FOOTNOTES Western Experience and Eastern Appropriation Proposals
(In this draft, the footnotes to Part II III are not continuously numbered with
those to Part I, but begin again with Number 1.)
1. These states include the 26 east of the Mississippi River and the 5 states
(Minnesota, Iowa, Missouri, Arkansas, and Louisiana) on the west bank of the
2. Haar & Gordon, Legislative Change of Water Law in Massachusetts: A Case Study
of the Consequences of Introducing a Prior Appropriation System. Areas, Michi-
gan Law of Water Allocation. Ellis, North Carolina Study.
3. See symposium paper, Due Process and the Effect of Eastern Appropriation Propos-
als on Existing Rights, with Special Emphasis on the Michigan Proposal. This
paper is referred to hereafter below as the "Constitutional study".
3a* These are the six states in the North Dakota-Texas tier and the eleven states
3b. A riparian tract of land must, by definition, be contiguous to a stream at some
point, though the length of stream frontage is not material to its status as
riparian land. Decisions in some western states regard this riparian status
as extending to all land under a single ownership; decisions in other western
states limit it to land lying within the watershed of the stream and occasionally
limit it further to the boundaries of the tract as patented by the government
and to the smallest parcel contiguous to the stream in any later subdivision of
the tract. This question of the lateral extent of riparian land has apparently
not been decided in many eastern states.
4. These two rules have been somewhat confused at times, particularly by statements
that a riparian is entitled to the natural flow of the stream except as diminish-
ed by the reasonable uses of other riparians. This confusion might be traced
partly to the first formulation of the riparian principle in this country, where
it was said that:
"...every proprietor upon each bank of a river. .has a right to the use
of the water flowing over it in its natural current, without diminution or
obstruction. T"7he right being common to all the proprietors on the river,
no one has a right to diminish the quantity which will, according to the
natural current, flow to a proprietor below. .I do not mean to be under-
stood, as holding the doctrine, that there can be no diminution whatso-
ever, and no obstruction or impediment whatsoever, by a riparian proprie-
tor, in the use of the water as it flows; for that would be to deny any
valuable use of it. There may be, and there must be allowed of that,
which is common to all, a reasonable use. The true test of the principle
and extent of the use is, whether it is to the injury of the other proprie-
tors or not. There may be a diminution in quantity, or a retardation or
acceleration of the natural current indispensable for the general and
valuable use of the water, perfectly consistent with the existence of the
common right." StoryJ., j Tyler v. WUlkinson, 24 Fed, Cas* No. 14312,
at 474 (C.C.AI. 18R7),
FOOTNOTES Part I Page 2
5. "Reasonableness under the reasonable use concept appears to be tested by
the social value of the use." 6-A American Law of Property e 28.57 (Casner ed.
1952). "The advantages of this (reasonable use) theory are that it is entirely
utilitarian and tends to promote the fullest beneficial use of water resources."
4 Restatement, Torts, c. 41, topic 3, PP. 345-46 (1939).
6. As the accompanying studies of Massachusetts, Michigan and North Carolina
would indicate, few courts have been presented with such a number and variety
of cases that its conceptions of the relative reasonableness of many different
uses can be determined under either static or changing conditions of water use
and supply. In many decided cases the facts disclosed in the opinion do not
permit the consequences of the decision to be appraised, and at other times
the court's discussion of the case does not clearly disclose the grounds for
its favoring or disfavoring a particular use in a given situation. Moreover,
the weighing process in some cases may be distorted by factors not relevant
to the issue of relative reasonableness; such, for instance, is a court's
frequent reluctance to issue decrees involving it too closely in the actual
supervision of uses.
7. Interference with an existing reasonable use could happen in a number of ways.
An upper riparian may commence or enlarge a domestic use to the full extent of
his needs and/or a use for other purposes that may be reasonable despite con-
siderable interference with the existing downstream use. (He may also make
an unreasonable use until detected and enjoined). A lower riparian may upset
an existing reasonable use above him by securing an injunction in behalf of his
new or expanded domestic needs, and his new or expanded attempts to make a
reasonable use for other purposes may render the existing upstream use no long-
er reasonable and therefore subject to modification by injunction.
8. As pointed out in the accompanying papers, the courts in Michigan and Massa-
chusetts have not clearly regarded priority of use as a factor to be weighed
in determining the reasonableness of a use. Kent, in his classic statement of
the riparian doctrine said that:
"The nature and extent of the right acquired by prior occupancy of
a running stream becomes frequently an important and vexatious question
between different riparian proprietors. The law gives considerable
weight and effect to the first appropriation of the elements of light,
air, and water. If I am the first person who applies the water of
a running stream to the purposes of irrigation, or of a mill, I cannot
afterwards be lawfully disturbed in any essential degree, in the exer-
cise of my right, provided the water be used by me in such a reasonable
manner, as not to divert the natural course of the stream from the lands
below, nor essentially to destroy the use of it as it naturally flowed
over the lands of the proprietors above and below me." 3 Kent,
Commentaries 358 (1st ed. 1828).
9. See Michigan paper, p. 23; Maloney, The Balance of Convenience Doctrine in the
Southeastern States, Particularly as Applied to Water, 5 S.C.L.Q. 149 (1952).
Resort to this doctrine, of course, affords no solution where the amount of
compensation awarded is too large for the favored use to bear.
10. Meridian v. San Francisco, 13 Cal. 2d 424, 90 P. 24 537 (1939); Peabody v.
Vallejo, 2 Cal. 2d 351, 40 P. 2d 486 (1935); U1pricht v. Eufaula Water Co.,
86 Ala. 587, 6 so. 78 (1889).
FOOTNOTES Part I Page 3
11. In making such an apportionment between two conflicting power uses by riparian
owners, the Maine court said:
"To make the water power of economic value, the rights to its use, & the di-
vision of its use, according to those rights, should be determined in
advance. This prior determination is evidently essential to the peace-
ful and profitable use by the different parties having rights in a com-
mon power. To leave them in their uncertainty, to leave one to en-
croach upon the other, is to leave the whole subject matter to possible
waste and destruction." Warren v. Westbrook Manu'g Co., 88 Me. 58, 66,
33 Atl. 665 (1895).
12. The absence of frequent litigation in many eastern states may mean that this
dissatisfaction with judicial administration of the riparian system discourages
the use of water where litigation might result or that it compels extra-
judicial settlement of disputes. On the other hand, it could also mean that
supplies have generally been ample to cover needs or that extra-Judicial forces
are operating to maintain reasonable relations among users to such an extent
that resort to the courts is seldom necessary.
13. The origin and development of the appropriation principle in the seventeen
western states, the total rejection of riparian rights in eight states, and
the coexistence of riparian and appropriation rights in the other nine states
are traced in 6-A American Law of Property 8 28.58 (Casner ed. 1952); Eutchins,
History of the Conflict between Riparian and Appropriative Rights in the West-
ern States, Proceedings: Water Law Conferences, U. of Texas 106 (1952 & 1954);
Trelease, Coordination of Riparian and Appropriative Rights to the Use of
Water, 33 Texas L. Rev. 24 (1955).
The evolution of the administrative appropriation system is recorded in Lasky,
From Prior Appropriation to Economic Distribution of Water by the State via
Irrigation Administration, 1 Rocky Mt. L. Rev. 161, 248 (1929), 2 Rocky Mt. L.
Rev. 35 (1929).
The rejection of the riparian principle relating to the right to use water in
eight western states did not constitute a rejection of such other riparian rights
as ownership of stream beds, accretions, fishery, access, etc. 9 Wyo. L. J.
14. The ubiquitous statement is that "beneficial use is the basis, measure, and
limit of the right."
15. Where the application is approved and the proposed use is begun with diligence,
the priority of the right is said to "relate back" to the filing of the appli-
cation. This doctrine of relation back is important where a considerable
amount of time and money is entailed in the construction of projects looking
toward the use of particular unappropriated water.
As to states in which application to a state agency need not be filed, see
note 19 infra.
16. The power of eminent domain is granted private persons in many western states
for the acquisition of rights-of-way to a stream. Clark v. Nash, 198 U.S. 361
(1905); Colo. Rev. Stat. c. 147, art. 3 (1954), Mott v. Coleman, Colo. -,
FOOTNOTES Part I Page 4
287 P. 2d 655 (1955) appropriatorr allowed to condemn neighbor's ditch, in the
only location practicable to appropriator, though ditch could not serve needs
of both users and neighbor had to construct new one for himself); Annots.,
9 A.L.R. 583 (1920), 27 A.L.R. 519 (1923).
In many states certain types of use, especially irrigation, are declared public
uses or internal improvements, for which land or water rights may be condemned
by private persons. Lake Koen Co. v. Klein, 63 Kan. 484, 65 Pac. 684 (1901);
McCook v. Crews, 70 Neb, 109, 115, 96 N.W. 996 (1903), 102 N.W. 249 (1905).
N.D. Rev, Code 861.0104 (1943); Okla. Stat. Ann. tit. 82, g2 (1951); S.D. Sess.
Laws 1955, c. 430, 161.01.56.
Statutes in all states permit appropriated water to be conveyed in natural
stream channels subject to certain conditions, the most common being that rights
of others not be impaired and that allowance be made for losses in transit.
Ariz. Code Ann. 75-144 (1939); Colo. Rev. Stat. S 147-5-2 (1953).
17. The overwhelming majority of appropriation rights are for irrigation, and
the amount of water needed day-by-day or week-by-week to irrigate a crop varies
considerably with climatic conditions and with the water requirements of a par-
ticular type of crop at different periods of the growing season. The maximum
rate of flow in terms of which an appropriation rights is defined is usually
set in terms of the maximum amount likely to be needed at any one time; but,
as this maximum rate is not needed at all times during the growing season, the
maximum volume of water covered by an irrigation right is frequently less than
the volume of water that would result from diverting the maximum rate throughout
18. The priority in the former case would date from the actual commencement of the
use, whereas in the latter case it would relate back to the posting and filing
if the use were thereafter begun with diligence.
19. As outlined in note 163 infra to Part II, there is an absolute right to ap-
propriate water in Colorado and in Idaho (except for power uses), which means
that a proposed use cannot be rejected as contrary to the public interest.
Filing an application with the state agency is optional in these states; if
one is filed, the appropriator secures the advantage of the relation back doc-
trine mentioned at note 15 supra; otherwise, the priority dates from the time
of actual use as described in note 18 supra.
20. "The water commissioner is the most important officer with whom the Colorado
farmer comes in contact. The efficient discharge of the duties imposed upon
him requires firmness, energy, hard work, and more than average judgment. He
has to deal with a constantly fluctuating water-supply; he has to determine
whether or not water is being used with economy; he has even to exercise dis-
cretion as to how the relief of suffering appropriators can be best afforded.
On his action, and in many instances on his tact and judgment, the peace and
harmony of the neighborhood depends. He more than any other individual or offi-
cial can promote economy in the use of water and extend the acreage of crops
which are brought to maturity. All of the other steps under the Colorado irri-
gation code are simply preparatory to the work of the water commissioner. It
is only when codes provide for the enforcement and protection of rights by same
such official that water titles can be considered as having a stable and defi-
nite value." Mead, Irrigation Institutions, 163-64 (1903).
FOOOTFNOE Part I Page 5
20a. See e.g., the detailed provision made for acquisition of storage rights and
for distribution of stored water in Wyo. Comp. Stat. Ann. 0 71-601 to -621
(1945 & 1955 Supp.)
20b. An example of one relatively simple situation would be where a downstream
appropriator with a senior priority suddenly needs and is entitled to more
water than is available in his section of the stream, but it is unlikely that
closing the diversion headgate of an upstream junior appropriator would enable
water to reach the downstream appropriator in time or, because of evaporation
and seepage losses, in usable amounts.
20c. See State v. Cockran, Neb. 292, n. w. 239 (1940) (discussing at
length the many factors that can cause great uncertainty to plague even to
21, Brief statutes were enacted in Georgia and Louisiana at relatively early dates
and have been construed by the courts as incorporating the riparian principle.
Ga. Code Ann. 485-1301 to 1306, 105-1407 (1935); La. Civ. Code art. 661
(1945); see 16 La. L. Rev. 500 (1956), 29 Jul. L. Rev. 554 (1955).
22. Viel, Origin & Comparative Development of Law of Watercourses in Common Law
and in Civil Law, 6 Calif. L. Rev, 245, 342 (1918); Waters: American Law &
French Authority, 33 Harv. L. Rev. 133 (1919).
23. The history and rationale of these Acts are set out in Head v. Amoskeag Manu'g
Co., 113 U.S. 9 (1885) (upholding N. H. Act against allegation of taking for
private use in violation of fourteenth amendment). The Acts in some of the
eastern states are reviewed in the accompanying studies of water law. See note
30 infra with reference to the Virginia Acts.
24. For example, New Jersey has regulated the acquisition of rights to stream and
ground water for public supply purposes since 1907 and 1910. N.J. Stat. Ann.
tit. 58, c. 1 (1940 & 1955 Supp.). It has exacted an annual fee for such uses
since 1907. N.J. Stat. Ann. tit. 58, c 2 (1940 & 1955 Supp.), Trenton v.
New Jersey, 262 U.S. 182 (1923). And it has prohibited out-of-state diversions
of water since 1905. N.J. Stat. Ann. tit. 58, c. 3 (1940 & 1955 Supp.), Hudson
County Water Co. v. McCarter, 209 U.S. 349 (1908).
25. Stream and ground water statutes:
Md. Code Ann. art. 66c, 00 666-81 (1951) (enacted 1933).
Stream water statutes:
Wis. Stat. c. 31.14 (1953) (enacted 1935)
Minn. Stat. Ann. 0 105.37 to .64 (1946) (enacted 1937)
N.C. Gen. Stat. 0 113-81 (1952) (enacted 1951; irrigation use only).
Ill. Rev. Stat. e. 19, % 19, 0 65 (1955) (1945 reenactment of earlier
statute authorized state agency to grant permits to nonriparians to use
water from "public bodies of water" for industrial, manufacturing, and
public utility purposes.)
Ground water statutes:
McKinney's Consol. Laws N. Y. Ann., Conservation Law, % 521a (1951 & 1955
Supp.) (enacted 1933; applies to Long Island only).
Wis. Stat. c. 144.03 (6)-(8) (1953) (enacted 1945).
N.J. Stat. Ann. t 58:4A-1 to -4 (1955 Supp.) (enacted 1947).
Ind. stat. Ann. g 27-1301 to -1313 (Burn's 1955 Supp.) (enacted 1951).
Ill. Rev. Stat. c. 111 2/3, $ 223-32 (1955) (1951 enabling act for crea-
tion of local Water Authorities with power, among other things, to regu-
latecertain uses during actual or threatened shortage).
I | 11 I I I I ,,' [ I
FOOTNOTES Part I Page 6
Miscellaneous requirements such as the sealing of abandoned wells and the
licensing of well drillers have been enacted in numerous states. E.g., N.J.
Stat. Ann. A 58: 4A-4.1 to 4.3, 58: 4A-5 to -28 (1955 Supp.). The great
variety of statutes relating to water in some eastern states is evident in the
accompanying Michigan study, pp. 31-37.
26. Ellis, Some Current & Proposed Water-Rights Legislation in the Eastern States,
41 Iowa L. Rev. 237 (1956). The New York statute regulating ground water uses
on Long Island has been consistently enforced, however. Johnson, Conservation
of Ground Water on Long Island, 47 J. Am. Water Works Assoc. 348 (1955); Thomp-
son & Johnson, Panel Discussion 41 id. at 1007-1011 (1949).
26a. Some water rights statutes recently enacted in the East do not fall clearly
within either the riparian or appropriation line of legislative activity and
in some instances may be intended only as temporary measures pending adoption
of more general and permanent legislation. For example, South Carolina in
1955 adopted a statute allowing International Paper Co. to divert 100 cubic
feet per second from the Great Pee Dee River but not more than 8% of the flow
at the point of diversion. But the Paper Company was expressly denied recourse
against upper users except for violations of laws "regulating the pollution or
control of rivers and streams," It is stated that nothing in the statute is
to prevent irrigation and agricultural uses by upper or lower riparians, and
the rights of anyone to recover damages sustained by the diversion are expressly
preserved. Finally, any one else is given exactly the same right to use water
from this river as is given the Paper Company. Consequently, the effect of this
statute on the uncertainty of riparian law may be negligible. S.C. Code 0 70-
501 to -506 (1956 Supp.). For other legislative activity in this state, see
note 32 infra.
27. Wiel, Theories of Water Law, 27 Harv. L. Rev. 530 (1914).
28. See Michigan study, Part II; Massachusetts study, Part II; Marquis, Freeman,
& Heath, Movement for New Water Rights Laws in the Tennessee Valley States,
23 Tenn. L. Rev. 797 (1955).
29. Indiana Ann. Stat. g 27-1401 to -1405 (Burns 1955 Supp.).
Ky. Rev. Stat. 0 262.670 to .690 (1954 Supp.).
Va. Code tit. 62, 0 62-9.1 to -9.4 (1956 Supp.).
Some of the many questions raised by the Kentucky statute are discussed in 43
Ky. L.J. 407 (1955), and the Kentucky & Virginia statutes are compared in id.
30. Water Resources of Virginia, Report of the Virginia Advisory Legislative Coun-
cil (1955), recommending a statute relating to "Impoundment of Surface Waters"
which (1) would declare diffused surface water captured by a landowner to be
his"property", and (2) would permit riparian owners to apply to the county court
for leave to store stream water "over and above the average flow of the stream"
but only on conditions which are vague and potentially restrictive. The statute
includes no provision for the acquisition of property and flowage rights such
as is found in the state's Mill Acts. Va. Code 62-95 to -106 (1950); see
Staples, The Mill Acts, 9 Va. Law Reg. 265 (1903).
FOOTNOTES Part I Page 7
31. House Bill No. 232, 1956 Regulation Session, Miss. Legislature.
32. H. and S. 1956 Regular Session, S.C.G.A.
A 1953 statute presaging future regulation or modification of existing rights
in South Carolina declares the policy of the state to exercise its police power
to effectuate the full utilization and protection of water resources. S.C,
Acts & Joint Resolves 1953, No. 377.
The appropriation proposal in this state has been widely debated and was some-
what amended in legislative committee in 1954 and 1955 following its official
recommendation to the legislature in Report of the State Water Policy Committee,
A New Water Policy for South Carolina (1954).
33. H. B. 298 and S. B. 153, N.C.G.A. (1955). S.B. 69, 60th Reg. Sess., Ark. G. A.
34. Coates, Present & Proposed Legal Control of Water Resources in Wisconsin, 1953
Wis. L. Rev. 256.
35. The Michigan proposal is the subject of the accompanying constitutional study
and appears in this volume as an annex to the Massachusetts study. The pro-
posal is described generally in Barlowe, Proposed Water Rights Legislation in
Michigan, 26 Land Economics 300 (1950).
36. For convenience of expression, general references here to the eastern pro-
posals are intended to include the Mississippi statute as well as the proposed
legislation in the five other states.
37. Under all of the proposals, however, domestic uses (except, in Michigan, by
nonriparians) may be made without acquiring a right under these procedures.
38. A detailed adjudication procedure is provided in Arkansas proposal g 15-22; a
briefer procedure is outlined in Mississippi statute $ 13, North Carolina
proposal 0 14, and South Carolina proposal 0 15.
39. Mississippi statute i 24, North Carolina proposal A 25, and South Carolina
proposal 0 27.
40. The definition of these existing rights in the Mississippi statute, $ 2 (g)
(2) (3), is as follows:
"The right to continue the use of water having actually been applied
to any beneficial use at the time of the effective date of this act,
or within three (3) years prior thereto to the extent of the beneficial
use made thereof. ..
"The right to take and use water for beneficial purposes where a person
is bona fide engaged in the construction of works for the actual appli-
cation of water to a beneficial use at the time of the effective date
of this act, provided such works shall be completed and water is actually
applied for such use within three (3) years after this act becomes ef-
fective, with extension of not more than seven (7) years in the discretion
of the board. It is not the intent, however, to validate any claim to
the use of water, or for rights of construction looking to the use of
water, not lawful on the effective date of this act."
~_~~_ _1___ ___1__11____~1_0_1___~~L--~l~i~l -__.I1.___
FOOTNOTES Part I Page 8
For purposes of this definition, the statute is effective as of the date of
enactment. (0 30).
41. The technique of limiting riparian rights to the amount of water used at or
prior to enactment (or subsequent thereto as a result of construction then
underway) originated in the Oregon Water Code of 1909. It was designed to
eliminate unused riparian rights and to set a ceiling on the amount of water
covered by used riparian rights; the object was to permit the remainder of
the supply to be used under appropriation rights which could not be upset by
the unpredictable uses of riparians under their otherwise flexible rights of
reasonable use. Oregon Laws 1909, c. 215 1 & 70 (2) (3); as amended,
these provisions are codified in Ore. Rev. Stat. 4 537.120, 539.010 (1) -
(2) (1953). The constitutionality of this technique was upheld by the Oregon
court in In re Hood River, 114 Ore. 112, 227 Pac. 1065 (1924), and by the
Circuit Court of Appeals for the Ninth Circuit in California-Oregon Power Co.
v. Beaver Portland Cement Co., 73 F. 2d 555 (1934), aff'd on other grounds,
395 U.S. 142 (1934). See constitutional study, pp. .
This "Oregon Plan" technique was incorporated in a new Water Code in South
Dakota in 1955, (S.D. Seas. Laws 1955, c. 430) and it is also found in the
Kansas Water Code of 1945, though with an added provision allowing the owners
of unused riparian rights to sue for whatever damages they are deemed to have
sustained by loss of their rights. Kan. Gen. Stat. 4 82a-701 to -722 (1949),
State v. Knapp, 167 Kan. 546, 207 P. 2d 440 (1949) (upholding the constitution-
ality of the act to the extent of the specific questions presented), discussed
in constitutional study at pp. The provision for possible compensation
for the loss of unused riparian rights represents a development of an idea
that first appeared in McCook Irr. Co. v.Crews, 70 Neb. 109, 115, 96 N.W. 996
(1903), 102 N.W. 249 (1905), discussed in constitutional study at pp. .
There has been a decided trend in the West toward disfavoring riparian rights,
and the Oregon*Plan approach has also been considered at various times in some
of the six other western states in which riparian rights have coexisted with
appropriation rights. Horowitz, Riparian & Appropriation Rights to the Use of
Water in Washington, 7 Wash. L. Rev. 197, 215 (1932) (suggesting such legis-
lation in Washington but giving riparians a three-year grace period after
enactment in which to begin using their rights). The Oklahoma Ground Water
Appropriation Code of 1949 allowed overlying landowners a two-year grace period
before loss of their unused rights of reasonable use under preexisting law in
this state, (Okla. Stat. Ann. U 82-1001 to -1019 (1951).) and in 1955 consid-
eration was apparently being given to enactment of similar legislation with
regard to stream water.
42. Mississippi statute 5 5.
43. The status of riparian rights in Arkansas has been considerably altered since
this proposal was submitted to the legislature in 1955. In October 1954, the
court had ruled that the riparian doctrine prevails in Arkansas; but, appar-
ently to give the legislature a maximum of freedom to act in this area, the
court avoided a decision as to whether its previous opinions had made a choice
between the natural flow of reasonable use rules. Harrell v. Conway,_
Ark. 271 S.W. 2d 924 (1954). In October 1955, however, the court announc-
ed a definite acceptance of the reasonable use theory," adding that, subject
to the superior right for domestic purposes, "some of the lawful uses of water
recognized by this state are: fishing, swvM=ing, recreation, and irrigation."
Harris v. Brook_ Ak. _, 283 S.W. 2d 129 (1955).
FOOTNO ES Part I Page 9
44. These are the Class A vested rights contemplated by $7 of the Michigan pro-
posal. Ways in which the riparian right of reasonable use for these four
purposes may be somewhat modified by the proposal are discussed in Constitu-
45. These are the Class B vested rights of 0 7.
46. Mississippi statute $5. See note 41 supra.
47. Provisions comparable to 0 5 of the Mississippi statute are also found in
the Wisconsin proposal; see note 231 infra.
PART II Page 10
1. See note 20b, Part I, supra.
2. Data on the purposes of water use in the West and in the East are as follows
western states 31 eastern states
domestic 5 16
industrial 3% 814
irrigation 92% 35
(billion gal. per day) 95 90
U.S. President's Materials Policy Commission, Resources for Freedom, vol. 5,
at 89,90 (1952). U.S. Geological Survey, Estimated Use of Water in the United
States, Circ. No. 115 (1951).
3. These problems are concisely stated in U. S. National Resources Planning Board,
State Water Law in the Development of the West 38-39, 81-82 (1943), herein-
after cited as NRPB, State Water Law. See also U.N. Food & Agiculture Organi-
zation, Water Laws in the United States of America 1-24 (1948), hereinafter
cited as FAO, Water Laws in U.S.A. These problems are further documented in
the discussion of remedies later in this part.
4. "While ithe doctrine of appropriations reads well on paper, it is based upon
an altruistic concept of human behavior which practice has shown to be grossly
deficient. The appropriator is under a duty to take no more water from the
stream than he can use, and he may under no circumstances waste or extravagant-
ly use the water he has appropriated. Yet, experience has shown not only that
he may not be trusted in his own judgment to so confine himself, but that en-
forcement of this duty against him is attended with extreme difficulty. Even
today, enforcement rests largely in the individual initiative of fellow ap-
propriators who are hardly in a position to inspect his use for waste."
Williams, Irrigation Law in Colorado, 10 Rocky Mt. L. Rev. 87, 178, 190 (1938).
5. See note 17, Part I, supra.
5a. NRPB, State Water Law 58.
6. "While it is true that the laws of most western states provide that the measure
of a usufructuary right is the beneficial use thereof, this does not go far
enough. In most states the determination of the question of necessity is eith-
er left to the appropriator himself, or places it in the hands of an adminis-
trative official whose power and authority are hedged about by statutory limi-
tations and restrictions. In the absence of manifest and obvious waste of
water by an appropriator, the official is powerless. He can give no considera-
tion to the more important question of highest beneficial use; he has no auth-
ority to correct uneconomic, unskilled, and shiftless methods of use; he cannot
control the application of the water to a particular area, and thereby bring
about the application at a particular time to a crop which must have water at
that time or perish ." McHendrie, The Law of Underground Water, 13 Rocky
Mt. L. Rev. 1, 16 (1940),
FOOTNOTES Part II Page 11
7. It was estimated in 1948 that individual and partnership enterprises accounted
for roughly 1/3 of western irrigation, private cooperative enterprises for
another 1/3, district organizations for 1/5, the once important commercial com-
panies for only 5%, and federal reclamation projects for most of the remainder.
U.S. Dep't. of Agriculture, Irrigation Agriculture in the West, Misc. Pub. No.
670 (1938). See also U.S. Dep't. Agriculture, Irrigation-Enterprise Organiza-
tions, Circ. No. 934 (1953).
8. "...the state fof Oregon can secure sufficient water to double its existing
irrigable acreage by reducing present water losses .The 1950 Census of
Agriculture reported a conveyance loss of 1,244,000 acre feet annually. This
conveyance loss alone represents a quantity of water sufficient to irrigate
370 thousand acres.- In addition to these conveyance losses, considerable
quantities of water are lost on the farm as high as 60 percent of the
total water applied." Oregon Water Resources Ccmmittee, Report to the Forty-
eighth Legislative Assembly 80-81 (1955).
9. Hutchins, Selected Problems in the Law of Water Rights in the West 168-73
(U.S. Dep't. Agriculture Misc. Pub. No. 418, 1942), hereinafter cited as
Hutchins, Selected Problems; Annot., 121 A.L.R. 1044 (1939).
10. See, e.g., an Oregon statute entitled "Use of Water to Operate Water-Raising
Machinery," grating a riparian owner the "right to employ wheels, pumps,
hydraulic engines, or other machinery for the purpose of raising water to
the level required for use of the water in irrigating any land belonging to
him; provided, that the use of the water shall not conflict with the better or
prior right of another person." Ore. Rev. Stat. 0 541.410 (1953).
11. The amount of protection properly due an appropriator's means of diversion
of ground water constitutes an important problem today. Problems associated
with an administrative appropriation system of ground water rights are, how-
ever, beyond the scope of this paper.
12. Brief mention may be made of same of the difficulties involved in changing the
point of diversion or place or purpose of a particular use. A change in the
point of diversion, whether the move is up or down the stream, will affect
other users between the old and new points by altering the velocity, quantity,
and level of the flow reaching them. A change in the place of use (or the lo-
cation of conveyance ditches) may mean that seepage water and water flowing
from the surface of the field where used will take a different course back
toward the stream, perhaps cutting the supply of persons who had used the
water along its previous route and perhaps water-logging land along its new
route. Because the nature of the soil at the new place of use or along the
new return route may be different, the unconsumed water may reenter the stream
at a different time or with a greater content of dissolved solids to the in-
jury of downstream users. A change in the purpose of use may be reflected in
all these factors of timing, velocity, quantity, level, and purity of flow,
and such' a change may be especially disruptive of established conditions if
the new purpose is a more consumptive use than the former one.
13. NRPB, State Water Law 39. FAO, Water Laws in U.S.A. 17-18. This problem of
excessive channel losses is similar to the problem of conveyance losses al-
ready discussed; reduction of channel losses, however, may require a change
in place of use, while conveyance losses may often be reduced merely by im-
provement in an irrigation system*
FOOTNOTES-- Part II Page 12
14. Uncertainty as to rights to use return water is discussed at pp. 91-92, infra.
15. A junior upstream appropriator may divert water as long as the remaining stream
flow plus the return water from his use is sufficient to permit senior down-
stream appropriators to divert the water they are entitled to when they need it.
But because irrigation is a relatively consumptive type of use, a considerable
decrease in quantity would ensue from the junior appropriator's use, and the
water that does return to the stream may be lowered in quality and delayed in
reaching downstream points to the injury of senior downstream rights. The uses
a junior upstream appropriator can make may therefore be quite limited by the
existence of these downstream rights. Conseqently, where a large amount of
water must be allowed to pass substantially unused to downstream appropriators
located where their return water cannot be effectively reused, a fuller use of
the stream flow would often be achieved by a greater upstream use and a suc-
cessive reuse by each lower appropriator of the water reaching him.
17. NRPB, State Water Law 39. FAO, Water Laws in U.S.A. 4.
18. A New Mexico statute declares that the "natural right of the people living in
the upper valleys of the several stream systems to impound and utilize a reas-
onable share of the waters which are precipitated upon and have their source
in such valleys and superadjacent mountains, is hereby recognized, the exercise
of the right, however, to be subject to the provisions of this article." N.M.
Stat. 0 75-5-27 (1953). As "this article" encompasses most of the state's
Water Code, this "right" is subject to existing priorities; the statute may
therefore be little more than legal surplusage inspired by tensions between
upper and lower interests, though it could serve as a standard to guide the
agency in the granting of new permits.
19. Neb. Rev. Stat. $ 46-206 (1954); see Doyle, Water Rights in Nebraska, 29 Neb.
L. Rev. 385, 405-07 1950).
20. In California the so-called Counties of Origin statutes have been the focus
of sharp controversy in recent years. These statutes require that the state,
in itself appropriating water in furtherance of projects contemplated as part
of the State Water Plan, not "deprive the county in which the appropriated
water originates of any such water necessary for the development of the county."
Deering's Calif. Code Ann. g 10505 (1954) (first enacted in 1927); see also
$ 12640. The history of the Counties of Origin issue is outlined in Calif.
Division of Water Resources, Dep't of Public Works, Water Right Investigations:
Water Right Applications by the State Department of Finance, Assignments
Thereof, Reservations for Counties of Origin, and Other Related Matters (1955).
21. In Colorado, conservancy districts diverting water eastward from the West Slope
headwaters of the Colorado River must provide "compensatory storage" to protect
the interests of present and future appropriators along the River in the west-
ern part of the state; i.e., the districts must construct storage projects to
capture the flood waters of wet seasons for later release for the benefit of
downstream users on the West slope. Colo. Rev. Stat. 149-6-13 (2) (1953).
The controversy between West Slope and East Slope interests over this provision
has been called "the last real obstacle to the full utilization of Colorado's
greatest resource, water. ." Beise, Compensatory Storage, 22 Rocky Mt. L.
Rev. 453 (1950). See also 25 Rocky Mt. L. Rev. 363 (1953) (provision said of
FOOTNOTES Part II Page 13
doubtful constitutionality in the light of the absolute right to appropriate
accorded by the state constitution).
22. No note 22. (Author)
23. E.g., Colo. Rev. Stat. 147-1-1 (1953) (absolute prohibition); Mont. Rev.
Code 0 89-846 (1947) and Ore. Rev. Stat. 4 537.810 (1953) (special act of leg-
islature necessary); Neb. Rev. Stat. A 46-233.01 to -233.02 (1953 Supp.)
(reciprocity plus special act of legislature necessary); Ariz. Code Ann.
4 75-112 (1939) (administrative officials given discretionary power to deny
24. Release, Trends in the Law of Appropriation, Proceedings: Water Law Confer-
ences, U. of Texas 206, 203-14 (1952 & 1954). NRPB, State Water Law 48.
25. See note 12 supra.
26. NRPB, State Water Law 81. FAO, Water Laws in U.S.A. 18-19.
Brief mention might be made of an uncommon situation in western law where water
may sometimes be taken from one use and given temporarily to a less important
use. This is the preference for direct diversion rights over storage rights;
a storage right in Nebraska does not allow the impounding of additional water
when it is needed for direct irrigation even by appropriators whose direct flow
rights are junior to the storage right. Neb. Rev. Stat. U 46-241 to -243
(1952). A similar preference existed at one time in Colorado but, by Colo. Rev.
Stat. 0 147-5-1 (1953), an appropriation for a storage reservoir constructed
since 1935 is superior to direct flow appropriations of a priority later than
of the reservoir. The earlier rule in Colorado had been termed an "unfortunate
condition .Zhampering the scientific development of Irrigation .. L- y
losinfa sight of the larger and more important matter of greater beneficial use
through storage." McHendrie, The Evolution of the Doctrine of Priority, 23
Colo. Bar Assoc. 123, 137-40 (1930); see also Williams, Irrigation Law in Col-
orado, 10 Rocky Mt. L. Rev. 87, 178, 184-89 (1938).
27. "Irrigation, given high priority in the past, has contributed to the economic
development of the Western States, but the need is increasing for weighing the
economic justification for irrigation against that of industrial use of the
same water. .In some situations, for example, it may be more advantageous to
the area and to the Nation to provide less water for irrigation and more for
industry." U.S. President's Materials Policy Commission, Resources for Freedom,
vol. 1, p. 54,55 (1952).
The consumptive use of water in irrigation is 5 to 10 times that of industry in
the West,and in one representative year a gallon of water used in industry pro-
duced 50 times more dollar value in goods than a gallon used for irrigation.
Id., vol. 5, p. 86.
28. "...the users of water, particularly for agricultural purposes, more often than
not are involved in some sort of group dependency for their supply of water.
Shifting the use of water seldom involves the action of an individual user.
Huffman, A Framework for Water Pricing Policy, in Western Agricultural Economics
Research Council, Committee on Economics of Water Resources Development, Report
No. 1, p. 71, 73 (1953)-
FOOTNOTES Part II Page 14
29. "The appropriation system of water rights has brought with it an element
of fixity in the use of water. That is, in addition to facilitating or re-
tarding change, an institutional arrangement (like water rights) may tend to
'freeze' an existing pattern of resource use." Id. at 71.
30. Engelbert, Political Aspects of Future Water Resources Development in the West,
in id., 85, 89.
31. U.S. President's Materials Policy Commission, Resources for Freedom, vol. 5,
"Individual rights to water need to be recognized as property, but rights
acquired decades ago should not serve as an estoppel to programs which might
provide a wiser use of water now from the standpoint of the overall public
interest. .Unless some adjustments are worked out in western water law,
the western states will seriously restrict their own economic and industrial
growth." Engelbert, op. cit. supra note 30, at 90.
32. No note 32. (Author).
33. Hutchins, Selected Problems 317.
34. Mead, Property in Water Rights, 6 International Quarterly 1 (1902).
35. Elwood Mead, one of the moving forces in the evolution of the administrative
appropriation system and later the first Commissioner of the Bureau of Re-
clamation, has recorded a striking account of these early adjudications in his
classic work, Irrigation Institutions, 83-85, 147-59 (1903).
36. NRPB, State Water Law 38; see page 31, supra. Some of the early rights orig-
inally defined in unrealistic amounts have since been limited by courts to ditch
capacity as established over a period of years. Lindsey, Legal Problems in City
Water Supply, 22 Rocky Mt. L. Rev. 356, 385-86 (1950).
37. Hutchins, Selected Problems 316-17. 1 Wiel, Water Rights in the Western States
4 473-82 (3d ed. 1911). Lasky, From Prior Appropriation to Economic Distribu-
tion of Water by the State -- Via Irrigation Administration, 1 Rocky Mt. L. Rev.
161, 198 (1929).
"Rights to the use of water shall be limited and restricted to so much thereof
as may be necessary, when reasonably and economically used for irrigation and
other beneficial purposes, irrespective of the carrying capacity of the ditch. .
Nev. Comp. Laws 0 7897 (1929).
38. See, e.g., the Oregon cases of Hough v. Porter, 51 Ore. 318, 95 Pac. 732 (1908),
98 Pac. 1083, (1909), 102 Pac. 728 (1909); In re Willow Creek, 74 Ore. 592, 144
Pac. 505, 516 (1914), 146 Pac. 475 (1915); Tudor v. Jaca, 178 Ore. 126, 164 P.
2d 680, 165 P. 2d 770 (1946); Oliver v. Skinner, 190 Ore. 423, 226 P. 2d 507
39. See Sterling v. Pawnee Ditch Co., 42 Colo. 421, 94 Pac. 339 (1908).
40. Doherty v. Pratt, 34 Nev. 343, 124 Pac. 574 (1912) (water conveyed 3 miles
along natural channel with swamp where water was subjected to high seepage,
evaporation, and transpiration losses),
FOOTNOTES Part II Page 15
41. Basinger v. Taylor, 36 Idaho 591, 211 Pac. 1085 (1922) (10% conveyance loss
in one part of irrigation system reasonable but 50% loss in another part un-
42. See Sehodde v. Twin Falls Co., 161 Fed. 43 (9th Cir. 1908) (water wheel);
In re Owyhee River, 124 Ore. 44, 259 Pac. 292 (1927) (water wheel). See also
Hutchins, Selected Problems 168-73; Annot., 121 A.L.R. 1044 (1939).
43. Nev. Comp. Laws A 7993.11 .21 (1949 Supp.) (maximum allowable loss set at
20% for artesian water). In re Maas, 219 Cal. 422, 27 P. 2d 373 (1933) (up-
holding county ordinance prescribing 5% limit on loss of ground water in
irrigation). Ex part Elam, 6 Cal. App. 233, 91 Pac. 811 (1907) (upholding
statute setting 10% limit on loss of artesian water in irrigation).
44. 1 cubic foot per 70 acres:
S. D. Sess. Laws 1955, c. 430, $ 61.0126.
Wyo. Comp. Stat. Ann. S. 71-216 (1945), Quinn v. Whitaker, 54 Wyo.
367, 92 P. 2d 568 (1939) (statute held not meant to apply to rights
adjudicated prior to enactment where beneficial use made of greater
2 acre-feet per acre:
N.D. Rev. Code $$ 61-0418 to -0421 (1943).
1 cubic foot per 70 acres nor more than 3 acre-feet per acre:
Neb. Rev. Stat. 46-231 (1943), Enterprise Irr. Dis. v. Willis, 135 Neb.
827, 284 N.W. 326 (1939) (holding that statute could not constitutionally
apply to rights vested prior to enactment where beneficial use made of
greater amount); cf. Herminghaus v. Southern California Edison Co.,
200 Cal. 81, 252 Pac. 607 (1926).
45. "'Duty of water'...is that measure of water, which, by careful management and
use, without wastage, is reasonably required to be applied to any given tract
of land for such period of time as may be adequate to produce therefrom a maxi-
mum amount of such crops as ordinarily are grown thereon. It is not a hard
and fast unit of measurement, but is variable according to conditions. .Land
characteristics at the place of use are important .Climate is a feature
not to be overlooked, as also are the kinds of crops ordinarily grown thereon
and the proportion of the area devoted to each type of crop and the rotation
thereof." Farmers Highline Canal Co. v. City of Golden, 129 Colo. 575, 272 P.
2d, 629, 634 (1954).
46. See, e.g., California Division of Water Resources, Dep't. of Public Works,
Rules, Regulations and Information Pertaining to Appropriation of Water (1952).
The Division therein announces that, in the granting of new permits, it re-
gards 1 cubic foot per second for each 80 acres as sufficient for ordinary crops
in most areas, though local conditions may call for larger or smaller amounts.
The Division also indicates in detail the number of gallons per day that may be
used per individual or per animal for domestic and stock-watering purposes in
47. NRPB, State Water Law 41, 82. McHendrie, supra note 6. Williams, supra note 4.
"There is as yet no answer for the problem which arises when a farmer, either
because of indolence or lack of knowledge of proper irrigation practices, con-
tinues to pour excessive quantities of water on his land and thus deprives a
FOOTNOTES Part II Page 15a
neighbor of needed water. Be that as it may, the principle is unquestioned
that there may be no waste of water." Breitenstein, Sane Elements of Colorado
Water Law, 22 Rocky Mt. L. Rev. 343, 349 (1950).
48. Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 276 Pac. 1017 (1929),
affirming a decree awarding plaintiff 25 acre-feet per acre per year for ir-
rigation, as calculated in NRPB, State Water Law 43.
49. Tulare Irr. Dis. v. Lindsay-Strathmore Irr. Dis., 3 Cal. 2d 489, 45 P. 2d 972,
Over a vigorous dissent, the Texas court has recently held (6-3) that losses
of 63% to 74% in the conveyance of artesian water 118 miles in a natural stream-
bed are not enjoinable under the common law rights of overlying owners and a
statute prohibiting waste of ground water. Corpus Christi v. Pleasanton,
154 Tex. 289, 276 S.W. 2d 798 (1955). See 2 So. Texas L. J. 74 (1955).
50. See Crowley v. District Court, 108 Mont. 89, 88 P. 2d 23, 121 A.L.R. 1031
(1939), (Junior appropriator denied use that would lower water level behind
wing dam of brush, rocks, and dirt employed by senior appropriator to raise
water to ditch level without pumping); Midkiff v. Kincheloe, 127 Mont. 324,
263 P. 2d 976 (1953) (dissent pointed out inefficient diversion and storage
method of appropriator allowed to enjoin efficient upper user).
51. See Tulare Irr. Dis. v. Lindsay-Strathmore Irr. Dis., 3 Cal. 2d 489, 45 P. 2d
972, m (1935); Enterprise Irr. Dix. v. Willis, 135 Neb. 827, 284 N.W. 326
(1939); Hardy v. Beaver Irr. Co., 65 Utah 28, 234 Pac. 524 (1924).
52. MNPB, State Water Law 41.
53. NRA, Desirable Principles 20. See also FAO, Water Laws in U.S.A. 20 (adding
that a "practical view" be taken "of the desirability of change---that the
benefit be measured in relation to the cost").
54. See Nev. Comp. Laws 0 7899 (1929 & 1949 Supp.).
55. See Stroup v. Hubbell, 27 N.M. 35, 192 Pac. 519 (1920) injunction granted
landowner whose crop was water-logged by wasteful amounts of irrigation water
used by neighbor).
56. NRPB, State Water Law 58.
57. Trelease, Trends in the Law of Prior Appropriation, op. cit. supra note 24,
at 210-12 (citing two Wyoming cases in which such a determination was made by
58. NRPB, State Water Law 42, 58.
59. As an illustration of the interrelationship of time and place, where excessive
and ordinarily wasteful application of water is made on upstream land at cer-
tain times of the year, a counter-cyclical storage effect may be achieved by
the return of seepage water during the dry season permitting greater downstream
use of water at such times, Tipton, Water Supply and Water Use Problems,
22 Bocky Mt. L. Rev. 389, 394 (1950).
FOOTNOTES PART II Page 16
60. E.g., Wash. Rev. Code 90.28.100 (1951); Wyo. Comp. Stat. Ann. 0 71-310 (1945).
61. NRA, Desirable Principles 27-28.
62. E.g., Wyo. Comp. Stat. Ann. 0 71-619 to -621 (1945) More complex exchange
arrangements said to be necessary for the better utilization of much water in
Colorado are discussed in Tipton, Supra Note 59.
63. Ft. Lyons Co. v. Chew, 33 Colo. 392, 81 Pac. 37 (1905), criticized in Williams,
Irrigation Law in Colorado, 10 Rocky Mt. L. Rev. 87, 103-04 (1938).
64. See Hill v. Green, 47 Idaho 157, 274 Pac. 110 (1928); Big Cottonwood Co. v.
Shurtliff, 56 Utah 196, 189 Pac. 587 (1920). The court may refuse to recognize a
right for the salvage of losses that were unreasonable (Basinger v. Taylor, 36
Idaho 591, 211 Pac. 1085 (1922) or that had become the basis of another's sup-
ply (Dannenbrink v. Burger, 23 Ca1. App. 587, 138 Pac. 751 (1913)).
65. See Bowles Co. v. Bennett, 92 Colo. 16, 18 P. 2d 313 (1932); Salt Lake City v.
Gardner, 39 Utah 30, 114 Pac. 147 (1911).
66. Wiel, Fifty Years of Water Law, 50 Harv. L. Rev. 252, 269 (1936). Pointing out
the possibilities for reducing evaporation losses in many places, it has been
said that proof of a right to such salvaged water "might well be more con-
clusive than an attempt to establish the adequacy of supply from some remote
source area." Thomas, Conservation of Ground Water 252 (1951).
67. E.g., S.D. Sess Laws 1955, c. 430, $ 61.0121; Wyo. Comp. Stat. Ann. A 71-616
(1955 Supp.). See also Mont. Rev. Code 4 89.823 to -826 (1947). A South
Dakota statute gives the owner of land across which the proprietor of a well
is conveying ground water a right to rent any surplus above the other's needs.
S.D. Sess. Laws 1955, c. 431, 0 61.0429.
68. See notes 40 and 41 supra.
69. McGuinness, Water Law with Special Reference to Ground Water 9-10 (U.S. Geo-
logical Survey Circ. No. 117, 1951).
70. Hutchins, Selected Problems 332-35.
71. State v. Cochran, 138 Neb. 163, 292 N.W. 239 (1940).
71a. 292 N.W. at 247.
72. Hutchins, Selected Problems 331. See Joerger v. Pacific Gas & Electric Co.,
207 Cal. 8, 276 Pac. 1017 (1929) (power project enjoined from interfering with
irrigation of land "hilly and porous, marked by numerous depressions, and ...
irrigated by turning the water upon the ground and permitting it to run over
the slopes"); see note 48 supra.
73. NRPB, State Water Law 81.
74. Id. at 40-41.
75. Id. at 46.
FOOTNOTES Part II Page 17
76. Ibid. Various measures might be available for mitigating the hardship caused
an appropriator who could neither make a change nor sell his right; for ex-
ample, he couldbe given preferred treatment in application for new rights else-
where and for participation in new reclamation projects or other resettlement
programs, or he might be awarded some compensation for his forfeited right.
Condemnation of existing uses for more efficient uses for the same purpose or
for more important purposes are discussed under Preferences infra.
77. Even though no excessive channel losses were involved, physical solutions of
this nature might be desirable in other situations, as, for instance, where
greater utilization of return water could be obtained by increasing the up-
stream use of the stream flow.
78. NPPB, State Water Law 21-22.
79. E.g., Ore. Rev. Stat. A 540.510 to .530 (1953) (providing simpler procedure
for changes in place of use and point of diversion of less than mile where
there are no intervening diversions); S.D. Sess. Laws 1955, c. 430, 0 61.0110
(allowing diversions for overhead sprinkler system of irrigation to be at one
or more points along stream); Wash. Rev. Code g 90.28.100 (1951) (permitting
temporary changes in point of diversion or place of use on approval of water-
79a. Wyo. Comp. Stat. Ann. 0 71-401 (1945). Release, Trends in the Law of Prior
Appropriation, op. cit. supra note 24, at 216-17, attributes this provision
to a reaction in Wyoming to "the sight of Colorado irrigators bartering and
selling the state's water."
79b. Ariz. Code Ann. 0 75-135 (1939).
79c. S.D. Sess. Laws 1955, c. 430, 0 61.0128.
80. IRPB, State Water Law 45, See also Trelease, supra note 79a.
81. Release, supra note 79a, at 217.
Two recent cases have eased this problem in Colorado. The first declared that
the applicant need only meet the specific objections raised by other users,
rather than disproving all possibility of injury to others. Colorado Springs
v. Yust, 126 Colo. 289, 249 P. 2d 151 (1952); see 25 Rocky Mt. L. Rev. 236
(1953). It had been said this earlier burden made it "practically impossible
to bring about a jhange in point of diversion/ in the face of any vigorous
protest." McHendrie, Evolution of the Doctrine of Priority, 33 Colo. Bar
Assoc. 123, 137 (1930). It has even been suggested that one objecting to a
change bear the burden of proving injury. Williams, Irrigation Law in Colorado,
10 Rocky Mt. L. Rev. 87, 178, 190 (1938).
In the second case an irrigator was allowed to change his point of diversion
and place of use to better land for a 5-year period to determine whether other
users would be injured. Cline v. McDowell, Colo. 284 P. 2d 1056 (1955).
This decision has been termed an "interesting experiment" which "will avoid
many of the technical objections and unrealistic limitations on the transfer
of appropriation rights. 1955 Annual Survey of American Law: Part Four --
Property and Procedure, 31 N,Y.U.L. Rev. 643, 685 (1956).
82. mRPB, State Water Law 45.
FOOTNOTES Part II Page 18
84. The Arizona statute allows appropriations for domestic, municipal, irrigation,
stock-watering, water power, and mining uses; fish and wildlife uses were added
in 1941. Ariz. Code Ann. 0 75-102 (1939 & 1952 Supp.).
The Texas statute includes all these purposes and also lists use for milling,
manufacturing, industrial, public parks, recreation and pleasure resorts pur-
poses. Vernons Tex. Civ. Stat. Ann. art. 7470 (1954).
Until 1955 a South Dakota statute itemized beneficial purposes and included
fire protection in addition to most of the foregoing types of use. S.D. Code
S61.0102 (1952 Supp.). This statute has now been repealed in favor of a
statute allowing appropriations for "any use of water that is reasonable and
useful and beneficial to the appropriator, and at the same time is consistent
with the interests of the public in the best utilization of water supplies."
S.D. Sess. Lars 1955, c. 430, i 61.0102 (6).
85. Tulare Irr. Dis. v. Lindsay-Strathmore Irr. Dis., 3 Cal. 2d 489, 45 P. 2d 972
86. Blaine County Co. v. Mays, 49 Idaho 766, 291 Pac. 1055 (1930).
87. In re Deschutes River, 134 Ore. 623, 286 Pac, 563, 294 Pac. 1049 (1930).
88. Empire Water & Power Co. v. Cascade Town Co., 205 Fed. 123 (8th Cir., 1913).
89. See Rudge v. Simmons, 39 Idaho 22, 226 Pac. 170 (1924). A right may not be
recognized, however, where the increase in productivity is meager and insub-
stantial. Vineyard Co. v Twin Falls Co., 245 Fed. 9 (9th Cir., 1917).
90. See in Re Robinson, 62 Idaho 462, 103 P. 2d 693 (1940).
91. See Lindsey, Legal Problems in City Water Supply, 22 Rocky Mt. L. Rev. 356,
377-85 (1950 (giving several "illustrations showing how complicated a transfer
suit may become"). See also Breitenstein, Same Elements of Colorado Water Law,
22 Rocky tb. L. Rev. 343, 348 (1950).
91a. Condemnation of existing rights for public use is, of course, available as a
technique for changing the use of water just as in the case of other resources
to which private property interests have attached. Except where condemnation
powers are conferred by preference provisions, however, this technique does not
constitute a remedy peculiar to the administrative appropriation system and
will not be specifically discussed in this paper.
92. E.g., Vernons Texas Civ. Stat. Ann. art. 7557 (1954). There appears to be
some question whether the "pro rata" reduction called for by this statute means
a proportional, across-the-board reduction of all uses, or whether the varying
needs of the different users are to be taken into account. Roberts, Problems
Connected with the Distribution of Irrigation Water in Texas, Proceedings:
Texas Water Law Conferences, U. of Texas 79, 92-94 (1952 & 1954); 31 Texas L.
Rev. 373 (1953).
See 2 Wiel, Water Rights in the Western States 4 1283-85, 1343-44 (3d ed. 1911).
93. Idaho Constitution art. 15 0 5.
FOOTNOTES Part II Page 19
94. Colo. Rev. Stat, 0 147-3-13 (1954). This statute is probably unconstitutional
if applied to consumers whose uses are not of the same or nearly the same date.
Farmers High Line Co. v. Southworth, 13 Colo. 111, 21 Pac. 1028 (1889); Farmers
High Line Co. v. White, 32 Colo. 114, 75 Pac. 415 (1903). Consumers may bind
themselves to prorationing by contract, however. Larimer & Weld Co. v. Wyatt,
23 Colo. 480, 48 Pac. 528 (1897).
95. Wash. Laws 1890, p. 706, 0 5, 9-10, 17; repealed by Wash. Bess. Laws 1917,
c. 117, 47.
96. Release, Trends in the Law of Prior Appropriation, op. cit. supra note 24,
97. NRPB, State Water Law 57-58.
Proposed ground water legislation in Nebraska in 1941 would have provided for
the issuance of new permits on the condition that, after the satisfaction of
priorities under already existing rights, if there were not a sufficient sup-
ply for the needs of all the permittees the water would be prorated in useful
amounts to as many of them as possible. McGuinness, supra note 69, at 23-24.
98. Statement prepared by William E. Welsh, Secretary-Manager, National Reclama-
tion Association, Washington, D. C. on water distribution in the Boise Valley,
Idaho. The decrees are the Stewart and Bryan decrees. (Check reference.)
99. 1 Wiel, Water Rights in the Western States 0 310-15 (3d ed. 1911). Wiel,
"Priority" in Western Water Law, 18 Yale L. J. 189 (1908).
99a. If, however, water is prorationed on a basis of individual need, as may be the
intent of the Texas statute (see note 92 supra), this technique can hardly be
99a. If, however, water is prorationed on a basis of individual need, as may be
the intent of the Texas statute (see note 92 supra), this technique can hardly
be called mechanical.
100. In addition to permitting same use to continue under junior rights, proration-
ing would encourage senior appropriators to make a more efficient use of the
lesser amount of water distributed to them.
101. Hutchins, Selected Problems 389-97. At least one court has held that a for-
feiture statute may not be applied to rights vested prior to its enactment.
In re Manse Spring, 60 Nev. 280, 108 P. 2d 311 (1940).
102. Forfeiture statutes in several states employ the words "abandonment" and
"forfeiture" almost interchangeably. E.g., Wyo. Comp. Stat. 0 71-701 (1945);
Nev. Comp. Laws 4 7897 (1949 Supp). If a statutory time period is introduced
into abandonment situations, confusion might result from the erroneous idea
that intentional nonuse must extend over the full forfeiture period ren though
that would be longer than the unreasonable time after which abandonment should
come into operation. If the element of intent is introduced in forfeiture
proceedings, there might arise an equally erroneous idea that unintentional non-
use for the statutory period is not sufficient to cause loss of the right.
NRPB, State Water Law 17.
____,,______ i ______ _
FOOTNOTES Part II Page 20
103. E.g., Calif. Water Code % 1410-15 (Deerings, 1954).
104. Supra p. 28.
S 105. Supra pp. 21-22.
L05a. Pacific Live Stock Co. v. Lewis, 241 U.S. 440 (1916).
106. Vineyard Co. v. District Court, 42 Nev. 1, 171 Pac, 166 (1918). Pacific Live
Stock Co. v. Lewis, 60 Ore. 258, 119 Pac. 147 (1911).
Minor features of these adjudication procedures were deemed unconstitutional in
i St. Germaia Irr. Co. v. Hawthorne Ditch Co., 32 S.D. 260, 143 N.W. 124 (1913),
and in Bear Lake County v. Budge, 9 Idaho 703, 75 Pac. 614 (1904).
107. Farm Irr. Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258 (1900).
108. Crawford v. Hathaway, 67 Neb. 325, 93 NW 781 (1903); Enterprise Irr. Dis. v.
Tri-State Land Co., 92 Web. 121, 138 N.W. 171 (1912).
109. Board of Water Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301 (1921) (provis-
ions held invalid as attempt to confer judicial powers on administrative agency).
Accord: Ormsby County v. Kearney, 37 Nev. 314, 142 Pac. 803 (1914); as subse-
quently amended, the Nevada statute was upheld in Vineyard Co. v. District Court,
42 Nev. 1, 171 Pac. 166 (1918).
110. Fairbanks v. Hidalgo County Water Imp. Dis. #2, 261 S.W. 542 (Tex. Civ. App.
1924), error dismissed (held invalid on basis of McKnight case, supra note 109).
Contra: Speer v. Stephenson, 16 Idaho 707, 102 Pac. 365 (1909).
See Cox, The Texas Board of Water Engineers, 8 Texas L. Rev. 245 (1929).
111. E.g. Wyo. Comp. Stat. 0 71-701 (1945). Water covered by rights which are de-
clared lost reverts to the state for appropriation under new rights but subject
to all existing priorities; all appropriators junior to the lost right there-
fore benefit by moving that much higher on the scale of priorities.
112. E.g., Calif. Water Code g 1675-77 (Deerings, 1954); Kan. Gen. Stat. S 82a -
113. Burst v. Idaho Iowa Co., 42 Idaho 436, 246 Pac. 23, 25 (1926).
114. Miller v. Wheeler, 54 Wash. 429, 103 Pac. 641, 643 (1909).
115. Release, Trends in the Law of Prior Appropriation, supra note 24, at 215-16.
116. FAO, Water Laws in U.S.A. 24.
118. NBPB, State Water Law 48-49.
119. Neb. Rev. Stat. 0 46-229 to 229.05 (1952); see Trelease, Trends in the Law of
Prior Appropriation, supra note 24, at 216. These Nebraska statutes were held
constitutional in Dawson County Irrig. Co. v. McMullen, 120 Neb. 245, 231 N.W.
FOOTNOTES Part II Page 21
120. Ore. Rev. Stat. M 540.610 to .640 (1953), none of which provided for adminis-
trative proceedings or authorized the agency to nitiate judicial actions.
121.. Oregon Water Resources Committee, op. cit. supra note 8, pp. 78-79. The report
noted that such a requirement was already imposed upon holders of power permits
under Ore. Rev. Stat. $ 543.720 (1953). Ground water users in Oregon are also
required to file annual reports, but the statute specifies no penalty for
failure to do so. Ore. Rev. Stat. $ 537.560 (1953), reenacted by Ore. laws
1955, c. 708, $ 23.
122. Ore. Laws 1955, c. 670-71.
123. Ore. Laws 1955, c. 669.
124. The problem in Texas is well described in Proceedings: Water Law Conferences,
U. of Texas (1952 & 1954), especially the articles by Bouldin at pp. 96 & 226
and Rollins at pp. 67 & 221; see also Comment, State Claims in Texas Stream
Water, 28 Texas L. Rev. 931 (1950).
125. Johnson, The Challenge to Prescriptive Water Rights, 30 Texas L. Rev. 669,
126. See Corzelius v. Harrell, 143 Tex. 509, 196 SW 2d 961 (1945), discussed in
constitutional study at p.
127. For example, one proposal would authorize the issuance of certificates for
"fixed" rights to the amount of water actually used and for "potential" rights
to the unused portion of the water encompassed by the original permit; the
potential rights would become fixed only to the extent the unused water were
put to beneficial use within a specified time. Roberts, Panel Discussion, in
Proceedings: Water Law Conferences, U. of Texas 239, 241 (1952 & 1954).
128. Tex. Civ. Stat. Ann. arts. 7519a-7519b (Vernons, 1954).
129. It would seem that this statute was intended to apply to rights unused during
the 10-year period whether or not they had ever been used prior to 1945, but
some question has been raised as to whether the statute as drafted will
actually allow cancellation of rights that were used at some time before 1945.
Bouldin, Perfection & Loss of Appropriative Rights, in Proceedings: Water Law
Conferences, U. of Texas 226, 234-35 (1952 & 1954).
130. Tex. Civ. Stat. Ann. arts. 7612-7612b (Vernons, 1955 Supp.).
131. See Report of Texas Water Resources Committee, August 1955(Check reference)
132. Colo. Const. art XVI, s. 6 (italics added).
133. Idaho Const. art. XV, s. 3.
134. Neb. Const. art. XV, s. 6.
135. Ore. Rev. Stat. s 540.140 (1953).
136. Utah Code Ann. s. 73-3-21 (1953).
FOOTNOTES Part II Page 22
137. Wyo. Comp. Stat. Ann. s. 71-402 (1955 Supp.).
S 138. Tex. Civ. Stat. Ann. art. 7471 (Vernon's, 1954).
139. Idaho Const. art. XV, s. 3.
140. Wash. Rev. Code s. 90..0430 (1951).
141. Sterling v. Pawnee Ditch Cq., 42 Colo. 421, 94 Pac. 339 (1908). This and
"other examples of the Colorado Supreme Court's reluctance to destroy a
priority wihh a preference" are analyzed in Trelease, Preferences to the Use
of Water, 27 Rocky Mt. L. Rev. 133, 134, 145-47 (1955). See also the
criticism of the court's interpretation of this constitutional provision in
Thomas, Appropriations of Water for a Preferred Purpose, 22 Rocky Mt. L. Rev.
142. Trelease, Preferences to the Use of Water, 27 Rocky Mt. L. Rev. 133, 146
143. State ex. rel. Anderson v. Superior Court, 139 Wash. 406, 205 Pac. 1051
144. Condemnation for domestic and transportation purposes is not restricted, but
condemnation for steam power can not be exercised against irrigation rights
already adjudicated or applied for at the time of enactment of the 1955 amend-
ment adding steam power to the category of first preference. The statute
prefers irrigation over hydroelectric power but provides no eminent domain
power in support of this preference. Wyo. Comp. Stat. Ann. s. 71-402 (1955
145. Wyo. Comp. Stat. Ann. s. 71-403 (1945).
146. Tex. Civ. Stat. Ann. Art. 7472 7472a (Vernon's, 1954). The statute does not
apply to appropriations from the Rio Grande or to appropriators for domestic
and municipal purposes. See El Paso County Water Imp. Dis. v. El Paso, 133 P*
Supp. 894 (W.D. Tex. 1955).
147. Bouldin, Perfection and Loss of Appropriative Rights, in Proceedings: Water
Law Conferences, U. of Texas 226, 231 (1952 & 1954). Problems under this
Texas statute are discussed at some length in McCall, Rights to Impounded
Water, id at 251.
148. "A reappraisal of these laws and the policies behind them .. would not be out
of place." Trelease, Preferences to the Use of Water, 27 Rocky Mt. L. Rev.
133, 158 (1955).
149. "Because of its importance to economic development, and because of its rela-
tively small need as compared with irrigation, industry should be accorded a
higher priority in future water policy than is now the case. Along with
domestic needs, sufficient water to support future industrial growth should
probably be set aside first. In most instances this would have relatively
little effect upon the availability of water for irrigation." Hamman, Water
Policy and Western Industrial Development, in Western Agricultural Economics
Research Council, Committee on Economics of Water Resources Development, Report
No. 1, p. 75, 79 (1953).
FOOTNOTES Part II Page 23
150. See note 16 supra Part I.
151. Marquis, Freeman, & Heath, supra note 28, Part I at 835.
153, NRPB, State Water Law 46-47. The owner of a right sought to be condemned on
such grounds might be given the option of himself changing to a use equal to
or higher than the one proposed by the condemnor. McGuiness, supra note 69, at
154. Ariz. Code Ann. s. 75-106 (1939). Kan. Gen. Stat. s. 82a-707 (1949) is pro-
bably in this category.
In Oklahoma a list of preferences (placing manufacturing above irrigation) is
prescribed for conservancy districts in issuing permits for water supplies
developed by district operations wherever the district finds it not possible
or reasonable to grant all applications filed with it. Okla. Stat. Ann. tit.
82, s. 577 (1951).
155. Calif. Water Code ss. 106, 1253-55 (Deerings, 1954). Tex. Civ. Stat. Ann.
art. 7471 (Vernon's, 1954).
Ore. Rev. stat. s. 537.170 (1955 Supp.) and Utah Code Ann. s. 73-3-8 (1953)
enumerate the usual purposes of use as a general guide to administrative action
in granting permits but refrain from establishing any order of preference among
156. Utah Code Ann. s. 73-3-21 (1953), Tanner v. Bacon, 103 Utah 494. 136 P. 2d
The preference provisions in Colorado and Idaho, however, have no relation to
the acquisition of new rights because of the absolute right to appropriate
water in those two states (except, in Idaho, for power purposes). See note
157. Ariz. Code Ann. s. 75-106 (1939). Calif. Water Code s. 1264 (Deerings, 1954).
Nev. Comp. Laws s. 7944 (1929). Okla. Stat. Ann. tit. 11, s. 305 (1951). Ore.
Rev. Stat. s. ( ). S. D. Sess. Laws 1955, c. 430, s. 61.0122.
Wash. Rev. Code s. 90.20.020 (1951).
A similar preference is granted Oregon municipalities for appropriations of
water for future hydroelectric power needs, Ore. Laws 1955 c. 707, $ 33.
Type of water for future hydroelectric power needs. Ore, Laws 1955, c. 707,
158. Beus v. Soda Springs, 62 Idaho 1, 107 P. 2d 151 (1940). Denver v. Sheriff, 105
Colo. 193, 96 P. 2d 836 (1939); Denver v. Denver v. Northern Colorado Water
Conservancy Dis., Colo. 276 P. 2d 992 (1954). Holt v. Cheyenne,
22 Wyo. 212, 137 Pac. 876 (1913).
OOTNOTES Part II Page 24
159. In California, the municipality may dispose of currently unused water as a
public utility, or the state may grant others a temporary right to use the
water, with the municipality required to compensate those other users for
facilities rendered valueless when the municipality desires to commence its
use of the water. Calif. Water Code ss. 1203, 1264, 1461-64 (Deerings,
Colorado allows leases of the water for irrigation use pending the municipali-
ty's need for it. Colo. Rev. Stat. s. 139-79-1 (1953).
In South Dakota any person may make temporary appropriations of the surplus
above current municipal requirements, and the municipality must give such
users six months notice of its readiness to use the water itself. S. D. Sess.
Laws 1955, c. 430, s. 61.0122.
160. 162. (These numbers do not have any notes.)
163. The two exceptions are Colorado and Idaho. The Colorado Constitution provides
that "the right to divert the unappropriated waters of any natural stream to
beneficial uses shall never be denied" (art. XVI, $ 6). An identical passage
appears in the Idaho Constitution but with the proviso that "the state may
regulate and limit the use Lof water for power purposes" (art. XV, $ 3). These
provisions have been integrated by the courts of these states to confer an
absolute right to appropriate water (except, in Idaho, for power purposes);
consequently, an application for a new right cannot be rejected on the ground
that it would be contrary to the public interest. See note 19 supra PartI.
164. Young & Norton v. Hinderlider,15 N.M. 666, 110 Pac. 1045 (1910).
165. Cookinham v. Lewis, 58 Ore. 484, 114 Pac. 88, 115 Pac. 342 (1911).
166. Kirk v. State Board of Irrigation, 90 Neb. 627, 134 N.W. 167 (1912). See also
Commonwealth Power Co. v. State Board of Irrigation, 94 Neb. 613, 143 N.W.
167. East Bay Municipal Utility Dis. v. Dept. of Public Works, 1 Cal. (2d) 476, 35
P. (2d) 1027 (1934). See also Temescal Water Co. v. State Dept. of Public
Works, 44 Cal. (2d) 90, 280 P. (2d) 1 (1955).
168. Tanner v. Bacon, 103 Utah 494, 136 P. (2d) 957 (1943).
169. Trelease, Trends in the Law of Prior Appropriation, supra note 24, at 218-19.
170. Calif. Water Code $ 106, 1254 (Deerings, 1954). Utah Code Ann. 73-3-21
171. Calif. Water Code $ 1253 (Deerings, 1954). Utah Code Ann. $ 73-3-8 (1953).
172. S.D. Sess. Laws 1955, c. 430, $ 61.0123. Withdrawals pending the making of
such investigations are recommended in NRA, Desirable Principles 15-16.
173. Utah Code Ann. $ 73-6-1 (1953).
~~--------->""" ----- "-------
FOOTNOTES Part II Page 25
174. Ore. Rev. Stat. $$ 538.110 to .300 (1953). A recent report in Oregon states
that many streams are already over-appropriated and recommends that authority
be given administrative officials for reserving sufficient unappropriated water
in other streams to provide the minimum flow necessary for fish life and the
dilution of pollution. Oregon Water Resources Committee, op. cit. supra note
8, pp. 72-73.
175. Release, Trends in the Law of Prior Appropriation, supra note 24, at 214.
176. Mont. Rev. Code $ 89-121 (1947). N. D. Rev. Code $ 61.0230 (1943).
A 1935 Idaho statute giving the State Water Conservation Board the power to
appropriate water was held to violate the absolute right of persons to appro-
priate water conferred by that state's constitution. State Water Conserva-
tion Board v. Enkling, 56 Idaho 722, 58 P. (2d) 779 (1936).
177. See pp. 37-38 supra.
178. Calif. Division of Water Resources, Dept. of Public Works, Water Right
Investigations: Water Right Applications by the State Department of Finance,
Assignments Thereof, Reservations for Counties of Origin, and Other Related
179. See note 159 supra.
180. Neb. Rev. Stat. $ 46-236 (1952). Ore. Rev. Stat. $A 537.290 and 543.610 (1953).
A similar statute in South Dakota (S.D. Code $ 61.0152 (1939) was repealed in
181. Ariz. Code Ann. $ 75-106 and 75-111 (1939).
182. Trenton v. New Jersey, 262 U.S. 182 (1923); Newark v. New Jersey, 262 U. S.
183. Neb. Rev. Stat. $ 46-236 (1952). Ore. Rev. Stat. 543.710 (1953).
184. S. D. Code $ 6l.o4o8 to .0413 (1939), repealed in 1941; Madison v. Rapid City,
61 S.D. 83, 246 N.W. 283 (1932).
185. Calif. Sess. Laws 1913, p. 1012, $ 23.
186. This emphasis on priority has been noted and lamented in many studies of
western law. For example, the NBPB, in State Water Law 81, declared that:
"Strict application of the appropriation principle does not always achieve
the objective of highest beneficial use. Although beneficial use is said
to be the basis, the measure, and the limit of the right, nevertheless
the most essential element of the right is its priority in time of initia-
tion of the right. Nor has beneficial use been construed to mean the
highest beneficial use or the greatest utility thereof."
McHendrie, in Evolution of the Doctrine of Priority of Water Rights, 33 Colo.
Bar Assoc. 123, 127 (1930), concludes that:
FOOTNOTES Part II Page 26
"One of the objections to this system is that it has transferred a license
into an absolute title. Under the law the use made of this right by the
, appropriator vests that appropriator with a property interest, which amounts,
in effect, to a proprietary right; and this right reaches the dignity of a
title which divests the public of the proprietary interest which was reserved
by the Constitution. This is the foundation of the criticism of a strict ap-
plication of the priority doctrine."
187. 1 Wiel, Water Rights in the Western States $ 1014 (3d ed. 1911). Lasky, From
Prior Appropriation to Economic Distribution of Water by the State -- Via
Irrigation Administration, 1 Rocky Mt. L. Rev. 161, 165 (1929). McHendrie,
supra note 186, at 129-30. Williams, in Irrigation Law in Colorado, 10 Rocky
Mt. L. Rev. 87, 104 (1938), stated that:
"...'Lhe appropriation7 principle of 'first come first served' smacks of the
rude circumstances of its birth, and its inordinate stress upon vested
rights, of the life and wealth reliant upon them; even among individual
users, as well as between them and the owner of the water, the public, is
this extraordinary protection of existing rights evident."
188. 1 Wiel, Water Rights in the Western States M 310-15 (3d ed. 1911). Wiel
"Priority" in Western Law, 18 Yale L. J. 189 (1908).
189. Lasky, supra note 187, at 216, declared with regard to the adjudication of
"'First in time, first in right' is being destroyed by the administrative.
As long as rights acquired under the doctrine of prior-appropriation were
vague and undefined, the doctrine could pass as acceptable. But the in-
stitution of modes of procedure to make certain the rights at once showed
up the evils....The administrative has done its assigned duty so well, has
been so accurate and efficient in preparing the lists that the absurdity
and undesirability of allowing every claim, even only to the amount bene-
ficially used, simply because of priority in time, is also becoming apparent
.... Much of the opposition to the administrative is roused by the latter
so effectively enforcing the doctrine it was created to enforce, and doing
that which its opponents have demanded be done."
Wiel, in Administrative Finality, 38 Harv. L. Rev. 447, 478-79 (1925), concluded
"It is probably no mistake to say that the movement to restore rigidity to
priorities has taken the step that will eventually lessen priority as a con-
trolling factor. The title determinations are after all not an end in them-
selves, and are only incidental to regulation.... To minister to present
conditions, not to past ones, will be found to be the proper field. We need
not be surprised if a time comes when the administration will proceed to
this with a frank recognition of the fact, which their results are already
indicating, that discretion must be the main reliance."
190. As early as 1903, Mead, op. cit. supra note 35, at 82, wrote that:
"As the demands upon the water supply have grown, necessity has led to a
gradual decrease in the freedom of the appropriator and an increase in the
control exercised by the public authorities. This change has been so gradual
that the legislatures of Wyoming and Nebraska have in effect abandoned the
doctrine of appropriation, although retaining the word in their statutes."
FOOTNOTES Part II Page 27
Lasky, supra note 187, at 269-70, in speaking of state supervision over the
distribution of water, said that:
"No longer do the users take the water, nor can they if they will; it is
doled out to them by the state. At this point prior-appropriation has sud-
denly vanished, and a new system has started.... Nor is that the end of the
change. Once the water was doled out solely on a basis of the relative
rights of individuals to each other. Today it is not so. For dozens of
reasons based on the policy of the state, water to which one is entitled
by abstract right may be refused him.... Today the state through its ex-
ecutive officials doles out the water to the users upon a consideration of
many things, not the least of which are motives of policy and social in-
terest, not the greatest, by far, of which are individual rights and the
priority of the individual appropriator."
Lasky extends this general thesis to procedures for acquiring rights and to the
administration of interstate water in Part III of his article, at 2 Rocky Mt..
L. Rev. 35 (1929). Though his conclusions may nevertheless be substantially
accurate, it is questionable at times whether the historical material he
presents fully documents the trends and status of the law he depicts as of
1929. McHendrie, supra note 186, at 128, while doubting Lasky's conclusion
that the exercise of administrative authority had "practically superceded" the
doctrine of priority, did note a
"...modern trend of thought...that the system of priority of appropriation
does not permit of the greatest beneficial use of water for irrigation; and
that a system must be adopted which will admit of a higher beneficial use
and result in the greatest good to the greatest number."
And he concluded (at 141) that:
"The evolution of the doctrine of priority of right to the use of water has
progressed from the original emphasis upon individual property rights to a
theoretical recognition of the importance of a system of highest beneficial
Trelease, in Trends in the Law of Prior Appropriation, supra note 24, at 220,
has recently written that:
"Adopted ... as a system of private rights, eminently suitable to the pioneer
economy in which it was developed, the Lappropriatiog doctrine has served
as the eminently suitable basis of our present system of state administration
of a public resource."
Under this system, he states,
"the appropriator, with the permission of the state, receives a privilege of
using the property of the state; a privilege that may be no less property
but certainly property of a conditional and permissive kind. The state
through a system of administrative machinery sees to it that its property
is used wisely and well."
See also Williams, supra note 187, at 178.
191. Wiel, Fifty Years of Water Law, 50 Rarv. L. Rev. 252 (1936).
192. The administrative appropriation system appears to be favored over the
riparian system even by those commentators who have been most critical of
western law; such, for example, was the view of the NRPB in State Water Law,
despite the many shortcomings it pointed out in the functioning of the ad-
ministrative appropriation system.
Significant legislation as recently as 1955 continues the decided trend toward
i '-.*~ ii__ ___ __________ _
FOOTNOTES Part II Page 28
the narrowing or elimination of riparian rights in those western states where
they have been recognized. This trend is traced in Hutchins, History of the
Conflict between Riparian and Appropriative Rights in the Western States, in
Proceedings: Water Law Conferences, U. of Texas 106 (1952 and 1954); Trelease,
Coordination of Riparian and Appropriative Rights to the Use of Water, 33 Texas
L. Rev. 24 (1955). The 1955 Legislation appeared in North and South Dakota.
N. D. Laws 1955, c. 345. S. D. Sess. aws 1955, c. 430. .-
There has also been a pronounced trend toward the enactment of administrative
appropriation codes relating to the use of ground water, with a corresponding
modification or elimination of ground water rights based on ownership of over-
lying land. Hutchins, Trends in the Statutory Law of Ground Water in the
Western States, Proceedings: Water Law Conference, U. of Texas 131 (1955); 34
Texas L. Rev. 157 (1955). Significant 1955 legislation furthering this trend
is N. D. Laws 1955, c. 345; Ore. Laws 1955, c. 708; S. D. Sess. Laws 1955, c.
193. No note 193 (Author).
194. The manner in which several western states modified riparian rights is outlined
in note 41 supra Part I. See also note 193 supra.
195. In California, the court has taken a very narrow view of the extent of riparian
land, limiting it to (1) the boundaries of the watershed and (2) the smallest
tract held under one title in the owner's chain of title. Anaheim Union Water
Co. v. Fuller, 150 Cal. 327, 88 Pac. 978 (1907). Seasonal storage is pro-
hibited under a riparian right. Herminghaus v. Southern California Edison Co.
200 Cal. 81, 252 Pac. 607 (1926). Finally, many riparian rights have been
list by prescription, as nonriparian use of water for five years in California
is sufficient to create a prescriptive right whether or not the riparian is
actually damaged by the use. Shaw, Development of the Law of Waters in the
West, 10 Calif. L. Rev. 443, A.B.A.J. (1922).
In Texas, the court has limited riparians to a reasonable use of no more water
than falls below the "line of highest ordinary flow" (Mott v. Boyd, 116 Tex.
82, 286 S. W. 458 (1926)), which, because of the peculiar pattern of rainfall
and run-off in this state, may represent only a small percentage of annual
stream flow in most river basins.
Cf. N. D. Laws 1955, c. 345 (limiting riparian rights solely to domestic and
196. See Shaw, supra note 195; Wiel, Fifty Years of Water Law, 50 Harv. L. Rev.
197. The antagonism between the advocates of riparian and of appropriation rights
in Texas is fully, and often picturesquely, set out in Proceedings: Texas
Water Law Conferences, U. of Texas (1952 and 1954).
198. See note 16 supra.
199. NRPB, State Water Law 26, 49.
FOOTIMNES Part II Page 29
200. If the right of reuse is asserted at the time of the original appropriation
and is diligently pursued within a reasonable time after the identity of
return water can be established, it has been widely recommended that the
original appropriator be allowed to reuse the water and that legislation be
enacted to clarify his right. McGuinness supra note 69, at 13. RRA, Desirable
Principles 13-15. NRPB, State Water law 9-51.
Statutes in Montana and North Dakota specifically grant state agencies under-
taking development projects the right to reuse all return water from them.
Mont. Rev. Code $ 89-122 (1947). N. D. Rev. Code 0 61-235 (1943).
201. Statutes in some states give the owner of land on which seepage water arises
a prior right to its use. Colo. Rev. Stat. $ 147-2-2 to 147-2-4 (1953). Ore.
Rev. Stat. $ 537.710 (1953). Even where such statutes have been enacted, how-
ever, courts generally seem to hold that seepage water that would naturally
reenter a stream is part of the stream and subject to existing rights to the
stream flow. Comstock v. Ramsey, 55 Colo. 244 133 Pac. 1107 (1913). Woodward
v. Perkins, 116 Mont. 46,147 P. (2d) 1016 (1944). See Hildebrandt v. Montgomery,
113 Ore. 687, 234 Pac. 267 (1925).
202. It appears that the economic feasibility of some large transmountain diversion
projects might be impaired if the project sponsor is denied the right to utilize
the return water from the project, and one commentator has found the position
of the transmountain diverter "alarming" in this respect in Colorado, where
many such projects are being planned. Martz, Seepage Rights in Foreign Waters,
22 Rocky Mt. L. Rev. 407 (1950).
A discussion of various decisions relating to rights to return water is con-
tained in Hutchins, Selected Problems 361-71, 375-78, and NIPB, State Water Law
26-36. See also Hutchins, Policies Governing the Ownership of Return Waters
from Irrigation (U. S. Dept. Agriculture Tech. Bull. No. 439, 1934); Annot.,
89 A.L.R. 210 (1934).
203. In Colorado and Idaho, where the state constitutions have been held to confer
an absolute right to appropriate water, the filing of papers with a state
agency is optional rather than mandatory, and new rights may still be acquired
in these states solely by diversion and beneficial use of water.
204. Nev. Comp. Laws $ 7897 (1949 Supp.), enacted in response to an invitation from
the court in Application of Filippini, 66 Nev. 17, 202 P. (2d) 535 (1949).
205. Utah Code Ann. $ 73-3-1 (1953).
206. Pioneer Irr. Co. v. Blashek, 41 N. M. 99, 64 P. (2d) 388 (1937). Tudor v.
Jaca, 178 Ore. 125, 164 P. (2d) 680, 165 P. (2d) 770 (1946). Campbell v.
Wyoming Dev. Co., 55 Wyo. 347, 100 P. (2d) 124 (1940).
207. Hutchins, Selected Problems 400-02.
208. Johnson, The Challenge to Prescriptive Rights, 30 Texas L. Rev. 669 (1952).
209. Kletzing, Prescriptive Water Rights in California: Is Application a Prerequisite?
39 Calif. I, Bev. 369 (1951), Trowbri4ge, Prescriptive Water Rights in
California: an Addendum, 39 Calif. Rev. 525 (1951). Craig, Prescriptive
Water Rights in California, 48 Calif. L. Rev. 219 (1954).
!______^____ .__ -
FOOTNOTES Part II Page 30
210. INA, Desirable Principles 47-50, 54-55.
211. Courts usually state that a permit should be granted if there is reasonable
ground to believe unappropriated water exists for the proposed use. Little
i Cottonwood Co. v. Sandy City, Utah 258 P. (2d) 440 (1953).
Administrative policy in California is to grant a permit when it is reasonably
probable that there will be unappropriated water a substantial part of the time.
letter from Henry Holsinger, Principal Attorney, California Division of Water
Resources, Dept. of Public Works, Dec. 20, 1955.
In South Dakota, an irrigation permit is granted if the agency estimates the
user will experience no more than a 50% shortage in a very adverse year, plus
one or two 25% shortages during a 20-year period. Letter from J. W. Grimes
Chief Engineer, South Dakota State Water Resources Commission, Feb. 15, 1956.
In Nebraska, on the other hand, the agency makes no attempt to estimate the
availability of unappropriated water, leaving it instead to each new user to
regulate his activities so as not to interfere with existing rights. Letter
from Dan S. Jones, Jr, Chief, Nebraska Bureau of Irrigation, Water Power &
Drainage, Dept. of Roads & Irrigation, Nov. 30, 1955.
212. $ 7.
213. The Mississippi statute, however apparently does require approval of changes
of place or purpose under preserved rights ($ 2g (2) and 23).
214. Mississippi $ 15. North Carolina $ 15. South Carolina $ 18. Although those
proposals contain no other mention of the term unappropriated water, these
sections are evidently intended to guide the agency in granting permits only
where existing rights will not be impaired.
215. The Wisconsin proposal is the only one where the exclusiveness of this pro-
cedure is not explicitly declared. Under all but the Michigan proposal, how-
ever, domestic uses may be made without formal application, and various other
uses of minor nature are similarly exempted under some proposals.
The Misissippi statute preserves rights to the extent of lawful use at
enactment (Spring, 1956) and specifies that after April 1, 1958 all rights
must be acquired in accordance with this administrative procedure; there is
no indication as to how rights may be acquired during this two-year interval,
though this 1958 deadline probably would not bar the agency from receiving
and approving applications after January 1, 1957, at which date the title of
the statute indicates the agency is to commence operations.
217. Mississippi $ 12, North Carolina $ 13, South Carolina 1 14.
218. Mississippi 13, North Carolina $ 14, South Carolina $ 15.
The express declaration of these proposals that rights are to be preserved
only to the extent of lawful use at enactment may create difficult problems
in determining what purposes and amounts of use meet this test of lawfulness
under pre-existing law. Apparently few if any courts have been called upon
FOOTNOTES Part II Page 31
to determine the full range of lawful purposes of use under riparian rights
(see, as one example, the accompanying Michigan study). Moreover, numerous
problems will arise in determining whether the amount used was lawful under
riparian law, and in some cases it would even be impossible to recognize rights
for all uses that were actually lawful in amount at the time they were made.
This latter situation would occur, for instance, where the total amount law-
fully used by all riparians at various times during the prescribed period
prior to enactment exceeds the total supply at any one time.
219. The agency is directed to "aid in the distribution of water" whenever rights
have been adjudicated by a court under Mississippi $ 24, North Carolina $25,
and South Carolina $ 27.
219a Arkansas $ 32. Michigan $ 27. A provision of the Wisconsin proposal (A 3)
authorizing the agency to require such reports from holders of preserved rights
should indicate that the agency could impose such a requirement upon holders of
rights granted after enactment.
220. The Mississippi statute and the South Carolina proposal, however, confer no
rule-making authority on the agency; see note 235 infra.
221. See Marquis, Freeman, and Heathb supra note 28 Part I, at 803-04.
222. As indicated in Part I, however, preserved rights under the Arkansas proposal
are limited to riparian rights for domestic use only.
223. Certain provisions in various of the proposals do have the effect of with-
drawing water to some extent, however, Mississippi $ 4c d and South
Carolina A 4-A establish a specific minimum flow of water that may not be
appropriated, especially for pollution abatement purposes. Michigan $ 2
preserves stream flows necessary for the public purposes of recreation, fish-
ing, sanitation, and navigation, and Mississippi 14e prohibits impairment of
stream navigability. Appropriation rights are also subject to existing statutes
for the protection of fish under Arkansas $ 24a and Michigan $ 19.
225. 10 and llf(l); domestic and municipal uses must always be accorded first
226. 14 and 1. Applications not made in good faith must also be rejected.
228. Arkansas $ 14 requires the agency to weigh fish and wildlife values in deter-
mining the public interest in the event of conflicting applications.
Some indication of the public interest in particular purposes of use is
evident in provisions in three proposals -- Mississippi 16h, North Carolina
$ 16h, and South Carolina $ 19h -- allowing municipalities to apply for water
to cover anticipated needs 20 years into the future. North Carolina $ 161
extends this right to industrial users, as well.
FOOTNOTES Part II Page 32
230. $ 5. The impact of this provision upon the alleged certainty of appropriation
rights was touched upon at note 47 supra Part I.
231., $ llf of the Wisconsin proposal authorizes the agency to prescribe
(2) by appropriate units the maximum amounts which may be used in any
season for any purpose.
(4) that diversions for certain designated purposes shall be restricted
in any season or shorter period.
(5) that diversions from certain designated sources shall be restricted
in any season or shorter period."
S7 of the proposal, which declares that rights shall be subject to this
power, apparently would apply both to preserved rights and to rights acquired
233. Nor are these preserved rights subject to forfeiture for nonuse.
234. Arkansas $ 5. North Carolina $ 8. South Carolina $ 9. North Carolina 12a
adds the familiar phrase of western law that beneficial use is the basis,
measure, and limit of the right to use water, and the language of this pro-
vision may be sufficiently broad to encompass preserved rights, as well as
235. They are signs that vigorous administrative control over the use of water
may be unlikely of adoption, at least in the initial enactment of appropria-
tion legislation. Amendments of the South Carolina proposal in legislative
committee in 1955 eliminated both the agency's general rule-making power
(former $ 29) and language that had directed the agency to "regulate and
control the development, use, conservation and protection including the
allotment" of water (former 12).
236. Perhaps in response to criticisms of western law (see note 83 supra), the
Michigan proposal ($ 24) provides for the denial of changes contrary to the
237. Early drafts of some eastern proposal included preference provision incorpora-
ting the traditional western preference for irrigation over all other non-
domestic uses, but it was not clear whether these preferences were intended
to apply only among applications for new rights or also to the subordination
or termination of existing rights. No such provisions are included in any
proposal being actively considered today, perhaps in recognition of the in-
effectiveness of a high preference for irrigation and the undesirability of
a rigid ranking of uses on a state-wide basis. The preferences which the
Wisconsin proposal would allow the agency to establish (see note 225 supra)
could be applied only to suitable areas of the state and would probably be
more easily changed than preferences established by statute.