to a prior appropriation. On the other hand,
he is no longer limited in such beneficial use to his fair pro-
portion of the waters ... and as a riparian owner he is in the
peculiar advantageous position to exercise the right of appro-
priation. The statute cannot be said to take away water from
one in order to give it to another, even though the effect of
the operation of the statute in a specific case was to transfer
the privilege of making some specific use of the water." 89/

The Supreme Court of the United States upheld the Ninth Circuit decision on

other grounds. One of the questions in the California-Oregon case was whether
21/
enactment of the Desert Land Act of 1877 meant that the 1885 patent for the ri-

parian land involved in this case conveyed a right to use water only for domestic

purposes. The Circuit Court held that the Desert Land Act did not limit the ri-

parian rights of the particular patentees, and the Court therefore reached the is-

sue of whether Oregon could invoke the police power to modify nondomestic riparian

rights. The Supreme Court of the United States held that the Desert Land Act ap-

plied to the particular patentees and that water rights connected with patents sub-

sequent to 1877 were not fixed but were held subject to whatever law the thirteen

affected states might impose. Since the Oregon Court had already held that patents
92/
after 1877 conveyed riparian rights only for domestic use, the Supreme Court never

reached the police power issue. This weakens the authority of the Ninth Circuit

opinion to the extent that the police power justification became unnecessary under

the Supreme Court's authoritative interpretation of the Desert Land Act. But one

need not conclude that the Supreme Court took the position it did because it was

embarrassed by the constitutional questions raised and did not want to pass on them.

More was at stake than the Oregon law. It is far more likely that the Court was

motivated by a desire to interpret the Desert Land Act so as to assure all the states


i








- 33 -


with lands affected by that Act that they were free to adopt whatever water law

they wished with respect to patentees of the public domain who received their patents

after 1877. Moreover, the strongest argument against using the Ninth Circuit case

as authority for allowing changes contemplated by the Michigan proposal is the by

now familiar contention that the Oregon case, unlike the Michigan proposal, involved

the readjustment of the rights between two groups who, prior to the statute, had or

at least could, obtain legal interests in a common source of supply. Though, as

was seen, the opinion does not stress this point at all times and, on the contrary,
seems at one point to uphold modification of riparian rights on grounds that would

be applicable in Eastern States, nevertheless the factual context was one of read-

justment between holders of riparian and appropriative rights to a common supply.

suarize, the lice power cases do not show thattbe modificaton of

used naugna riparian rights is necessarily beyond o4-

powe objectives o e exercise of the police power include conserva-

tion of hysi ces movement of the ecion w UM de ty,

and protection of the relative rights of those who hold interests in a common supply.

Despite the fact that the oil cases and some ground water cases deal only with an

exhaustible resource, the Ninth Circuit, Gin Chow and McCarter cases indicate that

the physical conservation objective may involve a renewable resource. The differ-

ence between an exhaustible and renewable resource is, after all, not so great.

Once the time factor is added to the equation they ae in many ways analogous.

Of course, as the Ninth Circuit put it, the modlfcation effected must be one

which "could be reasonably regarded as essential to the accomplishment of the ends

sought." Section 1 of the Michigan Proposal, quoted later on in this paper, de-

clares that the Proposal's modifications are necessary for objectives such as the

ones listed above, and under the usual judicial approach great weight will be at-

tached to the legislative finding. Moreover, it would not be difficult to prove

that there is a water problem in Michigan, that it is beneficial to Michigan's economy


^________ if








- 34 -


and essential for conservation purposes to allocate water in such a way as to

achieve optimum use and to encourage private investment in more beneficial uses

of water. The appropriation system can be shown to have a reasonable relation

to the accomplishment of these objectives. It tends to encourage investment by

establishing methods for obtaining more definite rights, and it tends to protect

the public interest in optimum use by removing the riparian land restriction and

by empowering an administrative agency, which should acquire a more comprehensive

view of the States' water problems than the courts are likely to have, to allocate

water to new appropriators whose uses are considered to be in the public interest.

These points may be conceded, and they will not be the main subject of debate

before the courts. At least for purposes of this discussion it will be assumed

that the Michigan proposal is reasonably related to legitimate legislative goals.

Mr. Justice Jackson's words, though perhaps not uttered in a context of

constitutional analysis, best express the more troublesome issue: Do conditions

which require "appropriation" justify expropriation? The courts have the ultimate

power to decide this question as a matter of constitutional policy. While many

of the opinions are not too explicit, the issue seems to be whether the law in

question imposes a disproportionate burden on a few for the benefit of others or

of the general public. Where the burden on particular individuals is not too

great in proportion to the benefit they receive, the entire expense of regula-

tion presumably does not have to be met by general taxation or even by specific

individuals who, incidentally, may derive particular benefit from the legisla-

tion. Under certain circumstances its equation can be expressed in terms of the

degree of change in the rights of individuals affected by the law. Where the

change is not a drastic one the burden is not a great one but one all individuals

must expect to bear as members of the general community. Thus, the ultimate

issue in the police power cases and the cases allowing legislative redefinition

of the extent of common law rights tends to become the same: Is the change in








- 35 -


individual expectations affected by the law so drastic that fairness demands that

individuals be compensated and that the expense be met by general taxation or

special assessment, no matter how desirable or necessary the law may otherwise be?

Do the cases provide one with any formula for prediction? Or, as Mr. Justice

Holmes put it, do judicial precedents at least provide one with boundary stones

which mark the line beyond which a particular police measure or legislative re-

formation of rights may not go without providing for the compensation of deprived

individuals?

In the eastern states there seem to be no analogous cases except a few ground

water control cases in New York which are previously mentioned. Eastern cases

sometimes cited as unfavorable precedent seem not to be controlling, but it may

be that controlling cases may yet be found in some of the eastern states. But of

the cases sometimes cited, both in Michigan and elsewhere, many involve legislative

attempts to declare navigable what are in fact non-navigable streams.a The issue

is usually narrowly presented, for the declaration is often intended to favor a

particular industry rather than to achieve optimum use in the public interest./

Thus, Michigan courts have held such declarations unconstitutional when logging

operations seemed to get out of hand.2/ If for purposes of this discussion it is

assumed that the Michigan proposal is a general public interest law, these cases

carry little weight. On the other hand, when the public interest demanded that

logging be encouraged, the Michigan court did not hesitate to declare navigable

any stream capable of floating a log.2 And in recent years, when the public

interest in recreation became important in Michigan, the court revived the log-

floating definition of public waters and perhaps even expanded it somewhat in

order to allow public fishing on a larger number of lakes and streams.7/ More-

over, at least one Michigan case has suggested that if the legislature should

find a public necessity, "navigable" waters might be made available for municipal

water supply without compensating the injured riparians.- All of this suggests

^_______________________________________








36 -


a great flexibility of the law.

Other cases cited as unfavorable precedents in the eastern states are even

less controlling. Some simply hold that a municipality without specific legisla-

tion may not take water for municipal water supply to the injury of riparians.7/

The language used is to the effect that municipal use constitutes a "taking," But

the context of a general legislative redefinition of riparian rights or of a

general police power measure effecting the reallocation of water is missing.

Another group of cases sometimes cited as unfavorable precedents involve state-

ments or holdings by eastern courts to the effect that riparian rights are not

lost by mere nonuse. 22 These statements reiterate a common phrase, but as

shall be seen below they do not imply that nonuse may never be a factor justifying

a limitation on the amount of water a riparian may later use. When this limitation

occurs it could so confine the scope of his permissible use as to make it impossible

for him to carry on his contemplated use. The ultimate question is whether the ex-

tent of loss a nonuser would incur under the Michigan proposal differs so greatly

from his expectations under riparian law as to justify characterizing the pro-

posal's effect as a "taking." The eastern "unused right" cases do not provide an

answer without further analysis.

The more analogous Western cases reviewed in greater detail in this paper

also fail to draw a specific line. The legislation may at times not go beyond

interfering with unused rights, but many cases seem to have upheld modifications

of used rights as well. Perhaps legislation in the water-resource field may never

go beyond the adjustment of rights between groups of users drawing on a common

supply, but the stream water cases do not always explicitly state such a limit

(though it is mentioned in oil and ground-water cases). If it is argued that the

cases on the whole have not gone beyond "readjustment situations," it might be

answered that they do not necessarily draw a line at this point. Thus, one is

forced to return to the more general formulation: Does the law effect a drastic








37 -


change in a riparian's present expectations?


IV.

In the first part of this paper it was shown why the courts might regard the

change brought about by the Michigan proposal as fairly drastic. To balance this

point of view an argument is now presented in favor of the proposition that the

Michigan modification of riparian rights is not very severe. It will be seen

in the course of this agrument that the distinction between used and unused

rights takes on less importance than it was previously thought to have, and so

does the criterion which seeks to limit modification to readjustments of common

rights to a common supply. The argument for the proposition that the Michigan

proposal effects no drastic change in existing law will begin with the proposal's

supposed changes in the relation of riparians to each other. To facilitate

discussion, analysis of changes resulting from the fact that riparians are accord-

ed equal treatment with nonriparians is postponed until later.

It is arguable that the preference accorded Class A users over riparians

forced to become Class B users or appropriators is not a drastic change. The ex-

isting riparian law prefers domestic uses, and there is no precedent against the

courts establishing preferences for additional purposes. Most of the uses

recognized by the courts up to now are included as Class A uses. Riparian Class

B users and appropriators are those who use water for purposes which might be

recognized as riparian in the future. When this occurs, the courts might decide

that the uses recognized up to now should be preferred over newly recognized

riparian uses. This is substantially how the domestic use preference came about.

For a time the courts, under the "natural flow" doctrine, permitted a material

diminution of the flow only for domestic uses. When other uses came to be

recognized "domestic uses" were accorded a preferred status* Moreover, the

riparian law is not a system of equalitarian allocation. Decisions frequently








- 38 -


prefer one use over another on the basis of the many elements which go into a

determination of "reasonable use." One of these elements is the public interest.

The legislative preference for Class A users should be understood as a legisla-

tive finding that the listed uses best serve the public interest -- a finding in

the area of greatest legislative competence. Furthermore, the preference for

Class A users is not absolute. Under Section 5 of the Michigan Proposal, Class

A users may not use more water than is necessary for a "reasonable beneficial

purpose", and they may not employ unreasonable methods of diversion. The

"reasonable beneficial purpose" concept is borrowed from western law, where the

word "reasonable" has been added to the original requirement that the use be

"beneficial" in order to put greater emphasis on the public interest in the

prevention of inefficient and uneconomic uses in certain kinds of situations.2

Thus, water that might be wasted or put to an uneconomic use by a Class A user

might, if not needed by other Class A users, become available to riparians who

hold Class B rights or qualify as appropriators.

Nor does the fact that riparian Class B users and appropriators lose their

rights upon five years nonuse constitute a drastic change of existing law. The

frequent statement that a riparian riht canot be lost by nolnuse while an

appropriator's nn l lver-ilificati Riparian rights may be lost by

nonuse-- under doctrines of prescription and estoppel. Under riparian law as

applied in Michigan and many other states, nonusers apparently cannot enjoin

users .12 When a nonuser later wants to use water, he may be granted damages

rather than an injunction against an existing user because of the Balancing of

Conveniences doctrine, or he may be denied both damages and injunction by a

holding that the existing use is not an unreasonable one. Priority of use is

one factor the courts may consider in weighing the relative reasonableness of

competing uses under riparian law, and it may become all important where there

are no overriding public interest considerations. Consequently, it could be

___________________








- 39 -


argued that the Michigan proposal's forfeiture provisions merely seem to regularize

these diverse ways by which riparian rights can be lost. Moreover, uses by

riparians holding Class B and appropriative rights may not be totally and ir-

revocably terminated upon five years nonuse. Class B users and appropriators are

free to apply for new appropriative rights, and, as will be shown in the succeeding

paragraph, their chance of acquiring new rights is not dependent solely on the

fact that there are no others who wanted to use the water first. Just as under

the riparian system, the nonuser's chance to make a new use under the Michigan

proposal depends on a variety of factors.

The notion that under the appropriation system one's right to use water

depends solely on priority in time may also be an oversimplification, especially

with respect to the Michigan proposal. A Class B user must show that he is making

a reasonable beneficial use, and presumably his use can be cut off at least

temporarily any time that it fails to meet this standard. The same holds true

for appropriators in the light of the limitations imposed by Section 5. As

previously indicated, the reasonable beneficial use criterion in western law

theoretically allows the administrator to take into consideration the public in-

terest in the prevention of inefficient and economically wasteful uses. Moreover,

in passing upon applications for new rights or for changes in use under existing

rights, the administrative agency under the Michigan proposal is specifically

instructed to take the public interest into consideration. The relevant pro-

visions of the proposal read as follows:

"Section 14. GROUPS FOR APPROVAL OR REJECTION OF APPLICATION.

Every application that fulfills all of the requirements of this Act, and
of the rules and regulations of the Commission promulgated in pursuance
thereof, shall be approved by the Commission. Before acting upon an ap-
plication, the Commission shall consider all the circumstances of the
proposed use of the water, including the character of the land and the
desirability of irrigting such land. The Commission shall also consider
whether the approvalof the application will impair any vested rights as
provided for in Section 7, ra, or will interfere with the maintenance
of the flow of the stream or level of the lake, as the case may be,











reasonably necessary to safeguard the uses provided for in Section 2,
super Any application, the approval of which would conflict with the
public interest, as stated in Section sura, or with the requirements
of this section, or which is shown not to have been made in good faith,
shall be rejected b the Commission. If two or more applications are
pending for a quantity of water that is inadequate for both or all, or
which for aT other reason are in conflict, the Commission shall have
the right to approve that application which best serves the public in-
terest. If in the opinion of the Commission there appear to be assured
prospective uses of the water that would better serve the public in-
terest or general welfare, then the Commission may reject or may postpone
the approval of an application that would not serve so well such public
interest or general welfare.

"Section 24. CHANGE IN EXERCISE OF WATER RIGHT. The holder of a
claim or license may, in cases where public interest or outstanding
rights are not adversely affected thereby, be authorized by the Com-
mission, upon petition of the holder, to (a) change the point or points
of diversion of the water; or (b) Change the location of reservoirs or
of works for the transmission or distribution of the water; or (c)
Change the purpose for which the water is authorized to be used; or (d)
Change, in whole or in part, the location of the gross area within
which the use of the water may be effected under the claim or license."
(EMphasis supplied.)

Section 1, which contains a descriptive outline of what the legislature con-

siders to be in the public interest, reads as follows:

"Section 1. IECLARATION OF STATE POLICY. The conditions within
the State of Michigan with reference to the availability of water are
such that the public welfare requires that water be put to the highest
beneficial use; the use of water for irrgatI~on, munical, industrial,
water power, recreational, navigation, and all other beneficial pur-
poses is a matter of public interest and public welfare; the proper
use of surface waters will facilitate the conservation of ground waters
in many areas; and by encouraging the construction of pumping plants,
dams, reservoirs conduits, and other structures to permit the proper
collection, conservation, and use of surface water the public welfare
is served. It is therefore declared to be the policy of the State of
Michigan that control of the use of water for all beneficial purposes
shall be in the State, which in the exercise of its police powers must
take such measures as shall effectuate the best utilization of the
water resources of the State. (Emphasis supplied)

This declaration seems broad enough to encompass any public interest factors

the courts might at the present time consider under riparian law. The Commission's

powers under Section 14 -- to deny applications against the public interest, to

approve that use best serving the public interest where pending applications are

in conflict, and to reserve water for future uses which better serve the public








- 41 -


interest establish a large range of discretion for the administrative agency.

Within this range the public interest criterion may be employed to modify the

force of the priority Mobreover, by extending this discretion over applications

for the kind of changes many users may sooner or later want to make because of

changing conditions, the proposed law puts the Commission in a position to review

the public interest value of various uses even after applications have been

granted. A broader review power over existing uses derives from the previously

discussed provisions requiring that all uses be both reasonable and beneficial,

at least to the extent that provision is later made for effective enforcement

of this requirement. And, of course, where there has been no reasonable bene-

ficial use for a specified period of time and the appropriative or Class B

right is forfeited, the administrative agency can again consider the public in-

terest in passing on applications for new uses of the water.

For these reasons, a persuasive argument can be made that the Michigan

proposal intends priority in time to be merely one element in the acquisition

and protection of rights and that, as under the riparian system, a multitude

of factors are to become relevant to each ultimate determination. As was

stated before, the priority in time factor is not entirely absent from the

riparian system, which on the whole seeks to satisfy both public interest and

protection of investment goals. The fact that the Michigan proposal puts greater

emphasis on priority in time in order to provide more effective machinery for

investment protection does not necessarily mean that the proposal amounts to a

drastic departure from existing law. As investments in water become more sub-

stantial and the uncertainty of there being sufficient water available increases,

greater emphasis on this priority factor seems within the range of the probable

development of riparian law. It might be concluded, therefore, that the change

entailed in enactment of this proposal is within the scope of the legislative

power of modification of vested rights, or, alternatively, that it constitutes a

______________








- 42 -


proper exercise of the police power.

One further possible effect of the Michigan proposal on riparian rights

must now be considered. Former riparians who will have to claim as Class B

users or apply as appropriators will receive equal treatment with users who

make nonriparian uses or who use water on nonriparian land.

The nonriparian uses are those which the Michigan court up to now has not

regarded as riparian, though without foreclosing the possibility that these uses

might still be recognized in a proper case. Section 3 of the proposal, in

listing proper purposes of use not only includes most uses that have previously

been allowed as riparian but it also includes irrigation, municipal, and in-

dustrial uses and permits long-term storage of water, sale of water, and any

"other particular beneficial use." Irrigation has been prohibited in one

Michigan case where it conflicted with preferred domestic uses, but the court
103/
did not hold that irrigation could never be a reasonable riparian use.

municipalities have at times been called riparian owners, though their use of

water for municipal supply has on the whole been prohibited since it involves

the sale of water t inhabitants located on land not municipally Owned; 4/ this

however, is not a "riparian use" but a "riparian land" question and will be

discussed as such below. The same holds true for the sale of water permitted

by the proposal in so far as it might involve sale by a riparian to a nonriparian.

As to industrial uses other than power uses, they have, on the whole, not been

litigated in the courts. Short-term storage of water has been permitted, but

long-term storage has at times been prohibited by the courts, generally in cases

involving storage by loggers. The reason for the prohibition usually was that

the particular use was unreasonable, especially where the storage had as its

purpose the flooding of land or incidentally resulted in the flooding of land;

the prohibition on long-term storage was not based on the ground that such

storage could under no circumstances be a reasonable riparian use.

-A


~ -----c~---L- --- 1 -----~-Lr^---rrr;Jii~IQiixi--~C-~~








- 43 -


It thus becomes apparent that the court has not held that any of the uses

listed as proper by the proposal are nonriparian or unreasonable per se. Under

existing precedents the courts are free to regard these uses as riparian. The

legislative authorization of the uses listed in the proposal does not, therefore,

appear to be a drastic departure from riparian law.

But this still leaves for consideration the proposal's legalization of

uses on nonriparian land. At first glance this legalization appears to be an

extremely drastic departure from riparian law. That a considerable change was

intended cannot be denied. But, in fact, nonriparians have not in the past been

entirely prohibited from using water, It ~ em that under Michigan law the

riparian must show injury to enjoin a nonriparian or to collect damages. It

is also possible that the injury must be to the riparian's "reasonable use", for

at least one Michigan case suggests that a nonriparian can enjoin a riparian
106/
whose unreasonable use incidentally interferes with the nonriparian's use.

Moreover, in Michigan the Balancin of enience's doctrine has been applied

to favor a nonriparian user in a conflict with a riparian.

Furthermore, what constitutes ownership of riparian land is not too clear

under Michigan law. Fee and lease holders are included, and one who owns an

easement for nonwater purposes is excluded. But it does not seem established

that one who owns merely an easement of access to the water and easements to

transport the water to the place of use does not also have the status of the

riparian land owner. In Michigan, most nonriparian land cases where access

rights were owned by the nonriparian user involved a sale of water by the access

owner to one whose ownership interests did not include any right of property

contiguous to the stream. Section 5 of the Michigan proposal provides that

there can be no valid right to the use of water "unless the right to construct

diversion works or reservoirs upon the land acquired thereafter shall have been

acquired in a lawful manner." If "diversion" works are construed to include

__________________________________________________












irrigation ditches or water supply pipe lines or other means of transportation,

the statute requires a single contiguous legal interest in land from the place

of diversion to the place of use. Where this legal interest is an easement the

owner might, within the limits of the present case law, still qualify as a

riparian.--! Of course, this legal interest might be a license, which at times

is technically not regarded as an interest in land, but this distinction between

easements and licenses in property law is largely a formal one and will certainly

not be too powerful an argument for invalidating the proposal. The only situation

where there might not be sufficient contiguous ownership from the shore to the

place of use is where water is sold by a diverter to a person who has no legal

interest in land contiguous to the stream. All the diverter who wishes to sell

the water would have to do to comply with the contiguous ownership requirement is

to make all buyers co-owners of the easements of access and passage for the

period of the contract.

The foregoing suggests that the Michigan proposals explicit admission of

nonriparians into the group entitled to share in the State's water supply is not

as drastic a change in the present law as might be thought. Thus the distinction

between the western cases and the situation in the East, which was stressed

earlier in the paper, namely, that in the East water of which riparians are de-

prived will go to entire newcomers, seems not to be entirely correct. In view

of the possibility in Michigan, at least -- that an easement may be sufficient

ownership, the category of true "nonriparians" is much smaller than one is usually

led to believe. And in Michigan, just as was the case in some of the western

states, riparians are preferred over nonriparians, but the preference is not so

absolute that non-riparians have no rights at all.

Moreover, the distinction between riparians and nonriparians stems from an

era when the interrelationship between different phases of the hydrologic cycle

was not too well understood. Today it is well known that the use of stream water


I








- 45 -


influences the supply of ground water, and the use of ground water and diffused

surface water influences the supply of stream water. In the light of these

facts, one cannot call any nonriparian a newcomer. He is entitled to use ground

water and diffused surface water. He is not a newcomer among those who can share

in the State's total water supply. The Michigan proposal in Section 1 recognizes

the interdependence of the various phases of the hydrological cycle by stating

that "the proper use of surface waters will facilitate the conservation of ground

waters in many areas." The Michigan judge-made law has gradually been developing

rules tending to make feasible a unified administration of uses of water in

various phases of the hydrologic cycle. Consequently, the Michigan proposal

might be viewed as merely a further step toward unified administration of the

state's total water supply. Viewed in this light, so-called nonriparians were

always part of the group entitled to use water, and the Michigan proposal merely

effects a readjustment among the present members of the group of users or potential

users.

Although, for ease of expression, the foregoing discussion has referred to

"riparian" and "nonriparian" as two mutually exclusive groups, like natural red-

heads or brunettes, it should be pointed out that there really are no "riparian"

and "nonriparian" owners. There is, at best, only "riparian" and "nonriparian"

land. The so-called nonriparian can always become a "riparian" by purchasing

"riparian land", and to a certain extent by purchasing "riparian rights". The

riparian land concept originally was probably based on the principle that only

uses of benefit to such land are to be permitted. Domestic uses benefit

riparian land and consequently were always permitted, even under the "natural

flow" theory. When streams began to supply power for mills, the product of which

was not consumed on the riparian land but distributed to the community, mill

owners were in many eastern states not treated like riparians; instead, they

were given a limited power of eminent domain and frequently treated as appro.


______________________________________________








- 46 -


priators. As the concept of "natural flow" gradually gave way to "reasonable

use", a step undertaken in Michigan initially to accommodate mill owners, it

became more and more permissible to use water for purposes which served the com-

munity and did not directly benefit the riparian land. The very change to the

reasonable use rule, therefore, anticipates the abandonment of theriparian land

concept. The Michigan proposal, thus, merely takes the step in the direction

in which the common law has tended. The proposal is not a drastic change but

part of a development which reasonably could have been anticipated and, there-

fore, does not impose disproportionate deprivations on the present holders of so-

called "vested" rights.

Thus, the argument ends.

V.

Whether or not the above argument might ultimately be accepted by eastern

courts is difficult to predict. It is possible, however, to make a few suggestions

to the draftsman:

1. It is advisable to eliminate the language declaring that the water of the.

State is owned by the people, as well as all use of the term "appropriation

rights". While some courts, like the Kansas Court, have paid attention to this

language, it is not likely to accomplish much beyond advertising that the law is

a drastic change. It wou 13e-btter, in accord with the gradual-change argument

to call the law an administrative "reasonable use" law and to change the language

accordingly throughoutE proosal. For example, the priority provisions would

lose nothing in substance if the administrator is empowered to issue licenses in

accord with the "reasonable use" principle which takes into consideration the

"public interest," "reasonable beneficial use" by each licensee, and "priority

in time." e v could then provide that, to protect investment, "priority in

time" shall be given great weight in the allocation of water, and that the user

holding the right prior in time shall not be cut off even temporarily unless he

d








- 47 -


is not making a reasonable beneficial use, and he shall not be cut off permanently

unless he has not made a reasonable beneficial use for a specific number of years.

But in granting new applications or applications for change in the exercise of the

right, the public interest must be considered by the administrative agency, and

so on.

2. While the distinction between used and unused rights does not seem to be

too important, occasional opinions have mentioned this distinction. It would,

therefore, be advisable not to interfere with used rights too much. At least the

retroactive priority provision with respect to Class B rights in the Michigan

proposal should be eliminated. Similar provisions which appeared in early drafts

of other eastern proposals have now been eliminated.

3. The Class A provisions are also dangerous because of the possible dis-

crimination between ri arians.. tbless Class A rights include all possible

riparian uses, they may not help in proving the law constitutional. It would

seem better to preserve existing rights to the extent of lawful use at or prior

to enactment, as most other eastern proposals would do. The court is thereby

left free to determine what purposes and amounts of use it deems lawful under

riparian law and to recognize preferences for domestic and for such other uses

as it may desire.

4. Further problmswould be avoided hts to use waters were made

available only to owners of riparian land. But the

owners could be broadened to inn

tra.aerta4onr~ hsis in accord with the previously suggested

scheme of the law as no more than an administrative "reasonable use"

5. Ft would also help to have the preaml te is

a! | I a i te-p tn.rd ied administration of the allocate water in

phas t logic cycle and that the legislature must take steps in this

direction because of the paity of case law dealing with the co-ordination of

ri ts to stream water, surface water and ground water.








FONOTES

Due Process and the Effect of Eastern Appropriation
Proposals on Existing Rights, with Secial emphasis
on the Michigan Proposal-


1. The proposed Michigan appropriation law and other proposals in the Eastern States
are presented in outline by other papers in this study. A copy of the Michigan
Law was sent to every symposium participant.

la The Michigan provisions are in Art. X Section 16, Const. (1908).

2. Of course this sentence, too, can be taken literally as referring only to the
vested rights of section 7. "Existing valid rights" would still remain a
separate category. It is more likely, however, that the draftsman meant to say
that all "preserved rights" were those declared "vested"in section 7. Public
purpose uses especially mentioned by section 2 were also not to be interfered
with. But they are not called "rights" according to the vocabulary of the
statute.

3. The provision for Class B rights explicitly refers only to nonriparian land, but
all purposes which have thus far not been held to be riparian by the Michigan
courts may also be included. Class B users are not limited to those making a
"reasonable use", which is the riparian standard, but are limited only to a
"reasonable, beneficial use." That term is not defined in the statute, but the
term "purpose of use of water" is defined by section 3 as including "domestic,
irrigation, municipal, industrial, recreational or other particular beneficial
use." Thus, it would seem that irrigation, municipal and industrial uses are
protected as Class B rights. On the whole these uses up to now have not been
held to be possible riparian uses by the Michigan courts, and there is a pos-
sibility that the courts might declare some of these uses to be unreasonable
per se, or nonriparian. For further discussion of this point, see pp.
supra.

4. A similar restriction on Class A rights in their relation to Class B and ap-
propriation rights may be inferred from the statement in section 2 that stream
flows be maintained to the extent "necessary to the reasonable exercise of
private vested rights."

5. But see p. infra for contrary argument.

6. See Symposium paper, Arena, Michigan law of Water Allocation, p. 5 et seq.
(hereinafter referred to as the Michigan Study).

7. See Michigan study, p. 8.

8. Clute v. Fisher, 65 M. 48 ( ). In one case in which the court was evenly split
one opinion referred to riparian uses as those for "domestic, agricultural and
mechanical purposes", Battle Creek v. Greek v. Gouguac Resort Assn., 181 Mich.
241, 243 ( ).

9. See Michigan Proposal, SS 11-17 (procedures for the acquisition of appropriation
rights) and SS 24 (procedures connected with "Change in Exercise of Water Right")

10. Sections 2, 7, and 8 raise certain other questions: what is the status of rights
acquired by condemnation or purchase, or by prescription, especially where these
rights were obtained from all related riparian users and are not merely co-

4








Footnotes Page 2


extensive with a particular riparian right? It is arguable that the "existing
valid rights" guarantee meant to provide for these rights. But as indicated
before, this point might prove too much.

Another question arises because section 2 limits "public purpose" uses to a
"reasonable use", presumably in relation to other users. Under Michigan law,
navigation and fishing and hunting rights are paramount on public waters. It
is not clear whether the phrase "reasonable use" in section 2 means to imply
the type of equalitarian treatment which riparians are entitled to in relation
to each other and, thus, destroys the paramount status of public rights. On
the other hand, section 2 does not limit "public purpose" uses to public waters.
Moreover there is no public right to sanitation under Michigan law. The stream
pollution control laws do not take away a riparian's right to complain against
pollution by nonriparians. Nor is a riparian obligated to let enough water pass
to dilute the pollution by nonriparians. Yet that may be one of the consequences
of the public purpose provisions in section 2.

11. In Michigan, territorial statutes of 1809 and 1810 provided that neither the
English statutes or French customary or ordinance law, nor the laws of the
Northwest or Indiana Territory should govern in the territory. See T. Powell,
Real Property, p. 239. A leading case declaring the common law in effect to a
certain extent was a water law case, Lorman v. Benson, 8 Mich. 18 (1860):
"Practically the common law has prevailed here in ordinary matters since our
government took possession; and the country has grown up under it; Lto inquire
into its origin/ would open inquiry more curious than useful ... Our statutes
without this substratum of the common lawj would not only fail to provide for
the great mass of affairs but would lack the means of safe construction. We are
of opinion that questions of property not clearly expected from it, must be de-
termined by the common law, rendered inapplicable only by such circumstances as
render it inapplicable to our local law." (emphasis supplied). It might be
argued that the tendency to reject earlier precedent on the part of the
Territorial Legislative and the absence of a commonlaw adoption statute gives
the Michigan legislature even greater freedom to modify the judge-made law.

12. 167 Kan. 546, 207 P. 2d 440 (1949).

13. Kan. Gen. Stats. (1949) ss. 82a-701 to 82a-722.

14. Kan. Gen. Stats. (1949) ss. 77-109.

15. This 1868 statute had previously been discussed in a leading Kansas case, Clark
v. Allaman, 71 Kan. 206, 80 P. 571 (1905), vigorously defending riparian rights
against opposing claims based on the appropriation doctrine. The court had held
in this earlier case that appropriation rights were not recognized in Kansas
prior to the first appropriation statute in 1886 and that the appropriation
statutes could not destroy already vested common law rights without violating
the Federal Constitution. (0) P. at 583.) The court indicated that the 1868
statute curiously seems to prevent the courts -- but not the legislature -- from
repealing any part of the "settled law" of the state derived from the common law,
80 P. at 580.

15a The Kansas law thereby eliminates unused rights, which include both those rights
never put to use as well as rights once used but not within three years of
enactment. These two types of unused rights may raise somewhat different con-
stitutional questions. A similar situation arises with regard to rights for


--- ----------____








Footnotes Page 3


other than domestic, power, recreation and fishing purposes under the Michigan
proposal, as riparians lose such rights where never used or where once used but
subsequently abandoned under the test of section 23.

16. 207 P. (2d) at 445.

17. See Clark v. Allaman, 71 Kan. 206, 80 P. 571 (1905).

18. 207 P. (2d) at 445-48.

19. 70 Neb. 109, 96 N.W. 996 (1903), 70 Neb. i15, 102 N.W. 249 (1905).
20 71 Neb. 70, 98 N.W. 454 (1904), 71 Neb. 79, 102 N.W. 265 (1905).
21. 102 N.W. at 252.
22. See part IV, infra. See Doyle, Water Rights in Nebraska, 20 Neb. L. Bev. 7, 22
(1941).


23. 11 Ariz. 128, 89 P. 504 (1907).
453 (1888); Chandler v. Austin,


See also Clough v. Wing, 2 Ariz. 371, 17 P.
4 Ariz. 346, 42 P. 483 (1895).


24. Howell Code, ch. If ss. 1 (October 4, 1869).
25. 89 P. at-----.
26. 213 U.S. 339 (1909).

27. Id. at See also Prima Farms v. Proctor, 30 Ariz. 96, 245 P.
and Tatters Field v. Putnam, 45 Ariz. 156, 41 P. 2d 228 (1935).


369 (1926)


28. Jones v. Adams, 19 Nev. 78, 6 P. 442 (1885) overruling Vansickle v. Baines,
7 Nev. 249 (1872).
29. See note 41a infra.

30. Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926) Similar restrictions apply in
Nebraska. Crawford v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903). Decisions to
the same effect in California and Washington (Longmire v. Yakima Co.,) 95 Wash.
302, 162 P. 782; (1917). Gallatin v. Corning Irr. Co., 163 Cal. 405, 126 P.
864 (1912) were later modified in favor of better methods for controlling
riparians.

31. Biggs v. Lee,147 S.W. 709 (Tex. Civ. App. 1912) writ of error dismissed, 150
S.W. XIX. Herminghouse v. Southern Calif. Edison Co.; 206 Cal. 81, 252 P. 607
(1926); Seneca Co. v. Power Co. 209 Cal. 206, 287 P. 93 (1930).

32. Benton v. Johnson, 17 Wash. 277, 49 P. 495 (1897); Nielson v. Spooner, 46 Wash.
14, 155 (1907).

33. Brown v. Chase, 125 Wash. 542, 217 P. 23 (1923). State v. American Fruit
Growers, 135 Wash. 156, 237 P. 498 (1925); Proctor v, Sim, 134 Wash. 406, 236 P.
114 (1925); In re Rights to Use Waters of Sinlahokin Creek, 166 Wash. 635, 299
P. 649 (1931).


____ ____







Footnotes Page 4


34. 114 Ore. 112, 227 P. 1065 (1924).

34a Oregon Laws 1909 c 216, as. i and 70 (2)-(3); Ore. Rev. Stat. ss, 557- 120,
539.010 (1)-(2) (1953) (1909 Code sections as amended). The statute allowed
additional time to riparians who had already begun construction of water-using
facilities.

35. 227 P. at 1085-2087 (1924).

36. Fox River Paper Co. v. R.R. Comm. of Wisconsin, 274 U.S. 651 (statute regulating
damming of navigable streams by riparians); Seattle v. Oregon R.R. Co, 255 U.S.
56 ( ) (state court denial of riparian rights in navigable waters); St.
Anthony Falls Water Co. v. Bd. of Water Commissioners, 168 U.S. 349 (1897)
(upholding Wisconsin statute allowing diversion of water for municipal supply as
proper use of navigable or public stream).

37. Probably the most quoted of these statements was in U.S. v. Rio Grande Irriga-
tion Co., 174 U.S. 690 (1899), where the United States sought to enjoin con-
struction of a dam on the Rio Grande and an appropriation of water under the laws
of the territory of New Mexico on the ground of impairment to navigability. The
court indicated that the only restriction on such changes concerned the rights
of the Federal Government relating to the public domain and to navigable waters:

"The unquestioned rule of the common law was that every
riparian owner was entitled to the continued natural flow
of the stream. It is enough, without other citations or
quotations, to quote the language of Chancellor Kent,
3 Kent Com. S. 439.....

"While this is undoubted, and the rule obtains in those
States in the Union which have simply adopted the common
law, it is also true that as to every stream within its
dominion a State may change this common law rule and permit
the appropriation of the flowing waters for such purposes
as it deems wise ...

"Although this power of changing the common law rule as to
streams within its dominion undoubtedly belongs to each State,
yet two limitations must be recognized: First, that in 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. Second, that
it is limited by the superior power of the General Government
to secure the uninterrupted navigability of all navigable
streams within the limits of the United States ..." Id. at
702-3.

See also Conn. v. Mass., 282 U.S. 660, 670 (1931); Kansas v. Colorado, 206 U.S.
46, 94 (1907); Arkansas v. Tennessee, 246 U.S. 158, 176 (1917); U.S. v. Cress,
243 U.S. 316, 319-20 (1916).







Footnotes Page 5


38. Clark v. Nash, 198 U.S. 361, 370 (1905); O'Neill v. Leander, 239 U.S. 253,
254 ( ). U.S v. Carl h TLive Stock Co. 70 S. Ct. 955
(1950). see afio Crawford v. Hathaway, 67 Neb. 325, 93 N.W. 781, 792 (1903)
for interpretation that the Supreme Court cases do not permit retroactive
divesting of riparian rights. See also, Comment 7 S. Cal. L. Rev. 330, 337,
n. 54 (1939). For interpretations tending to come to the opposite conclusion
see Armory v. Commonwealth, 321 Mass. 240, 246 47 (1947); In re Hood River
114 Or. 112, 227 P. 1065, 1084 (1924); In re wfllow Creek, 74 Or. 592, 144 P.
505, 516 (1914); Trelease, Coordination of Riparian & Appropriation Rights to
the use of Water, 33 Texas L.R. 24, 66-67 (1954); Coates, Present & Proposed
Legal Control of Water Resources in Wisconsin, 1953 Wis. L.R. 256, 290-1 (1953);
Thompson & Fiedler, Some Problems Relating to Legal Control of Use of Ground
Water, 30 JAWWA 1049, 1080-89 (1938) J. Am. Water Works Assoc. Report of the
Virginia Advisory Legislative Council, p. 132-33 (1955).

39. 209 U. s. 354 (1908).
40. Id at__

41. See note 30 supra.

41a 44 S.W. 2d 404, 407-8 (Tex. Civ. App. 1931). The statute in question is
Vernon's Tex. Stat. Ann. (1954) ss. 7592. This case should be compared with
two other Texas decisions. The 1917 statute also provided that the Board of
Water Engineers could determine relative rights to the use of water. This
portion of the statute was declared unconstitutional in Board of Water
Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301 (1921), as an invalid attempt
to vest judicial authority in the executive branch without specific Constitu-
tional sanction. The same contention was later made with respect to gas and
oil conservation statutes. The court in upholding these latter statutes in
Corzelius v. Harrell, 143 Tex. 509, 186 S.W. 2d 961 (1945), distinguished the
McKnight case on the ground that at the time of the enactment of the 1917
statute, June 19, 1917, a Constitutional amendment adopted on August 21, 1917,
declaring the conservation of natural resources to be public rights and duties,
was not yet in effect. As to the possible significance of the amendment for
water law changes in general, see Corpus Christie v. Pleasanton, Tex. 1, 276
S.W. 2d 798 (1955); Comment, 2 S. Tex. L. J. 75 (1955).

42. 6 N. D. 152, 69 N.W. 570 (1896).

43. St. Germain Irrigation Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 143
N.W. 124 (1913). A South Dakota statute seemed to have specifically adopted
the riparian law. S. Dak. Code 1939 as. 61.0101 adopted from a previous
territorial statute, Terr. Dak. Civ. Code ss. 255. This statute was repealed
by a recently enacted appropriation law. See note 44 infra. Cf. Madison v.
Rapid City, 61 S. D. 83, 248 N.W. 283 (1930) (indicating that statute imposing
tax on artesian wells as waste prevention measure is constitutional). See note
59 infra.
44. S. D. Sess. Laws 1955, ch. 430.

44a In California a statute providing for loss of riparian rights after ten years
non-use was held unconstitutional under specific Constitutional provisions, see
note 55, infra, Tulare Irr. Dist. v. Lindsey Strathmore Irr. Dist. The case
has little general significance.

i II i '"' II II I -_______- i m I I







Footnotes Page 6


In Nebraska the court strongly upheld riparian rights in Crawford v. Hathaway,
67 Neb. 325, 93 N.W. 781 (1903), but it at the same time upheld statutes de-
claring irrigation and power projects to be works of internal improvement and
held that the riparian's injury would be the measure of his damages. This case
gave rise to the later development virtually eliminating unused rights discussed
supra, p. An earlier case held that a statute limiting riparian rights
to streams less than 20 feet wide was unconstitutional. Clark v. Cambridge Irr.
Co. 45 Neb. 798, 64 N. W. 239 (1895). This case seems to foreclose impairment
of used rights still in use without compensation.

45. 200 Cal. 81, 252 P. 607 (1926).

46. The famous case clearly establishing the riparian doctrine in California is
iax v. Haggin, 69 Cal. 255, 10 P. 674 (1886).

47. Ibid.

48. Miller & Lux v. Madera Canal & Irr. Co., 155 Cal. 59, 99 P. 502 (1909).

49. Water Commission Art. of 1913, Sect. 42.

50. 252 P. at_

51. For a lower court decision in California see Bray v. Superior Court, 92 Calif.
App. 428, 268 P. 374 (1928), For other decisions see Pacific Live Stock Co.
v. Lewis, 241 U.S. 440 (1916); Farm Investment Co. v. Carpenter, 9 Wyo. 110,
61 P.-258 (1900); Vineyard Land & Stock Co. v. District Court, 42 Nev. 7, 171
P. 166 (1918).

52. Bear Lake County v. Badge, 9 Idaho 703, 75 P. 614 (1904). (inadequacy of notice
provisions); Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803 (1914) (initial
but not conclusive determination valid); Bd. of Water Engineers v. McKnight,
111 Tex. 82, 229 S.W. 301 (discussed supra note 42); for discussion see
Butchins, Special Procedure for Adjudlcaton of Water Rights (Tex. Water L.
Conf. May, 1956).

53. Ex parte Maas, 219 Cal. 422, 27 P. 2d 373 (1933); for an earlier decision see
Ex Parte Elam, 6 Cal. App. 233, 91 P. 81) (1907).

54. Cal. Const. Art XIV, 1 ss. 3, enacted in direct response to the Herminghouse
decision two years earlier.

55. Gin Chow v. Santa Barbara, 22 P. 2d 5 (1933). See comment, 7 Cal. L. Rev. 330
(1934). See also Peabody v. Vallejo,___, Cal. 40 P. 2d 486; Tullare
v. Lindsay Strathmore Irr. Dist. Cal. 45 P. 2d 972 (1935).

56. Gin Chow v. Santa Barbara, 22 P. 2d at_

57. U.s. 70 s. ct. 955 (1950).
58. Id at__

59. Madison v. Rapid City, 61 S.D. 83, 296 N.W. 283 (1932), See note 43 supra.

60. Eccles v. Ditto, 23 N M 235, 167 P. 726 (1917).

.____________^______ ^- ^ --







Footnotes Page 7


61. Ex parte Elam, 6 Cal. App. 233, 91 P. 811 (1907); Ex parte Mass, 219 Cal. 422,
27 P. 2d 373 (1933).

62. Hathorn v. Nat. Carbonic Gas Co. 194 NY, 326, 87 N.E. 504 (1909);
People v. N. Y. Carbonic Acid Gas Co., 196 N.Y. 421, 90 W.E. 44 (1909);
Lindsley v. Nat. Carbonic Gas Co., 220 U.S. 61 (1911).
63. Ohio Oil Co. v. Indiana 177 U.S. 190, 20 S. Ct. 576 (1900).

64. Walls v. Midland Carbon Co., 254 U.S. 300, 41 8. Ct. 118 (1920).
Henderson Co. v. Thompson, 300 U.S. 258, 57 S. Ct. 447 (1937).

65. Peterson v. Grayce Oil Co., 37 S.W. 2d 367 (Tex. Civ. App. 1931); Gilmer Oil
Co. v. Corporation Commission, 183 Ckla. 95, 80 P. 2d 312 (1938). See also
Manufacturers' Gas and Oil Co. v. Indiana Natural Gas and Oil Co., 155 Ind.
561, 57 N.E. 913 (1900).
66. Patterson v. Stanolind Oil and Gas Co., 182 Ckla. 155, 77 P. 2d 83 (1938),
app. dism. 305 U.S. 376 (1939); Marrs v. City of Oxford, 32 F. 2d 134 (C.C.A.
Kan. 1939); Oxford Oil Co. v. Atlantic Oil Prod. Co., 22 F. 2d 597 (C.C.A.
Tex. 1927), cert. den. 277 U.S. 585 (1928).

67. Bandoni v. Superior Court, 110 Cal. App. 123, 239 P. 899 (1930), aff'd 284
U.S. 8 (1931).
68. Champlin Ref. Co. v. Corp. Com. 286 U.S. 210, 52 s. Ct. 559 (1932); Russel v.
Walker, 160 Okla. 145, 15 P. 2d 114 (1932).

69. See, e.g. Palmei Oil Co. v. Phillips Petroleum Co., 204 Okla. 543, 231 P 2d
997 (1951), appeal dismissed; 343 U.S. 390 ( ). See also Woody v.
Corporation Comm. 265 P. 2d 1102 (1954); Hunter Co. v. McBugh, 202 La. 97,
11 So. 2d 495 (1942), appeal dismissed 320 U.S. 222.

70. Huber v. Merkel, Wis. 94 N.W. 359 (1903) and Gas Products Co.
v. Rankin 63 Mont 372, 207 P. 993 1922) are unfavorable cases in this
general area of legislation. See text and notes 74 and 76 infra.

71. The leading case is Ohio Oil Co. v. Indiana 177 U.S. 190, 20 S. Ct. 576
(1900). For use of this doctrine together with the waste prevention theory
see cases cited notes 64-69 supra. For groundwater cases see Hathorn v. Nat.
Carbonic Gas Co., 194 N.Y. 36, 97 N.E. 504 (1909). People v. N. Y. Carbonic
Acid Gas Co. 196 N.Y. 421, 90 N.E. 441 (1909). Lindsley v. Nat. Carbonic Gas
Co., 220 U.S. 61 (1911). Eccles v. Ditto 23 N.M. 235, 167 P. 726 (1917).
Ex Parte Elam, 6 Cal. App. 232; 91 P. 2d 811 (1907); Ex Parte Maas, 219 Cal.
422, 27 P. 2d 373 (1933).

72. See cases cited in notes 64-69 supra. For groundwater cases see Madison v.
Rapid City, 61 S.D. 83, 246 N.WT-28 (1932); Eccles v. Ditto, 23 N.M. 235,
167 P. 726 (1917).
73. Phillips Petroleum Co. v. Oklahoma, 390 U.S. 190, 71 S. Ct.221 (1950); Bay
Petroleum Corp. v. Corp. Com. 36 F. Sup. 66 (P.C. Kan. 1940).

74. Huber v. Merkel, Wis., 94 N.W. 359 (1903).








Footnotes r Page 8


75- See cases cited notes 60 and 62 supra.

76. Gas Products Co. v. Rankin, 63 Mont. 372, 207 p. 993 (1922).

77. all v. Midland Carbon Co., 254 U.S. 300, 41 S.Ct. 118 (1920) & Henderson v.
Thompson, 300 U.S. 256, 57 S.Ct. 447 (1937). See Walker, Property Rights in
Oil and Gas and Their Effect Upon Police Reulation of Production, 16 Texas Law
Review 370 (i938).- ....

78. Cornelius v. Harrell, 143 Tex. 509, 186 S.W. 2d 961 (1945); Republic Natural
Gas Co. v. Oklasoma, 198 Ckl. 350, 180 P. 2d 1009 (1947), 334 U.S. 62, 'W S.Ct.
972 (194) (S.Ct. refused to pass on question because Comm. order not final).
Cf. Railroad Com. v. Rowan Oil Co. 259 S.W. 2d 173 (1954) (non-wasteful wells
can't be shut to protect rights of wasteful wells).

79. People v. New York Carbonic Acid Gas Co., 196 N.Y. 421, 90 N.E. 441 (1909);
Denver Producingand defining Co. v. Okla., 199 Ckl. 171, 184 P. 2d 961 (1947);
hompson v. consolidated Gas Corp., 300 U.S. 55, 57 S.Ct. 364 (1937);
Gulf Land Co. v. Atlantic Ref. Co., 134 Tex. 59, 131 S.W. 2d 73 (1939;
ulian Oil Royalties Co. v. Capaow 145 Okla. 237, 292 P. 841 (1930).

80. Railroad Com. v. Rowan Oil Co., 259 S.W. 2d 173 (1954).

81. 79 Ariz. 403, 291 P. 2d 764 (1955).
82. 291 P. 2d at 768 & 9. The outcome in this case was to some extent anticipated
by the comment of the Arizona Court in Bristor v. Cheatham, 75 Arizona 227, 255
P. 2d 173 (1953) dealing with the power of the Legislature to change the law
from the reasonable use rule to prior appropriation.
"It is claimed that if we do not change the law ground waters will be ex-
hausted and the Legislature is shackled and powerless to enact a ground water
code. If the Legislature is shackled it is the Constitution that imposes the
impediment. The Court has no right to pull the rug from under the owner, and to
release the constitutional obstructions, if any. It is the Court's duty to
protect constitutional rights. Possibly the only source of power the Legislature
possesses is the police power for the general welfare... We do not mean to say
whether or to what extent such police power may be used to affect the rights
involved herein. That is not before us. Should it ever be presented, we will
decide the matter."

83. Howard v. Perrin, 8 Ariz. 347, 76 P. 460 (1904) affd. 200 U.S. 71 (1906);
Campbell v. Wilard, 45 Ariz. 221, 42 P. 2d 403 (1935).

84. 30 Haw. 912 (1929).

85. 73 F. 2d 555 (1934). See Notes 2 U. Chicago Law Review 658 (1935), 9 Temple
Law Review 354 (1935).
86. Oregon Laws 1909, ch. 216 ss. 1 and 70 (2)-(3), O.R.S. ss. 537.120, 539.010
(1)-(2) 1953 (1909 code sections as amended).

87. 73F 2d 555,
88. Id. at


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Footnotes Page 9


89. Id. at

90. California-Oregon Power Co. v. Beaver Portland Cement Co., 323 U.S. 142 (1936).

91. 19 Stat. 377, 43 U.S.L. 321 et. seq.

92. Hough v. Porter, 51 Or. 318, 95P. 732, 102 P. 728 (1909). The United States
Supreme Court in the California-Oregon Power Co. case agreed with the Hough
case interpretation of the Desert Land Act but held that each state was free to
apply any law to the post-1877 patentees. For criticism of the Supreme Court
opinion see Note 24 Cal. Law Rev. 349 (1936).

93. Marquis, The Movement for New Water Rights Laws in the Tennessee Valley States,
23 Tenn. L. Rev. 797, 832n 185 (1955); Coates, Present and Proposed Legal
Control of Water Resources, 1953 Wis. L. Rev. 256.

94. Frequently for purposes of helping logging interests. More recent cases concern
themselves with extending public fishing rights, Hood v. Murphy, 231 Ala. 408,
165 So. 219 (1936). The court indicated, however, that the exclusive private
fishing rights are subject to police power conservation regulation. Birmingham
v. Lake, 243 Ala. 367, 10 So. 2d, 24 (1942).

95. Booming Co. v. Speechly, 31 Mich. 336 (

96. See Michigan Study, p. 27.

97. See Michigan Study, p. 29 et seq.

98. See Michigan Study, p. 40.

99. Similar Michigan examples deal mostly with pollution by cities or attempts on
the part of cities to prevent pollution of water supply by neighboring
riparians. See Michigan study PP. 39-40. One case also dealt with interference
with riparian rights due to city's highway improvement. See id. at 39.

99a Margnis, Freeman and Heath, supra note 93, at 802 n. 24.

S 99b See Fisher C. O. Jr., Western Experience and Eastern Appropriation Proposals,
po
100. For Michigan application, see cases holding that prescriptive right does not
run upstream, Michigan Study pp. 24-25.

101. See Michigan Study, p. 23 et. seq. and note 76a.

102. See Michigan Study, p. 21.

103. See id. at p. 9

104. See id. at pp. 12-13.

105. See id. at p. 22.


106. See id. at note 71.


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Footnotes Page 10


107. See id. at note 76a.

108. See id. at p. 5. It can be seen from cases cited id. at notes 41-43 that most
of these involve situations where the "nonriparian" did not even have a right
of access. In the case in note 43 the city had a right of access but the water
was sold to those who did not. (Compare also the Monroe case cited in note 36,
where the extent of ownership of the carp pond operator was entirely uncertain.
The court indicated that as long as he is rightfully in possession the extent
of ownership is unimportant.)

109. The Wisconsin proposal has several features rendering it more of an adminis-
trative reasonable use law than an appropriation law. See Fisher, C. O. Jr.,
Western Experience and Eastern Appropriation Proposals, p. ..


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