Title: Water Use Under Common Law Doctrines
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Permanent Link: http://ufdc.ufl.edu/WL00003139/00001
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Title: Water Use Under Common Law Doctrines
Physical Description: Book
Language: English
Publisher: University of Michigan
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collections - Water Use Under Common Law Doctrines
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 7
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003139
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
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Full Text

Wilbert L. Ziegler


I. INTRODUCTION .................... 51
A. What Constitutes Riparian Land? . . 51
1. Definition of Terms .............. 51
2. Ownership of Bed and Shore as Necessary to
Possession of Riparian Land . . .. 52
3. Extent of Riparian Land . . .... 56
4. Problems within the Watershed .. . .. 58
5. Summary .......... ........... 61
B. Rules Providing for Quantity of Water Use . .. 62
1. General .................... 62
2. Use of Water on Riparian Land . ... 63
3. Use of Water on Non-Riparian Land . ... 64
4. Beneficial Distribution through Limitation of
Remedy .. .. .. .. .. . 68
C. Summary and Analysis . . .... 70
I. GROUNDWATER ................... 73
A. Introduction . . . .... 73
B. Legal Classification of Ground Water . ... 73
C. Rules Governing Utilization of Ground Water ..... 76
1. General . . . . .. 76
2. Waste and Malicious Interference with Supply .. 77
3. Use on Land Where Source is Located ..... 78
4. Use of Water Beyond the Water Basin ...... 80
5. Use of Ground Water Which Interferes with
Surface Flow . .. .. .. 81
D. Conclusion ........... .. 83
A. Introduction . . . . . 84
B. Definition of Surface Water . . .. 84
C. Rules Governing Use of Surface Water . ... 85
D. Conclusion . . . . . 86


Wilbert L. Ziegler*

With increasing agitation for new legislation in the field of water
use law and water rights, it is not only proper but also very necessary
to reexamine the existing law in the light of present day developments.
Before any change is made in the established pattern of law, problems
must be pointed out and the inadequacies of the old law realized and
fully appreciated. For this reason, this discussion represents an at-
tempt to set forth, and analyze the existing legal principles concerning
water use and water rights. Along with a study of the legal principles
appears an evaluation of these principles in the light of present eco-
nomic development and population growth.

A. What Constitutes Riparian Land?
1. Definition of Terms
A confined body of water on the surface of the earth furnishes a
supply of water that is easily obtained. So it is that man's need for
water was satisfied first from this source, and legal regulations arose
first as to this supply. In the field of water use law, no question has
received more attention and no subject has been litigated more than the
relative rights of individuals in watercourses and lakes. The concept
of a watercourse as fashioned by the courts is that of a body of water
flowing in a defined channel, having a bed and/or banks and discharging
itself into some other stream or body of water. 1 Lakes and ponds are
distinguished from watercourses generally by the absence of current in
lakes and the existence of relative stagnation, although the other fea-
tures of a watercourse are essential to the legal concept of a lake. 2

*Legislative Analyst, Legislative Research Center, University of Michigan
Law School. Member of the Ohio and Kentucky Bars. A.B., Villa Madon-
na College, 1953; LL.B., Cincinnati, 1956.
1. 2 Farnham, Water and Water Rights 1553-1564 (1904).
2. Id. at 1560; Amerada Petroleum Corp. v. State Mineral Bd., 203 La.
S473, 14 S. 2d 61 (1943).



When considering legal rights to the use of water, since both lakes and
watercourses are treated alike in law, no special consideration is given
to them individually in this study.
The term "riparian"3 properly is used to designate land contiguous
to the banks of a watercourse, whereas the term "littoral" is techni-
cally applied to land contiguous to the banks of a lake. The courts cus-
tomarily make use of the term "riparian" when speaking of either a
watercourse or a lake, and unless specifically stated otherwise that
usage is adopted herein. 4 Riparian land is defined as that land con-
tiguous to the bank of a body of water and in contact with its flow. 5 As
is explained later, 6 the existence and extent of any right to use water
largely depends upon a determination of what land is riparian within
the broad definition just given. 7 For this reason any attempt to deter-
mine the rights to use water necessitates an examination of the issue,
what is riparian land.
2. Ownership of Bed and Shore as Necessary to Possession of
Riparian Land
With the general statement that land to be riparian must be in con-
tact with a body of water, the problem of what constitutes contact in the
legal sense immediately arises. Specifically, is ownership of the
shore and/or bed of a body of water necessary to constitute the pro-
prietor of an upland piece of land a riparian owner? On private waters
(those in which the state has no interest for purposes of navigation) this
problem is not presented since the upland owner takes title to the bed
of the stream to the middle thread thereof. 8 On some waters, particu-
larly those capable of navigation, it is customary for the upland owner
to hold title only to high-water mark while the state retains title to the
shore and bed of the waterway. 9 It is in this instance that the question
of riparian ownership and rights incident thereto may arise.
3. The Latin word "ripa" means bank of a stream.
4. Gould, Water 148 (3d ed. 1900).
5. Axline v. Shaw, 35 Fla. 305, 17 So. 411 (1895); Mobile Transp. Co. v.
Mobile, 128 Ala. 335, 30 So. 645 (1900); Mettler v. Ames Realty Co.,
61 Mont. 152, 201 Pac. 702 (1921); 1 Wiel, Water Rights in the West-
ern States, 835 (3d ed. 1911).
6. Infra, Part H, B2.
7. Cf. 1 Farnham, supra note 1 at 278-280; Crawford Co. v. Hathaway,
67 Neb. 325, 93 N.W. 781 (1903).
8. "Usque ad filum aquae" is the language of the law. Wright v. Howard,
1 Sim. & S. 190 (1823); Tyler v. Wilkinson, 4 Mason 397 (1827); 1 Farn-
ham, supra note 1 at 262-268.
9. As to title to the bed, see e.g. Bullock v. Wilson, 2 Port. (Ala.) 436
(1835); St. Louis, I.M. & S.R. Co. v. Ramsey, 53 Ark. 314, 13 S.W.
931 (1890); Packer v. Bird, 71 Cal. 134, 11 Pac. 873 (1886); For state
by state consideration see: 1 Farnham, supra note 1 at 253-258. As


Judge Story, of legendary repute in the annals of the law, stated,
in the case of Webb v. Portland Manufacturing Co., "... that the
right of a riparian proprietor arises by mere operation of law, as an
incident to his ownership of the bank. "10 Perhaps no better expres-
sion of the determinant of riparian land can be found than in the often
cited case of Lyon v. Fishmongers' Co., 11 wherein Lord Selborne

With respect to the ownership of the bed of the river,
this cannot be the natural foundation of riparian rights properly
so called, because the word "riparian" is relative to the bank,
and not the bed, of the stream; and the connection, when it
exists, of property on the bank with property in the bed of the
stream depends, not upon nature, but on grant or presumption
of law.... The title to the soil constituting the bed of a river
does not carry with it any exclusive right of property in the
running water of the stream.... It is, of course, necessary
for the existence of a riparian right that the land should be in
contact with the flow of the stream; but lateral contact is as
good, jure nature, as vertical.... It is true that the bank of
a tidal river, of which the foreshore is left bare at low water,
is not always in contact with the flow of the stream, but it is
in such contact for a great part of every day in the ordinary
and regular course of nature, which is an amply sufficient foun-
dation for a natural riparian right.12

Further statements to the effect that riparian rights attach to the up-
land and are not dependent upon bed ownership appear frequently in the
cases. However, these statements are either dicta or occur in cases
such as Webb v. Portland Manufacturing Co. and Lyon v. Fishmongers'
Co. involving the right of the upland owner to wharf out on the state-
owned water bed. 13 On the other hand, a few jurisdictions have
reasoned that since the state owns the bed of public waters, any en-
croachment thereon is unlawful, and the upland owner has no riparian

(Footnote continued)
to shore ownership, see e.g. Mobile Dry Docks Co. v. Mobile, 146 Ala.
198, 40 So. 205 (1906); Van Siclen v. Muir, 46 Wash. 38, 89 Pac. 188
(1907); 1 Farnham, supra note 1 at 207-212.
10. 29 Fed. Cas. 506, 510 (1838).
11. 1 App. Cas. 662 (1875).
12. Id. at 683.
13. Yates v. Milwaukee, 77 U. S. 497 (1870); Railroad Co. v. Schurmeir,
7 Wall. (U.S.) 272 (1868); Brisbine v. St. Paul & Sioux City R. Co.,
23 Minn. 114 (1876); Steam Engine Co. v. Steamship Co., 12 R.I. 348
(1879); Mobile Dry Docks Co. v. Mobile, supra note 9; Delaplaine v. C.
N.W. Ry. Co., 42 Wis. 214 (1877); Orange v. Resnick, 94 Conn. 573,
109 Atl. 864 (1920).


right to wharf out into the water. 14 The language of many of these
cases is sufficiently broad to exclude the consumptive use of water by
upland owners. 15
The highest courts in New York and Iowa, after first denying to the
upland owner access to the state-owned beds of navigable waters, later
reversed their decisions and permitted the adjacent proprietor to exer-
cise the traditional riparian right of wharfage. 16 The old decisions of
New York and Iowa were relied on by the Oregon Supreme Court in
Bowlby v. Shively in denying riparian rights to upland owners. 17 New
York has now adopted the position that land to be riparian need only
extend to the highwater mark and no ownership of the bed is essential
to gain riparian rights. 18
The foregoing legal analysis is drawn primarily from cases con-
cerning wharfage rights of upland owners having title only to the high-
water mark. These owners have sometimes been denied riparian
rights when the issue has been raised in other than wharfage cases.
The Supreme Court of New Jersey in the case of Stevens v. Patterson
& Newark RR. Co. 19 permitted the state to provide for a railroad
along the shore of the Passaic River, a tidal stream, thereby cutting
off access from the upland for purposes of domestic consumption of
water. The court expressly denied that, without ownership of the bed,
the upland owner had riparian status. This decision was attacked by
three judges in a dissenting opinion but still remains the law in New
Jersey. 2 The effect of this holding is greatly limited, however, since

14. City of Providence v. Comstock, 27 R.I. 537, 65 Atl. 307 (1906) involv-
ing a salt water river on the Atlantic coast. The court considered this
river an "arm of the sea" owned by the state in the same manner as the
king of England owned tidal waters at common law. Bowlby v. Shively,
22 Or. 410, 30 Pac. 154 (1892); see also: Martin v. O'Brien, 34 Miss.
21 (1857); Parish v. Municipality No. 2, 8 La. Ann. 145 (1853); Revell
v. The People, 177 Il. 468, 52 N.E. 1052 (1899); State v. Black River
Phosphate Co., 32 Fla. 82, 13 So. 640 (1893).
15. Ibid.; cf. Ravenswood v. Flemings, 22 W. Val. 52 (1883).
16. Rumsey v. N.Y.N.E. RR. Co., 133 N.Y. 79, 30 N.E. 654 (1892) refus-
ing to follow Gould v. Hudson River Ry. Co., 6 N.Y. 522 (1852); Peck
v. Alfred Olsen Const. Co., 216 Iowa 519, 245 N.W. 131 (1933) disap-
proving of Tomlin v. Dubuque, Bellevue & Miss. R.R. Co., 32 Iowa 106
17. Supra note 14.
18. Matter of City of New York, 168 N.Y. 134, 61 N.E. 158 (1901); Matter
of Appleby v. Delaney, 235 N.Y. 364, 139 N.E. 477 (1923); Matter of
City of New York, 240 N.Y. 68, 147 N.E. 361 (1925).
19. 34 N.J.L. 532 (1870).
20. Bailey v. Driscoll, 34 N.J. Supp. 228, 112 A. 2d 3 (1954); but cf. Pat-
erson v. East Jersey Water Co., 74 N.J. Eq. 49, 70 Atl. 472 (1908)
involving the rights of the plaintiff, city, to riparian rights when title to
the bed was retained by its grantee, not the state; Compare: Herman-
sen v. Lake Geneva, 272 Wis. 293, 75 N.W. 2d 439 (1956).


the state of New Jersey has title to the bed only in such waters as the
tide ebbs and flows. 21 In Washington, where the state owns the beds
and shores of all navigable waters, the upland owner has no riparian
rights in the stream whatsoever. In State ex rel. Ham, Yearsley, etc.
v. Superior Court, the court said:

No decision of this court has come to our notice dealing direct-
ly with a claim of water for irrigation made by an upland own-
er by reason of such land bordering upon navigable water; but
it seems to us that our constitutional declaration of ownership,
and former decisions touching the effect of that declaration, are
clearly opposed to the contention that an upland owner can make
lawful claim to the use of navigable water upon which his land
borders, and rest such claim solely upon the ground that he
has a common law right in such water by reason of his land
bordering thereon, as against the state or one who appropriates
such water in pursuance of the laws of the state. 22

The right of a state to determine its water law in this manner has been
affirmed by the United States Supreme Court. 23
Minnesota, by a chain of court decisions, has developed a theory
whereby water for public consumption, as for a city, can be drawn
from navigable waters without opposition from a riparian owner. In
this jurisdiction, all waters are public which, in fact, are capable of
navigation, and the bed is owned by the state. 24 According to the deci-
sion of Union Depot Co. v. Brunswick in 1883, although the upland pro-
prietor owns only to low water mark on these waters, he nonetheless
has certain riparian rights to occupy the bed of these waterways "sub-
ordinate only to the paramount public right of navigation. "25 In 1893,
the concept of public navigation was held to include not only public com-
mercial transportation but also any and all public uses to which the
stream or lake was adapted, independent of any connection with public
transportation. 26 Thus, the riparian owner's rights were subjected to
much more public interest than merely navigation in its technical sense.
The following year, the Supreme Court had an opportunity to apply its
previous reasoning to the public consumptive use of water. The city of
St. Paul, under a statutory charter from the state, was authorized to

21. Bailey v. Driscoll, supra note 20; Ross v. Mayor of Edgewater, 115
N.J.L. 477, 180 Atl. 866 (1935).
22. 70 Wash. 442, 451-452, 126 Pac. 945 (1912).
23. Port of Seattle v. Oregon & Washington R. Co., 255 U.S. 56, 41 Sup.
Ct. 237 (1920).
24. Schurmeier v. St. Paul & Pac. R. Co., 10 Minn. 59 (1865).
25. 31 Minn. 297, 301, 17 N.W. 626 (1883).
26. Lamprey v. State, 52 Minn. 181, 53 N.W. 1139 (1893).



take water for the needs of its inhabitants from the Mississippi River,
a navigable stream, whereon the plaintiff had erected a dam. In re-
fusing to interfere with the city's pumping, the court held:

The navigation of the stream is not the only public use to
which these public waters may be thus applied. The right to
draw from them a supply of water for the ordinary use of cities
in their vicinity is such a public use, and has always been so
In thus taking water from navigable streams or lakes for
such ordinary public uses, the power of the state is not limited
or controlled by the rules which obtain between riparian owners
as to the diversion from and its return to, its natural channels.
Once conceding that the taking is for a public use, and the
above proposition naturally follows. 27

The only limitation on the right of the State of Minnesota to distribute
and control water taken from her navigable streams and lakes is that
this taking be for a public purpose.
3. Extent of Riparian Land
Once it has been established that a particular parcel of land is ri-
parian to a body of water, the question immediately arises as to how
much land is to be considered as riparian by means of contact with the
stream or lake at a particular place. In any effort to delimit the
riparian right, it is imperative that a definite notion of the quantity of
land encompassed within the term "riparian" be formulated. This is
true especially in a territory where irrigation is the greatest single
use of water. An opportunity to determine exactly what amount of land
surface is classed as riparian has seldom been made available to the
courts. Reason for this is found in the fact that the question arises
primarily in cases of irrigation, and this use on a large scale has only
recently developed in the eastern states. In the western states the
doctrine of appropriation draws no distinction between riparian and
non-riparian land. A general test has been applied, however, some-
times in holdings but more often in dictum, which limits the use of
water to the watershed of the stream from which it is taken. Farnham,
in his three-volume work on water law, states:

The criterion which most nearly meets the necessities of the
case is the rule that all land must be regarded as, riparian
when it is within the natural watershed of the stream, the title

27. Minneapolis Mill Co. v. St. Paul Water Works, 56 Minn. 485, 490, 5E
N.W. 33 (1894).


to which is in one owner, and the boundaries of which have
been established in accordance with the requirements of the con-
ditions which will best serve the interests of individual land
owners. 28

This limitation to the natural watershed has been imposed by the great
majority of courts deciding the issue. 29 There are two foundations for
the watershed limitation, both of which have been at different times re-
lied upon by the California Supreme Court. In Bathgate v. Irvine the
court stated:

"The rights of a riparian proprietor, so far as they re-
late to any natural stream, exist jure nature, because his land
has by nature the advantage of being washed by the stream"....
But it cannot be said that land lying beyond the watershed of
the stream has any such advantage.30

In Anaheim Union Water Co. v. Fuller the court enunciated a more
practical explanation:

The principal reasons for the rule confining riparian rights to
that part of lands bordering on the stream which are within the
watershed are, that where the water is used on such land it
will, after such use, return to the stream, so far as it is not
consumed, and that, as the rainfall on such land feeds the
stream, the land is, in consequence, entitled, so to speak, to
the use of its waters. 31

The first explanation in Bathgate v. Irvine manifests the thinking prev-
alent in the eighteen and early nineteen hundreds in the water law field;
namely, that the riparian rights were vested by nature itself. The
statement in the Anaheim Union Water Co. case exemplifies a prag-
matic approach to the question and would seem to satisfy legal minds
today. Regardless of the hydrological soundness of this latter explana-
tion, the rule appears too well established in law to assume that it
would be disregarded by the courts.
A very slight minority view may exist as evidenced by the opinion
of the Oregon Supreme Court in Jones v. Conn. 32 From the language
used in that case, it appears that in Oregon there is no limit as to the

28. Supra note 1 at 1571.
29. E.g., Bathgate v. Irvine, 126 Cal. 135, 58 Pac. 442 (1899); Watkins
Land Co. v. Clements, 98 Tex. 578, 86 S.W. 733 (1905); Sayles v. City
of Mitchell, 60 S.D. 592, 245 N.W. 390 (1932), citing 27 R.C.L. 1074.
30. Bathgate v. Irvine, supra note 29 at 143.
31. 150 Cal. 327, 330, 88 Pac. 978 (1907).
32. 39 Ore. 30, 64 Pac. 855 (1901).



extent of land entitled to the use of stream water once contact with the
water is proved. 33 However, a careful reading of the opinion gives the
impression that the court was particularly concerned with the point that
a riparian proprietor is not.limited in his water use to land acquired by
one grant. Thus, the issue of use of water beyond the watershed was
not faced squarely by the Oregon court. Regardless of the exact
analysis of the decision, it is evident that the majority of jurisdictions
favor the limitation of the watershed so that its boundaries determine
the extent of riparian land.
4. Problems within the Watershed
The question of the actual extent of a watershed is one of fact and
its answer is found only through the labors of the geologist or the
ground water hydrologist. There are certain factual situations to
which the courts have applied specific rules of law and these decisions
are worthy of notice. The problem involves the interrelation of water-
sheds which results when a plot of land, is in contact both with a main
stream and its tributary, or in other words, when water taken by rea-
son of contact of land with the large stream is used on land riparian to
the tributary. The argument, in favor of extensive use, is that all the
land is within the watershed of the main stream; whereas, the argu-
ment, in favor of limited use, is that there are here two watersheds in
fact although the tributary eventually empties into the main stream.
California only has satisfactorily settled the issue from the viewpoint
of two disputing riparian land owners. The court applied the reasoning
that water must be used so as to flow back to the stream from which it
is taken so as to benefit other riparians. This thinking resulted in a
holding that if the water diverted from a watershed does not, once re-
turned, flow past the complaining riparian as it would have if returned
to the stream of origin, the user is not permitted to take water beyond
the specific watershed of the stream from which he abstracted it. 4
On the other hand, if the return flow passes the complaining riparian,
he has no ground for suit even though the water is used in a different
watershed. 35 Factually, the determination hinges upon whether the
complaining riparian is above or below the junction of the two streams.
Upon the holding of one jurisdiction, it is not possible to construct a
general rule of law or even to suggest that this determination would be
followed by other states. The California decisions do, however, sug-
gest possible lines of reasoning that may be used in defining the basic
foundations of riparian rights.

33. Cf. dictum in Watkins Land Co. v. Clements, supra note 29 at 585.
34. Anaheim Union Water Co. v. Fuller, supra note 31.
35. Holmes v. Nay, 186 Cal. 231, 199 Pac. 325 (1921); Rancho Santa Mar-
garita v. Vail, 11 C. 2d 501, 533, 81 P. 2d 533 (1938).


Another factual situation which has been presented to the courts
for an equitable solution as to water rights occurs in an action between
an owner who has two tracts of land both riparian to the same stream
and another water user owning land between these two tracts. Simply
asked, can the water be taken at the point of contact on the upstream
land and used on the downstream tract? The Virginia Supreme Court
answered this query in the negative, holding that the owner of two such
tracts could take water for use on each tract only at the point where it
was in contact with the water. 36 The court reasoned, in accordance
with the surface drainage theory, that any water not consumed on land
contiguous to the point of diversion must be returned at that point
thereby giving the other riparian the opportunity to reuse the water.
This result was reached in Washington also when a downstream riparian
by means of an easement to take water further up the stream deprived
an intermediate riparian of the supply of water. 37 In the words of the
court, "the riparian right of such land, or the owner thereof, is con-
fined to the points where the land abuts upon the stream. "38 The sur-
face drainage doctrine has been repudiated in California in a case in-
volving the issue of the extent of riparian land. 39 Realistically it can-
not be justified since the nature of return flow is such that it will not
necessarily return to the point of diversion, but may flow on the sur-
face or percolate through the ground for some distance downstream
before becoming part of the stream once again. From this point of
view, the theory is a fiction used by the courts for convenience in ar-
riving at a desired result. Further the surface drainage doctrine is
undesirable as a method of determining rights between water users
since it ignores any consideration of the relative benefits of the indi-
vidual water uses.
Even recognizing the watershed limitation, another issue arises as
to whether riparian rights may be exercised in conjunction with land
which is within the watershed but which has no contact with the stream.
The general proposition that land to be riparian must be in contact with
the flow of water is adequate for resolving most controversies of this
type. However, there are two fact patterns involving separate tracts
of land within one watershed in which the courts have been called upon
to consider in detail the validity of the general proposition. The first
instance arises when a riparian owner subdivides his land so that that
portion conveyed to another owner has no contact with the water.
Brushing aside the rule that land to be riparian must be in contact with
the flow of water, it is clear that, prior to subdivision, the land was

36. Gordonsville v. Zinn, 129 Va. 542, 106 S.E. 508 (1921).
37. Miller v. Baker, 68 Wash. 19, 122 Pac. 604 (1912).
38. Id. at 21.
39. Rancho Santa Margarita v. Vail, supra note 35 at 533.


riparian. All the colorful and sacred language describing riparian land
could be ascribed to this parcel. Will mere change of ownership deny
this land riparian status? Clearly, it appears that such a change of
ownership, and thereby a severing of legal contact with the water,
denies to the tract the riparian benefits. In Stockport Waterworks Co.
v. Potter the law was stated as follows:

It seems to us clear that the rights which a riparian proprietor
has with respect to the water are entirely derived from his pos-
session of land abutting on the river. If he grants away any
portion of his land so abutting, then the grantee becomes a ri-
parian proprietor and has similar rights. But if he grants
away a portion of his estate not abutting on the river, then
clearly the grantee of the land would have no water rights by
virtue of merely his occupation.40

This rule has been adopted whenever the question has arisen. 41 Inso-
far as all jurisdictions require contact with the water, it appears that
the owner of a subdivided parcel of land who is not in contact with the
water is deprived of riparian status. In California the court has
recognized this rule42 but has appended thereto a rather novel legal
,twist. If the grantor expressly transfers to the grantee the water
rights which belonged to the parcel of land before severance by sale,
the riparian rights remain with the land in California, and the grantee
may enforce them against all the world. 43 The California court has
held also that a partition decree does hot deprive one part of the land,
without contact with the water, of riparian rights even though the decree
makes no mention of these rights. 4
The second factual situation involving separate tracts of land with-
in one watershed arises when a riparian owner purchases a tract of
land within the watershed not previously in contact with the water, but
which joins a riparian tract. The case of Jones v. Conn45 permitted
the extension of riparian rights to this newly acquired tract of land. In
the words of the Oregon court:
The fact that he may have procured the particular tract washed
by the stream at one time and subsequently purchased land ad-

40. 3 Hurl. & C. 300, 326-327 (1864).
41. Anaheim Union Water Co. v. Fuller, supra note 31; Pacific Elevator Co.
v. Portland, 65 Ore. 349, 133 Pac. 72 (1913) involving the riparian's
right to wharf.
42. Anaheim Union Water Co. v. Fuller, supra note 31.
43. Miller & Lux Inc. v. James Co., 179 Cal. 689, 178 Pac. 716 (1919);
dictum in Anaheim Union Water Co. v.-Fuller, supra note 31.
44. Rancho Santa Margarita v. Vail, supra note 35.
45. Supra note 32.


joining it, will not make him any the less a riparian proprie-
tor, nor should it alone be a valid objection to his using the
water on the land last acquired.46

This is the only case which has taken such an approach. Other juris-
dictions have taken the opposite view and held that merely joining one
tract to another riparian piece of land does not grant riparian status to
the former. 47 By weight of numbers, the holding, that a piece of land
which by purchase is attached to a riparian tract under one ownership
does not thereby become riparian, is the majority view, but the few
cases deciding the issue are sufficient only to show a trend in legal
thought and not a general rule of law.
5. Summary
From the legal determinations of what is riparian land and how
much land is riparian, certain conclusions may be drawn. Land, to be
riparian, must be in contact with the water. In most jurisdictions, the
requirement of contact with the water is easily established because the
upland owner typically owns some portion of the bed of the waterway.
In those states where on some waterways the riparian owns only to the
highwater mark, most courts have had no difficulty in finding the neces-
sary contact with the stream to establish riparian rights. Only in New
Jersey and Washington does it appear that on non-coastal waters
ownership to the highwater mark is not sufficient to give to the upland
owner any riparian rights. In Minnesota the upland owner is not denied
riparian rights where the state owns the bed of the watercourse, but
these rights are subject to public use which is defined to cover all uses
the public may make of the waters.
Riparian land is limited in area to that land lying within the water-
shed of the body of water with which it is in contact. Since only Cali-
fornia has considered the problems arising when the watershed of one
stream is part of the watershed of another, it is difficult to define any
general legal conclusions. Once a parcel of land is subdivided by legal
transfer so that certain parts are no longer in contact with the water,
those parts lose their riparian status. Once a parcel of land has lost
its riparian status, its union with riparian land under one ownership
subsequently will not return it to riparian stature. Only Oregon has
refused to follow this rule.

46. Supra note 32 at 39.
47. Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903); Miller &
Lux Inc. v. James, 180 Cal. 38, 179 Pac. 174 (1919); Watkins Land Co.
v. Clements, supra note 29.



B. Rules Providing for Quantity of Water Use
1. General Observations
The extent of riparian land is not the only element which requires
attention in analyzing the riparian right. The specific issue of how
much water can be taken from a source for various uses presses itself
as the most singularly puzzling aspect of the riparian rights theory.
The American Courts have through the years continued to give lip serv-
-ice to the rule enunciated in the English case of Embrey v. Owen:48
This right to the benefit and advantage of the water flow-
ing past his land is not an absolute and exclusive right to the
flow of all the water in its natural state; if it were, the argu-
ment of the learned counsel, that every abstraction of it would
give a cause of action, would be irrefragable; but it is a right
only to the flow of the water, and the enjoyment of it subject
to the similar rights of all the proprietors of the banks of each
side to the reasonable enjoyment of the same gift of Provi-

From this statement of the law, the dictum in Gould v. Eaton50 logical-
ly follows: "If he (upper riparian) does not in fact use any of the water
himself, the inferior proprietor has a right to the flow of the entire
stream.... "51 From the tenor of the above cited quotations it seems
evident that the right which the riparian possesses in the water of any
lake or stream is to have this water flow, as by nature, past his land
subject only to the reasonable uses of the other riparians above him.
He has no interest in water being taken from this stream below him.
The extent of the right is not based on the amount of water which can
beneficially be used by a riparian owner; but rather it is a right in the
entire flow of the stream whether utilized or not. As between riparian
owners, each is limited to a reasonable use; as between a riparian and
any other user, the riparian has a complete right to all the water.
Obviously, from the aspect of all but the riparian, water is being
It was this waste that led the people in more arid regions of the
United States to provide themselves with a theory of water rights based
on appropriation for beneficial use. It was this same waste, along with
a desire for the most beneficial use of water, which led certain juris-
dictions to change from the riparian rights theory to a theory of bene-
ficial use. In California, the courts permitted water to run into the

48. 6 Ex. 353 (1851).
49. Id. at 369, cf. 56 Am. Jur. Waters 13 (1947) for American citations.
50. 117 Cal. 539, 49 Pac. 577 (1897).
51. Id. at 543.


ocean rather than sanction its use on land not riparian to the stream. 52
To change this result, California adopted a prior appropriation statute
and later a constitutional amendment which reads:

The right to water or to the use or flow of water in or from
any natural stream or water course in this State is and shall
be limited to such water as shall be reasonably required for
the beneficial use to be served, and such right does not and
shall not extend to the waste or unreasonable use or unreason-
able method of use or unreasonable method of diversion of
water. Riparian rights in a stream or water course attach to,
but to no more than so much of the flow thereof as may be re-
quired or used consistently with this section, for the purposes
for which such lands are, or may be made adaptable, in view
of such reasonable and beneficial uses....53

By this amendment, the law of riparian rights was changed, thereby
giving a riparian an interest in only so much water as he can bene-
ficially use, and no interest in any amount over and above this quanti-
ty. 54 The jurisdictions of Kansas and Oregon have by statute provided
for the limitation of a riparian's interest in flowing water only to so
much as he made use of beneficially at the time of the passage of the
statute. 55 Such statutes are manifestations of dissatisfaction with the
riparian doctrine as it existed prior to their enactment. By limiting
the riparian right to use water to that quantity which is actually being
put to beneficial use, the task of regulation of water resources is made
much easier.
2. Use of Water on Riparian Land
In the preceding discussion, the distinction between riparian and
non-riparian land was discussed in detail. This distinction is used
consistently by the courts to determine the rights of individuals to the
use of stream or lake water. An analysis here is made first of the law
as applicable to water use on riparian land and then of the law regard-
ing use on non-riparian soil. Agreement is found among courts of
every jurisdiction that a riparian is entitled to satisfy his domestic

52. Gould v. Eaton, supra note 50; Anaheim Union Water Co. v. Fuller,
supra note 31.
53. Cal. Const. Art. XIV, 3 (1928); For a detailed discussion of cases de-
cided since this amendment, see: Treadwell, "Developing a New Phi-
losophy of Water Rights," 38 Cal. L. Rev. 572 (1950).
54. Gin S. Chow v. Santa Barbara, 217 Cal. 673, 22 P. 2d 5 (1933); Merid-
ian Ltd. v. San Francisco, 13 Cal. 2d 424, 90 P. 2d 105 (1939); Smith
v. Wheeler, 107 C. App. 2d 451, 237 P. 2d 325 (1951); 1 Stan. L. Rev.
172 (1948).
55. Kan. Gen. Stat. (1947 Supp.), c. 82a; Ore. Code Ann. (1930) 47-403.



needs on riparian land from the stream or lake passing his land before
any other use, other than a domestic use, may be initiated by another.56
This preference for domestic use has been ascribed to the legal maxim,
"de minimis non curat lex," but more realistically, it would seem that
such a use is always reasonable. As to the other than domestic uses,
the courts have enunciated very few standards which serve as reliable
guides for future determinations. In Embrey v. Owen, 57 where the
reasonableness of the use for irrigation was in question, the court
stated that use for irrigation was proper, but it must not materially
diminish the flow of the stream. The same test was applied in the
case of Earl of Sandwich v. Great Northern Ry. Co. involving the right
to take water for use in defendant's locomotives. 5a On the other hand,
the concept of reasonable use in relation to manufacturing and irriga-
tion uses has sometimes received a more liberal construction, with
the courts taking into account the amount of rainfall, climate, soil con-
ditions, quantity of water in the stream, and also the relative benefits
derived from the competing uses. 59 These instances are limited to
controversies involving utilization of the water on riparian land and do
not consider non-riparian uses. The question of the reasonableness of
various uses is for the jury to decide. The jury determination in a
particular case provides little information or criteria for future plan-
ning or prediction by the riparian owner.
3. Use of Water on Non-Riparian Land
Only a small number of people own land along the shore of our
streams and lakes, but all people demand water. The issue presented
is whether the riparian doctrine provides for the utilization of stream
and lake water in areas not riparian to a body of water. California had
to adopt a constitutional amendment to provide for water use on non-
riparian land. 60 By court determinations, the great weight of authority

56. Stein v. Burden, 24 Ala. 130 (1854); Emporia v. Soden, 25 Kan. 588
(1881); Evans v. Merriweather, 3 Scam. (11.) 492 (1842); Harvey Realty
Co. v. Wallingford, 111 Conn. 352, 150 Atl. 60 (1930); 56 Am. Jur.
Waters 345 (1947).
57. Supra note 48.
58. 10 Ch. Div. 707 (1878); Garwood v. N.Y. Cent. & Hud. R.R., 83 N.Y.
400 (1881) distinguished itself on the basis of material or sensible dimi-
nution. For other instances of this test, see Wheatly v. Chrisman, 24
Pa. 298 (1855); Clark v. Railroad Co., 145 Pa. 438, 22 Atl. 989 (1891);
Attwood v. Llay Main Collieries, 1 Ch. 444 (1926).
59. Wiel, Water Rights in the Western States, 748 (1911); People v. Hul-
bert, 131 Mich. 156, 91 N.W. 211 (1902); 56 Am. Jur. Waters 346
(1947); Harris v. Brooks, 225 Ark. 436, 283 S.W. 2d 129 (1955).
60. Supra Part I, B1; for cases prior to amendment on issue of use of
water beyond riparian land, see Chauvet v. Hill, 93 Cal. 407, 28 Pac.
1066 (1892); Bathgate v. Irvine, supra note 29.


prohibits use of the water from a watercourse or lake on land not ri-
parian thereto. The Supreme Court of West Virginia has stated:

Reasonable use of the water in connection with the riparian land
is legal, but any use of the water elsewhere by a diversion of
the water, without returning it to the stream for the use of low-
er proprietors, is wholly wrongful. 61

The rule of this case, applying the time-worn reasoning of earlier
writers, simply enunciates that the criterion of reasonable use is not
applicable to non-riparian uses. 62 Such uses are per se unlawful. 63
By this thinking, it is unlawful for a riparian to use water on his own
non-riparian land. 64 It further prevents a riparian from transferring
a reasonable amount of water which he could have used on his riparian
land to his non-riparian land, or from transferring his right to take a
reasonable quantity to some non-riparian owner. 6 Courts also refuse
to permit a riparian to supply water to a non-riparian city or village. 66
Further, a city, which owns a piece of riparian land outside its limits
and attempts to divert water therefrom to supply the needs of its peo-
ple, is generally held to be making an unlawful use of the water. In
this latter factual pattern involving the city's use, two bases for the
result can be distinguished. 67 In Stein v. Burden the court stated:

61. Roberts v. Martin, 72 W.Va. 92, 97, 77 S.E. 535 (1913). The courts
often speak in terms of the water used on non-riparian land not being
returned to the stream. However, no case can be found in which a use
of water on such land was permitted due to the fact that it was returned
to the stream after use.
62. Scranton G. & W. Co. v. Del., L. & W. R.R., 240 Pa. 604, 88 Atl.
24 (1913).
63. Ibid. Parker v. Griswold, 17 Conn. 288 (1845); Rigney v. Tacoma
Light & Water Co., 9 Wash. 576, 38 Pac. 147 (1894).
64. Bathgate v. Irvine, supra note 29; Miller v. Baker, supra note 37;
Scranton Gas & Water Co. v. Delaware, L. & W.R. Co., 240 Pa. 604,
88 Atl. 24 (1913).
65. Crawford Co. v. Hathaway, supra note 47; Gould v. Eaton, supra note
50; Stockport Waterworks Co. v. Potter, supra note 40; Roberts v. Mar-
tin, supra note 61; but see Elliot v. Fitchburg Railroad Co., 64 Mass.
191, 197 (1852); St. Anthony Falls Water-Power Co. v. City of Minne-
apolis, 41 Minn. 270, 43 N.W. 56 (1889) which seems to apply a more
liberal rule, recognizing that the non-riparian may have a real interest
under a grant from a riparian in the use of the water.
66. Kirkland v. Cochrane, 87 Wash. 528, 151 Pac. 1082 (1915) following
Rigney v. Tacoma Light & Water Co., supra note 63; Crawford v. Hatha-
way, supranote 47; Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So.
78 (1888); Higgins v. Flemington Water Co., 36 N.J. Eq. 538 (1883);
Stockport Waterworks Co. v. Potter, supra note 40.
67. This does not imply that the same two bases may not be found in other
fact patterns.



To hold that a municipal corporation can, from the mere fact
of owning land upon a water course, acquire the right to divert
the water in sufficient quantities to supply the domestic wants
of its inhabitants, residing at a distance of from three to five
miles, to the injury of the other proprietors, would be unrea-
sonable in itself, and unjust to those who have an equal right to
participate in the benefits of the stream.68

In the recent case of City of Elkhart v. Christiana Hydraulics, the fol-
lowing language is found:

While a riparian owner may have a right to divert and use a
reasonable amount of water from a bordering stream for some
purposes a waterworks company does not have a right as a ri-
parian owner to divert water from a stream in order to make
merchandise of it and distribute it to all the residents of a

The language of the Stein case is not predicated upon the theory that use
beyond riparian land is unlawful but rather that it is unreasonable under
the circumstances. The case of City of Elkhart v. Christiana Hydrau-
lics does not adopt this approach but cites such uses as a violation of
the riparians' rights.
Clearly, a city acquiring a plot of riparian land outside its bound-
aries on a stream or lake cannot supply its inhabitants with water
therefrom. However, where the source of water supply is within the
territorial limits, the argument has been advanced that a city may use
the water for municipal purposes on the theory that the city in its cor-
porate existence is a riparian. Court opinions deciding this issue are
few in number, and no absolute rule can be drawn; nevertheless, the
thinking of the courts is worthy of comment. In North Carolina the
rule was set forth that "the use of the waters of a stream to supply the
inhabitants of a municipality with water for domestic purposes is not a
riparian right. "70 This result and reasoning was applied by the Su-
preme Court of Virginia in a decision in 1942. 71 The theory of the
decisions in the cases was that, within the traditional concept of a

68. Supra note 56 at 146-147.
69. 223 Ind. 242, 258, 59 N.E. 2d 353 (1945). On the general issue, see
also Sayles v. City of Mitchell, supra note 29; Gordonsville v. Zinn,
supra note 36; Lonsdale Co. v. City of Woonsocket, 25 R.I. 428, 66
Atl. 448 (1903); Sparks Mfg. Co. v. Town of Newton, 60 N.J. Eq. 399,
45 Atl. 596 (1900); Standen v. New Rochelle Water Co., 36 N.Y. Supp.
92 (1895).
70. Pernell v. City of Henderson, 220 N.C. 79, 81, 16 S.E. 2d 449 (1941)
citing 67 C.J. 1120.
71. Town of Purcellville v. Potts, 179 Va. 514, 19 S.E. 2d 700 (1942).


riparian, there is not anticipated a city with thousands of inhabitants,
but rather a family or individual or business located in close proximity
to the stream using water directly therefrom. The same type of think-
ing has been applied in denying to the state a riparian right to supply
the domestic water needs of 1, 300 to 1,500 inmates of a penitentiary
or asylum from a nearby water source. 72
The Ohio Supreme Court, however, has reached a result contrary
to that held bX the Virginia and North Carolina courts. In City of Can-
ton v. Shock' the court held that a city located on a stream could draw
water for the domestic purposes of its inhabitants as could any other
riparian on the stream. With reference to that water used for power
purposes within the city, the rule of reasonable use was applied. Only
as to water transported beyond the corporate limits of the city did the
court prohibit the city's taking. 74 In Tennessee a lower court per-
mitted all the citizens of Cumberland Gap to make use of a creek run-
ning through the town for domestic purposes in the same manner as
could a riparian. 75
In a few jurisdictions, the idea that riparian rights are governed
solely by a determination of the reasonableness of the use rather than
by a distinction between riparian and non-riparian land has been
recognized. New Hampshire has pioneered in this attempt to expand
water uses. After mentioning the rule that a riparian cannot provide
for non-riparian uses, the court stated:

But the rule is otherwise in this jurisdiction, for it is held
here to be a question of fact, whether the use of the water
made by a riparian owner for his own purposes, or for sale to
others, is, under all the circumstances, a reasonable use....
And in view of the finding that the sale of the water to the de-
fendants by Winn is a reasonable use of his right as a riparian
owner, the plaintiff has no standing on this branch of the case.76

This reasoning was applied later in Vermont in a case involving injury
to individual riparians along a stream by reason of the diversion to

72. Salem Mills Co. v. Lord, 42 Ore, 82, 69 Pac. 1033 (1902); see also
Dudden v. Guardians of Clutton Union, 1 Hurl. & N. 627 (1857).
73. 66 Ohio St. 19, 63 N.E. 600 (1902).
74. Dictum in Harrell v. City of Conway, 224 Ark. 100, 271 S.W. 2d 924
(1954), indicates that the same rule is to be applied in Arkansas.
75. Am. Assn., Inc. v. Eastern Kentucky Land Co., 2 Tenn. Ch. App. 132
(1901). This rule applied whether the individual citizens dipped the
water themselves or received it from a public utility. See also Barre
Water Co. v. Carnes, 65 Vt. 426, 27 Atl. 609 (1893); cf. Loranger v.
City of Flint, 185 Mich. 454, 152 N.W. 251 (1915), where the court
split 4-4 on the issue. Dictum in City of Philadelphia v. Collins, 68
Pa. 106 (1871).
76. Gillis v. Chase, 67 N.H. 161, 162-163, 31 Atl. 18 (1891).



non-riparian land. 77 This accumulation of cases is small indeed com-
pared to the number of decisions which have expressly denied the appli-
cation of the reasonable use doctrine to non-riparian uses.
4. Beneficial Distribution through Limitation of Remedy
To eliminate some of the harshness of the English rule of riparian
user as well as to provide for the utilization of water which would
otherwise remain unused, some courts have developed the theory that
no action can be maintained against someone making an unreasonable
or unlawful diversion of the water unless actual injury to the com-
plainant is proved. The effect of this rule is to allow some use of the
water, thus preventing its running into the ocean or its evaporation
without ever, in some manner, having benefitted man. Certain juris-
dictions, however, have continued to apply the English rule.
The English rule on the issue of remedy, as could be anticipated,
is strict in its application. The origin of the rule is found in the case
of Swindon Waterworks Co. v. Wilts & Berks Canal Co. in which Lord
Cairns set forth the English law of riparian rights. 78 The defendant,
a riparian waterworks company, supplied the town of Swindon with
water, to which the plaintiff, a canal company, objected and sought a
permanent injunction. The court, in answer to the plea of the de-
fendant that no injury was being inflicted upon the plaintiff, stated that
it made no difference whether the complainant suffered injury or not.
The court based its decision on the reasoning that, if continued, the
use by the waterworks company would ripen into a prescriptive right
entirely defeating plaintiff's rights in the water. 79 The court, by its
result and analysis, envisions an abstract right in the riparian to make
future uses of the water, and that the diversion to non-riparian land
violates the right to future enjoyment and the right to have the stream
flow as it would by nature, without diminution, except for the reason-
able uses of other riparians.
In the United States, several jurisdictions have adopted the English
rule without reservation. The Supreme Court of Georgia, in the case
of Robertson v. Arnold, 80 and the highest court of West Virginia, in
Roberts v. Martin_ clearly follow the English rule. In the Georgia

77. Lawrie v. Silsby, 76 Vt. 240, 56 Atl. 1106 (1904).
78. L.R. 7 H.L. 697 (1875). The Earl of Halsbury in McCartney v. Lon-
donderry & Lough Swilly R'y., (1904) App. Cas. 301, 304, refers to
this opinion of Lord Cairns as almost codifying the English law of ri-
parian rights.
79. Id. at 705; cf. Roberts v. Gwyrfai Dist. Council, 1 Ch. Div. 583 (1899),
in which a non-riparian use causing no injury was stopped although no
prescriptive right could ever have been acquired against the plaintiff.
80. 182 Ga. 664, 186 S.E. 806 (1936).
81. Supra note 61.


decision, the plaintiff owned a water-race on the stream from which
the defendant was making a use not within the traditional concept of
riparian uses. Although the water-race had not been used for the past
ten years and there was no evidence that any use would be made of the
race, the court granted relief to the plaintiff on the theory that a
property right was being invaded and there was danger of loss of the
right through adverse possession. The West Virginia decision granted
a permanent injunction against a diversion by the defendant when there
was absolutely no injury to the complainant, a grist mill operator.
The language of the court is very clear on the issue:

It may be that plaintiff is not actually damaged in the operation
of his mill by the diversion. He is damaged by the infringe-
ment of a right. That right a court of equity will preserve to
the plaintiff. 82

This is the rule applied in the states of Pennsylvania83 and New Jer-
sey, 84 and a reading of the cases indicates that such a result is the
rule in South Dakota85 and Connecticut. 86
A slight majority of jurisdictions have refused to follow the English
rule and have held that the riparian is not entitled to relief unless there
can be shown actual damage to his usufructuary right. By this is meant
that the wrongful diversion must amount to and cause an injury to a
present use of the stream by the complaining proprietor. The Nebraska
court states that "it is for an interference with or injury to his usu-
fructuary estate in the water for which compensation may rightfully be
claimBd.... "87 Other jurisdictions have applied the same analysis. 88
By the application of this rule, these jurisdictions permit a beneficial
use of the water unless there is interference with a use by the ripar-
ian. 89 Of course, no provision is made for a balancing of the relative

82. Id. at 94.
83. Clark v. Penn. R.R., 145 Pa. 438, 22 Atl. 989 (1891).
84. Paterson v. East Jersey Water Co., supra note 20; Exton v. Glen Gard-
ner Water Co., 3 N.J. Misc. 613, 129 Atl. 255 (1925).
85. Sayles v. City of Mitchell, supra note 29.
86. Williams v. Wadsworth, 51 Conn. 277 (1883); Harvey Realty Co. v.
Wallingford, supra note 56.
87. Crawford Co. v. Hathaway, supra note 47 at 353.
88. Stratton v. Mt. Hermon Boys' School, 216 Mass. 83, 103 N.E. 87
(1913); Valparaiso City Water Co. v. Dickover, 17 Ind. App. 233, 46
N.E. 591 (1897); McDonough v. Russell-Miller Milling Co., 38 N.D.
465, 165 N.W. 504 (1917); Harris v. Norfolk & Western Ry. Co., 153
N.C. 542, 69 S.E. 623 (1910); Gillis v. Chase, supra note 76; Jones v.
Conn, supra note 32.
89. Whether the riparian, under this theory, is in danger of losing his rights
through prescription is an issue beyond the scope of this paper.



beneficial uses under this mode of remedy, since it appears that any
injury will enable the riparian to bring his action. If there is actual
injury to the riparian, the court may provide for the most beneficial
use of the water by applying the balance of convenience doctrine to the
particular case and denying an injunction. However, the remedy at
law is preserved.
C. Summary and Analysis
Throughout the entire area of water rights to surface streams and
lakes there exists the distinction between riparian and non-riparian
land; riparians and non-riparians. To the riparian belongs the use of
the water; the non-riparian has no rights. When this distinction first
developed in the common law the streams and lakes were primarily a
source of supply for the domestic needs of the people. The law chose
to preserve those water supplies for the benefit of persons who had
established homes in reliance on the continued existence of these
streams and lakes. As domestic users were replaced by irrigators
and industrialists, the law did not reevaluate its position, but merely
expanded its concept of riparian use. This is the historical pattern
which remains the law of many states.
With the growth of population numbers and the ever-expanding in-
dustrial and irrigative developments, the demand for water has in-
creased continually. These demands come from the non-riparian as
well as the dweller along the stream; from the city dweller as well as
the riparian farmer. The need for exact determinations of relative
rights to water use grows larger as the quantity of water available for
new uses grows smaller.
To determine whether a riparian owner may make a certain use of
the water, a test of reasonable use under the circumstances is applied.
A riparian is entitled to have the full flow of the stream pass his land
subject only to the reasonable uses of upstream users. A riparian may
at all times use the water for his domestic needs, but it is not this
need which now taxes the capacity of surface streams and lakes. In-
dustrial and irrigative uses make the greatest demand on surface water
supplies and as to these uses the law of riparian rights is most in-
definite. Whether a particular use of this type will be allowed on a
watercourse will depend upon its being reasonable in relation to other
uses already existing on the watercourse. If the use interferes with
another, the question of reasonableness is litigated by the two parties
concerned in the courts.. There is very little possibility to find out
one's rights before an actual diversion has been attempted.
The test of reasonable use as between riparians appears imprac-
tical and unsatisfactory. With the great draftsbeing made on surface
water supplies, a new user is most likely to interfere with someone


else on the stream. This interference may cause the elimination of
either one of the users or it may curtail the operations of both. This
same situation may arise when an old user increases or changes his
use. Therefore, there is security neither for the new investor nor for
the old user who has been located on the stream for a number of years.
As a result of this indefiniteness and instability, investors are dis-
couraged, and many water sources remain undeveloped and unused.
But an even greater problem is, that which arises when the capacity of
a watercourse is fully used and there is no definite determination of the
relative rights of users. The riparian rights doctrine is essentially a
two party doctrine and does not provide for the mass determination of
rights on an entire watercourse or lake. Individual court adjudications
are expensive and not binding on anyone not a party to the proceedings.
This means that although two riparians may adjudicate their rights,
another riparian may so use the water as to eliminate the security af-
forded by the prior decree. It appears certain that the riparian doc-
trine of reasonable use as a method of determining the rights of ri-
parians is wholly inadequate for this purpose and cannot cope with the
increasing demands being made for a certain and secure supply of
water from streams and lakes.
Further uncertainty is presented for the riparian when he attempts
to determine the extent of his land which is riparian to a particular
source of water supply. This question is of peculiar interest to the
irrigator. In general, the law has developed so that a riparian cannot
carry the water beyond the watershed from which it is derived. The
limits of a watershed are practically incapable of being ascertained by
ordinary observation but require thorough testing, examination, and
study. This places a great financial burden upon the riparian, or re-
quires him to act at his peril without adequate information as to his
right to use water on a particular piece of land. The chain of title of
the land on which the water is to be used is important also in determin-
ing the extent of land entitled to riparian benefits. If the land has at
any time been subdivided so that certain sections thereof were not in
contact with the stream, these sections may not be riparian land even
though now united and adjoining the stream under one title holder.
Only a few jurisdictions have solved the problem of subdivided land
satisfactorily, so in most jurisdictions the riparian can only guess as
to the extent of his riparian land.
Apart from the problem of uncertainty and instability of a ripar-
ian's right to use water, there is the problem of supplying water to
non-riparian land. It is impossible for all people to be riparians.
The increasing population and industrial expansion require the utiliza-
tion of lands which are not adjacent to surface water supplies. In most
states, use of stream or lake water on non-riparian land is prohibited.



This use is considered as unreasonable or as unlawful per se. The
water of a stream or lake is for the riparians only. In a very slim
minority of jurisdictions, the courts have applied the test of reasonable
use to determine whether a particular non-riparian use is to be per-
mitted. Such a standard, although it provides for the distribution of
water to non-riparian lands, is nevertheless subject to criticism for
uncertainty and instability. However, by the great weight of authority,
a non-riparian cannot even obtain a supply of water by contract, since,
although as between the contracting parties the grant is valid, the non-
riparian has no standing against other riparians. The prohibition on
non-riparian uses precludes the distribution of water from areas of
plenty to areas of drought or great demand, and the water, where avail-
able, may be wasted.
The courts have attempted to provide for a distribution of water
from streams and lakes to non-riparian land by limiting the right to
bring a cause of action for non-riparian diversion. A majority of
jurisdictions provide that no cause of action for uses of water on non-
riparian land can be maintained unless the complainant shows actual
injury to a use he is making of the water. This court determination
denying the cause of action shows, in effect, a disregard of the English
notion of riparian rights; namely, that a non-riparian use is a violation
of the right to have the stream flow as by nature. Nevertheless, al-
though the requirement of actual damage is a step in the right direction
toward maximum utilization of water, it is by no means a very effective
method. The non-riparian is faced with the uncertainty created by the
fact that the riparian owner may decide to make use of the water and
deprive him of his use. Furthermore, should a riparian show actual
injury to his own use by reason of a non-riparian diversion, the ripar-
ian is in a position to demand the cessation of the unlawful use even
though the riparian use is far less beneficial than that of the non-
riparian. For example, a riparian mill owner can prevent a non-
riparian city from taking water for the domestic needs of its people.
The only means available to the court is to apply the balance of con-
venience doctrine and deny an injunction leaving the riparian to an ac-
tion for damages.
The social and economic disadvantages presented by the riparian
doctrine as applied to present day living conditions appear substantial
and worthy of legislative attention. In most states where the doctrine
of riparian rights is recognized as the law, all streams and lakes,
public or private, are the subject of these rights. No distinction is
drawn between waters where the bed is owned by the state and waters
where the bed is held by the riparian proprietor. This means that
problems created by the riparian theory exist throughout the state and
cannot be eliminated by control of state-owned waters. Only


Washington and New Jersey clearly deny the existence of riparian rights
on waters where the state owns the bed. Minnesota, by judicial opin-
ions, has succeeded in subjecting the riparian right to the public inter-
est on all navigable streams and, by considering certain consumptive
water uses as in the public interest, has been able to avoid interference
by the riparian. Even in these three states, however, the riparian
right still exists along a sufficient number of waterways to render it a
very formidable obstacle to the beneficial distribution and utilization of
water, one of man's most valuable resources.

A. Introduction
With increasing demands for water brought about by industrializa-
tion, greater irrigation needs, a desire for better living facilities, and
a growing population, the energies of men necessarily turn toward the
discovery and development of a new and greater water supply. The
surface streams, once serving as bountiful means of satisfying the
need for water, are polluted by industrial waste and city sewage. As a
source of water, they have become inadequate. Underground water
has not been a recent discovery of man. The spring and flowing well
have for centuries furnished the needs of an agrarian civilization; how-
ever, it was only with the increased utilization of this source for mu-
nicipal, industrial, and extensive irrigative uses, fostered by ma-
chinery capable of deeper and faster digging, that problems of water
rights have arisen and the law of underground water has been formu-
lated. Due to the development of this phase of water law at a relative-
ly recent date, the courts have been able to evaluate the effect of their
determinations by observing what has occurred in the area of surface
waters and have thereby been able to avoid some of the wastefulness
brought about under the riparian rights doctrine. There are, of
course, exceptions to this rule, and these are influenced by English
precedent in the field.
B. Legal Classification of Ground Water
The law develops slowly, moving from one concept to another with
deliberate hesitancy, striving if possible to bring all new factual de-
velopments within its existing classification. So it is not surprising
that the courts, in setting up a system of law for underground waters,
should carry over some of the ideas which had been developed in the
field of streams and lakes. The legal system recognizes two types of
underground water: (1) that which flows in known and defined sub-
terranean watercourses; and (2) that which percolates and oozes


through the ground in a wholly unknown and undefined direction. 90 The
first classification is a carry-over from the law pertaining to surface
watercourses. The rights pertaining to utilization ofi underground
water are determined first by answering the question of to which class
the water belongs. For this reason, it is important to consider the
difference between the two types.
In the absence of evidence to the contrary, all underground water
is presumed to be percolating and oozing through the earth. 91 By this
presumption, the burden of showing the existence of an underground
stream is on the party desiring to avail himself of the rules of distri-
bution relating to surface streams. Before 'examining a few of the
cases for their factual content, the decisions of the courts can best be
understood if the policy reasons for making a legal distinction in under-
ground water are appreciated.
The law relating to underground streams is the same as that re-
lating to surface watercourses. 92 The courts reason in the following
manner. Surface streams are known; they are defined. It is no major
problem of discovery to learn their origin and their termination, their
presence, or their absence. If a riparian desires to divert a stream
or make use of its flow in any manner, he can, with reasonable dili-
gence, ascertain the effect of his acts on, other individuals. He can act
with foresight and protect himself against making useless investments.
Therefore, if underground waters exist in such a manner as to be as-
certained with ease, to be determined with reference to their location
and course, to be recognized by the average individual enabling him to
use foresight in erecting improvements, there is, in the mind of the
courts, no reason to draw a distinction between this type of ground
water and surface streams. 93
On the other hand, certain ground waters, termed percolating
waters by the courts, are not easily known; their path is uncharted;
their source and termination are difficult to find. A man who could
look across his land and discover with ease the extent of surface waters
has no such opportunity as to percolating waters. If excavations for
land improvements are needed, a landowner must not be curtailed in
this operation by having to worry about underground waters. If he

90. Nourse v. Andrews, 200 Ky. 467, 255 S.W. 84 (1923); Cllnchfield Coal
Corp. v. Compton, 148 Va. 437, 139 S.E. 308 (1927); Evans v. City of
Seattle, 182 Wash. 450, 47 P. 2d 984 (1935).
91. Tampa Waterworks Co. v. Cline, 37 Fla. 586, 20 So. 780 (1896); Logan
Gas Co. v. Glasgo, 122 Ohio St. 126, 170 N.E. 874 (1930); Anno. 55
A.L.R. 1386-1388 (1928).
92. 56 Am. Jur. Waters 109 (1947).
93. For discussion of this policy background, see Acton v. Blundell, 12
Mees. & W. 324 (1843); Frazier v. Brown, 12 Ohio St. 294 (1861).


takes water from the percolating body, he has little or no way of know-
ing before hand that such will affect the supply to another landowner.
Therefore, the courts have not employed the same legal principles
which are applied to surface watercourses to underground percolating
To carry out the policy or reasoning for the distinction between
underground percolations and streams, the courts have indicated two
elements of a legal underground watercourse. It must be in a relative-
ly defined channel and known or discoverable from surface indications
without excavations for that purpose. 94 In spite of the lip service given
to the aspect of knowability from surface indications as being necessary
to prove an underground stream, the courts have not in fact relied on
this method alone. Cases are not infrequent where evidence obtained
by test well-drilling was accepted and considered by the court in classi-
fying underground waters. 95 It is not a violent over-throw of the basis
for distinguishing percolating waters, to permit evidence obtained from
other than surface indications to assist the court in making a determi-
nation of the type of water. With modern machinery at hand, it is not
unreasonable to permit the results of test drillings to be considered,
since such can no longer be called an extraordinary method of explora-
tion, nor can they be viewed as beyond the scope of reasonable dili-
gence. As is evident from the thinking of the courts set out above, it
is not necessary for underground water to run in subterranean caverns
in order to be classed as a ground water stream; waters which per-
colate through the ground can fall within the classification of under-
ground watercourses.96 It is the aspect of knowability that the courts
seek. A river which sinks into the ground only to rise again some

94. Clinchfield Coal Corp. v. Compton, supra note 90; Pence v. Carney,
58 W.Va. 296, 52 S.E. 702 (1905); United Fuel Gas Co. v. Sawyers,
259 S.W. 2d 466 (Ky. 1953); Pecos Cbunty Water Control & Imp. Dist.
v. Williams, 271 S.W. 2d 503 (Tex. App. 1954); Maricopa County Minu
nicipal Water Conservation Dist. v. Cotton Co., 39 Ariz. 65, 4 P. 2d
369 (1931).
95. Maricopa County Municipal Water Conservation Dist. v. Cotton Co.,
supra note 94; Evans v. City of Seattle, supra note 90; Huber v. Mer-
kel, 117 Wis. 355, 94 N.W. 354 (1903); cf. Willis v. City of Perry,
92 Iowa 297, 60 N.W. 727 (1894); Nashville, C. & St. L. Ry. v.
Rickert, 19 Tenn. App. 446, 89 S.W. 2d 889 (1935).
96. City of Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585 (1899);
Los Angeles v. Hunter, 156 Cal. 603, 105 Pac. 755 (1909); but see
Maricopa County Municipal Water Conservation Dist. v. Cotton Co.,
supra note 94, which appears to limit underground waters only to
streams which in no way percolate through the earth. As to percolat-
ing waters forming the subflow of a surface stream, see Buckers Irr.
Co. v. Farmers' Ditch Co., 31 Colo. 62, 72 Pac. 49 (1903).



distance away would be viewed as a subterranean watercourse. 97 It
has been held that where pumping by the defendant resulted in a cessa-
tion of flow to plaintiff's spring within a few hours, there existed a sub-
terranean watercourse. 98 This does not appear to be the general rule,
however, for several other courts have refused to recognize the mere
cessation of flow to another's spring as any evidence that there existed
an underground watercourse. 99 The cases reveal very few legal prin-
ciples of determination. The issue of whether or not an underground
stream legally exists is a question of fact and little more can be gained
from a study of the individual fact patterns than a statement of the gen-
eral policy. One proposition which can be drawn for the purpose of
evaluating the law as it will be set forth in the following pages is that,
comparatively speaking, there are very few instances in which the
courts have recognized the existence of an underground stream.
C. Rules Governing Utilization of Ground Water
1. General Observations
Earlier in the discussion of ground water, the statement was made
that the law of underground watercourses is the same as that pertaining
to surface streams. 100 No elaboration need be made of this legalide-
termination since it appears without contradiction in most all the juris-
dictions of the United States and England. 101 Only when the facts fail
to establish the existence of an underground stream is the law pertain-
ing to subsurface flow different from that governing surface streams.102
Three different rules have been developed by the courts for the
regulation of underground water use; the English rule, the American
rule or rule of reasonable use, and the rule of correlative rights. The
English rule finds its origin in the case of Acton v. Blundell103 involv-
ing the interference with plaintiff's supply of percolating water by
mining operations of the defendant. The court denied relief to the

97. Strait v. Brown, 16 Nev. 317 (1881); Heltman's Appeal, 4 Walk. (Pa.)
35 (1882); Washington County Water Co. v. Garver, 91 Md. 398, 46
Atl. 979 (1900).
98. Nashville, C. & St. L. By. v. Rickert, supra note 95.
99. Chase v. Silverstone, 62 Me. 175 (1873); Taylor v. Welch, 6 Ore. 198
(1876); Pecos County Water Control & Imp. Dist. v. Williams, supra
note 94.
100. Supra text.
101. E.g., Hale v. McLea, 53 Cal. 578 (1879); Tampa Waterworks Co. v.
Cline, supra note 91; Pence v. Carney, supra note 94; Nourse v. An-
drews, supra note 90; Bull v. Siegrist, 169 Ore. 180, 126 P. 2d 832
102. See Part II, B for a consideration of rights of use on surface streams.
103. Supra note 93.


plaintiff and reasoned that the proprietor of land owns all that is be-
neath the surface of the ground and if in his use thereof he injures the
percolating supply of another underground user, the injury is "damnum
absque injuria. "04 The English rule was perfected in the case of
Chasemore v. Richards. 105 The defendant, the Board of Health, ab-
stracted percolating water which supplied a stream on which the plain-
tiff operated a mill, thus interfering with plaintiff's mill operations.
The majority of the court formulated the now rigid English rule, relied
on the principle, "cujus est solum, ejus est usque ad coelum et ad
inferes,"106 and denied a remedy to the plaintiff. The minority deci-
sion by Coleridge, J. set forth what is now designated as the American
rule, applied the principle, "sic utere tuo ut alienum non laedas, "107
and held for the plaintiff. Thus were begun, at the same time, the two
rules relating to use of percolating waters which have vied constantly
since that time for recognition by the courts. The correlative rights
doctrine originated in the western states of this country. Many courts
refer to their decisions applying the reasonable use or American rule
as an example of the correlative rights doctrine, but such is mere con-
fusion of terminology. This doctrine is founded on the same principle
as that of the American rule; namely, all land-owners who own land
over an underground supply of water have some interest therein which
must be protected, but its method of apportioning the water is some-
what different. 108
2. Waste and Malicious Interference with Supply
Before proceeding to an analysis of the right to use subsurface
water based on different factual situations, it is necessary to dispose
of the questions raised as to the legal right to waste percolating waters
or to interfere with their flow for the purpose of injuring another user.
The term, "waste," as used here does not mean inefficiency of use, but
it means non-use in the sense of letting the water flow from a well,
naturally or artificially, without applying the water to any use or for
any purpose. The questions of malice and waste arise due to the na-
ture of the English rule which in very absolute terms affirms the right
to make use of the water without regard to the interests of any other
individual. This rule has received its harshest application by the

104. Injury without remedy.
105. 2 Hurl. & N. 168 (1857).
106. To whomsoever the soil belongs, he owns also to the heavens and to
the depths.
107. So use your own property as not to injure another's.
108. See text, infra Part m, C3, for discussion of American rule and cor-
relative rights rule.


Supreme Court of Wisconsin in the case of Huber v. Merkel. 109 The
court held that a landowner has an absolute right to the water which he
finds percolating through his land and this right encompasses the
wasting of water with a malicious intent to harm other users. 110 It is
obvious that an interest in the most beneficial utilization of natural re-
sources was not the concern of the court in making this decision.
Other courts, perhaps not with any view toward a beneficial distribu-
tion or utilization of the water resource, but probably shocked by the
idea of malice or waste itself, have not followed in the steps of the
Wisconsin court. The majority of jurisdictions have adopted the rule
that waste and malicious interference will not be tolerated and relief
has been granted to an injured plaintiff. 111 In denying the right to
waste percolating waters, there is no clear distinction between those
instances in which the court has applied the strict English rule but
tacked on an exception outlawing waste, 112 and those times when the
court has applied the American rule stating that waste is an unreason-
able use of the water. 113 In result, both are the same and waste and
malicious interference are eliminated as protected "uses" of per-
colating water.
3. Use on Land Where Source is Located
In considering the relative rights of landowners to make use of
percolating waters which they find beneath their land, a study of char-
acteristic factual situations which have arisen is the most feasible
method of approach. The first situation concerns the right of a land-
owner to abstract percolating water for use on his land overlying the
water basin. Few cases have reached the higher courts on the issue
of the extent of a particular water basin, and, other than stating that
it is a question of fact, no rules of law for deciding the issue have been
formulated. 114 For this reason, no discussion of the extent of water

109. Supra note 95; see Coates, "Present and Proposed Legal Control of -
Water Resources in Wisconsin," 1953 Wis. L. Rev. 256, 271-274.
110. See also Chatfield v. Wilson, 28 Vt. 49 (1855) as limited by Fire Dis-
trict v. Graniteville Spring Water Co., 103 Vt. 89, 152 Atl. 42 (1930).
111. Redman v. Forman, 83 Ky. 214 (1885); Frazier v. Brown, supra note
93; Wheatley v. Baugh, 25 Pa. 528 (1855); Springfield Waterworks Co.
v. Jenkins' 62 Mo. App. 74 (1895); Gagnon v. French Lick Springs
Hotel Co., 163 Ind. 687, 72 N.E. 849 (1904); Rose v. Socony-Vacuum
Corp., 54 R.I. 411, 173 Atl. 627 (1934); Sycamore Coal Co. v. Stan-
ley, 292 Ky. 168, 166 S.W. 2d 293 (1942); DeBok v. Doak, 188 Iowa
597, 176 N.W. 631 (1920).
112. E.g., Gagnon v. French Lick Springs Hotel Co., supra note 111.
113. E.g., Redman v. Forman, supra note 111.
114. For a factual determination see Corona Foothill Lemon Co. v. Lilli-
bridge, 8 C. 2d 522, 66 P. 2d 443 (1937).


basin land is set forth, whereas on surface streams the issue of the
extent of riparian land is more developed. Applying the different rules
of law to this factual pattern, various results are possible. Under the
English rule, the landowner could pump water to his heart's content
without consideration of the effect on his neighbor. So long as this
water is not being entirely wasted or it is not a case of mere malicious
interference, the majority of jurisdictions in this country would apply
the English rule and permit one user to take the entire supply. 11
Such a result manifests the effect of the doctrine Of "cujus est solum"
as enunciated in the early case of Acton v. Blundell. 116 An applica-
tion of the American rule of reasonable use would necessitate a factual
determination of whether the use made by the landowner, against whom
relief is sought, is reasonable. If it is, no relief is granted to the in-
jured petitioner. This rule has received very little, if any, support in
situations involving competing consumptive uses of water on the land
from which it is derived. The English rule as enunciated in Chasemore
v. Richards117 seems to dominate the courts. It is in instances in-
volving the interference with percolating waters by a landowner through
improvements or mining on his land that the courts have applied the
rule of reasonable use. 118 In the majority of cases, the interference
with percolating water is only incidental to the activity being performed
on or under the surface of the land. The basis of the rule of reasonable
use as applied here is the principle, "sic utere...." The doctrine of
correlative rights was developed in two jurisdictions, California and
Utah, although the latter has since adopted a system of appropriation
for underground water. By this doctrine, each landowner over the
particular water basin is entitled to an amount of water proportionate
to the amount of surface area he owns. If there is a shortage of water
so that the available supply is inadequate to furnish water for each
owner, all users will suffer a reduction in their supply on a prorata
basis. Regardless of the reasonableness of a particular use, if it de-
prives another of his roportionate share of the water supply, the use
will be prohibited. 11 C

115. Frazier v. Brown, supra note 93; Greenleaf v. Francis, 18 Pick.
(Mass.) 117 (1836); Dunbar v. Sweeney, 230 N.Y. 609, 130 N.E. 913
(1921); Clarke County v. Mississippi Lumber Co., 80 Miss. 535, 31 So.
905 (1902); Feldhaus v. Jefferson County, 264 Ky. 829, 95 S.W. 2d
790 (1936); Chasemore v. Richards, sura note 105.
116. Supra note 93.
117. See Part I, C1.
118. Anno. 29 A.L.R. 2d 1356 (1953).
119. Glover v. Utah Oil Refining Co., 62 Utah 174, 218 Pac. 955 (1923);
O'Leary v. Herbert, 5 C. 2d 416, 55 P. 2d 834 (1936); Corona Foot-
hill Lemon Co. v. Lillibridge, supra note 114.



4. Use of Water beyond the Water Basin
The use of underground water on lands not located over the source
of supply raises problems similar to those involving the use of water
from surface streams and lakes beyond the watershed. The develop-
ment of the law of percolating waters has been just the reverse of the
development of the law of surface streams and lakes. It will be re-
called that the courts first recognized only limited uses of stream
waters on riparian land and gradually extended the uses and later re-
quired that the riparian actually be injured before he can bring an ac-
tion. As to percolating waters, the courts at first gave an absolute
right to the user placing no limitations on his actions. Subsequently,
the courts have placed one restriction, then another, on this absolute
right of use. So, once the aspects of waste and malice were dis-
allowed, it is not uncommon to see the courts limiting the use of per-
colating water beyond the basin from which it is taken. Certainly,
there are a few jurisdictions which still maintain-the English rule and
permit a user to transport water taken from his land to other users
regardless of their proximity to the water basin. 120 Such decisions
can no longer be designated as the majority rule since the trend in
case law favors limitations on the absolute use of this source of supply.
Courts which have denounced the transportation of water to a user out-
side the water basin have, in general, applied two modes of reasoning.
The first is to declare that such is an unlawful use, reflecting, no
doubt, the thinking that as to surface streams, a diversion beyond
riparian land is unlawful per se. 121 On the other hand, the Supreme
Court of Florida has applied the test of reasonable use and submitted
to the jury the issue whether the particular use made by the landowner
in transporting water beyond the water basin is reasonable. 122 This
is a clear instance of the application of the doctrine of reasonable use.
In contrast, although other courts may speak in terms of the American
rule, they make an automatic decision that use beyond the water basin
is not permitted and do not consider whether the use under the

120. New River Co. v. Johnson, 2 El. & El. 435 (1860); Houston & T.C.R.
Co. v. East, 98 Tex. 146, 81 S.W. 279 (1904); Fire District v. Gran-
iteville Spring Water Co., supra note 110; Greenhill & Gee, "Owner-
ship of Ground Water in Texas; The East Case Reconsidered," 33 Tex.
L. Rev. 620 (1955).
121. Examples of this form of decision are: Meeker v. East Orange, 77
N.J.L. 623, 74 Atl. 379 (1909); Rothrauff v. Sinking Spring Water Co.,
339 Pa. 129, 14 A. 2d 87 (1940); Rouse v. Kinston, 188 N.C. 1, 123
S.E. 482 (1924).
122. Koch v. Wick, 87 S. 2d 47 (Fla. 1956).



circumstances is reasonable or not. 123 A reading of other decisions
gives the impression that the courts are not clear on their reasoning
but only in the result desired. 124 In Michigan, for example, the court
used language clearly granting to the city of Ann Arbor the right to di-
vert a reasonable amount of water from a percolating source for the
use of its inhabitants some distance away; nevertheless, the court left
the door open for a suit should the pumping of the city result in injury
to the plaintiff 125 Although uniformity of reasoning is not one of the
aspects of the courts' determination on this subject, they have ex-
pressed unanimous agreement on the principle that before a water user
can bring his action for diversion beyond the water basin, he must show
actual injury to his use. What, in effect, the courts are saying is that
there is not an abstract right to receive percolating water from adjoin-
ing land subject only to uses on water basin land. They are stating that
it is only for an injury to the usufructuary right that an action will
lie. 126 An application of the correlative rights doctrine to this factual
situation would give about the same result as an application of the
reasonable use doctrine. The court would determine the amount of
water to which the complainant is entitled and then permit the diver-
sion of the supply over and above this amount beyond the water basin. 127
If the complainant is not injured, the use beyond the water basin would
not be enjoined. 128 These rules are applied with equal force in cases
of municipal diversion. The law of percolating waters has not devel-
oped sufficiently to answer the question of the rights of a municipality
to draw, for the supply to its inhabitants, water from a basin beneath
its territorial limits.
5. Use of Ground Water Which Interferes with Surface Flow
One final factual pattern demands consideration before the present
law of rights in subterranean waters can be evaluated. The question

123. Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663 (1902); Forbell v. City
of New York, 164 N.Y. 522, 58 N.E. 644 (1900); Canada v. City of
Shawnee, 179 Okla. 53, 64 P. 2d 694 (1937).
124. E.g., Cohen v. La Canada Land & Water Co., 142 Cal. 437, 76 Pac.
47 (1904); Erickson v. Crookston Waterworks P. & L. Co., 100 Minn.
481, 111 N.W. 391 (1907); Westphal v. City of New York, 177 N.Y.
140, 69 N.E. 369 (1904).
125. Schenk v. City of Ann Arbor, 196 Mich. 75, 163 N.W. 109 (1917); cf.
Bernard v. City of St. Louis, 220 Mich. 159, 189 N.W. 891 (1922)
where the city was allowed to divert water so long as it paid for plain-
tiff's damages.
126. E.g., Davison v. City of Ann Arbor, 237 Mich. 453, 212 N.W. 81
(1927); Hartford Rayon Corp. v. Cromwell Water Co., 126 Conn. 194,
10 A. 2d 587 (1940).
127. Supra note 119.
128. Ibid.



is posed: what are the rights of a percolating water user when his use
affects the flow of water in a surface stream or lake? The importance
of such an analysis cannot be underestimated, since there is a tendency
among jurisdictions enacting water use legislation to limit this legisla-
tion to surface streams and lakes only, excluding therefrom regulation
of underground supplies. It is, therefore, vitally important to know
the extent to which underground water use justifiably may interfere with
a system of appropriation in operation on surface waters.' The English
rule, if consistently applied, draws no distinction between a use of per-
colating water which affects another well owner and a use which affects
a stream user. 129 The result of this ruling is to deprive the riparian
user on the stream of water for his uses without recourse or remedy.130
Such a result has not been favored in the United States, however, and
the trend has been to draw a distinction in the law of percolating waters
when the use interferes with stream flow. Even in a jurisdiction such
as Vermont where the English rule is firmly entrenched, the courts
have applied the rule of reasonable use when the draft on percolating
waters cuts down stream flow. 131 This is the rule adopted in New
York, at least when the diversion from the percolating source is to
land not within, the water basin. 132 In California and Utah, the situa-
tion arose whereby the right of the landowner to take percolating water
interfered with the prior appropriation rights of persons on a nearby
stream. Both courts prevented the taking by the underground users to
the extent that such uses interfered with the prior appropriation
rights; 133 Numerically, the question has not been presented often
enough so that any absolute rule can be laid down. It is clear that the
courts in the United States which have had the opportunity to decide the
issue have favored the stream user, applying the rule of reasonable
use in the eastern states and holding in favor of the surface water ap-
propriator in the west. The user of percolating water cannot assert
an absolute right to use the water against the stream user; the doctrine,
"sic utere...," will be applied.

129. Chasemore v. Richards, supra note 105.
130. Wilson v. Ward, 26 Colo. 39, 56 Pac. 573 (1899); but see Comstock v.
Ramsey, 55 Colo. 244, 133 Pac. 1107 (1913) and Dalpez v. Nix, 96
Colo. 540, 45 P. 2d 176 (1935). Roberts v. Gribble, 43 Utah 411,
134 Pac. 1014 (1913); but see Silver King Consol. Min. Co. v. Sutton,
85 Utah 297, 39 P. 2d 682 (1934).
131. Fire District v. Graniteville Spring Water Co., supra note 110.
132. Smith v. City of Brooklyn, 18 App. Div. 340, 46 N.Y. Supp. 141 (1897);
Merrick Water Co. v. City of Brooklyn, 32 App. Div. 454, 53 N.Y.
Supp. 10 (1898), aff'd without opinion, 160 N.Y. 657, 55 N.E. 1097
133. Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 C. 2d 489, 45 P.
2d 972 (1935); Silver King Consol. Min. Co. v. Sutton, supra note 130.


D. Conclusion
In providing for the equitable distribution of underground waters,
the courts have, to a greater extent than in the case of stream flow,
eliminated waste. There is no right to the natural flow of underground
percolating waters, as in surface streams, and a subsurface user has
no grounds for complaint unless he suffers actual injury. This com-
bination of factors enables some use to be made of all the available
supply. Regardless of the legal doctrine applied, the English rule,
the reasonable use rule, or the rule of correlative rights, all per-
colating waters can be put to use by someone having access thereto.
This does not, however, provide in any way for the most beneficial
distribution of the water but leaves this factor to chance development.
If injury be occasioned to the user by another supplying water beyond
the water basin, which, in most every jurisdiction will be considered
as wrongful, the injured party will be protected, either by damages or
injunction. No opportunity is given the court to deny relief on the
basis that the one part is using water more beneficially than another.
The element of stability of water right is absent when an applica-
tion of the English rule or reasonable use rule is made, while it is
possible through a comprehensive application of the correlative rights
doctrine to attain desired certainty. Although in a state adhering to
the English rule a user may draw percolating waters with immunity,
he is liable to be deprived of his supply without compensation should
another proprietor decide to tap the source before it reaches the origi-
nal user. If the American rule of reasonable use is followed, the same
objections voiced against this rule as applied to stream flow can be
raised; namely, the standard of reasonable use is too vague and uncer-
tain, and a user is liable to be deprived of his supply by the reasonable
use of another. By the correlative rights doctrine, an apportionment
of the supply available based on land surface area ties the quantity of
water to be used to a fixed element, the amount of land. This gives a
degree of fixity to the quantity of water permitted for use on any par-
ticular parcel of land. Should a shortage of water develop, due to
physical uncertainty, each proprietor takes a proportionate cut in sup-
ply. This latter uncertainty would exist under any scheme of water
laws, only the method of handling the crisis may differ. An objection
to the idea of a proportionate cut in case of a shortage is that such may
spread the supply of water too thin over the basin thus enabling no user
individually to make a beneficial use of the water.



A. Introduction
The third and final classification in the field of water law is that of
diffused surface waters. The courts of the various jurisdictions have
often been called upon to decide the issues relating to the disposal of
such water, but seldom has the opportunity been presented for the
courts to establish rules concerning diffused surface water utilization.
Diffused surface waters by definition lack the elements of channel and
constancy of flow which characterize the stream. Thus, the utilization
of such water requires considerable labor and expense to collect it into
a body for use. Such is not sufficient, however, to render this supply
unimportant, for, as a chief supplier of surface streams and lakes, its
place in the water pattern cannot be overlooked.
B. Definition of Diffused Surface Water
A definition of this type of water can be found with ease in most any
case which distinguishes between such water and stream flow. But, a
definition, being a mere tool, must be applied to prove its true worth
and that is where difficulty begins. The Nebraska Supreme Court in
County of Scotts Bluff v. Hartwig approved this definition:

Water which appears upon the surface of the ground in a dif-
fused state with no permanent source of supply or regular
course is regarded as surface water.13

Speaking with reference to its source, the Supreme Court of Michigan

... [S]urface waters are commonly understood to be waters on
surface of the ground, usually created by rain or snow, which
are of a casual or vagrant character, following no definite
course and having no substantial or permanent existence. 35

Actually, what the courts are seeking by their definitions is a type of
water on the surface of the ground which is so undefined as to defy the
name "watercourse." The source of this water as rain or melting
snow is not one absolutely required, as the statements of the Michigan
court would seem to indicate since water having its source in a spring
has been classified as diffused surface water. 136 For purposes of

134. 160 Neb. 823, 828, 71 N.W. 2d 507 (1955).
135. Fenmode v. Aetna Cas. & Surety Co., 303 Mich. 188, 192, 6 N.W. 2d
479 (1942); cf Jack v. Teegarden, 151 Neb. 309, 37 N.W. 2d 387
136. E.g., Hawley v. Sheldon, 64 Vt. 491, 24 Atl. 717 (1892); 3 Farnham,
Waters and Water Rights 2556 (1904).



discussion here, a watercourse can be defined as "a stream usually
flowing in a definite channel, having bed and sides or banks, and usual-
ly discharging itself into some other stream or body of water. "137 As
these characteristics of a watercourse are totally absent from the par-
ticular water in question, there is little or no problem in designating
the water, diffused surface water. Should any or all of these elements
exist in some degree, the problem of classification becomes increas-
ingly more difficult. The issue is one of fact and few generalizations
can be drawn from the decisions of the courts. Regularity of flow is
always demanded for a watercourse although such flow need not be con-
stant or great. 138 Perhaps no clearer example of this statement can
be found than in some of the western states where streams flowing in
great quantities in the spring of the year remain completely dry in the
heat of the summer. 139 A reading of the cases leaves one with little
more than a few generalities from which to decide what is or is not
diffused surface water. 140
C. Rules Governing Use of Surface Water
Once the particular water has been classified as diffused surface
water, the court is presented with two rules relative to the use of this
water: the English rule of absolute control and the rule of reasonable
use. The English rule, by far the majority, permits the landowner to
capture the surface water on his land and make any use thereof he de-
sires. No distinction has been drawn between surface waters which
merely flow to another's land and those which supply a watercourse in
a substantial way. 141 This mode of decision reflects the influence of
the principle, cujus est solum. 142 Such is the rule adopted in a ma-
jority of jurisdictions deciding the issue; however, the number is not
sufficient to form any further conclusions than the mere formulation of
the rule. 143

137. 2 Farnham, Water and Water Rights 1562 (1904).
138. Rummell v. Lamb, 100 Mich. 424, 59 N.W. 167 (1894); New Jersey,
I. & I.R. Co. v. Tutt, 168 Ind. 205, 80 N.E. 420 (1907); Jaquez Ditch
Co. v. Garcia, 17 N.M. 160, 124 Pac. 891 (1912).
139. E.g., parts of the Rio Grande and Red River during the summer.
140. See Note, 15 B. U. L. Rev. 892, 894 (1935); For a list of cases in-
volving factual determinations of the existence or non-existence of sur-
face water, see Anno. 40 A.L.R. 839 (1926).
141. Broadbent v. Ramsbotham, 11 Exch. 602 (1856).
142. Livingston v. McDonald, 21 Iowa 160 (1866).
143. Ibid. Buffum v. Harris, 5 R.I. 243 (1858); Bowlsby v. Speer, 31
N.J.L. 351 (1865); Gibbs v. Williams, 25 Kan. 214 (1881); Schaefer v.
Marthaler, 34 Minn. 487, 26 N.W. 726 (1886); Messinger v. Woodcock,
159 Ore. 435, 80 P. 2d 895 (1938); Turner v. Big Lake Oil Co., 128
Tex. 155, 96 S.W. 2d 221 (1936).


In the state of New Hampshire, which originated the doctrine of
reasonable use as applied to underground percolating waters, the court
also has applied the test of reasonable use to the taking of diffused sur-
face waters. By this rule, a landowner is entitled to make a reasonable
use of the diffused surface water, and such use is a factual question for
the jury. 144 This is the only jurisdiction which has applied this rule;
however, it is highly probable that, should the utilization of diffused
surface water develop to a greater degree, the courts will disregard
the English rule as they did in the case of percolating waters and adopt
the rule of New Hampshire.
D. Conclusion
The appropriation of diffused surface water as a source of supply
for consumptive use has advanced very little past the stage of natural
accumulation due to the configuration of the land. In such cases, the
law of surface streams or lakes applies. Few cases involving the
rights of parties to use diffused surface water have come before the
courts. There are no cases indicating the rule to be applied when sur-
face water is transported to distant land, the rule as to waste and
malicious interference, and the rule as to a city's right to appropriate
diffused surface water within its corporate limits. If the user of dif-
fused surface water interferes with a statutory system of water appro-
priation in effect on streams and lakes of a state, it seems reasonable
to assume that the courts will adopt the rationale of the Utah Supreme
Court as to percolating waters and give to the stream user an interest
in the diffused surface waters which supply the stream to the extent
necessary to protect the stream appropriator. 145 Due to the scarcity
of decisions, no conclusions can be drawn as to the possibilities for a
most beneficial utilization of surface waters. It can be supposed that
this field of water law, if unaltered by statute, will develop in the
same vein as percolating water law. In such a case, the same criti-
cisms and weaknesses attributed to that field of law are present.

144. Bassett v. Salisbury Mfg. Co., 43 N.H. 569 (1862); Swett v. Cutts, 50
N.H. 439 (1870).
145. Silver King Consol. Min. Co. v. Sutton, supra note 130.

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