Title: Comparison of Present Massachusetts Law and Proposed Michigan Legislation
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Permanent Link: http://ufdc.ufl.edu/WL00003185/00001
 Material Information
Title: Comparison of Present Massachusetts Law and Proposed Michigan Legislation
Physical Description: Book
Language: English
Publisher: The Conservation Foundation
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Comparison of Present Massachusetts Law and Proposed Michigan Legislation
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 38
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003185
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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have the advantage Flaubert wrote of, "Le detail est tout!".

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

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

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

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

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

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

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

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

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

stated, and the underlying assumptions articulated.

I. Comparison of Present Massachusetts Law and Proposed Michigan Legislation

The comparison below of present Massachusetts water law and the proposed

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

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

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


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

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

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

___m mo



riparian or nonriparian land, prior to the date upon which this Act
shall go into effect, shall be deemed to create in the person effect-
ing such use or in his successor in interest a Class B vested right
to the extent of the actual application to such reasonable beneficial
use; provided, such use has not been abandoned in the manner provided
in Section 23, infra. The priority of such right shall date from the
time of actual application of water to beneficial use."

"Section 8. EFFECT OF PRIORITY OF RIGHT. The natural supply of
water in any natural watercourse or lake shall be available at
all times for the requirements of Class A vested rights as pro-
vided for in Section 7, supra, and for the other uses provided
for in Section 2, supra. The excess over such requirements at any
particular time shall be available for the requirements of Class
B vested rights provided for in Section 7, super, and for the ap-
propriative rights acquired after the effective date of this Act
under the procedure provided for that purpose in Section 11 et
seq., infra, in the order of their respective dates of priority.
No holder or claimant of a Class B vested right or of an appro-
priative right shall be entitled to divert or impound or use water
at any time when such water is required to satisfy both (a) the
Class A vested rights and other uses hereinabove referred to, and
(b) any Class B or appropriative right or rights with an earlier
date or dates of priority."

Every application that fulfills all of the requirements of this
Act, and of the rules and regulations of the Commission promul-
gated in pursuance thereof, shall be approved by the Commission.
Before acting upon an application, the Commission shall consider
all the circumstances of the proposed use of the water, including
the character of the land and the desirability of irrigating such
land. The Commission shall also consider whether the approval of
the application will impair any vested rights as provided for in
Section 7, supra, or will interfere with the maintenance of the
flow of the stream or level of the lake, as the case may be, rea-
sonably necessary to safeguard the uses provided for in Section 2,
supra. Any application, the approval of which would conflict with
the public interest, as stated in Section 1, supr, or with the
requirements of this section, or which is shown not to have been
made in good faith, shall be rejected by the Commission. If two
or more applications are pending for a quantity of water that is
inadequate for both or all, or which for any other reason are in
conflict, the Commission shall have the right to approve that ap-
plication which best serves the public interest. If in the opinion
of the Commission there appear to be assured prospective uses of
the water that would better serve the public interest or general
welfare, then the Commission may reject or may postpone the ap-
proval of an application that would not serve so well such public
interest or general welfare."


The basic proposition of Massachusetts law of watercourses is that an over



of land riparian to a stream has a right to the use of the stream on or in connec-

tion with his riparian estate; he has a right to the free and unobstructed flow

of the stream onto his land, and from it onto the lower riparian's property.

Though this right is thus contingent upon, or as the courts put it, an inseparable

incident of, ownership of land, it is not proportioned to it; under Massachusetts
common law, the rights of all persons having any right at all are equal. These
/ .2/
rights may be enlarged or diminished by grant or prescription. Each has a right

to use the stream reasonably, and any use is reasonable which is lawful and bene-

ficial and not inconsistent with the reasonable use of other riparians.
No lawful purpose is per se unreasonable, nor indeed is any one purpose

preferred over others. In fact, however, certain purposes do seem to enjoy a

preference, based, apparently, on the court's evaluation of fundamental or natural

human needs, and practical considerations or feasibility. In the language of

Chief Justice Shaw,

"To take a quantity of water from a large running stream for
agriculture or manufacturing purposes would cause no sensible
or perceptible diminution of the benefit, to the prejudice of
a lower riparian, whereas taking the same quantity from a small
running brook passing through many farms would be of great and
manifest injury to those below, who would need it for domestic
supply or watering cattle... "2/

Whether because a brook as small as the one contemplated by the Justice

would be useless for agriculture or manufacturing, or due to some other reason,

conflicts of this elementary type are not the ones which have been litigated.

One generalization seems to emerge from the cases: the litigated is never

whether the purpose was reasonable, but rather the reasonableness of some par-

ticular use for a concededly reasonable purpose. Essentially, the question

is one of fact to be resolved in the light of all the circumstances. But

like most such questions, the extreme case is deemed a matter of law and hence
for the court, rather than the jury. The outstanding instances of this in

watercourse law are uses involving total diversion or obstruction. And as in




other areas of the law where the criterion is reasonableness, despite the un-

certainty of result in any given case, the relevant factors can be stated with a

fair degree of precision.

One of the most important factors is damage. Any use is reasonable with
respect to a person who is not injured thereby. A consequence of this is

that far fewer uses affecting the quantum of water will be unreasonable with

respect to an upper riparian than to a lower one. And thus the riparian owning

both banks at the mouth of a stream is singularly well situated; he may even

abstract the entire stream for the purpose of dealing with the water as a com-
1./ 18/
modity. Where damage is shown, the inquiry must proceed further.

Of clear relevance to this inquiry are the characteristics of the stream--

its volume and gradient. Frequently, the extent and type of development of the

surrounding countryside, climatic conditions, the type of soil in the area will
bear on the reasonableness of the use in question. Another factor is the

state of the arts, whether the objectionable aspect of the use might not be

eliminated without completely eliminating the use.

Some early cases, perhaps reflecting the then existing conditions, did throw

into the balance the cost to the user of making the stream available for his

purposes. More recently, however, Massachusetts courts have rejected arguments

urging the user's investment as a consideration. As the court stated in

Parker v. American Woolen, "An injunction cannot properly be refused because of

the magnitude of the defendant's business." The later view may be more in accord

with democratic ideals of equal justice for rich and for poor, but it also makes
possible, or at least encourages, legal blackmail. In so uncertain an area as

water law, an "always" or "never" approach serves little purpose, and there would

seem to be no reason why cost should not be given weight under some circumstances

and not under others.

A last factor, of most uncertain weight, is public policy, the interest of

---- -L------i--~-----------___~-----



the community in contradistinction to those of the litigants. An occasional court

has explicitly given this as a ground of its decision. The great bulk of cases,

however, have been decided without any explicit consideration to anything but the

immediate conflict. Since in these cases the issue is never simply the public

versus the private interests, and since opinions will frequently differ as to the

result in any given case most conducive to community well-being, it is almost im-

possible to tell whether the court gave unvoiced consideration to public interest
or considered it immaterial to the proper resolution of a private dispute.

In one area, however, public policy has been a force shaping the development

of the law. The area is that of utilization of stream current for power, which,

if the subject matter of the cases is any barometer at all, is (or was) by far

its most important use. It is also thi one eacocening which there has beenA --

significant legislation. 27

The Mill Acts

The innumerable mill sites located he streams criss-crossing Massachusetts
were early recognized as a potential source of great wealth. Their economic

utilization, however, frequently required an increase in the natural head and fall

and the equalization of stream flow. Where sites were located close together, this

meant that utilization of one site might interfere with the subsequent utilization

of an upper mill privilege, possibly subjecting the user to legal action and

liability. It meant also that his own investment might become merely an element

of damages in a lawsuit if his own wheel, in turn, were obstructed due to the

exercise of the privilege below him.
The legislature resolved this problem by enacting the Mill Acts. These

authorized the erection of mill dams on and across non-navigable streams provided

they did not injure already existing mills. In place of the common law rights of

action of the owner whose land was flowed or otherwise damed, the Act substi-

tuted a special proceeding for the assessment of damages.

As construed by a cooperative judiciary, the Mill Act also gave an exclusive

right to water to the extent actually appropriated for mill purposes. The re-

sulting amalgam of statutory prior appropriation and common law reasonable use

both served the same dominant end of encouraging maximum development of stream

power. Thus, a prior appropriator was not given protection against every injur-

ious use of another mill owner, but only against a use which would be injurious

at the ordinary stage of the stream. To the extent of his appropriation at this

stage, however, he was protected against any action for setting back the water

on an upper wheel and also against interference by back flow from a lower


Reasonable use remains the test for questions involving manner of utiliza-

tion. A recurring cause of contention has been the alteration of the stream

flow. For even in the second half of the nineteenth century when the bulk of

mill cases were decided, industry required a flow greater than the natural flow

of many streams. The deficiency was frequently alleviated by storing water during

non-working hours which would be let down during the hours the mill was in opera-

tion. Conflict arose when the upper privilege was operated at night, and the

lower one, lacking substantial storage facilities, by day. About the turn of

the century, mill operators were beginning to be accorded greater latitude on

this score. These cases, and even more the cases holding hydroelectric plants

were mills within the meaning of the Mill Acts, which paralleled the increasing

use of water power for the generation of electricity, illustrates the great

flexibility of this common law rule and its consequential ability to keep pace

with technological progress.

The Watershed Definition

Rights under the Mill Acts are confined to the erection of a mill dam on the

same stream as is located the mill itself. It necessarily follows that the ex-

ercise of the statutory rights cannot transcend watershed boundaries.


This legislative limitation would seem to achieve the same public policy

as the watershed concept applied by the judiciary. Case law seemed to be moving

in the contrary direction when, in Elliot v. Fitchburg it was held that no

action lay for the diversion of water for use in defendant's locomotives, a use

which obviously did not permit of any return of the abstracted water to the stream.

No distinction was drawn between diversion for use on the riparian estate, as in

manufacturing, and diversion for use off the estate, as was in fact the case. The

proposition laid down by the court was that the riparian's right of reasonable use

included any lawful and beneficial use which did no; cause actual and perceptible

injury to any other riparian.
Stratton v. Mt. Hermon's Boys School, however, interpreted Elliot as deciding

only that use outside the watershed was not actionable in the absence of damage.

The Stratton court adopted the view that such use was actionable, provided only

that it caused damage. In a carefully considered dctum, it confined the privilege

of reasonable use to within the watershed, a limitation it regarded, in its own

language, as:

"implied in the term 'riparian'. It arises from the natural
incidents of running water. A brook or river, so far as
concerns surface indications, is inseparably connected with
its watershed and owes the volume of current to its area.
A definite and fixed channel is a part of the conception
of a watercourse. To divert a substantial portion of its
flow is the creation of a new and different channel, which
to that extent defeats the reasonable and natural expecta-
tions of the owners lower down on the old channel Land
also increases /he flow7 which drains the watershed into
which the diversion is made, and may injure thereby riparian
rights upon it."42/

The rights of riparians located on navigable streams are subject to certain
special rules. For the common law rule and the present law of Massachusetts is
that the title to the bed of such streams is in the state which also has a para-

mount interest in the water. One consequence is that the owners of the banks may
not interfere with navigation -- an important limitation, in the past at least --

if damming is necessary to make the current of the stream suitable for powering a



mill. Another is that although the riparian can avail himself of the water for

any use consistent with navigation, an act of government depriving him of such

use does not give rise to claim for compensation.

The rights of riparians on non-navigable watercourses are somewhat similarly

restricted where the stream on which they are located is the outlet of a great pond.

By an ordinance of 1641-7, these bodies of waters, i.e., ponds having an area of

more than 10 acres, were reserved to the public. In Watuppa Reservoir, a

divided court held that the state does not have to compensate owners riparian to an

outlet stream for the injurious effect on the stream resulting from a use of the

water in the pond, e.g., distribution for domestic purposes.

By the Ordinance of 1641-7, there was reserved to the people of Massachusetts

the right to fish in and fowl on the waters of great ponds. This has been con-

strued to confer a right to any use to which the water is capable of being put.

This right is, therefore, by grace of judicial expansions, a dynamic one which gains

new content as science discovers new uses for water. The owner of land abutting

a great pond may probably use the water for any purpose to which it is capable of

being put. This right accrues to him not as an owner of land, however, but simply
as a member of the public, though doubtless made more valuable by the certain and

convenient access secured to him by the land. By regulation, however, he may be
prohibited from using the water for any or all purposes.

The owner of land abutting a pond which is not a great pond is to all intents

and purposes as riparian. If the pond is not the source of a stream and all of

the surrounding land is owned by a single person, he may deal with it as his abso-

lute property. If others own land abutting the pond or a stream whose source it

is, then he must have regard to the rights of these others to precisely the same
extent as if his land abutted a stream.

Effect of Proposed Bill

If a possible reading of the proposed bill is that existing rights are to be



unaffected by the enactment, the bill would be limited to a codification of present

substantive law. It seems more likely that the bill was intended to make law, and

as had already been pointed out above, enactment of a similar bill in Massachusetts

would change rather than merely declare it. If so, section two is an obeisance to

constitutional provisions for the protection of "property". The property protected

under the Act, however, is limited -- presumably in the interests of removing the

financial obstacle to the enactment of the bill. For example, consider the situa-

tion of a riparian who purchased his property at a price reflecting the potential

value of underdeveloped water rights, who has not yet exercised his water rights,

and who planned to do so in the future for a purpose not included within Class A.

Such a riparian will discover (unless he succeeds in obtaining a license to appro-

priate) that the new bill frustrates his plans without compensating him therefore.

Because of the proposed definition of "riparian" land, the bill would tend to

limit the number of claimants to Class A rights. Those who did come within the

class would retain substantially the same rights as now with respect to use for

all class A purposes except power. As far as can be seen from the cases, however,

of these purposes, only power is really significant. And as to it, this provision

of the Michigan Act, assuming a similar one is adopted in Massachusetts, would seem

to introduce into the law all the uncertainty that was eliminated by the enactment fc

the Mill Acts. It would seem preferable to take power out of class A; as a class B

or appropriative right, it would have approximately the same content as now, except

that it would not necessarily be limited to riparian land.

The approach taken with class B and appropriative rights is as good or bad as

the instrumentality chosen to administer the law. The guides prescribed for adminis-

trative decision are vague, perhaps necessarily so; such as they are they necessi-

tate no departure from "reasonable use". But at least as to appropriative rights,

the determination of reasonableness is made before the existence of conflict.

Moreover, the holders of class B and appropriative rights are given as much certainty




of the continuance of their supply as the nature of the resource allows.

A possible change of considerable significance would be brought about if

licenses are liberally granted for the exercise of appropriative rights on non-

riparian land. The absence of litigation testing the limitation on use of water

imposed by the watershed concept would seem to indicate that use outside the

watershed is impracticable for other than legal reasons, or that such use does

not injure other riparians. In either case, the correct inference seems to be

that the limitation is not extremely onerous. Nevertheless, no reason of universal

application seems to require that use outside the watershed be permitted only if

no riparian is injured thereby. Hence, assuming a conscientious administration

having the expertise such a specialized agency may be expected to acquire in time,

there is reason to believe any change in the direction of increased non-riparian use

would be for the better.

"Section 3. DEFINITIONS.

1) The terms "water" or "waters" shall be deemed to refer to
any waters, standing or flowing, in any natural watercourse,
lake or pond on the surface of the ground. 60/

(Macsachusetts case law presently uses "water" in the same allinclusive, non-

technical sense as does the proposed bill.)

2) The term "watercourse" shall be deemed to refer to a defi-
nite natural stream in a definite natural channel, origin-
ating from a definite source or sources of supply. 61/"


A core concept in Massachusetts water law is the "natural watercourse" which

serves to distinguish, on the one hand, a flow of water owing its existence to

nature from one owing its existence to man, and on the other hand, water which is

a watercourse from diffused surface water.

"Natural" in this context has never been formally defined by the courts. But


it seems clear that this status is not lost by the widening and deepening of an
original, natural depression nor by the laying of an artificial culvert or
conduit in the original channel. Even a watercourse whose channel was entirely

created by man, rather than nature, may be found to be natural. In Stimson v.

Inhabitants of Brookline which so held, the court suggested that the status

might attach immediately to a watercourse made by a public authority and should

certainly do so after twenty or more years of unchanged existence and of acquies-
cence by all interested parties. Where acquiescence is lacking, the watercourse

may nevertheless be held to be "natural" by prescription or adverse user.

And, for some purposes at least, an artificial watercourse may become natural by
contract. But "natural" has created relatively few problems; greater difficulty

has been encountered in delimiting "watercourse".

All Massachusetts courts defining watercourse have included in their defini-

tion the elements of (1) a stream of water, (2) flowing usually in a (3) well-
defined channel having sides or banks. Other elements frequently included are
permanency of source, discharge into same other body of water, and ascertain-

able direction of flow. There is general agreement, too, that, to be a water-
course, the channel of the stream does not have to be long or wide, and may even
be dry periodically. Neither this nor any definition can draw a sharp line where

nature has not. And while the legal definition accords with the popular descrip-

tion of a stream, as a test it is met only in the clear case. Not this, but the

borderline case, the disputable -- and disputed -- case is litigated. The courts

have held to be watercourses a stream whose origin was found to be surface water,

and water which for part of its course spread out over a considerable area without

apparent banks. The explicit ground of decision is generally that the body of

water as a whole has the requisite characteristics, though lacking one or more at

the locus in quo.

Although not verbalized, the court at times appears to have applied, in


conjunction with the physical tests, a variant of the reasonable use test. For
example, in Macomber v. Godfrey, the court agreed with plaintiff that the water

in question was a "watercourse" although before leaving defendant's property, it

spread out over the surface and, thus diffused, flowed over the entire length of

plaintiff's property. The court stressed the fact that the water flowed in a well-

defined channel before spreading out and eventually converged again into a chan-

nelled flow. But the interference with the flow was occasioned, not by defendant's

improvement of his land, as is frequently the case where diffused surface water is

involved, but by reason of the total abstraction and utilization of the water as

water in defendant's brick business.

A possible reconciliation of the cases is that where the disputants both de-

sire to use the water, the court will tend to find a watercourse, whereas if the

conflict is between the right to improve land, as by building thereon or filling it

in, and the right to water, the bias of the court will be in favor of the former

and hence the court will tend to find mere diffused surface water.


The statutory definition is reminiscent of the language of the cases and would

probably be looked upon by the court as a codification of case law, rather than a

modification of it. If anything, the reiteration of the word "definite" in the

bill would tend to result in less water being classified as a watercourse than at

present; the result of this, of course, would be to restrict the applicability of

the Act.

3) "The term "diffused surface water" shall mean water occurring
naturally on the surface of the ground other than in water-
courses or lakes or ponds." *7/


Massachusetts courts do not seem to have formally defined diffused surface
waters, but simply cite instances of it -- rain water and melted snow -- on the
waters, but simply cite Instances of it rain water and melted snow -- on the

surface and also that held in damp and swampy ground.


For the most part, the negative, general approach of the statute and the

affirmative, particular approach of the present court decisions will reach the

same result. The advantage of the first approach is that by comprehending all

water naturally on the earth's surface and not included within the other specified

categories, it brings all such water within the scope of the Act. The danger is

that it will throw into the unregulated class of surface water a class of water

which the legislature may have overlooked rather than intended to be there and

which, on principle, ought not to be there. A case in point may be that of spring

water issuing from the ground. Since not itself a stream in a "definite channel"

nor a lake or pond, it follows that it would be classified under the proposed law as

"diffused surface water". This result seems innocuous enough where the water

spreads out over, and infiltrates into, the ground. But it seems clearly undesir-

able where the spring is the source of a stream. There may be other waters which

should not be thrown unthinkingly into the category of diffused surface waters.

The better view would therefore seem to be the recitation of illustrative instances

and a general phrase which would permit the courts, by applying the maxim of

ejusdem generis, to similarly classify other similar instances.

4) "The term "riparian land" shall mean land lying (a) within
the watershed of a watercourse or lake, (b) contiguous to
such watercourse or lake, and (c) consisting of the small-
est tract held under one title in the chain of title lead-
ing to the current owner."


Of the three elements in the proposed definition, one seems urimown to present

law, one a relatively recent innovation, and the remaining one the definition im-

plicit in the cases) extended to lakes as well as watercourses.

The Massachusetts courts have apparently never considered limiting riparian



land to the smallest unit held under one title. The statement of facts ordinarily

does not disclose whether or not the case is one in which the argument could be

urged; even when the facts are such that this seems probable, the argument appears
not to have been made. While the way is thus clear for Massachusetts to incor-

porate this concept into riparian law by judicial action, this seems highly


The core concept of riparian land under Massachusetts case law is simply land
abutting a watercourse. On to this, in 1913, there appears to have been grafted
the limiting concept of the watershed. Although the innovating case involved

use of water by a riparian owner on land outside the watershed and although the

question was fully considered, it is nevertheless the fact that the limitation
8_ 86/
enunciated by that case was dictum. And though since cited with approval,

it has not yet attained the dignity of holding. Thus while it seems probable that

the Massachusetts courts wouldtoday follow the 1913 dictum that land outside the

watershed is non-riparian, they could decline to do so without having to overrule


Massachusetts courts speak of land abutting a lake or pond as littoral, rather

than riparian. The legal consequences will be discussed below.

"Section 5. LIMITATIONS UPON WATER RIGHT. The right to the beneficial
use of water shall not be deemed to include the right to use
more water than is necessary for reasonable beneficial pur-
poses nor shall it include the right to resort to unreason-
able methods of diversion. No such right shall be deemed
valid unless the right to construct diversion works or re-
servoirs upon the land required therefore shall have been ac-
quired in a lawful manner, provided that the term "acquired
in a lawful manner" shall be deemed to include the acquisi-
tion of such rights by adverse use and adverse possession."88/


The Massachusetts statement of the rule of reasonable use requires, often


explicitly and always implicitly, that the quantum used be held to the practicable

minimum, and that the manner of diversion be such as to inflict the least possible
injury on other riparians. But for any use to be actionable by a riparian, it
must actually injure him; injury, however, does not insure the existence of a

good cause of action.

Thus a farmer who, owning only one cow, takes from a stream water enough for

ten is quite clearly abstracting an unreasonable amount if he lets the surplus or

otherwise wastes it. But even if the proportion of the amount withdrawn to the

total flow is such that the current is substantially diminished, a lower riparian

who is not thereby injured, for example a non-user, cannot maintain an action. On

these same facts except that the lower riparian is a user and injured, he would

probably be permitted to recover as a matter of law. He could also recover, again

as a matter of law, even if the amount abstracted were just sufficient for the use

to which it were to be put, if that use was outside the watershed.

Theoretically, the lower riparian who fails to assert his legal rights in

either of the two latter situations loses it if the wrongful use continues for
93/ 2:/ 25/ 6
twenty years, under claim of right, peacably, and without interruption.
For, given these elements, the law conclusively presumes a grant. In addition to

thus enlarging the quantum of his water rights by prescription, the riparian may,

by acquiring a prescriptive right in the land of a neighboring riparian, exercise
those rights more advantageously to himself. A prescriptive right, or per-

mission, is for instance necessary should a riparian desire for any reason to di-

vert from some point on his neighbor's land, rather than on his own.

Practice accords well enough with theory, insofar as the common law has not

been modified by statute, when the right in question involves some use of another's
land. The cases involving an alleged paramount right to the use of water only
are, however, somewhat confused. In Thurber v, Martin, plaintiff, a lower

riparian, claimed, by virtue of 50 or 60 years enjoyment, a right to the natural



flow of the stream, without any interruption or disturbance from defendant's mill

located higher on the same stream. Decision was for the defendant on the ground

that plaintiff's priority of occupation gave him an exclusive right to the use of

the water to the extent occupied, but that not even 60 years occupation could de-
prive an upper riparian of his right of reasonable use. In two earlier cases,

mill owners, one plaintiff and one defendant, successfully contended an increased

use of water for irrigation purposes by upper riparians was an actionable inter-

ference with their rescriptive rights derrogating from riparian ones adverse to

them; it expressly declined to overrule an earlier case which held that since

diversion for irrigation was a reasonable use, the injury thereby dealt another
irrigator was damnum absque injuria. The possible distinction of a preference

for millers as against farmers is without verbal support, in fact without any sup-
port other than that which the facts of these cases afford.

The judicial doctrine of prescription is generally inapplicable where the

riparian's unauthorized use of his neighbor's land consists in flowing it; that is,
creating a mill pond or reservoir by holding back the water by means of a dam.


This section 88 of the proposed law does not itself make any changes in sub-

stantive water laws, but rather reflects the changes which would be made by other

sections of the Act. "Water right" and "right to the beneficial use of water"

comprehend not only the riparian's right of use, but his right to sell his rights

in the water and the right of his purchaser to the use of the water and, when this

is viewed in conjunction with the second paragraph of section 2 (Class B rights),

it becomes clear that the limitations of quantity and of method imposed by section

5 are precisely the same as to use on non-riparian as on riparian land, and, seem-

ingly, to use outside the watershed as inside it. This change, and also the impact

of treating ponds and watercourses as identical will be considered in greater detail



The intendment of the Act regarding adverse use and adverse possession is

unclear. One possible reading of it is that prescriptive rights acquired on or

before the effective date of the act are protected, but that such rights may not be

acquired thereafter. Such a construction would have the advantage of widening the

applicability of the Act without having to compensate individuals. But this view

would raise some impediments to the most efficient use of water unless the officials

administering the Act were given an additional power. This power would be to de-

termine the optimum point -- without regard to ownership of property -- for divert-

ing water for the licenses purpose and requiring the licensee to take his appropri-
ation from that point. Absent such a provision, the preferable construction would

be that no cessation of acquisition by adverse use or possession was contemplated,

the sole function of the proviso being to qualify "lawful" without regard to time.

This section would, as it now stands, probably be construed to repeal by

implication the present statutory system of mill rights, at least insofar as that

system authorizes the erection of mill dams and provides an exclusive remedy for

owners whose land is injured, primarily by flooding. As was pointed out in
this right becomes increasingly significant for the

maintenance of a utilizable stream flow as swamp and other lands which served as

natural reservoirs for streams are made unavailable for that purpose by filling

of the land, cultivating it, or by other improvements to it.

"Section 6. EXEMPTIONS. The provisions of this Act shall not apply to
the impounding, by an owner or lawful occupant of land, of
diffused surface waters occurring on such land for the pur-
pose of using such waters on such land." 106/


Rights to surface water as a scarce resource appears never to have been the

subject of litigation in Massachusetts. In fact, only in one case is it clear



that either party was utilizing the water as an economic good. Typically, the

proper classification of the water will be an issue. One litigant will have

asserted a right to the free and unobstructed flow of water onto his land or from
it. His claim will be based on the contention that the flow is a watercourse

to which he is riparian and will be opposed on the ground that it is mere surface

water, rather than a watercourse. That the battle is almost invariably pitched in

the arena of fact, rather than law, probably reflects the well-settled state of

this body of law.

The black-letter law is that the owner of property may capture or impound the

surface water on his land and may deal with it as his absolute property without

incurring liability to his neighbor for any injury resulting frma the latter's
deprivation. He is not liable for any injury caused by diffused surface water
which flows from his land onto his neighbor's. This immunity persists, though

one proprietor by changing the shape of the watershed alters the flow of the water
which, only as altered, damages another. Where a proprietor acts directly on

the water (rather than indirectly affecting it by some act done to the land) he will
be liable for resulting injury. Thus, if the water impounded for use should
escape onto the land of another, or should an owner accumulate the surface water

from his land in an artificial channel and discharge it onto the land of another,

that other may maintain an action. In the first case, it will be immaterial to his
right of recovery that the defendant exercised due care, and in the latter case,

it would seem to be immaterial that the water if left in its natural, diffused state

would from natural causes have drained onto his land, and that the discharge caused
no actual damage. One exception to liability for the discharge of accumulated

water exists, i.e., where the discharge is onto a natural watercourse which would

naturally have received it and which is capable of receiving it though the volume

and flow is thereby altered.

One salient feature of these black-letter rules is that one rule only is

I ~


founded on the assumption that water is an asset. The remaining rules, like the

cases, seem to view this water than as a liability, hampering the use or improve-

ment of property. Here again, however, the possibility broached above is perti-

nent; a new light is shed on these facts if in the close case, the case which is

litigated, the issue of watercourse or surface water is resolved at least in part
by the nature of the conflicting interests.

Noteworthy also is the almost complete absence in these rules of any reference

to the law of watercourses and of any relation between them. An occasional opinion

will evince an awareness of their close physical relationship, but even these

apparently find no great difficulty in perpetuating the dichotomy between the

physical, and legal -- which of course is not to say that the results reached are
necessarily wrong.


The sole effect of Section 6 is no effect; the law of surface water is left

as it was and where it was. In this particular instance, having the substance of

the law untouched seems less serious than leaving its administration in the hands

of the court. This is not simply an invidious comparison of courts and adminis-

trative agencies. The channeling of the preponderance of water questions, prob-

lems, and disputes away from the court and into an agency can be expected in time

to produce a considerable fund of expert knowledge, particularly as to factual

matters, in the administrators, and an approximately corresponding diminution of

such knowledge among the judiciary. This growth and decline seems especially

significant in this area where the recurring question is one of fact, This ob-

jection could be obviated in large part if the judiciary interprets the Act --

which would not require much straining -- to contemplate the agency as the primary

tribunal, for the resolution of such factual questions at least. It would seem

preferable, however, to make this explicit in the statute rather than leaving it

to judicial self-restraint.



"Section 21. APPURTENANCE OF WATER RIGHT. The right to the use of water,
whether vested as provided in Section 7, spra, or acquired
after the effective date of this Act under the procedure pro-
vided herein, shall be appurtenant to the gross area of land
to which the right relates and shall pass as an appurtenance
with the title to such land; provided, that a Class B vested
right or an appropriative right may be reserved in express
terms in any instrument by which title to the land to which
it is appurtenant is conveyed, or such water right may be
separately conveyed. If such a right is not mentioned spe-
cifically in an instrument by which the land is conveyed, the
burden is upon the one who makes the conveyance to prove, by
a clear preponderance of the evidence, that the parties did not
intend that the water right should pass with title to the land. 12/


Massachusetts cases speak of the riparian's right to the use of the stream
flow as being an inseparable incident of his ownership of land. All that this

apparently means is that specific mention in the instrument of title is not a
prerequisite to the existence of the right; and that the burden of proof is on

the one disputing its existence. The riparian can, however, convey his water
rights while retaining title to the land. In such case, the grantee's right
is measured by the grant rather than the doctrine of riparian rights. The

converse -- conveyance of land reserving the water rights to the grantor -- is
equally permissible.


No substantive change in the present law would be effected as to those rights

which would be classified B rights by the proposed bill. But whereas the present

law permits the complete severance of riparian land from riparian rights, the pro-

posed bill would make class A rights an inseparable incident to the ownership of

land. As in the case of vesting, this seems unimportant with respect to use for

domestic purposes, and for fishing or recreation. Again as in the case of vesting,

this seems important and unwise with respect to power. This underlines the view

stated earlier that power should be changed from a Class A to a class B or appro-

priative right.

22 -r

"Section 23. ABANDONMENT OF WATER PIGHT. (a) A Class B vested water right pro-
vided for in Section 7, supra or an appropriative water right
acquired under the provisions of this Act, shall cease upon the
abandonment of the right.

(b) The abandonment of any such water right shall be
evidenced as follows:

(1) Intent to abandon the use of water, whether ex-
pressly declared or reasonably implied from the
acts of the user, accompanied by actual cessa-
tion of the use of the water; or

(2) A continuous failure, for a period of five years,
to effect a beneficial use of the water, in which
event the intent to abandon to the extent of such
failure shall be conclusively presumed; provided
no intention to abandon shall be presumed either
where the available water supply is inadequate to
enable the holder of the right to exercise the
beneficial use of water contemplated thereunder,
or, in the case of irrigation, where due to
climatic conditions irrigation is unnecessary
during the period of continuous failure to effect
use of water.

(c) The abandonment of only a portion of a water right
shall not impair the validity of any portion not abandoned.

(d) The Commission, upon its own initiative if it has reason
to believe that a water right has been abandoned, or
upon the petition of an interested person asserting cir-
cumstances reasonably indicating that a water right has
been abandoned, which petition shall be verified under
oath, may order the holder or claimant of the water right
to show cause why the right should not be declared to
have been abandoned. Notice of the time and place of
the hearing shall be given by registered mail (return
receipt requested) to the holder or claimant of the right
and to the petitioner, if any. If at the conclusion of
the hearing the Commission finds that the right has been
abandoned, the Commission shall file a petition in the
Circuit Court of the county in which the point of diver-
sion or the greatest area of land to which the right re-
lates is located, in Chancery. The petition shall pray
the court to find and declare the water right to have
been abandoned, and shall name the holder or claimant of
the water right defendant. The filing of the petition
and of a certified transcript of the proceedings of the
Commission shall have the effect of the filing of a com-
plaint in a civil action with respect to the title to

1 i I _


rea property, and process shall be issued and pro-
ceedings taken in accordance with the procedure pro-
vided by law for such actions. The Court shall have
jurisdiction to hear the matter and to issue a decree
based upon its findings. Appeal may be taken to the
Supreme Court as in other civil cases. In the event the
decree shall declare the water right or any pert thereof
to have been abandoned, the Commission shall procure from
the clerk of the court a certified copy of such decree and
shall enter the same upon the record of such water right
in its office. Provided, however, the provisions of this
subsection shall not limit the power of the Commission to
cancel permits under the circumstances and procedure pro-
vided in subsections (b) and (c) of Section 16, supra."


The riparian may grant away his common law water rights or he may suffer them

to be encroached upon by adverse use but he can no more lose them by abandoning

them than he can the title to the land itself. His statutory rights under the

Mill Acts are expressly made subject to loss by abandonment, and the possibility

has been recognized by those courts which have had occasion to consider the ques-

ton. The statute does not, however, specify the acts which are to constitute

abandonment; the courts have phrased the requirements in such vague terms as un-

equivocal manifestation of intent. The implication that they will not be alert

to find abandonment is borne out by their refusal to so find on evidence of non-

use for many years.

EFFECT OF PROPOSED LAW In general, the provision of the proposed bill would re-

medy defects in the present law. In addition to abandonment by express or implied

intent, it specifies an objective criterion 5 years of continuous non-use will

generally terminate the right of use. Five years would certainly seem to be long

enough for anyone to gny dog in the manger.

The flaw in this section of the proposed law again relates back to the clas-

sification of rights. For the provisions for abandonment apply only to Class B.

rights. The right to the use of water for power would thus not be merely difficult

to lose as under the present law, but would be impossible, even theoretically.

_ ~____ __ ~


(b) ~Vy person injured by any violation or threatened
violation of this Act (including, without limiting
the foregoing, any use of water that impairs a valid
right of use of water) may institute a like proceeding
to enjoin such violation or threatened violation.

(c) In any suit authorized by subsections (a) and (b) of
this Section, it shall not be necessary for the plaintiff
to allege or prove that there is no available adequate
remedy at law for such violation or threatened violation
or failure to comply."


A riparian who is prevented from making reasonable use of the stream by

another's unreasonable riparian use or his non-riparian use whether or not

reasonable may recover compensatory damages.

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