REGULATION OF WATER RIGHTS UNDER
THE POLICE POWER
Dominic B. King
TABLE OF CONTENTS
I. INTRODUCTION ....................
II. GENERAL BACKGROUND OF THE POLICE POWER. .
III. LIMITATIONS ON THE EXERCISE OF THE POLICE
POW ER . . . . . .
IV. REGULATION OF OIL AND GAS RESOURCES . .
V. REGULATION OF WATER RESOURCES AND THE
UNITED STATES SUPREME COURT . . .
VI. THE UNITED STATES SUPREME COURT AND REGULA-
TION OF ECONOMIC INTERESTS .
VII. STATE COURTS AND REGULATION
A. Arizona . . .
D. Kansas .
E. Nebraska .
G. New Mexico.
H. North Dakota
I. Oregon .
J. South Dakota.
VII. FOUR SELECTED
A. Florida ..
B. Indiana .
D. Wisconsin .
E. Some Observations About the Eastern
F. Other State Activity in the East. .
IX. CONCLUSION .............
. . 304
. .. .
. ., .
. ,. .
REGULATION OF WATER RIGHTS UNDER
THE POLICE POWER
Dominic B. King*
When any legislation modifies, limits, or abrogates riparian
rights, the issue arises whether the statute amounts to a taking of
property without due process of law. 1 Before one can claim a con-
stitutional protection for a riparian right, it must be demonstrated
initially that the riparian right was a vested property interest with-
in the cognizance of the United States Constitution or the compara-
ble provisions of the state constitutions. This discussion assumes
that at least the major facets of the "bundle of rights" denoted as
riparian will be classified as vested property interests and so con-
stitutionally protected. The further question then arises whether
the legislation amounts to a taking of property for which compensa-
tion must be made to the owner, or whether the enactment is a
regulatory measure within the proper scope of the state police
power, so as to preclude the necessity of compensation. In this
study an attempt will be made to discover the answer to this ques-
tion and to discern the rational guides of proper constitutional de-
limitation in the management, control, and conservation of the na-
tion' s water resources.
II. GENERAL BACKGROUND OF THE POLICE POWER
To evaluate properly the constitutionality of police power regu-
lation in a specific instance, it is imperative to comprehend the
history and scope of the concept. The term police power is but a
convenient summarization of the power inherent in the sovereignty2
'*Legislative Analyst, Legislative Research Center, University of Michigan
SLaw School. Member of Montana Bar. B.A., Montana State University,
1951; LL.B., Montana State University, 1952.
1. This would be a violation of the Fourteenth Amendment to the United
States Constitution; an issue may arise as well under the state constitu-
tions which have provisions similar to the Fourteenth Amendment either
in language or by court construction.
2. Barbier v. Connolly, 113 U.S. 27, 5 S. Ct. 357 (1885); Lake Shore &
M.S. Railway Co. v. Smith, 173 U.S. 684, 19 S. Ct. 565 (1899); Nebbia
272 WATER RESOURCES
to perform adequately all the requisite functions of a civilized gov-
ernment. 3 This concept has been defined by Professor Freund as
"the power of promoting the public welfare by restraining and regu-
lating the use of liberty and property. "4 Since this authority de-
rives from the sovereignty of government, it existed prior to the
adoption of the United States Constitution5 and does not depend upon
that document for its creation or vitality. 6 From this premise it
follows that a state of the union has the same jurisdiction over per-
sons and property within its territorial limits as does any foreign
nation subject to any restraints of the federal or state constitu-
tions. By virtue of this jurisdiction "it is not only the right, but
the bounden and solemn duty of a state, to advance the safety, hap-
piness and prosperity of its people, and to provide for its general
welfare, by any and every act of legislation, which it may deem to
be conducive to these ends. "8 This fact is highly significant. Any
inquiry into an exercise of the police power must fathom and ap-
preciate this approach-the state is performing an essential and a
basic duty. It is not merely meddling with economic affairs; the
state is furthering the legitimate ends of the public. Therefore,
any examination of the police power must be approached with due
respect for its nature, its function, and its absolute necessity to an
v. New York, 291 U.S. 502, 54 S. Ct. 505 (1934). As discussed in a
later section, the Nebbia case portended the "Constitutional Revolution"
effected in the thirties.
3. The Mayor of the City of New York v. Miln, 11 Pet. 102 (1837).
4. Dodd's Cases on Constitutional Law, 4th ed., p. 997 (1949); Chief Jus,
tice Taney in the License Cases, 5 How. 504, 583 (1847), had this to
But what are the police powers of a State? They are nothing
more or less than the powers of government inherent in every
sovereignty to the extent of its dominions. And whether a
State passes a quarantine law, or a law to punish offenses, or
to establish courts of justice, or requiring certain instruments
to be recorded, or to regulate commerce within its own limits,
in every case it exercises the same power; that is to say, the
power of sovereignty, the power to govern men and things
within the limits of its dominion.
5. The Mayor of the City of New York v. Miln, supra note 3.
6. Ibid. But, of course, it finds its limitations therein. These limitations
would arise only when the exercise of the police power clearly violates
an express provision of the Federal Constitution.
8. Id. at 139.
AND THE LAW
Sovereign authority under the police power is a remarkably
sturdy force being one of the least limitable of all the powers of
government. This latent force abides coextensively with the sov-
ereignty so that the sovereignty can neither bargain nor legislate
away its police power. 10 To be sure, the government of a state
Smay choose not to exercise this authority to its full extreme, but
Sthe inherent potential remains to be used when needed.
Although it has been said that the police power has been left to
the states, 11 still the fact remains quite clear that the federal gov-
Sernment exercises a type of police power. 12 But this notion that
only the states exercise this authority does serve to point up the
fact that, although the United States Constitution delimits the police
power, no provisions of the Constitution created it nor were any
constitutional provisions specifically intended or designed to inter-
fere with or to cripple the police power of the various states. 13
The police power extends to providing for and protection' the
public health, 14 the public morals, 15 and the public safety.I
Though these matters are the more obvious, this list is by no
means exhaustive. In Chicago, B. & Q. Railway v. Drainage
Comm'rs., the Supreme Court stated:
9. District of Columbia v. Brooke, 214 U.S. 138, 149, 29 S. Ct. 560 (1909);
Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S. Ct. 217 (1917); McDonald
v. Mabee, 243 U.S. 90, 37 S. Ct. 343 (1917).
10. Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 4 S. Ct. 652
(1884); Stone v. Mississippi, 101 U.S. 814 (1879). To permit it to be
otherwise would result in a sovereignty being able to destroy its very
11. Keller v. United States, 213 U.S. 138, 29 S. Ct. 470 (1909); Hammer v.
Dagenhart, 247 U.S. 251, 38 S. Ct. 529 (1918).
12. See Cushman, "The National Police Power Under the Commerce Clause
of the Constitution," 3 Minn. L. Rev. 289, 381, 452 (1919). All sov-
ereignty must possess these attributes; the federal government merely
finds it through its enumerated powers and all that those encompass.
13. The Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 (1819);
Butchers' Union Co. v. Crescent City Co., supra note 10; Holden v.
Hardy, 169 U.S. 366, 18 S. Ct. 383 (1898).
14. License Cases, 5 How. 504 (1847); Slaughter House Cases, 16 Wall. 36
(1872); Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358 (1905);
New Orleans Gas Co. v. Drainage Comm., 197 U.S. 453, 25 S. Ct. 471
(1905); California Reduction Company v. Sanitary Works, 199 U.S. 306,
26 S. Ct. 100 (1905); Bradley v. Public Utilities Comm., 289 U.S. 92,
53-S. Ct. 577 (1933); Bourjois. v. Chapman, 301 U.S. 183, 57 S. Ct. 691
15. Stone v. Mississippi, supra note 10; Kidd. v. Pearson, 128 U.S. 1, 9
S. Ct. 6 (1888); Booth v. Illinois, 184 U.S. 425, 22 S. Ct. 425 (1902);
Otis v. Parker, 187 U.S. 606, 23 S. Ct. 168 (1903).
16. Pierce Oil Corp. v. City of Hope, 248 U.S. 498, 39 S. Ct. 172 (1919);
see Block v. Hirsh, 256 U.S. 135, 41 S. Ct. 458 (1921).
274 WATER RESOURCES
We hold that the police power of a State embraces regulations
designed to promote the public convenience or the general pros-
perity, as well as regulations designed to promote the public
health, the public morals or the public safety.17
Public convenience and general prosperity are expansive terms of
comprehensiveness. The ideas thereby expressed have been re-
stated by Mr. Justice Holmes in this manner: "... the police power
extends to all the great public needs. "18 The generic term encom-
passing the myriad proper applications of the police power has been
often spoken of as "the promotion of the general welfare."19 Gen-
eral welfare is a concept covering such multitudinous circumstances
that it is quite incapable of any precise definition. From the broad
and inclusive nature of this sovereign power, 20 it readily appears
that the police power authority is one of the most essential of gov-
ernment, that the imperative necessity of, its existence and opera-
tion precludes limitation (unless unreasonable or arbitrary), and
that the exercise of the police power may appear to, and actually
be, harsh in effect. 21 Severity of operation on individual rights is
merely to be equated with the rights of the general welfare of so-
The concept of the public welfare deals not only with physical
and monetary matters but also applies, as well, to spiritual and
aesthetic qualities. 22 Nor is the idea of general welfare static or
17. 200 U.S. 561, 592, 26 S. Ct. 341 (1906).
18. Noble State Bank v. Haskell, 219 U.S. 104, 111, 31 S. Ct. 186 (1911),
concerning the police power the Court there further observed:
It may be put forth in aid of what is sanctioned by usage, or
held by the prevailing morality or strong and preponderant
opinion to be greatly and immediately necessary to the public
welfare.... If then the legislature of the State thinks that the
public welfare requires the measure under consideration,
analogy and principle are in favor of the power to enact it.
See also Camfield v. United States, 167 U.S. 518, 17 S. Ct. 864 (1897).
19. California Reduction Company v. Sanitary Works, supra note 14; Bacon
v. Walker, 204 U.S. 311, 27 S. Ct. 289 (1907); Schmidinger v. City of
Chicago, 226 U.S. 578, 33 S. Ct. 182 (1913); Eubank v. City of Rich-
mond, 226 U.S. 137, 33 S. Ct. 76 (1912); Nashville C. & St. L. Ry. v.
Walters, 294 U.S. 405, 55 S. Ct. 486 (1934); West Coast Hotel Company
v. Parrish, 300 U.S. 379, 57 S. Ct. 578 (1937). General welfare may
mean different things to different generations and to different courts as
20. Buchanan v. Warley, 245 U.S. 60, 38 S. Ct. 16 (1917).
21. Hadacheck v. Sebastian, 239 U.S. 394, 410, 36 S. Ct. 143 (1915).
22. Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98 (1954). The idea of gen-
eral welfare has been expanding in scope, especially in more recent
AND THE LAW
rigid. Instead, changing economic and political conditions reflect
upon and determine what is proper for the public welfare at any
given point of time. 23 Society and the police power are in a state
of flux. So it is that the police power has the flexibility to meet
these new and kaleidoscopic conditions. 24 Within the purview of the
notion of general welfare, the state police power properly extends
to both the development and conservation of the state's resources
and the wealth of the community. 25 In the proper exercise of this
power the state may, under certain circumstances, prohibit as well
as regulate economic activities. 26
Today it is almost a truism that all property is held subject to
the reasonable regulation of the state under the police power. 21 No
property right is absolute; one cannot arrogate to himself an un-
limited right over property without subordination of that right to the
common good. Any concept of private property must recognize this
fundamental proposition. 28 In this regard the state can protect
present property rights and yet restrict identical future ones.29
From the very nature of this state authority it would necessarily
follow that the scope of the police power must depend upon the facts
of each case. 30 General principles in this area can only afford an
imperfect guide. In the Slaughter-House Cases the court spoke of
this matter in relation to the police power as follows:
This power is, and must be from its very nature, in-
capable of any very exact definition or limitation. Upon it
depends the security of social order, the life and health of
the citizen, the comfort of an existence in a thickly populated
23. Holden v. Hardy, supra note 13; Brazee v. Michigan, 241 U.S. 340, 36
S. Ct. 561 (1916); West Coast Hotel Company v. Parrish, supra note 19.
25. See Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 56 S. Ct. 513
(1936); Geer v. Connecticut, 161 U.S. 519, 16 S. Ct. 600 (1896). The
states apparently have plenary power over fish and game.
26. License Cases, supra note 14; Stone v. Mississippi, supra note 10; Kidd
v. Pearson, supra note 15. There are limitations upon such prohibition
as will be demonstrated in the following section.
27. Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548, 34 S. Ct. 364
(1914); The Pipe Line Cases, 234 U.S. 548, 34 S. Ct. 956 (1914); Eiger
v. Garrity, 246 U.S. 97, 38 S. Ct. 298 (1918); Queenside Hills Realty
Co. v. Saxl, 328 U.S. 80, 66 S. Ct. 850 (1946). In this regard it must
be kept in mind that the exercise of the police power is entirely differ-
ent from eminent domain, the former does not require compensation
while the latter does. See Sweet v. Vechel, 159 U. S. 380, 399, 16 S.Ct.
43 (1895), where this distinction is made clear.
29. Sperry & Hutchinson Co. v. Rhodes, 220 U.S. 502, 31 S. Ct. 490 (1911).
30. See Berman v. Parker, supra note 22.
community, the enjoyment of private and social life, and the
beneficial lise of property.31
Since the scope of the police power is not discoverable by any ready
formula, the power must find its limitations through a proper re-
gard for the subject matter which is the object of the exercise of
such power. 32' The reasonableness of a regulation is determined by
relating the object of the regulation to the means utilized.
Under conditions of necessity it is proper for the state to de-
stroy one class of property to protect another type of property
which in the state's judgment is of greater value to the public. 33In
the case of Miller v. Schoene34 the state of Virginia had passed a
statute permitting the state to cut down red cedar trees infected
with cedar rust in order to preserve apple orchards in the same vi-
cinity. The court upheld this enactment against the contention that
it was a deprivation of property without due process of law and ob-
served that there was a "preponderant public concern in the preser-
vation of the one interest over the other. "35 Although the statute
was framed in terms of the cedars being a public nuisance, it is
clear from the opinion of the court that the decision rested upon the
exercise of the police power to protect the public interest and not
upon the nicety of the question whether the infected cedars did in
fact constitute a nuisance. In this vein the court continued: "And
where the public interest is involved preferment of that interest
over the property interest of the individual, to the extent even of its
destruction, is one of the distinguishing characteristics of every ex-
ercise of the police power which affects property."36 So too may
the federal government destroy the property of persons when it is
found necessary to safeguard the safety of others. 37
But the state cannot, by a mere declaration that the restriction
of a property right is for the public welfare, preclude any judicial
inquiry into whether this is a legitimate and proper exercise of the
police power. 38 Generally it may be stated that the proper exercise<
31. 16 Wall. 36, 62 (1873).
32. Sligh v. Kirkwood, 237 U.S. 52, 35 S. Ct. 501 (1915); Hadacheck v. Se--
bastian, supra note 21; Hall v. Geiger-Jones Co., supra note 9; Near v.
Minnesota, 283 U.S. 697, 51 S. Ct. 625 (1931).
33. Miller v. Schoene, 276 U.S. 272, 48 S. Ct. 246 (1928).
35. Id. at 279.
36. Id. at 279-280.
37. United States v. Caltex, 344 U.S. 149, 73 S. Ct. 200 (1952), reh. den.
344 U.S. 919, 73 S. Ct. 345 (1953).
38. See Coppage v. Kansas, 236 U.S. 1, 35 S. Ct. 240 (1915). It is clear
that the Coppage case is no longer sound constitutional doctrine but the
principle for which it is here cited is still valid.
AND THE LAW 277
of this sovereign authority requires that the object so regulated be
one within the proper scope of the police power, e.g., public
health, safety, welfare, 39 that the classification be reasonable, that
the means used be not arbitrary or unreasonable, and that the exer-
cise of the police power bear a real and substantial relation to the
legitimate public end. 40 All of these terms are relative and so
again serve to emphasize the importance of the facts in each case.
Within the area of concurrent state and federal domain and con-
trol, the police power still remains a force, even though a some-
what more restricted one. State authority may be exercised in this
area of the federal realm where Congress has not acted and pre-
empted the field. 41 However, if the federal authority has been ex-
erted, the state police power, if in conflict, must succumb to the
national authority and the latter will prevail. 42 Any state action is
subject to this limitation.
There is a protective judicial device which applies to the state
police power and adds to its durability. Whenever the state does
exercise this authority, there is a strong presumption that it is
reasonable and constitutional. 43 The burden of proof is then upon
the person attacking the legislation; it is incumbent upon him that
he clearly prove that the enactment is unconstitutional, and all
doubts will be resolved by the courts in favor of constitutionality.44
This burden of proof has proved to be a very considerable task. A
concomitant feature of this proposition is the approach of the United
States Supreme Court to statutory enactments-that the Court will
not sit as a super-legislature to weigh the wisdom or desirability of
the legislation, nor to decide whether the policy there expressed
39. As may be observed from the previous discussion, it is quite difficult
to conceive of any area which is not subject in some measure to regu-
lation under the police power.
40. See Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 563-564, 22 S. Ct.
431 (1902); Burns Baking Co. v. Bryan, 264 U.S. 504, 513, 44 S. Ct.
412 (1924); Treigle v. Acme Homestead Assoc., 297 U.S. 189, 56 S. Ct.
408 (1936), reh. den., 297 U.S. 728, 56 S. Ct. 587 (1936). This will be
treated somewhat more fully,under the following section.
41. Sligh v. Kirkwood, supra note 32.
42. Morgan v. Louisiana, 118 U.S. 455, 464, 6 S. Ct. 1114 (1886); see
Pennsylvania v. Nelson, 350 U.S. 497, 76 S. Ct. 477 (1956), for the
problem presented when the national government has pre-empted the
field; rehearing was denied in the Nelson case, 351 U.S. 934, 76 S. Ct.
785 (1956). Also see Keller v. United States, supra note 11.
43. Walters v. City of St. Louis, 347 U.S. 231, 74 S. Ct. 505 (1954); Sals-
burg v. Maryland, 346 U.S. 545, 74 S. Ct. 280 (1954); Standard Oil Co.
v. Peck, 342 U.S. 382, 72 S. Ct. 309 (1952); Eubank v. City of Rich-
mond, supra note 19; Sweet v. Rechel, supra note 27.
offends public welfare or whether a better means might have been
devised to attain the same end. 45 Those matters are left to the
determination of the legislatures and not to the courts. 46 Conse-
quently, the state legislature are left with wide discretionary vistas
for enacting regulatory statutes and an empirical approach for ex-
perimentation and improvisation. 47
It may also be profitable to note some of the vast areas in
which the police power has found application. 48 This will help to
stress the vital importance and fundamental need for this sovereign
power. 49 The state may regulate, restrain, or prohibit traffic in
or manufacture of intoxicants, 50 and the prohibition of lotteries is
also proper. 51 A state may regulate laundries as to the type of
building and its location. 52 Contract rights may not be abridged
under the constitution but are subject to extensive regulation. It
has been found permissible for a state to regulate the maximum
working day for miners;54 to require a railroad to stop at all cities
with over 3,000 inhabitants for ingress and egress of passengers;55
to proscribe dealings in grain futures56 and capital stock sales on
margin. 57 Compulsory vaccination has been upheld. 58 The regu-
lation of city garbage disposal has been approved;59 a drainage
45. Day-Brite Lighting v. Missouri, 342 U.S. 421, 72 S. Ct. 405 (1952), reh.
den., 343 U.S. 921, 72 S. Ct. 674 (1952).
47. The Supreme Court's approach since 1938 will be dealt with in some
detail in Part VI, infra.
48. This will merely be a sketch of a few of the areas or fact patterns
which have been considered and will be taken in an historical order.
These cases are by no means exhaustive of all police power cases but
do demonstrate the reach of that power.
49. The parenthetic observations in the following cases are the author's own
categorizations of the cases, not necessarily those of the Supreme
50. License Cases, supra note 14 [public health and welfare].
51. Stone v. Mississippi, supra note 10 [public morals].
52. Barbier v. Connolly, supra note 2 [public health and safety].
53. Pearsall v. Great Northern Railway, 161 U.S. 646, 655, 16 S. Ct. 705
(1896) [public welfare].
54. Holden v. Hardy, supra note 13 [public welfare].
55. Lake Shore & M.S R-ailway v. Ohio, 173 U.S. 285, 19 S. Ct. 465 (1899)
[public convenience and welfare]. Cf. Lake Shore & Mich. South. Rail-
way Co. v. Smith, supra note 2, which did not permit the legislation
allowing reduced rates to ticket purchasers who were traveling 1,000 or
56. Booth v. Illinois, supra note 15 [public morals and welfare].
57. Otis v. Parker, supra note 15 [public welfare].
58. Jacobson v. Massachusetts, supra note 14 [public health].
59. California Reduction Company v. Sanitary Works, supra note 14 [public
AND THE LAW 279
statute has been upheld which had the result of increasing the flow
in a stream to such an extent that it required a railroad to build a
new bridge across the waterway. 60 In the exercise of the police
power a state may shape policy to meet its conditions of climate
and soil so as to regulate irrigation61 and to prohibit sheep from
grazing on public domain while permitting cattle to do so. 6
State banks are rightfully subject to a statute requiring assess-
ments against assets for a depositor's guaranty fund. 63 In other
widely divergent areas it has been determined proper to require
bakeries to supply a standard weight loaf of bread. 64 A state may
legislate as to how coal miners should be paid65 and provide that
railroad workers are to be paid twice a month. 66 The shipment of
fruit unfit for consumption may be prohibited. 67 A railroad may be
required to construct transverse openings in its right of way;68 it
is proper for zoning purposes to prohibit brickmaking within desig-
nated areas of a city even as against one having such an establish-
ment within the prohibited zone prior to the enactment of the legis-
lation. 69 Employment agencies may be regulated whereby it is
made a misdemeanor to send one seeking employment to an employ-
er who has not applied for help, 70 "Blue Sky Laws" have been
60. Chicago B. & Q. Railway v. Drainage Com'rs., supra note 17 [public
welfare, convenience, and prosperity]. It was held that it was not a
taking of private property requiring compensation. State regulation of
railroads has always been accorded great leeway by the Supreme Court.
61. Clark v. Nash, 198 U.S. 361, 25 S. Ct. 676 (1905) [public welfare and
62. Bacon v. Walker, supra note 19 [public welfare and prosperity].
63. Noble State Bank v. Haskell, supra note 18 [public safety and welfare].
64. Schmidinger v. City of Chicago, supra note 19 [public welfare and con-
veniencej. But see subsequent case of Burns Baking Co. v. Bryan,
supra note 40.
65. McLean v. Arkansas, 211 U.S. 539, 29 S. Ct. 206 (1909) [public wel-
66. Erie Railroad Co. v. Williams, 233 U.S. 685, 34 S. Ct. 761 (1914) [pub-
lic welfare and convenience].
67. Sligh v. Kirkwood, supra note 32 [public health].
68. Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67, 35 S. Ct. 678 (1915)
[public convenience and general welfare].
69. Hadacheck v. Sebastian, supra note 21 [public health, safety and con-
venience]. Cf. City of Denver v. Rogers, 46 Colo. 479, 104 Pac. 1042
(1909), where the Colorado court held invalid legislation similar to that
in the Hadacheck case.
70. Brazee v. Michigan, supra note 23 [public welfare]. Cf. Adams v.
Tanner, 244 U.S. 590, 37 S. Ct. 662 (1917), which by a five to four de-
cision found unconstitutional a Washington statute which made it unlawful
to receive a fee from anyone for furnishing them with employment or
information leading to employment, although fees could be taken from
subscribing employers; today the result would surely be different.
approved;71 location of billboards may be regulated;72 gas and oil
storage location may be regulated and even prohibited within certain
areas of dwelling houses;73 zoning regulations of various kinds are
in general upheld. 74 Mortgage moratorium enactments, 75 traffic
regulations, 76 milk price supervision, 77 and minimum wage laws78
are more examples of the variety of police power action which has
found approval. Furthermore, the United States Supreme Court has
upheld the following requirements: that the percentage contents of
fertilizers be disclosed on the packages;79 that the sale of cosmetics
be regulated by the health department. 80 Further, it has been found
proper to regulate the insurance business;81 to require that employ-
ees be allowed four hours off work with pay in order to vote. 82
Recent state court decisions in Ohio and California have upheld leg-
islation requiring fluoridation of drinking water as a proper exer-
cise of the police power to protect the public health as against the
attack that such requirement was an abridgement of religious liber-
These examples are by no means all inclusive but are illustra-
tive of the reach and versatility of the police power. It has the
71. Hall v. Geiger-Jones Co., supra note 9 [public welfare].
72. Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S. Ct. 190 (1917) [pub-
lic convenience, welfare, and perhaps the aesthetic quality which Mr.
Justice Douglas spoke of in a subsequent case].
73. Pierce Oil Corp. v. City of Hope, supra note 16 [public safety and
74. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114
(1926) [public welfare and convenience].
75. Home Building and Loan Assoc. v. Blaisdell, 290 U.S. 398, 54 S. Ct.
321 (1934) [public welfare].
76. Rossi v. United States, 289 U.S. 89, 53 S. Ct. 532 (1933) [public
77. Nebbia v. New York, supra note 2 [public welfare and protection].
78. West Coast Hotel Company v. Parrish, supra note 19 [public welfare
79. National Fertilizer Assoc. v. Bradley, 301 U.S. 178, 57 S. Ct. 748
(1937) [public safety].
80. Bourjois v. Chapman, supra note 14 [public safety and health].
81. Osborn v. Ozlin, 310 U.S. 53, 60 S. Ct. 758 (1940); Hoopeston Co. v.
Cullen, 318 U.S. 313, 63 S. Ct. 602 (1943) [public welfare].
82. Day-Brite Lighting v. Missouri, supra note 45 [public welfare].
83. Kraus v. City of Cleveland, 163 Ohio St. 559 (1955), appeal dismissed
by the United States Supreme Court for lack of a substantial federal
question, 351 U.S. 935, 76 S. Ct. 833 (1956). DeAryan v. Butler, 119
Cal. App. 2d 674, 260 P. 2d 98 (1953), cert. den., 347 U.S. 1012, 74
S. Ct. 863 (1954). Here even in the area of asserted First Amendment
protection, the freedom of religion, the police power prevailed.
AND THE LAW
ability to meet and cope with any situation arising in society. This
is the purpose of the power, and it serves that end well.
II. LIMITATIONS ON THE EXERCISE OF THE POLICE POWER
Needless to say the police power is not without its limits. This
sovereign authority must be exercised subject to the United States
Constitution, 84 and if a state legislative enactment violates any pro-
vision of the Federal Constitution, then the legislation is void. 8
(The same is true as to any such violation of the respective state
constitutions. The state approach to limitations on the exercise of
the police power under state constitutions is treated subsequently.)
-In Fletcher v. Peck86 Mr. Chief Justice Marshall used language
strongly indicative of a natural law limitation on the acts of legis-
latures in these matters in addition to the express constitutional
safeguards. This theory of the natural law acting as a limiting
force on all statutes and being a principle to be duly regarded in
interpreting the constitutional limitations applied to legislation has
found favor in several Supreme Court decisions subsequent to
Fletcher v. Peck. 87 Mr. Justice Black notwithstanding, it would
appear that this natural law concept still remains somewhat of a
84. Kentucky Finance Corp. v. Paramount Auto Exch. Corp., 262 U.S. 544,
43 S. Ct. 636 (1923); Frost Trucking Co. v. Railroad Comm., 271 U.S.
583, 46 S. Ct. 605 (1926); Lake Shore & M.S. Railway Co. v. Smith,
supra note 2 at 689, where the court said:
This power must, however, be exercised in subordination to
the provisions of the Federal Constitution. If, in the assumed
exercise of its police power, the legislature of a State direct-
ly and plainly violates a provision of the Constitution of the
United States, such legislation would be void.
86. 6 Cranch. 87, 132 (1810).
87. Legal Tender Cases, 12 Wall. 457, 581 (1871); Poindexter v. Greenhow,
114 U.S. 270, 297, 5 S. Ct. 903, 918 (1885); see also Calder v. Bull,
3 Dall. 386, 388 (1798); Loan Assn. v. Topeka, 20 Wall. 655, 663
(1875); Saterlee v. Mathewson, 2 Pet. 380 (1829); Booth v. Illinois,
supra note 15 at 429, where the court used the following language:
If, looking at all the circumstances that attend,... the pursuit
of a particular calling, the State thinks that certain admitted
evils cannot be successfully reached unless that calling be ac-
tually prohibited, the courts cannot interfere, unless, looking
through mere forms and at the substance of the matter, they
can say that the statute enacted professedly to protect the pub-
lic morals has no real or substantial relation to that object,
but is a clear, unmistakable infringement of rights secured by
the fundamental law.
force in constitutional law even today. 88 Thus the Constitution of
the United States, the constitutions of the respective states, and the
natural law all operate to protect persons and property from arbi-
trary and unreasonable legislative action.
The Fourteenth Amendment to the United States Constitution ap-
plies in the area of police power regulation so that its due process
provision protects against arbitrary and unreasonable state action.89
In the area of-state regulation of economic or property interests
some members of the present Supreme Court would be inclined to
find little or no protection for such interests under the Due Process
Clause, and the other members of the Supreme Court are disposed
to leave these matters to the state legislatures relatively free of
court interference.90 Thus the limitations discussed in this section
may only remain as historical background, nothing more, in regard
to regulation of economic interests, but since some of these consti-
tutional limitations have not been explicitly repudiated, they are in-
cluded in this discussion. And as will be shown, some of the state
courts in interpreting their state constitutions still adhere to the
older Supreme Court notions. But these limiting "safeguards" must
be read in relation to the dramatic change of attitude by the Su-
preme Court since the mid-thirties. 91 So it is that the following
legal rules remain as correct general criteria but now have little
concrete effect since the Supreme Court change from strict super-
vision to an almost complete deference to the legislatures in the
regulation of economic affairs. In the exercise of the police power
the object or ultimate purpose of the regulation must be within the
proper scope of the police power-that is, it must serve a legiti-
mate public end (public health, safety, and welfare, etc.). 92 In
addition, the legislation must bear a real and substantial relation to
one of these appropriate public purposes and not be a mere sham or
pretense for an ulterior and improper end. 93 If the statute is not
88. Kauper, "The First Ten Amendments," 37 A.B.A.J. 717 (1951).
89. Liggett Co. v. Baldrige, 278 U.S. 105, 49 S. Ct. 57 (1928); see Giozza
v. Tiernan, 148 U.S. 657, 13 S. Ct. 721 (1893); Lochner v. New York,
198 U.S. 45, 25 S. Ct. 539 (1905); Southern Railway Co. v. Virginia,
290 U.S. 190, 54 S. Ct. 148 (1933).
90. See Part VI, infra.
92. Treigle v. Acme Homestead Assoc., supra note 40; Burns Baking Co. v.
Bryan, supra note 40; Coppage v. Kansas, supra note 38. Although the
result in the Coppage case respecting membership in unions is not the
result which would be reached today (the decision was spoken of with
disdain in Day-Brite Lighting v. Missouri, supra note 45), the general
language of the court pertaining to the principles of the police power is
93. Ibid. See also Liggett Co. v. Baldrige, supra note 89.
AND THE LAW
reasonably calculated to promote the specified public purpose, then,
if it does interfere with personal ,or property rights, the statute will
be found to be arbitrary and a violation of the Federal Constitu-
tion.94 Therefore, though the public end be a proper one, the
means of accomplishing the purpose must be reasonable, neither ar-
bitrary nor unduly oppressive. 9 When the court is presented with
the problem of ascertaining the constitutionality of a police power
measure, the court has regard to substance and not to mere form,
with the statute being tested by its actual operation and effect. 96
The judicial omniscience will look beyond the technical language of
the statute and concern itself with the actual impact of the act. "The
limits of this sovereign power must always be determined with ap-
propriate regard to the particular subject of its exercise."97 Jus-
tice Holmes has spoken of yet another criterion for determining the
ambit of the police power. His test looks to the degree of diminu-
tion in the value of property affected by the exercise of the police
power; if the depreciation is relatively extensive, this fact may in-
dicate that the power exerted is improper and that the state must
utilize the power of eminent domain-with compensation being given
in such a situation. 98 This concept, under the guise of reasonable-
ness, may still have substantial force even though the court does
not articulate the matter in the Holmesian terminology.
When the state undertakes to regulate a particular segment of
the population, business, or property, the legislative classification
must rest upon a rational and reasonable basis;99 otherwise the
court will find it arbitrary and unconstitutional as a denial of the
94. Ibid. In Fletcher v. Peck, 6 Cranch. 87 (1810), it was stated that
rights vested under a contract could not be divested by the legislature;
but the previous section showed that if such rights cannot be divested,
they surely can be denuded.
95. Treigle v. Acme Homestead Assoc., supra note 40; also cases cited in
notes 80-82; Adams v. Tanner, supra note 70.
96. Near v. Minnesota, supra note 32; Henderson v. Mayor of New York,
92 U.S. 259 (1875); Bailey v. Alabama, 219 U.S. 219, 31 S. Ct. 145
97. Near v. Minnesota, supra note 32 at 707. Under the guise of the police
power a state cannot impose unnecessary restrictions upon business,
property, or person. Burns Baking Co. v. Bryan, supra note 40 at
513. Today it is doubtful that the Supreme Court would interfere to
declare any economic regulation unnecessary. See Part VI, infra.
98. Penna. Coal Co. v. Mahon,, 260 U.S. 393, 413, 415, 43 S. Ct. 158 (1922);
Justice Brandeis wrote a vigorous dissent in this case. If the case
were to arise today, it is quite likely that the dissent would be the pre-
99. Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 563, 22 S. Ct. 431
equal protection of the law. 100 For the state to select a particular
group of persons or property for regulation, the selection must rest
upon a rationally perceivable basis, and the regulation of the group
must relate to a legitimate public end. 101 This constitutional limi-
tation prohibits undue favor or hostile discrimination among a group
for which there is no reasonable basis for classification based upon
legitimate and discernible differences. 102 But it must be remem-
bered that the Equal Protection Clause was not "designed to inter-
fere with the power of the State, sometimes termed its police power,
to prescribe regulations to promote the health, peace, morals, edu-
cation, and good order of the people, and to legislate so as to in-
crease the industries of the State, develop its resources, and add
to its wealth and prosperity.... Regulations for these purposes may
press with more or less weight upon one than upon another, but they
are designed, not to impose unequal or unnecessary restrictions
upon anyone, but to promote, with as little individual inconvenience
as possible, the general good. Though, in many respects, neces-
sarily special in their character, they do not furnish just ground of
complaint if they operate alike upon all persons and property under
the same circumstances and conditions."103
It is clear that the constitutionality of any exercise of the police
power must depend upon the specific facts of each case. 104 In a,
theoretical discussion of the police power and its limitations one
must always keep in mind the particular fact situation. This im-
portance of specific fact situations indicates that the court will ex-
amine and discern the actual effect of any police power legislation
in its peculiar factual setting. For as the Supreme Court has said:
"Regulation and suppression are not the same, either in purpose or
result, and courts of justice can tell the difference. "105
100. Ibid. See also Part II, supra, and the cases therein cited.
101. See Truax v. Corrigan, 257 U.S. 312, 332-333, 42 S. Ct. 124 (1921);
Watson v. Maryland, 218 U.S. 173, 30 S. Ct. 644 (1910).
103. Barbier v. Connolly, supra note 2 at 31-32.
104. Berman v. Parker, supra note 22.
105. Poulos v. New Hampshire, 345 U.S. 395, 408, 73 S. Ct. 760 (1953), reh.
den., 345 U.S. 978, 73 S. Ct. 1119 (1953). Some regulations which
were found to be unconstitutional; converting a private carrier into ef-
fect a common carrier, Frost Trucking Co. v. Railroad Comm., supra
note 84; precluding coal mining so as to prevent damage to city from
mining too close to the surface where all the mineral rights had been
sold to the company with only the surface rights reserved to the city,
Penna. Coal Co. v. Mahon, supra note 98; but this Mahon case would
probably not today be followed by the Supreme Court; see note 98, supra.
AND THE LAW
In the area of the exalted constitutional liberties, namely those
under the First Amendment, the permissible scope of the police
power is greatly restricted. 106 The freedoms of speech, press,
liberty, and religion find antecedency and pre-eminence even over
the august authority known as the police power. 107
IV. REGULATION OF OIL AND GAS RESOURCES
Since of all the economic interests oil and gas are the most
nearly analogous to ground water resources, the law pertaining to
this area of regulation should prove to be instructive on the matter
of water resources regulation. There can be no quarrel with the
proposition that our natural resources are essential to the welfare
of the country. Nor are the country's resources inexhaustible.
Looking back to earlier periods of our history one is appalled at
the profligacy in the development and utilization of our nation's oil
and gas resources. 108 As early as 1900 the Supreme Court had oc-
casion to uphold a conservation measure in the case of Ohio Oil Co.
v. Indiana. 109 There an Indiana statute prohibited waste of natural
gas and oil by proscribing the flow of gas or oil from any well into
the open air without being properly confined. The usual contention
was made that such legislation was a deprivation of property with-
out due process of law. In sustaining the enactment the Supreme
Court based its decision upon either or both of these ideas:
(1) there was no vested property interest; (2) the statute was a prop-
er exercise of the police power to (a) protect the public in the con-
servation of natural resources or (b) to protect the coequal private
rights of all interested landowners in the common pool from destruc-
tion by another. 110
106. Superior Films v. Regents of University of State of New York, 346
U.S. 587, 74 S. Ct. 286 (1954); Fowler v. Rhode Island, 345 U.S. 67,
73 S. Ct. 526 (1953); Joseph Burstyn v. Wilson, 343 U.S. 495, 72 S. Ct.
777 (1952); and see Feiner v. New York, 340 U.S. 315, 71 S. Ct. 303
(1951); Kunz v. New York, 340 U.S. 290, 71 S. Ct. 312 (1951); Poulos
v. New Hampshire, supra note 105.
108. In this respect see Marshall & Meyers, "Legal Planning of Petroleum
Production," 41 Yale L. J. 33 (1931-32); Walker, "Property Rights in
Oil & Gas and Their Effect Upon Police Regulation of Production," 16
Tex. L. Rev. 370 (1937-38).
109. 177 U.S. 190, 20 S. Ct. 576 (1900); see Bayside Fish Flour Co. v. Gen-
try, 297 U.S. 422, 56 S. Ct. 513 (1932), where it was shown that fish
and wildlife conservation is exclusively with the states to regulate in
such manner as they may desire.
Since oil and gas (and underground water) are fugacious sub-
stances, a rule of property in such matters evolved in the states
which differed from the common personal and real property rules.
This concept of the property interest in oil and gas explains that
portion of the Ohio Oil case which upheld the statute as a proper
protection of the private rights of many in the common reservoir,
as against the impingement of these rights by any one owner. Under
the oil and gas property concept each landowner could drill a well
on his land and pump as much of the oil and gas as he could, even
though this caused the oil and gas underlying neighboring property
to migrate away from those lands and on to the land of the individ-
ual pumping. This concept was known as the rule of capture. In
order to mitigate the waste and extravagance inherent in such a rule
of law Indiana had passed the legislation involved in Ohio Oil Co. v.
Indiana. The rationale of the Ohio Oil case has also been applied
in upholding New York legislation protecting its mineral waters;111
also in finding constitutional a statute requiring that natural gas not
be allowed to come to the surface without its full lifting power hav-
ing been utilized to raise the oil as well. 112
A state may properly prohibit the use of natural gas for the
production of carbon black (when there are other domestic and in-
dustrial users within the marketable area-here the statute said
within ten miles) since the making of carbon black by such means
uses enormous amounts of gas in relation to the end product and to
other'available productive utilizations of natural gas. 113 The Su-
preme Court observed that a state "may consider the relation of
rights and accommodate their coexistence, and, in the interest of
the community, limit one that others may be enjoyed."114 So a
state, for the purpose of conserving its natural resources, may reg-
ulate the production and use of these resources sq long as the regu-
lation is reasonably calculated to accomplish that end. 115 In this
111. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S. Ct. 337
112. Bandini Petroleum Co. v. Superior Ct., 284 U.S. 8, 52 S. Ct. 103
(1931). Where the pressure of the gas is dissipated, there may not be
adequate hydrostatic pressure to recover the maximum possible amount
of oil in the pool; also, wasteful exhaustion of the gas pressure may
occasion finger penetration of salt water into the oil supply.
113. Walls v. Midland Carbon Co., 254 U.S. 300, 41 S. Ct. 118 (1920).
114. Id. at 315. Cf. Miller v. Schoene, supra note 33, where the state may
conserve one resource (apple orchards) by destroying another property
(cedars) when that action is the practicable means of saving the or-
chards, and the state legislature has determined that the preservation
of apple orchards, rather than cedars, is in the best interests of the
115. Henderson Co. v. Thompson, 300 U.S. 258, 57 S. Ct. 447 (1937).
AND THE LAW 287
respect it has been found constitutional for a state to proscribe the
use of sweet gas for the manufacture of carbon black while permit-
ting sour gas to be so utilized. 116 The classification between sweet
and sour gas was proper as bearing a reasonable relation to the
purpose sought to be accomplished, namely the conservation of sweet
gas for other purposes for which the sour gas could not be used. 117
The public interest in obtaining the optimum benefit from the na-
tion's natural resources, be they oil, gas, or water, is so obvious
that the regulation of our resources appears as the most logical ex-
ercise of the police power.
It is within the sphere of proper state police power to limit the
production of oil to what the current market will absorb. 118 To ac-
complish this control, a proration statute was enacted in Oklahoma,
whereby a field unit of production was delimited and each well with-
in that area could then produce only a percentage total of the de-
terminable amount that the well could produce at full capacity, so
as to arrive at an over-all field production quantity. 119 Production
beyond the market resulting in depressed prices was determined by
the state legislature to lead to wasteful utilization of these natural
resources and the United States Supreme Court sustained this con-
clusion. 120 However, in Thompson v. Consolidated Gas Utilities
Corp. 121 an administrative order made under a proration statute
was held to be unconstitutional because the proration order in ques-
tion bore no reasonable relation to the prevention of waste nor to
the protection of correlative rights of the common landowners. 122
That case but emphasizes the fact that, even in the regulation of
natural resources, states are subject to the same standards as in
all other exercises of the police power although it is doubtful that
the Supreme Court would today invalidate such an administrative
order. But in regulating natural resources there is no difficulty in
117. Ibid. Sour gas (which contains sulfur) could not be utilized for domes-
tic or most other industrial needs while sweet gas could be used for
all purposes and so the basis for the distinction and the reasonable-
ness of the classification. See Sterling v. Constantin, 287 U.S. 378,
396, 53 S. Ct. 190 (1932), where the court by way of dictum stated
that oil properties were protected by the Fourteenth Amendment but
"subject to reasonable regulation by the State in the exercise of its
power to prevent unnecessary loss, destruction, and waste...."
118. Champlin Refining Co. v. Corporation Comm., 286 U.S. 210, 52 S. Ct.
121. 300 U.S. 55, 57 S. Ct. 364 (1937).
finding the first essential, a requisite public interest and purpose to
regulate and assure proper use of the natural resources.
Some of the states found unit production and well spacing were
the fairest and most economical methods of obtaining oil and gas.
Under this system an oil pool is delimited, and everyone owning
property within that area comes within the unit operation. Wells
are spaced at the most advantageous positions, and each landowner
shares in the royalties in relation to the acreage his land bears to
the total acreage within the unit. The Oklahoma Supreme Court on
two occasions has upheld this legislation, and the United States Su-
preme Court both times has taken jurisdiction and thereafter dis-
missed the appeals as raising no substantial federal questions. 123
In dismissing the appeals, however, the Supreme Court has made it
fairly clear that it approved of such measures as proper exercises
of the state police power. 124 When wells are drilled within city
limits, the courts have had no difficulty in sustaining regulations as
to number and spacing of wells for the safety of the citizens, nor
in finding that the state may require, as a condition precedent to
any drilling, that a bond be posted for each well to indemnify
against possible injuries to persons or property. 125
The permissible scope of regulation in this field even extends
to the state fixing the price on the sale of natural gas at the well-
head where there was evidence that depressed selling prices result-
ed in economic waste which in turn was conducive to physical waste
of this natural resource. 126 It may be seen that conservation justi-
fies control over production (as well as price) even though the uses
to which property might otherwise be profitably put are thereby
greatly restricted. 12 These regulatory measures have the result
of limiting the property interest to something considerably less than
the owner may have anticipated when he originally invested in the
123. Patterson v. Stanolind Oil & Gas Co., 305 U.S. 376, 59 S. Ct. 259
(1939), where the Supreme Court by short per curiam opinion dismissed
the appeal in this case from the Oklahoma Supreme Court, reported at
182 Okla. 155, 77 P. 2d 83 (1938), and in this opinion gave tacit ap-
proval to the state unitization and well spacing statutes. See Palmer
Oil Corp. v. Phillips Pet. Co., 204 Okla. 543, 231 P. 2d 997 (1951),
app. dis., 343 U.S. 390, 72 S. Ct. 842 (1952).
125. Marrsv. Cityof Oxford, 32 F. 2d 134 (C.C.A. 8, 1929), cert. den.,
280 U. S. 573, 50 S. Ct. 27 (1929); Gant v. Oklahoma City, 289 U. S. 98,
53 S. Ct. 530 (1933).
126. Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 71
S. Ct. 215 (1950); Phillips Petroleum Co. v. Oklahoma, 340 U.S. 190,
71 S. Ct. 221 (1950).
AND THE LAW
property. But this does not invalidate the legislation. All proper-
ty is acquired and held subject to regulation by the state under the
police power. As in the other areas of the police power reasonable-
ness is the limiting safeguard.
In regulating mineral rights it is, of course, permissible for
the state legislature to lay down the general formulative policy and
scheme but leave the details of enforcing that over-all plan to an
administrative agency. 128 How should the courts treat the adminis-
trative filling in of details by rulings, regulations, and otherwise as
a part of the general state exercise of the police power? This ques-
tion is of peculiar importance today, since most significant police
power measures carried on through administrative boards operating
only within the skeletal framework of broad legislative standards and
principles. Justice Frankfurter has laid down the proposition that it
is not the job of the Supreme Court to substitute its judgment on
these highly specialized matters for that of the agency, but that the
Court must show a proper deference for the expertise of the admin-
istrative agency whose task it is to administer the law. 129 In the
Rowan Oil case, 130 where Justice Frankfurter enunciated this doc-
trine, the Supreme Court upheld state agency orders even though
both the federal district court and the circuit court of appeals had
overturned the administrative order as being arbitrary and unreason-
able. In subsequent litigation arising from the same state agency,
the United States Supreme Court again upheld the agency action and
reiterated the above rule of conduct for a court in dealing with
these state administrative bodies. 131 This principle may thus be
seen to have perhaps more significance in evaluating regulatory leg-
islation than the exact language of the statute. The language of the
Supreme Court in the second Rowan Oil case is quite instructive:
We said in effect that the basis of present knowledge touching
proration was so uncertain and developing, that sounder found-
ations are only to be achieved through the fruitful empiricism
of a continuous administrative process.... Presumably that
body [Texas Railroad Commission], as the permanent repre-
sentative of the state's regulatory relation to the oil industry
equipped to deal with its ever-changing aspects, possesses an
insight and aptitude which can hardly be matched by judges
who are called upon to intervene at fitful intervals. Indeed,
128. Oxford Oil Co. v. Atlantic Oil Producing Co., 22 F. 2d 597 (C.C.A. 5,
1927), cert. den., 277 U.S. 585, .48 S. Ct. 433 (1928).
129. Railroad Commission v. Rowan Oil Co., 310 U.S. 573, 60 S. Ct. 1021
131. Railroad Commission v. Rowan Oil Co., 311 U. S. 570, 61 S. Ct. 343
we are asked to sustain the district court's decree as though
it derived from an ordinary litigation that had its origin in
that court, and as though Texas had not an expert Commission
which already had canvassed and determined the very issues
on which the court formed its own judgment.... The real
answer to any claims of inequity or to any need of adjustment
to shifting circumstances is the continuing supervisory power
of the expert commission. In any event, a state's interest in
the conservation and exploitation of a primary natural resource
is not to be achieved through assumptionby the federal courts
of powers plainly outside their province and no less plainly
beyond their special competence. The Fourteenth Amendment
was not intended for such ends. 132 [Emphasis added.J
This deference to administrative agencies but points out that the
rules, regulations, and orders of an administrative agency are equal-
ly as important as the legislation in the field of police power regu-
lation. Judicial deference toward state agency expertise emphasizes
the liberal Supreme Court tolerance for economic regulation by the
The large oil and gas producing states of Texas, Oklahoma, and
Louisiana (among others) have upheld the state's power of broad and
extensive regulation over these natural resources. 133 In those
states the oil and gas regulation provides a strong state court prece-
dent for equally broad regulation of the water resources. It may
well be concluded that the states will be left to devise means for
regulating their natural resources quite free and independent of re-
straints from the Supreme Court of the United States.
V. REGULATION OF WATER RESOURCES AND THE UNITED
STATES SUPREME COURT
It is trite but true that water is essential to life. The recent
droughts of the southwestern United States and recurrent water short-
ages in other parts of the country give realism to this cliche. The
present Secretary of Agriculture, Ezra Taft Benson, in giving a
mild warning about the ever-increasing problems of properly utiliz-
ing our nation's water resources, wrote:
132. Id. at 573, 575-577. Another restriction on state review is the strict-
ness with which the United States Supreme Court requires that litiga-
tion in state courts be final and complete before they will review it.
Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68 S. Ct. 972
133. Corzelius v. Harrell, 143 Tex. 509, 186 S.W. 2d 961 (1945); Palmer
Oil Corp. v. Phillips Pet. Co., supra note 123; Hunter Co. v. McHugh,
202 La. 97, 11 So. 2d 495 (1942). See Lyon and Abramson, "Govern-
ment and Economic Life," Vol. II, c. XXV, Petroleum and Natural Gas
AND THE LAW 291
I have little need to remind you that water has become
one of our major national concerns.... Farmers have had to
haul water for stock intrucks from cities. Some cities have
had to haul water from farm ponds. New Yorkers for a time
were asked to cut down the number of their baths, so low was
the water in the reservoirs that serve the metropolis....
Some city councils have had warnings that the growth of their
cities would be limited by the availability of water. An ample
amount of clean water has become a factor in the location of
new factories. The intrusion of salt water into overused wells
is making unusable the water in some underground reservoirs
.... We have to stop wasting water. We have to use it more
efficiently in industry, in towns and cities, in general farming,
and in irrigation, which is destined to be adopted in all parts
of the Nation.134
It is predicted that by 1975 "the total prospective increase for
domestic and industrial [waterJ use over present amounts will be
145 percent."135 With such an increased strain on our water re-
sources, it is clear that the purpose of the police power is to regu-
late the use of water in order to protect the public and to promote
the general welfare. It is also clear that without the proper utili-
zation of our water resources society must seriously suffer. There
is no need to belabor the point that the public has a vital interest
in obtaining the maximum benefits from water by enacting proper
conservation measures to insure adequate amounts to meet human
necessities and to assure proper development of the country. Still
this critical fact must constantly be borne in mind when passing
upon the constitutionality of statutes pertaining to our water re-
sources. The discussion which follows is concerned with regulatory
water statutes in general, but more specifically with statutes abridg-
ing the riparian right to future use and the establishment of a state
agency with comprehensive power to administer water use under the
standard of beneficial use to society.
When the several states came into the Union, the title of all
navigable waters within the jurisdictional limits of each state rested
in the respective sovereignties subject only to the paramount right
of the federal government in navigation. 136 This state control over
134. Foreword by Ezra Taft Benson to: Water, the Yearbook of Agricul-
ture, United States Department of Agriculture (1955).
135. Commission on Organization of the Executive Branch of the Govern-
ment, Water Resources and Power, p. 5 (1955).
136. St. Anthony Falls Water Power Co. v. St. Paul Water Comm., 160 U.S.
349, 18 S. Ct. 157 (1897); Barney v. Keokuk, 94 U.S. 324 (1876); but
see Hardin v. Jordan, 140 U.S. 371, 11 S. Ct. 808 (1891). Parentheti-
cally, it might be observed that the scope of the federal power under
the Commerce Clause greatly limits the extent of vested property in-
terests. Property owners suffer injury without recompense for all in-
cidental injuries when the navigation power is exercised and recover
its navigable waters is so all-inclusive that a state in conveying
land abutting such waters may deny any riparian rights whatever ac-
cruing to the landowners. 137 The state of Washington has denied
riparian rights to certain of its waters. However, states following
the common law may also have adopted the common law rule per-
taining to riparian rights for all of its waters, 138 but to ascertain
the property interests of riparians, if any, one must look to the re-
spective state decisions, constitutions, or statutes as controlling.139
That is, the states are free to establish any system of water rights
Even after a state initially establishes a system of water law
there is dictum in Supreme Court decisions that "every State is free
to change its laws governing riparian ownership and to permit the
appropriation of flowing waters for such purposes as it may deem
wise."140 Although these cases did not involve that specific issue
and did not clearly say that in such a revision of the applicable law
no compensation need be given for the impingement of unused future
riparian rights, still the context in which this language was used
would support that conclusion so that states not only may initially
determine any system of water rights they desire, but the states
may thereafter modify the system of water rights as they deem wise.
damages only where there is an actual physical taking of the property
or where the property is invaded by flooding or otherwise. In this re-
gard, see Gibson v. United States, 166 U.S. 269, 17 S. Ct. 578 (1897);
United States v. Lynah, 188 U.S. 445, 23 S. Ct. 349 (1903); United
States v. Cress, 243 U.S. 316, 37 S. Ct. 380 (1917); United States v.
Commodore Park, 324 U.S. 386, 65 S. Ct. 803 (1945); United States v.
Dickinson, 331 U.S. 745, 67 S. Ct. 1382 (1947); United States v. Kansas
City Life Ins. Co., 339 U.S. 799, 70 S. Ct. 885 (1950); United States v.
Twin City Power Co., 350 U.S. 222, 76 S. Ct. 259 (1956), reh.den.,
350 U.S. 1009, 76 S. Ct. 648 (1956).
137. Port of Seattle v. Oregon & Washington R. Co., 255 U.S. 56, 41 S. Ct.
138. See United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690,
19 S. Ct. 770 (1899); Boquillas Land and Cattle Co. v. Curtis, 213 U.S.
339, 29 S. Ct. 493 (1909).
139. St. Anthony Falls Water Power Co. case, supra note 136; Barney v.
Keokuk, supra note 136. However, for an earlier case which did not
follow this. now well-established rule see Yates v. Milwaukee, 77 U.S.
140. Connecticut v. Massachusetts, 282 U.S. 660, 670, 51 S. Ct. 286 (1931);
United States v. Rio Grande Dam and Irrigation Co., supra note 138;
Boquillas Land and Cattle Co. v. Curtis, supra note 138. The Oregon
courts relied upon this language for its literal sense and used this con,
cept as a basis for the statutory provisions severely limiting the ri-
parian right. See the discussion which follows.
AND THE LAW
In Connecticut v. Massachusetts141 the court was discussing the con-
tention that under the common law riparian doctrine each riparian
had a vested right in the use of th6 waters and is entitled to have
the water flow naturally, undiminished in quantity or quality, so that
the taking of water from a river would impair vested rights of ri-
parian owners. But the court pointed out that the laws in respect
to riparian rights "that happen to be effective for the time being in
both States do not necessarily constitute a dependable guide. "142
The court then used the language quoted above that a state is free
to change its law from riparian to some other appropriation system
as it may deem wise. This interpretation, at any rate, appears to
be consistent with the combination of other Supreme Court cases
dealing with a state's regulation of its water resources, and the Ore-
gon Supreme Court has concluded likewise. 143
In Hudson County Water Co. v. McCarterl44 the controversy in-
volved the question whether a New Jersey statute making it unlawful
to transport water out of that state and into another state for use in
the latter state was constitutional. The Supreme Court upheld the
measure as a proper exercise of the police power. Mr. Justice
Holmes, speaking for the court, used quite persuasive language to
support the state's broad regulatory power over its water resources
when he said:
But it is recognized that the State as quasi-sovereign and repre-
sentative of the interests of the public has a standing in court
to protect the atmosphere, the water and the forests within its
territory, irrespective of the assent or dissent of the private
owners of the land most immediately concerned.... The pri-
vate right to appropriate is subject not only to the right of
lower owners but to the initial limitation that it may not sub-
stantially diminish one of the great foundations of public welfare
This case plainly indicates the vitally important public interests in-
volved in the regulation of water resources of a state; thus in the
regulation of water there is always supplied one of the requisite ele-
ments in the exercise of the police power. As has been previously
noted, the Supreme Court of the United States has left to the states
141. 282 U.S. 660, 51 S. Ct. 286 (1931).
142. Id. at 670.
143. See in Re Willow Creek, 74 Ore. 592, 144 Pac. 505, 146 Pac. 475
(1914); In Re Water Rights of Hood River, 114 Ore. 112, 227 Pac.
144. 209 U.S. 349, 28 S. Ct. 529 (1908).
145. Id. at 355-356.
the exclusive determination of the type and the extent of water rights
in each respective jurisdiction and has said that a state may change
from a riparian rights concept to some other type of law as it
deems wise. (Likewise a state should be able to change from the
prior appropriation system, or some other system, to any type of
law deemed wise.) It should follow that the Supreme Court would
allow the states a most considerable latitude and discretion in any
exercise of its police power designed to insure the beneficial use
and conservation of water. 146 However, this approach of the Su-
preme Court is only contextual background showing an expression of
solicitude that the water problem is essentially one to be solved at
the state level by the state legislatures.
The Oregon experience in regulating its water resources demon-
strates the truth of the previous conclusions. By the water statute
of 1909, as amended in 1913, the Oregon legislature established
comprehensive administrative procedures which supplanted former
legislation. 147 This statute set up an appropriation procedure,
adopted a comprehensive administrative scheme for securing proper
distribution of the water, provided machinery for the determination
of rights among various water claimants, and committed to a state
agency the administration of the act. 148 It was not long before this
water act was attacked by riparians contending, among other things,
that this statute was unconstitutional as a taking of their property
without due process of law. 149 The Oregon Supreme Court, in the
case of In Re Willow Creek, held that though the use of water is a
valuable property right which cannot be arbitrarily or unreasonably
interfered with by legislation, still water rights "are subject to
such reasonable regulations as are essential to the general welfare,
peace and good order of the citizens of the state. "150 In Oregon
146. Apparently this has been the approach of the Supreme Court. When a
semi-arid state determines that irrigation, though by a private person,
is for a public purpose, the U. S. Supreme Court has affirmed. Clark
v. Nash, supra note 61. Although this case turned on condemnation so
that it did not involve the police power, still the concept conveyed is
significant. See O'Neill v. Leader, 239 U.S. 244, 253, 36 S. Ct. 54
147. A comprehensive water code with subsequent amendments is now con-
tained in Ore. Rev. Stat., tit. 45, cs. 536-558.
148. For construction of act see generally, Wattles v. Baker County, 59 Ore.
255, 117 Pac. 417 (1911); Pringle Falls Power Co. v. Patterson, 65
Ore. 474, 128 Pac. 820, 132 Pac. 527 (1913); Claypool v. O'Neill, 65
Ore. 511, 133 Pac. 349 (1913); Pacific Livestock Co. v. Cochran, 73
Ore. 417, 144 Pac. 668 (1914); In Re North Powder River, 75 Ore. 83,
144 Pac. 485, 146 Pac. 475 (1914; reh.opinion 1915).
149. In Re Willow Creek, supra note 143.
150. Id. at 617.
AND THE LAW
the laws and public policy demanded that waters be conserved and
used to permit the highest level of agricultural and other industrial
activity in the state; the court then placed substantial reliance on a
United States Supreme Court case151 to conclude "that a state may
change its common-law rule as to every stream within its dominion
and permit the appropriation of the flowing waters for such purposes
as it deems wise."152 The only limitations on this discretionary
authority, observed the court, were in respect to the paramount fed-
eral interests. Both the result and the language of the Oregon
Court in this case, with respect to one of the riparian claimants,
indicated that under this act the vested riparian right depended upon
actual use of the water. These following excerpts from the opinion
will serve to demonstrate this conclusion:
A riparian proprietor cannot lay claim to the undiminished
flow of a stream without actual use.... A riparian owner's
right to water for irrigation is limited to the amount of water
needed and used.... In this proceeding the Eastern Oregon
Land Company should be awarded no additional use of water,
not having shown that it has ever applied to a beneficial pur-
pose any of the water of such stream in excess of the amounts
above specified... .153
Under the administrative procedure of this act, the agency ini-
tially determined water uses, and in the event of a dispute one per-
son on the stream could request a complete adjudication of all the
rights on the stream. In such proceeding, each water claimant was
required to submit a sworn statement of his claim and offer the nec-
essary proof to support it. A fee was charged each claimant based
upon the acreage to be irrigated. Thereafter, the agency made its
determinations and issued its orders which were to take effect pend-
ing court appeal unless a reasonable bond was posted by the appel-
lant. Riparians asserted in the federal courts that this procedure
was violative of due process, but the Supreme Court of the United
States had no difficulty disposing of this contention and upholding the
constitutionality of the statute. 154
Any doubts that In Re Willow Creek held that the 1909 Water
Code had limited the riparian vested property interest to water
151. United States v. Rio Grande Dam and Irr. Co., supra note 138.
152. In Re Willow Creek, supra note 143 at 623.
153. Id. at 625-628.
154. Pacific Livestock Co. v. Lewis, 241 U.S. 440, 36 S. Ct. 637 (1916).
The court cited with approval In Re Willow Creek, supra note 143, and
quoted with approval the language of that case that all water rights are
subject to regulation necessary to the general welfare.
296 WATER RESOURCES
actually used beneficially were clearly resolved in the 1924 case of
Re Water Rights of Hood River. 155 The applicable provision of the
1909 Water Code, as amended, read:
Actual application of water to beneficial use prior to the
passage of this act by or under authority of any riparian pro-
prietor, or by or under authority of his or its predecessors in
interest, shall be deemed to create in such riparian proprietor
a vested right to the extent of the actual application to benefi-
cial use; provided, such use has not been abandoned for a con-
tinuous period of two years.156
Construing this provision, the Oregon Supreme Court held that a ri-
parian right was limited to water actually put to beneficial use and
that subsequent appropriators could obtain water in excess of that
beneficially used by the riparian. In sustaining the validity of this
statute, the majority opinion proceeded somewhat along these lines:
no person owns a property interest in the water as such but merely
a usufructuary right; a statute properly denominates this natural re-
source of water as belonging to the public; a state may change its
common law rule of riparian rights as to all its waters and permit
appropriation of the water for such purposes as it deems wise;157
the legislature in its wisdom saw fit to alter the common law by
appropriation and by limiting vested rights to water actually benefi-
cially used by riparians; and this determination was properly with-
in the power and province of the legislature to make for the general
welfare of the people (in other words, a lawful exercise of the police
power). There were concurring opinions, and three of the justices
dissented on the ground that this act was an unconstitutional taking
of the future right to use water by the riparians. 159
Subsequently, this Oiegon statute was challenged in the federal
district court on the ground that the statute, in changing from the
riparian to an appropriation system, deprived the complaining
155. 114 Ore. 112, 227 Pac. 1065 (1924).
156. Oregon Water Code of 1909, 5717, sub. 2.
157. In Re Water Rights of Hood River, supra note 143 at 172, the court
again citing for this proposition United States v. Rio Grande Dam and
Irrigation Co., supra note 138.
158. Id. at 162, 164, 166, 172, 174, 179, 181.
159. In one of the concurring opinions this point was made: "This is not
taking the property of one and giving it to another. It is making the
use of public property, water, the measure of the property of the in-
dividual therein. The right to water is a usufruct. That right be-
comes vested when it is applied to a beneficial use, and not before."
Id. at 213. Also cf. Norwood v. Eastern Oregon Land Co., 112 Ore.
106, 227 Pac. 1111 (1924).
AND THE LAW
riparians of their vested property rights without due process of
law. 160 The Ninth Circuit Court of Appeals held that the complain-
ants had acquired a riparian right which was a vested property in-
terest However, it was held that under the police power of the
state this right could be modified by the legislature in the interest
of the general welfare. The court pointed out that the effect of this
Oregon statute was to eliminate the riparian right to future use of
water but there was a provision for the protection of vested riparian
rights to existing beneficial uses. All other riparian uses were
subordinated to this new appropriation system and the regulatory ad-
ministration established by the statute. This regulation, and result-
ant modification of the property interest, was held not such a radi-
cal change as to amount to a taking of property without due process
of law. 161 The Supreme Court of the United States granted certior-
ari and affirmed, but on a different ground. 162 The Supreme Court
construed the Desert Land Act in such a manner that it found the
complainants in the case had acquired no vested riparian rights. It
was therefore not necessary to reach the police power question upon
which the circuit court based its decision. But the court pointed
out that: "The public interest in such state control in the arid-land
states is definite and substantial." 163 Further, the decision was
careful to explain:
Nothing we have said is meant to suggest that the act,
as we construe it has the effect of curtailing the power of
the states affected to legislate in respect to waters and water
rights as they deem wise in the public interest.164
Although the Supreme Court did not decide the case upon the police
power reasoning of the circuit court, the language and approach of
the Supreme Court showed an affinity for the rationale of the lower
court opinion relating to the police power. This conclusion is es-
pecially strengthened in view of the historical background of prior
Oregon decisions clearly asserting the power of the legislature to
abrogate future riparian rights and citing United States Supreme
Court decisions in support of this proposition.
An eminent authority in the field writes in a recent Oregon Law
Review that the consistent administrative practice in Oregon is one
160. California-Oregon Power Co. v. Beaver Portland Cement Co., 73 F.
2d 555 (C.C.A. 9, 1934).
162. California-Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S.
142, 55 S. Ct. 725 (1935).
163. Id. at 165.
164. Id. at 163.
based upon priorities, not upon riparian rights; that under the com-
prehensive statutory scheme and the consequent restriction of ri-
parian rights, riparianism is not a vital force in Oregon today. 165
His conclusions are based upon an examination of agency proceed-
ings and upon personal conversations with the administrators who
seem little, if at all, concerned with the problem of riparian rights
in Oregon. 166
Recent developments in Kansas are of special significance. In
1945, Kansas enacted a Water Appropriation Act, 167 which altered
the existing law of water rights from one of a mixed riparian and
appropriation doctrine to one of a pure appropriation system. This
statute stated that all water within the state was dedicated to the
use of the people, subject to the control and regulation of the state
as provided in the legislation. In Section 82a-703 the enactment
further provided that: "Subject to vested rights, all waters within
the state may be appropriated for beneficial use.... Nothing in
this act contained shall impair the vested right of any person except
for nonuse." Vested right was defined in the act to mean a privi-
lege to continue the use of water which had been applied to a bene-
ficial use at the time of passage of the act or within three years
prior thereto. Provision was made for the chief engineer to make
a determination of vested rights and to then make an order estab-
lishing-these rights. Judicial appeal was provided from this admin-
istrative determination, but, unless and until an appeal was taken,
the order of the chief engineer was to be in full force and effect.
165. Hutchins, "The Common-Law Riparian Doctrine in Oregon: Legisla-
tive and Judicial Modification," 36 Ore. L. Rev. 193 (1957).
166. Ibid. A recent Oregon case shows the judicial deference toward the
It is seldom, if ever, that a court will interfere with discre-
tionary action of the state engineer upon matters involving the
administration of the water laws of the state and substitute
its judgment for his. Judges are not super engineers.
[Smyth v. Jenkins, 208 Ore. 92, 100, 299 P. 2d 819 (1956).]
However, the present status of "vested rights" is not nearly so clear
from the present statutory language:
"Existing rights" or "vested rights" or words of similar im-
port include inchoate rights to the use of water to the fullest
extent that the same are recognized, defined or declared by
any court within this state or by the State' Engineer. [Ore.
Rev. Stat. 536.210(6).]
But this is probably merely an attempt to codify the existing statutory
and case law.
167. Kan. Gen. Stat. 1949, 82a-701 to 82a-722.
AND THE LAW
Other than for the preservation of vested rights, all others had to
make an application for and obtain a permit in order to acquire the
right to use any water. The chief engineer passed upon these per-
mit applications as well. Section 82a-716 of the Kansas statute is
an enigmatic provision which originally read:
Common law claimants; action for compensation; injunctions
by appropriators. If any appropriation, or the construction
and operation of authorized diversion works result in an injury
to any common-law claimant, such person shall be entitled to
due compensation in a suitable action at law against the appro-
priator for damages proved for any property taken. An appro-
priator who has acquired a valid right under this statute may
prevent, by injunction, a subsequent diversion by a common-
law claimant of private rights without being required to first
condemn possible private rights. An appropriator shall have
right to injunction relief to protect his prior right to beneficial
use as against use by an appropriator with a later priority of
This entire Kansas enactment apparently represented a substantial
modification of the existing riparian rights. The riparian concept
envisages a right to use now or to begin in the future a reasonable
use of the water. In Kansas the right was frozen to present bene-
ficial uses, thereby seemingly emasculating the interest in the pos-
sibility of future utilization. Because of Section 716 there is some
168. There were several 1957 amendments made to the Kansas statutory
provisions so that 82a-716 now reads:
Common law claimants; action for compensation; injunctions.
If any appropriation, or the construction and operation of
authorized diversion works results in an injury to any com-
mon-law claimant, such person shall be entitled to due com-
pensation in a suitable action at law against the appropriator
for damages proved for any property taken. Any person with
a valid water right or permit to divert and use water may
restrain or enjoin in any court of competent jurisdiction a
subsequent diversion by a common-law claimant without vested
rights without first condemning those common-law rights. An
appropriator shall have the right to injunctive relief to pro-
tect his prior right of beneficial use as against use by an
appropriator with a later priority of right, [Kan. Gen. Stat.
82a-716 (1957 Supp.).]
However, the several 1957 amendments appear to be merely attempts
to clarify some of the language of the 1945 statutory provisions. The
new amendments do not attempt to restrict the comprehensive regula-
tory scheme initiated in 1945. For the 1957 amendments see Kan.
Gen. Stat. 82a-701 to 82a-725 (1957 Supp.).
doubt as to the exact limitation of the riparian right, since that sec-
tion may be construed by some to provide compensation to the ri-
parian for future rights which are impaired.
Shortly prior to the passage of this statute, the Supreme Court
of Kansas had' reaffirmed the absolute right of landowners to the
underground waters beneath such land and held that the appropria-
tion statutes then in effect did not allow the state to regulate the
use of these subterranean waters. 169 An early Kansas case had
held that the appropriation statute could not impair any vested com-
mon law riparian rights and that the appropriators' rights must be
acquired subservient to and limited by these riparian rights. 170
These cases reflect an attitude of stringent protection of all of the
riparian rights and a judicial disposition to limit strictly any statute
attempting to regulate or derogate from these riparian rights.
Despite this background the Kansas Supreme Court upheld the
1945 Water Appropriation Act in State ex rel. Emery v. Knapp. 171
The court in that case made this rather remarkable observation:
Heretofore we have approached the questions largely on the
basis of individual interest alone. Under this declaration and
other provisions of the act we now approach them upon the
basis of the interest of the people of the state without losing
sight of the beneficial use the individual is making or has the
right to make of the water. Unused or unusable rights pre-
dicated alone upon theory become of little if any importance.
Broad statements found in some of our opinions.., must be dis-
regarded or modified to harmonize with this declaration. The
change is an appropriate one for the legislature to make.
Individuals do not live alone in isolated areas where they, at
their will, can assert all of their individual rights without -
regard to the effect upon others. [Emphasis added.]172
There were seven constitutional questions presented to the court
among which were the following contentions: the statute is unconsti-
tutional as a taking of pre-existing vested riparian rights of down-
stream owners; the statute is unconstitutional as providing for water
diversion and delivery to non-riparian lands; the statute is unconsti-
tutional in requiring an owner of riparian lands to apply to the chief
engineer for the use of water in order to preserve such rights; and
the statute is unconstitutional as improperly conferring legislative
or judicial powers upon the chief engineer. The Kansas court found
169. State ex rel. Peterson v. State Board of Agriculture, 158 Kan. 603, 149
P. 2d 604 (1944).
170. Clark v. Allaman, 71 Kan. 206, 80 Pac. 571 (1905).
171. 167 Kan. 546, 207 P. 2d 440 (1949).
172. Id. at 555.
:AND THE LAW
that none of these provisions was unconstitutional and so answered
all of the propounded questions in the negative. 173
However, it is not entirely clear from this case whether the
court interpreted the statute as divesting future riparian rights or
as only limiting the future rights to the position of less importance
where the riparian would be limited to damages only for infringe-
ment upon such future rights if it could be shown that there was
actual damage to these rights. That is, the statute may have abro-
gated the future right, or it may have only abrogated injunctive pro-
tection for the riparian right but left some relief by an action for
damages. This uncertainty of result occurs through a number of
circumstances. In the stipulation of facts the parties agreed, for
purposes of the case, that appropriation of water under the provi-
sions of the act would result in substantial injury to downstream ri-
parians. 174 But the court declared: "We have difficulty in seeing
that the owner of land in Kansas riparian to the Republican river
has a vested interest in floodwaters of the river impounded in the
Harlan dam, eighty miles or more from his property. If he thinks
he has such rights, and they have been damaged by the impounding
of the water... and its use for irrigation..., the statute gives him a
right to bring a suit for such damages. The suggestion that he has
such rights as must be acquired by eminent domain is untenable.
The suggestion that such an owner may be damaged by the use of
such water for irrigation upon lands several miles from the river
cannot be sustained."175 On the other hand, the court observed
earlier in its opinion that if the statute under consideration changed
the common law rights of riparians, a very early Kansas statute
had authorized the legislature to do so, and that this new approach
and change was an appropriate one for the legislature to make. 176
The result of the case is not conclusive. The court may have been
saying that the vested right was less than claimed and, anyway, the
riparian could always bring suit to assert his right and try to prove
damages. Or the court may have been saying that the future right
to use water by riparians was incompatible with the spirit of the
statute and the needs of the state, so that the change of concept
toward this right was an appropriate one for the legislature to make.
Under either view the future right is substantially less significant
than before the legislation.
In 1955 a suit was filed in the federal district court seeking a
declaratory judgment that the Kansas statute violated the Fourteenth
173. Id. at 556.
174. Id. at 548.
175. Id. at 555-556.
176. Id. at 552, 555.
Amendment, an injunction to restrain state officials from enforcing
the act, and nullification of all' permits, vested right orders, and
all other action previously taken under the act. A three judge dis-
trict court sustained the statute in Baumann v. Smrha. 177 The
court held that it is within the police power of a state to modify or
reject the rule of riparian rights because it is unsuited to conditions
within the state, and that a state may substitute prior appropriation
or some other system of water law as long as recognition is given
to valid existing vested rights. 178 The complainants in this case
were landowners who were contending that appropriators under the
act were interfering with waters under their land, when under pre-
vious Kansas decisions the underground waters were a part of the
real property in which they were situated. 179
However, the three judge court concluded that as a result of
this Kansas statute the state's supreme court had taken a much dif-
ferent approach in regard to water rights. 180 The federal court
pointed out that there is no vested property right in the prior deci-
sions of a court and that change of decisions does not deprive a
person of the equal protection of the law, nor is it a taking of prop-
erty without due process of law. 181 It was then held by the court
that the state could properly apply the "doctrine of prior appropria-
tion and application to beneficial use to unused and unappropriated
waters so long as it recognized and afforded protection to rights
which landowners had acquired at the time of the effective date of
the Act to appropriate and use water. "182 But the court determined
that under present Kansas law a landowner had no "vested right in
underground waters underlying his land which he has not appropri-
ated and applied to beneficial use."183 Upon appeal to the Supreme
Court of the United States the decision of the three judge federal
district court was, upon motion to affirm, affirmed by a per curiam
Section 82a-716 of the Kansas statute, dealing with common law
claimants' actions for damages, results in beclouding the ultimate
effect of both the Kansas and federal cases. It can be argued that
Section 716 and both the cases rest upon the fact that riparians
177. 145 F. Supp. 617 (D.C., Kan. 1956).
178. Id. at 624. The Court found no encroachment upon the rights to the
underground water in the factual situation here presented.
179. State ex rel. Peterson v. State Board of Agriculture, supra note 169.
180. State ex rel. Emery v. Knapp, supra note 171.
181. Baumann v. Smrha, supra note 177 at 625.
183. Id. at 624-625.
184. Baumann v. Smrha, 352 U.S. 863, 77 S. Ct. 96 (1956).
AND THE LAW
were given protection to a vested right to future uses by granting a
remedy for compensation as to any damaged future rights. It is
submitted that neither the Emery nor Baumann case rests upon such
a limited base. Rather both decisions went to great lengths in
speaking of the new approach wrought by the Kansas legislation and
upholding the great change as a proper exercise of power by the
legislature. If the cases merely held that riparians could obtain
compensation for any encroachment on the rights to future use, then
the legislation would not be this radical new approach spoken of in
both cases but would be the well-known method of condemnation with
a different twist and dressed up in new clothes. There would have
been no reason to speak of justification for the statute under the
concept of the legislature acting in behalf of the public welfare,
(that is the police power), to effect this great change if a remedy
for compensation were alone the question because the police power
and condemnation are not necessarily the same. The language of
the cases indicates an exercise of police power and not condemna-
tion proceedings. Although there may be some area where the po-
lice power and condemnation merge, it is submitted that these cases
were not concerned with condemnation (and whether there was a tak-
ing of property for private purposes); rather the courts resolved the
ultimate issue to be whether there had been a proper exercise of
the police power. If the issues presented to the state and federal
courts could simply have been resolved by pointing to the remedy
section, it is difficult to perceive why both the federal and state
courts felt compelled to reach the constitutional question concerning
the taking of property without due process of law; and the courts
were obviously discussing legislative police power and general wel-
fare. The courts could have merely referred the complainants to
the compensation provision, pointed out that they had misconceived
their remedies, and entirely avoided the difficult constitutional prob-
lems. It may well be concluded that both of these decisions rest
upon the broad base of the police power even though the results are
not entirely free of doubt.
Although this series of Kansas cases is not the clear authority
which might be desired, still when the cases are taken in conjunc-
tion with the scope of the police power and the attitude of the Su-
preme Court toward state regulation of economic interests, 185 these
decisions do provide the basis for a law which does not provide for
a vested property interest in the riparian future use. In this re-
spect a recent Kansas commentator has observed:
185. This attitude is more fully explored in the next section.
Under the reasonable use theory the law gives the riparian
owner permission to use water. If he does not take advantage
of this privilege, surely the state must have authority within
its police power to take away the unused privilege so that per-
mission can be extended to others who will take advantage of
The riparian right to use water surely cannot preclude a police
power enactment regulating the unused riparian right. If a state
may abrogate one class of property to protect another property
deemed more beneficial, 187 certainly the state should be able to
impinge on riparian rights to future use by permitting the present
development and utilization of an essential natural resource for the
benefit of society. Under such legislation there is no present prop-
erty use which is being destroyed-if anything at all is abolished, it
is the "dog in the manger" aspect of the riparian concept. Elimi-
nation of that evil should be a legitimate public end. 188
VI. THE UNITED STATES SUPREME COURT AND REGULATION OF
Beginning sometime in the decade preceding the turn of the cen-
tury, the Supreme Court of the United States extended interpretation
of the Fourteenth Amendment's "Due Process Clause" to arrive at
the concept of substantive due process. 189 From a simple and halt-
ing beginning the idea of substantive due process grew to be a several
186. Scurlock, "Constitutionality of Water Rights Regulation," 1 Kan. L.
Rev. 125, 137 (1952-53).
187. Miller v. Schoene, supra note 33.
188. A very recent Kansas case reflects their new judicial position with re-
spect to legislative enactments. In Sands v. Van Dange, 181 Kan. 325,
311 P. 2d 321, 324 (1957), the Kansas Supreme Court upheld a statute
dealing with incompetents and stated its own judicial position:
... T]he judiciary may not interfere with the legislative con-
science unless there is a clear violation of some provision of
189. A most fascinating account of the forging of substantive due process is
told in Hamilton, The Path of Due Process of Law, The Constitution
Reconsidered, at 167-190 (1938). As sketched so well by Hamilton,
the importation of substantive due process into the Constitution was a
subtle and almost imperceptible movement. Some landmarks on the
transitional way may be Chicago, Milawukee & St. Paul Ry. v. Minne-
sota, 134 U.S. 418, 10 S. Ct. 462 (1890); Allgeyer v. Louisiana, 165
U.S. 578, 17 S. Ct. 427 (1897), which first articulated previous abstrac-
tions into the notion of substantive due process; Lochner v. New York,
supra note 89, where Hamilton notes "that due process first won in a
clean-cut combat with the police power." Hamilton, supra, at 185.
AND THE LAW
restriction on the Congress and state legislatures in making a choice
of economic regulation. The Federal Court invalidated any number
of statutes regulating economic interests under the guise of the Due
Process Clause. 190 Basic to the whole matter of substantive due
process is the relationship between the judicial and legislative
branches of government and the proper area of judicial power in
dealing with legislation. Although this doctrine of testing regulatory
legislation of property interests by the Due Process Clause was sub-
jected to constant and bitter criticism, from within as well as with-
out the Court, 191 still "for about fifty years the Court operated on
the assumption that the power of legislatures to deal with business
affairs was limited by a rule of judicial reason."192 During this
period judges permitted themselves to substitute their ideas and
judgments on political policy and needs of the people for the wisdom
of the legislature. But this judicially active interference with legis-
lation give way to a position of almost total deference to the legis-
lature in the realm of economic regulation. This remarkable change
was both sudden and complete and marks a new phase for the Su-
preme Court dating from around the mid-thirties. 193
Nebbia v. New York, 194 decided in 1934, may be the landmark
for the new era; it presaged the ultimate change to be ushered in
by 1937. In the Nebbia case a divided Supreme Court upheld a state
statute setting minimum prices on milk. The case laid to rest the
notion that seemed to have earlier prevailed-that property could be
regulated only if "affected with a public interest' (which in turn had
been interpreted as tantamount to a business holding a franchise a
public utility type business activity having a virtual monopoly). 15
190. See Part HI, supra, its cases and discussion. For example, see
Lochner v. New York, supra note 89, Adair v. United States, 208 U.S.
161, 28 S. Ct. 277 (1908); Coppage v. Kansas, supra note 38; Adkins v.
Children's Hospital, 261 U.S. 525, 43 S. Ct. 394 (1923); Williams v.
Standard Oil Co., 278 U.S. 235, 49 S. Ct. 115 (1929).
191. See Paulsen, "The Persistence of Substantive Due Process in the
States," 34 Minn. L. Rev. 91, 92 (1950). In this article, Mr. Paul-
sen takes note of the varied and, persistent criticism hurled at the
court for adherence to this doctrine.
193. Note, "State Views on Economic Due Process: 1937-1953," 53 Col. L.
Rev. 827 (1953); Paulsen, supra, note 191. This abrupt turnabout has
been spoken of as a "constitutional revolution"; the swiftness and thor-
oughness with which it routed the old enemy justifies the appellation.
See Corwin, Constitutional Revolution (1946).
194. 291 U.S. 502, 54 S. Ct. 505 (1934). This was a 5-4 decision with Jus-
tice Roberts writing for the court and Justice McReynolds writing for
195. Id. at 531-534, where the Court points out that the language in Munnv.
306 WATER RESOURCES
The court made it clear that "affected with a public interest" meant
merely that any property affecting the community is subject to the
police power;196 that is, that "an industry, for adequate reason, is
subject to control for the public good. "197 Under this notion all
property becomes subject to the police power. There was a minor
defeat for the Nebbia rationale in 1936, but that year marked the
last one in which any litigant would again prevail upon the Supreme
Court to invalidate an economic regulatory measure passed by the
legislature. 198 The year 1937 brought a complete and continuing
victory for the police power of the state and the legislative power
of Congress to deal with the regulation of economic matters free of
judicial interference from this nation's highest court. 199
From West Coast Hotel Co. v. Parrish200 to Baumann v.
Smrha, 201 twenty years have elapsed in which the Supreme Court of
the United States has upheld the constitutionality of economic legis-
lation in every case which has been decided by it. 202 The old
cases which echoed the presumption of constitutionality for legisla-
tion often paid little heed to the principle when invalidating legisla-
tion. Today regulatory legislation affecting economic interests "is
not to be pronounced unconstitutional unless in the light of the facts
made known or generally assumed it is of such a character as to
preclude the assumption that it rests upon some rational basis with-
in the knowledge and experience of the legislators. "203 In yet
Illinois, 94 U.S. 113 (1876), relied upon by parties to reach this re-
sult of equating "affected with a public interest" to a franchised mono-
polistic public utility are totally in error. The court said neither Munn
nor any other case ever stood for this proposition. However, cf. New
State Ice Co. v. Liemann, 285 U.S. 262, 52 S. Ct. 271 (1932), where
the language of the court indicated a public utility was equivalent with
"affected with a public interest."
196. Id. at 533.
197. Id. at 536.
198. See Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 56 S. Ct.
918 (1936). This was a 5-4 decision with Mr. Justice Roberts, who
had written the opinion in Nebbia, voting with the four dissenters in
Nebbia so as to make them the majority in Morehead.
199. See Paulsen, supra, note 191; Corwin, supra, note 193; Note, "State
Views on Economic Due Process: 1937-1953," supra note 193.
200. 300 U.S. 379, 57 S. Ct. 578 (1937).
201. 352 U.S. 863 (1956).
202. Ibid. These law review articles bring that conclusion up through 1953,
and an investigation of the Supreme Court cases from 1953 to October
of 1957 reveals that this conclusion remains true-no statute regulating
property has ever been struck down since 1937.
203. United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S. Ct.
AND THE LAW
another property regulation case, the Supreme Court said in effect
that there would be no violation of the Fourteenth Amendment so
long as "there is any rational basis for the action of the legisla-
ture."204 The court meant what it said; twenty years of decisions
prove this. In fact, Mr. Justice Black and Mr. Justice Douglas
incline to the position that the Fourteenth Amendment does not pro-
tect economic interests at all and that the court should not even be
examining these types of police power cases. 205 The court is most
emphatic in stating that with economic regulation the "forum for the
correction of ill-considered legislation is a responsive legislature"
and not the Supreme Court 206 Even though the court may question
the prudence of the legislation and really believe the measure un-
wise, still it will "leave debatable issues as respects business, eco-
nomics, and social affairs to legislative decision" and will not re-
sort to judicial interference. 207 These facts prompted Professor
Paulsen to conclude:
204. Sage Stores Co. v. Kansas, 323 U.S. 32, 35, 65 S. Ct. 9 (1944).
205. See Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S.
575, 599, 62 S. Ct. 736 (1942), in which Justice Black wrote a special
concurring opinion in which Justices Douglas and Murphy joined; also
see Carolene Products Co. v. U.S., 323 U.S. 18, 65 S. Ct. 1 (1944),
and Sage Stores Co. v. Kansas, supra note 204, where Justices Black
and Douglas concurred in results upholding the constitutionality of leg-
islation but did not write opinions; California State Auto Ass'n v.
Maloney, 341 U.S. 105, 111, 71 S. Ct. 601 (1951), in which Justice
Douglas wrote for the court upholding the constitutionality of the Cali-
fornia Compulsory Assigned Risk Law as a lawful exercise of the
police power and Justice Black, concurring in the result, would have
dismissed the appeal "on the ground that the constitutional questions
However, cf. Lincoln Federal Labor Union v. Northwestern Iron
& Metal Co., 335 U.S. 525, 69 S. Ct. 251 (1949), where Justice Black
wrote the opinion for the court upholding right to work laws as proper
police measures againstthe attack under the Fourteenth Amendment;
Atchison, Topeka & Santa Fe Ry. Co. v. Pub. Util. Come's, 346 U.S.
346, 74 S. Ct. 92 (1953), dealing with an agency order requiring that
50% of the costs of grade improvements be borne by railroads in
which the court upheld the order against the Fourteenth Amendment at-
tack and Justices Black and Douglas noted no separate concurrence.
Also cf. Kotch v. Pilot Com'rs, 330 U.S. 552 (1947); Goesaert v.
Cleary, 335 U. S. 464, 69 S. Ct. 198 (1948). In both cases Justice
Douglas dissented and would have invalidated the legislation in each
206. Danielv. Family Security Life Ins. Co., 336 U.S. 220, 224, 69 S. Ct.
207. Day-Brite Lighting v. Missouri, 342 U.S. 421, 423, 72 S. Ct. 405
...[T]he majority of the Court will uphold state enactments
if the facts reveal a basis for legislation which might commend
itself to any reasonable man, not merely to the judges. Taken
literally such a test of constitutionality would validate almost
every statute once enough votes were mustered to secure its
passage through the legislature. It is significant that since
1937 the Court has not declared a statute regulating economic
affairs to be a violation of due process. With two members
of the Court willing to forswear the weapon of due process
as against economic regulation, and the rest unwilling to find
occasion to use it, the invalidation by reason of the due process
clause of state laws seems(for the moment, at least) to be a
matter for history.208
All the recent cases of the court, and the present membership of
the court, indicate that this change is to be one of permanence. The
court now exercises the utmost restraint in dealing with economic
legislation so that the judicial sphere of operation in these matters
is severely restricted, while the legislative area of action is given
an almost boundless scope of power. It is currently inconceivable
that the United States Supreme Court would invalidate a statute regu-
lating the use of water and limiting the riparian right to water ac-
tually being beneficially used. It is submitted that the Supreme
Court would leave to the states the regulation of their water re-
sources almost completely free of any judicial inference or re-
208. Paulsen, supra note 191 at 92.
209. But cf. United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct.
955 (1950), where the question arose whether the federal government
must give compensation for claimed riparian rights. It was contended
that the parties had a vested property interest in the regular river
overflow which inundated their lands at seasonal intervals and was re-
sponsible for the productivity of the land. There was no controversy
over the fact that the reclamation project of the government deprived
the persons of this water. The issue was whether that property inter-
est was of such a nature as to require compensation. In holding that
the government must compensate for the taking, the Supreme Court
looked to California law and found that this was a vested property right
which could not be taken except by compensation being given. The court
said, at 752-753:
But the public welfare, which requires claimants to sacrifice
their benefits to broader ones from a higher utilization, does
not necessarily require that their loss be uncompensated any
more than in other takings where private rights are sur-
rendered in the public interest.... Public interest requires
appropriation; it does not require expropriation.
Although this case did not involve the state police power, the quoted
language is peculiarly apt in indicating that the Supreme Court may
protect riparian rights from arbitrarily complete destruction.
AND THE LAW
VII STATE COURTS AND REGULATION OF WATER RIGHTS
In all of the states there are constitutional provisions which
have been interpreted by the state courts as similar to the Due
Process Clause of the Fourteenth Amendment. 210 A state court in-
terpretation of its own constitutional limitations on legislation would
not involve a federal question; the state supreme courts are the ul-
timate tribunals and authorities on such questions. 211 It is then
quite possible for regulatory legislation, which would undoubtedly be
upheld by the United States Supreme Court, to be declared a viola-
tion of a state constitution by the state supreme court, and the mat-
ter would end there. There could be no appeal to the United States
Supreme Court. For this reason, a brief examination will be made
of some selected states in an effort to find the status of substantive
due process at the state level. Where possible this excursion will
be most responsive to state decisions pertaining to water regulation,
but in some of the states considered there are no pertinent cases
or statutes dealing with extensive water regulation, so that cases
dealing in general with the police power and substantive due process
must be examined. When dealing with the concepts of the police
power and substantive due process, one must concern himself with
current cases, since older cases in this changing area may only be
matters of historical development. This fact is kept in mind
throughout in evaluating the police power and due process. In either
situation, predicting state court behavior in this field is much more
imprecise than predicting court behavior at the federal level.
This discussion of state judicial tolerance for the regulation of
water resources will be related in some measure to the proposed
Model Water Use Act212 and two salient features of that Act. First,
there is the infringement of the riparian right to future use; second,
there is the establishment of a comprehensive regulatory scheme
which is administered by a state agency under the standard of bene-
ficial use. These problems are not necessarily peculiar to the
Model Act. It is believed that any extensive regulatory measure
controlling the utilization of water will in some degree create both
of these constitutional questions. Though the aspects of the Model
Water Use Act may be keynoted, still the discussion is appropriate
210. Note, "State Views on Economic Due Process: 1937-1953," supra note
193 at 831, ft. 40 (1953); this law review article lists the various state
211. Paulsen, supra note 191.
212. The proposed Model Water Use Act was prepared by the Legislative
Research Center of the University of Michigan Law School, and is re-
produced in this volume.
and relevant to all water regulation. The query throughout then is
whether the state courts will uphold a police power enactment which
alters the common law riparian notion of a right to future use of
water and which allows a state agency extensive regulation over
water use pursuant to the criterion of beneficial use to the public.
In some of the appropriation states the appropriators' water rights
may be afforded the property protection normally accorded riparian
rights; therefore these constitutional problems are of importance in
many of the appropriation states as well.
However, at the outset it should be discerned that only in the
regulation of private water users are constitutional issues raised.
No constitutional questions are posed when the state undertakes to
regulate municipalities using or supplying water. Municipalities, as
creatures of the state, are subject to state regulation in the conser-
vation and control of water resources. Municipal activity must be
subservient to and in consonance with state law. There is no ques-
tion of due process involved in the state regulating city water use
since it is only the sovereign state which created the municipalities
controlling these subsidiaries in matters of state importance.
Even in the some twenty-two states with constitutional provi-
sions reserving municipal home rule to the local city government,
free of,state encroachment there is no difficulty with state control
of municipal water use. 213 Although the precise meaning of munici-
pal home rule remains obscured and subject to an ad hoc judicial
determination, in the main it means that purely local, municipal af-
fairs (whatever they may be) will be left to the cities and excluded
from the power of state legislation. 214 Despite the lack of clarity
in this meaning, it is perfectly clear that a subject which tran-
scends municipal affairs and is of real concern to the state can be
validly legislated on by the state legislature, which would be su-
preme when in conflict with municipal ordinances. 215 Stated in an-
other way, this proposition means that matters which are not peculi-
arly and essentially local municipal affairs are always subject to
state legislation. The regulation and conservation of water re-
sources for the benefit of all the public is so obviously a matter of
213. For the list of states, with some type of constitutional provision guar-
anteeing municipal home rule see Asch, "Municipal Home Rule in New
York," 20 Brook. L. Rev. 201 (1954).
214. See McGoldrick, The Law and Practice of Municipal Home Rule, 1916-
1930, pp. 66-68 (1933).
215. Pasadena Park Improvement Co. v. Lelande, 175 Cal. 511, 166 Pac.
341 (1917); Horwith v. City of Fresno, 74 Cal. App. 2d 443, 168 P. 2d
767 (1946); Keith, City and County Home Rule in Texas (1951); Mc-
Goldrick, supra note 214.
AND THE LAW
primary state interest that there can be no doubt that all of the
states operating under the constitutional limitation of municipal home
rule can still control municipal water users or suppliers. 216 No
one would seriously contend that regulation of water resources is
exclusively a local concern.-
The state legislature can also properly regulate public water
suppliers which receive a state franchise to perform this task with-
out raising any serious substantive due process issues. Franchised
business activities are subject to all of the conditions of the fran-
chise and to almost plenary state regulation and control, even under
the old concept of "affected with a public interest." Control of mu-
nicipal and public water users provides the states with opportunity
for regulation and control of a substantial amount of water initially,
without encountering the contention of unconstitutionality as a taking
of property without due process of law.
The ten states which are next discussed were selected as fair-
ly representative of states with histories of rather extensive regula-
tion of their water resources. The group of states includes: west-
ern appropriation states with the appropriation doctrine exclusively;
western states with both the riparian and appropriation doctrines;
and the midwestern states of Kansas, Minnesota, and Nebraska,
where important limitations have been made on the riparian system
and substantial regulatory measures have been enacted.
A recent Arizona case, in upholding the state's 1948 ground
water statute, proceeded on the general theory that the interests of
the public were paramount to individual property rights. 217 Under
that legislation the state land commissioner determined critical
ground water areas and within said areas prohibited any future drill-
ing of wells for irrigational purposes, while permitting existing
wells to operate as before. In holding this act constitutional the
Arizona Supreme Court quite properly stated the whole crux of these
matters: "It can thus be seen that a conflict occurs between appel-
lant and the state by reason of the interest of the public in the
preservation from destruction of a resource essential to the
216. California and Texas have perhaps the broadest constitutional reserva-
tions of power to municipalities. Two studies of these states demon-
strate that state control of water resources, including city use, would
be perfectly proper. McGoldrick, supra note 214 at c. 111; Keith,
supra note 215. The state water statutes in these two states certainly
bear this out.
217. Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 407, 291 P. 2d 764
sustenance of life. Where the public interest is thus significantly
involved, the preferment of that interest over the property interest
of the individual even to the extent of its destruction is a distin-
guishing characteristic of the exercise of the police power."218
This is the only proper approach to state regulation of its natural
Since the early case of Boquillas Land & Cattle Co. v. St.
David Ass'n.,219 the state of Arizona has eschewed the idea that
statutorily conferred riparian rights were absolute. The Arizona
court there held that the legislature had conferred riparian rights
subject to future legislation so that the riparian rights "cannot be
said to be vested in such a sense as that they may not be subse-
quently abrogated by statute, at any rate when the riparian owner
has made no use of the water permitted him at common law. "220
In view of this history of riparianism in Arizona it seems quite ob-
vious that the state court would uphold any statutory encroachment
on the future riparian use in permitting the state legislature exten-
sive power to regulate water resources. 221 In fact, from the Ari-
zona cases it is dubious that the state would even recognize a con-
stitutionally protected vested property right in water; thus the police
power question might not even arise. But even if a vested proper-
ty interest were recognized, the most recent Arizona pronounce-
ment shows that regulatory legislation of the broadest kind would be
upheld as a legitimate exercise of the police power.
The California story may begin with the famous case of Lux v.
Haggin222 which in the rehearing decision of 1886 prompted the
longest opinion in California judicial history. In this case the lower
riparian succeeded in restraining the diversion of water by the upper
218. Id. at 409.
219. 11 Ariz. 128, 89 Pac. 504 (1907). This case was affirmed by the
United States Supreme Court, Boquillas Land & Cattle Co. v. Curtis,
supra note 138.
220. Id. at 137.
221. But cf. Giss v. Jordan, 82 Ariz. 152, 309 P. 2d 779 (i957), where the
Supreme Court reiterated the principles of the strong presumption of
constitutionality for legislation, of requiring proof beyond a reasonable
doubt that legislation is unconstitutional, and of the judicial position
not to question the wisdom of statutes. Still the court found unconsti-
tutional a statute which permitted officers of the legislature to audit
and approve claims for reimbursement of expenditures by its members
where the Arizona Constitution required the executive branch to per-
form all audits.
222. 69 Cal. 255, 10 Pac. 674 (1886).
AND THE LAW
appropriator in order to preserve the lower riparian right to regu-
lar overflow irrigation which helped cultivate wild hay. The lower
riparian right was upheld, despite the obvious fact of its gross in-
efficiency which prevented upper water users from making more eco-
nomic use of the water. It was held by the court that the prior ap-
propriation statute preserved riparian rights to their full extent, and
the riparian right extended to obtaining the natural flow of the river
undiminished except by reasonable use of other riparians. As be-
tween a riparian and an appropriator the standard of reasonableness
does not obtain, so that the riparian can insist upon his full rights
without regard to the matter of reasonable use as between the two
water users. 223 In California it was later clearly reaffirmed that
the regular seasonal overflow use of rivers was a vested riparian
In 1926 the California Supreme Court adhered to the rationale
of Lux v. Haggin225 in the Herminghaus case. 226 The effect of the
Herminghaus decision was to invalidate part of the 1913 Water Code
which had limited all water users to beneficial and reasonable use,
had limited the amount of water which could be used to irrigate each
acre of cultivated land, and had provided for the loss of a riparian
right by nonuse for ten years. The court held that the riparian
rights were vested and the legislature could not abridge these
rights. 227 Herminghaus created such a storm of protest that it
precipitated a constitutional amendment which read in part:
The right to water or to the use of flow of water in or from
any natural stream or water course in this state is and shall
223. Id. at 368-379. Implicit in the holding is the fact that the appropria-
tion statute cannot in any way restrict the riparian property interest
which the United States confers on grantees of public land; the gran-
tees of such public land can then convey all of their rights unimpaired
to subsequent persons. The result of such judicial reasoning would
lead to restricting appropriation to public lands, owned either by Cali-
fornia or the United States. See Wiel, "Fifty Years of Water Law,"
50 Harv. L. Rev. 252 (1936).
224. Miller Lux v. Madera Canal and Irr. Co., 155 Cal. 59, 99 Pac. 502
225. 69 Cal. 255, 4 Pac. 919, 10 Pac. 674 (1886).
226. Herminghaus v. Southern Cal. Edison Co., 200 Cal. 81, 252 Pac. 607
227. Ibid. In this Herminghaus case the lower riparian was claiming that
the upper water user could not interfere with the riparian right to sea-
sonal overflow for irrigation. The upper user, Southern California
Edison Co., was a riparian owner but its use in daring and storing
water over long cyclic periods was held not to be a proper riparian
use so that the company had to claim as an appropriator. The ripari-
an right does not depend upon use and cannot be destroyed by nonuse.
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 of 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 required or used consistently with this section, for the
purposes for which such lands are, or may be adaptable, in
view of such reasonable and beneficial uses; provided, however,
that nothing herein contained shall be construed as depriving
any riparian owner of the reasonable use of water of the stream
to which his land is riparian under reasonable methods of
diversion and use, or of depriving any appropriator of water
to which he is lawfully entitled. 228
Under this amendment all water users are now subject to the
standard of reasonable and beneficial use whether the controversy is
between riparian and riparian, riparian and appropriator, appropri-
ator and appropriator, or overlying owners of land in respect to
ground water. 291 No longer is the riparian entitled to have the
water flow down to him undiminished except by reasonable riparian
use. 230 The riparian is not entitled to damages against a riparian
or appropriator simply because his usufructuary right to the water
has been interfered with but must show substantial actual or pro-
spective damages to recover. 231 No injunction can be granted a
riparian if its effect is to waste water that could otherwise be
used. 232 Water may now be used by appropriation out of the water-
shed if the use is beneficial and the lower riparians are not substan-
tially injured. In other words, the policy of the constitutional
amendment was to foster maximum utilization of all available water
for beneficial purposes rather than permitting the water to run down
and waste away into the ocean. These principles apply to ground
water as well as to surface streams. 233 Between two appropriators
the prior appropriator is protected from an encroachment upon his
228. Article XIV, 3 of the California Constitutional Amendment of 1928.
229. See Gin S. Chow v. City of Santa Barbara, 217 Cal. 673, 22 P. 2d 5
(1933); Peabody v. City of Vallejo, 2 Cal. 2d 351, 40 P. 2d 486 (1935);
Rancho Santa Margarita v. Vail, 11 Cal. 2d 501, 81 P. 2d 533 (1938);
Meridian, Ltd. v. The City and County of San Francisco, 13 Cal. 2d
424, 90 P. 2d 537 (1939).
231. Crum v. Mt. Shasta Power Corp., 220 Cal. 295, 30 P. 2d 30 (1934).
232. Rancho Santa Margarita v. Vail, supra note 229.
233. See City of Pasadena v. City of Alhambra, 33 Cal. 2d 908, 207 P. 2d
17 (1949); Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.
2d 489, 45 P. 2d 572 (1935); Katz v. Walkinshaw, 141 Cal. 116, 70
Pac. 663 (1903).
AND THE LAW 315
quantity of water, but he may be required to make minor changes
in his method of appropriation so that water can be made available
Sfor subsequent appropriators, although the prior appropriator cannot
be compelled to make major changes or to incur substantial ex-
penses. In resolving any conflict it is the duty of the trial court to
impose all necessary conditions to protect the prior appropriator
while also assuring that there will be no waste of water. 234
However, all of the anticipated beneficial consequences of the
constitutional amendment did not materialize. The riparian right is
still of paramount importance in California. Riparians have prior-
ity over appropriators, subject only to the standard of reasonable
and beneficial use. 235 In a dispute between a riparian and an ap-
propriator the trial court must determine the quantity of water cur-
rently needed by the riparian and award that amount as a paramount
right. 236 A finding only that the riparian needs a reasonable
amount is improper because now the court must adjudicate the
amount of water presently beneficially used by the riparian. 237 In
this same court decree there must be provision made for the pro-
tection of the riparian right to future use as a paramount right
which will be protected and preferred over appropriators, if and
when the riparian exercises the right. 238 The trial court should
make such a provision protecting the riparian right to future use of
water and safeguarding its priority over appropriators so as to pre-
clude any prescriptive right running against the future use. Appro-
priators then take subject to the uncertainty of being cut down by
the riparians' exercising their right to the future use. The trial
court should properly retain jurisdiction over the controversy to
protect this right to future use and also to determine that it is a
reasonable and beneficial use when exercised in the light of condi-
tions then existing. 239
As to such future or prospective reasonable beneficial uses,
it is quite obvious that the quantity of water so required for
such uses cannot be fixed-in amount until the need for such
use arises. Therefore, as to such uses, the trial court, in
234. See City of Lodi v. East Bay Mun. Utility Dist., 7 Cal. 2d 316, 60 P.
2d 439 (1936).
235. Peabody v. City of Vallejo, supra note 229.
236. Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra note 233.
238. Ibid., Peabody v. City of Vallejo, supra note 229; Meridian, Ltd. v.
The City and County of San Francisco, supra note 229; and see dictum
in Ivanhoe Irr. Dist. v. All Parties, 47 Cal. 2d 597, 306 P. 2d 824
its findings and judgment, should declare such prospective uses
paramount to any right of the appropriator. By such declara-
tory judgment, the rights of the riparian will be fully protect-
ed against the appropriative use ripening into a right by pre-
scription, but, until the riparian needs the water, the appro-
priator may use it, thus, at all time, putting all of the avail-
able water to beneficial uses.240
This identical principle obtains with respect to ground water and the
relation of the overlying owner (analogous to the riparian) to the ap-
propriator of the water. 241 The Supreme Court of the United States
in United States v. Gerlach Live Stock Co. 242 thought that the Cali-
fornia case law, even after the constitutional amendment, still pro-
tected the riparian right to regular seasonal irrigational overflow,
and the court allowed compensation for that property interest taken
by the federal government. The California cases decided subsequent
to the amendment have been something of a disappointment. Although
the cases speak of this new constitutional upheaval, Mr. Wiel has
pointed out that "in their final aspect they show that what has hap-
pened has given the common-law riparian rights firmer root by put-
ting them, in fact, into the constitution." 243 This conclusion was
based in part on the California court having held a part of the state
water statute unconstitutional, as in violation of the 1928 constitu-
tional amendment, where the statute provided that ten years of non-
use, without an intervening use, constitutes an abandonment of the
riparian right. 244 In California then the riparian right does not de-
pend upon use, and nonuse cannot destroy the right.
The result of these California decisions must tend toward waste
of water by hindering full utilization of the state's water resources.
An appropriator is unlikely to invest heavily in an undertaking when
his use of the water may be cut down at any time in the future if
the paramount riparian owner determines to exercise the right to
future use. No period of nonuse by the riparian can afford the ap-
propriator any assurance of a continued sum certain of water be-
cause the riparian may begin the future use at any time and without
prior warning. It is submitted that this result is a frustration of
the very purpose of the 1928 constitutional amendment. Maximum
240. Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra note 233 at
241. City of Pasadena v. City of Alhambra, supra note 233; Peabodyv. City
of Vallejo, supra note 229.
242. 339 U.S. 725, 70 S. Ct. 955 (1950).
243. Wiel, supra note 233. See as well the Comment, "Water Rights-Re-
curring Flood Waters-Effect of Article XIV of California Constitution,"
1 Stan. L. Rev. 172 (1948).
244. Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra note 233.
AND THE LAW
utilization of the state's most precious natural resource is still be-
ing thwarted in California by the line of reasoning of its court; ap-
propriators will be reluctant to make necessary investments, result-
ing in full development and use of water, when their right is always
subject to partial or total extinguishment by riparians' exercising
their superior right to initiate a future use of water. Be this as it
nay, it remains questionable that, even today, the California Su-
preme Court would uphold legislation which limited the riparian
right to existing beneficial use of water and which required ripari-
ans to compete on equal footing with others for any future use of
water, such use to be based solely upon the standard of beneficial
use and controlled by an administrative permit system.
However, California already has in operation quite an integrated
system of water law, with prior appropriation, beneficial use, and
the permit system as the heart of its regulation. Thus, many of
the concepts of the Model Water Use Act are already accomplished
facts in California. There is at least this foothold whereby the
standard of reasonable and beneficial use obtains as between all
water users in the state, and perhaps a change in court personnel
and the climate of opinion in the state might hold real hope for leg-
islation like the Model Act being sustained. But still the state must
remain a doubtful one.
In Colorado it was early determined that the riparian doctrine
was not a part of the state law. 245 The appropriation doctrine has
been consistently and exclusively adhered to in this state. 246 Both
the state, constitution and state supreme court cases clearly expound
the principle that the waters of the state are public waters, dedi-
cated to the use of the public but with the right in private individ-
uals to appropriate water for beneficial uses. 247 Neither appropri-
ation rights obtained prior to the adoption of the state constitu-
tion248 nor appropriation rights acquired after the constitutional
adoption249 give the appropriator any absolute right in the water;
the right is subject always to actual beneficial use. The appropriation
245. See Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).
246. See Sternberger v. Seaton Mining Co., 45 Colo. 401, 102 Pac. 168
(1909); Snyder v. Colorado Gold Dredging Co., 181 Fed. 62 (C.C.A. 8,
1910); Wyoming v. Colorado, 259 U.S. 419 (1922).
247. Colorado Constitution, Art. XVI, 5 and 6; Ft. Collins Co. v. Larimer
& Weld Co., 61 Colo. 45, 156 Pac. 140 (1916); Pulaski Irr. Ditch Co.
v. Trinidad, 70 Colo. 565, 203 Pac. 681 (1922).
248. Ft. Collins Co. v. Larimer & Weld Co., supra note 247.
249. Pulaski Irr. Ditch Co. v. Trinidad, supra note 247.
right is only to the use of the water and not to any quantity of
water as such. 250 Beneficial use is essential to establishment of
the appropriative right, and it is essential to the continuance of the
right. ?51 Since the unappropriated waters of the state are the prop-
erty of the public, there can be no acquisition of a prescriptive
right in Colorado because the adverse use would be against the pub-
lic, which could not be tolerated. 252 There are no rights to a fu-
ture use of water and all water rights are subject to the standard
of actual, continuing beneficial use, so that the principles of re-
stricting future use and making all water use abide by the standard
of beneficial use are already accomplished facts in Colorado.
In the realm of the police power Colorado generally takes a
very liberal attitude. The court says that all property is held sub-
ject to the inherent police power of the state and any person assert-
ing that a police power measure is unconstitutional has the burden
of proving it so beyond a reasonable doubt. 253 The court has due
deference to the legislature:
Under our system of government only the legislature can
enact laws and it is the legislature's right and duty to deter-
mine what laws are desirable. It is well established by an
unbroken line of decisions of this court, as well as of the
Federal courts, that it is within the exclusive province of the
legislature to determine the necessity, expediency, wisdom,
fairness and justness of the law enacted.254
Colorado's view as to the scope of the police power in relation to
substantive due process is quite similar to that of the present United
States Supreme Court. 255 Colorado has no riparian rights or future
use to be concerned with, looks upon the waters of the state as pub-
lic in nature, subject only to beneficial use, takes at once a liberal
view of its police power and a restricted view of the power of the
court to strike down regulatory legislation. Colorado must be listed
251. Knapp v. Water District, 131 Colo. 42, 279 P. 2d 420 (1955).
252. Mountain Meadows v. Park Ditch, 130 Colo. 537, 539, 277 P. 2d 527
(1954): "The unappropriated water of every stream is the property of
the public against which title by adverse user may not be acquired."
253. Thiele v. City and County of Denver, 135 Colo. 442, 312 P. 2d 786
(1957); Mosko v. Dunbar, 135 Colo. 172, 309 P. 2d 581 (1957).
254. Mosko v. Dunbar, supra note 253 at 175. In this case the court up-
held a statute prohibiting the sale of new or used cars on Sunday.
255. Note, "State Views on Economic Due Process: 1937-1953," supra note
193; however cf. Olin Mathieson Corp. v. Francis, 134 Colo. 160, 301
P. 2d 139 (1956), where the court in striking down the Colorado Fair
Trade Law seemed to be applying the old idea of "affected with a pub-
lic interest" to legislation.
AND THE LAW
among the states which would uphold any extensive regulation of
vater resources. 256
The important developments in the water law of Kansas have
previously been explored with the conclusion that both Kansas and
federal authority support extensive regulation of water use and re-
triction on the riparian future use. 257 In addition, the approach
pf the Kansas court to legislation and the police power in general
demonstrates a position analogous to that of today's Federal Su-
preme Court. 258 To overturn a statute on state constitutional
grounds in Kansas, the complainant must show that there was no
conceivable reason for the enactment. 259 It would be a truly pre-
posterous statute which could not survive this test. The standard
jf beneficial use for all water users and the permit system are al-
ready operational in the state. Although the language of the statute
leaves the question of having abridged the right to future use uncer-
ain, still there are strong indications in the cases that such abridg-
nent is proper; and the 1957 Kansas legislative amendment seems
o have clearly abridged the right to future use. To conclude, Kan-
Sas not only would, it has, upheld extensive regulation of water re-
Sources and abridgment of a part of the riparian right.
In Nebraska the riparian and appropriation systems coexist with
eitherr system of law having a preferred status over the other sys-
tem. 260 Priority in the time of acquiring either right determines
1'the superiority of title as between conflicting claimants. "261 This
priority means that if an appropriative right has been obtained earli-
pr than a competing riparian right, then the appropriation right, be-
ng prior in time, is prior in right. The converse is equally true.
The riparian right vests immediately upon the acquisition of the
land, while the appropriator obtains his right by putting the water
,56. See also Smith Bros. Cleaners & Diyers v. People, 108 Colo. 449, 119
P. 2d 623 (1941).
57. See Part V, supra.
i58. Carolene Products v. Mohler, 152 Kan. 2, 102 P. 2d 1044 (1944); see
'State v. Sage Stores, 157 Kan. 404, 141 P. 2d 655 (1943), aff'd. 323
U.S. 32 (1944); Note, "State Views on Economic Due Process: 1937-
1953," supra note 193.
60. Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903); this case
was a rehearing and final opinion to the cases previously reported at
60 Neb. 754 (1900) and 61 Neb. 317 (1901).
to actual beneficial use in accordance with the appropriation stat-
utes. 262 Once the riparian right vests, it becomes a protected
property interest which may not be constitutionally abridged by any
subsequent legislation. An attempt to abrogate legislatively existing
riparian rights was held unconstitutional by the Nebraska Supreme
Court. 263 But riparian rights could only have been acquired prior
to 1889 because the Nebraska Irrigation Act of 1889 precluded the
acquisition of any riparian rights in the future, recognizing only the
existing riparian rights. 264 After 1889 only appropriation rights
could be obtained, but riparian rights vested at that time were pro-
tected and alienable, and so would continue on for the future. Con-
sequently riparian rights are an important force even today in Ne-
However, there are quite strict limitations on the scope of what
is proper riparian use of water. "Ordinarily the riparian property
right would be limited to the use of the water of the stream for
domestic purposes, and, if applied to the irrigation of riparian
lands, a reasonable use for such purposes in view of an equal right
of use belonging to all other riparian proprietors, which would fix
the basis for compensation where there has been a deprivation of
such right by the appropriation of the water for a public use. "265 It
is clear that the riparian right extends to domestic use and to irri-
gation on riparian land as limited by reasonable use in relation to
all other riparians, but it is doubtful that the. riparian right extends
to any other use of water. In addition to these important limitation
on the extent of the riparian right, there is the equally important
limitation on the remedy for infringement of riparian rights. Since
the appropriation scheme is the effective operating method of acquire
ing water rights, the legislature has provided that a riparian may
not enjoin any appropriator but can obtain relief only by an action
for damages. 26 And the damages are limited only to an interfer-
ence with the riparian usufruct or right to make a reasonable use
of the water; further the injury must "materially and substantially"
depreciate the value of the real estate through which the water runs
263. Clark v. Cambridge & Arapahoe Irr. & Imp. Co., 45 Neb. 798, 807,
64 N.W. 239 (1895): "The right of a riparian proprietor, as such, is
property, and when vested can be destroyed or impaired only in the in-
terest of the general public, upon full compensation and in accordance
with established law."
264. Crawford Co. v. Hathaway, supra note 260; see also Meng v. Coffee,
67 Neb. 500, 93 N.W. 713 (1903).
265. Id. at 353.
266. Cline v. Stock, 71 Neb. 79, 102 N.W. 265 (1905) rehearing ; the
original opinion is reported at 71 Neb. 70, 98 N.W. 454 (1904).
AND THE LAW 321
before a riparian is entitled to damages. 267 Although the Nebraska
iSupreme Court continues to protect riparian rights from complete
abolishment, the riparian right itself is fairly circumscribed. The
Riparian right is limited to domestic and irrigation uses; the ripari-
an may not enjoin an appropriator; and the riparian in seeking dam-
ages to his right to use water has the formidable task of proving
that there has been material and substantial injury to the riparian
S Appropriation rights acquired under the Nebraska Act of 1877
|are apparently accorded the status of vested rights which are not
subject to any divestiture without compensation. 268 This is of lit-
tle moment since the bulk of all appropriation rights were obtained
under subsequent state enactments. 269 Under these later statutes,
ithe appropriative right is contingent upon actual application of the
water to a beneficial use and the continuation of a beneficial use.270
As late as 1932 the Nebraska court reaffirmed the principle that an
appropriation right under the 1877 Act (which was abridged in 1895)
iwas "a vested property right, with which the legislature could not
have interfered."271 Yet it is clear that the appropriation statutes
!of the state have contemplated a primary concern with furthering
Tthe public welfare by insuring that there will be a maximum
267. Crawford Co. v. Hathaway, supra note 260 at 352-353: "The mere
fact that the riparian proprietor is deprived f the full flow of the
stream adjacent to his land would furnish no basis for compensatory
damages; merely diminishing the volume of water in the stream would
not deprive the owner of property for which he could lay claim to a
pecuniary compensation. At most, the naked right to the full flow of
the stream, and its loss by diminishing the volume of water when ap-
propriated for irrigation purposes, could result only in damnum absque
injuria. In order to entitle the riparian owner to compensation, he
must suffer an actual loss or injury to the use of the water which the
law recognizes as belonging to him, and to deprive him of which is to
take from him a substantial property right. It is for an interference
with or injury to his usufructuary estate in the water for which com-
pensation may rightfully be claimed where the water of the stream is
diverted and appropriated for the use of irrigation; it is such a taking
of or damage to property as materially and substantially depreciates
the value of the real estate of which it forms a part."
1268. Kearney Water & Electric Powers Co. v. Alfalfa Irr. Dist., 97 Neb.
139, 149 N.W. 363 (1914).
269. See cases previously cited; these acts would be 1889, 1895, and 1911
with the 1895 act the most important.
:270. Kersenbrock v. Boyes, 95 Neb. 407, 145 N.W. 837 (1914).
271. City of Fairbury v. Fairbury Mill & Elevator Co., 123 Neb. 588, 591,
243 N.W. 774 (1932); the court quoted the early Crawford case, supra
note 260, with approval.
322 WATER RESOURCES
utilization of the state's water resources. 272 A recent case re-
versed the state water agency's determination, which had extended
the period during which water could be put to a beneficial use, point
ing out that the waters of the state should be administered to obtain
the greatest possible benefit and to insure that there is a maximum
amount of water available for further appropriation; the agency ac-
tion was repudiated for having tied up water without it being applied
to a beneficial use. 273
In the area of zoning, the Nebraska court has religiously abide'
by the strong presumptions of constitutionality cloaking these enact-
ments and has appreciated the proper sphere of the police power
when dealing with such matters. Zoning is for the wisdom and dis-
cretion of the municipal body, and unless there is a clear abuse
shown, it is not the province of the court to interfere. 274 Every
exercise of the police power in respect to the use of property "is
likely to affect adversely the property interests of somebody,"275
but it is to be upheld even though it adversely affects property
If the Nebraska court were to follow the doctrine expounded in
the zoning cases, there is little doubt that a comprehensive scheme
of water regulation, which abrogated the concept of water being tied
up without being applied to beneficial use, would be upheld. This
would accord with the avowed purpose of the state as embodied in
its statutes and a very recent case. The history of Nebraska stat-
utes and cases, pointing toward greater restriction of so-called
vested water rights in order to obtain a standard of beneficial use
which would further the general welfare, indicate a judicial attitude
which should accord favorable treatment to such a comprehensive
regulation of water resources as contemplated by the Model Water
272. See Kirk v. State Board of Irr., 90 Neb. 627, 134 N.W. 167 (1912);
Commonwealth Power Co. v. State Board of Irr., 94 Neb. 613, 143
N.W. 937 (1913); cf. United States v. Tilley, 124 F. 2d 850, 857
(C.C.A. 8, 1941); the court in speaking of appropriative water rights
said that a requirement for permission to change lpcational use was a
proper exercise of the state police power.
273. North Loup River Dist. v. Loup River Dist., 162 Neb. 22, 74 N.W. 2d
274. Dundee Realty Co. v. City of Omaha, 144 Neb. 448, 13 N.W. 2d 634
(1944); City of Omaha v. Glissmann, 151 Neb. 895, 39 N.W. 2d 828
275. Graham v. Graybar Electric Co., 158 Neb. 527, 529, 63 N.W. 2d 774
276. Ibid. Dundee Realty Co. v. City of Omaha, supra note 274; Pettis v.
Phi Beta Pi, 115 Neb. 525, 213 N.W. 835 (1927).
AND THE LAW 323
Minnesota was quick to follow the lead of the Federal Supreme
Court in dealing with economic legislation. Dayton Co. v. Carpet
Linoleum Union277 laid down the following standards to guide judi-
(a) The courts are not concerned with the wisdom of
this type of legislation....
(b) In construing the constitution of the United States,
the Supreme Court of the United States is the final arbiter....
(c) Our interpretation of our own constitution is final....
But where our statutes are substantially the same as federal
statutes, decisions of the United States Supreme Court will
(d) Every presumption is invoked in favor of the con-
stitutionality of an act of the legislature, and the courts
should not declare it unconstitutional except when satisfied,
after careful consideration, that it conflicts with some pro-
vision of the state of federal constitutions....
(e) If the state may enact a law under the federal con-
stitution, it may do so under similar provisions of its own
constitution. The state provision was not intended to be more
restrictive than that of the federal constitution.
The Minnesota court rigorously refrained'from substituting its judg-
ment for that of the legislature; it would not pass on the soundness
of social or economic theories of the legislative mind. 278 What
best furthers the public welfare is a matter for legislative determi-
nation-not judicial. 279 Although the exercise of the police power
277. 229 Minn. 87, 100-101, 39 N.W. 2d 183 (1949), app. dis., 339 U.S.
906, 70 S. Ct. 570 (1950); see State v. Northwest Airlines, Inc., 213
Minn. 395, 7 N.W. 2d 691 (1942), aff'd., 322 U.S. 292 (1944); Lee v.
Delmont, 228 Minn. 101, 36 N.W. 2d 530 (1949).
278. Fairview Hospital Ass'n v. Public Bldg. Service Union, 241 Minn. 523,
543, 64 N.W. 2d 16 (1954): "We cannot pass on the soundness of so-
cial or economic theories in the legislative mind when statutes of this
kind are enacted in the exercise of police power. We cannot substi-
tute our judgment or opinions for those of the legislature as to the ex-
279. State ex rel. Howard v. Village of Roseville, 244 Minn. 343, 347, 70
N.W. 2d 404 (1955), where the Supreme Court reversed the lower
court which had held a zoning ordinance invalid and said: "Even where
the reasonableness of a zoning ordinance is debatable, or where there
are conflicting opinions as to the desirability of the restrictions it im-
poses or the suitability for residential purposes of property so desig-
nated thereby, it is not the function of the courts to interfere with the
legislative discretion on such issues."
"may curtail the use, or depreciate the value of property, if the
measure reasonably tends to accomplish the purpose of its enact-
ment without unreasonably or arbitrarily exceeding the needs of the
occasion, it is a valid exercise of the police power. "280 A law re-
view article in 1953 concluded that since 1939, Minnesota has invali-
dated no economic legislation on substantive due process grounds.281
This would be in keeping with the state practice of following United
States Supreme Court doctrine in this area.
However, recently the Minnesota court invalidated two measures
in the economic field. A zoning ordinance was in part held uncon-
stitutional as an improper taking of property, the court seeming to
look to the wisdom of the measure and finding it unreasonable. 82
An amendment to the workmen's compensation act making employers
and insurers retroactively liable for additional compensation to bene-
ficiaries of deceased workers was likewise declared unconstitution-
al. 283 The peculiar and extreme facts of each case account for the
decisions (the court in each case reiterated the familiar standards
guiding judicial action in these types of cases but found the facts
singularly offensive), but the cases do demonstrate that in the very
extreme and unusually unfair situation even the Minnesota court will
280. State v. Sullivan, 245 Minn. 103, 113, 71 N.W. 2d 895 (1955); the
court in turn was quoting with approval from Lee v. Delmont, 228
Minn. 101, 112, 36 N.W. 2d 530 (1949).
281. Note, "State Views on Economic Due Process: 1937-1953," supra note
282. Connor v. Township of Chanhassen, 249 Minn. 205, 81 N.W. 2d 789
(1957), where a zoning ordinance for residential purposes included com-
plainant's place of business but permitted it as a nonconforming use
provided it was not enlarged nor moved to any other location in the re-
stricted area. Then the state condemned a part of complainant's prop-
erty for a highway which precipitated the necessity of moving the busi-
ness (a neighborhood repair shop) to another part of complainant's land.
The moving thus ran afoul of the ordinance. The court upheld the zon-
ing ordinance generally but held that portion unconstitutional which af-
fected persons, such as the complainant, who were compelled to act in
violation of the ordinance because of state action in condemning part of
their property. Apparently the ganging up on the property owner
through state action of condemnation and thus squeezing him into viola-
tion of the ordinance was too much for the court.
283. Yaeger v. Delano Granite Works, Minn. 84 N.W. 2d 363
(1957). The court held that the contractual rights of the employer and
insurer were vested property interests determined as of the date of
death of the employee and no retroactive legislation could constitution-
ally increase this liability. However, under the statute the beneficia-
ries were entitled to the additional compensation out of a special fund
maintained under state law; the state was merely trying to make the
employer and insurer foot the cost instead of having it come out of the
AND THE LAW 325
still invalidate legislation regulating economic interests, as the court
will find the legislation to be wholly unreasonable.
In the past twenty years Minnesota has enacted several statutes
dealing with water, until today it has a rather complete system of
regulatory measures based upon the permit system, with the use
and development of the water resources for the best interests of the
public as the basic standard for all water use. 284 Apparently the
act has never been challenged. 285 These two decades of water reg-
ulation, when related to the historically liberal attitude of the Min-
nesota Supreme Court in these matters, indicate that extensive water
regulation which limits the riparian future use and which imposes
the standard of beneficial use for all water users will be sustained.
G. New Mexico
Since New Mexico has never recognized riparian rights286 and
has recognized only a very limited right for appropriators, 287 little
difficulty is presented to the enactment of any comprehensive regu-
latory measures. By constitution, 288 statutes, 289 and cases29 the
state bases all water rights upon actual beneficial use. The waters
of the state are publici juris and the state's control of them is
plenary; that is, complete. "291 Nonuse or the tying up of water
without its being put to a present beneficial use will not be tolerat-
ed. 292 In other areas of police power regulation the state court
284. Minn. Stat. Ann. 105.37-105.71.
285. No case could be found where anyone had ever contested any provision
of the statute as being unconstitutional.
286. See Snow v. Abalos, 18 N.M. 681, 693, 140 Pac. 1044 (1914); Yeo v.
Tweedy, 34 N.M. 611, 286 Pac. 970 (1930).
287. See San Luis Power & Water Co. v. State, 57 N.M. 734, 263 P. 2d
398 (1953); State v. Red River Valley Co., 51 N.M. 207, 182 P. 2d
421 (1945-1947; the original opinion, 1945; the first rehearing, 1946;
the second rehearing, 1947); Harkey v. Smith, 31 N. M. 521, 247 Pac.
288. N.M. Const., Art. XVI, 1-3. Cf. Middle Rio Grande v. Middle
Rio Grande Con. Dist., 57 N.M. 287, 258 P. 2d 391 (1953).
289. N.M. Stat. Ann., c. 75 (and 34 articles therein); see El Paso & R.I.
Ry. Co. v. District Court, 36 N.M. 94, 8 P. 2d 1064 (1932).
290. Harkey v. Smith, supra note 287; San Luis Power & Water Co. v.
State, supra note 287; see State v. Red River Valley Co., supra
291. State v. Red River Valley Co., supra note 287 at 279.
292. N.M. Const., Art. XVI, 1, 2 and 3; N.M. Stat. Ann., c. 75; San
Luis Power & Water Co. v. State, supra note 287; Harkey v. Smith,
supra note 287 at 531; "The fact remains, however, that no 'dog in
the manger' policy can be allowed in this state, unless these waters
can be and are beneficially used by plaintiffs, the defendants or oth-
ers may use the same. "
comprehends the police power extending broadly to the promotion of
the general welfare, prosperity, comfort, and convenience of the
public; the exercise of the power is protected with all of the pre-
sumptions of constitutionality, and considerable judicial restraint is
exercised in not deciding the wisdom or desirability of economic
legislation. 293 New Mexico would abide the most extensive water
regulation, not only as a proper police power measure but because
no vested property interest is recognized in the use of water. No
question of encroaching upon vested rights is even raised.
H. North Dakota
Although both the riparian and appropriation doctrines coexist
in North Dakota, it was at an early date held that neither the state
constitution294 nor any statute295 could abridge the riparian right.
It is not entirely clear that there could be no encroachment upon the
riparian right to future use. But the implications of the cases in-
dicate such a broad sweep of protection for the riparian rights and
such a restrictive interpretation of the state regulatory power in
these matters, that it would seem North Dakota would not tolerate
any comprehensive regulation which impinged upon the future use of
the riparian. 296 However, there is nothing to indicate any impedi-
ment to imposing a standard of beneficial use on all water users.
293. Arnold v. Board of Barber Examiners, 45 N.M. 57, 109 P. 2d 779
(1941) [fixing minimum prices to be charged by barbers]; State v. Cleve-
land, 47 N.M. 230, 141 P 2d 192 (1943) [cigar and cigarette tax al-
located to old age assistance program]; State v. Cauthern, 48 N.M.
436, 152 P. 2d 255-(1944) [regulation and licensing of cleaning estab-
lishments]; State v. Collins, 61 N.M. 184, 297 P 2d 325 (1956)
[prohibition of use of name "drug" in any store or business in which
a registered pharmacist is not on duty]. But cf. State v. Prince, 52
N.M. 15, 189 P 2d 993 (1948) [invalidation of an embezzlement stat-
ute which emasculated much of criminal intent].
294. Bigelow v. Draper, 6 N.D. 152, 163, 69 N.W. 510 (1896). N.D.
Const., 210 provides: "All flowing streams and natural water cours-
es shall forever remain the property of the state for mining, irri-
gating and manufacturing purposes. The court held the constitutional
provision was not intended to divest riparians of any of their rights,
because if it did that, the state provision would be void as a violation
of the Fourteenth Amendment to the United States Constitution.
295. State v. Brace, 76 N.D. 314, 36 N.W. 2d 330 (1949); Ozark-Mahon-
ing Co. v. State, 76 N.D. 464, 37 N.W. 2d 488 (1949). Bigelow v.
Draper, supra note 294, decided in 1896, was reaffirmed by State v.
Brace. A North Dakota statute provided: "All waters within the
limits of the State from all sources of water supply belong to the
public and are subject to appropriation for beneficial use." (N.D.
Laws 1913, 8235, as amended by N.D. Laws 1939, c. 255.)
296. Ibid. Bigelow v. Draper, supra note 294.
AND THE LAW
In the area of police power regulation of property, the state
court still adheres to the antiquated test of "affected with a public
interest" and protects the economic interest with a cloak of judicial
protection. 297 This serves to substantiate the conclusion made that
regulation of North Dakota's water resources must be subservient to
the entire riparian right to present and future use.
However, there is another side to the North Dakota story. In
a number of other police power measures, the court has upheld the
enactments and enunciated doctrines reminiscent of the present
United States Supreme Court's thinking. 298 For example:
The police power is an attribute of sovereignty itself, under
which, life, liberty, and property, are made safe. It is
necessary for the preservation of the state and the welfare of
society. It is a legislative function without limitation, except
that it must not conflict with the state or Federal Constitution,
and unless the statute is clearly repugnant to some constitution-
al guaranty, the courts cannot interfere. The police power is
one of the most essential powers of the government, and one
of the least limitable, and the imperative necessity for its
existence precludes any limitation upon it when not arbitrarily
used. All rights are subject to the police power. 299
The very latest pronouncement of the North Dakota Supreme Court
still adheres to the old "affected with a public interest" test and
takes a much more restricted view of the police power than did
some of the preceding cases. 300 Where the regulation of a state's
297. See Cofman v. Ousterhous, 40 N.D. 390, 168 N.W. 826 (1918); North-
ern Pac. R. Co; v. Warner, 77 N.D. 721, 45 N.W. 2d 196 (1950);
Fairmont Foods Co. v. Burgum, N. D. 81 N.W. 2d 639
298. State ex rel. Minot v. Gronna, 79 N.D. 673, 59 N.W. 2d 514 (1953)
[upholding juvenile court law]; Neer v. State Live Stock Sanitary Bd.,
40 N.D. 340, 168 N.W. 601 (1918) [destruction of diseased animals
law upheld]; Bismarck v. Hughes, 53 N.D. 838, 208 N.W. 711
(1926) [residential zoning law requiring frontage depth and restrict-
ing buildings of more than one story or any built to hold more than
two families upheld]; Stark v. City of Jamestown, 76 N.D. 422, 31
N.W. 2d 516 (1949) [upholding city bonding plan for financing water
storage and waste disposal facilities]. Cf. State ex rel. Linde v.
Taylor, 33 N.D. 76, 156 N.W. 561 (1916), where, though the court
spoke of the "affected with a public interest" test, it upheld the stat-
ute establishing a state bonding fund to bond state, county and city
officials required by law to furnish, bond.
299. Bismarck v. Hughes, supra note 298 at 844.
300. Fairmont Foods Co. v. Burgum, supra note 297 at 646-647; in find-
ing a statute prohibiting certain unfair trade practices in the dairy in-
dustry unconstitutional the court used the old test of "affected with a
public interest." It went behind the legislative determination that
328 WATER RESOURCES
most basic resource is concerned, the court could quite properly
extend the concept of "affected with a public interest" to the regula-
tion of water use. In fact the terminology itself readily lends itself
to this construction. All use of water vitally affects the public in-
terest. There is an adequate background of North Dakota cases for
the present state court to sustain legislation similar to the Model
Water Use Act and still retain the old concept of "affected with a
The cases and statutes of Oregon have previously been dis-
cussed at length. Oregon already has in existence a system of com-
prehensive regulation with restriction of the riparian right to future
use and the test of beneficial use governing all water utilization. 301
Consequently, Oregon provides a 'background of complete accord and
precedent for all of the major facets of the Model Water Use Act in
eliminating the riparian future use concept and making all water
users subject to the one standard of beneficial use.
J. South Dakota
The riparian and appropriation doctrines exist side by side in
South Dakota. 302 The riparian rights come into existence immedi-
ately upon acquisition of riparian lands, 303 and this riparian right
does not depend upon use but is an incident of ownership. 304 The
riparian right to future use will take priority over an appropriator,
and an appropriator takes subject to all of the riparian rights, used
or unused. 305 An appropriation statute which provided that nonuse
of water for three years extinguished a person's water right was
declared unconstitutional as to riparians as a taking of property
such prohibited practices tended toward monopolization and substituted
its own judgment that such proscribed practices were not harmful.
As a consequence, concluded the court, the act was an arbitrary and
unreasonable interference with and restriction upon lawful business
301. See Part V, supra.
302. See Lone Tree Ditch Co. v. Cyclone Ditch Co., 15 S.D. 519, 91 N.W.
352 (1902), reh. 26 S.D. 307 (1910); 1881 Appropriation Act, Laws of
Dakota 1881, c. 142 down to the present act dealing with appropria-
tion, S.D. Laws 1955, c. 430.
303. Redwater Land & Canal Co. v. Jones, 27 S.D. 194 (1911); Lone Tree
Ditch Co. v. Cyclone Ditch Co., supra note 302.
304. Ibid St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32
S.D. 260, 143 N.W. 124 (1913).
305. Ibid. Redwater Land & Canal Co. v. Reed, 26 S.D. 466, 128 N.W.
AND THE LAW
without due process of law because the riparian right did not depend
upon use and so could not be lost by disuse. 306 Those portions of
the appropriation act which required riparians to obtain a permit to
use water and which required a payment of a fee by the riparians,
were likewise held unconstitutional. 307 This constitutional doctrine
has been reaffirmed by subsequent decisions of the state supreme
court. 308 Even appropriation rights "vested" under previous appro-
priation statutes become property interests which are not subject to
Iderogation by any subsequent legislation. 309 However, under the
appropriation statutes an appropriative right is dependent upon actual
!beneficial use, and the right can be lost by nonuse. 310 (Of course,
even a riparian right can be lost by abandonment, but abandonment
in this sense means an intention to give up the rights. )311
306. St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., supra note
308. See Terry v. Hepner, 59 S.D. 317, 239 N.W. 759 (1931); Parsons v.
City of Sioux Falls, 65 S.D. 145, 272 N.W. 288. (1937); Butte County
v. Lovinger, 64 S.D. 200, 266 N.W. 127 (1936). In each of these
cases the St. Germain case is cited with approval.
309. Butte County v. Lovinger, supra note 308 at 209. Appropriation
rights acquired under the 1881 statute are accorded vested property
rights not amenable to derogation by a subsequent statute. "These
rights, vested in the original locators at the time they were ac-
quired and not in those who used the water. The enactment of chap-
ter 180, Laws of 1907, cannot affect these vested rights . What
effect the law of 1907 has upon the water right law of this state we
need not now declare, except to hold in accord with the previous de-
cisions of this court that it cannot affect rights which had vested
prior to its enactment."
310. St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., supra
311. See Cundy v. Weber, 68 S.D. 214, 225-226, 300 N.W. 17 (1941).
Dictum of the court reflected concern over proper utilization of water
resources and may have marked some shift in the attitude of the state
Abandonment of a property right results from a concurrence
of an intention to surrender, and the actual relinquishment
thereof. Conduct may support an inference of such an inten-
tion. While abandonment of a valuable water right should
not be lightly implied, public interests require that this
natural resource be applied to a beneficial use by the holder
of such a right or that it be rendered available for appro-
priation and use by others. A prima facie showing of an
intention to abandon the right to use a particular quantity
of water may be made by evidence of the failure to apply
such water to a beneficial use for an unreasonable period
In 1921 the court, misconstruing the Desert Land Act, 312 im-
posed some substantial limitations upon the extent of the riparian
right. 313 After the Supreme Court of the United States decided the
California-Oregon Power case, 314 the South Dakota court overruled
the 1921 decision because it had erroneously interpreted the Desert
Land Act315 and returned the riparian right to the position of pre-
eminence which it had enjoyed during previous years in the state.
It would seem dubious that South Dakota would uphold a statute
of comprehensive water regulation which in any way infringed on the
riparian right to present or future use. Yet the 1955 legislature of
the state did just that. 316 This statute provides that all waters in
the state are the property of the people, subject to appropriation
for beneficial use, and that the people of the state have a paramount
interest in the use of all waters of the state. A permit system is
established and a state agency is charged with administering the act.
The riparian right to future use is emasculated because the defini-
tion of "vested rights," which are the only rights preserved under
the act, reads, in part, as follows:
The right of a riparian owner to continue the use of water
having actually been applied to any beneficial use at the time
of the passage of this act or within three years immediately
prior thereto to the extent of the existing beneficial use made
312. 19 Stat. 377 (1877).
313. Cook v. Evans, 45 S.D. 31, 185 N.W. 262 (1921), reh. 45 S.D. 43,
186 N.W. 571 (1922).
314. 295 U.S. 142, 55 S.Ct. 725 (1935).
315. Platt v. Rapid City, 67 S.D. 245, 291 N.W. 600 (1940).
316. S.D. Laws 1955, c. 430, 61.0101 61.0156 and c. 431, 61.0401 -
317. Id. at 61.0102(7). The statute further provides:
... The Commission shall regulate and control the develop-
ment, conservation and allotment of waters of the State
according to the principles of beneficial use and priority
of appropriation established by this act....
All vested rights as hereinbefore defined acquired before
the effective date of this act are hereby in all respects
Subject to vested rights and prior appropriations, all waters
flowing in definite streams of the State may be appropriated
as herein provided. Such appropriation shall not constitute
absolute ownership of such water, but shall remain subject
to the principle of beneficial use. [See 61.0104, 61.0106,
and 61. 0109.1
AND THE LAW
The South Dakota legislature has done what an earlier court
said could not be done constitutionally. This statute has not yet
been tested in the courts. 318 Although precedent would have obvi-
ously indicated that any state water regulation must operate com-
pletely subservient to the riparian doctrine and not impair the ri-
parian right to present or future use of water, the 1955 South Da-
kota legislature adopted regulatory enactments in some substantial
conflict with the early case precedent. Perhaps this legislation is
a prophetic gesture by the legislature indicating that the statute will
be upheld because of changed economic thinking by new state court
members who will not adhere to old and outmoded decisions. The
increasing urgency for proper control and use of water resources
as an essential to a state's welfare and development, especially in
a water short state like South Dakota, has prompted the South Da-
kota legislature to act. These same factors ought to prompt the
state supreme court to uphold such essential regulatory measures.
Vm. FOUR SELECTED STATE VIEWS IN THE EAST
In the "humid east" (the term includes the thirty-one states ad-
hering exclusively to the riparian doctrine), where there has gener-
ally been adequate water supplies, the riparian doctrine has con-
tinued substantially unimpaired by any very extensive regulatory
measures, such as those undertaken in the west. 319 There has
been considerable legislation but perhaps not of the type which nor-
mally gives rise to the constitutional contention that there has been
a deprivation of property without due process of law. 320 Or per-
haps an abundant water supply does not tend to encourage that type
of controversy, no matter what the type of legislation. Consequent-
ly an appraisal of the eastern judicial tolerance for extensive water
regulation which restricts and alters riparian rights must be gleaned
from a brief examination of some eastern states' approaches to the
police power, economic regulation, and substantive due process.
The four states chosen are: Florida, Indiana, Pennsylvania, and
318. No case could be found where any litigant had challenged these enact-
319. See Busby, "American Water Rights Law," 5 S.C. Law Q. 106 (1952).
320. Some of the eastern statutes have been fairly comprehensive and have
superimposed the permit system on the riparian doctrine but without
any case law regarding the constitutionality of such statutes. See,
for example: Md. Code Ann. 1957, Art. 66C, 718 et seq. ;Minn.
Stat. Ann., 105.37-105.71; Iowa Code Ann., 455A.1 et seq. as
amended by Iowa Laws 1957, c.229 (adopted April 23, 1957); Ellis,
"Some Current and Proposed Water-Rights Legislation in the Eastern
States,' 41 Iowa L. Rev. 237 (1956).
Wisconsin. This selection was made because it is believed that
these four states represent either a restrictive approach toward the
police power (Florida, Indiana, Pennsylvania) or have early case
law representing an unreasonable protection of water rights (Wiscon-
sin). The selection of Florida, Indiana, and Pennsylvania was a
conscious effort to choose the three most conservative states in
dealing with the police power and economic regulation. In these
three states it is believed that the courts evince the least tolerant
view toward the police power and restrict it to its smallest confines.
These same courts also afford the broadest cloak of judicial protec-
tion for property interests, safeguarding property from any consid-
erable regulation under the police power, of perhaps any courts in
the United States. 321 If, however, there is some hope that one or
more of these three ultra-conservative states would sustain exten-
sive water regulation, then any of the other eastern states (all of
which probably show ascending degrees of liberality and greater ju-
dicial tolerance for the police power and regulation of economic in-
terests) should have considerably less difficulty in upholding such
legislation. Although the very liberal states would have no difficul-
ty in approving water legislation similar to the Model Water Use
Act, attention has not been given to these states (for example New
York and New Hampshire) because they do not represent nearly so
great a problem. But proof that there may be approval in the most
conservative of states for these regulatory matters provides a basis
for predicting more likelihood for success in all of the other states.
Of course, this eclectic procedure must then bridge the gap from
these general notions to an educated guess as to what results most
of the eastern states would probably reach.
The riparian right in Florida exists fairly free of legislative
limitation. 322 In the two most important legislative enactments
dealing with water, the state legislature, over a quarter of a cen-
tury ago, had enlarged the riparian owners' rights. 323 If a riparian
321. These conclusions are based upon a very brief look at the courts and
the police power in the several states. It is recognized that such
conclusions are incapable of precise demonstration of proof and that
other state courts may be just as narrow in viewing the police power.
But it is believed that no state courts will be narrower.
322. Cf. Thiesen v. Gulf, F. & A. Ry. 75 Fla. 28, 78 So. 491 (1918);
Holland v. Ft. Pierce Financing & Construction Co., 157 Fla. 649,
27 So. 2d 76 (1946); Hunt, "Riparian Rights in Florida," 8 Fla. L.
Rev. 393 (1955).
323. Florida Act of 1856 [Fla. Gen. Laws, c. 791, 2 (1856)]; Act of
1921 [Fla. Laws 1921 c. 8537, now Fla. Stat., c. 271 (1953)]; see
Hunt, supra note 322, for a discussion of these acts and their effect.
AND THE LAW
complied with the provisions of these acts, he obtained an expanded
riparian property right which was vested; no subsequent legislation
could then derogate from the expanded property rights which the pre-
vious legislation had conferred. 324 The Florida Supreme Court has
demonstrated overzealous care to protect the many facets of the ri-
parian right. 325 But there has been no real collision between the
undesirable features of the riparian doctrine and the public need for
a more beneficial utilization and conservation of the state's water
'resources, so that it is not entirely clear that the same results
would be obtained if water needs become acute. Despite the broad
statements in earlier Florida cases that no subsequent legislation
cjan derogate from existing riparian rights, the Florida legislature
in 1957 enacted a statute conferring very broad regulatory powers
lover all water to a state agency. 326 This enactment is of such a
comprehensive nature that it unavoidably impinges upon many as-
ipects of the riparian right, including an encroachment on the right
,to future use and the establishment of a single standard for water
use, namely that the use must be in furtherance of the public inter-
est. The state water agency is given extensive discretionary powers
to obtain proper utilization of the water resources. It is thus ap-
parent that Florida recognizes the vital importance of water re-
sources to the state and has now taken positive action to assure the
,proper conservation and use of this natural resource.
During the decade ending in 1955 there were indications that the
Florida Supreme Court was moving in the direction of taking a more
restrictive view of the power of the legislature to act_ in other areas
of economic regulation.327 The court was inclined to substitute its own
notion of whether a statute served the interests of the public wel-
fare for that of the legislature, and if the judicial notion differed
from the legislative mind and determined the legislation contrary to
public welfare, the court would find the regulatory measure uncon-
Sstitutional. 328 This result occurred despite the recurring judicial
expression that the wisdom of legislation and the determination for
the need of such regulation were matters for the state legislature,
not for the courts. However, in 1956 the state court seemed to
324. Holland v. Ft. Pierce Financing & Construction Co., supra note 322.
325. Ibid; Hunt, supra note 322; see Osceola County v. Triple E. Develop-
ment Co., 90 So. 2d 600 (Fla. 1956).
326. Florida Laws 1957 c. 57-380, S.B. No. 119.
327. For indications of this trend see Liquor Store, Inc. v. Continental
Distilling Corp., 40 So. 2d 371 (Fla. 1949); Eelbeck Milling Co. v.
Mayo, 86 So. 2d 438 (Fla. 1956); Paulsen, supra note 191; Note
"State Views on Economic Due Process: 1937-1953," supra note 193.
334 WATER RESOURCES
halt this trend toward judicial interference with economic regulation
by the legislature. In that year the Florida court sustained four of
five rather important regulatory measures and demonstrated a dis-
position of greater judicial tolerance for economic regulatory meas-
ures than had been shown by any previous Florida court person-
nel. 329 Where the regulation of the citrus industry is involved, the
state court has been quite consistently liberal in permitting exten-
sive regulatory measures. 330 The Florida court is apparently
aware of the tremendous importance of the citrus business to the
general welfare of the state, and so the court is agreeable to sus-
taining broad state regulation of the industry in the interests of the
Yet proper conservation and utilization of water resources is
even more important to the welfare of the state. The 1957 water
legislation is a clear recognition of this fact. It might then be rea-
sonable to conclude that today the Supreme Court of Florida would
equate the regulation of water resources with the regulation of the
citrus industry-both are absolutely essential to the well-being of
329. See Bedenbaugh v. Adams, 88 So. 2d 765 (Fla. 1956) [upholding act
dealing with the administration of hog serum by county agents]; State
State v. Daytona Beach Racing and Recreational Facilities Dist., 89
So. 2d 34 (Fla. 1956), [upholding act creating racing and recreation-
al district and issuing bonds for it]; Shiver v. Lee, 89 So. 2d 318
(Fla. 1956), [establishment of maximum and minimum milk prices
upheld]; Florida Citrus Commission v. Golden Gift Co., 91 So. 2d 657
(Fla. 1956), [upholding regulation of canned orange juice]. These
series of recent cases, upholding police power measures in the area
of economic regulation, may demonstrate hope that if a statute is rea-
sonably calculated to accomplish a legitimate and desirable public pur-
pose, the court will uphold the enactment, without going into whether
some better method might be available or invalidating the legislation
because it encroaches upon the regulated property rights. But cf.
Eelbeck Milling Co. v. Mayo, supra note 327, involving an act re-
quiring manufacturers of corn products to label products with the
name and place of business; the trial court granted the state's motion
to dismiss the complaint on the grounds that the statute was a valid
exercise of the police power, but on appeal the Supreme Court re-
versed and remanded for trial holding that the complaint dealing with
the unconstitutionality of the act presented a justiciable question. The
Supreme Court delved into the wisdom of the act and certainly appear-
ed to be imposing itself as a super-legislature.
330. See Florida Citrus Commission v. Golden Gift Co., supra note 329;
Mayo v. Polk County, 124 Fla. 534, 169 So. 41 (1936); Sligh v. Kirk-
wood, 65 Fla. 123, 61 So. 185 (1913), aff'd., 237 U.S. 52 (1915).
Perhaps if the court can be convinced that regulation of the state's
water resources is as important to the welfare of the state as the
fruit industry, the court would uphold regulation impinging on the ri-
parian property right.
AND THE LAW 335
the state-and the state court would show the same judicial toler-
ance for water regulation as is accorded regulation of the citrus in-
dustry. With the state now operating under a new and comprehen-
sive system of water regulation, the Florida legislature obviously
anticipates a decision upholding the present water statute. The 1956
Florida cases, upholding other police power measures, afford some
real optimism that extensive types of water regulation will be sus-
Even a cursory and superficial appraisal of the Indiana cases
creates the impression that the Supreme Court of Indiana will be
prone to strike down economic regulation and that the state court is
maintaining an ever healthier body of substantive due process under
the Indiana Constitution. 332 The present Indiana court continues to
be the diligent protector of property interests against state regula-
tory enactments operating under the police power. 333 Because Indi-
ana has been blessed with an adequate water supply in the past, and
there has been no history of severe state water regulation, no ade-
quate pattern of case law exists to formulate any concrete conclu-
sion as to the judicial attitude toward regulation of the riparian
right. 334 However, indications are that the court would afford the
same scrupulous protection to the riparian right as is extended
other property interests. It might well be concluded:
Although current precedents indicate that the United States
Supreme Court will not interfere with a state's regulation of
its natural resources, the Indiana Supreme Court remains a
vigilant guardian of rights guaranteed by the state constitution.
It would appear that the Indiana Court would demand proof
that such legislation [regulation impinging on the riparian
right] is a reasonable exercise of the police power.335
All of the commentators would certainly agree with that observation.
But it must not be overlooked that Indiana is the cradle of the first
331. See the cases cited in note 329, supra.
332. See Kirtley v. State, 227 Ind. 175, 84 N.E. 2d 712 (1949); Hanley v.
State Dept. of Conservation, 234 Ind. 326, 123 N.E. 2d 452 (1954),
reh. den., 234 Ind. 349, 126 N.E. 2d 879 (1955); State Board of
Barber Examiners v. Cloud, 220 Ind. 552, 44 N. E. 2d 972 (1942);
Paulsen, supra note 191; Paulsen, "'Natural Rights'--A Constitution-
al Doctrine in Indiana," 25 Ind. L.J. 123 (1950); Note, "State Views
on Economic Due Process: 1937-1953," supra note 193; Note, "Water
Rights in Indiana," 32 Ind. L.J. 39 (1956).
334. Note, "Water Rights in Indiana," supra note 332.
335. Id. at 53.
336 WATER RESOURCES
really significant regulation and conservation of the natural resources
of oil and gas. 336 Further, there has been a great deal of legisla-
tive activity dealing with water problems in the state in the past fif-
teen years, with an apparent state-wide interest in planning for the
proper utilization of Indiana's water resources. 337 The state is
quite aware of the growing need for water which is so imminent that
state studies forecast the inception of a pressing problem within the
next decade or so. The legislative history of Indiana shows a
marked trend toward more and more state regulation of water re-
sources with the inevitable limitation of the riparian right. 338 With
this background, and a public awareness and demand for state regu-
lation to assure a proper use of water, it may be that the Indiana
court will abandon its position of judicial interference with such leg-
islation and approve regulation like the Model Water Use Act as a
reasonable exercise of the police power.
In Pennsylvania, although its court recognizes that the determi-
nations of the public good and the proper exercises of the police
power are for the legislature initially, the Supreme Court makes
the final determination of whether a measure is in furtherance of the
general welfare and whether the means adopted are reasonably ap-
propriate. 339 The court is not hesitant to interpose its judicial
views on economics, the general welfare, and the wisdom of regu-
latory measures for that of the state legislature. 340 The old doc-
trine of "affected with a public interest" is still a vigorous force to
336. Ohio Oil Co. v. Indiana, 177 U.S. 190, 20 S.Ct. 576 (1900).
337. Note, "Water Rights in Indiana," supra note 332, sketches these pro-
visions dating from 1943 to 1955. The legislation: 1943-the Depart-
ment of Conservation is authorized to co-operate with the U.S. Geolog-
ical Survey to gather necessary facts [Ind. Ann. Stat. 6-739 (Burns
1951 Replacement)]; 1945-Flood Control Act [Ind. Ann. Stat. 27-1101
to 27-1123 (Burns 1948 Replacement)]; 1947-Omnibus Conservancy Act
which was declared unconstitutional because of the technical ground of
a defective title, Indiana ex rel. Pennsylvania R.R. v. Iroquois Con-
servancy District, 235 Ind. 353, 133 N.E. 2d 848 (1956); 1951-
Ground Water Conservation Act [Ind. Ann. Stat. 27-1301 to 27-1313
(Burns Supp. 1955)J; 1955-Water Rights Act [Ind. Ann. Stat. 27-
1401 to 27-1405 (Burns Supp. 1955)]; a 1957 amendment to the 1955
statute passed the legislature but was vetoed by Governor Handley on
March 15, 1957; the amendment would have broadened the power of
the Indiana Water Commission.
339. Warren v. Philadelphia, 387 Pa. 362, 375, 127 A. 2d 703 (1956);
Gambone v. Commonwealth, 375 Pa. 547, 101 A. 2d 634 (1953);
Cott Beverage Corp. v. Horst, 380 Pa. 113, 110 A. 2d 405 (1955).
340. E.g., Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A. 2d 587
(1957); Garner v. Zoning Bd. of Adjustment, 388 Pa. 98, 130 A. 2d
AND THE LAW
be reckoned with in this state. 341 Pennsylvania's court entertains
a deep and abiding respect for property and the rights of owners to
be quite free of governmental interference in the use of property. It
is recognized that all property is held subject to some reasonable
regulation by the state, but the sphere of proper governmental regu-
lation is severely circumscribed by the Supreme Court of Pennsyl-
... [A]11 property is held in subordination to the right of its
reasonable regulation by the government clearly necessary to
preserve the health, safety or morals (or general welfare) of
the people.... There is one matter that is quite certain, the
power to thus regulate does not extend to an arbitrary, unneces-
sary or unreasonable intermeddling with the private ownership
of property, even though such acts be labeled for the preser-
vation of health, safety, and general welfare.... While such
regulations may not physically take the property, they do so
regulate its use as to deprive the owner of a substantial right
therein without compensation.... "The right to acquire and
own property, and to deal with it and use it as the owner
chooses, so long as the use harms nobody, is a natural right.
It does not owe its origin to constitutions. It existed before
them. It is a part of the citizens natural liberty, an ex-
pression of his freedom, guaranteed as inviolate by every
American bill of rights.... "343
This quotation adequately sums up the attitude of the Pennsylvania
court in dealing with economic regulation; the court appears to re-
quire a showing of the reasonableness of the legislation rather than
relying upon the usual presumption of constitutionality. 44 It should
148 (1957); Warren v. Philadelphia, supra note 339; Cott Beverage
Corp. v. Horst, supra note 339; Hertz Drivurself Stations v. Siggins,
359 Pa. 25, 58 A. 2d 464 (1948); Wilcox v. Penn Mutual Life Ins.
Co., 357 Pa. 581, 55 A. 2d 521 (1947); Flynn v. Horst, 356 Pa.20,
51 A. 2d 54 (1947); Paulsen, Note, "State Views on Economic Due
Process: 1937-1953," supra note 193; Case Note, "Cott Beverage
Corp. v. Horst, 380 Pa. 113," 8 Ala. L. Rev. 121 (1955).
341. See Hertz Drivurself Stations v. Siggins, supra note 340; Paulsen,
supra note 191.
342. See Archbishop O'Hara's Appeal, supra note 340; Lord Appeal, 368
Pa. 121, 130, 81 A. 2d 533 (1951); White's Appeal, 287 Pa. 259, 134
Atl. 409 (1926); also see the cases cited in note 340, supra.
343. Archbishop O'Hara's Appeal, supra note 340, where the court quotes
this language from the Lord Appeal case, supra note 342, and from
White's Appeal, supra note 342.
344. Although the court does pay lip service to the presumption of consti-
tutionality going with legislative enactments, some of the opinions
338 WATER RESOURCES
not be assumed that the state judiciary peremptorily finds economic
measures violation of due process. The court has upheld many such
exercises of the police power. 345 But the Supreme Court of Penn-
sylvania will carefully scrutinize every regulatory measure, subject-
ing it to the severe test of meeting the judicial concept of what is
wise and reasonable legislation.
However, the Pennsylvania cases, with the strong language in
support of all property owners having a natural right to make un-
restrained use of their property so long as no real injury is done
to another, are zoning cases which may not even involve a constitu-
tional issue regarding the proper exercise of the state police power.
Although these cases have general language about constitutional pro-
tection of property rights from extensive sovereign regulation, the
cases can be resolved exclusively on the issue that the municipal
which found regulatory measures invalid used language indicating need
for a showing of reasonableness rather than indulging in the presump-
tion of constitutionality. In a zoning case: "A prevision of the
effect of such an increase in traffic must indicate that not only is
there a likelihood but a high degree of probability that it will affect
the safety and health of the community, and such prevision must be
based on evidence sufficient for the purpose. Until such strong de-
gree of probability is evidenced by legally sufficient testimony no
court should act in such a way as to deprive a landowner of the oth-
erwise legitimate use of his land." Archbishop O'Hara's Appeal,
supra note 340 at 54. Again in zoning: "If the evidence failed to
establish that such use would not be in harmony with the general
purposes of zoning...the certificate should be granted. Here, the
Board failed to face the realities of the situation and made arbitrary
findings not fully supported by the evidence...." Garner v. Zoning
Bd. of Adjustment, supra note 340. However, as previously dis-
cussed, the zoning cases may not be binding precedent because the
cases may rest on the ultra vires concept. -Also see the language
of the whole opinions in Cott Beverage Corp. v. Horst, supra note
340, and Hertz Drivurself Stations v. Siggins, supra note 340. Per-
haps the presumption of constitutionality is recognized in all of these
cases but the court is readily disposed to find circumstances warrant-
ing overturning this presumption. See Warren v. Philadelphia, supra
note 339 at 365-368 (1956): "Rent control which impinges upon the
constitutional rights of the owners of property must be based upon a
public exigency or emergency. ... [W] e are satisfied that... no emer-
gency housing shortage existed in Philadelphia... and that the evidence
was therefore sufficient to overcome the presumption of validity and
justified the conclusion of law that the, amending ordinance of 1956 was
invalid, arbitrary and void. "
345. Powell v. Commonwealth, 114 Pa. 265, 7 Atl. 913 (1887); Carolene
Products Co. v. Harter, 329 Pa. 49, 197 Atl. 627 (1938); Harrisburg
Dairies v. Eiseman, 338 Pa. 58, 11 A. 2d 875 (1940); Commonwealth
ex rel. Chidsey v. Black, 363 Pa. 231, 67 A. 2d 376 (1949); College-
ville v. Phila. Suburban Water Co., 377 Pa. 636, 105 A. 2d 722 (1954).
AND THE LAW
zoning ordinances were ultra vires: that is, beyond the scope of
municipal authority granted by the state in the enabling acts. If the
cases were determined on the ultra vires concept, then the police
power and its constitutional issues were not determinative, and any
discussion by the court of these constitutional matters concerning
the police power would only be dicta. Therefore, it would be pos-
sible for the Pennsylvania Supreme Court to distinguish the zoning
cases from any cases which might arise under a comprehensive
state regulation of water resources. This would leave the state
court free to sustain the most extensive water legislation, without
feeling restrained by restrictive precedent.
In the area of dairy regulation346 and water regulation, 347 the
court has been somewhat more tolerant of legislative enactments. In
the past eight years there have been only two cases dealing with
water which are at all significant, and these cases have not been
sufficiently related to the problem here under consideration to be
really helpful; yet in both cases the state court did uphold these
water regulatory measures. 348 In one of the cases a statute re-
quired, as a condition precedent to the operation of any coal mine,
that the operator obtain approval of the Sanitary Water Board for a
'plan of waste drainage into any waters of the state, and the enact-
ment was sustained.349 In the other case the court sustained the
statute giving the Water and Power Resources Board control of
water diversion and condemnation by public water suppliers, with
power to allow condemnation and diversion of water out of the water-
shed by these public water suppliers. 350 No case could be found
where the Pennsylvania Supreme Court had ever held any legislation
Regulating water to be unconstitutional. Although the legislation in
'the field is not exactly conducive to evoking either litigation or a
Finding of unconstitutionality, 351 still this fact may indicate that the
iPennsylvania court will look more kindly upon the regulation of this
essential natural resource than it has been disposed to look upon
the regulation of other property interests.
'346. Powell v. Commonwealth, supra note 345; Carolene Products Co. v.
Harter, supra note 345; Harrisburg Dairies v. Eisaman, supra note
347. Penn. R.R. v. Sagamore Coal Co., 281 Pa. 233, 126 Atl. 386 (1924);
Commonwealth ex rel. Chidsey v. Black, supra note 345; Collegeville
v. Phila. Suburban Water Co., supra note 345.
348. Commonwealth ex. rel. Chidsey v. Black, supra note 345; Collegeville
v. Phila. Suburban Water Co., supra note 345.
349. Commonwealth ex rel. Chidsey v. Black, supra note 345.
350. Collegeville v. Phila. Suburban Water Co., supra note 345.
351. See '32 Pa. Stat. Ann. cs. 8a to 12AC.
From Wisconsin comes one of the best-known, oft-cited, and
least-followed cases dealing with water law in the United States. In
1903 the Wisconsin Supreme Court rendered its decision in Huber v.
Merkel. 352 Mr. Merkel was a farmer with two artesian wells on
his land which he permitted to flow freely at all times. Huber, his
neighbor, also had two artesian wells, which were so affected by
the constant flowing of Merkel's wells that Huber had to pump the
water to supply even his domestic needs. Huber brought an action
for damages and sought an injunction to restrain Merkel from wast-
ing the water to Huber's detriment. The trial court found that Mer
kel used some of the well water but maliciously wasted most of it;
nominal damages were given the plaintiff, and Merkel was enjoined
from wasting water and was required to cap his wells to prevent
them from flowing when not being beneficially used. A Wisconsin
statute prohibited the waste of water from artesian wells and re-
quired the capping of the wells when not in use, so as to prevent
injuring the flow of water in other artesian wells in the area. 353
On appeal, the Supreme Court of Wisconsin reversed the lower
court and declared the well-capping statute unconstitutional as a tak-
ing of private property without due process of law. The court de-
clared that under the law of Wisconsin a landowner had a vested
right to obtain and use underground water as he pleased, without re-
gard to any damage done neighboring landowners nor to the fact that
the water is wasted, even maliciously. This property right was
subject to impairment by legislation only by condemnation or under
the exercise of the police power. 354 The statute was obviously not
a condemnation enactment, and it was held not to be a proper exer-
cise of the police power because it served no public purpose. The
court was unable to perceive how the public welfare was furthered
or the public generally concerned with the prevention of waste by
artesian well owners.
It must appear that the interests of the public generally require
the restriction, and not the interests of private individuals....
We find ourselves unable to comprehend how, under these prin-
ciples, the law in question can be sustained as an exercise of
police power. It does not even pretend to conserve any public
interest. Upon its face its purpose is to promote the welfare
of one citizen by preventing his neighbor from using his own
352. 117 Wis. 355, 94 N.W. 354 (1903).
353. Wis. Laws 1901, c.354.
354. Huber v. Merkel, 117 Wis. 355, 366, 94 N.W. 354 (1903).
355. Id. at 366-367.
AND THE LAW
i Such a concept would effectively preclude almost any regulation of
Under legislative fiat the riparian right on streams and lakes
has been somewhat modified, with no test of the constitutionality of
these acts as yet. 356 In effect, the statutes tend toward mainte-
nance of static water levels by protecting much of the riparians'
right to have the natural flow of the stream by permitting diversion
of surplus water from other streams or lakes to maintain normal
flow of a stream; on the other hand the legislation prohibits any
such diversion of water without obtaining a permit from the Public
Service Commission which can issue permits only for surplus wa-
ter. 357 Surplus water is any water not being beneficially used. The
legislation is a two-edged sword, protecting the riparian right while
tending to restrict it to existing uses. 358
To ameliorate some of the harshness of Huber v. Merkel, the
Wisconsin legislature enacted a statute in 1943, which provided a
permit system of regulation for all wells on one property which have
a capacity in excess of 100,000 gallons per day. 359 If such wells
would adversely affect the availability of water to any public utility
furnishing water to the public, then either no permit or a limited
permit will be granted. This legislation does not control small
wells but is pointed at the large water user; the constitutionality of
this legislation has not been clearly determined, but in the light of
two recent cases it appears likely that such legislation or any ra-
tional regulation of all the state's water resources would be up-
In 1956 the Wisconsin Supreme Court all but invited the legisla-
ture to "enact laws that will permit some state agency to regulate
the use of subterranean and other waters. "361 The companion cases
356. Wis. Stat. 31.01-31.14 (1955); Coates, "Present and Proposed
Legal Control of Water Resources In Wisconsin," 1953 Wis. L. Rev.
358. Coates, supra note 356 at 268:
For the present the picture is that the Wisconsin Legis-
lature has, intentionally or otherwise, given full expression
to that aspect of the riparian doctrine which assures the
riparian owner of a right to the natural flow. In the same
breath it has dulled, if not destroyed, that other edge of
the doctrine, the privilege of reasonable use.
359. Wis. Stat. 144.03 (1955).
360. The cases are Fond du Lac v. Empire, 273 Wis. 333, 77 N.W. 2d
699 (1956), and Menne v. Fond du Lac, 273 Wis. 341, 77 N.W. 2d
361. Fond du Lac v. Empire, supra note 360 at 338.
342 WATER RESOURCES
of Fond du Lac v. Empire362 and Menne v. Fond du Lac, 363 while
reaffirming Huber v. Merkel, presented the anomalous situation of
really repudiating the rationale of the Huber case and also inviting
the legislature to destroy totally the Huber doctrine. 364 Faced with
a ground water shortage the city of Fond du Lac acquired property
in the town of Empire so that it might install wells to provide water
for Fond du Lac. But the town of Empire passed certain ordi-
nances which would have effectively precluded the city of Fond du
Lac from obtaining water in Empire. The city of Fond du Lac
sought a declaratory judgment that the ordinances were invalid. Con-
currently, citizens of the town of Empire and the surrounding area
sought to enjoin Fond du Lac from removing ground water from the
Empire water basin and transporting it to the city of Fond du Lac,
which would have the effect of injuring landowners in the Empire
The court, basing its decision on two grounds, declared the Em-
pire ordinances invalid. First, it found that by enacting the 1943
statute the legislature "has indicated that the use of subterranean
waters of the state is a matter of statewide concern,"365 and city
ordinances cannot treat of state matters which are of paramount in-
terest to the people generally, rather than of primary or exclusive
interest to the residents of Empire. Second, the ordinance is in-
valid, since it conflicts with the state law as enunciated in the 1943
legislation and as enunciated in the Huber case. 366 However, in
the Huber case the court found no public interest in the regulation
of ground water between users and struck down state regulation,
though in this case, the court found that the use of underground
water was of state-wide concern, as evidenced by state regulatory
legislation. Does this mean that insofar as Huber v. Merkel found
there was no public interest in regulating ground water use, that
much of the Huber case is no longer good law? But if that be so,
and there is then the requisite public purpose, then regulation of
ground water is a proper exercise of the police power; there thus
remains little or nothing of the Huber doctrine if we follow the
court's rather devious reasoning in Fond du Lac v. Empire. 367
362. 273 Wis. 333, 77 N.W. 2d 699 (1956).
363. 273 Wis. 341, 77 N.W. 2d 703 (1956).
364. In both Fond du Lac v. Empire, supra note 360 at 338, and Menne
v. Fond du Lac, supra note 360 at 345, the Supreme Court of Wis-
consin all but expressly requested the legislature to act to effectuate
wise over-all regulation of water resources.
365. Fond du Lac v. Empire, supra note 360 at 338.
366. Id. at 340-341.
367. The result reached by the court was proper in permitting the city of
Fond du Lac to obtain an essential municipal water supply; the court
seemed troubled by the contemplated result without adequate state
AND THE LAW
In the companion case of Menne v. Fond du Lac368 the court
denied relief to the landowners on the authority of the Huber case.
The court answered the contention of the landowners that the Huber
decision ought to be overruled in this fashion.
It [Huber v. Merkel determined that the use of percolating
water underneath an owner's land is a property right and that
water so obtained could be sold. We have operated thereunder
for more than fifty years. Property rights thereunder have
been acquired and sold. Under the rule of stare decisis,
where property rights are involved, the courts are reluctant
to engage in judicial legislation. If there is to be a change,
it would come by action of the legislature. We know that the
legislature is studying the problem and we can expect such
legislation as it deems advisable in the interests of all of the
people in the state.369
In the other case of Fond du Lac v. Empire the court had pointed
out the growing water problem of the state, the fact that the legis-
lature and others were studying the problem, and again invited leg-
islative action "that will permit some state agency to regulate the
use of subterranean and other waters." 370 It is reasonably clear
from these decisions that Huber v. Merkel remains somewhat of a
ghost, yet a guiding principle in the absence of legislative action;
but if the legislature acts, as the court admonishes them to act,
then the legislation will be controlling. The court does not invite
legislative action unless it is prepared to uphold the constitutionality
of the regulation under the police power. In the landowners' case
the dissenting judges would have judicially overruled Huber v.
Merkel "regardless of whether or not the legislature ever exercises
its police power to regulate percolating waters."371
Recent cases in other areas of economic regulation demonstrate
that the Wisconsin Supreme Court takes a very liberal attitude
regulatory machinery to handle the problem and so made the sugges-
tions for legislative action. See Comment, "Wisconsin Ground Water
Law-A New Era," 1957 Wis. L. Rev. 309.
368. 273 Wis. 341, 77 N.W. 2d 703 (1956).
369. Id. at 345.
370. Fond du Lac v. Empire, supra note 360 at 338.
371. Menne v. Fond du Lac, supra note 360 at 346 (1956); Chief Justice
Fairchild and Justice Currie dissented. The result is that the five
justices of the majority request legislative action to change the doc-
trine of the Huber case while the two dissenting justices would im-
mediately overrule Huber at the judicial level. Regulatory legislation
should find a receptive Supreme Court in Wisconsin.
toward the exercise of the police power. 372 From the viewpoint
of appropriate judicial deference to the legislative formulation of
economic policy, the Wisconsin court will permit extensive regula-
tion of property interests. There appears little danger today that
372. Cutts v. Department of Public Welfare, \Wis. 84 N.W. 2d
102, 108 (1957), where the court discussed the contention of plaintiff
that conceivably the legislature might destroy much of the state's
forests if the court permitted the legislative action taken: "However,
we are confident that such a substantial diversion and destruction of
our state forests by legislative action is not within the realm of prob-
ability in the foreseeable future. Should it ever threaten, recourse
must be had to an informed and aroused citizenry to prevent it, and
not to the courts to impose a restriction on legislative power not
found in our state constitution." In Prisuda v. General Casualty Co.,
Wis. 83 N.W. 2d 739 (1957), the Safety Responsibility Law
was upheld where an insurance company in filing a prescribed form
with the motor vehicle department acknowledges that a person is cov-
ered by insurance; thereafter the insurance company is thereby pre-
cluded from disclaiming coverage for that accident; Henthorn v. M.
G.C. Co., Wis. 83 N.W. 2d 759 (1957), again dealing with
the Safety Responsibility Law and upholding it; Smith v. City of Brook-
field, 272 Wis. 1, 74 N.W. 2d 770 (1956), [zoning]; Kuhl Motor Co.
v. Ford Motor Co., 270 Wis. 488, reh., 270 Wis. 503b, 71 N.W. 2d
420 (1955), where a statute protecting automobile agencies from can-
cellation by the automobile manufacturer without just provocation or
cause was first found unconstitutional by a split decision,but upon
granting a rehearing the statute was found to be constitutional; State
ex rel. Saveland P.H. Corp. v. Wieland, 269 Wis. 262, 267, 69 N.W.
2d 217 (1955), was a zoning ordinance case in which the court pointed
out that the police power extends to "dealing with conditions which
exist as to bring out of them the greatest welfare of the people by
promoting public convenience or general prosperity," and that where
"the interest of the individual conflicts with the interest of society,
such individual interest is subordinated to the general welfare" so
that "incidental damage to property resulting from governmental
activities, or laws passed in the promotion of the public welfare, is
not considered a taking of the property for which compensation must
be made"; Froncek v. Milwaukee, 269 Wis. 276, 69 N.W. 2d 242
(1955), where a water fluoridation ordinance was upheld; David
Jeffrey Co. v. Milwaukee, 267 Wis. 559, 66 N.W. 2d 362 (1954),
in which the blighted area law was upheld; In re Adoption of Mor-
rison, 267 Wis. 625, 66 N.W. 2d 732 (1954), where a substantial
change in part of the adoption law was upheld and the court pointed
out that the legislature may change its statutes so that present rights
of citizens are different from those they had in the past whether or not
so declared by a court. But cf. Caledonia v. Racine Limestone Co.,
266 Wis. 475, 63 N.W. 2d 697 (1954), where the court invalidated a
zoning ordinance which would have put one stone quarry out of busi-
ness while not affecting another stone quarry in the same town.
AND THE LAW 345
substantive due process will be any serious impediment to legisla-
tive action in regulating economic affairs. 373 With the Fond du Lac
cases, and against the background of the state court approach in
dealing with police power measures in the economic area, and with
the water problem becoming more acute in that state, there appears
every reason to believe that Wisconsin would uphold extensive regu-
lation of its water resources, even though the enervated specter of
Huber v. Merkel remains temporarily on the scene. 374 A bill, es-
tablishing a very extensive agency regulation of water, introduced
April 10, 1957 in the Wisconsin legislature must be based upon the
same conclusion. 375
E. Some Observations About the Eastern States
The discussion of these four selected states, which present
more serious difficulties than most other eastern states in uphold-
ing extensive water regulation, demonstrates that water legislation
like the Model Water Use Act would likely be upheld in the states
of Florida, Indiana, and Wisconsin. Pennsylvania remains some-
Florida has just recently enacted legislation providing extensive
regulation of water resources, and in 1956 the Florida Supreme
Court exhibited some tendencies toward liberalizing its attitude
toward economic regulation and substantive due process. Both of
These current developments, taken against the background of the
judiciary's quite consistently sustaining comprehensive regulation of
the citrus industry, indicate that Florida would sustain extensive
water resources regulation.
In Wisconsin the state court has rather firmly adhered to a lib-
eral approach in upholding legislation regulating property and seems
to follow the modern idea of the United States Supreme Court with
respect to substantive due process. There is the old case in Wis-
consin extending unwarranted protection to underground water rights.
But the most recent judicial pronouncements invite legislative abol-
ishment of the rule in that case and the enactment of state regula-
tion. Little or nothing remains of the old strict rule. There is
every reason to believe that Wisconsin would sustain the Model
Water Use Act type of legislation.
373. Ibid. See also Coates, supra note 356; Comment, "Wisconsin Ground
Water Law-A New Era," supra note 367.
374. Ibid. Both Wisconsin law review articles point out the increasing
water problem in Wisconsin.
375. Bill No. 616A, April 10, 1957, introduced by Messrs. Blanchard, Rice,
Indiana is somewhat more doubtful, However, the legislative
trend in the state is toward greater state regulation of water re-
sources. In addition Indiana has a long history of upholding exten-
sive regulatory measures in the oil and gas industry, which might
serve as a basis for a favorable judicial approach to comprehen-
sive regulation of water. The discernible state desire for more
state water regulation would indicate hope for a receptive judiciary.
Among the four states Pennsylvania remains as the only state
which possibly may invalidate any very extensive water regulation
which impinged on the riparian right. But there is no direct prece-
dent in the state dictating such a result so that if the water prob-
lem becomes seriously felt in the state, there would be no prior
decisions prompting unfavorable court action. Under those circum-
stances the judiciary might fashion an approach which sustained
water regulation as a necessity to maintain the prosperity and wel-
fare of the state. But cases in several other fields of economic
regulation point to a very strict judicial approach, vigorously up-
holding substantive due process while invalidating economic regula-
There is an alternate provision in the Model Water Use Act
which provides damages to all owners of water rights injured by op-
eration of the statute, so that only injunctive relief is denied to
such owners. Therefore, in very doubtful states prudence would in-
dicate adoption of this optional provision. Even the most conserva-
tive of state courts should find nothing improper in merely limiting
the owners' remedy to damages and eliminating injunctive relief so
that water resources can be more adequately developed and utilized,
without being hampered by the "dog in the manger" aspects of the
riparian right. Both Pennsylvania and California ought to uphold ex-
tensive water regulation which contains this alternate provision.
The remainder of the eastern states will probably show a more
liberal attitude toward economic regulation and be more influenced
by the present United States Supreme Court concept of substantive
due process than have the selected eastern states with a very con-
servative approach. Among the eastern states, Maryland and Min-
nesota have been operating under fairly comprehensive systems of
water regulation (with many of the concepts proposed in the Model
Water Use Act) for many years with no constitutional questions even
arising. As will be pointed out subsequently, there is the unmistak-
able movement toward greater state regulation of water resources
and a sense of public awareness to the increasing water problem;
these factors will undoubtedly manifest themselves by strengthening
liberal courts in sustaining water regulation and ameliorating the at-
titude of the strict courts so that they might also sustain such regu-
AND THE LAW
F. Other State Activity in the East376
Often public opinion as expressed through legislative action is a
strong influence in molding or altering judicial opinion, especially
when the action is in response to an increasing social problem.
Therefore, the volume of legislative activity dealing with water re-
sources regulation is quite a reliable indicator of what will be the
judicial trend. 377 Some very significant factors which will thus af-
fect judicial opinion are: the scope of legislative enactments; the
number and magnitude of state studies made in the field; and the
number of private groups concerning themselves with the water prob-
The following chart shows the eastern states which have passed,
statutes, considered bills, or appointed study commissions concerned
with water regulation, where the distinct tendency is toward some
form of state regulation and restriction of the riparian right. Eleven
states have legislation of varying degrees inclining toward state
agency control of the state's water resources; four other states have
considered similar type bills but have not yet adopted them; three
states which have regulatory legislation also have considered bills
which would have broadened the regulatory power; nine different
states have appointed some type of study commissions which are
considering some system of regulatory measures and will report
back to the legislatures with recommendations for some appropriate
regulatory legislation; two states which have considered bills also
have appointed these study commissions; and one state which already
has legislation has also appointed a study commission. A total then
of twenty-four eastern states are actively seeking a change in their
water law through means of some sort of state regulation. This ac-
tivity would indicate that the water problem in the area is being felt
and that the public, through its elected legislators, is aware of the
376. The term "East" is used throughout to refer, not specifically to geo-
graphic area, but to the thirty-one states which operate exclusively
under the riparian doctrine, as distinguished from the seventeen west-
ern states operating under the appropriation system alone or a com-
bination of the appropriation system and the riparian doctrine.
377. A striking example of this is the depression era of the 1930's and the
dramatic shift of judicial thinking in the Supreme Court of the United
States. Of course, there may be many reasons explaining that alter-
ation, such as court personnel change, but the judicial shift became
an accomplished fact which continues until today.
378. It is assumed that in the semi-arid seventeen western states water
problems have almost always been of recurring concern to the state
legislatures. See Hutchins, Selected Problems in the Law of Water
Rights in the West (1942).
[Within last 25 years]
Florida [c. 57-380 S.B. No.
119, June 18, 1957).
Indianaa [Ind. Stat. Ann.
027-1401 et sea. (1955)].
Iowa [Iowa Code Ann. 8455A.1
et seq. as amended by Iowa
Laws 1957, c. 229].
Kentucky [ Ky. Rev. Stat.
Marylandc [Md. Code Ann. 1957,
Art. 66C, 08718-734; first
adopted in 1933, amended 1939].
Minnesota [Minn. Stat. Ann.
9105.37-105.71; statute passed
in 1937, additions & amend-
ments in 1947, 1949, and 1955].
Mississippi [Miss. Code Ann.
5956-01 to 5956-30 (1956)].
North Carolinaa [N.C. Stat.
Rhode Island [c. 3562 of 1955
Virginia [Va. Code, 062-9.1 to
Wisconsina [Wis. Stat. Ann.
831.14 and 31.36].
[within last 5 years]
Arkansasb [S.B. 69, 60thG.A.,
Reg. Sess. (1955)].
Delaware [S.B. No. 98, 1957
Indianaa [Act enacted by 90th
Ind. Gen. Ass. of 1957, vetoed
by Gov., March 15, 1957].
Michiganb [ Act considered by
1954 Interim Legislative Com-
North Carolinaa [S.B. 153 &
H.B. 298, N.C. Gen. Ass.
South Carolina [S. 43 & H
1095, S.C. Gen. Ass. 1955].
Wisconsina [Bill No. 616, A.
April 10, 1957].
[within last 5 years]
Alabama [Act 549, 1955 Legis-
Arkansasb [Ark. Acts 1955,
Connecticut [Special Act 572,
Laws of 1955, S.B. 284].
Georgia [House Res. 131, 1955
Sess. of Legislature].
Illinois [S.B. 582, 1955 Legis-
Louisiana [Act No 455, Rev.
Stat. 1955, H.B. 21.
Marylandc [Jt. Res., 1955 Leg-,
Michiganb [Sen. Concurrent Res.
13, 1955 Legislature].
New Jersey [Ch. Jt. Bes. 3,
New York [Sen. Res. 103 and
c. 696 of 1955 Laws, 1955 Leg-
Tennessee [c. 82 1955 Legis-
lature, H.B. 1491.
West Virginia [Sen. Concurrent
Res. 4, 1955 Legislature].
aStates in which there is already regulatory legislation and also consideration is being given to pro-
posed bills which would expand regulatory powers.
bStates which have considered proposed bills and also have legislative study committees concerned
with making recommendations for water legislation.
cStates in which there is already regulatory legislation and which also have legislative study commit-
tees concerned with making recommendations for changes or amendments to water legislation. (In all
of the states the movement is toward expansion of regulatory measures dealing with water, and in
no state is there any action for restricting state water regulation.)
difficulty and is striving to solve it. The trend seems unmistaka-
ble; judicial reaction cannot be far behind.
In 1957 the Connecticut, Georgia, Massachusetts, and Ohio leg-
islatures received study reports on the water problems in their re-
spective states. 379 It is significant that the great bulk of legisla-
tive activity in these eastern states dates from the last two or three
years. As the water situation becomes more acute, there is every
reason to believe that the legislators are prepared to pass more
379. The Council of State Governments Legislative Research Checklist No.
33, October, 1957, pp. 60-61.
AND THE LAW 349
comprehensive enactments. It is doubtful that the state judiciaries
could prove to be serious impediments (at least for any great length
of time) to such a universal swell of legislative action. Public opin-
ion and a desire for positive state action should prove decisive in
obtaining court approval of legislation.
The legislatures and courts of the states are initially the exclu-
sive determinants of what water rights, if any, will be recognized
as vested and protected property interests. 380 In a state which has
consistently recognized only a qualified property interest, subject
always to limitation, alteration, and regulation by the state, there
is no problem connected with the most sweeping of state measures.
However, even where states, by court decision, dicta, legislation,
or otherwise, have accorded some type of vested property interest
to water users, this does not preclude extensive regulation and limi-
tation of those rights.
It is elementary that all property is held subject to the state
exercise of the police power. That proposition must apply with even
greater force to the natural resources of the country. Once this
basic premise is founded, the next step is toward a proper under-
standing of the police power and, from such understanding, the cul-
tivation of a benign attitude toward this sovereign authority. The
police power exists for use in aiding all of the people in an or-
ganized society from the destructive forces of unrestrained individ-
ual license. Although it is used to prevent injury to the public
health, safety, and welfare, more important to this study, this
sovereign authority extends to promoting the general welfare and
prosperity of society. Understanding the magnitude, scope, and es-
sential nature of this power-it is the least limitable of all state
authority-no court should want to cripple the police power in the
area of economic regulation by an erroneously restrictive view of its
nature. In this logical progression of better understanding of the
proper role of economic regulation and the police power, the next
inquiry must be to ascertain in what organ of government this power
fundamentally resides. Who must determine when and how the po-
lice power will be used? To this all of the courts agree, it rests
essentially with the legislatures. The legislative branch of govern-
ment makes the policy decision of when or where the police power
will operate, and then it implements that decision, in its legislative
380. This matter of what is the nature of the water right is considered
more fully in a companion paper to this water study-Lauer, "The
Riparian Right as Property."
wisdom, by enacting the means of carrying out the legislative deter-
mination. It is not the proper function of a court to ascertain the
wisdom of choice nor to substitute its judgment as to what it deems
proper policy for that of the legislature. Only exercises of the
statutory power which are so potently arbitrary that they could com-
mend themselves to no rational man ought to be invalidated by courts
in the area of property regulation. If a court faithfully operates ac-
cording to these three fundamental postulates, rather than paying
mere lip 'service to them, then legislative bodies ought to be free
to regulate water resources as the legislature deems appropriate in
the public interest.
The state legislature may then modify or change the property
concept in water to the extent that what one originally held as an in-
terest is not nearly the same as prior to the modification. 381 For
example, there is the change from the riparian doctrine to that of
the appropriation doctrine, where the normal concept of the riparian
right to future use is substantially modified, if not emasculated. Not
only can the state bring about this considerable alteration, it can
also require holders of rights making a present beneficial use of
water to make application before administrative tribunals for a de-
termination of such rights, and present proof of their claims, as a
condition to recognition of these rights. Wastefulness, nonusee, and
non-beneficial use cannot, and certainly should not, be tolerated
under a system of water administration. Rational determinations by
the state as to what is beneficial or wasteful will be left untouched
as proper policy determinations of the sovereignty as long as the
means utilized bear any reasonable relation to the ends to be ac-
complished. There can be no quarrel with the proposition that the
conservation and proper utilization of the water resources of a state
are proper public purposes warranting legislative action under the
police power to accomplish these legitimate ends; the use of an all-
pervading standard of beneficial use seems equally appropriate for
381. Under the Model Water Use Act the right to future use is not actually
emasculated. Present beneficial use is protected. The unused or
future right is now merely subjected to the requirement that before a
riparian may now initiate a new use he must apply for a permit. To
be sure, the permit may or may not be granted but even under exist-
ing law the riparian right to future use is contingent upon its reason-
ableness as among all other riparians. Under the permit system,
the state agency uses the standard of beneficial use as among all per-
sons who can lawfully obtain water, no longer limiting the use of
water to specific landowners. The standard of beneficial use is now
correlated to state-wide interest rather than reasonableness among
riparians. This type of alteration or regulation appears perfectly
AND THE LAW 351
legislative determination. There is both federal and state authority
for such action.
S However, some state courts may take a much stricter view of
the proper sphere of the police power and will accord protection for
the property right in an essential natural resource to such a degree
that almost any type of regulation may run afoul of the judiciary.
For this reason it is somewhat deceptive to equate the federal toler-
ance for economic measures with that of the state court tolerance
for like enactments. The particular water problem in a state, the
acuteness of the problem, public sentiment, the state trend of action
in the water field, proper study of basic data in order to support
the conclusion of a pending problem and to pinpoint it, careful legis-
lative attention to the matter, reasonably prudent and well-drafted
legislation, state supreme court personnel, the history of judicial
Iself-restraint in permitting economic regulation by the legislature,
Judicial attitude toward the police power and property, and judicial
Confidence in the legislature are the matters which will be decisive
in any state litigation over extensive water regulatory measures. As
the need for state action becomes more urgent, a well-briefed case
Sin behalf of regulation impinging on private water rights ought to
persuade even the most conservative of state courts to sustain the
Enactment. The regulation of water use is quite different from the
Regulation of other property, and water regulation is much more im-
portant to the general welfare of all the people. In this latter re-
gard there is serious question whether any state under the present
systems of riparian rights, without adequate state supervision, can
ever properly utilize the state water resources to satisfy the ever-
expanding wants of industries, farmers, cities, and individuals. Rec-
ognition of that fact should orient the courts to a proper approach
Sin approving state water regulation.
There is no reason to be apprehensive that the Supreme Court
of the United States will interdict any state economic legislation as
a violation of due process or equal protection under the Fourteenth
Amendment. Federal substantive due process in the area of prop-
erty regulation is probably a dead issue. The old substantive due
process concept no longer impinges upon state and congressional
legislation regulating economic interests. As the Supreme Court
has recently said:
The Oklahoma law may exact a needless, wasteful re-
quirement in many cases. But it is for the legislature, not
the courts, to balance the advantages and disadvantages of
the new requirement.... It is enough that there is an evil
at hand for correction, and that it might be thought that the
particular legislative measure was a rational way to correct
it. The day is gone when this Court uses the Due Process
Clause of the Fourteenth Amendment to strike down state laws,
regulatory of business and industrial conditions, because they
may be unwise, improvident, or out of harmony with a parti-
cular school or thought. We emphasize again what Chief
Justice Waite said in Munn v. State of Illinois, "For protection
against abuses by legislatures the people must resort to the
polls, not to the courts." (Emphasis added.)382
Only potently arbitrary and grossly unjust measures in matters of
economic regulation could possibly run the risk of being invalidated
under the United States Constitution. And perhaps, not even then,
because the Federal Court has a conscience rather impervious to
complaints that economic regulation is violative of due process.
The Supreme Court of the United States has set the tone for the
judicial approach to economic regulatory measures. At least in the
area of natural resources, the state trend is forming and seems to
be inexorably moving toward some system of comprehensive state
regulation, with the inevitable restriction on the property interest.
It seems safe to predict that the state courts cannot long stand as
any serious impediment to the increasing number of state water
382. Williamson v. Lee Optical Co., 348 U.S. 483, 487-488. 75 S.Ct.
461 (1955), reh. den., 349 U.S. 925, 75 S.Ct. 657 (1955). Mr.
Justice Douglas wrote the opinion for a unanimous court upholding
an Oklahoma statute regulating the fitting and selling of eyeglasses,
reversing the three judge district court decision which had held
parts of the act to be unconstitutional as a violation of the Fourteenth