Title: Waters and Water Rights - Quality Control
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Title: Waters and Water Rights - Quality Control
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Abstract: Jake Varn Collection - Waters and Water Rights - Quality Control (JDV Box 86)
General Note: Box 22, Folder 4 ( Court Cases in The State Of Florida - 1982 ), Item 12
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WATERS AND WATER RIGHTS


(C) QUALITY CONTROL
Although riparian doctrine in early English history contem-
plated uses that did not contaminate or pollute the supply,99 the
large problems of quality control did not become urgent until
modern times.

55.2 Consumptive versus nonconsumptive uses
Strictly speaking, all uses of water are consumptive, in that
any supply may be subject to evaporation and transpiration or
some other form of depletion.' However, the distinction2 made
here, for purposes of general classification, is between those
uses or diversions which contemplate substantial reduction of
supply, e.g., irrigation, and those uses which are beneficial but
do not result in planned diminution,3 e.g., hydropower or the
generation of electricity.

294 Pac. 1049 (1930) (water to flush out debris from reservoir not
allowed); Tulare Irrig. Dist. v. Lindsay-Strathmore Irrig. Dist., 3 Cal. 2d
489, 45 P.2d 972 (1935) (drowning gophers was not a reasonable beneficial
use).
99 See Murphy, English Water Law Doctrines Before 1400, 1 Am. J.
Leg. Hist. 103 (1957) referring to Bracton and Holdsworth.
i "The ordinary conception of consumptive use refers to phases of
the hydrologic cycle. When water leaves the land phase by evaporation
to the air or by runoff or percolation to the sea, it is said to be used con-
sumptively-and otherwise not. This conception of consumptive use is
clearly only a crude approximation to the underlying idea, which is that
the resource has become unavailable for future use by man Logically
speaking, consumptive use of water should be thought of as a matter of
degree .. The measure of consumption is not a physical but an economic
one." Hirshleifer, DeHaven, and Milliman, Water Supply, Economics,
Technology and Policy, p. 66 (1960).
2 Id., at p. 67. The distinction is made by economists between resources
being used and being used up:
[ [T]he question of consumptive versus nonconsumptive use is
obviously related to "complementary uses" of water (e.g., utiliza-
tion of water in a stream for navigation and waste-disposal simul-
taneously or sequential employment of water first for hydropower and
then for irrigation or industry downstream). Any use of water is
always and necessarily consumptive with respect to other uses that
are competitive with it; a given use can be nonconsumptive only to
the extent that potentially complementary other uses exist.
3 Large losses occur in storage whether the storage is for irrigation,
municipal supply, power, or flood-damage reduction. Water is consumed by
evapotranspiration, seepage, and by growths of phreatophytes. See "Cli-
mate as An Index of Irrigation Needs" and "Phreatophytes-A Serious
Problem in the West," in Water, Yearbook of Department of Agriculture,
pp. 341, 423 (1955).
378


55.1(C)











CLASSES OF WATER AND WATER RIGHTS


The traditional emphasis in water law is on the allocation
and management of consumptive uses, but the control of water
resources for nonconsumptive4 purposes is also important. This
is clearly evidenced in the development of multiple-purpose proj-
ects and the multiple-use concept.5
Early structures designed to promote beneficial uses of water
usually contemplated a single purpose, e.g., the Mill Acts6 which
involved direct use of falling water. Federal policy at one time
was largely devoted to single-purpose goals,7 e.g., power or flood
control or reclamation. Multiple-purpose projects are widely ac-

4 "If we examine the supposedly 'nonconsumptive uses,' we shall see that
almost in every case there is in the course of use some impairment of
one or more of the qualities of water which give it economic value. The
use of falling water to generate power is universally considered noncon-
sumptive; actually, what is being consumed here is the potential energy,
which is, evidently, of enormous value. Another apparently nonconsump-
tive use is cooling, but here the temperature of the water is its valuable
property and will be impaired by use. Navigation is normally nonconsump-
tive in and of itself, but the provision for navigation may involve diversions
affecting other uses (e.g., maintenance of streamflows for navigation may
preclude use of water for irrigation). Water percolating underground
after irrigational or domestic use may be impaired in quality or may flow
to areas or depths where further use by man is costly." Hirshleifer,
DeHaven, and Milliman, Water Supply, Economics, Technology and Policy,
p. 68 (1960). The authors discuss the economic and technological implica-
tions of consumptive and nonconsumptive uses and relate theoretical and
practical solutions to many of the problems.
s The multiple-land-use principle contemplates joint management of
water and land resources. See "The Management of Public Watershed" in
Water, Yearbook of Department of Agriculture, p. 191 (1955). "The ever-
increasing urge to derive maximum benefits from natural resources in
water and land made inevitable a transition from single-purpose to
multiple-purpose projects." Water Resources Law, p. 259, vol. 3, President's
Water Resources Policy Commission 1950.
6 The mill owner wanted hydropower and nothing more. See Smith v.
Agawam Canal Co., 84 Mass. (2 Allen) 355 (1861) explaining how a
riparian owner received a superior right by building a dam pursuant to
the legislation that originated in colonial times. One author says that the
mill acts gave the entrepreneur a "private eminent domain power" and
appropriativee status," as a result of constructing the first dam. Beuscher,
Appropriation Water Law Elements in Riparian Doctrine States, 10 Buffalo
L. Rev. 448, 453 (1961).
7 "Early developments were frequently designed to meet a single pressing
need, and related possibilities were frequently overlooked. Indeed, the result-
ing physical structure often foreclosed related uses." Water Resources Law,
p. 259, vol. 3, President's Water Resources Policy Commission 1950.


_ _


55.2











WATERS AND WATER RIGHTS


cepted today and these contemplate both consumptive and non-
consumptive uses of water.8
An important 1935 United States Supreme Court decision9
dealt with nonconsumptive uses although it is frequently dis-
cussed'1 because of its impact on federal-state relations in the
area of consumptive uses of water. The dispute arose over non-
consumptive uses of a nonnavigable Oregon stream. A public
service company supplying power brought suit against a private
cement-manufacturing company which was enlarging the stream
channel and erecting a power dam. The petitioner claimed
riparian rights though it had never "diverted the waters of the
river for beneficial use" nor "sought to make an actual appropria-
tion thereof." The riparian claim was asserted through the chain
of title from a homestead patent. The court denied injunctive
relief except to enjoin the cement company from reducing the
level of the stream below a designated height above sea level.
The trial court was affirmed on the ground that petitioner had
no riparian rights recognizable under Oregon law since rights
to unappropriated flows on the public domain had been severed
by act of Congress in 1877.''
Federal Power Commission v. Oregon'2 also involved non-
consumptive uses, i.e., power and wildlife purposes, although the
importance of the decision lies in its purported threat to con-
sumptive uses.'3

8 Ibid. ". .. [T]he advance of scientific knowledge soon proved that a
single structure could do double duty or better Such were the prin-
ciples forged in the effort to correlate the satisfaction of regional needs
for water supply, irrigation, flood control, navigation, power and asso-
ciated demands upon water resources." See also Upper Colorado Storage
Project Act of April 11, 1956, ch. 203, 70 Stat. 105, 43 U.S.C. 620 et seq.
9 California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S.
142, 79 L. Ed. 1356, 55 Sup. Ct. 725 (1935).
to See Goldberg, Interposition-Wild West Water Style, 17 Stan. L. Rev.
1 (1964) for the best analysis of what the decision does not hold with
respect to state water rights.
I' The Supreme Court held that the Desert Land Act of March 3, 1877,
ch. 107, 1, 19 Stat. 377, as amended, 43 U.S.C. 321, allowed Oregon to
deny riparian rights to a homestead patentee after 1877.
12 Federal Power Comm. v. Oregon, 349 U.S. 435, 99 L. Ed. 1215, 75
Sup. Ct. 832 (1955).
13 See Sato, Water Resources-Comments Upon the Federal-State Re-
lationships, 48 Calif. L. Rev. 43 (1960); Corker, Water Rights and Fed-
eralism-The Western Water Rights Settlement Bill of 1957, 45 Calif. L.
Rev. 604 (1957); Munro, The Pelton Decision: A New Riparianism?, 36
Ore. L. Rev. 221 (1957).


~~ -- ul I


55.2











CLASSES OF WATER AND WATER RIGHTS 55.2

Navigational and recreational uses'4 are generally consid-
ered nonconsumptive although it is obvious that depletion may
occur in some of these uses.
In a broad sense, and for the purposes of accurate measure-
ment also, the concept of consumptive use involves evapotran-
spiration and actual requirements for irrigation or municipal
or domestic uses. In the context of irrigation the United States
Supreme Court has accepted the definition of consumptive use'5
as the difference between water diverted and water which re-
turns to the stream for use for irrigation. A technical formula
has been devised'6 which takes account of numerous factors
involved in consumptive-use measurement. This formula was
employed in Arizona v. California'7 and was used by engineers
in their testimony. The formula has also been employed in other
states and abroad.'8 This consumptive-use formula must be
distinguished from the irrigator's concept of the "duty"'9 of
water discussed in subsection 55.3 below.

'4 Hutchins, Selected Problems in Western Water Law, pp. 314, 315
(1942). Cf. Osnes Livestock Co. v. Warren, 103 Mont. 284, 62 P.2d 206
(1936), expressing doubt about a swimming pool or fish pond as a bene-
ficial use. But Colorado holds that a fish pond is a beneficial use and
basis for appropriation.
'* Nebraska v. Wyoming, 325 U.S. 589, 89 L. Ed. 1815, 65 Sup. Ct. 1332,
1343 (1945); Arizona v. California, 373 U.S. 546, 10 L. Ed. 2d 542, 83
Sup. Ct. 1468, 1498 (1963); 376 U.S. 340, 11 L. Ed. 2d 757, 84 Sup. Ct.
755, 757 (1964) (decree). See Master's Final Report, p. 165 quoting
definition found in Boulder Canyon Project Act of Dec. 21, 1928, ch. 42,
4 (a) (2), 45 Stat. 1058, 43 U.S.C. 617c (a) (2): ". aggregate annual
consumptive use (diversions less returns to the river)."
'6 Blaney and Criddle, Determining Water Requirements for Settling
Water Disputes, 4 Natural Resources J. 29, 30 (1964). These authors define
"consumptive use" evapotranspirationn) as "The unit amount of water
used on a given area in transpiration, building of plant tissue, and that
evaporated from adjacent soil, snow, or intercepted precipitation in any
specified time."
17 Arizona v. California, 373 U.S. 546, 10 L. Ed. 2d 542, 83 Sup. Ct. 1468
(1963).
18 See Farmers Highline Canal & Reservoir Co. v. City of Golden, 129
Colo. 575, 272 P.2d 629 (1954). See Blaney and Criddle, Determining Water
Requirement for Settling Water Disputes, 4 Natural Resources J. 29 (1964).
'9 "Although the expression 'Duty of Water,' in the opinions of some
present-day scholarly hydrologists and technical engineers, may be out-
moded, provincial, unscientific, and otherwise objectionable, nevertheless
it is a term well understood and accepted by every rancher and farmer who
has had practical experience in the artificial irrigation of land for the
production of crops." Farmers Highline Canal & Reservoir Co. v. City of
Golden, 129 Colo. 575, 272 P.2d 629, 634 (1954).
381


I _











WATERS AND WATER RIGHTS


55.3 Diversions, duty of water, beneficial use and waste
Beneficial use generally describes the nature or character
of the use; duty specifies the amount of water necessary for a
particular purpose on a given area of land; diversion refers to
the quantity of water segregated from the original source of
supply. These distinctions are not always made clear in the
decisions.
In some of the early cases the appropriation was determined
by the capacity of the ditch20 which, when the water was taken
directly from a stream,21 meant that the amount diverted
equaled the appropriative right. With the development of more
economical irrigation practices and the construction of larger
and more extensive distribution systems, beneficial use became
the final test22 of a valid appropriation. In this process bene-
ficial use came to refer to quantity requirements as well as the
character of the use.
The necessary elements in a typical appropriation are23
intention, compliance with state law, a diversion, and beneficial
use within a reasonable time. Intention can be presumed in most
cases from the physical acts involved in making an appropria-
tion. Ordinarily a mechanical means of diversion is required
although there are decisions24 upholding appropriations which
did not involve man-made diversions. As stated above, the con-
cept of beneficial use often refers to quantity requirements for,
as one old case says, beneficial use is not what is actually con-
sumed but what is actually necessary in good faith.25
The concept of the "duty of water" centers on the amount
"actually necessary in good faith." Early decisions produced a
simplified and abstract definition of duty: the quantity of water

20 Bear River & Auburn Water & Min. Co. v. New York Min. Co., 8
Cal. 327, 68 Am. Dec. 325 (1857); 1 Wiel, 475. The capacity of a reservoir
after one filling determined the amount of a storage appropriation. Windsor
Reservoir & Canal Co. v. Lake Supply Ditch Co., 44 Colo. 214, 98 Pac. 729
(1908).
21 This was the method used in Idaho for determining the "duty" of
water. Stickney v. Hanrahan, 7 Idaho 424, 63 Pac. 189 (1900).
22 1 Wiel, 478.
23 See Low v. Rizor, 25 Ore. 551, 37 Pac. 82 (1894).
24 Steptoe Live Stock Co. v. Gulley, 53 Nev. 163, 295 Pac. 772 (1931)
(stock-watering); In re Water Rights in Silvies River, 115 Ore. 27, 237
Pac. 322 (1925) (natural irrigation).
26 Ferrea v. Knipe, 28 Cal. 340, 87 Am. Dec. 128 (1865); 1 Wiel, 481.
382


- -----b C~UI1IW~~lLIW V F*IIf~P~ulll~


55.3










CLASSES OF WATER AND WATER RIGHTS


55.3


essential to the irrigation of a given tract of land.26 Kinney
expressed the duty concept as the ratio between the acreage to
be irrigated and the quantity of water required.27
The concept of duty partly takes into account the well-known
fact that large water losses occur through evapotranspiration
and leakage in the distribution systems.28 The rough frontier
formula of the "duty of water" called attention to these problems
and to special land characteristics29 such as its location and
slope, the porosity of the soil, season of the year, climate in
general, nature of the crop grown, skill in irrigating, and the
efficiency of the irrigation system. But all of these conditions
vary greatly within each state.
The writers at the turn of the century struggled with a defini-
tion of duty and one concluded30 "that no hard and fast rule
can be made as to the duty of water which will apply to all cases."
Two generations ago, some legislatures31 standardized require-
ments and quantities of water for specific acreages, limiting the
quantity of water an irrigator could receive. These quantities
were generally stated in terms of rate of flow rather than total
value.32 Where legislation did not specify the minimum duty,
the courts could fix the amounts or reduce amounts that were
excessive.33
However, the main problem continued to be over the place
at which these measurements were made-at the point of diver-
sion or main head gate, or at the individual irrigator's land edge
26 Hough v. Porter, 51 Ore. 318, 95 Pac. 732 (1908), 98 Pac. 1083 (1909),
102 Pac. 728 (1909).
27 2 Kinney, 902, p. 1593.
28 2 Kinney, 907, 908; 1 Wiel, 487 to 489.
29 2 Kinney, 901, 904, 906; 1 Wiel, ch. 21.
30 2 Kinney, 904, p. 1595.
3' 1 Wiel, 487; 2 Kinney, 906.
32 1 Wiel, 487. In Nebraska, New Mexico, Oklahoma, South Dakota,
and Wyoming, the minimum duty was fixed at one second-foot for each
seventy acres of land irrigated. Nevada established the minimum duty
in volume, the acre-foot, and fixed it at three acre-feet per acre per year.
In recent years the statutes of at least two of these states have been
amended to provide for amounts based on actual uses and physical con-
ditions or the quantity of water allowed by permit or decree. N. Mex.
Stat. Ann. 1953, 75-5-17 (amended Laws 1955, ch. 91, 1); Nev. Rev.
Stat., 533.070 (amended Laws 1945, ch. 87). See also Okla. Stat. Ann.,
Tit. 82, 33; Neb. Rev. Stat. 1943, 46-231; Wyo. Stat. Ann. 1957, 41-181
for other changes in statutes.
33 2 Kinney, 905.
383

*


_ _


--I I










WATERS AND WATER RIGHTS


or lateral.34 One policy places a premium on poor construction
of irrigation works and the other would encourage good con-
struction. However, most of the legislation did not specify the
point of measurement and the matter was left to the courts.35
Science and technology are providing more accurate methods
for measuring the requirements for particular uses. Two engi-
neers have developed empirical meanings for several terms,36
and these have already been helpful in settling water disputes.
But however imperfect the concept of "duty of water" remains
in application, it continues to be employed and, as the Colorado
Supreme Court37 explained in 1954, the term is "understood and
accepted by every rancher and farmer who has had practical
experience .. ." and "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 maximum 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."
Improper uses of streams were forbidden in early English
law. Remedies against impairment or diversion of flow or the
changing of a stream's "pristine condition"38 were recognized
long before the natural-flow theory became standard riparian
doctrine in England.39 The American reasonable-use rule de-
34 2 Kinney, 908: ". whether the quantity of water claimed under
an appropriation is to be measured at the head of the canal or at the
margin of the irrigated field where it is to be used."
3s Id., at 908, p. 1605.
36 Blaney and Criddle, Determining Water Requirements for Settling
Water Disputes, 4 Natural Resources J. 29, 30 (1964). The authors desig-
nate these terms:
"Irrigation Efficiency": The percentage of irrigation water that is
stored in the soil and made available for consumptive use by the crops.
When the water is measured at the farm head gate, it is called "farm-
irrigation efficiency"; when measured at the field, it is designated as
"field-irrigation efficiency," and when measured at the point of diver-
sion, it may be called "project-efficiency."
37 Farmers Highline Canal & Reservoir Co. v. City of Golden, 129
Colo. 575, 272 P.2d 629, 634 (1954). For some further definitions of
"duty of water," see Witherill v. Brehm, 74 Cal. App. 286, 240 Pac. 529,
535 (1925); Application of Frenchman Valley Irrig. Dist., 167 Neb. 78,
91 N.W.2d 415, 428 (1958); Enterprise Irrig. Dist. v. Willis, 135 Neb. 827,
284 N.W. 326, 329 (1939).
38 Murphy, English Water Law Doctrines Before 1400, 1 Am. J. Leg.
Hist. 103, 108 (1957).
39 See Maas and Zobel, Anglo-American Water Law: Who Appropriated


_I_ ~ r -


55.3










CLASSES OF WATER AND WATER RIGHTS


veloped as a corollary a concept of unreasonable use, and criteria
emerged for measuring waste.40 Many wasteful practices or
wrongful interference with water supply are made criminal
offenses by statutes and by municipal ordinances.4'
Application of the reasonable-use rule requires an appraisal
of all of the characteristics of the stream and the various claims
to the flow made by riparians. Whether a use is reasonable or
not is a fact question.42 In the humid regions of the country,
irrigation is generally considered an "artificial" use and is
reasonable only if the uses of the same supply by others are not
materially affected.43 In the semiarid western states that recog-
nize riparian rights, the use of water for irrigation is a reason-
able use,44 and a riparian owner will be protected against one
who has not made a valid appropriation or is wasting the sup-
ply.45 The concept of waste has discernible boundaries in the
states where irrigation is practiced and where beneficial use is
the basis, the measure and the limit of the appropriative right.
What is not beneficial use is waste.46 And the concept of bene-
ficial use also includes the element of reasonable use.47

the Riparian Doctrine, 10 Public Policy 109 (1960) for the origins of
riparian doctrine. Cf. 4 Restatement, Torts, ch. 41.
40 E.g., use on nonriparian lands was not permitted under the natural-
flow theory. But "the decline of emphasis on natural flow is in part evi-
dent from the substantial willingness of courts to permit water to be
taken from streams or lakes for use on nonriparian lands. More and more
the courts require a showing of measurable economic detriment resulting
from the diminished flow before giving judicial relief." Beuscher, Appro-
priation Water Law Elements in Riparian Doctrine States, 10 Buffalo L.
Rev. 448, 450 (1962). No lawful use could be unreasonable unless the
purpose is solely and maliciously to injure another in which case the purpose
is unreasonable. Taft v. Bridgeton Worsted Co., 237 Mass. 385, 130 N.E.
48, 13 A.L.R. 928 (1921).
41 94 C.J.S., Waters, 313; 2 Kinney, 915 (2d ed. 1912).
42 Kennebunk, Kennebunkport & Wells Water Dist. v. Maine Turnpike
Authority, 145 Maine 35, 71 A.2d 520 (1950). See 93 C.J.S., Waters, 11.
43 Stein v. Burden, 29 Ala. 127, 65 Am. Dec. 394 (1856); Palmer Water
Co. v. Lehighton Water Supply Co., 280 Pa. 492, 124 Atl. 747 (1924).
44 94 C.J.S., Waters, 314 collects the cases.
S 4 Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 Pac. 1059,
133 Am. St. Rep. 125 (1909). Cf. Sternberger v. Seaton Min. Co., 45 Colo.
401, 102 Pac. 168 (1909).
46 1 Wiel, 481. See also 1 Wiel, 378 on what constitutes beneficial
use.
47 Tulare Irrig. Dist. v. Lindsay-Strathmore Irrig. Dist., 3 Cal. 2d 489,
45 P.2d 972 (1935) prohibited use of water to drown gophers. See also, In
385


_I


55.3




























I?:




K :


In the West the concept of waste relates to the quantity of
water, to location of use, and to the purpose of the use.48
Unnecessarily large diversions and excessive losses in irrigation
works constitute waste.49 The location of a particular use may
prevent beneficial use of the water elsewhere for a more pro-
ductive purpose. An old Nevada case50 announced that "water
is too precious in this arid climate to permit its being unneces-
sarily wasted," and the Nevada court denied relief to a lower and
prior appropriator who actually wasted the quantity of'water
appropriated by an upper and subsequent appropriator. In
another Nevada case5' the court enjoined a wrongful diversion
and allowed damages because there was no showing by the de-
fendant that the unreasonable waste could not have been avoided
by reasonable means and without unreasonable expense. The
court said that the rule as to reasonable and economical use of
water applied as well to methods of diversion as to the applica-
tion of the water on the land. Hutchins62 has stated that the
method of diversion and the conveyance of the water to the
place of use must be such as will avoid unnecessary and unrea-
sonable waste, measured by the methods customarily prevailing
in the region.
It is clear from the above discussion that waste, as the term
is employed in water law, is closely related to the concepts of
beneficial use, duty of water, preferences, and forfeiture of water

re Water Rights of Escalante Valley Drainage Area, 10 Utah 2d 77, 348
P.2d 679 (1960).
48 Fisher, "Western Experience and Eastern Appropriation Proposals"
in The Law of Water Allocation in the Eastern United States, p. 75 (Haber
and Bergen, editors, The Ronald Press Company, New York, 1958).
49 Meng v. Coffey, 67 Neb. 500, 93 N.W. 713, 60 L.R.A. 910, 108 Am. St.
Rep. 697 (1903).
50 Roeder v. Stein, 23 Nev. 92, 42 Pac. 867 (1895).
5s Doherty v. Pratt, 34 Nev. 343, 124 Pac. 574 (1912). See Foster v.
Foster, 107 Ore. 355, 213 Pac. 895 (1923); Basinger v. Taylor, 36 Idaho 591,
211 Pac. 1085 (1922).
62 Hutchins, Selected Problems in Western Water Law, 307 (1942). See
State ex rel. Erickson v. McLean, 62 N.M. 264, 308 P.2d 983 (1957)
which enjoined flow of artesian water in the ground because of waste.
See also City of Corpus Christi v. City of Pleasanton, 154 Tex. 289, 276
S.W.2d 798 (1955) where the court divided sharply over the meaning of
waste. A city supply from artesian wells was transported down a natural
stream and through lakes with resulting losses from seepage, evaporation,
and transpiration which at times amounted from 63% to 74%. The court
held that a Texas statute on waste did not apply. The dissenters thought
that the police power justified control over such large losses through the
methods used by the city.


55.3


- 3~ ----


WATERS AND WATER RIGHTS










CLASSES OF WATER AND WATER RIGHTS


rights. Legislation in many states53 prescribes the maximum
amount of water allowed for irrigation purposes. In the permit
states, wasteful practices can be limited or controlled by the
licensing system which prevents the initiation of wasteful uses
and also provides enforcement remedies.54 But enforcement
efforts have frequently collided with the alleged infringement
of vested property rights, particularly when a wasteful practice
has existed for a long period of time,5" and the courts have found
it difficult6 to determine that an existing use is wasteful. Yet
it is well settled that a long-existing wasteful practice57 is not
constitutionally immune from control under the police power.

55.4 Weather and climate modification and the law
Since 1946 twenty-two states5" have passed legislation that
was inspired by new techniques for "rain making,"59 and other
states are considering legislation. A 1966 report of a special
commission, authorized under the National Science Foundation

a3 E.g., S. Dak. Code 1939, 61.0126; Neb. Rev. Stat. 1943, 46-231.
54 State ex rel. Erickson v. McLean, 62 N.M. 264, 308 P.2d 983 (1957)
prohibiting a wasteful use that had existed for seven or eight years.
5s See Worden v. Alexander, 108 Mont. 208, 90 P.2d 160 (1939).
$* See Doherty v. Pratt, 34 Nev. 343, 124 Pac. 574 (1912); Basinger v.
Taylor, 36 Idaho 591, 211 Pac. 1085 (1922); Schodde v. Twin Falls Land &
Water Co., 161 Fed. 43 (C.A.-9, 1908), affd. 224 U.S. 107, 56 L. Ed. 686,
32 Sup. Ct. 470 (1912); In re Owyhee River Water Rights, 124 Ore. 44,
259 Pac. 292 (1927); Annot., 121 A.L.R. 1044 (1939). Cf. Stroup v. Frank
A. Hubbell Co., 27 N. Mex. 35, 192 Pac. 519, 32 A.L.R. 450 (1920).
67 Apple v. City & County of Denver, 154 Colo. 166, 390 P.2d 91 (1964),
full compliance with the law at the time of initiating the practice does
not give immunity. See Queenside Hills Realty Co. v. Saxi, 328 U.S. 80,
90 L. Ed. 1096, 66 Sup. Ct. 850 (1946) (a tenement sprinkler system
requirement did not violate the Constitution though the cost would be high).
8 Arizona, California, Colorado, Connecticut, Florida, Hawaii, Idaho,
Louisiana, Maryland, Massachusetts, Nebraska, Nevada, New Hampshire,
New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Vir-
ginia, Wisconsin, Wyoming. See Weather Modification, Law, Controls,
Operations, Report to the Special Commission on Weather Modification,
National Science Foundation, pp. 8, 9, 19 (N.S.F. 66-7) (hereinafter called
Law Report N.S.F. 66-7).
59 Weather and Climate Modification, Report of the Special Commission
on Weather Modification, National Science Foundation, p. 1 (N.S.F. 66-3)
(hereinafter called Commission Report N.S.F. 66-3). The Report explains
that two American scientists, Langmuir and Schaefer, in 1946 verified
experimentally a theory advanced in 1933 by a Swedish meteorologist and a
German physicist on cloud "seeding." The Report states that the term
"rain making" is "the more popular and also more restricted concept" than
the term "weather and climate modification."


----~I C~-~-~


55.4




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