Title: Condemnation of Water Rights
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Permanent Link: http://ufdc.ufl.edu/WL00002236/00001
 Material Information
Title: Condemnation of Water Rights
Physical Description: Book
Language: English
Publisher: Texas Law Review
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Condemnation of Water Rights, By Corwin W Johnson
General Note: Box 10, Folder 11 ( SF Water Rights- Condemnation of - 1989 ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00002236
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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Full Text


When the available water supply of a region is substantially corn
mitted to the satisfaction of established water rights, and the develop
ment of additional water supply by importation or otherwise is nrt i
feasible, the only practicable method of obtaining water for citid.
and others with urgent new water needs is the acquisition of existing
water rights. If this cannot be accomplished by voluntary sale, it may
be done, for buyers armed with the power of eminent domain, by co
demnation. It may be anticipated that the mushrooming demands ie" '
water today will lead to increased frequency of transfers of water rights ti
both voluntarily and involuntarily. Eminent domain may thus beccaoi '
not merely an incidental aspect of projects based upon water righii
acquired by other means, but a major factor in reallocation of watte ,
It would seem to be not too early to consider the possible consequenmtc
of this enlarged role of eminent domain. The purpose of this paper it
to identify and discuss the significant problems that may emerge.
More than half a century ago, Samuel Wiel hazarded a predict
that "in time" there might develop "a system of condemnative wa t
rights in a class by itself."' He was careful not to set time limits within
which this development would occur, but one might infer that he ant a
cipated it would take place much more rapidly than seems to have be"4 t
the case. Recently, another writer has asserted that condemnation al
water rights "will become a common occurrence" and will in eftul
replace the prior appropriation system as the prevailing method <
water allocation, at least in the western states.2 This evidently iS
forecast of events to occur within the next decade or so.
Prediction is always a risky undertaking, and in this instance th.l
are factors that increase the risk. There are not many reported decd
by American appellate courts dealing with condemnation of wai
This article embodies research that was supported in part by funds prsl
the United States Department of the Interior, Office of Water Resources Rm
authorized under the Water Resources Research Act of 1964. These funds welt
available through the cooperation of the Water Resources Institute, Texas A ih
versity, and the Center for Research in Water Resources, University of Texas at
t Charles I. Francis Professor of Law, University of Texas; A.B., State UnhtmW*
Iowa, 1939; J.D., State University of Iowa, 1941.
2 Gross, Condemnation of Water Rights for Preferred Uses-A Replacementl f
Appropriation?, S WILL. L.J. 263, 283 (1965).


transfers of
domain. TI
)though diffi
Some of thf;
cussed in tl
problems w
knowable, I
ciently grea

If enmi
water right
iave the p
enough to
unless this
iD the ensu
ik little cha
4. Statue
| Rights
The p
Uater need

". tSI LA
4 Grs,

rights, and
projects that
land to which
have been ft
for the pqi
tempted toi
will not plk,
Ihas not yet



thy: cotf l~
je is not,
or Cietie
3, it may,,
by COft*
lands (ol
er TightS3
s become':
:er ri
of watefi
paper 15 ,
ive watev:
its ilk
It li1 ioi
have b~ccA
niatioft 0-'
in ~ecsf~lr'
ently 5

I decision
of 'watrc
provid414 i
s *C re0r.
A & M~
.at at AvWW-
Ufniveflhl 'ib



rights, and most of these have involved governmental construction
projects that incidentally impaired water rights, or were acquisitions of
land to which water rights were appurtenant. Only a handful of cases
have been found in which the power of eminent domain was exercised
for the principal purpose of acquiring water rights. One might be
empted to conclude that eminent domain has not played, and probably
illnot play, a major role in water allocation, or that a subject which
Lhas not yet spawned much appellate litigation is too simple to merit
attention. But the reported decisions appear to represent only the
visible portion of the iceberg. There are scattered references in the
lierature to instances of condemnation of water rights which never
eched the appellate courts;3 the total number of such cases is un-
tainable. In addition, there are countless instances of "voluntary"
nsfers of water rights to purchasers armed with the power of eminent
ain. Thus the impact of eminent domain upon 'water allocation,
hough difficult or impossible to measure, may have been substantial.
e of the problems which conceivably may arise, and which are dis-
d in this paper, are certainly not uncomplicated. Whether such
rems will actually turn out to be of practical importance is un-
owable, but the chances of their becoming such appear to be suffi-
atly great to warrant this study.

-If eminent domain is to play an important role in the allocation of
ter rights, many or most of the prospective seekers of water must
ye the power of eminent domain, and that power must be broad
ugh to encompass taking of water rights for a water supply. Also,
this authority nearly exists, it is predictable that a major issue
the ensuing litigation likely to occur will concern the scope of the
demnr's authority to condemn. It appears that in some states there
little chance of success in such attacks.4 An attempt is made here to
e ine the situation in Texas.

Statutes Expressly Authorizing or Denying Condemnation of Water
iRights by Specified Entities
The phenomenal growth of American cities, resulting in increased
or needs for municipal uses, will demand an increasing share of

IEg, Trelease & Lee, Pri ity and Progress-Case Studies of the Transfer of Water
t. IA nte WATER L. v. (1966).
Gross, upra note 2, at 270, 279-83.



''' ~u

--~~ -`rV


i -

1056 TEXAS LAW REVIEW [VO6. 46:105 ; 1968
the available water supply. Since municipalities commonly exercise the appi
power of eminent domain for a variety of purposes, assumably they of t(
have authority to condemn water rights for the purpose of acquiring tive
a public water supply. The Texas statutes, however, create doubt on clus
the scope of that authority. gen
General-law cities are expressly authorized to condemn "lands and
property, including riparian rights."5 This obviously is subject to the 'L
construction that appropriative rights are beyond the reach of co-'' in
demnation-by general-law cities. If so, this would be a serious limiM' oft
tion, since the Supreme Court of Texas has defined riparian rights wa
in a manner denying riparian landowners rights in nearly all im o
pounded water." There is no apparent reason for denying cities the fun
right to condemn appropriative rights. Perhaps the statutory languap irrig
was based upon an assumption that appropriative rights would bh mat
obtainable by application for permits, and, therefore, that condemn,
d tion of those rights would not be necessary. This would have been A. in
reasonable assumption in 1923, when the act was adopted. Ripariam st
rights may have been mentioned because it was perceived that idlunc
might need to condemn them, and that the phrase "lands and property
might not encompass riparian rights. It is doubtful that the legislation
purpose was to withhold from cities authority to condemn any wate pre
rights required for municipal uses. A proper judicial treatment of thebid
problem would be to determine whether, and to what extent, te re
phrase "lands and property" includes water rights and to regard thi Nor
reference to riparian rights as illustrative rather than restrictive. to
The legislative enumeration of powers of home-rule cities pog
essentially the same problem. It provides that the eminent donm den
power of such cities "shall include the power of the improvement tric
enlargement of the water works, including water supply, riparian ri den
standpipes, water sheds .."' This is not as serious, however, as of s
the case of general-law cities, since the legislative enumeration of
rule powers, properly applied, is neither a grant nor a limitation U
the powers of home-rule cities, which derive their powers directly 44 (
the Texas constitution.8 No Texas appellate court has ruled on or
STEx. REv. Civ. STAT. ANN. art. 1109(2) (1963). See also id. art. 1107, 1103), it
Motl v. Boyd, 116 Tex. 82. 286 S.W. 458 (1926): Trelease, Ceordination ol
and Appropriative Rights to the Use of Water, 33 TExAs L. RaE. 24, 45-46 19).
7 TEX. REV. Civ. STAT. ANN. art. 1175(15) (1963). Similar language is fu in a
nation bracket bill applicable to both general-law and home-rule cities. Id. a
SI (1903). ,..
8 See Ruid. Legislative Jurisdiction of Texas Home Rule Cities, 37 Tx 1 I
682, 712-18 (1959). There are cases, however, treating the statutory enumesroa i a
a grant and a limitation. Id.


the applicability of the canon expression unius est exclusio alterius to either
hey of these eminent domain statutes. Until they are construed authorita-
ing 'dtively, and assuming that no other statute is relevant, a cautious con-
on clusion is that some doubt exists whether municipalities, especially
general-law cities, can condemn appropriative water rights.
and Prospective demands for more water, and a lot of it, also will be
made by water districts, about six hundred of which have been created
con" in Texas, either pursuant to enabling acts or directly by special act
lni the legislature, for the performance of various functions involving
ght water resources." A few of these functions, such as promoting drainage,
i" C.would not compete for a share of the available water supply. Other
St I, nations, such as obtaining a water supply for municipal, industrial,
'uag 5, Irrigation, or other beneficial uses, would compete and would be aided
d be erially by the power to condemn water rights. Surprisingly, this
m power has been bestowed expressly in none of the enabling acts and
een an only two of the special acts,'0 one of which presents the same con-
itctional problem as does the municipal legislation; it, too, remains
cdIIsC strued judicially.
Express denials of this power are slightly more numerous than ex-
aess grants. The Dallas County Flood Control District is expressly for-
bidden to condemn "any property."" The Red River Authority is ex-
of dpressly denied power to condemn underground water rights.12 And the
Sort Central Texas Municipal Water Authority is denied authority
r "develop or otherwise acquire underground sources of water.""'
poN Only one of the water district enabling acts refers directly to con-
lo demnation of water rights at all. Water control and improvement dis-
nts, the most numerous type of water district, are authorized to con-
.rit water rights of consumers supplied by the district for the purpose
r, U substituting superior uses for inferior uses, as there defined." This
f For a general diiscusion of Texas water districts see TEXAS REEARCH. LEACUE, A
: y (1966); W. TIIROMiLEY, SPI AL DIsraICTr AND AUTHORITIES IN TEXAS 53-79 (1959).
n The two exceptional ac are those creating the Guadalupe River Authority, au-
oil ed to condemn "water a riparian rights." TEx. REV. Civ. STAT. ANN. art. 280-105.
1 (1954), and the North Mol tague County Water Supply District, which is authorized
(5s). I lademn "water rights."'id. rt. 8280.158, 7 (1954).
l 1Dallas County Flood trol Dist., d. art. 8280-127, 1 2(b). Nevertheless. it ap-
I I that in a proper case tl is district may "take" property by Inverse condemnation.
County Flood Control D v. Benson, 157 Tex. 617. 306 S.W2d 550 (1957).
in a IsT u REV. Cv. STAT. AT art. 8280-228, g 25 (1959). Consider the effect, however,
.t mother section, added by amendment, authorizing "acquisition" of "water rights."
nL 8280-228. 1 19 (Supp. 167).
As I, I ll1d. art. 8280-193. g 9 (1 9). But cl. id. art 8280-193, g 19 (1959). which authorizes
on district "to acquire water aI propriation permits from owners of permits."
M Mid. art. 7880-4a (1954).

2 l:_

S1058 TEXAS LAW REVIEW [Vol. 46:1054 19

-, delegation evidently relates only to internal reallocation of water rights tic
i within the district and would not be helpful to the district in increasing ";
the total supply of water available to it. SL
i One agency with statewide jurisdiction, the Parks and Wildlife is
SDepartment, is authorized to condemn "water rights" of "any person or fo:
corporation in Smith County" for the purpose of constructing and
maintaining fish hatcheries.'1 In other counties, this agency may con- ri
demn "property" for the same purpose.'1 or
l'1 lD. Statutes Construable as Authorizing Condemralion of Water Rights SI
I ,. co
Numerous statutes confer the power of eminent domain upon [
water districts and other governmental agencies in terms sufficiently ri
broad to permit an interpretation that water rights are subject to the re
power. W1
Water control and improvement districts are authorized to con- I
idemn "all lands" and "everything deemed necessary, incident or help rl
ful" in accomplishing district objectives." Similar, though perhaps lea tr
:,i' broad, delegations have been made to water improvement district o
("lands, easements and other property necessary for making.. th
reservoirs" and other facilities),18 water control and preservation dis.
tricts ("property of any kind or character whatsoever for all necessary al
improvements"),1' and fresh water supply districts ("fee simple title"
necessary for facilities for supplying water).2s ta
SMost special acts creating water districts either incorporate by'.
reference the eminent domain provisions of the water control and ir is
'i provement district enabling act,2' or, in the manner of the enabling
; acts, refer to the subject matter of eminent domain in general terms,
such as "land" or "property," but make no mention of water or watcr' ir
rights.22 Texas counties are authorized to condemn "lands" for irriga.

I is Id. art. 40-19b (1966).
,I 10 Id. art. 4049c.
1i Id. art. 7880-125 (1954).
s18d. art. 7807a, I I (lands, easements and other property necessary for maklg P
"i. ... reservoirs" and other facilities).
19 d. art. 7849 ('property of any kind or character whatsoever for all necessary ia*
provements .. ). tt
26 ld. art. 7924 ("fee simple till" necessary for facilities for supplying fresh water
S21 E.g. Lower Nueces River Water Supply Dist., id. art. 8280-134. j 9; Two MlN
Creek Conservation & Reclamation Dist of Calhoun County, id. art. 8280-186, | 6 (li"
Harris County Eastex Oaks Water & Sewer Dist.. id. art. 8280-205, 1 12.
22 E.e., Lower Neches Valley Authority, id. art. 8280-105, 13(1) (1954): San Jadm
River Authority, id. art. 8280-121. 1 10(e); Sabine River Authority, id. art. 8M3
14(1); Colorado River Municipal Water Dist. id. art. 8280-137, 1 8; North Texas M
: cripal Water Dist.. id. 8280-141, 1 8; Dallas County Water Supply & Control Dist, Kd l
8280-148. 1 7: Sulphur River Municipal Water Dist., id. art. 8280-165, 1 8 (1950 ;
Augustine Water Authority, id. art. 8280-169. J 7. '

l tion facilities.2 Another statute broadly authorizes counties to condemn
idstg '^9 .land" for "public purposes authorized by the Constitution or
Statutes of this State."24 Similarly, the Parks and Wildlife Department
diie Bis authorized to exercise eminent domain for the "acquisition of lands"
)a Or for development of recreational resources.25
nd .w The question presented by each of these statutes is whether water
cW' rights may be included within such general terms as "land," "property,"
or"fee simple." In McGhee Irrigating Ditch Company v. Hudson,2 the
igh LSupreme Court of Texas declared that a statute authorizing irrigation
corporations to condemn "any land ... necessary for the use and pur-
plss of said company" would include the power to condemn water
lights appurtenant to land, in this instance riparian rights.27 The court
t1 soned that "land" includes everything attached to it. Although this
would explain the taking of riparian rights and appropriative rights
Skc voted to irrigation, it could hardly justify the taking of appropriative
ts that are not appurtenant to land, such as those devoted to indus-
and municipal uses. Nevertheless, the opinion manifests a policy
is constr ing delegations of eminent domain in a manner not to defeat
g h legiti ate objectives of entities to which the power has been dele-
St B ted. T e court even went beyond the facts of the case to declare that;
Though here the taking would be of land to which water rights were
: huurten nt, the corporation's power to condemn would extend to the
ng of water rights only, as would occur when diversions by an irri-
a co pany would deprive a downstream user of water to which he
SI entitle 28
la.b In lnnis v. Brown County Water Improvement District No. 1,29
t court followed the reasoning of Hudson in holding that a water
r wI ent district was authorized to condemn land for a reservoir
Seven ough the landowners would thereby be deprived of riparian
Sat ched to their remaining lands. It should be noted, however,
t nei r this case nor the text of the statute authorizes water im-
men districts to condemn water rights except as necessary in the
cti n or maintenance of reservoirs and other facilities.80 In con-
the s tutory delegation to water control and improvement districts
To d. art 818 (1964). :
1I. a 3264a (1968).
dM a6081r, i 1 (Supp. 1967). But consider the effect of other language in this
an autho ring "the acquisition of lands and water and interests therein."
*85 Tex 587, 22 S.W. 398, aff'd on rehearing, 85 Tcx. 591, 22 S.W. 967 (1893).
xI. a 92, 22 S.W. at 968.
15 R41 S.W d 741 (Tex. Civ. App.-Austin 1931, writ ref'd).
Tnx R CIv.STAT. ANN. art. 7807a, 5 (1954).


;s-i~ ?3:~:..~mcSC ~;c'-C-. :..R~

1060 TEXAS LAW REVIEW [Vol. 46:1054
limits exercise of the power of eminent domain to authorized objectives, 1
rather than to construction or maintenance of improvements.'1 The im.
portance of the formulation of purposes for which eminent domain may
be exercised was mentioned in Hudson, the court declaring that a
statute authorizing acquisition of land for a right-of-way would not be t
construed as sanctioning the condemnation of a right to divert water."
Thus a statute now in force authorizing condemnation of "lands for c
pumping plants, intakes, headgates and storage reservoirs"" would not
extend to water rights. L
Apparently, a statutory grant of power to condemn "land" em-a
braces power to take water rights appurtenant to land.for authorized e
purposes. The terms "fee simple" and "property" appear sufficiently, t
broad to be given the same meaning. Indeed, the term "property c
surely would be held to include even nonappurtenant water rights. As c
indicated, nonappurtenant water rights seem hot to be encompassed r
within "land," and the same is probably true of "fee simple." These are" n
open questions in Texas. '
Somewhat analogous to delegations of eminent domain, whii i tl
refer in general terms to the subjects upon which the power may ,
operate, are those statutes which recite that water rights may be c
acquired, but refer in general terms to the mode of acquisition, without
specifying eminent domain. Some of the special acts creating Texas o
water districts, in a section other than the eminent domain section, h,
explicitly authorize the district to "acquire" water rights." Other act, ir
add to an authorization of one or more voluntary methods of acquidL ti
tion of water rights a catchall such as "or otherwise acquire."" Simila b

81 Id. art. 7880-125. a
a 85 Tex. 592, 22 S.W. 968 (1893).
83 TEX. REV. Crv. STAT. ANN. art. 7583 (1954). Individuals and associations can caiH
cise this power, however, only by petitioning the Texas Water Rights Commission, Vht
in its discretion may institute a condemnation action in the name of the State of T
'for the benefit of the petitioner.
s4 E.g., San Patrico Municipal Water Dist., id. art. 8280-145, g 4 (1954) '"authw
to acquire water supplies"); North Tarrant County Municipal Water Dist, id. art
204, 22 (1959) authorizedd to acquire water appropraton permits from
Hondo Creek Watershed Improvement Dist., id, art. 8280-215, I 10(4) (1959) ("
S. water rights, pursuant to state law").
5 E.g., San Antonio River Authority, id. art. 8280-119, 1 8(c)(3) (Supp. 1966)(
chase or otherwise acquire" appropriative rights): Tri-County Municipal Water Dis
art. 8280-192, 7 (1959) ("develop or otherwise acquire underground sources of
Del Mar Conservation Dist., id. art. 8280-226, I 5(b) ("acquiring a supply of fesh
... by negotiation and purchase, or by connection with the supply system of any
municipality or body politic or corporate, or by any othei practicable means");
son County Water Supply Dist, id. art. 8280-242, 19 ("purchase,own, hold, leas
otherwise acquire water wells, springs, and other sources of supply" ) U

'A;.l' 4 **' -.5

Vol1 1054

I objectives,
s." The im-
domain may
ring that a
wouldd not be
ivert water.-
,[ "lands for
,3 would not

I "land" em-
)r authorized
ir sufficiently
n "property"
iter rights. As
le." These are

main, which
le power may i
ights may be
sition, without
creai g Texas
lom 'section,
ts.84 Other acts
tods of acquisi-
iuire.""8 Similar

ociations can exer-
Commission, which
F the State of Texm
S(1954) authoredid
1 Dist., id. art. 828-
,its from owners")
0(4) (1959) C("acqu e
, (Supp. 1966) ("'pu
ipal Water Dist., I0.
,1 sources of water"l)
upply of fresh water
system of any other
,le means"); Willi6as
own, hold, lease udi



language is found in statutes applicable to countiesS' and to the Fresh
Water Supply Districts Enabling Act."' Water supply corporations,
which may be formed for the purpose of furnishing a water supply to
municipalities, private corporations, individuals and others, are au-
thorized to "purchase, own, hold, lease and otherwise acquire water
wells, springs and other sources of water supply," and have the "right
of eminent domain to acquire rights-of-way."88 These corporations,
being more easily organized and financed than water districts, have
become very popular in recent years.8"
A question presented by such provisions is whether, apart from the
eminent domain clause, they constitute an independent source of au-
thority to condemn water rights. Assuming that the eminent domain
clause is construed as not embracing water rights, would an "acquire"
clause or an "otherwise acquire" clause, which does mention water
rights, be given a meaning broad enough to cover acquisition by emi-
nent domain? There is doubt that it would. The presence of one section
containing all references to eminent domain raises an inference that
the legislature intended to deal comprehensively with the subject in
that section. Also to be contended with are the strict construction
canon and, in the case of an "otherwise acquire" clause, perhaps also
the ejusdem generis canon. These are not, however, insurmountable
obstacles. Although the Texas statutory provisions under consideration
here have not yet been construed, there are cases in other jurisdictions
involving similar legislative language which support the contention
that the words "to acquire" or "otherwise acquire" embrace acquisition
by eminent domain.40 There is also contrary authority."
Another distinctive group of special acts creating water districts, in
a section other than the eminent domain section, explicitly authorizes
the district to obtain water rights by specific voluntary methods of
acquisition. Examples are the acts creating the Trinity River Authority
Slid. art. 2352e, 2 (1964) ("acquire by purchase, construction or otherwise an ade-
qute source of fresh water").
Id. art. 7917 (1954).
U Id. art. 1434a, 4 (1962).
; S9TEA RESEARCH LEAGUE, supra note 9, at 39.
4O Trustees of Reservations v. Town of Stockbridge, 348 Mass. 511, 204 N.E2d 463
(1965) ("acquire by purchase or otherwise" embitaces condemnation); State v. Riley,
11 S.W.2d I (Mo. 1967) (statute authorizing cities to i"acquire by purchase, construction,
lease, gift or otherwise" land for sewage disposal plants held 'to authorize condemnation.
though another section of the statute expressly authorized condemnation of land for
'uwer carriage and outfall").
4' City of Allegan v. losco Land Co.. 254 Mich. 560, 236 N.W. 863 (1931) (the court
being aided by legislative history); Grcat Salt Lake Authority v. Island Ranching Co., 18
Utah 2d 276. 421 P.2d 504 (1966).



(authorized "to acquire water appropriation permits directly from the
Board of Water Engineers of the State of Texas" and to "purchase" *
permits and water)'" and the Edwards Underground Water District
(authorized to "purchase" water rights).3 The major water planning .
agency of Texas, The Texas Water Development Board, has been
given a similar power. The power of eminent domain has not been
delegated to it expressly, but it has been authorized to "purchase"
rights in ground w.:ater.44 Such acts, not containing generic terms of
acquisition, are not as readily construable as authorizing condemnation,
as are those discussed above.4

C. EUect of the Wagstaff Act
As the preceding discussion shows, if the only source of eminaem
domain powers of Texas municipalities and water districts were thel
typical statutes expressly delegating this power to specified govent.
mental agencies, there would be many reasonable doubts about whethl
water rights may be condemned by municipalities and water districuJ
There remains to be considered, however, the effect of an apparenGl
blanket delegation of eminent domain authority in the 1931 statute
known as the Wagstaff Act.'" Section 3 of this act provides:
The right to take waters necessary for domestic and municipal .*
supply purposes is primary and fundamental, and the right to .
recover from other uses, waters essential to such purposes shall
be paramount and unquestioned in the policy of the State,
and in the manner Constitutional and Statutory authority
provide. All political subdivisions of the State, and Constitu-
tional Governmental Agencies exercising delegated Legislative 'a
powers, are recognized to have the Right of Eminent Domain,
to be exercised as permitted by Law for uses domestic and
municipal and manufacturing, for authorized purposes, in-
eluding the irrigation of lands for all requirements of agri- ,
cultural employment.
Obviously, there are difficulties in interpreting this legislation
a broad delegation of power to condemn water rights to municipal
42 TE. REV. Civ. STAT. ANN. art. 8280-188, 24 (1959).
48 Id. art. 8280-219, g 3(2). Accord, North Waco Water Supply Dist., id. art. 8280-
5 (1954); Haltom City Water Authority, id. arL 8280-173, 6 (1959).
44 Id. art. 8280-9, 1 2(f) (Supp. 1967). As to surface waters, the board is a
only to store unappropriatedd waters," which would preclude both purchase and
demnation of appropriative rights. Id. art. 8280-9, 1 12. Moreover, the board is
to apply to the Texas Water Commission for permits to store, use, or transport
water. Id.
45 See Swan Lake Hunting Club v. United States, 381 F.2d 238 (5th Cir. 1967)
string the Migratory Bird Conservation Act).
4TEX. RPV. Civ. STAT. ANN. arts. 7472-7472d (1951).



water districts, and
a grant of the emine
tion that condemnat
by an agency already'
not be barred on tl
were already devote,
constitute a delegate
the recipients of th
include every person
to believe that sucl
abandon." The sec(
tion of eminent don
handling of this sen
the first sentence, a
entire act, which is c
question concerning
its failure explicitly
eminent domain is
permitted by Law."
inadvertence, the le
than to delegate the
its purpose was to est
--domestic, munici
uses within the mea
erty be condemned r
by the absence of hy
Make water rights fo
Benefit of the listed
,eminent domain. It
Served by the second
sentence is also a de&
Legislative histu
-helpful in resolving
iin the Senate by Sen
[lute for a bill decla
ilubordinate to apprc
|mining, and irrigati
introduced in the HI-
S4 Rut as sweeping a (
. AT. ANN. tit. 82. 1 2 (19
S4 Bill No. 93. TEx. S,



[Vol. 46:1054



ectly trom the
to "purchase"
Water District
vater planning
>ard, has been
Shas not been'
to "purchase",
:neric terms of

irce of eminent
stricts were tht
pecified govern
is about whether
I water district
of an apparent
the 1931 statou
d municipal
the right to
trprlm shall
dEt State,
ry authority
nd Constitu-
d Legislative
tent Domain,
domestic and i
purposes, in- i
ients of agri-

this legislation,
to municipaliOt

Dist., id. art. 8280
lie board is authld
nth purchase and
the board is req
us, or transport
18 (Bth Cir. 1967)


water districts, and other agencies. Literally, the first sentence is not
a grant of the eminent domain power at all. It may be merely a declara-
tion that condemnation of water rights for domestic and municipal uses
,by an agency already vested with the power of eminent domain would
t be barred on the ground that the water rights being condemned
wre already devoted to a public use. If this sentence were deemed to
stitute a delegation of eminent domain, another difficulty is that
e recipients of the grant are not identified; evidently, they would
lude every person and entity, governmental and private. It is hard
Believe that such a power would be bestowed with such reckless
ndon.7 The second sentence, although it may be read as a delega-
tion of eminent domain, does not refer to water rights. The reasonable
dling of this sentence, however, is to read it in conjunction with
first sentence, and to read both sentences in the context of the
re act, which is concerned with appropriative water rights. Another
stion concerning the meaning of the second sentence is raised by
failure explicitly.to "grant" or "delegate" eminent domain; instead,
inent domain is merely "recognized" to exist, to be "exercised as
itted by Law." If this choice of words was by design rather than
vertence, the legislative purpose may have been something other
to delegate the power of eminent domain. One possibility is that
purpose was to establish legislative policy that the specified water uses
mestic, municipal, manufacturing, and irrigation-are public
within the meaning of the constitutional requirement that prop-
be condemned only for a "public use." Another purpose, suggested
the absence of hydroelectric power from the list, may have been to
Water rights for power purposes subject to condemnation for the
et of the listed uses, by agencies assumed to have the power of
nt domain. It is a fair conclusion that both these purposes are
by the second sentence. The important question is whether that
ece is also a delegation of eminent domain.
SLegislative history and the background of the Wagstaff Act may be
ul in resolving this question. The Wagstaff Act was introduced
the Senate by Senator Walter C. Woodward of Coleman as a substi-
for a bill declaring all permits for hydroelectric power purposes
inmate to appropriations for domestic, municipal, manufacturing,
ng, and irrigation purposes.4s The original bill had also been
ed in the House by Representatives E. M. Davis of Brownwood
But as sweeping a delegation has been explicitly granted in some states, e.g., OKLA.
ANN. tit. 82, 1 2 (1952).
D8BI No. 95. Tax. S.J. 1212 (1931).






and R. M. Wagstaff of Abilene.4o The substituted bill, which was
enacted, is much broader in scope and does not appear to have had
hydroelectric power permits as its target. That this was its purpose,
however, is indicated not only by the nature of the bill for which it was
.substituted, but also by other factors. At the beginning of the legislative
session, Governor Dan Moody, addressing the Senate and Hous
jointly, declared:50
Apparently under existing laws the prior user of public water
for power purposes takes priority over subsequent application
for such water for towns and cities Such a law is a mon-
strosity and should be rewritten to give priority in the use of
public waters to the necessities of man rather than to some first
taker for power purposes.






I' j




4t Bill No. 250, TEX. H.R.J. 176 (1931).
50 Message from Governor Moody, TEr. H.R.J. 15, 22 (1931).
at Hope has been expressed that the permits of the Syndicate Power Company t
be declared void judicially, as establishing an unconstitutional monopoly of die ?W
the Colorado River. See C. Clay, The Lower Colorado River Authority 66 (194H (
published thesis in University of Texas Law School Library).
52 Id. at 71.
5s Id.

tional or speci;
time in Texas
Hydroelectric 1
,i by navigation a
'''i: and comment
S quent appropr
uses would be
i municipal uses
cants not only
f or furtherance
declaration of
with special re
S applicable to ti
Despite th
intended that
p on the Colorac
elsewhere. Th;
Spriative rights
domestic, mui
domain was th
could accompli
districts posses
Shave authority
they are not ar
reasonably ha
Domain power:
Legislature con
tons to munic
was to employ
power to cond
entities that ar
or as "Consti
SLegislative Pol
these terms.5
ground that at
of Texas, then
54 In a more
$ilcal subdivision'
a mission to whi

Governor Moody's concern probably stemmed from the rejection,
by the Board of Water Engineers in 1927 of a contested application by'
Brown County Water Improvement District No. 1 for permits to ini'
pound and divert a substantial amount of Colorado River water ftf
municipal uses of the City of Brownwood and for irrigation." Blam.le
for the rejection of this application was placed upon a private power.
company (the Syndicate Power Company) that held permits to appro.:
private over one and one-quarter million acre-feet of water annually
for proposed development of hydroelectric power at sites downstream
from the diversion contemplated by the application by Brown Coufty
Water Improvement District No. 1. Even though a revised application
by this district was granted subsequently, residents in the watershed of
the upper Colorado River had become thoroughly alarmed by the pr"ts
pect that their future needs for water would be stymied by exis iq
permits for power development.5 Senator Woodward and Repres
tives Davis and Wagstaff all represented the people of this region. Thd
concern evidently spread to other sections of the state, as is indicate
by support of their cause in Dallas and Fort Worth newspapers, '
well as by the prominence accorded the problem in Governor Moody
address to the legislature.
As finally enacted, the Wagstaff Act contained few indicia of e

(Vol. 46:1054 .





I, which was "i
to have had
Sits purpose,
which it was |
the legislative ~
and House

Ilic water .
plicationn "
is a mon-
lie use of
some first

the rejection
application by
permitss to im-
iver water for ,
ition."S Blame !
private power
mits to appro-
.ater annually
Is dpf stream.
Brot., County
ed application
e watershed o
ed by the pros-
ed by existing
id Represental
s region. Their
as is indicated
newspapers a
ernor Moody's

indicia of secq

er Company migit
,oly of the fow of
rity 66 (1948) (11-

tional or special interest legislation. Section 1 established for the first
time in Texas a list of preferences to govern the issuance of permits.
Hydroelectric power, however, was fifth in a list of seven, followed only
by navigation and recreation. Section 2, which has evoked more interest
and comment than any other part of the act, declared that all subse-
quent appropriations for purposes other than domestic or municipal
raes would be subject to further appropriations for domestic and
municipal uses. Section 4 announced that preference be given appli-
cants not only according to the list of preferences in section 1, but also
for furtherance of "maximum utilization of waters." Section 5 was a
declaration of policy that surveys be made of water resources and needs,
with special reference to regional factors. Section 6 made section 2 in-
*pplicable to the Rio Grande.
Despite the generality of the Wagstaff Act, its sponsors no doubt
1ftended that it effectively deal with the problem that had developed
on the Colorado River, as well as with manifestations of the problem
elsewhere. That problem was to find a way to subject existing appro-
priative rights for proposed hydroelectric power projects to future
domestic, municipal, irrigation, and manufacturing uses. Eminent
domain was the chosen instrument for this purpose. Eminent domain
fould accomplish the intended purpose only if municipalities and water
districts possessed this power. There is some doubt that these agencies
abve authority to condemn appropriative water rights, especially when
a~y are not appurtenant to land. The sponsors of this legislation could
wasonably have concluded that additional delegation of eminent
domain powers to municipalities and water districts was essential. The
legislature conceivably could have attempted to make separate delega-
:ions to municipalities and water districts, but a much easier approach
as to employ a blanket delegation, which section 3 evidently is.
Assuming that section 3 of the Wagstaff Act is a delegation of
ppwer to condemn water rights, to whom is it delegated? Only those
titles that are classifiable either as "political subdivisions of the State"
i< as "Constitutional Governmental Agencies exercising delegated
legislative Powers." The Wagstaff Act does not contain a definition of
'.ese terms."' If an agency is to be deemed "Constitutional" on the
iound that authorization for its creation is found in the Constitution
STexas, then water control and improvement districts and other water
In a more recent act on a different subject, the legislature defined the term "po-
Ilkal subdivision" as meaning any municipality, water district, or interstate compact
mission to which Texas is a party. TEx. Rav. Cry. STAT. ANN. art. 8290-9. 1 2(c) (Supp.



districts as well can qualify,"5 but they lose out if only agencies create
directly by that document are intended. Assuming that water district
are constitutional agencies, are their powers properly classified as Ikt
lative? Probably not, but this hard problem can be avoided if waW
districts are political subdivisions of the state, which apparently ned.
not have legislative powers in order to come within the Act. For certain
other purposes, including exemption from garnishment,56 immune
for torts,"5 and exemption from taxation," water districts have bee
classified as political subdivisions of the state. The criteria for claiaif
tion have not been spelled out fully. Water districts need not, am
should not, be treated as political subdivisions of the state for all po.
poses. It should not be forgotten that the problem now considered
to determine the sense in which the legislature used the phrase. Takl
a narrow approach, one might plausibly distinguish the cases referr
to above on the ground that courts would be more prone to dassify
agency as a political subdivision of the state when the issue invoel
outside threats of impairment of agency programs than when the h
goes to existence of an agency power. To hold that water districts
not within section 3 of the Wagstaff Act, however, would have dl
practical effect of making it applicable only to cities; had the legiua.
so intended, it would have been natural for it to refer expresly'
cities, rather than to use the general terms it employed.
Indeed, doubt can be raised about whether even cities are p
cal subdivisions of the State." A traditional distinction between c40
ties and cities is that the former are instrumentalities for perform
of state functions, while the latter serve local needs." Although
dichotomy is not an accurate reflection of a more complicated really
and cities have been treated by the courts as political subdivisions o
state for many purposes,61 a fairly recent opinion of the Supreme

as TEx. CoNsr. art. XVI, | 59.
se Willacy Coiunty Water Control & Improvement Dist. No. I v. Abendroth, 14M
S20, 177 S.W.2d 936 (1944).
B5 Bennett v. Brown County Water Improvement Dist. No. 1, 153 Tex. 599, 272
498 (1954).
58 Bexar-Medina-Atascosa Counties Water Improvement Dist. No. I v.
S.W 2d 747 (Tex. Civ. App.-San Antonio 1929. writ ref'd).
ed. 1959).
o See J. FORDHAM, LOCAL GOVERNMENT LAw 15-17 (1949). Wilson, J., dissent
Bennett v. Brown County Water Improvement Dist. No. 1, 153 Tex. 99, 610, 272
408. 505 (1954), stated: "The words 'iubdivision of the state' and 'body polite
poratc' are not trustworthy criteria by which to differentiate between a cOatnty and s
6e. ee. e.g., City of Corpus Christi v. Gregg. 155 Tex. 537. 289 SiW.2d 7146
City of Goose Creek v. Hunnicult, 120 Tex. 471, 39 S.W.2d 617 (1931).



of Texas contains I.
subdivisions of the -
In any event,
Texas constitution,
tioned by section 3 (
.Agencies exercising
It has been hei
ganized to furnish u
of the state for the
ably be classified i.
applicability of secti
A sizable list o
-proposition that leg
,Javing harsh conseq
iA contrary maxim
essential for the a,
/There would, how<
ional bias, and it is
ruch influence in j
, recent opinion th
te canon that emit
adding to the tradit
S Strict construct
.: eral construction
statute be give
ceptible. The
corded a full n
r and intention .

"6 Water districts, it
e held to be political a
4taading upon the same
Slaw. Willacy County
323, 177 S.W.2d 93i
Btilstion, bearing th
itnties of this State a
m about whether ci
nature shall have r,
ration or subdivisi
-Tarrant County 1
lI.S51 S.W.2d 162 (Te
4 See City of Osceol
5 See City of Beaui
), vacated on other I
S*Coastal States Ga


[Vol. 46:1054



! 7

[Vor :1054

ncies created
ater districts
ified as legis-
ided if water
,arently need
t. For certain
,e immunity
ts have been
t for classifica-
leed not, and
te for all pur
considered Is
,hrase. Taking
cases referred
c to classify al
issue involve
when the issild
er districts ar
would have th
I the legislature
er expressly I

tiesr polll
between coo
or performance
, Although ti
licated reality
Divisions of i
Supreme Cot

Abendroth, 1421
Tex. 599, 272 M.
No. I v. State,
son, J., dissent
599, 610, 272 SJ
hody politic and
a county and a i
9 SW.2d 746 (1



of Texas contains language indicating that cities may not be political
subdivisions of the state.60
i In any event, home-rule cities, deriving their powers from the
Texas constitution, evidently would come within the other class men-
tioned by section 3 of the Wagstaff Act-"Constitutional Governmental
agencies exercising delegated Legislative Powers."
It has been held that water supply corporations, even though or-
pnized to furnish water to municipalities, are not political subdivisions
the state for the purpose of tax exemption," and they would prob-
aly be classified in the same way for the purpose of determining
tplicability of section 3 of the Wagstaff Act.
| A sizable list of authorities could be compiled in support of the
Spsition that legislative delegations of the eminent domain power,
ving harsh consequences to landowners, are to be strictly construed.04
contrary maxim would be as reasonable since eminent domain is
tial for the accomplishment of vital governmental functions."
re would, however, seem to be no justification for any construc-
Sal bias, and it is doubtful that the strict construction maxim has had
uch influence in judicial construction of eminent domain statutes. In
recent opinion the Supreme Court of Texas completely neutralized
canon that eminent domain statutes are to be strictly construed, by
ing to the traditional statement of the canon the following:0"
Strict construction is not, however, the exact converse of lib-
eral construction, for it does not require that the words of a
statute be given the narrowest meaning of which they are sus-
ceptible. The language used by the Legislature may be ac-
corded a full meaning that will carry out its manifest purpose
and intention ....

Water districts, it was said, are "not to be classed with municipal corporations, but
aW to be political subdivisions of the State. performing governmental functions, and
upon the same footing as counties and other political subdivisions established
Lr." WUlacy County Water Control Improvement Dist. No. I v. Abendroth, 142 Tex.
323, 177 S.W.2d 936, 937 (1944). Is it significant that Article XI, 1 1 of the Texas
ton. bearing the heading "Municipal Corporations," declares that "[tJhe several
of this State are hereby recogniLed as legal subdivisions of the State," but is
about whether cities enjoy such status? Article III, i 52, declaring that "[t]he
Shall have no power to authorize any county, city, town or other political
or subdivision of the State to lend its credit ." is ambiguous.
Tarrant County Water Supply Corp. v. Hurst-Euless-Bedford Independent School
191 S.W.2d 162 (Tex. Civ. App.-Fort Worth 1965. writ refd n.r.e.).
fre City of Osceola v. Whistle, 410 S.W.2d 393, 594 (Ark. 1966).
SJe City of Beaumont v. Beaumont Irrigation Dist., 42 Cal. Rptr. 859 (Cal. App.
ammred on other grounds, 63 Cal. 2d 291, 405 P.2d 377, 46 Cal. Rptr. 465 (1065).
Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 176, 309 S.W.2d 828, 831

r.~dp ri' '~l**





I !



There is nothing to commend narrow construction of section b
of the Wagstaff Act. Both the nature of the subject and the generality of
the language manifest a purpose to deal with all state and local govern
mental agencies empowered to acquire water rights. In addition ,.
municipalities and water districts, perhaps other governmental entities'
if otherwise authorized to obtain water for domestic, municipal, man.
facturing, or irrigation purposes, would also come within the ambit d1
section 3 of the Wagstaff Act.
It is evident, however, that the Wagstaff Act was concerned with,
appropriative water rights, and therefore section 3 probably woul4t
not be read as authorizing condemnation of riparian rights or groundW.
water rights. In view, however, of the widespread delegation of as'
thority to condemn "land," which has been deemed to include ripariin
rights and probably would include ground water rights as well, this
not a serious limitation. As indicated, the principal doubts about
authority of municipalities and water districts to condemn water ri
concern appropri.ative rights, and in particular, appropriative
that are not appurtenant to land. Section 3 of the Wagstaff Act, if
strued as suggested, removes those doubts.
Assuming that section 3 is a delegation to municipalities, wa
districts, and other agencies coming within the general classes na
the impact upon all recipients would not be uniform. Some age
would receive a new power. For others an existing power of emi
domain would be enlarged. For still others, statutory limitations u
eminent domain would be repealed.67 Water districts created by spe -
act after the effective date of the Wagstaff Act (May 18, 1931) would
be affected by it, unless it is incorporated by reference in the s
acts. On the other hand, water districts created after that date pu
to enabling acts in force on that date, which in effect were amended
the Wagstaff Act, presumably would be governed by it.
One additional constructional problem in this unusual s
of legislative drafting should be mentioned. For what purposes may.
power be exercised? The only uses mentioned are domestic, munii
manufacturing, and irrigation. The clause "for other authorized
poses" could be read either as a limitation upon the uses specified
as an extension to all uses for which water may be appropriated.
latter is the more natural reading.

67 Section 7 of the Wagstaff Act purports to repcel all conflicting laws.


[Vol. 46:1054



P, Statutory Res
In addition tc
provisions, that en
ltures commonly re
tion is whether th
from exercises of I
were forbidden to
boundaries, the ex
obtaining a water
lights probably w
teama, and the m
removed from the
Uf certain uses are
domain, it is obvio
| In Texas, bo
expressly authorize
,their boundaries.
aeation of water c
ment districts,'" w
Water supply distri
picts also expressly
the acts is silent o
Domain power.7' N
dse of eminent dor
In addition t,
ibitions of col
Is TEx. REV. Civ. ST,
S ld. art. 1175(15).
toId. art. 7880-125 i
nI d. an. 7807a, ,
t2 Id. art. 7849.
hId. art. 7924.
SE.g., Sabine River
Texas Municipal '
ts Benbrook Sewer I
SE.g. San Antonio
1067): Trinity Ri'
rDist., id. art. 828(
No. I, id. art. 8280.
p. 1967).

ol. 46:1054
seC S '
nerality of
:al govern-
ddition to
al entities,
pal, manu-
e ambit of ,

rned with |
bbly would
or ground* ,
ion of au-
de riparian
;ell, this is
; about the
vater rights
itive rights
Act, if coh-

ities, water
sses named,
ne agencies
of e nent
Itiop pon
d by special
)would not
the special
te pursuant
amended by

al specimen
>ses may this
iorized par
specified 1a
iriated. Th(

pi. $Satutory Restrictions Upon Eminent Domain Affecting Water
In addition to the universal limitation, traceable to constitutional
provisions, that eminent domain be exercised for a public use, legisla-
tures commonly restrict delegations of the power. The important ques-
fon is whether these restrictions substantially immunize water rights
fnom exercises of the power. If, for example, a city or a water district
tere forbidden to exercise its power of eminent domain beyond its
boundaries, the existence of the power might be of little or no help in
obtaining a water supply, since the desired riparian and appropriative
rights probably would be strung out along lengthy stretches of the
ream, and the most desirable sites for wells might be some distance
moved from the city or district in search of water supply. Similarly,
| certain uses are by statute placed beyond the power of eminent
domain, it is obvious that this power might be of no real value in some
i In Texas, both general-law cities" and home-rule cities0 are
pressly authorized to exercise the power of eminent domain beyond
eir boundaries. The same is true of the enabling acts authorizing
nationn of water control and improvement districts,'0 water improve-
t districts,1 water control and preservation districts,, and fresh
supply districts." Several of the special acts creating water dis-
cts also expressly negate a geographical limitation.74 At least one of
acts is silent on the geographical extent of the district's eminent
ain power '7 Many of these acts, however, expressly restrict exer-
of eminent domain to the boundaries of the district or to specified
In addition to geographical limitations, there, are instances of
bitions of condemnation of property devoted to certain uses or
I TIx. REV. Civ. STAT. ANN. art. 1109(2) (1963).
*ld. art. 1175(15).
Tr nd. art. 7880,125 (1954).
1Id. art. 7807*, 1.
/Id. art. 7849.
SId.. art. 7924.
'igg., Sabine River Authority, TLE. REV. Civ. STAT. ANN. art. 8280-1k3, i 14() (1954);
Texas Municipal Water Dist., id. art. 8280-141, j 8.
lBenbrook Sewer & Water Authority, Tax. REV. Civ. STAT. ANN. art. 8280-13 6
Bg., San Antonio River Authority, TEx. REV. CI. STAT. ANN. art. 8280-119, 3(k)
1967; Trinity River Authority, id. art. 8280-188, 5 25 (1959); Edwards Underground
r Dist. id. art. 8280-219, 53(2); Coke County Kickppoo Water Control Improvement
No. 1, id. art. 8280-241, 1 7; Folletts Island Water Supply Dist., id. art. 8280-314, $ 5

I) r

1070 TEXAS LAWl' (REITEll [Vol. 46:1054
owned by certain entities. These will be discussed in a later part of this pt
article. t
Finally, mention should be made of the important eminent domain' th
limitation imposed by the legislative statement of purposes for which m
f this power may be exercised. Earlier, attention was called to a difference t he
between purposes for which this power may be exercised by water coi
control and improvement districts and by water improvement dil un
tricts." The former type of district may exercise eminent domain for rec
any purpose "helpful" in accomplishing district objectives, but the wo
latter may do so only for the purpose of constructing reservoirs and fici
other facilities, which evidently would not include condemnation of sub
water rights for the purpose of filling a reservoir. Also, the purposes do cor
many water districts created by special act are defined to reduce i' cou
relative i significance the district's power to condemn water rights., east
Power of a district to condemn water rights will have a significant nev
Impact upon allocation of water only if the general powers of Itk stat
i district include acquisition of a water supply for some beneficial ucon
and if the delegation of eminent domain to the district is broad enouI priV
to cover that purpose. Texas cases involving loosely analogous problemca that
are illustrative. In one case it was held that a municipality that, accord '
ing to the statutes then in force, was authorized to condemn property
for construction of "water mains," "supply reservoirs," and "s
pipes," was not to be deemed to have authority to condemn for a "waul Tex
and light plant."78 In another case a delegation of eminent domain f 'supf
acquisition of property "necessary or convenient to the exercise of th doul
powers" conferred upon the Brazos River Conservation and Reas lativ
tion District was held not to include authority to condemn land for a
\i reservoirs for parks and recreational purposes, the court's view b ate
'that the district's functions were limited to conservation and dis tinall
Stion of public waters and generation of hydroelectric power.7' prted
Little need be said here about the constitutional limitation o1 ha
condemnation for public uses. Even though the Supreme Court poral
Texas continues to profess adherence to the narrow use-by-the-.pub
standard, rather than the broader public-benefit criterion, it gend n
has reached the same results as courts following the broader test." 8
77 See text, supra note S1.
78Trolle v. City of New Braunfels, 154 S.W. 345 (Tex. Civ. App.-Austin 19113, conc
T7 Brazos River Conservation & Reclamation Dist. v. Hannon, 178 S.W.2d 211, ter
(Tex. Civ. App.-Eastland 1944, writ re('d). exei
sOThe cases are reviewed in Comment, Public Use as a .inmiation on the Poawe suble,
Eminent Domain in Texas, 44 TExAs L. Re. 1499 (1966). o the

Vol" 1054

r part of this .

nent domain
es for which
Sa difference
,ed by water
movement dis-
t domain for
ives, but the
eservoirs and,
lemnation of
e purposes of
to reduce to,
water rights.
Sa significant
powers of thec
beneficial use,
broad enough
gous problems
y that, accord.
lemn property,
" and "stand&
Sin "water
:nt domain for
exercise of the
and Reclama'
emn land near
rt's view being
n and distribu"
power .7
41 limitation of
*reme Court ol
on, it generally
.ader test.80 Tbl

p.-Austin 1915, M
178 S.W.2d 281, 8I
*o'non the Power a


public-use limitation is satisfied when the condemnor has an obliga-
tion to supply water to at least a segment of the public, even though
the segment is very thin."' Thus the major competitors for water today,
municipalities and water districts, would rarely if ever be hampered by
he public-use requirement. The problem is likely to arise only when
demnation is attempted by individuals or private corporations
der no obligation to serve the public. In some states, the public-use
uirement would be met merely by showing that the public interest
would be advanced by condemnation that shifts water to a more bene-
cial use.M It may be doubted that the Supreme Court of Texas would
subscribe to this concept or allow condemnation by individuals or
corporations under no duty to supply others. This belief is based on the
rt's reluctance to allow an individual landowner to condemn an
,ement needed for ingress and egress.83 In any event this issue may
never arise in Texas since it does not appear that individuals have
tutory authority to exercise the power of eminent domain, and it
ceivably may he held either that the eminent domain power of the
vate corporation in question does not extend to water rights or
t the corporation does indeed have an obligation to serve others.84

., Summary
It is hazardous to generalize about the existence of authority in
exas to condemn water rights for the purpose of acquiring a water
pply. Litigation will probably be required to resolve many of the
obts. Due largely to variations in the language of the numerous legis-
ive delegations of eminent domain, the issues will not be the same
hr all cases of attempted condemnation. For municipalities and most
ter districts, the meaning of section 3 of the Wagstaff Act, when
ly construed, will be of critical importance. One may cautiously
predict that municipalities and most water districts will be adjudged
Shave such authority, but that some districts, individuals, and cor-
tions not obligated to serve the public will be held not to have it,

Borden v. Trespalacios Rice & Irrigation Dist., 98 Tex. 494. 86 S.W. 1I (1905).
d mem., 204 US. 667 (1907) condemnationn by irrigation district capable of serving
SGross, supra note 2, at 272.
M Estate of Waggoner v. Gleghom, 378 S.W.2d 47 (Tex. 1964).
IN Individuals and others are authorized by TEX. REV. Civ. STAT. ANN. art. 7585 (1954)
oeademn land for reservoir sites. rights of way, and certain other facilities for effeTrcun
of appropriations of waler, but this does not appear In arnidiin rcirniCatm1l, ofni a
supply and, moreover, the eminent domain power conferred upon individuals cain
erased only by petitioning the Board of Water Engineers, which. "if it deems ad-
.*lble,' may institute condemnation proceedings in the name of the slate for the benefit
Sdithe individual.

T 7



or to have it only to a severely limited extent. The existence of i
thority to condemn water rights is probably sufficiently widespread I
Texas to set the stage for frequent resort to eminent domain auI
alternative means of obtaining water supply. If it is deemed deirfl
that such authority be even more widely delegated, new legislative I
necessary. '

In suits to condemn property, whether the proposed use will
more beneficial to society than the existing use is rarely a relevant i
it ordinarily being sufficient that the taking is for a "public use.1,
however, the property to be taken is already devoted to a public ui
choice between competing uses is unavoidable. In some instances, d
conflict has been anticipated by the legislature, which either hua
solved it86 or has authorized the condemnor," an administrative r
tory agency,"' or the courts"8 to do so. If the legislature has not
on the matter, and if the condemnor is not on a higher govem
level than the condemnee, most courts disallow the attempted
demnation, by inferring from legislative silence that the legi
assumed that only private uses would be displaced.8* A few
disdainful of abstention, have undertaken the difficult task of wci
the social values of the competing land uses.0
A threshold problem of critical importance here is clarifica
the meaning of "devoted to a public use." As observed earlier
constitutional requirement that land be condemned only for a "p
use" is generally considered broad enough to encompass almost
taking that will benefit the public. If the same meaning is a

85 See, e.g., KAN. STAT. ANN. I 82a-707 (1964), discussed at note 98 infra.
M Statute construed as authorizing State Highway Commission to make
able decision that use for highway is "more necessary" than for park. Barry .
Public Works, 199 Cal. App. 2d 359, 18 Cal. Rptr. 637 (1962).
eT Statute construed as authorizing State Corporation Commission to
"public necessity" justifies condemnation by a corporation of property
another corporation possessing power of eminent domain. Great Falls Power Co.,
Falls & Old Dominion R.R., 104 Va. 416, 52 S.E. 172 (1905).
as See, e.g., WASH. REV. CODE ANN. | 90.03.010 (1962), discussed at note 34I
s Cemetery Co. v. Warren School Township, 236 Ind. 171, 139 N.E2d
Village of Blue Ash v. City of Cincinnati. 173 Ohio St. 345. 182 N.E.d 557 (
of Supervisors of Prince William County v. Board of Supervisors of Fairfix
Va. 730, 146 S.E.2d 234 (1966).
so This view has been ascribed to the Texas courts. See Comment, Prob5
demntlion of Property Devoted to Public Use, 44 TEXAS L. REv. 1517, 1522 (1
point has also been made that when courts purport to find that legislative
condemn land already devoted to a public use is "necessarily implied in
courts are often engaged in a weighing process. Note, Eminent Domanl: I
mental Conflicts. 29 Inn. L.J. 206, 208-09 (1954).

determining whether
to It public use, the
Evolved in nearly evei
Would vary, dependii
lion to attempted cot
If the governing print
I public use is barre
deemed applicable, th
domain. This is undi
fhat judicial balancin
bnd devoted to a pu
meaning of public us,
bore active role in en
SThe cases reveal ;
Sa public use," but tl
ban "beneficial to d
bsiton is that prop<
'devoted to a public u
he land in that capaci
tgal right to the use)
kistence and scope of
bidemnee.92 Only on
Sa public use" with
klena v. Rogan,'" wh
others for irrigation
dty did not distingu
y of a condemnee i
LIermining whether
|lic use. A persuasi
dthe court's position
Ltern states, are pect
e scarcity of this ei
kutory declaration o
Only for beneficial
to reject applicati

1 Oxford County Agricu
II A.2d 893 (1965): Tu.
MItMt Hydro-Electric Corp.
f Board of Educ. v. Pace
[ I26 Mont. 452. 68 P. 79




[Vol. 46! ION

I i I
*i' i II

l-.~ .

of Al' determining whether property taken by a condemnor is already devoted
read lh ii public use, the problem of conflicting public uses would be in-
1 s u lIved in nearly every condemnation proceeding. The consequences
esirable 1uld vary, depending upon the principle applicable in the jurisdic-
iatiola to attempted condemnation of property devoted to a public use.
the governing principle is that condemnation of property devoted to
Public use is barred, and the broad meaning of public use were
Do ed applicable, there uould be little room for exercise of eminent
will t.imain. This is undesirable. If, however, the governing principle is
int judicial balancing of interests is required when condemnation of
use. devoted to a public use is attempted, application of the broad
lic use, ing of public use would mean only that the courts would play a
incels active role in eminent domain proceedings. This might be desir-
r has
ve r.The cases reveal a lack of agreement on the meaning of "devoted
ot s public use," but the meanings adopted are typically much narrower ,
rnm "beneficial to the public." Perhaps the most frequently stated
pted 6. is that property belonging to a nongovernmental owner is
legislate ted to a public use" only if the owner is a public utility and holds
ew co land in that capacity (or, as it is sometimes put, if the public has a
f wei Light to the use)."' Another view is that the critical factor is the
ce and scope of the power of eminent domain possessed by the
atiee.2 Only one case has been found which equates "devoted
earlier, public use" with "beneficial to the public." This case is City of
r a "a v. Rogan," which treated water rights being used by individual
almost tor irrigation as "devoted to a public use." The court appar-
Sap ldid not distinguish the problem of determining whether' prop- .
a condemnee is devoted to a public use from the problem of
inning whether the proposed use of the condemned land is a
rry v. use. A persuasive argument could have been made in support
o 0 court's position (but was not) that water rights, at least in the
Sbtel states, are peculiarly affected with a public interest, in view of '
wr C&o. ty of this essential resource, the common constitutional or
S13s4 In declaration of public ownership of water, the availability of
57 (1e ~y for beneficial uses, and the administrative discretion in some
fax reject applications for water rights if not in the public interest. .

1522 1 County Agriculuial Soc'y v. School Administrative Dist. No. 17, 161 Me.
Live _id 893 (1965); Tuomey Hospital v. City of Sunter, 134 S.E.2d 744 (S.C. 1964);
SIn Rdro-Electric Corp. v. Dunn, 95 Vt. 144, 112 A. 223 (1921).
alh: oEduc. v. Pace Colle e, 27 App. Div. 2d 87, 276 N.YS2d 162 (1966).
Mont. 452, 68 P. 798 (1902).

t~ -
-77-',' V!


Even when land is involved, situations may arise that severely I
-the soundness of the narrow meanings of "devoted to a public As
Two recent cases are in point. In Texas Eastern Transmission Corps
tion v. Wildlife Preserves, Incorporated,94 the question was wheel
land used by a private nonprofit corporation for a wildlife prest
was "devoted to a public use." If so, according to the law of New J~i
the trial court should weigh the social utility of that use against t-
the proposed pipeline easement, which allegedly would devastateI
preserve; if not, the character of the existing use of the land
condemned would be no defense. The court felt constrained by e
cases to hold that the wildlife preserve was not being "devoted A
public use." The severity of this holding, however, was softened 4
siderably by the court's decision that the burden of establishing 1
the choice of location for the easement was arbitrary is much hli
when, as in this case, the existing land use is "encouraged and
engaged in by government itself."
In another recent case, Board of Education v. Pace College
owned by a private college for expansion of its campus was hc
"devoted to a public use" when sought to be condemned by ap
school district, but a concurring opinion put the decision on the
that the land was vacant and rejected the "absolutist stand (ta
my colleagues) that in no case do we have power to weigh the,
benefit of the proposed use against the present use of the
merely because the condemnee lacks the power of eminent do:
These cases might indicate a tendency to enlarge the
"devoted to a public use," at least when the effect is to widen
gory of condemnation suits in which courts weigh the social r.
the competing uses. For reasons suggested above, this develop
particularly likely to occur with respect to condemnation
rights. The Montana case, City of Helena v. Rogan, will
joined by others. The general problem of choosing between c
public uses of property thus assumes particular importance we
rights are involved.
The importance of this problem to water rights conde
also indicated by another consideration. In many instances of
condemnation of land devoted to a public use, it is possible
uses to coexist. An example is the intersection of highways,.
and utility lines. Condemnation is allowed in these instances.
94 48 N.J. 261, 225 A2d 130 (1966).
95 27 App. Div. 2d 87, 276 N.YS.2d 162 (1966).
96 Id. at 92, 276 N.YS.2d at 167.

ISes are compat
iccur in proceed
I. The Pattern

I) Standards Ex
SOnly a few
Iicable to subst.
The most c
izes that "inferi
on and provide
unicipal, irrig
Itenthis statute
mis used in th
C term "mtini,
to uses for any
h water mains
ocking. A cit)
acern. is proba
Ivably even ct
ovides no gui<
Proposed use c
Iltow this cor
Iuses is "infer
Tn the list, sui
i dilution of i
'A Wyomin
damnation c

the use of.
(for culinary
and steam
lSee Comment,
OTrclease, The

tya munici
.c .....'). Bu



[Vol. 46:


ii i



4' *


1 corPP910)
ts: whethi
.e prse* TY

inst. thit dI
land to
1 by. earlO
zvoted t6`1
.ftened C"

luch ViI
d and

-Lilege," l
vaS hel&4
by-a P4~
.1 the g!#!
id (t"ki
,hther It

ic coneir
iden thle
-cial U1it

I probA1
-fene cOO'

ce wht"

V "


ses are compatible.'1 It is inconceivable that this situation would
cir in proceedings to condemn water rights.

.. The Pattern of Existing Legislation

SStandards Explicitly Applicable to Condemnation of Water Rights
Only a few legislatures have established standards explicitly ap-
ble to substitution of water uses by condemnation.
SThe most comprehensive statute is that of Kansas, which. recog-
that "inferior" uses of water may be displaced through condemna-
-and provides a hierarchy of uses for this purpose: "domestic,
idpal, irrigation, industrial, recreational and water power uses."'8
this statute, however, is incomplete. There is no definition of the
used in the list, and this could cause difficulty. If, for example,
term "municipal" uses includes not only governmental uses, but
ses for any beneficial purpose by consumers supplied by munici-
ater mains (and it probably does),". the consequences could be
ing. A city which condemns the water rights of an industrial
is probably supplying water to other industrial concerns, con-
bly even competitors of the condemnee. The Kansas statute also
des no guide for an attempted condemnation of water rights for
ed use of the same type as the present use. Is a court to refuse
this condemnation, or to exercise its judgment as to which of
is "inferior?" Finally, several common uses of water are omitted
e list, such as mining, navigation, preservation of fish and wild-
lution of water for quality control, and recharge of ground water.
1Wyoming statute is also fairly comprehensive. It authorizes
nation of water rights for "preferred uses" in the following

irst-Water for 'drinking purposes for both man and beast;
nd-Water for municipal purposes; Third-Water for
use of steam engines and for general railway use, water
culinary, laundry, bathing, refrigerating (including the
Omuacture of ice) for steam and hot water heating plants,
steam power plants; and Fourth-Industrial purposes.
moment, supra note 90, at 1524.
STAT. ANN. | 82a-707 (1964).
i The Concept of Reasonable Beneficial Use in the Law of Surface Streams,
i.J. 1, 9 (1957); Texas Water Comm'n, Rules, Regulations, & Modes of Pro-
.(u) (1964 rev.) ("Municipal use" includes use in "industrial enterprises sup-
a municipal distribution system without special construction to meet its
..'). But cf. State ex rel. Shropshire.v. Superior Court, 51 Wash. 386, 99 P. 3

: : :

; i

-;' .:&

: 1


1 :ir


i j




I 1


[VoL 46:l 0,

The use of water for irrigation shall be superior and preferred :
to any use where water turbines or impulse water wheels are ,
installed for power purposes; provided, however, that the pre- :.Ii
ferred use of steam power plants and industrial purposes ,
herein granted shall not be construed to give the right of con- ;
Another Wyoming statute makes these preferences applicable 40
ground water, but adds: "Nothing herein contained shall be 0
strued to impair the rights of municipal corporations to acquire iy
underground water or underground water rights for a necessary
purpose by eminent domain or condemnation proceedings."101
This legislation also has some gaps, is unclear in some respects,
is outmoded. Only those commercial uses are included that either
specified or are to be considered "industrial." Auto washing,
example, is omitted, and it is not clear that air conditioning woul4
comprehended by "refrigerating." "Municipal purposes," which are
defined, are accorded second place to surface waters, but head the 1jst
to underground waters. The high priorities accorded stock wa
and railroads do not conform to modern values.
The constitutions of Idaho1 and Nebraskas03 elevate do
uses over all other uses, and prefer agricultural uses over ind
uses. In addition, the Idaho constitution prefers mining and
(within organized mining districts) over both agriculture and
facturing for this purpose. Like the Kansas and Wyoming statutes,
provisions are incomplete. The Colorado constitution1' is smila
purporting to give absolute preferences (i.e. without the require
of compensation) to domestic uses over all other uses, and to
tural uses over manufacturing uses. This provision has been co
however, as requiring compensation.1, Utah1" and Oregon' o
closely track the Colorado constitutional provision and might be
strued in the same way. If so, the Oregon statute would appear to
flict with another statute of that state which explicitly author
railway corporation to condemn "any water rights owned by anyp
and the rights of other persons affected... "8 .,|

100oo WYO. STAT. ANN. 41-S (1957).
101 Id. $ 41-123.
102 IDAHO CONsr. art. XVI 3.
o10 NE. CONsr. art. XV, I 5-6.
104,CoLo. CoNwr. art. XVI, 6.
lo Town of Sterling v. Pawnee Ditch Extension Co., 42 Colo. 421, 94 P.
106 UTAn Com ANN. 735S-21 (1958). .
107 OL. RYV. STAT. 1 533.40 (1967).
lol Id. g 537.310.



The Te>
domestic and
proceedings, 1
for manufacti
corded prefer
inference fror
tence, or upo
iet forth in s
applicable to:
uses mention
mentioned, uis
ises have pri,
even with res
For resolving a
Applicable sta'
tie domestic
ise. Also, the
kirposes," alt
ier than a:
sting uses,
ghts reason
Wr irrigation
aversion has I
,ts acquisit
Sin terms c
tiidding coi
1y property y
his statute h
ty of an irrig
erarchy of u
Statutory 0

S* AdmInistra
iam'n, supra no
110 WAMa. RV,
21 -UTAH Cos
i a CAi C.
Iu City of Be:
. Aptr. 465 (191



I preferred
wheels are
iat the pre-
I purposes
ght o con-

es applicable
I shall be
to acquire an
necessary pubUI
,me respects, an
1 that either
to washing,
ioning would
s," which are .
,t head the list
d stock water

elevate domeS
,s over industry
ning and millil
l tufnd maar
ling Latutes, the
,nt04 is similar I
t the requirement
es, and to agria
as been construct
Oregon107 statw
-md might be cc
uld appear to a
itly authorizes a
vned by any pen

SThe Texas statute, section 3 of the Wagstaff Act, provides that
Imestic and municipal supply will have priority in condemnation
ceedings, but is does not explicitly establish any other priorities for
ademnation. It does declare that eminent domain may be exercised
I manufacturing and irrigation purposes, but if the former is ac-
rded preference over the latter, this must be based upon a dubious
ference from the order in which the two words appear in the sen-
ke, or upon the similarly dubious inference that the order of uses
[ forth in section 1, governing the appropriation of water, is also
blcable to condemnation. One can only speculate about whether the
ms mentioned in section 3 are thereby accorded preference over un-
bhtioned uses. All that clearly appears is that domestic and municipal
i have priority in condemnation proceedings over all other uses.
with respect to these uses, the Act has not provided a standard
resolving all controversies that may arise. Nothing is said about the
cable standard when eminent domain is exercised to substitute
'domestic or municipal use for an existing domestic or municipal
,Also, the Act contains no definition of "domestic and municipal
ses," although section 1 indicates that it includes watering of live-
Legislative preferences have been manifested occasionally in forms
Than a hierarchy of uses. One form is a stated preference for
King uses, such as the Washington statute declaring that water
L b reasonably necessary for existing irrigation shall not be taken
irrigation purposes.10 A Utah policy opposed to transmountain
Ir'on has been implemented by denial of eminent domain for water
bs acquisition for such diversion."1 Some legislative preferences
Sln terms of users rather than uses, such as the California statute
bidding condemnation by any county, city, or certain districts of
Property presently used by any other such governmental entity."12
is statute has been applied to bar condemnation by a city of prop-
Sof an irrigation district."1 This result, of course, is contrary to the
rrchy of uses in extant legislative declarations. Still another type
statutoryy condemnation preference is the subjection of riparian

MwAdministrative definitions of these terms have been stated. See Tex. Water
h'n, supra note 99, at 4-5.
ImWsm. R. CODE ANN. 1 90.03.040 (1962).
il UTAH CODE ANN. I 73-9-13c (1953).
uSCAI Cr. P1OC. CODE 1 1241(3) (West Supp. 1967).
USCity of Beaumont v. Beaumont Irrigation Dist., 63 Cal. 2d 291, 405 P.2d 377, 46
Sptr. 465 (1965).







[Vol. 46:10 M

rights to condemnation by appropriators.'1 This is a preference a
one system of water rights over another and is only one of seven
techniques utilized to bring about the transition from riparianism I
prior appropriation."s
In addition to legislative water-rights-condemnation prefercnc
of general application, preferences applicable only to condemna i
by certain condemnors are occasionally found in legislative delegate
of eminent domain. Illustrative is the Oregon statute declaring I.
irrigation of lands within irrigation districts"O or water 'onsrvad;
districts"T is "more necessary and more beneficial than any other
for irrigation."
Texas statutes provide many examples of preferences appliQ
to particular condemnors or classes of condemnors. Some water distsl
created by special act are forbidden to condemn any property o
by "any other political subdivision, city or town.""' For a few o02
districts, this prohibition is declared applicable only to exercise
eminent domain beyond district boundaries."' Most special acts a
ing water districts are silent on this subject, and the same is true
water district enabling acts and statutes applicable to municipal*
Similar are statutory exemptions of property devoted to certain .
One statute sweepingly prohibited condemnation of water rights
power purposes by any entity other than municipalities having a
ulation in excess of 25,000,1'2 but was repealed recently.12 Wate
provement districts cannot condemn property "used for the pul
of supplying water under the laws of this State."122 Water supply'
tricts cannot condemn "works in actual use for irrigating land
Fresh water supply districts cannot condemn property used for
-facturing industries and established and developed water powers
ing at the time of creation of such district."'24 Water control"
114 E.g., the statute involved in State ex rel. Emery v. Knapp. 167 Ran. 646. 2
410 (1949).
115 See generally Trelease, supra note 6.
11n Ou. REv. STAT. 1 545.088 (1967).
Tr Id. 1 552.260.
118 Eg., Refugio County Water Control & Improvement Dist. No. I. TEi.
STAT. ANN. art. 8280-155, 1 9 (1954); Canadian River Municipal River Water Aulor
art. 8280-54, 1 13(d); North Central Texas Municipal Water Authority, id. at.
il1Guadalupe.Blanco River Authority, id. art. 8280-106. 1 2(l) (1954); Lowear
rado River Authority, id. art. 8280-107, 1 2()0; Leon River Flood Control Dist,
8280.114, g 2(e); San Jacinto River Authority, id. art. 8280-121, 1 10(e).
120 Id. art. 7584.
121 Tex. Laws 1967. ch. 599, at 1379 (declaring that article 7584 was probably
repealed by section 3 of the Wagstaff Act).
122 TEx. REv. Civ. STAT. ANN. art. 7723 (1954).
128 Id. art. 7807f, I 9b.
124 Id. art. 7924. I


to any of the
would serve a
special act can
evidently regard
proposed uses,'
tuse for irrigati

(2) Legislative

When a h
another for a si
shall serve othc
ence is intended
conflict may a
sectionn, the nm
*enacted by ma
atrative agencies
'water are to be
i has been sugg(
'iion,'1 but no
The Calif
in City of Ben
city attempted
;distributing wr
,.Ing to the city'
able to the cit
[that in acting
policy shall be
next highest. Ir
Lupon a broad
'It is hereby d
,tse of water fo
.next highest t
these preferen
2l Id. art. 788
S12Jim Wells-
I5I. Duval County I
S27 Lower Rio
S*2 For a gene
'lrWaer. 27 RocY N
S19 Grow, sufp
130 42 Cal. Rpt


I .
K '

(Vol. 46:1054

a F"rence of
r one of several
i riparianism to

tion preferences
o condemnation
ative delegations
Le declaring that
,ter conservation
in any other use

ences applicable
ne water district
property owned
For a few other
y to exercises o
special acts cres
e same is true'q
'.o municipalities
d to certain rse
f water rights f6
ies having a po|
itly."' Water i0
I foqre purpol
Wa&. supply *
rigating lands.
y used for "mn
.ater powers e
afterr control
167 Kan. 646, 20o7

No. 1, TeX. REu.
<,r Water Author1
lority, id. art. so
il) (1954); Lower I
I Control Dist. L

was probably lm




improvement districts cannot condemn any property already devoted
to any of the purposes served by these districts unless condemnation
would serve a "superior" need.125 At least two water districts created by
special act cannot condemn property already devoted to a public use,
evidently regardless of the outcome of a weighing of the existing and
posed uses,1=2 and another is forbidden to condemn "works in actual
for irrigating lands."'12

) Legislative Standards Inferentially Applicable to Condemnation
Sof Water Rights
When a legislature manifests a preference for one water use over
other for a single purpose, without indicating whether the preference
all serve other purposes as well, a possible inference is that the prefer-
Sis intended to be generally applicable in all contexts in which the
oflct may arise, including condemnation proceedings. In this con-
tion, the most important question is whether the lists of preferences
ed by many legislatures for the guidance of state water adminis-
tive agencies in passing upon applications for permits to appropriate
ter are to be deemed applicable to condemnation proceedings.128 It
Been suggested that such statutory preferences govern condemna-
on,' but no court decision so holding has been found.
The California District Court of Appeal came close to doing so
City of Beaumont v. Beaumont Irrigation District,1'3 in which the
y attempted to condemn all the property of the district, which was
ributing water for irrigation and domestic uses and which, accord-
to the city's allegations, controlled the only source of water avail-
to the city. Section 1254 of the California Water Code provides
t in acting upon applications to appropriate water, the guiding
*icy shall be that domestic use is the highest use and irrigation is the
t highest. In approving this condemnation, however, the court relied
on a broader formulation of this policy in section 106 providing:
tis hereby declared to be the established policy of this state that the
Sof water for domestic uses is the highest use of water and that the
t highest use is for irrigation." This would appear to establish
preferences for all purposes, and the court regarded it as appli-
l Id. art. 7880-126.
I Jim Wells-Duval Counties Conservation & Reclamation Dist., id. art. 8280-138.
Duval County Conservation & Reclamation Dist., id. art. 8280-138, 1 9 (Supp. 1966).
12s Lower Rio Grande Authority, id. art. 8280-144, g 8f (1954).
IN For a general treatment of such statutes, see Trelease, Prferenres to the Use of
7 ROCKY MT. L. Rzv. 133 (1954).
U* Gros, supra note 2. at 283.
N I42 Cal. Rptr. 859 (Dist. Ct. App. 1%5).

1080 TEXAS LAW REVIEW [Vol. 46:105 1968
cable to condemnation. The supreme court, however, vacated think, pref
opinion on the ground that the case was governed by section 1241(3) ofd" sig
the California Civil Procedure Code, which forbids condemnation by Cou
any county, city, or certain districts of any property presently used by very
any other such governmental entity.131 The supreme court sought 14 supe
reconcile its result with section 106 of the California Water Code forna
observing that the district, in distributing water, would be obliged distr
give preference to demands for domestic uses. mest
Although statutory preferences applicable to applications to appo use
private water may be indicative of general state policy and may prop. prove
early be taken into consideration as a relevant factor in condemnation projp
proceedings, it is doubtful that these preferences should be regarded to p3
decisive of the condemnation issue. Legislative policy might reasonab! an a]
distinguish between standards governing acquisition of water ri been
iand criteria applicable to termination. Condemnation, which any
destroy an existing enterprise, is ordinarily more harsh than denial
an application for a permit to use water and.therefore should be sube and
to standards taking into account factors other than a stated hierarchy uses
uses. The importance of the use to be condemned to the local econoqujs egis
the availability of an alternative water supply, the wasteful nature.i Simil
the proposed use-all these could be relevant factors. Indeed, sup
statutory preferences for acquisition of water rights often are expreal es
subject to the overriding policy that the public interest be served.m jx
would be manifestly improper for a court to apply these preferences distri
a condemnation proceeding without regard to that paramount police
Finally, in states having separate and different sets of preferences shedi
granting permits and condemnation, which is the situation in exlke t
the legislature seems to have indicated thereby that the prefer nIe in th
for granting permits shall not be applied to condemnation. r
(3) Legislative Deference to Judicial Determination '
A Washington statute clearly states that an "inferior" use f
may be condemned for a "superior" use and that "the court sh 1
mine what use will be for the public benefit, and that use
deemed a superior one." The only limitation on judicial disc
that water rights efficiently applied to irrigation shall not be co
for the purpose of irrigation.'34 Washington does not have ttat lg
131 6 Cal. 2d. 291, 405 P.2d 377, 46 Cal. Rp r. 465 (1965).
Ita E.g., T.x. REV. Civ. STAT. ANN. arts. 7472c, 7506, 7507 (1954).
13d1d. arL2. 7471, 7472b. i
134 WASH. REV. CODE ANN. 3 90.03.010 (1962).

-** ,- A, -. ,

[Vol. 46:1054
, vi% d this
lion 1241(3) of
idemnation by
sently used by
court sought to
Vater Code by.
I be obliged to ,

itions to appro-.
and may prop-
I condemnation
I be regarded as
ight reasonably.
of water rights
n, which mayn
Than denial of
iould be subject
ted hierarchy 0i
local econoi Pd
steful nature t
.rs. Indeed, the
en are expressly
t be served.1"*
e pi rences in
ira h.nt poli
Preferences fo
tion in Texas,1
te preference li1

ior" use of ware
court shall det4
that use shall b
icial discretioa.1
iot be condemn.
ot have statutol

1 ;948]


preferences for acquisition of appropriative rights to which the courts
Might look for guidance. In cases involving this statute, the Supreme
Court of Washington has deemed the ambit of judicial discretion to be
very broad. A condemnor's use of water for irrigation was held to be
superior to a condemnee's use of water for the same purpose when the
Jfrmer would result in irrigation of more acreage."t Similarly, a water
'district's domestic use was held to be superior to an individual's do-
pfestic use."' This court has even preferred irrigation over municipal
me in a case in which the water rights in a stream were essential to
irovide power to lift water from the stream for an important irrigation
project, while the municipality, which desired to use the stream water
(t produce power to pump water from wells, could satisfy its needs in
pp alternative manner (i.e. by purchasing electricity).'S7 It would have
bcn difficult for the court to reach this result had it been governed by
y of the extant statutory condemnation preferences.
Although the Washington statute is perhaps unique in broadly
explicitly entrusting the process of weighing competing public
in water rights condemnation cases to the courts with almost no
active guidance, there are statutes in a number of other states that
larly authorize condemnation of water rights or "property" for
pior" or "more necessary" uses and at least inferentially leave the
on to the courts in many situations.'" Included in this group is a
iras statute applicable only to water control and improvement
Only one case, the Montana decision of City of Helena v. Rogan,"4
s any light on the scope of these statutes in water rights cases. It,
the Washington cases, indicates that judicial discretion is very broad.
thiscase, involving attempted condemnation by a city of appropriative
tion rights in a stream, the court refused to assume that municipal
Sof water are "more necessary" than irrigation uses. The court
that the condemnor allege and prove facts showing that the
or's proposed uses were more necessary than the condemnee's
The court also intimated, without deciding, that water rights
lltate ax r Andenn v. -Superior Ct.. I19 Wash. 406, 205 P. 1051 (1922).
Us Mak Elondo Water ust.. 56 wash. 2d 584, 354 P2d 917 (I960).
mSlate ex rel. Kennewick Irrigation Dist. v. Superior Ct., 118 Wash. 517, 204 P. I
m AcsAt C. Poc CoDD f 1240(3), 124]) (West Supp. 197); CAL. WATn C
(Wet 1956 (applicable only to condemnation of certain water rights by the
S"ater Resources r the C ta VHe Prot); HAWAn R-. Lw B-52
ECO_ Ann 17"703 (1948); Mon Riv. CODom ANN. I 93-99-4 (1947); NnL
rA. I 70-69 (1966): Nrv. Rr. STAT. 7.030 (1967); UTAH CODE ANN. 78-43-3 (1953).
ImTa. R Civ. STAT. ANN. art. 7880-126m (1954).
mXs Mont. 452, 68 P. 798 (1902).









could not be condemned if unappropriated water were present in the
same source sufficient to satisfy the condemnor's needs; the opinion was
silent on the relevance of the existence of available unappropriated
water in another source. The court also suggested that if the city seeks
a dependable water supply from a heavily appropriated stream, it must,.-
as a practical matter condemn the water rights having the earliest
priorities. The court criticized the city's attempt to condemn all watld
rights in the stream pro tanto to the extent of the quantity desired bf
the city. This criticism is sound, but the consequences may be unfaru'
tunate. The earliest priorities for irrigation typically are appurtenantM
to the best agricultural lands, which will be deprived of water by Mhei,
city's condemnation, while other wpter rights appurtenant to lands oif
inferior agricultural quality will remain unimpaired. If such is the caS.
the burden of showing that the city's use is superior is, or should
especially heavy.

(4) Legislative Deference to Administrative Determination '"
In view of the prominent role of state administrative waW
agencies in the creation of water rights, it might reasonably be sup
that a similar role would be played by these agencies in the subsequ
involuntary transfer of water rights from one public use to anoth
The issues in both types of proceedings are very similar. The agenc
expertise and information would be helpful in resolving those is
The agency's function of planning the development and alloca
of water resources on a state or regional basis conceivably could j
severely hampered if condemnation of water rights were beyond
control. Yet, despite these persuasive reasons for supervision of
demnation of water rights by the state water administrative ag
such supervision in the various states is either totally absent or mini
In only a few states has the state water administrative agency
delegated authority to supervise any aspect of condemnation of
rights. The Wyoming statute already referred to,"' after author
condemnation for "preferred uses" and specifying certain of these
further provides:
Where it can be shown to the board of control under the
provisions hereof that a preferred use is to be made, the pro'-
cedure for a change of such use shall embrace a public notice,
an inspection and hearing if necessary by and before the
141 .ee p. 1075.1 spra. 4

proper d
dent to i
This state
mine whether
the meaning
entire conder
trol, in Town
initiated in a
Board of Cor
evidently not
opinion on t
Evidently, no
rights have c
raises several
authorized to
whether the 1
tory definition
concerning tt
judicial revieL
v. Smith, the
change of use
preferred use,
deemed an a
apply for a p
the absence o
held that a cc
ate.'" The r;
and condemr
"public water
142 Wo. STA
lJ 28 Wyo. !
144 Correspo
In Wyoming also
mole S.
145 A.LASA 8
i4 City of '1
apparently exeml
Jtv. STAT. j 4S-


[Vol. 46:1054



Vol. ( 1054

esent in the
opinion was
lie city seeks
earn, it must
the earliest '.
inn all water
y desired by '
ay be unfor- ;
water by the
t to lands of ',
i h is the case,
:)r should be,

tination j
trative water
y be supposed
ie subsequent
,e to another. ,
Th agency's
t tH r issues.
ind allocation
ably could be :
*re beyond its
vision of con-
rative agency, ..
nt or minhnal.
e agency been
action of water.
er authorizing
n of these uses,

under the
e, the pro-
)lic notice,
before the




proper division superintendent, a report of such superinten-
dent to the board of control, and an order by said board."1
This statute appears to authorize the Board of Control to deter-
mine whether a proposed use by a condemnor is a preferred use within
the meaning of the statute. Although it might be inferred that the
entire condemnation proceeding is to take place in the Board of Con-
trol, in Town of Newcastle v. Smith 1 condemnation proceedings were
initiated in a court following approval of the change of use by the
Board of Control. Whether the proposed use Was a preferred use was
evidently not in dispute in this case. No light is shed by the court's
opinion on the nature of the board's role with regard to this issue.
Evidently, no other contested cases involving condemnation of water
rights have come to the Wyoming Board of Control.'" The statute
raises several questions, among them whether the Board of Control is
authorized to resolve conflicts not resolved by the statute. Regardless of
whether the board is so authorized or is limited to applying the statu-
tory definitions of preferred uses to sets of facts, there are also questions
concerning the finality of the board's determinations and the scope of
judicial review. For example, if, as is suggested by Town of Newcastle
v. Smith, the proper procedure is to obtain board approval of the
change of use, including a determination that the condemnor's use is a
preferred use, and then initiate a condemnation suit, is this suit to be
deemed an appeal from board determination of the preferred use
Alaska's recently enacted water use act requires a condemnor to
apply for a permit to appropriate water and thus makes possible the
coordination of creation and involuntary transfer of water rights."1 In
the absence of a statutory provision explicitly so requiring, it has been
held that a condemnor is not required to obtain a permit to appropri-
ate." The range of the Alaska statute is severely limited, however,
.and condemnation is expressly permitted only for the purpose of
"public water supply," which is preferred over all other uses. Preferred
S42 Wyo. STAT. ANN. 1 41-4 (1957).
l4I 28 Wyo. 371, 205 P. 302 (1922).
144 Correspondence in author's files. A recent field study of transfers of water rights
in Wyoming also failed to bring any cases in point to light. See Trelease & Lee, supra
m te 3.
S14 ALASKA STAT. 1 46.15.150 (1962); see Trelease, Alaska's New Water Use Act, 2
LANu & WATE L. REV. 1 (1966).
14 City of Tacoma v. State, 121 Wash. 448, 209 P. 700 (1922). A Nebraska statute
apparently exempts municipalities from the permit requirement for groundwater. NEa.
Rn. STAT. 3 46-647 (Supp. 1967).



S- ,.. ..~:i~ ~ '


[VoL 46:10W '

use status is granted to one who proves to the satisfaction of the
Director that the water will be devoted to a public water supply desit
nated as such by the Department of Health and Welfare."' The
applicant is required to furnish the names and addresses of all owner
of water rights that might be adversely affected by the preferred u.,4
and either submit copies of agreements on compensation for this in
pairment or post bond sufficient to cover estimated damages."* ca
The power of the New York Water Resources Commission to pai i
upon establishment of private and public enterprises for the "use and
distribution of water for potable purposes" has been held to extend to
condemnation of existing systems."9 This result was reached despite
a statutory declaration that the condemnor in question, the Great NeakL
Water Authority, was authorized to determine for itself whether its
proposed use would be for a "public use superior to the public use nl
the hands of any other person, association, or corporation."" A
subsequent determination by the Water Resources Commission thdt
there was no "public necessity" for a proposed condemnation byt
authority was upheld.1" The rationale offered by the court of appeal
bears significantly upon the policy considerations involved in a
to vest general supervisory authority over condemnation of water right
in the appropriate state water agency:15'
The commission is directed to determine whether any
plan to take over a water system is justified by public '
necessity, whether it is just and equitable to affected munici,
palities and people and whether it makes fair and equitable
provisions for the determination and payment of all legal
A limited role in condemnation proceedings has been con
upon the Texas Water Rights Commission, but its jurisdiction
not extend to water rights. Reference here is to the statutory
that any person or association of persons desiring to condemn a
of way over private lands and also the lands for pumping plant,
takes, headgates and storage reservoirs" shall make application to
Texas Water Rights Commission which, "if it deems advisable," M
2 4 ALASK ADoM. ConD tit. II, ch. 8, 804.01 (1967).
4s Id. 1 804.02.
14 Great Neck Water Authority v. Citizens Water Supply Co., 12 N.Y.2d 14,S
N.E.2d 786, 257 N.Y.S2d 331 (1962).
1se N.Y. Pus. AUTH. LAw I 1254(6) (McKinney 1961).
151 Great Neck Water Authority v. Water Resources Comtn'n, 22 App. Divr MI]
255 N.Y.S2d 754 (1964).
15s Great Neck Water Authority v. Citizens Water Supply Co., 12 N.Y2d 184,
187 N.E.2d 786, 789, 237 N.Y.S.2d 31, 334 (1962).


institute proceeding
of the applicants.1"
the showing that ca
yiduals satisfies the,
public use. This st
would be desirable
Rights Commission
An opportunity
uses is afforded by dt
of transfers of appr
has never been expl,
ings is focused upon
transfer, rather than
new uses.'1 Clark v.
that the discretion o
upon a transfer of ar
passing upon an appi
denied if the prop

B. Needed Legislati
As the above su
taken many different
for determining whei
placed by a new use
legislatures have not
deserve, at least if con
of reallocating water
policy is undesirable
that legislative silence<
1u Tea. REV. Civ. STAT.
l The damage that %
It is not a valid objec
S." which the water will ih
benefits to local highway
other taxpayers within
103 P2d 693 (1940).
S me 200 S.W.2d 674 (Te
io has supervisory author
I explicit statutory author
O. special act creating th<
l of "transfers" of ap
Ut. 8280-226, 1 7 (1959).



,L 460-54

)n the
iply desig-
re.41T The
all owners
Ferred use,
ir this im-
ion to pass
e "use and
Extend to
ied despite
Great Neck
whether its
iblic use in
Ition."1' A
rnission that
tion by the
t of appeals
Sa proposal
water rights

ler any

mun *
ill legal

en conferred '{
;diction does
iry provision
emn a "right
ig plants, in-
cation to the i
visable," may ^

N.Y2d 167, 187 i

App. Div. 2d 71.
N.Y.2d 167, 175.


institute proceedings in the name of the State of Texas for the benefit
of the applicants."1 The evident purpose of this procedure is to bolster
the showing that condemnation for an individual or groups of indi-
viduals satisfies the constitutional requirement that the taking be for a
public use. This statute, however, suggests the question whether it
would be desirable to broaden the jurisdiction of the Texas Water
Rights Commission over condemnation proceedings to embrace water
An opportunity for administrative weighing of contending public
uses is afforded by the common requirement of administrative approval
of transfers of appropriative rights, but apparently this opportunity
has never been exploited. The concern of the agency in these proceed-
ings is focused upon the consequences to other users of the proposed
transfer, rather than upon the relative value to society of the old and
new uses.'4 Clark v. Briscoe Irrigation Company'"5 indicates, however,
that the discretion of the Texas Water Rights Commission in passing
upon a transfer of an appropriative right is as broad as its discretion in
passing upon an application for a permit to appropriate, which may be
denied if the proposed use would be "detrimental to the public

B. Needed Legislation
As the above survey shows, legislatures of the various states have
,.taken many different approaches to the problem of establishing criteria
Sfor determining when it is desirable that an existing water use be dis-
i placed by a new use through eminent domain. It is also apparent that
legislatures have not accorded this problem the attention it seems to
deserve, at least if condemnation is to become a frequently used method
Sof reallocating water. What should be done? A legislative hands-off
policy is undesirable in view of the almost universal judicial reaction
that legislative silence immunizes existing public uses from condemna-
I11 TEL. Ra. CIT. STAT. ANN. art. 7583 (1954).
154 The damage that will prevent a change must be an injury to a water right.
It is not a valid objection to a change in the place of use that the land from
Which the water will be transferred will be decreased in taxable value so that the
benefits to local highway and school districts will be decreased and the burden on
other taxpayers within the taxing units increased. In re Robinson, 61 Idaho 462,
7 103 P.2d 693 (1940).
Is 200 S.W.2d 674 (Tex. Civ. App-Austin 1947. no writ), holding that the Commis-
lesa has supervisory authority over changes in place or purpose of use, despite absence
a explicit statutory authorization. Evidently, the only explicit grant of this power is in
Ie special act creating the Del Mar Conservation District, requiring Commission ap-
iova of "transfers" of appropriation permits to the district. Tmx Rvy. Czv. STAT. ANN.
,lat 8280-226, 1 7 (1959).


[Vol. 46:1054

tion. At some stage there should be a rational weighing of the relevant
considerations. Also undesirable is the uncertain search by courts for
legislative policy through inferences from various legislative pro-
nouncements on tangential matters. An ideal solution, if legislatures
were endowed with infinite wisdom, would be the declaration by legis-
latures of specific preferences. The problem, however, is too complex
to be solved in this manner. A particular water use that seems clearly
superior to another specified use in one setting might not be so regarded
in a different setting. The undesirable rigidity of statutory standards,
can be softened considerably by delegating the decision making to an
administrative body. This is easily accomplished in states that already
have a water administrative agency that creates water rights and super-,
vises them in various ways, especially if the standards governing the i
agency in the creation of water rights are declared subservient to the
paramount standard of promoting the "public interest." All relevant
factors should be considered, including impact on the economy, rela.-
tion to regional plans for water development, and availability to the.
condemnor of alternative sources of water with or without resort top
eminent domain.
Since "voluntary" transfers of water rights may be made under
threat of condemnation, as a practical matter administrative control
would have to embrace all transfers of water rights. Apart from the:
condemnation problem, such control is probably desirable,'" and'
already exists in varying degrees in some states.


Highways, airports, dams, and other facilities constructed or op,
rated by government often have a detrimental impact on neighbors
lands. Therefore, easements of various kinds typically are acquired tb
purchase or condemnation. If the injurious consequences of the facility
go beyond the scope of the easements acquired, affected landowner
usually may sue the governmental agency to recover compensation. iU
these suits were deemed actions to recover for the consequences of the
tortious conduct of government, plaintiffs would be thwarted by tht
doctrine of sovereign immunity in the absence of legislative co--t
to sue. Suits of this nature, however, as is suggested by the term
verse condemnation," are based on the theory that the government
action was lawful, not tortious, and that the government is merely
156 But see Trelease, Policies for Water Law: Properly Rights, Economic Foref,
Public Regulation, 5 NATURAL RE. J. I (1965).


required to
tion be pai
cause invel
sovereign i
tion'" and,
whose case
The doctri
sovereign ii
has been e
lead to unj
paired by
stage of a p
ties about I
claims of A
advance all
by the proj
to those ha
rights as h
are unacce
that may b
If the inju
facility, rat
agency to
albeit info
have been
supply, suc
water righi
of water fc

157 See. e
Inuerse Cond
158 Eg.,
l J. BEl




x I

the relevant
y courts for
slative pro-
ion by legis-
too complex' -
eems clearly
so regarded I
,ry standards
making to an
that already
ts and super-
ivering the
rvient to the
All relevant
:onomy, rela-
ibility to the
out resort to

made under
active control
rart from the
irab( and

ructed or op.-
1 neighboring.
e acquired byl
of the facility i
-d landowners
npensation. Il
quenpes of thde
wanted by the"
native consent
the term "in
s merely being
tic Forces, en
I *t



required to comply with the constitutional demand that just compensa-
tion be paid for property taken or damages for public purposes. Be-
cause inverse condemnation offers escape from the much criticized
sovereign immunity doctrine, it is attracting much scholarly atten-
tionri' and, presumably, the attention of attorneys for property owners
whose cases might be squeezed into the inverse condemnation mold.
The doctrine also appears to be playing a significant role in the de-
velopment of the law. Recent decisions are indicative of erosion of
sovereign immunity by expansion of inverse condemnation.1" Concern
has been expressed that excess zeal for inverse condemnation might
lead to unjustified and seriously harmful applications of the concept.o.1
Water rights, of course, may be among the types of property im-
paired by public facilities and thus have been the subject of inverse
'condemnation. It may often be anticipated during the land acquisition
,stage of a project that some water rights will be impaired, but uncertain-
Aties about both the physical consequences of projects and the validity of
claims of water rights make it difficult, if not impossible, to acquire in
|advance all water rights (and only such rights) that will be impaired
by the project. When it becomes evident that a project will deny water
ito those having provable rights to the water, it is proper to treat those
rights as having been taken and award compensation. The alterna-
tives--denial of compensation or enjoining operation of the project-
are unacceptable.
Although it is often the injured party who invokes the inverse
condemnation concept in these cases, the concept is a two-edged sword
that may be wielded by the agency constructing or operating a facility.
If the injured party seeks to enjoin construction or operation of the
facility, rather than to collect compensation, it is advantageous for the
agency to assert that it has exercised the power of eminent domain,
,albeit informally. The public facility that impairs water rights may
have been constructed for purposes other than acquisition of a water
ppply, such as a bridge that alters stream flow. Similar impairment of
water rights, however, also could result from diversion or withdrawal
of water for public use. Thus inverse condemnation may be regarded

1T7 See, e.g.. Mandelker, Inverse Condemnation: The Constitutional Limits of Public
4ponsibility, 1966 Wis. L. REv. 3; Van Alstyne, Statutory Modification of Inverse Con-
r tion: The Scope of Legislative Power, 19 STAN. L. REV. 727 (1967): Comment.
Condemnation in Texas-Exploring the Serbonian Bog, 44 TEXAS L. REV. 1584
S158 E.g., Thorriburg v. Port of Portland, 233 Ore. 178. 376 P.2d 100 (1962).
18 ij. fBEUSHERt, LAND USE CONTROLS 538 (4th ed. 1966) discumses the suggestion that
itmpensation might be recovered for invalid exercises of tie police power.




-' -W


[Vol. 46.1054

by the prospective public water user as a substitute for formal coni
demnation of water rights. One commentator predicts, with evident
approval, that it will become common practice for those endowed with' '
eminent domain to eschew formal condemnation, proceed to help themn-
selves to the water they need and can get, and then sit back and wait for
claims to be filed.'10 The functions of water rights adjudication and ,
condemnation would thus be combined in a single proceeding, which I
could become the principal mode of reallocating water.
Many aspects of such a practice would be appealing to condemnors.
The sometimes difficult problem of describing the rights to be con
demned'61 can be avoided. Prolonged delays in project initiation occa-
sioned by the multiplicity of parties and the uncertainties of their '
claims, both of which are characteristic of water rights litigation, could ;|
be circumvented.'62 Needless purchase of rights that subsequent event
show are not required could be avoided. Also, some claims might never
be presented or might be barred by statutes of limitation. On the otheT
hand, condemnors following such a practice would expose themselves
to an enlarged risk that injunction suits would be filed against them
In addition, financing of the project might be made more difficult by
delay in determination of the cost of acquiring water rights. From a
broader perspective, a policy of acquiring water rights by self-help by,,
those having eminent domain may be criticized on the grounds that i;
is rude and arrogant, that it would undermine the security of all water
rights in the source of supply by delaying identification of the rights
condemned, that damage might be done by condemnors who it is late
decided lacked the requisite authority, that owners of water right
might be barred too readily by statutes of limitation, and that admipit
trative control of water allocation, planning, or development might
The cases do not yet reflect a trend toward deliberate reliant
upon inverse condemnation as a means of acquiring a water supply
Some of the cases involving inverse condemnation of water rights
cases in which water rights were held to have been taken by
160 Gross, supra note 2, at 283.
16 E.g., Aliso Water Co. v. Baker, 95 Cal. 268, 30 P. 537 (1892); City of Helena .
Rogan, 26 Mont. 452, 68 P. 798 (1902).
le2 Condemnors, however, often are permitted, at least upon posting securitT, to
possession pending completion of the condemnation suit. See cases cited note 176 mfn.
63 To this list should be added the lament by Murrah. C.J., in WS. Ranch Co.
Kaiser Steel Corp.. 388 F.2d 257, 262 (10th Cir. 1968), that Inverse condemnation
result in unwise federal jurisdiction: "[I]f Kaiser had followed the intricately
statutory procedure for acquiring land by condemnation, the issues presented and
here could have been litigated in an orderly manner in the courts of New Mexico when
they belong."

; ;




1968] C(

tion or operation
supply. Illustrati
straightening pn
tion water rights
point of diversio.
obtaining of a v
been incidental
trained. The mot
which grew out c
nated developme
of Friant Dam. 1
constructed and
taken by inverse
not entitled to i
litigation comme
stream flow by c
water to which I
criticized for hai
water rights thai
justified in view c
voluntarily in ad'
in the main were
Another gro
controversies, noi
facilities, in whicd
on inverse conder
claim of existing
of cases recognize
condemnation by
landowners) in st

164 363 S.W.2d 444
225 N.W. 679 (1929).
1s 372 US. 60 (1
ie "[T]he Govern
stream claimants ...
the manner in which
Before the Subcomm. c
Insular Afairs, 88th C
1? Graham, The -
IW CAUF. L. REV. 588,
168 Hillside Water
v. Merced Irrigation D
Ip Water Co.. 100 Wash.
Il Williams v. Cit
v. Knapp. 167 Kan. 54

o1. 46:1054

rmC n.
h evident
,wed with
lelp them-
d wait for
action and
ng, which.

o be con-
ition occa
s of their
ion, could
ent events
ight never
t the othec'i
themselv" i
inst then14
difficult by
ts. From a
Iff-help by
nds that i'
,t all water;
thc hts
it is iater
after right,
it admini
t might
te reliance
ter suppIi
y construe

of Helenh
:urity, to "i1
176 infn.
Ranch Ca.
ately d
land deddl
-~ wb.




tion or operation of facilities for purposes other than obtaining a water
supply. Illustrative is San Antonio v. Lewis,'" which held that a river-
straightening project for the purpose of flood control had taken irriga-
tion water rights by preventing stream flow from reaching the irrigators'
point of diversion. In other cases, a purpose of the facility has been the
!obtaining of a water supply, but the impairment of water rights has
!been incidental rather than the major source of the supply to be ob-
tained. The most noteworthy case of this type is Dugan v. Rank,165
'which grew out of the comprehensive Central Valley Project for coordi-
onated development of California's major rivers, including construction
of Friant Dam. This case, holding that water rights below Friant Dam,
constructed and operated by the Bureau of Reclamation, had been
taken by inverse condemnation and that water rights claimants were
not entitled to injunctive relief, was the culmination of protracted
litigation commenced by the water rights claimants after curtailment of
stream flow by operation of Friant Dam allegedly deprived them of
water to which they were entitled. The Bureau of Reclamation was
criticized for having reduced stream flow prior to acquisition of all
water rights that would be affected,'" but this criticism seems un-
justified in view of the substantial efforts of the United States to acquire
voluntarily in advance affected water rights in the region, efforts which
the main were successful.107
Another group of inverse condemnation cases are water rights
controversies, not necessarily involving construction or operation of
dlities, in which a party claiming to have existing water rights relies
inverse condemnation only as an alternative ground in the event his
im of existing water rights does not prevail.'" Still another group
cases recognizes, with legislative sanction, what in effect is inverse
demnation by denying injunctive relief to riparians (or overlying
downers) in suits against appropriators.16 In this context, inverse

164 363 S.W.2d 444 (Tex. 1963); see Nine Mile Irrigation Dist. v. State, 118 Neb. 522,
N.W. 679 (1929).
10 372 US. 609 (1963).
16"IT]he Government arbitrarily dosed the dam and curtailed the supply of down-
daimants Thousands of citizens were vocal in their bitter condemnation of
Scanner in which the Federal Government handled the matter." Hearing on S. 1275
the Subcomm. on Irrigation and Reclamation of the Senale Comm. on Interior and
Agairs, 88th Cong., 2d Ses. 168, 177 (1964) (Statement by Harold W. Kennedy).
,InrGraham, The Central 'alley Project: Resource Development of a Natural Basin,
Aur. L. REv. 588, 595 (1950).
IM Hillside Water Co. v. City of Los Angeles, 10 Cal. 2d 677, 76 P.2d 681 (1938); Collier
Irrigation Dist., 213 Cal. 554, 2 P.2d 790 (1931); Habermann v. EHensberg Gas
water Co., 100 Wash. 229. 170 P. 571 (1918).
N Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 (1962); State ex rel. Emery
Knapp, 167 Kan. 546, 207 P.2d 440 (1949); Cline v. Stock, 71 Neb. 70, 98 N.W. 454


: '' 'i



TEXAS LA W REVIEW [Vol. 46:1054

condemnation is simply one of several methods utilized in various
western states for subordinating riparian rights (at least in water not
being beneficially used) to the prior appropriation system.'70 The water
rights affected are typically of little value and may be disposed of by
some methods without compensation at all."1 There are a few instances
of brazen seizures of water without color of right by governmental units
or others having eminent domain powers, but in these cases it may be
the injured party who invokes inverse condemnation." 7
Efficacy of iiverse condemnation as a mode of acquiring after r
rights depends largely upon its vulnerability to injunctive relief. One
whose water rights are threatened by an informal taking can, if he acts
before the taking occurs and before the development of circumstances
that would make it inequitable to grant equitable relief,"1 obtain an
injunction restraining the threatening acts until formal condemnation
proceedings are initiated and completed."' This result is buttressed by
the common constitutional requirement that compensation be paid in .
advance of taking.17 In many states, however, the defendant is per'
mitted to satisfy the constitutional requirement, and avoid an injunc-
tion by filing a cross-action to condemn and posting security.1' MorC
difficult to overcome are those statutes, few in number and limited in
scope, that seem explicitly to require resort to formal condemnation."*
Of course, there will be no escape from injunction if the defendant
lacks authority to condemn, if the proposed use is not a public use, orif

(1904), ag'd on rehearing. 71 Neb. 79, 102 N.W. 265 (1905); McCook Irrigation & WatJ
Power Co. v. Crews, 70 Neb. 109, 96 N.W. 996 (1903), ag'd on rehearing. 70 Neb. 115. l;a|
N.W. 249 (1905). The Nebraska cases were limited in Wasserburger v. Coffee, 180 Nek'
149, 141 N.W.2d 738 (1966).
170 See Trelease, supra note 6.
itI Id.
172 Lika v. City of Anacortes, 167 Wash. 259, 9 P2d 88 (1932).
173 For a discussion of such circumstances sec Collier v. Merced Irrigation Dist., 211
Cal. 554, 2 P.2d 790 (1931). .
174 Montpelier Milling Co. v. City of Montpelier, 19 Idaho 212, 113 P. 741 (191
Barrington Hills Country Club v. Village of Barrington. 357 Ill. II, 191 N.E. 239 (1
Loup River Public Power Dist. v. North Loup River Public Power Irrigation Dim,
Neb. 141, 5 N.W.2d 2.10 (1942); Sa)les v. City of Mitchell. 60 S.D. 592, 245 N.W. 31S
(1932): Fort Worth & Rio Grande Ry. v. Jennings. 76 Tex. 373, 13 S W. 270 (1890).
17i1E.g., TEx. CoNsr. art. 1, 1 17; 6 P. Nicnois, EMINrNr DOMAIN 1 28.22[3] (Sd
ed. 1965).
17 Desert Waters. Inc. v. Superior Ct.. 91 Aril. 163. 370 P.2d 652 (1962); Cit
Houston v. Adams, 154 Tex. 448, 279 S.W.2d 308 (1955). Contra, Stale v. Yelle, 46
2d 166, 279 P.2d 645 (1955).
177 HAwa.I RFV. LAws 87-7 (1955). ("No actual construction of the physical eat
of the Molokai project shall be undertaken unless water rights adequate to the
poses of the project have been acquired .. .'3; Trx. REV. Civ. STAT. ANN. art. 7
(1954) (authorizing water control and improvement districts to shift water within
district from inferior to superior uses, but stating that "Whenever such diversion
withdrawal will affect a vested right, such withdrawal of diversion must be after
eration proceedings as provided for in Section 126 of this Act").

5. 1968] COI

satisfactory assura
pointed out that
ignored or deeme
compensation afte
riding considerati
caused losses that
theory of inverse c
injunctive relief a
The United
apparently by statL
S tion.'18 In the Rar
that section 7 of tl
Interior to acquit
cess," should be cc
proceedings, and I
dam.r18 The court
marily disposing
correctly held tha
quoted-from the
Central Valley Prc
water rights "by p
asserted that the q
Sdictum in earlier
section 7 of the Ret
Sof that section may
of whether the tern
condemnation (whi
nothing to indicate
ding inverse conder
tion in the Rank a
and similar statute
appears unlikely th

178 Game & Fish Col
Star Gas Co. v. City of F
provement Dist. No. I v. I
SIT Van Alstyne. Stai
SLegislative Power, 19 STrA
180 United States v.
181 Rank v. Krug, 14
s18 California v. Rat
Conservation Dist., 360 F.
183 Dugan v. Rank, 3
84 Hearings on S. 12.

/ol. 46:1054

in Cous
I water not
SThe water
posed of by
:w instances
mental units
-s it may be

firing water
relief. One
in, if he acts
'i obtain an
,uttressed by
Sbe paid in
dant is per-
d an injunc-
rity."1 More
d limited in
te defendant
blic use, or if

,Wati Water
;0 Neb. 115. 102
Coffee, 180 Neb.

nation Dist., 213
3 P. 741 (1911);
N.E. 239 (1934);
nationn Dist., 142
2, 245 N.W. 390
28.22[31 (3d rev.
(1962): City of
Yelle, 46 Wash.
physical features
|uate to the pur.
ANN. art. 7880-4a
water within the
uch diversion of
Sbe after consid.



satisfactory assurance of compensation cannot be given."t It has been
pointed out that such deficiencies (lack of authority, etc.) are often
ignored or deemed immaterial by courts in cases brought to recover
compensation after the taking or damaging has occurred.'17 The over-
riding consideration in those cases is that governmental action has
caused losses that will go uncompensated unless sued on under the
theory of inverse condemnation; this consideration is not present when
S injunctive relief against threatened action is sought.
The United States is not barred by the fifth amendment, nor
apparently by statute, from physical takings in lieu of formal condemna-
tion.'18 In the Rank case, however, the district court took the position
that section 7 of the Reclamation Act, authorizing the Secretary of the
Interior to acquire property by "condemnation under judicial pro-
cess," should be construed as requiring resort to formal condemnation
proceedings, and granted an injunction restraining operation of the
dam.18" The court of appeals disagreed.182 The Supreme Court, sum-
marily disposing of the issue, stated that the court of appeals had
correctly held that physical seizure of water rights was authorized,
quoted-from the Rivers and Harbors Act of 1937 authorization of the
Central Valley Project-language instructing the Secretary to acquire
water rights "by proceedings in eminent domain or otherwise," and
Asserted that the question had already been settled by implication or
dictum in earlier cases."8 The opinion, however, failed to refer to
section 7 of the Reclamation Act. Thus some doubt about the meaning
of that section may remain, but is probably not substantial. Regardless
of whether the term "judicial process" is broad enough to cover inverse
Condemnation (which, after all, does involve judicial process), there is
nothing to indicate that the term was used for the purpose of forbid-
, ding inverse condemnation. Moreover, despite the district court injunc-
S tion in the Rank case, and fears of government officials,'" even if this
S and similar statutes were construed as forbidding informal takings, it
Appears unlikely that such legislation would properly be enforceable

1?s Game & Fish Comm'n v. Farmers Irrigation Co., 426 P.2d 562 (Colo. 1967); Lone
Star Gas Co. v. City of Fort Worth, 128 Tex. 392, 98 S.W.2d 799 (1936); Fort Worth Im-
provement Dist. No. I v. City of Fort Worth. 106 Tex. 148, 158 S.W. 164 (1913).
IT 7Van Alstyne. Slatutorv Modification of Inverse Condemnation: The Scope of the
Legislative Power. 19 STAN. L. Rrv. 727. 752, 781 (1967).
s10 United States v. Dow, 357 U.S. 17 (1958); Hurley v. Kinkaid. 285 U.S. 95 (1952).
181 Rank v. Krug. 142 F. Supp. 1, 89 (S.. Cal. 1956).
s18 California v. Rank, 293 F.2d 340 (9th Cir. 1961): accord. Turner v. Kings River
Conservation Dist., 360 F.2d 184 (9th Cir. 1966).
I83 Dugan v. Rank. 372 U.S. w00 (1\6a).
184 Hearings on S. 127>, supra note 166, at 7. 8. 16.



1092 VT S E4W "EVIEW [Vol. 46:1054

by injunction.185 The public interest in completion of water projects
usually outweighs the relatively slight interest of the property owner
(whose real concern is in getting paid) in the sequence of taking and
In the wake of Dugan v. Rank, legislation purporting to require
formal condemnation in connection with federal projects was proposed.
as a subsection of one of a spate of bills dealing with federal-state
relationships in water development.1" This context indicates that thli
proposal was based primarily upon opposition to the dominant role of
the federal government in water development, which had been high-
lighted in a number of recent Supreme Court decisions, rather than
upon antipathy for inverse condemnation. Had the latter been the real
target, similar bills would surely have been introduced contempt
raneously in state legislatures, but no such bills seem to have been
forthcoming. The proposal was opposed on the grounds that, due to the
impossibility of foreseeing the exact impact of development upon water
rights, there would be unreasonable risk of injunction suits and costs
of water rights acquisition would be excessive."1 The proposal was not
enacted. A subsequent bill,18 also not enacted, provided that if formal
condemnation proceedings were not commenced, no statute of limita-
tions should run against a suit by an injured party against the United
States for compensation for impairment of water rights. This may not
be as objectionable as prohibition of inverse condemnation, but it has
been suggested that a better approach would be to extend the present
six-year statute of limitations to a longer, but definite, period.'18
Determination of the date of accrual of a cause of action for inverse
condemnation typically poses a difficult problem, which is compounded
in water rights cases. Since water rights are usufructuary, diversions or
withdrawals will not be actionable in the absence of actual interferendms
with uses by owners of water rights.'90 Assuming such interference e
there still will be no taking of water rights if the interference is chari
acterized as a trespass rather than a taking.'19 This is mainly a prob
for the injured water user, since a suit by him for inverse condemn
e18 Hurley v. Kinkaid, 285 US. 95 (1932). i
Is S. 1275. 88th Cong., 2d Sess. 1 1(4) (1963). This and related bills are discume
Morrale, Federal-State Conflicts Over Western Waters-A Decade of AUlemped "Ca
lying Legislation," 20 RurrTm L. REV. 423 (1966).
187 Hearings on S. 1275, supra note 166. at 7, 8, 16, 123-26.
3Bs S. 1636, 89th Cong., 2d Sess. 4 (1965).
189 Morreale, supra note 186, at 509.
10o E.g., Pabst v. Finmand, 190 Cal. 124, 211 P. 11 (1922).
19t See California v. Rank, 293 F.2d 340, 357 (9th Cir. 1961).


tion of water
tion."' In ad
the extent of
can recover.
defendant to
essentially on
in the Rank
the point un
in that case, t
In a case in
for the purp
case in which
establishing a
In circur
interference v
a mode of ac
demnation of
overlying lan<
ing of ground
rights cannot
important pra
for the purpose

The most
* acquiring water
portant factor

"2 Argued ua~
Co., 339 S. 725 (
la3 Eg., Murpl
Ing a one-year stat
14 Mud Creek
1078 (1889); ct. Mol
195 City of Cor
IM In Californ
taken by inverse co
7 P.2l 681 (1938).

[Vol. 46:1054

wat \rojects
property owner
of taking and

ing to require
was proposed
h federal-state
icates that this
minant role of
iad been high-
is, rather than
r been the real
ced contempo-
to have been
hat, due to the
ent upon water
suits and costs
oposal was not
1 that if formal
atute of limita-
inst the United
. This may not
tion, but it has
nd present.
peri .89
:tion for inverse
is compounded
y, diversions or
ual interference
ch interference,
reference is char-
ainly a problem
'erse condemna-

bills are discussed ia
.' AUlempted "Clart.


tion of water rights may be held to be premature1" or barred by limita-
tion.'" In addition, the plaintiff also may have difficulty in ascertaining
the extent of taking, which will affect the amount of compensation he
Scan recover. From the standpoint of the defendant claiming inverse
*f condemnation to avoid injunction, it would seem relatively easy for the
defendant to show that his acts were takings, the question turning
essentially on his own manifested intention. Yet, this was a vexing issue
in the Rank case for the Government, which was unable to prevail on
the point until the Supreme Court decision. As seen by lower courts
Sin that case, the Government's manifested intention has been equivocal.
S In a case in which inverse condemnation is being used deliberately
: for the purpose of obtaining water rights, as distinguished from the
case in which a government facility incidentally impairs water rights,
establishing a taking should be no problem.
In circumstances in which it is impossible to create an actionable
interference with water rights, inverse condemnation is not available as
a mode of acquiring water rights. Just as prescription will not "run
upstream,"1'* diversion from a stream cannot result in inverse con-
demnation of upstream water rights. Similarly, in those states where
overlying landowners are accorded no legal protection against lower-
ing of ground water levels by pumping of other wells,1" ground water
rights cannot be acquired by inverse condemnation.'" This is an
S important practical limitation upon the utility of inverse condemnation
S for the purpose at hand.

The most unattractive aspect of eminent domain as a mode of
Acquiring water rights is its cost. The magnitude of cost may be an im-
portant factor in weighing alternative projects for obtaining water
' Paradoxical as it may seem, the state, which confers appropriative

* 1t Argued unsuccessfully by the Government in United States v. Gerlach Live Stock
Co., 339 U.S. 725 (1950).
. E.g., Murphy v. Raleigh Utility Dist., 213 Tenn. 228, 373 S.W.2d 455 (1963). hold-
lag a one-year statute of limitations a bar to action for land erosion due to utility plant
1 Mud Creek Irrigation, Agriculture & MEg. Co. v. Vivian, 74 Tex. 170, 11 S.W.
I78 (1889); c. Moll v. Boyd. 116 Tex. 82, 286 S.W. 458 (1926).
9 l t City of Corpus Christi v. City of Pleasanton, 154 Tex. 289, 276 5.W.2d 798 (1955).
i I in California, where pumping may be actionable, ground water rights may be
takn by Inverse condemnation. Hillside Water Co. v. City of Los Angeles. 10 Cal. 2d 677.
6 P.2d 681 (1938).







rights in "public" water freedf charge, must pay the full market value
of such rights upon a compulsory retaking."1 The same measure of
compensation is applicable to condemnation of riparian rights and
rights in ground water, although these rights are incidents of land
ownership and may not have affected the price of the land when
severed from the public domain. There have been only a few devia- i
tions from the policy of creating private property, permanent and
transferable, in this scarce resource vital to human existence."I The
relatively new Iowa water code limits water permits to a renewable
term of ten years,'10 and the Model Water Use Act limits water permits
to a term of 50 years.0 A California statute, first enacted in 1913, in-
corporates in appropriation permits and licenses a condition restricting
condemnation awards for acquisition of such rights by most condemnors
to "the actual amount paid to the state therefore .."" A similar
Oregon statute is limited to instances in which the "property used in
connection" with the water rights is also acquired and is evidently of
primary importance in public acquisition of hydroelectric plants.m:"
Conditions inserted in some hydroelectric licenses by the Federal

Power Commission similarly withhold compensation for the full mar-.
ket value of water power.203 These, however, are exceptions to the
general rule.
Uncertainties characteristic of water rights make it difficult to
place a value on them. The availability of the subject matter of water
rights at any particular time or place is dependent upon the vagaries
of nature and the acts of man. For example, a condemnor need not pay
for water he diverts which otherwise would, due to seepage or evapora-
tion, never have reached the condemnee's point of diversion.'" The
physical consequences of a new diversion or withdrawal, especially of !
ground water, may be unforeseeable.20 Moerover, water rights are not
enforceable claims to any particular molecules of water, but are rights
to use water from a certain source to the extent that other rights are
not impaired. In other words, they are usufructuary and relative. Also,.
rights are defined in extremely vague terms, such as the riparian right

197 See generally 4 P. NiCHOis, EMINENT DOMAIN I 13.23 (3d iev. ed. 1965).
s98 This policy is defended in Trelease, supra note 156.
199 lowA CODE ANN. I 455A.20 (Supp. 1968).
200 MODEL WATr USE ACT g 406, at 35 (1958).
201 CAL.. WATE CODE 11 1392. 1629 (West 1956).
202 ORE. REv. STAT. 5 537.280 (1967).
203 For discussion see Sax, Licenses-Restricting Private Rights in Public Resourcma
7 NATURAL RES. J. 339 (1967).
204 Sigurd City v. State, 105 Utah 278, 142 P.2d 154 (1943).
2so See, eg.. United States v. 4.105 Acres, 68 F. Supp. 279 (N.D. Cal. 1946).



to make a "rea:
Strive rights to "
to condemnatii
: brought about
right in strear
S volume of war,
been diverting
I against impair
use, or place of
tions in the la
S, cedures for adj
Impossible, hal
in most wester:
certainties do i
Swill be either e
In additic
of water rights
theless, despite
"market value
in evidence wl
chaser would L
When tht
or some other
water rights ai
by the differed
.with and with
employed," i
Valuable than
water rights a:
ply. Thus, if
the award ma
value of the i
case has been
poses to which

208 See. e.g., (
20T Ellis. Ia
Smith eds. 1966),
20 United St.
s20 Dugan v.







[Vol. 46:1054 !!




VoL 46:1054

lar(l alue
measure of
rights and
nts of land
land when
t few devia-
inanent and
mee.os The
a renewable
after permits
in 1913, in-
n restricting
o01 A similar
erty used in
evidently of
ic plants.02
the Federal
he full mar-
tions to the

difficult to
ter o water
the ,aries
teed not pay
or evapora-
sion.24 The
especially of
ghts are not
it are rights
,r rights are
'lative. Also,
parian right


'iblic Resources,


to make a "reasonable" use of water and the restriction of appropria-
tive rights to "beneficial use." A complication of particular relevance
to condemnation is the metamorphosis of a water right commonly
S brought about by its transfer. A transferee of an appropriative water
S right in stream flow is not necessarily entitled to divert the same
volume of water, or to divert at the same rate, as the transferor has
been diverting since interests of other appropriators are protected
against impairment caused by changes in point of diversion, nature of
Suse, or place of use." 2 Still other uncertainties are caused by imperfec-
tions in the law, such as failure to provide, or utilize, adequate pro-
S cedures for adjudication of water rights. It has been asserted that these
Uncertainties, by making determination of a fair price difficult or
impossible, have seriously impeded voluntary transfers of water rights
in most western states.207 When eminent domain is involved, these un-
certainties do not block transfer, but they increase the risk that awards
will be either excessive or inadequate.
In addition to the above complications, the infrequency of sales
of water rights makes unrealistic the search for market value. Never-
theless, despite the absence of recent sales of water rights in the region,
S"market value may be arrived at upon a consideration of all the facts
in evidence which can reasonably be expected to affect the price a pur-
chaser would have given for the property."'20
When the condemned water rights have been used for irrigation
or some other purpose affecting the value of the land to which the
water rights are appurtenant, an easy solution is to measure the award
by the difference between the market value of the condemnee's land
With and without the water rights. Although this measure is commonly
1 employed,20 it may be unsatisfactory when the proposed use is more
valuable than the existing use, which is typically the situation when
water rights are condemned for the purposes of acquiring a water sup-
ply. Thus, if irrigation rights are condemned for municipal purposes,
the award may be deemed too small if it fails to take into account the
value of the water for municipal use. The proper measure in such a
case has been held to be "the market value of the water for the pur-
poses to which it was adapted as well as to the uses to which it had

206 See, e.g. Green v. Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775 (1962).
2so Ellis, Water Transfer Problems: Law, in WATER RESuEAa 233 (A. Kneese & S.
Smith eds. 1966).
a2 United States v. 4.105 Acres, 68 F. Supp. 279. 292 (N.D. Cal. 1946).
20o Dugan v. Rank, 372 US. 609 (1963); Suflield v. State, 92 Ariz. 152, 375 P.2d 263





1 rlc19u


Th mear~n





I -




; :--.-,-i

.. ~i c


giving the j
*quiring ad-
ce the con-
the right to

f removal of
indicated that
vard for tak-
e the cost of
for existing
r reduced in
be taken into
value of the
:nant.'21 Such

distributed to
:rvice corpora-
the customers
mnor is faced
entire system
leave any sur-
Sin ot of all

ademnation of
t protect a well
g by other well
supply his needs
from neighbor-
nr the same rea-
Iire all the land
Ay. If the con-
by selling most

(dissenting opinion).

Meeks cO Daley Water
nal Co., S7 Cal. Rptr.
27 S.W.2d 798 (1955).
Mont. 1960) (denying

of the overlying land subject to restrictions forbidding or limiting
withdrawals of ground water, the objection may be raised that this is
"excess condemnation," invalid because not for a "public use."2" A
similar problem exists in acquisition of riparian rights. Condemnation
of the water rights of one riparian does not provide an assured supply
since it is subject to the reasonable uses of other riparians, who may
be permitted to alter the nature of their uses and increase their de-
mands upon the available supply.2" As for appropriative rights, it is
evident that senior rights must be acquired in order to obtain a depend-
able supply. The cost of such rights is likely to be inflated, not only
Because they are senior, but also because they typically are appurtenant
to the best agricultural lands.
One means of reducing the cost of water rights acquisition which
is often available is the exchange of contractual rights in project water
or rights in other sources which are lIss useful to the condemnor than
the condemned rights. In negotiated purchases of water rights, this is
a common practice.220 Can a condemnee be forced to accept substituted
water rights, contractual or otherwise, in lieu of money, in compensa-
tion for the rights taken? One objection raised is that the state consti-
tutional requirements of just compensation have been construed to
require compensation in money.221 At least in some cases, a satisfactory
answer to this objection is that the substituted assurance of water
should be characterized, not as compensation, but as a limitation upon
the taking. Thus, a riparian was not allowed full recovery in an inverse
condemnation proceeding against an appropriator constructing a
reservoir upstream who stipulated that a specified flow would be
realized regularly for use of the riparian, the latter's rights being
Seemed to have been only partially taken.m It would be pushing this
concept too far to suggest that it would cover substitution of water from
another source. This may be allowed, however, as a "physical solution,"

S21 See Annot., 6 A.L.R.3d 297 (1966). A negotiated purchase of overlying lands, fol-
l towed by resale of part with restrictions, was upheld against a suit for cancellation or
, refonration of deeds for alleged fraudulent representations by purchaser as to purpose
Sof purchase. Kopilowit v. City of El Paso, 415 S.W.2d 6 (Tex. Civ. App.-Eastland 1967.
'I writ ref'd n.r.e.).
S29 g"It is settled, then, that the grant of a riparian right is binding between grantor
Sand grantee. It is equally well settled that such a grant cannot affect other riparian
S n See, e.g.. Commissioner of Reclamation Memorandum of 1950. Administrative
Practice in Regard to Federal Appropriation of Water, in Hearings on S. 1275, supra
orte 166, at 310, 316.
22 Shurtleff v. Salt Lake City, 96 Utah 21, 82 P.2d 561 (1938). See generally 3 P.
NIcBOLs, EMINENT DOMAIN I 8.2 (3d rev. ed. 1965).
22 Collier v. Merced Irrigation Dist., 213 Cal. 554, 2 P.2d 790 (1931).


r I



if it can be justified on the ground of prevention of waste.m To
extent permitted in the jurisdiction, special benefits to the conde
land from the project, such as regularizing erratic stream flow, re moue 4
- .ing the risk of flood damage, or increasing power head, may be set
against condemnation awards.224
223 Lodi v. East Bay Municipal Utility.Dist., 7 Cal. 2d 316, 60 .2d 439 (19 6). i B
224 Collier v. Merced Irrigation Dist., 213 Cal. 554, 2 P.2d 790 (1931); Amory v. ,
monwealth, 321 Mass. 240, 72 .E.2d 549 (1947); American Woolen Co.,v. State, 12s ALEAN
186, 211 N.YS. 149 (Ct. Cl. 195). On the subject of. the setoff of benefit, "tl CHAuIo J.
great diversity of opinion, and more rules, different from and inconsistent wa A4rtic Edit
other, have been laid down than upon any other point in the law of. eminent dm
3 P. NICHOu, EMINENT DOMAIN g 8.62 (d Cev. ed. 1965). R.o' ,o HUI .
Reuelws Edih

EOwiN H. At
j fDARYaL B. C'

rAtthur P. BaJ
W Jack BD

..-g am W. Davis,
*tFn F. Fulle

otherwise i
ike of member

AeL &

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