Title: Legislative Change of Water Law in Massachusetts: A Case Study of the Consequences of Introducing a Prior Appropriation System - by Charles M. Haar and Barbara Gordon
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Title: Legislative Change of Water Law in Massachusetts: A Case Study of the Consequences of Introducing a Prior Appropriation System - by Charles M. Haar and Barbara Gordon
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Language: English
Publisher: The Conservation Foundation
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann's Collection - Legislative Change of Water Law in Massachusetts: A Case Study of the Consequences of Introducing a Prior Appropriation System - by Charles M. Haar and Barbara Gordon
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 37
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003184
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Haar and Gordon

Draft for discussion



THE CONSERVATION FOUNDATION


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

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












Legislative Change of Water Law in Massachusetts:
A Case Study of the Consequences of Introducing
a Prior Appropriation System


by

Charles M. Haar, Harvard Law School, and
Barbara Gordon, Cravath, Swayne & Moore, New York


THE CONSERVATION FOUNDATION
30 East 40th Street
New York City







Introduction


An abundance of rainfall and of streams and ponds has thus far enabled Massa-

chusetts to focus its attention on other problems than that of water law. No sud-

den scarcity of water resources threatens Massachusetts. No new and serious

conflict of interest is reflected in recent cases. Massachusetts legislators--with

one historically significant exception--have concentrated on other subjects. Even

the courts have not been particularly active in the utilization and allocation of

water resources. Thus, the historian and analyst, confining himself to legisla-

tion, judicial opinions, and other legal sources, would be forced to conclude that

the water problem takes a relatively low priority on the list of tasks confronting

the people of the Commonwealth.

Yetthe quantity of water is, and can be expected to remain, fairly constant,

while the quantity required for present uses has continually increased and the rate

of discovery of new uses exceeds that of obsolescence of old uses. This relatively

fixed supply coupled with increasing demand stemming from growing population and

growing per capital consumption has led exprte in the field to anticipate water

shortages, even in Eastern states, within the foreseeable future. It has led

legislators in several states to re-examine their water laws, with the result that

several proposed laws are now awaiting legislative consideration. The purpose of

this paper is to try to determine whether Massachusetts should foll the trend.

and, toward this end. to present Massachusetts water law a th en ih-

would be wrought by enactment of legislation similar to that recently proposed i

Michin.

This Michigan bill* has been selected because it is representative of the new

movement. While the approach taken by this paper of comparing Massachusetts ex-

isting doctrine, as it would be affected by proposed legislation, suffers from

certain limitations, it does highlight the consequences that flow from the pro-
posed change to an arropriation system. Even the defect of over-specificity may

Excerpts of the proposed bill are quoted below. The full text of the legislation
is reproduced as an ANNEX to this paper.






-2-


have the advantage Flaubert wrote of, "Le detail est tout!".

Much of the work in the field of water law has dealt with broad national poli-

cy, or, if narrowed somewhat, to the relation of the states and the federal govern-

ment. An analysis of present law of water in Massachusetts in the light of the

changes that would be caused by the proposed legislative revision is necessary to a

full understanding of either subject. The hope is that, by illuminating the de-

tailed (and often tedious) changes that may result in the present arrangement of

social affairs, the various vague claims and abstract charges made by proponents

both of the riparian or prior appropriation doctrines will be crystallized, and

that thereby the disagreements set forth, the points of agreement, if any, re-

stated, and the underlying assumptions articulated.



I. Comparison of Present Massachusetts Law and Proposed Michigan Legislation

The comparison below of present Massachusetts water law and the proposed

Michigan legislation is organized in the following way: first, sections of the

Michigan bill are given; then, present Massachusetts law on the same subjects is

analyzed; finally, the likely or possible effect of the Michigan provisions is

projected.

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

"Section 7. VESTED RIGHTS. Class A. The holder of any tract
of land that now conforms, or hereafter shall conform, to the
definition of riparian land in Section 3, supra, shall be deemed
to have a Class A vested right to the reasonable use of the
stream or other body of water to which his land is riparian, for
purposes of domestic use as defined in Section 3, supra, power,
recreation, and fishing on or in connection with such land.

Class B. Actual application of water under reasonable methods
of diversion to reasonable beneficial use other than in the
exercise of a class A vested right, or in connection with either




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