Symposium on the Law of Water Allocation
in the Eastern United States
October 3-6, 1956
Cosmos Club, Washington, D. C.
Session on Saturday morning, Octo' e. 6
legislative alternatives, further studies needed, etc.
(Prof. Jacob H. Beuscher, Chairman)
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THE CONSERVATION FOUNDATION
30 East 40th Street
New York 16, N. Y.
1. SATURDAY MORNING SESSION
October 6, 1956
The Symposium on the Law of Water Allocation in
the Eastern United States, sponsored by the Conservation
Foundation, convened at 9:10 o'clock a.m., in the Assembly
Hall, Cosmos Club, Washington, D. C., Professor Jacob H.
Beuscher, University of Wisconsin Law School, presiding.
CHAIRMAN BEUSCHER: We will pick up from where
we left off last night. We got started under the general
topic of "Legislation and What Kind." I thought we might
perhaps want to continue.
We had, as you recall, a suggestion about cut-off
provisions in legislation, if adopted. I am sure that
someone may want to talk to the point of whether we ought
to have any legislation. You are privileged to do that.
Also, I think we will all agree that perhaps it doesn't make
too much logical sense to talk about legislation until
we talk about the second thing, what studies do we have,
what do we know now, what do we need to know in order to
Let's start off. All these things are inter-
related, and I think they will knit together as we go along.
Let's start off, if you don't mind, with the topic that is
down here in our outline, "Possible Legislative Alternatives
I thought perhaps it might be well to just point
out in the beginning that we had in the course of one of
our discussions a suggestion that perhaps all we needed
to do in some of the riparian states was to enact a
statute that would say, "The reasonable use doctrine
shall prevail as to surface water, ground water, possibly
as to diffused water," and also say to the Court, in
effect, "There is such a thing as a hydrological cycle.
Pay attention to it in deciding cases."
Is there anyone who wants to say anything about
that as a way of going at it? I suppose you could go on,
if you wanted to, and say, "Well, these ambiguities, some
of them at least in the riparian doctrine, might be cleared
up in this kind of statute, as to whether, for instance,
one who owns merely an easement along the bank can pump."
This might raise some constitutional issues.
That is a possibility.
MR. MARQUISt I think perhaps I may have made
the suggestion. I would say that in my mind it would not
represent any final solution of the problem, but that it
might be helpful as an interim step, at least in states
which are not ready to go further at this time.
MR. TRELEASE: Do you mean legislatures which
are not ready to go further, or the courts which are not
ready to go further?
MR. MARQUIS: Or the people which are not ready
m3 to go further.
MR, TREEASE: I wonder if you wouldn't raise
much the same due process arguments that some of these
more drastic proposals would raise?
MR. MARQUIS: I would doubt it. I would think
myself a mere redefinition of common law and terms which
other common law jurisdictions recognize would not raise
the due process question.
MR. TRELEASE: Unless you get the person who
claims that he always has had this right to the natural
flow and now the legislature has taken it away from him.
MR. HABERW I would like to speak to that. As
far as I know thus far, and maybe Mr. Ellis can correct
me from his experience, in the eastern states there is
very little real natural flow doctrine. There is some talk
of it in various early opinions, but wherever you get
recent cases, you get a breaking away from the natural
flow doctrine, and the only thing that you can say is that
in some states, like Mr. Ellis illustrated in North
Carolina, there are a number of decisions which are not
clear, which contradict each other, which seem to apply
natural flow to some areas and not to others. But I don't
think that any court in an eastern jurisdiction would feel
compelled by the force of its precedent to say that we
cannot possibly sanction this statute because it violates
a right which is so clearly established in our state.
So, if the legislation has any kind of merit at
all, as this probably would have, I don't think that you
are going to get a court to put it back up again in the
MR. TRELEASE: I don't know of any western
experience either, except that the California court had
to decide whether or not an amendment to the constitution
was constitutional once.
MR. HABER: As you know, the background of that
was that you had very strong economic interests dependent
on a particular doctrine of natural flow, which as far as
I know, doesn't exist in any eastern state. The only
interests that would be dependent on that, as far as I
know, would be to direct the issues. They are protected
by independent doctrines. They don't have to rely on the
They can, in most instances, rely on public
rights to fishing, hunting, that exist in the so-called
public waters. There may be some recreational interest
that might be pushing for an extension to smaller waters,
but the natural flow doctrine wontt help them very much,
because all that would mean is that the private landowner
in those smaller streams could use them for fishing, or
whatever purpose, and they are not too concerned about him.
There may be some landowners like that that would be
interested. But I don't think they constitute a very
important economic interest.
CHAIRMAN BEUSCHERt It may be, if I can break in
for a minute, Dave, that we ought to bring about really a
consummated wedding here of the second-class citizens and
the first-class citizens. We have plenty of room up here
for the observers; we urge you to participate,
Maybe what we should do in looking into this
question of what kind of legislation, it may be that we
ought to get to the $64 questions Should we shift to the
appropriation doctrine or not? It seems to me before we
start talking about that in general, we might ask some of
our friends from the West to describe how this so-called
appropriation doctrine is really operating down at the
level where the water is distributed.
To that end I have asked three members of the
group to sort of prepare themselves and say ten minutes'
worth on this general question of the appropriation system
in operation, and anything else they want to add. I will
ask these men to talk, and then we will open the discussion
to anyone who wants to say something. Mr. Huffman, would
2 you like to address yourself to that?
MR. HUFPMAN; When Professor Beuscher asked me
if I would like to aske a few remarks this morning, I
_1IIIC------_l~-- I_ ~
wondered a little bit what I might summarize which would
be worth taking the time. I wondered a little bit if I
was in the same position of a friend of mine who gave a
talk recently in a drought area of the Southwest, and
said afterward that when he came out of the auditorium he
heard a couple of farmers talking. One said to the other,
"What did you think of that?" And the other replied, "I
think a half inch of rain would have done more good."
So, I will try to make a few points that may have
some application to this application of eastern water law.
As far as I am concerned, I suspect I would have to admit
that I may be more of an institutional economist than a
theoretical economist, such as you heard in action yester-
As an economist, my first concern turns out to
be, at least pretty quickly, how do we go about implementing
any economic model we put together; how to apply it to a
I suspect that the Western United States then
does illustrate some of the ways in which an institutional
pattern might be developed in a peculiar set of problems.
In this respect, I find myself again emphasizing
the point that I think I have emphasized a couple of times,
that sooner or later whatever you come up with is going to
have to provide for implementing and probably encouraging
group action. In that respect, I was encouraged,at least,
that I wasn't too far off in my own thinking of what kind
of problem you might face in the East when I heard Mr.
Jordan say last night that you were going to have to be
concerned with storage and transmission of water. I had
kind of assumed that. I thought maybe that was so because
that is the problem in the West.
It seems to me that is one of the major problems
involved in this thing of increasing the economic supply
of water. If that is true, then you face very much the
same sort of problem that was present in the evolution of
western water law. In the West long ago the people
recognized the importance of group action and have organized
their activity with respect to water to promote and en-
courage group action.
So, in trying to think how any kind of change in
water code or a new water code might work, I think first
of all I have to put it in that context. Specifically, I
thought I might prescribe for you, very briefly, one of
the operational situations in Montana where we have an
operating state agency in the development and use field
in water. This is not a state agency that administers
water rights I might add that this particular state
agency which develops water projects, actually operates
under what I consider to be the most cumbersome administrat'
system for the water rights themselves that you find any
place in the West.
As you all know, the western appropriation
doctrine is ordinarily divided by most people in that field
into three subdoctrines. One they call the California
doctrine, which is itself a riparian doctrine, with all the
modifications attached to it. The second one is the
Wyoming doctrine, which is based on the point that the
constitution of Wyoming and some other states that have
the same approach say that the water belongs to the state,
which means that you have to go to a state agency to get
the right to use water. Then there is a third one which
is called the Colorado doctrine, which says the water belong
to the people. That is the one that is in the Colorado
constitution, and also happens to be in the Montana consti-
tution. In Montana it is operated this way: That anybody
who wants any water can go out and appropriate it.
In the beginning they did it by hanging a note
on the bush alongside the water that they were appropriating
so much water, and then they started in to record it. In
Montana we have no central system for water rights. They
are recorded in the county. Yet within that sort of frame-
work of an extremely cumbersome management system, we have
a state agency which has succeeded in carrying on a
considerable amount of water development over the last 20
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years, and has done it quite successfully.
Our Montana water conservation board was an
outgrowth of depression drought conditions, and may account
for the fact that most people who look at our legislation
say it is the most liberal enactment that the state legis-
lature ever passed. They passed it under the pressure of
depression and drought. In reading it, as far as I can
see, there is literally nothing that the Montana Water
Board cantt do in the water resource field if they want
to. So far, they have limited their activity to irrigation
development and the building of some small municipal
water systems for unincorporated towns and for providing
engineering help for certain public activities, including
primarily the building of REA projects.
In the process they have provided primary water
supply and supplementary water supply for approximately
450,000 acres of land, which I would guess offhand is about
5 times what the Bureau of Reclamation has developed in
the State of Montana in the same period in the way of new
land, in spite of all the emphasis that goes on our
federal activity. They have done it by a combination of
federal grant funds during the drought days. That was the
beginning. There have been none of those for at least the
last 10 years.
Other than that, it has been done on outright
_ ~~ ___1___11 ____1_~___
appropriations from the legislature, which are subject to
repayment, plus water bonds, which have no security except
income from the project. They are not a lien against the
state itself. They have no income except from the projects.
As I say, this has operated pretty successfully.
I want to illustrate a little bit some of the things they
have been able to do under the appropriation doctrine which
indicate that we are not entirely right when we say that it
is inflexible. When I first started working very closely
with the problem of water law as related to economic de-
velopment, I was much more concerned about the problem of
inflexibility than I have been recently. In fact, I have
written some things saying that it was highly inflexible,
that it tended to restrict development, which it does, but
to the degree of the tendency is the important thing. I
said it, and Mr. Fisher, in his paper, quoted one of them.
I would say as far as the appropriation doctrine
is concerned, it is still an evolving thing, as I think
was pointed out here yesterday afternoon. There are changes
being made in it in almost every year in the way it is
applied and the things done under it. It turns out, as
very often happens, that it may be a much more flexible kind
of thing than many of us have thought at one time. The
sort of thing that Mr. Fisher outlined in his paper is
certainly appropriate criticism of the way in which it has
operated, and in particular the things that were involved
in this discussion that went on yesterday under the term
I looked back at my copy of the paper which I
read on the way back, Mr. Fisher, and I found when I came
to the waste, inefficiency of water use that I had forgotten
all about it.
I am glad my friend Tim stayed with it yesterday
until at least two groups got the terminology together. It
has shortcomings,.but most of it is related to the in-
efficiencies in water use. I think they could come under
almost any kind of system. I think it turns on enforce-
There have been cases where use has indicated it
has considerable flexibility. I could give you examples,
For example, the Montana Water Board has carried on some
highly flexible kinds of development under the appropriation
.. doctrine. I might say that the Water Board is. in exactly
the same position as any individual, as far as the law is
concerned. If it wants to carry on a development, it has
to go to the state and file a water right. That is exactly
what it does, In the process, they have done some pretty
effective shifting in the uses of water. They have de-
veloped water for other than agricultural use, We have one
stream on which they have carried on all the development,
~II- --~ _____~_~~_~,~ -~"7
The Federal Government has stayed out of it in a sort of
gentlemen's agreement, in that they will leave it entirely
to the state agency.
It is fairly typical, I think, in most of the
western streams that you do find the prior rights down-
3 stream. That probably results from the fact that in settle-
ment, in many cases, the people approached the stream from
.. downstream and worked up. You would find the last
settlement upstream. The upshot of that is that they have
the later rights, and they have to let the water run down
to the people below. On this particular stream that was
true almost 100 percent. The State Water Board developed
a dam about half way down the stream. So now we find the
people with the prior rights get the stored water, that
the people from above the dam get the stream water, but
the people above the dam who use the stream flow are the
ones who pay for the stored water. It is an exchange
.. proposition. So, you get more flexibility than you might
This particular operation also ties in with
another point which was raised here, in that they operate
on the basis of a water sales contract. This is interesting
because it also reflects a little bit the sort of problem
in the psychology of people that was implied here a couple
of times, at least, because the people in Montana, working
with their state water board are accepting and using a
system which they have fought and rejected, as far as the
Federal Bureau of Reclamation is concerned, namely, a system
of water sales contracts rather than definite-set water
The Reclamation Act of 1939 provides in Section
9 (e) for contractual arrangements, sort of public utility
kind of sale arrangement, and it has been fought in most
places in the West because it doesn't give the kind of
assurance and certainty that people think they have to have
in their water rights. And yet, it has operated very well
at the state level. A couple of years ago I went to our
state Reclamation Association meeting, and like all good
organizations, when they got done they passed a series of
resolutions. They passed a resolution which in every way
condemned 9 (e) contractual relations with the Bureau and
praising to high heaven the state Water Board. I asked
the chairman of the Resolutions Committee, a good personal
friend of mine, "Fred, how can you do it?"
He said, "Well, some of these people don't really
know the difference, and we have to keep everybody happy."
So, the point is, that I think they are willing
to accept it because it is a state level arrangement and
that they think they can keep control of it, where they are
not so sure if they have that sort of arrangement with the
As far as the local level operations are concerned
they operate through water users associations, who operate
the systems entirely. They do nothing but store or pump
water and deliver and get paid for it. The interesting
thing, too, is that these people who are so concerned with
water rights have nothing except what they term eventually
after 20 years a paid-up water contract, which is apparently
only a fractional interest in a water right which was filed
by the state water board. So, they don't have what they
are willing to and still do occasionally go out and shoot
each other over. It has been only a year ago last summer
that we had our last one that got shot in the dispute over
water. They don't always go into court; they are in too
much of a hurry sometimes.
They work pretty well for achieving higher uses
in agriculture. We have one state water board storage dam
out of Bozeman where I live. The city has contracted for
water out of that storage. In fact, they contracted when
the thing was started some 10 years ago, even though they
didn't know when or if they might need the water. They have
just bonded within the last two months for a million and a
half dollars for pipeline and settlement basins to bring
more water from that particular storage because the city
has outgrown its water supply.
11__1___ ________1___1_~_ __r____ll~~
-- ~~1---`-~1-1--~-~---~-~ i
The city had resold each year the water they
were holding back, They had signed a purchase contract,
and they sold it every year to agricultural users.
I am not sure that on the local level this kind
of arrangement is the best, because in some instances it
may be necessary for a local organization to have a bonding
and taxing power in order to do the job adequately, because
it was found pretty early in Western development, at least,
that you didn't go very far without the bonding and taxing
The first Irrigation District Act was passed by
Utah, but it didn't have the bonding power and they threw
it out in 2 years and passed another. There is the problem
in bringing in other users than irrigation.
I would suggest these points before I close, that
certainly no constitution is not subject to change. We
have had all of them that I have ever heard of and they
have been amended. That goes all the way from the national
Constitution down to some local club. Usually, if you
find a club with a constitution that hasn't been amended,
I suspect it is because they haven't met since the meeting
at which they adopted the constitution.
It means that things of that sort, I think, have
to be changed as the demands indicate desirable. Whether
or not any state could go to the extent that Professor
Wollman suggested yesterday, from a practical standpoint,
ia certainly highly doubtful in terms of just turning
everything over and the state taking over ownership, control
and distribution of water. That isn't to say there might
not be some cases where that might be the desirable
solution* But you have to fit these things in with what
One of the books that we read quite frequently in
#... our Western country is by Walter Prescott Webb, called the
"Great Plains." He argues that the Federal Government made
the biggest mistake in its career when it didn't retain
title to all the water at the same time it retained the
title to federal lands. If it had happened at that time,
we might accept it just as naturally as we accept that sort
of system. It depends on what has happened,
I personally am a strong believer in a middle-
ground approach to most of these problems. I think that is
where we find the answers to most of them, I don't think
we find them very often on the extreme, regardless of which
extreme it is. That is one reason I thought I would mention
the points regarding the Montana Water Board, not because
it is a perfect or ideal situation, although it is studied
by a great many other states, has been by most of the
western states; and as recently as about 3 weeks ago one
of these federal research workers that Harry Steele
... mentioned last night was in to Montana studying it. But
I mention it as a kind of intermediate sort of thing in
which you have a state institutional arrangement that seems
to be working and getting water resources developed and de-
livering the water and solving certain problems at an
in-between level, between no organization of that kind and
complete state ownership and domination.
The fact that they do use a water sales contract
indicates somebody has to figure out the pricing system
and make some determinations of price. Some things are not
given to regulation by price, as we know. When our legis-
lative groups make decisions or pass those decisions on to
groups, maybe with certain restrictions as to how much
freedom they have in making the decision, the point still
is that somebody has to do it, and an operating agency
like our state water board has to do it. Other public
agencies that sell water have to do it,
If I am right in assuming that you are going to
increase the economic supply of water through storage and
transportation of one kind or another, somebody again is
going to have to set some sort of price on this water. It
doesn't quite fit the free market system because, as was
indicated here yesterday, it isn't in the same sort of
category in moving as freely as other goods.
I would just mention in that connection, because
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it comes down here on this question of studies, that we
do have under way, it has just barely started, a study in
which we are attempting to find out what sort of water
use patterns you get as a result of different kinds of
We have just about everything under the sun in
the State of Montana that is in existence in the way of
pricing systems. We are taking all of those pricing
systems--this applies, however, only to agricultural use--
and trying to get the information on the amount of water
use, and also in order to make sure that the water use is
a reflection of the difference in pricing arrangement. We
have a real inter-disciplinary study going, because we are
relating, as far as possible, the agricultural use to the
kind of crops grown, and that kind of thing,
We have such arrangement as a set price for a
certain amount of water, a set price for a basic amount
of water, plus an excess charge for water over the base.
We have within that, we find, a situation where the excess
charge is less than the base charge, where it is equal to
the base charge, greater than the base charge. We have
this occurring under situations of limited water supply
and unlimited water supply. Out of it we hope will come
something that might be a clue in this question that you
still have, that somebody has to go through the administration
____~~_ _1~____1___________1__1_______I_ 3
pricing procedure if you are going to do this sort of
I would add this to what Professor Haar has
said, that I agree with what you said 100 percent yester-
day, that these modifications in this evolutionary process
that is going on in the appropriation doctrine, in the
West, has no monopoly, You may be able to pick them up
and apply them from the riparian doctrine, or modifications
of it. If I didn't think that, I wouldn't be outlining
some of this here,
Just one more area of comment. This is prompted
by some of the things that were said last night, which
might be best summarized, I guess, the way somebody
summarized it, by saying we should make haste slowly. I
would add to that that some people think that the water
problem is a bad dream and they will wake up some morning
and it will be gone. I don't think that will be likely to
When I talk water problems in the West, I always
start off by summarizing the population growth, the per
capital use for water, but then I add one more thing, that
all my data that I can get from the population experts and
the people I talk to tell me that they are forecasting
another population explosion, they call it, in 1965, or
thereabouts, which means simply all these young people who
--I---- I------------LII--------~II ___~__~---~
are already with us, who are creating a school problem now,
are going to get married and raise a family. I always tell
people if I could go into the diaper business wholesale, I
would be all right. How slowly you can make this haste
is the real question.
I would add only that if it is a matter of delaying:
action or hoping that no action will be necessary in order
to preserve certain values that you hold now, including
the individual freedom of action, I would suggest this
additional point, that too much delay may require the kind
of action at a later date that results in even more restric-
tion and even less individual freedom of action in the long
CHAIRMAN BEUSCHER: Thank you very much. I wonder
if Mr. Trelease would add some words of wisdom about the
appropriation system, which seems to me to grow more and
more complicated, to a fellow like myself who is completely
ignorant of it except what has been told me about it.
Among other things, it develops that the prior
appropriator may be a state water board that gets prior
right to tremendous amounts of water and then proceeds to
parcel it out on sales contracts. That, at least, I got.
MR. HUFFMAN: They have to take their turn,
CHAIRMAN BEUSCHER: Once they have gotten their
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MR. HABER: Do they have condemnation power?
MR. HUFFMANt No.
MR. TRELEASE: We have heard a good deal about
the problem as to whether these laws do any good.
Mr. Wollman said in a private conversation, he
expanded the thought, "Look at California," he said. "I
think you will agree that California has the worst messed-up
water law imaginable."
I said, "I agree." He said, "Look at the State
of California and the amount of development it has," that
perhaps water law doesn't have much effect upon water use.
He didn't convince me, but Mr. Huffman almost has.
I was doing a little legal research in legal
history and found that the first Montana water case was a
case involving a man being tried for murder. He shot
another man for defending his water, but the judge said
that wasn't a defense for homicide.
I think there was a tendency in the early part of
this discussion to assume the very best about the law of
riparian rights, and I thought the very worst about the
law of prior appropriation.
I would like to start off with the thought that
Perhaps we should look for the best, not the worst, in
appropriation. A great deal has been said here about the
flexibility of the riparian doctrine, the ability of the
courts to move with the times, to make social adjustments,
to balance the equities.
It sounds so nice I almost forgot the California
cases in which the riparian doctrine was applied in an
area of water shortage. There is a great deal of talk about
compensation and the marketing operation, laissez-faire
under riparian law.
I am not sure that that is exactly right, because
many of the cases that I have read on western riparian law
have been something like this: Here is a person who has a
use for which he has made a very considerable investment,
It happens to be a non-riparian use that he is enjoining.
At first, at the free will of the downstream riparians who
insisted on the natural flow. Later, if a reasonable
user, I mean, a person wants to come along and make a
later reasonable use of it upstream or downstream, a
riparian is not in too much better position because there
are quite a few cases of a riparian who has made a
reasonable use, and then that use or a large part of it is
taken away, because other users want to make reasonable
That, it has always seemed to me, was a defect
in the riparian law and one which has been slid over in
the talks here.
The Chairman asked me if I would expand a little
bit on my remarks about the ability of appropriation law
to expand and be flexible. I think a good deal has been
said about that. I would like to look at it from the legal
side, not necessarily what has been done on it, but to
point out that the law itself is capable of change. It was
a western common law, originating in the traditional way
we think of the common law of England originating, from
the customs of the people.
It was, I think, eminently suitable for a pioneer
economy, and the pioneers acted that way. The first miner
to take water from a living stream over to a former bed of
that stream, the bed that in geologic ages had been the
location of the stream when the gold was laid down and was
not dry, he took it, and he would shoot anyone that tried
to take it above him.
I think you will remember the lawlessness of the
California gold camps, as Brett Harte has written them :up
in our literature.
As the miners became more orderly people, as
more and more of them came, and I think we should remember
that they were mostly Americans who would come from the
East and what we call today the Middle West, they got tired
of shooting each other and being shot, and they formed
these mining districts. These districts were pretty much
_ __ __
autonomous, and made regulations.
These regulations first laid down the rule of
prior appropriation, that the fellow who first located a
gold claim got the better right to it, that who first took
water to his gold claim got the better right to it.
There is some doubt in my.mind as to whether or
not we can make an absolute transfer from that beginning
to the agricultural picture, because I am not sure that the
agriculturist has really picked up the customs of the
miners. I think it went something like this The first
man who came into a valley and pulled up his oxen
said, "I think it looks nice here," and "I think I would
like to build my house over in that shady grove over there,"
and he staked his homestead, and then he dug his ditch
and scraped the sage brush off and plowed his land and
planted his crops, that the next man to come into the
valley had to take a second choice of location. He had
to take the second water right,
I think there may have been two origins of
prior appropriations, one in the mining fields, and one
less publicized by the homesteaders.
But greed and ignorance and inefficient methods
developed in the system, and the law was changed-by the
statute, it is true, into the so-called Wyoming system
of state regulation of water rights, a system evolved by
an engineer, Elwood Mead, and I think it has kept pace
Water exchanges, such as Dr. Huffman mentioned,
water importations, the old rule that a person is entitled
to the stream conditions as they were when he initiated
his appropriation, has dwindled away to a rule that an
appropriator is entitled to water but a junior appropriator
may substitute any other water for it, may bring water
from another source, another ditch, may dry the stream
up as long as he makes some provision, as long as the
prior appropriator does get his water,
ThAinstitutional developments that Dr. Huifman
has told us about, the water users' associations, are an
,, -- -- i i ii
outgrowth of the mutual water company and the irrigation
district, and again today the conservancy districts have
been growths of institutions that have fitted in with that
*--- 1111 Si....i- "111 ii i *- ,- ,---,--
As I said, Wyoming initiated this system of state
control. Does that mean there was no laissez-faire and
freedom in the market? I think there still was, with a
minimum of regulation.
The project which looked most attractive, most
feasible, which could attract capital to it was first
built. That, it seems to me, is at least a fair argument.
Does the state control it? But rather curiously, most
appropriations for municipal water, of irrigation, power,
for mining, happen to coincide with the development of the
state, and therefore they were in the public interest, and
that is why Mr. Fisher finds so few cases in which appro-
priations have been denied on public interest grounds.
Most of them so far have been, it has been
believed by the administrators, in the public interest of
the state at the time the appropriation was made,
Dr. Wantrup went into the, I think, greater
opportunities for laissez-faire and the transfer of water
rights. Here again I ask you to look at the best in
western water law. If you can draw any lessons for the
East, if you can use any part of it, use what you can.
Don't adopt Arizona's law that says you can't absolutely
change an irrigation use to any other use, or to any other
place unless the land becomes completely unusable, because
of seepage. You wouldn't want that piece of law. Don't
put the baby out with the bath, because there might be
other portions of the Arizona law which might have a real
advantage for you,
I would like to mention a new change which is
coming about. It was really foreshadowed a long time ago,
when in 1890 the first Wyoming state legislature.gave the
engineer the power to deny any appropriation where there
was no unappropriated water in the source. That was first
misinterpreted because they thought of low summer flows.
At a later time it was practically thrown away.
Anyone who filed an application for permit was
granted the permit, and the permit became a sort of hunting
license. If you could find the water, why, then the state
would say, "It is all right for you to use it."
There are many so-called flood water rights as
a result, rights so Junior that only in times of extreme
high water can they ever be used;
I could cite you the case, I won't bother with it,
of the Laramie River which flows past my door. I will
simply say that if you made a study of the Laramie River
Basin, and said this is based on prior appropriation law,
I assure you that you would probably flee that law. You
would say that you wanted no part of it, if you could look
at the history of that basin.
Our lawmakers and judges can see that, also. We
are trying to revitalize that idea.
Mr. Harris of New Mexico gave us one example of
that in the Lee Basin, where attempt is made to divide that
water up so there will be enough for all. There are other
examples of that. The districts that Mr. Huffman mentioned
frequently operate this way: The district either gets a
prime water right and the actual irrigator gets only a share
in it, or a group of irrigators who organize a district
will assign to that district their water rights, so that
the district becomes finally the owner of all the water
rights, and it has a sort of single lump right then and
the individuals get an equal share of it.
We are trying to do that now. For instance, we
are trying in the West now to develop supplemental irriga-
tion. We know that the unrestricted use of the doctrine
of prior appropriation has led us into trouble. Me have
these junior rights who are unaecure because of what Dr.
Wantrup calls the physical insecurity. There is not enough
water for those Junior rights, and practically none for
the flood water rights.
The answer is to by new institutions and new
development bring in supplemental water. Sometimes we can
do it simply by storage, equate the flow, not really equate
it so that it flows throughout the year evenly, but hold
bac water so that it may be delivered in the periods of
time when it is needed.
Sometimes water is imported into basins. The
law of prior appropriation, with the irrigation district
added on to it, and these new engineering developments, is
gradually approaching then a system of equal rights and
a common supply.
Now, you are going to say, "It is gradually
approaching riparianism." No, I didn't say that, because
these are fixed rights in a non-fixed supply, where the
riparian right is an unfixed right. There is always the
danger that the equal right will become less and less and
less as more people crowd in to the use picture until
finally there is not enough for all.
I say that the market and the laissez-faire
system does not work too well in that situation, if I
understand my economics. I think that is where the law
of prior appropriation is moving to.
Maybe you want in the East to move toward that.
Perhaps one method that you might consider is the so-called
proposals that are the main subject of discussion here. I
think it should be noted that this substitution of appro-
priation for a system of riparian rights is a proven system
in South Dakota--well, it is not proven yet, but in Kansas,
Oregon and Nebraska, the substitution has been successfully
There has been a great deal of talk about the
confiscation, the destruction of unused riparian rights.
I don't think these proposals really propose such a destruc-
tion or confiscation. The unused riparian right is not
destroyed. For the most part, we find you still have water
excesses here. The riparian then can become an appro-
priator. He now exercises his right in a certain manner,
and he is given a time limit within which to exercise it,
not the fixed time limit that Nelson told us about of two
years to vest his right. He has an additional time. How
long is it? He may exercise his riparian right by appro-
priating until the time comes when by so using the water
he will deprive another person of an investment because of
the prior use.
That, I think, in the East might be quite a long
time. I am not quite sure, therefore, that the talk about
destruction of unused rights is correct.
If appropriation is moving toward a system of
fixed rights in a known supply, I think maybe riparianism,
too, is moving in that direction. You may not want to
travel the same road. Maybe the district idea is better.
Maybe a district for the Paw Paw, within the framework of
, I could see a district in which perhaps a
majority might assign all riparian rights to this district
organization, and perhaps we might thereby freeze out a
few dissenting minority, just as we insist that a dissenting
minority be included in such districts as you are familiar
with, the paving district, the sewer district, that you
are members of willy-nilly, you have no choice.
That very well might do it. Then you might have
an organization with taxing and bonding power to equate the
flow, to take that winter storage of the Paw Paw and use
when it is needed in the summer months. Maybe that is the
eastern solution, and a study might var wa1 ha mde then,
not necessarily further study of appropriation law, but
of appropriation institutions, the institutions that have
been developed in the West to solve their problems may be
instaititionral. that the mlpht be more acceptable than
I would just like to leave you with that thought
for further study.
CHAIRMAN BEUSCHER: Thank you very much. I wonder
if we have comments or questions?
MR. THOMAS: I would like to mention one item about'
the agricultural use that might fit in with what Professor
Trelease has said.
As some of you may know, the first use of irriga-
tion was before the discovery of gold in California and
was by Mormon pioneers. In that development you wouldn't
get much of the history of the disputes. Primarily, they
were a religious group that came in. They were anxious to
have additions come in. To the extent possible, there was
group collective action and helpfulness. There were dis-
putes. They went to ecclesiastical courts, before Utah
became a state. That is one thing I think that has been
very important in making the appropriation system work. The
idea of irrigation districts seems to have come-after that'
doctrine. Actually, the irrigation districts were preceded
by church organizations, communities; in other words, to
the extent possible that water might be stretched or might
be replaced to work to the advantage of the newcomer, still
recognizing that the oldcomer couldn't be pushed out. There
was that addition.
I would like to take a minute to mention one
particular river, like the Provo River, to show how
flexibility has developed in large part without legal
notice, but also to a good extent by actual recognition. It
is a stream that rises in the mountains and comes into
Utah Lake. It has a series of appropriative rights which
have been recognized in a decree of court dating from
1821 by classes rather than individuals, but still they are
all in very good order.
In the 1821 decree they recognized several
hydrologic factors, that they could irrigate in the mountain
regions what might be called waste. That would increase
the late season flow down to the plains to the west of the
mountains. That was recognized. There was a case where
what might have been termed waste, looking at the indivi-
dual spot, turned out to be a gradual seepage which came
down to bring up the August and September flow and to be
of benefit to another part of the area.
Another recognition was that the oldest rights
____ 1~1~_ I __
which were closest to the stream could very well get water
that was what we call return flow from some of the higher
canals that were really developed separately, subsequently
and were junior rights. To the extent possible, those
oldest rights really get waste water from junior rights,
That is recognized in the decree. It is going to happen,
anyhow, hydrologically. If they had their full initial
rights, plus the waste water from the higher canals, they
would be flooded out.
Then, in time, reservoir storage has been put on
the river. But it has not been by the river water users,
which include not only irrigation but municipal interests.
The Bureau of Reclamation has put the Deer Creek reservoir
on the stream. It imports water from another stream. One
of the requirements is that the natural flow in the Provo
will continue undisturbed to satisfy the decree's rights.
This reservoir that comes in on top, then, is
just a floating reservoir. It is working under contractual
arrangements. Some of the people who are Provo River
water users also have contracts which the Bureau of Re-
... clamation supplies. Some of that supply goes to Salt Lake
In those contracts I don't think there was a
question at all as to which use to serve* The Bureau was
anxious to sell shares because there is a repayment involved
in that dam. Salt Lake City purchased about half of the
shares. The Salt Lake City Metropolitan district is
essentially only the city. The county at that time was a
group of farmers with an adequate water supply and were
not interested, and now the county is a group of suburban-
ites who are interested in water. That is not working out
to advantage because there is the water to be sold. These
new users who were not representative at the time the dam
was built are getting their water. Of course, they are
paying to the city, and that is going to the Bureau There
are contractual arrangements.
I think basically the requirements in the system
of appropriation are that you have an assurance of water.
They have tried to get an assurance of water. It is only
when they don't have that assurance of water that they want
the assurance of a water right. Then you get into trouble.
But to the extent possible, the development has proceeded
and your appropriation system, as opposed to legal cases,
has gone along with it and grown with it and shows flexibili
to adjust to it.
CHAIRMAN BEUSCHER: There is a factor that hasn't
been mentioned, just shifting the scene to the eastern
states for a minute, in connection with riparian doctrine,
I am pretty sure this isn't a major thing. But I grew up
in a county which decided that the banks of the few-streams
in the county ought to be converted into public parks.
And now that planning has been accomplished over a period
of about 35 years, and most of the land along the streams
is in public parks. Industry is back from the stream a
considerable distance. Big industry is pulling water out
of the ground, and you have in some places there, at least,
a pretty serious problem as the water table goes down.
It is possible that if we had a little looser
system of law under which industry could have gotten some
of the water out of the stream, and some out of the ground,
that the balance would have been preserved in a better way.
At any event, this idea that it may be that you want a
substantial area along your rivers used for public recrea-
tional purposes is something that I think ought to be said.
I am speaking of Wisconsin, Milwaukee County.
MR. MALONEY: I would like to say one word about
the district approach. I have to agree with Mr. Trelease
that this may well be the solution to the problem, but I
don't like to see it labeled an appropriation institution
because of the fact that we have thousands of water district
in a state like Florida which started off mainly as.b
... districts, because our primary problem was one of disposal.
They have been switching to more irrigation dis-
tricts. Iowa has, and they are not necessarily an appro-
--11-1~-~1- -_-__11__1__ 1~--- II_ _._~_____~~__._ _1 11
MR.. HUFFMAN: It is an example that can be
applied. But the idea of conservancy districts in the East
has been as a disposal device. That is true even in
New England, where it is used for flood control and sewage
disposal. It is only recently that it has been used as a
device for supplying and delivering water.
MR. MALONEY: When they are used that way, by
custom rather than case law, they are dividing up the
supply. That is happening in Florida, and we have no
cases adjudicating what they can do within the district,
but they have taxing power. In fact, they do divide the
supply among the people taxed. Generally there they do
not use the natural streams. They do it by way of irriga-
tion canals. The law is not quite as well settled as to
what you can do there, and they simply divide up the water,
MR. TRELEASE: I didn't mean they were an appro-
priation institution. It might well fit into a riparian
system. I think one other thought on that: Legislation to
clarify case law might be to add to that some assurance that
the storage of water for later use was a proper riparian
use, because that was an unsettled question in western
riparian law. The California court said you could not do
If that approach is taken, perhaps that might be
combined, that particular clarification.
MR. HUFFMAN: I wonder if you need clarification
on freedom for transporting water as well as storing? I
MR. TRELEASE: I presume you mean by that the
western system of private eminent domain powers for ditch
rights. That might well be,
MR. MALONEY: We have had that in Florida since
the passage of our constitution. There have been rights
that were put into our first constitution which provided
for drainage of one man's land across another for private
appropriation. These concepts are not used--they are Just
used in a different way, I think.
CHAIRMAN BEOSCHER: Are there other comments?
MR. FISHER: The other day when Mr. Daniel asked
about these bills, statutes to facilitate storage, I think
I was the only one to get a crack at them. I think there
are more people who may know about them. Maybe Harold
Ellis may know more about the Kentucky, Indiana statutes
and what is being considered in other states to supplement
the riparian case law in some way by trying to encourage,
facilitate storage of water.
MR. ELLIS: I would visualize this type thing as
being a very important adjustment that might be made in
eastern water law, to the extent that it is not clear that
that can be done, which I would say is the case in a great
m38 bulk of the eastern states.
The Kentucky, Virginia and Indiana proposals
along this line each take a somewhat different line. One
simply declares that this can be done as a rule of law.
So far as I can see there is no necessity to obtain a permit
from anyone, It simply declares it is a rule of law. The
Indiana proposal also ties to this the requirement that
you obtain a permit from a state agency before you go ahead.
The Virginia proposal puts this in the hands of the local
courts. It doesn't say before you go ahead you have to go
to the local court, but if you want to obtain more assurance
that you can do this, you may step into the local court
and have a hearing, have other interested riparian owners
come into the hearing and get a decree from the local court
that you may go ahead.
The Virginia proposal would limit the use of the
stored water, however, to riparian land.
There is a question on that point as to whether
other states would want to put such a limitation, since
we are dealing here with water, that if it is taken out of
the stream in periods of high flow and no one is damaged,
I think there is a good argument for saying why not make
this available for use on non-riparian land also.
The Kentucky and Indiana proposals are not so
clear on that as to whether you could use the water on
non-riparian land or not. Possibly the courts would rule
that there is a similar limitation there.
Another thing that comes up in connection with
the Virginia bill is an attempt to define riparian land.
I think we need to pay particular attention to this, if
... the decision is made, for the time being that you stay with
some element of the riparian doctrine.
In the Virginia bill, riparian land is defined
for the purposes of this bill--whether it would apply also
to all riparian use in the state, I doubt. It says, "for
the purposes of this bill that it would be defined as
land within the watershed of the stream, but that all land
under common ownership which touches the stream would be
riparian land even though it had been bought in separate
It is not entirely clear from the wording of the
bill as to whether this means riparian land in such condi-
tion at the time of the enactment of the bill or whether
there is a possibility that in the future someone could
expand their riparian land by simply having a non-riparian
owner buy up riparian land and attach it to his land and
make that whole tract riparian land for this purpose.
I think that is an important consideration,
because if it does mean that, practically all land in the
watershed of the stream then could eventually become riparis
land for this purpose.
Is Mr. Daniel here?
[There was a cry of, "He has gone."]
MR. ELLIS: He would certainly have something that
he could add about the Virginia bill, if he were here.
They did, I understand, get into a bit of a prob-
lem over the fact in this connection that a stream was
defined so as to lead to the possibility that almost any
stream which had water flowing in it only a few months out
of the year might possibly be construed as a stream. There-
fore, it is of grave concern to a number of farmers who
want to build farm ponds, as to whether they would have to
run into a local court in order to go ahead, even though
they were only trying to put a dam across an essentially
CHAIRMAN BEUSCHER: What does this Virginia bill
say about transportation of water? I am thinking about
municipal water supply and the fact that a municipality
might own a piece of land bordering on the storage
facility. Could it pump a dozen miles away?
MR. ELLIS: I do not believe so, as I recall the
bill. It limits it to the riparian land. If you expand
the concept of riparian land so it can be expanded to
include the whole watershed, why, it might be that the
municipality could somehow obtain the rights to do that.
A related provision that is very important in
the East is not simply the question of putting a dam
across a stream, but also piping or pumping water into an
offstream pond during the periods of high flow. The
Virginia bill says nothing about that, as I recall it.
But I believe the Kentucky bill Coes provide that, either
the Kentucky or Indiana bill does definitely provide for
that type of possibility,
Again, in the East I would say there is a
question in a number of states whether that can be legally
done. Of course, if no one is actually damaged by this
procedure, there is not apt to be many lawsuits arising
over it. So, this whole procedure is more a matter of
making the rights somewhat more secure than they are now.
I should add in connection with all three of
these bills that I have been discussing, they all talk
about not interfering with other uses of the stream. Well,
the Virginia bill in particular says that an overriding
condition apparently, even after you obtain the decree,
would be that no one is damaged by this procedure.
So, there is some possibility that a man might
have to pay damages even though he has obtained this
I did not complete my discussion of the diffi-
culties they got into in connection with this Virginia
m3 to go further.
MR. TRBLEASE: I wonder if you wouldn't raise
much the same due process arguments that some of these
more drastic proposals would raise?
MR. MARQUIS: I would doubt it. I would think
myself a mere redefinition of common law and terms which
other common law jurisdictions recognize would not raise
the due process question.
MR. TRELEASEt Unless you get the person who
claims that he always has had this right to the natural
flow and now the legislature has taken it away from him.
MR, HABERt I would like to speak to that. As
far as I know thus far, and maybe Mr. Ellis can correct
me from his experience, in the eastern states there is
very little real natural flow doctrine. There is some talk
of it in various early opinions, but wherever you get
recent cases, you get a breaking away from the natural
flow doctrine, and the only thing that you can say is that
in some states, like Mr. Ellis illustrated in North
Carolina, there are a number of decisions which are not
clear, which contradict each other, which seem to apply
natural flow to some areas and not to others. But I don't
think that any court in an eastern jurisdiction would feel
compelled by the force of its precedent to say that we
cannot possibly sanction this statute because it violates
bill, As I understand it, they have been pretty well taken
care of, because the Attorney General has interpreted the
bill to mean that it is not mandatory, and that therefore
the farmers would not have to actually obtain a permit to
build a farm pond. But that did have them bothered for
some time,until they got that clarified.
CHAIRMAN BEUSCHERt Do you have anything to add
to this matter of legislation?
MR. HABERi Yes, I would like to make a few
comments. I think we have to distinguish here between cer-
tain problems and situations which I think have been very
confusing throughout the country.
People have auked the question: Will legislation
produce water? The answer obviously is that legislation
in itself can produce it if it is development legislation,
appropriation of money for the development of water, and
that is part of water law.
If you are talking about water allocation legis-
lation, it 9bviously produces water for certain people at
The whole question of development and allocation
is an interrelated question, because if you have certain
types of uses along a stream, and let's say a municipality
needs an additional water supply, then there may be two
alternatives in certain circumstances, It may be possible-
to say that certain users along the stream should be cut
down or cut out and we should use the water that we have,
or it may be possible to say that we should develop addi-
tional water in order to satisfy the new municipal needs.
Those are two alternatives.
If you take this away from the static situation
of a particular time and project it into the future, then
these alternatives are future alternatives, namely, should
we allow certain uses to develop along this stream, where
we anticipate certain other needs, such as additional
municipal supply needs, or should we in our future plans
say that we should let these uses develop along the stream,
because in the future we want to develop more water for the
additional municipal supply needs,
Sometimes these alternatives are not even possible
because in certain areas development may be a completely
impractical alternative. The cost may be so prohibitive
that right at first glance you can see that it is not a
practical alternative. In other instances the cost of de-
velopment may seem feasible, but whether you choose that
particular alternative or choose the alternative of a
different pattern of allocation will depend on the specific
cost, namely, without a relative cost of developing more
water in relation to the total productivity that you are
going to achieve as against the cost of leaving the water
supply as it is and the total productivity that you are
going to achieve when you cut certain uses out.
Into this picture you also bring the possibility
that certain users might be able to go to other sources of
supply, but they will go to other sources of supply only if
you anticipate these alternatives. If you tell them that
they cannot use this water, they may go somewhere else
where it is possible for them to use this water.
If you don't say anything, if you do not have
any kind of regulation, they will start using this water
along the stream, and a certain pattern will be established,
and then later on when additional needs are developed, the
only alternative might be additional development or buying
out the investments of these particular users who have
established a use pattern along the stream. Tihajutgain
becomes an alternative cost question. Do we want these
use patterns to be established on streams even at the risk
of having to buy out their investment when future needs
develop? The cost picture will change then.
Before we were talking about the alternative cpst
of development versus the alternative cost of leaving the
supply as it is, with the alternative productivity of one
pattern of allocation against another. Once you have a cer-
tain pattern established, then you get the question of
alternative cost of development as against alternative oost
of buying out the investment of other users,
There are human factors that are involved. tao,
that cannot be always described in terms of money. When a
farmer settles in a community and becomes dependent on
irrigation--well, we were talking yesterday, of course, in
the real arid West about the situation in New Mexico where
you have to relocate farmers,
Relocation is, I imagine, a distasteful thing
to most farmers even though they get paid for it. I don't
think they like it. I think it is a human cost that we
cannot easily measure in money terms.
From all these points of view, the question
arises to my mind as to what extent, what degree you can
anticipate water use patterns and antrMpat. thAAf relative
costs of development and different allocation patterns,
relative productivity, and regulate therefore the use
pattern somewhat ahead of time,
My point of view therefore is that if it is
feasible to do that, and there we need the help of
economists, but it is not completely an economic question,
I think the people who have said, "Well, who is going to
say what is the optimum benefit," or "What is the optimum
use," do have a point.
I don't think economists can always mathematically
determine what the optimum use is, I think what they can
do is supply us with alternative patterns where they will
use their imagination and instruct us, give us some insight
on the consequences of alternative patterns. But the
ultimate question of what is the best pattern is a matter
of democratic choice. It is a question of what the people
want. So that when you are talking about optimum use
pattern, we are not talking about a mathematical formula.
We are talking about an intelligent choice,
We cannot make an intelligent choice unless there
are some people around, and you will admit that those
farmers are not going to figure it out for themselves, or
most ordinary citizens, that some people must be around who
will present us with alternatives and with the consequences
of the situation so that people can make a choice.
So that in water the same thing ought to take
place that takes place in city planning in order to make
it a little better. But it wontt be much more perfect,
namely, there will be a group of people who will get
together after long discussion and make u some kind of
pattern, alternativepattern and then the pressure groups
will get to work and the democratic principle of choosing
the better use pattern will get to work in the light qf
a proposal, or in the.light of alternative proposals.
What we need then, I feel, as far as legislation
is concerned, that can do any good at all, is a planning
agency in the water field that develnpa alternative una
patterns. Then the matter of actually putting these use
patterns into effect is a question of choice of administra-
tion. It is possible, I think, to even do that through a
juicial system, It is possible to have what I called
yesterday "stream allocation decrees," and to bring the
administrative agencies into the court to make suggestions
to the court aa to alternativejusJatterns.
I donlt think it is the best
it is very cumbersome and probably very expensive. If the
agency itself has the power to grant rights and permits on
the basis of such a use pattern, it would probably be a
simpler procedure, with the court simply having a power of
granting, perhaps, the final decree, so that it may cut
into a completely arbitrar action of the a ency.
Of course, no matter how much democratic process
operates, no matter how wise the economists are, they are
going to make mistakes. We are living in a very dynamic
society. We have noticed that after the Second World War
that that is so, and it may go on for quite some time. We
cannot anticipate all of the developments, not even in a
general way, and certainly we are going to make tremendous
mistakes when it comes to spAneif' noti1nso So theGea-ut
be built into the system some way of changing the pattern
midstream. In other words, these investments will sometimes
r ~ ~~ ~ '" '
have to be affected. We will have to probably change our
. mind as to certain established users. and make them get
off the stream.
But the idea of planning is to keep that to a
minimum, When it does occur, there should be some compen-
sation built into the legislation.
There comes the other suggestion that the compen-
sation scheme doesn't necessarily have to be a full market
value scheme. The question was raised yesterday by some
of the economists What do we really need? How much
guarantee do we really need not to discourage investment?
That has to be found out. We know in other fields, such
as in the public utility field, investment has been en-
couraged even though the way in which profits are figured
are not in terms of any market value but are figured in
terms of some percentage return on investment.
I think a compensation scheme might be worked out
on that kind of basis, and sometimes prove less costly when
you have to make changes and alterations.
The procedure, of course, that is suggested here
does not foreclose by any means the possibility of group
organization, districts, or anything of that sort. Where
it is accompanied by enabling legislation that will allow
groups of users to organize group associations, enabling
legislation that will allow state development agencies to
_ 1__~~ ____1__11_1_~~__~__~1__~___111--~1~--_-_
dispose of water under contracts, this scheme can be very
well combined with Dr. Wollman's and the kind of thing
suggested by Mr. Huffman, because the state agency and the
users association would simply come within the general
water plan, and their rights would be subject to the appro-
val of the overall planning agency.
So, in pricing ttchnique that might work. There
you have a compensation scheme necessary because you are
removing old users. That may be a way to handle it, because
such an agency through charging for contracts would be
able to pay for that much more easily than an individual
This is a general suggestion. I could go on
into more detail.
MR. THOMAS: Would you have an alternative for
each, say, 10 million-gallon day of supply? Is that what
you mean by "alternative"? As the supply varies you can
come up with a different alternative?
MR, HABER: There you have situations of extreme
... fluctuation. Is that what you were talking about?
MR. THOMASt Yes, and in many places we dontt
know what the supply is. It would be necessary, then, to
draw up one plan for the lower guys and one for the higher
MR. HABER: This is a factual question, again
To what extent is the lack of knowledge due to uncertainties
that God made; to what extent is the lack of knowledge due
to the lack of data in fact finding?
MR. THOMASt Wouldn't it be possible to have
MR. HABER. If the lack of knowledge is due to
fact finding, I think one of the first steps that would
have to be undertaken is the fact-finding process. But
this time it would be geared to the problem of allocation.
I think what Mr. Harris was talking about yes-
terday, namely, the fact that in certain areas the aquifer
was studied and studied, that they had a problem and
didn't know the answer, probably stemmed from the fact
that the studies were not geared to a particular control
scheme. Therefore, the only time you could ask the
question that the hydrologist had to answer would be when
they had some particular control scheme in mind.
This is another advantage of the idea that I am
suggesting, that it will make these studies much more
We are getting basin studies and aquifer studies
all over the country. These things are multiplied. We
still don't know to what extent these studies will really
answer the crucial allocation problems when they come up,
because we dontt have any scheme of allocation in mind,
not even hypothetically,
This idea where a planning agency will try to
draw up an alternative water use pattern will also mean
they will have to ask the scientific agencies very specific
questions. It will steer the scientific agencies into
their very specific fact finding which is relevant to the
MR. MOORE: I would like to amplify and stress
the relationship Dave brings up here with this matter of
basic information. It seems to me that if our attenfion,.o
focused in the future to limited areas or broader areas.
as the case may be, in this matter of determining what the
maximum potential supply is, what the present supply is,
what the present uses are, what the future uses may be,
based on the present pattern of use, the present growth
development in the area, then between those several factors
to look and see what the future requirements may or may
I don't think anyone is going to forecast what
the population changes are in Long Island. Who would have
guessed that Long Island would have had the development
that they have had, or any other similar area. It is going
to happen, I think we all realize.
If the planning agencies, legislative groups,
economists, the engineers, or whoever is involved, the
recreationalists, if they have some total measure of what
the future holds, this is perhaps more particularly true
of the East than of the West, then they can guide their
sights in the direction, as Dave points out here, of trying
to anticipate or trying to direct the uses in logical,
at least as logical as those things can be, patterns.
On the other hand, let's don't forget historically
that where there has been an agricultural use of water, and
when an industrial use is substituted, we don't change
perhaps the quantity of water required. It is put to a
different use. You say that you have displaced the agri-
cultural use by an industrial use. By and large, those are
voluntary changes on the part of the individuals and not
by any directives along the line. The farmer who sells his
property for industrial development, and there is water
available, that is part of the sale. There is no problem
with that farmer.
You don't buy it from a farmer who doesn't want
to sell. We find that every day in our business, If the
farmer wants to stay there, he stays. No matter what you
offer him, he isn't interested, At least today there
are still sufficient alternates along the line where you
can pick up some farmer who is willing to sell, if it is
involved in a farming area.
It doesn't appear that we have any serious -conflic
alongthat line with respect to water supply or use for
utilization. It is a substitution affair, As your urban
developments come in and the farmer is displaced or
irrigation-type uses are displaced, it seems to me you have
Certainly the consumption per acre is increased
as your urban and municipal type supplies come in. There
again, if you know what the future potential supply amounts
to, you can plan, as Mr. Jordan, I am sure, can more
clearly demonstrate than myself, what that requirement
would be and how to go about it on a long-term basis.
It seems to me that our aim both legislative and
in many other ways is to direct our attention back as far
as we can to get the fundamental information about what we
are dealing with and what that amounts to now and in the
CHAIRMAN BEUSCHER: Thank you very much, Mr.
Moore. I wasn't going to indicate to you that there was
something on the other side of the board until we have
coffee. There is. I think you will find that we, as one
would suspect, have talked about several of these points.
Legislation has led us into immediately considera-
tion of studies, what kind, and into some problems of
inter-governmental relations, which are over on the other
side of the board.
When we return from coffee, and before we go on
to other subjects, perhaps, Mr. Marquis, if you would just
review quickly some of the suggestions that you made, or
all of them that you made in your Tennessee law review
article, and anything else you want to say about specific
legislative alternatives, that would be good, and then we
will move on.
[Mr. Bergen made announcements.]
[A short recess was taken.]
CHAIRMAN BEUSCHER: Charles Haar has a plane to
make, and Mr. Marquis has yielded to him for a few comments,
MR. HAAR: I want to catch the plane. In fact,
after what I have to say, I may have to catch the plane.
We were trying to determine, when Mr. Marquis
yielded to me, whether this was a prior appropriation or
under the riparian system.
I think it is a little bit of either, which may
be the conclusion that we have all been driven to here,
and that is, both systems assumably have the same end, the
optimum, the allocation or most efficient use, the way the
economists like to put it, or lack of waste, the way Mr.
Fisher likes to put it.
And we are struck by the ingenuity and the
adaptiveness of both systems to work from bases which
would seem to the'observer who just-read the statute or
just had a knedledge of how it worked, would be impossible
systems for people to live under.
That may be the basic end result, listening to
Professor Trelease's and Mr, Huffman's eloquent defenses,
or, advocacies of the prior appropriation system, and
recalling to some extent what I said yesterday, and I think
I fell into the same ;error, it reminds me of something
which Mr. Justice Holmes once said. I wish I could quote
it with the same pithiness that he used, but it went like
this That it wasn't enough for the young man that you
agreed that his lady was charming and pleasant and pretty,
but unless you agreed that she was the most beautiful, the
most wonderful, most desirable creature that walked on the
face of the earth, he would fight you to the death,
And I sometimes get this feeling about the atti-
tudes of the different participants toward the water system
with which we have grown and learned to love, if for
nothing else, and they are like the experts, and like the
tax people who will never forgive the Republicans for this,
for having to relearn the numbers of the code due to the
change in the 1954 Act,. who would fear such chanese.
What I would like to say, since I am catching a
plane, is about the economists': contribution to the problem
of water allocation. I think that follows from what Mr.
__ 1 ~ __
Haber was talking about, the master plan, which when you
begin to poke around in this concept, which I think is
the necessary framework for organizing thought, as well as
organizing water, shows a lot of problems.
The inter-state one which we will get to when
you turn over the board, and the problems of how this
agency is going to take care of industrial location or how
it is going to deal with zoning, or it is going to end up
.. as the czar of the entire state's activities, are some of th'
.. other problems, I want to focus on the economists, .inoe
I am getting out of here.
The economists! problem, from the lawyers' point
of view, say, getting them as an expert or advisor to your
master planning commission is to develop certain systems
The papers-we had developed Ahvoive theoretical
frameworks of great complexity and ingenuity, most of which
I could not, as perhaps was too plain, follow, But the
interesting thing is that the framework did not lead to
the recommendation, I suspect, in both cases, that is, in
one instance you had a framework but with your problem of
riparianism versus appropriation you concluded that the
appropriation system is the better system because it is
the most flexible.
Why is it the most flexible? Not as a result
of the graphs or the oharts. o,.of the different mottoes,
but because:of what happens in practice, that is, that
outside the legal system, in a sense, in a world of private
agreement people buy and sell water rights, and this makes
it flexible. Admittedly, we don't.know if this is sOp. We
suspect it is so, but there are-no studies to demonstrate
that it happens more readily or easily in a prior appro-
priation than in a riparian system, or that the costs are
But you wonder how.it follows from the framework.
The same goes for Mr ,Wollmans suggestion. He coms up
with a theoretical framework, but his ultimate proposed
solution is something that even a lawyer would suggest, and
he might even dress it up differently. It does not flow
from the theory, as I see it.
I could not understand, for example, Mr., Harris'
reaction to Mr. Wollmants proposal.. It was a little
puzzling, and partly because perhaps it was presented by
an economist. If you contrast the system which Mr. Harris
is administering with the one which Mr Wollman is pro-
posing, it doesn't seem to me that there is very much
difference between the two.
This field in New Mexico and the way it is
administered shocks me as an American used to private
property rights, doing what you want with the land, owning
down to hell-and up to heaven, and 3b forth, but I suspect
'the same needs, .same devices might make. me think Mr.
Wollman's proposals are not as far-fetched o weird as
perhaps was suggested,
But then, again, Mr. Wollman's proposals could
have been dressed up a bit differently Had he put in a
legislative study of what is going to be the priority of
allocation, so that the administrator doesn't have this
unbounded discretion. Had he spelled out some aspects of
judicial review so that we were sure of equal protection,
equal applicability of the law, Had he worked in.some of
these constitutional, legislative and moral aspects to this
economic framework, it would have been a proposal which
would appear here as number three, and I think it was only
due to Professor Beuscher's desire to have the range of
the spectrum that it does.
I think it would have greater merit if it was
attached to these other institutional frameworks.
What this boils down to is an appeal to the
economist--this is an expression of ignorance, but I hope
at any rate no greater than that of the legislators or
the public--how do these mottoes and theories work with
respect to the particular hard problems that we are-dealing
with, say, the one that Professor Beuscher suggested as to
the water and. the farmers, or these other problems of prior
appropriation and riparianism.
Just one last word. I think it is not prior
appropriation versus riparianism. I don't think that is
the issue here at all. The issue, in a sense, is who is
going to get what. It is the farmer who wants to change
it in the East because he came last. If it was the
manufacturer who came late, he would be the one pushing for
prior appropriation in the East. This is something that is
natural and understandable, but something which has to be
worked with and resolved by the administrators.
It comes down, I suspect, to who is going to
wield the power that Mr. Haber suggested, the advantages
and disadvantages of each.
I suppose I have said more than enough.
MR. WANTRUP: I think one point of Mr. Haar's
statement requires a clear-cut reply. The economists are
reproached for not making definite suggestions. That was
not our assignment. My assignment, for once, was clearly
from the beginning to clarify certain concepts. If my
assignment had been to make definite proposals for legis-
lation, I assure Mr. Haar that I would have done so.
MR. HAARt I think that may be a very useful
MR. HUFFMAN: With respect to the quotation from
Justice Holmes, I think I said when I spoke a little bit
ago that I was a great believer in the middle-ground
approach, I think I also said that you never found the
answer to many public problems at the extreme; it is
generally by compromise. I say that only because I think
you said we were advocating appropriation doctrine as an
answer to all of these problems. That is not the case,
MR. HAAR: I included myself in that. I think
it creeps in as one of the assumptions.
MR. TRELEASE: I will admit there are other women,
but I still think she is the most beautiful and desirable.
MR. HAAR: It is good to get a statement on the
MR. MARQUISt I think the thing you asked me
first to do was summarize some of the possible alternatives
., which had previously been set out in the law review, of
which two of my associates and I prepared.
Perhaps I should start out with the safe caveat
which was included in that article, namely, that in sug-
gesting them we were not indicating advocacy of any of them
or the thought that any of them would be any definite
answer. We were at the time merely trying to point out
that there were possible middle-ground solutions and that
there was a middle ground that should be explored.
With that, the alternatives specifically were
these: First, and certainly it was not original with us,
it was lifted from the restatement of torts, it was the
thought expressed in that work by its authors, that the
reasonable use, riparian rights doctrine could be carried
considerably further than it has been, namely, that the
riparian right should be considered not positively as a
right to take a reasonable quantity of water, but rather
negatively as a right merely to be free from unreasonable
interference with reasonable use of water by anyone else,
either riparian or non-riparian.
The adoption of that, of course, would assume
non-riparian use of water on somewhat the same basis as use
by riparian owners. Whatever right the riparian possessed
would be freely severable from his riparian land and
I don't know, incidentally, that that would be
any great change from the law that very possibly prevails
in a number of eastern states.
A second thought that was spelled out was that
where a larger quantity of water might be necessary for use
by riparian owners, or where a non-riparian needed and
wanted water for a desirable use and could not otherwise
get it, as a second alternative, that there might be ex-
plored the possibility of extending the power of condemna-
tion to permit that private owner to get the use of the
water which he needed.
Of course, one runs up against, as we recognized
immediately, the question in many eastern states: Would
condemnation along that line be for a public purpose? I
suspect, however, that given the right legislative findings
of fact, taking into account a number of precedents, the
precedent, for example, that we have in Tennessee that,
just as an example, permits any landowner who hasn't
reasonable right of access to his land to go ahead into
court and condemn it, I suspect that might be a quite
feasible proposition from a legal standpoint.
Another alternative that we suggested as a pos-
sibility was the adoption of the California system, which,
as I understand it, and I am perfectly willing to be
corrected by those who know it better, preserves riparian
while at the same time giving appropriation rights on a
basis under which the riparian right is basically the
superior right to the extent that the riparian puts water
to beneficial use, but permits permanent appropriation of
water that is permanently surplus to riparian needs, and
permits temporary appropriation of water that is temporarily
surplus to riparian needs.
I want to come back to that California system in
just a few minutes. Then, as a final possibility, we
suggested something that we termed "modified prior appro-
priation." I am not so sure after listening to some of
this discussion that the use of that word "modified" is
quite correct. Basically, what we suggested was that if
it were thought desirable in the eastern states to go to
an appropriative system, one might consider putting these
limitations on it: Number one, we felt that some of the
difficulties that had crept into the western situation, as
we were able to discern them, simply from looking at the
literature, was largely associated with the inflexible
system of preferences which was written into the law of
many western states, and which putting agriculture first,
made it very difficult to change at a later time from what
might have previously been a higher-ranking use, socially
speaking, to one which had become a lower-ranking use,
to another which was economically more desirable at the
In that connection, among other things, we
suggested the possibility of looking at the rule in
Washington which permits the court in any given case to
decide what is socially the use that ought to be regarded
as the higher-ranking use.
We suggested also as another possibility that one
might consider permitting some state agency to look at
different portions of a particular state, and to say that
in this particular area, watershed, what you will, it looks
as though manufacturing is the thing that ought to develop,
and we ought to preserve the possibility of its develop-
ment, that over here that looks less likely and maybe
agriculture ought to be preferred,
One of the things that suggested that to us,
incidentally, was an existing law in North Carolina relating
not to the permit system but to pollution, which requires
the pollution control board in that state to look at the
different watersheds in the state on very much that
A second point we made, and I discussed it
somewhat yesterday with Dr. Wantrup, was the possibility
that instead of appropriative rights being given on a
permanent basis, they might well be given on a temporary
basis for a period long enough to permit the appropriator
to amortize his investment, but which would permit at the
end of the time the transfer of the right to somebody else,
if it were then found that a permanent economic and social
point of view of somebody else could make a better use of
Finally, we suggested that if a system of, as
we called it, modified prior appropriation was adopted,
in order to avoid constitutional problems, it might well be
considered desirable to permit some sort of compensation
to the holders of unused riparian rights, in view of the
fact that regardless of what they might get in the future
through appropriation, I think it is very likely that the
immediate result of the change would be to cut down the
value of their land. That might be done either through
direct compensation, as we suggested, from the state,
which then in turn might conceivably make itself whole by
charging appropriators for the right that it would grant
them, or it might be done as in fact Nebraska and Kansas
apparently have done, by giving the riparian owners some
sort of right for damages against the appropriator.
Those, I think, in summary, are what we suggested.
Now, Mr. Chairman, you also indicated to me, I believe,
before the recess, that in addition to outlining these
possible alternatives I might be free to make some general
comments. So, if you will, I will take advantage of that
and indicate some thoughts that have passed through my
mind during the last day or two, and particularly this
In the first place, I agree with the last speaker
to whom I yielded some time, that I think perhaps too much
may well have been made of this proposition of riparian
rights, on the one hand, appropriation, on the other hand,
never the twain shall meet.
I am inclined to think, on the contrary, that
the two may well be moving not toward the same point but
by something in the nature, at least, of a fairly broad
middle ground. For example, when Dr. Wantrup and I had
our colloquy yesterday on the proposition of granting
appropriative rights for a limited time rather than per-
manently, if he didn't agree with me he at least didn't
express shock. Later, when I talked to him, and he is
here and can defend himself if I misquote him, on this
system of preferences, he indicated to me that he thought
those might well go out the window.
MR. WANTRUP: In fact, I have suggested that many
MR. MARQUIS: I understand that. This morning
we have heard that users of western water are getting to be
satisfied with delivery contracts rather than with something
that is labeled a definite definitive right.
It may well be, as you suggest, Professor
Trelease, that it is an equal right among a number of
persons in a definite quantum of water. But it seems to me
that it is quite a departure from the first-come, first-
served proposition that those of us who have looked at
prior appropriation from the books have been led to believe
... is a basic tenet of that proposition.
It represents, it seems to me, change. It is
.... in the direction of correlative and equal rights in some-
thing rather than first-come, first-served, prior appro-
priator next, senior appropriator here, and so on,
-- --------- ------- --------------------
Again, I think that when you get to the point,
as both Professor Trelease and Professor Huffman did this
morning, in suggesting that water developed rather than
mere allocation of what water is available, is highly im-
portant. You again get toward something that has proceeded
both in the western and in the eastern sections of the
country, and represents, as Professor Maloney pointed out,
something in which both of us have long been interested.
I would say that if one is to become a proselyte
to the appropriation faith, so to speak, one is adopting
a creed that is undergoing some change and in the direction,
perhaps, of the middle ground that I was talking about.
If that is correct, I think it becomes then a
question for the East: Is it easier to reach that middle
ground by adopting something that is new and foreign to
our institutions, or do you reach it more easily by taking
what we have and what we know and building on it in some-
what the same general direction.
Finally, just one other thought that has run
through my mind, and that is, that whatever legal theories
may be adopted have necessarily considerable limitations.
Let me illustrate that by two examples. Number one is
this California situation that Professor Trelease mentions.
I may say that I have been in a number of these meetings.
I have talked with and listened to individuals from a
-~----~c -------- --- --------------------------,
'Z_______________ ____ ------_ ^ ^ ^ 1 ^ ^
number of prior appropriation states. They very naturally
look with doubt on the question of riparian rights. But it
has been my experience that they look with even more doubt,
if not antipathy, on the system of law that prevails in
I have not, unfortunately, had the privilege of
hearing any lawyer or engineer from California who could
answer some of the questions that that raised for me. As
was pointed out here earlier this morning, I don't know
what kind of a mess California law may be, but I do know,
as we all do, that the population of California is several
times that of any other three or four of the western
states, that in terms not only of population but of economic
wealth, of income and water development, its progress has
been phenomenal, if not the fastest of any state in the
How does one explain it? Well, if the legal rules
do leave much to be desired, they apparently haven't
interfered too greatly with results.
A second point along that same line I think was
made very nicely by Mr, Maddock last night. That was this
question of priority versus "highority."
Regardless of what your laws may be, it seems to
me, after listening to what has been said the last few days,
that prior appropriation, riparian rights, for that matter,
___ ____ _~I__ ___~_~I
is not a situation where you simply give a right to a
definite quantum of water and each appropriator gets it
according to a fixed priority. It seems to me that is
somewhat more theoretical than I have previously imagined,
.. I doubt if a water master or a ditch rider can
go out and simply, by the use of slide rule, omniscience,
or what-not, close those head gates in a way which bring
about just those mathematically perfect results. I suspect
there is a good deal of accommodation among the people who
may be concerned.
We are going to have that here in the East
necessarily under whatever system.
Again, just one illustration, and our problem in
this respect may be even more difficult than that in the
West. Take this matter of irrigation, In the West, it is
ditch- or canal-type irrigation. Whether mathematically
or not, your water master, at least presumably, does control
head gates. Here in the East, or at least in the Southeast,
what we have is sprinkler-type irrigation, and you can
visualize situations along a small stream where a large
number of individual farmers simply extend their pipe into
the stream and they can sprinkle to their heart's content
simply by flicking a switch on their pump or, Mr. Nelson
pointed out to me, they can even connect the system up
S with their tractors, and they can do it at nine a.m. or two
.__. ~_ __~_ ~__~ ~_~~1_XI~I__C ~~_1__
Assume they are granted definite water rights in
terms of quantity. How do you enforce it? Are you really
going to be able through not a ditch rider, but a pump
primer to control use of that pump or the use of that
tractor and say that this man shall not take any more than
X cubic feet of water or Y acre per feet, whatever the
measure may be, or that this man shall get no water until
the senior appropriator has gotten his first? I have my
I think that actually what you will get under
whatever system of law is a pattern under which, as was
said last night, that people take the water until their use
gets so unreasonable that their neighbors complain and maybe
go into court. I think the situation will be one of
reasonable accommodation whatever the laws may provide.
Those are some random thoughts, Mr. Chairman.
CHAIRMAN BEUSCHER: I have an answer to your
question, I think, Mr. Marquis, to what do you doin order
to make sure that the farmer doesn't pump more than he is
supposed to pump, three times more than he should, is -to
organize a real active Isaac Walton League in the vicinity.
At least, that is the way it works at home.
/ MR. TRELEASE: Or you can borrow from the West,
use the Montana system and just shoot him.
MR. MARQUIS: We have a tradition, at least in
Tennessee, as I indicated earlier, conceivably that might
lend itself to that,
MR. WANTRUP: I have just one short remark with
regard to the California mess, which has been mentioned
several times: Is it really a paradox there that in terms
of economics the law in California works well, and in terms
of the law, of which I am not a judge, it is a mess? Isn't
it one proof of the point I made yesterday, that the law
in California has adopted the economic needs?
MR. MARQUIS: I think it must have.
CHAIRMAN BEUSCHER: Not necessarily.
MR. WANTRUPt As I tried, in this article to which
you refer, I tried to defend the correlative rights doctrine
in down water, which is generally regarded as a mess, I
understand. I tried to show what at a certain stage of
economic development this legal mess has worked economically
perfectly well. I also tried to say yesterday that the
struggle between riparianism and appropriation has resulted
in California maybe to a legal mess, but to a highly
workable and plastic institutional system.
MR. HABER: I would just like to ride my old
horse again, and that is, that all these general statistics
about progress and development and working are relative
things. In other words, what we don't know about California
m72 is how much better it would have worked under another system
and how much less the cost might have been.
CHAIRMAN BEUSCHERs It is also just possible,
Dave, that sometimes a terribly poor, primitive, crude
kind of legal institution actually forces and induces
economic arrangements that are for the best. We have at
... home the common enemy's rule of surplus water. I can't
prove what I am going to say; I don't suppose anybody can
disprove it. It means the upper owner can ditch so as to
drain off the flood water, as Mr. Thomas would call it,
**.. we call it surface water to confuse things a little, he
can ditch that so long as he doesn't tap a new watershed--
I am going to talk in terms of the fact of an actual case--
and bring the water in the middle of a hard rain storm
down on to his lower neighbor's land with great force so
as to gouge out a ravine seven feet deep, eight feet across,
and so as to soak eight or ten acres of his neighbor's land
12 so they can't be cultivated, It is perfectly all right,
says the court.
In turn, the neighbor below can build a dam or
dike that is engineeringly possible and back up all the
water up on the land of the upper owner. That is according
to the rules of the game. What I can see as a lawyer, who
has had a little practice, is the upper owner going to the
lower owner and saying that he can let that water come down,
and the lower owner saying to the upper owner that he can
build the dam, and that, "We had better get together and
till this water away," which is what happened.
Raleigh Barlowe has something he wanted to add.
MR. BARLOWE: A few minutes ago when Professor
Haar was speaking I noticed he left me out of his classi-
fication of economists that he spoke about. I am not sure
this was an accident or that maybe he talked to some of my
colleagues who are present. But I would like to illustrate
a few of the remarks that have been made here this morning
with the Michigan case.
As some of you know, we have been talking about
the possibility of fitting into one of these in-between
classifications for the last six or seven years. We have
proceeded on the assumption that it would be desirable to
proceed with reasonable action, thinking if we put a
proposal before people for discussion purposes that we
could come out with something that would be reasonable,
would fit the situation, that we would probably end up with
something far better than if we were forced into an
So far we haven't made much progress, largely
S because there hasn't been any great controversy in the
S state to force action. I am not too sure I want this to
go in the record, but also because the legislative
committees we have worked with have contained no lawyers,and
while they have recognized that the principles suggested
are desirable, they have continually emphasized that they
didn't dare go in that den of lions and try to advance a
proposal like this with all the constitutional lawyers who
sat in the legislature.
During this period since we have brought forth
what was referred to yesterday as the "Michigan Proposal,"
we have had a little bit of time for thinking and for con-
sideration. We have also had meetings with legislative
groups, and this last year we have had a Governorls water
study committee* I think, as a result of these deliberation
we have shifted ground somewhat. We are still in the
in-between class, but it is a little different than the
proposal that has been mentioned here before.
In our changing, I think we have emphasized two
principal things We have wanted more security in expec-
tations than the present system provides. This doesn't
mean that anything is necessarily wrong with the riparian
doctrine. It simply means the courts have spelled it out
to such a small extent in the state that we don't really
know where we stand on a lot of things.
The second thing that has come up is a number
of people have recognized with the changing situation being
what it is in Michigan, that we are not toe sure we want to
give anybody a permanent appropriation right to surplus
water. So we have come up with a proposal that tries to
tie these two principles together insofar as possible. I
want to put a side note in here, partly for Mr. Manning's
benefit, because I forgot to mention it yesterday, some of
the reasons why we are doing it. We are very conscious in
Michigan of much suburbanization and increasing urbanization
We know nationally the population increased 18 million
people since the census of 1950. We also know that
according to census figures that if we continue at the
present rate we will have 227 million people in this country
We in Michigan expect to get a little more than
our percentage share of this increase. We have reasonable
people in the state who say that by the year 2000 all
Southern Michigan will be one long continuous suburb from
Detroit to Benton Harbor. This isn't entirely impossible.
We know this means a lot of the land primarily suited for
agriculture today will probably be better suited to a
different purpose in the future.
In land economics, we often like to talk about
the principle of succession in land use at this point.
When we get down to this question of alternatives that Mr.
Haber referred to a little earlier, we realize that the
alternatives that are desirable today, if you are talking
in terms of the most desirable use of the water or the most
desirable use of the land, might be far different than they
might be 20 years from now. We wanted some built-in
flexibility in our proposal that would account for this
situation, yet at the same time realizing that we wanted
the most desirable use, that we might want excess water or
surplus water today used for agriculture, but we would want
to recognize 20 years from now it might be more desirable
to use it for municipal uses, more desirable to allow its
use on lawns or gardens, more desirable to use this excess
water for industrial purposes.
Of course, the increase in population we know will
in terms of recreation call for more water in the state
rather than less.
As we look at this, and knowing a little bit about
the hydrological situation in the state, we know we are
just going to run into a plain water shortage in certain
months of the year. This creates a real problem for us, We
know that before we are through we are going to have to
talk about taking the water out of Lake Michigan and Lake
Huron and using it in the state. We know from past ex-
perience this involves a little bit of controversy with
Canada, So we are going to get into international politics.
We hope that what water is taken out for irriga-
tion won't bother them too much, if we can tie them in with
some water use for municipal purposes, and taking care of
the waste going back into the lake. That is an unsettled
We also know anything we do is going to create
tremendous administrative problems, I have been more con-
cerned with the administrative problem than with the legal
problem, partly because I grew up in irrigation boots in
the West, and I well remember our water master and the
arguments I had with him. Sometimes I had a way of adjust-
.. ing the local head gate in a way he didn't like. Letts
leave this alone, though.
The Governor's Water Study Committee this last
year has talked rather generally about a proposal. We have
never dignified it by calling it a proposal. In my notes
here is the first time it has been written down. I would
like to outline it here for you, because I think it includes
many of the principles Mr. Marquis has mentioned, those in
Mr. Arens' paper and Mr. Fisher's paper.
We have been thinking in terms of a law which
would start out with a declaration of public interest in the
use of the water of the state. We are going to avoid the
use of the word "ownership." We would like to stress it
is a matter of public interest that the waters of the state
are used in a reasonable and beneficial way. We would go
on and include a number of the issues in the Michigan
proposal, which most of you have copies of. We would like
to recognize existing riparian uses. There has been some
talk of what we should do with the unused riparian water,
but we have never come one way or another as to whether we
should think in terms of compensation. We realize this is
an issue that has to be dealt with. We would like to think
that our surplus waters, that those are surplus above the
minimum flow that is necessary to keep a minimum stream
flow for what we consider desirable riparian uses, and also
the water which is surplus above the amount necessary to
keep a minimum lake level, should be available for diversion
in a lot of cases.
We have kind of decided that we should be careful
about the use of the word "appropriations." We have been
thinking in terms instead of calling it a "straight
appropriation," a "license" or "permit" to use it, instead
of granting this right for all time. As a regular property
right, we would like to think in terms of limiting it for
some specified period of yearse We haven't decided the
number of years, but for discussion purposes, most of us
have been talking in terms of a 20-year period.
Attendant to this is the idea that any user who
comes in and gets a permit would have a right at any time
during his use period, say a 20-year period, if he were
going to enlarge the scale of his operations, if he were
going to put in a larger pump, this could be an industry,
a farmer who is irrigating, he would have a right to go
back to the administrative commission, agency, and ask for
a renewal of his permit for another 20-year period,
So, when he is making major investments, he would
always be able to think in terms of a period that would
be an amortization period which would make it possible for
him to go ahead,
We also think that when anyone asks for a permit
or a renewal the state agency should consider other appli-
cants, and consider the possibility that this water might
be better used in some alternative use. We realize those
alternatives might be much different 20 years from now
than now. We would provide that this water right could be
sold with the permission of the state any time during a
man's period. Which means if industry comes into the area
and it appears it much more desirable that they be using
the water rather than the farmer be using it, the farm
cantt stop progress in this case, and he would be in a
13 position to sell out his use right. If he refused to sell
it, and the preponderance of the facts were that it should
be the other way, the road would be open on this later on.
We have mentioned the district aspect of this
a little bit differently than mentioned here, because we
are thinking of the district primarily as a unit of
operation, because we feel this system might apply much
better to some areas in the state and much earlier than in
some other areas of the state.
CHAIRMAN BEUSCHERs A unit of the operation of
the state agency that would administer the program as a
MR. BARLOWE: Yes. There are two reasons. We
might take the Paw Paw Valley. There may be a strong
argument for doing this here where some of our valleys in
Northern Michigan would have little reason for shifting
into this operation immediately. We recognize any state
agency would have an awful problem if they started something
like this all over the state at once. The state agencies
would establish some priority and how they would move in.
This is a discussion proposal at the moment.
CHAIRMAN BEUSCHER: Our time is rapidly running
out. If you want to move on, we should, it is pretty
evident, it seems to me, that from many of the things that
have been said this morning a good number of people present
feel that under this heading of, "Studies, What Kind," that
we should have in the water use field a kind of institution
* study that we have had over the land tenure field, Mr.
Huffman, in both the West and East, to get down into the
institutional arrangements that are actually being used to
get water to the place where it is being used--the districts
in Florida, how they really operate in this changing
situation where now they are putting water on the land
instead of taking it off.
In my own state we are just about to again look
at the way in which our several state agencies that have
had to do with the issuance of permits where water is to
be pumped out of lakes and out of streams, the way in which
they have been operating, the kind of permits they have
been issuing, the transfers that have been made of those
permits, what is really happening.
I think we can learn much from this that will
help us frame for particular states the kind of legislation
that best fits local institutions. Then when you have cut
the cloth that way, it may be that it looks like the
appropriative man or the riparian man, but it seems to me
you may want to start from the institutions you have and
In terms of this question about studies, Harold,
would you have anything to contribute? You have made a
study in North Carolina of the statutory law at the state
level. You have made a. study of the appellate cases in
that state. What more should be done in North Carolina,
in your opinion, before any kind of at least long-range
legislation is enacted there?
MR. ELLISt Jack, i would turn this more to
another study that we are actually engaged in, also which
is a study in Illinois. To give you a little more specific
answer to that, there in Illinois we have initiated a study
which will cover the laws not necessarily in detail in
which we covered the North Carolina situation, that is,
by way of actually getting out a report; we will have to do
a very exhaustive and thorough study of what is there, so
that we really understand it.
We have a young man hired at Illinois who is
doing the basic work on this. His study will be tied in
wherever this can feasibly be done with a companion study
dealing with the economic problems of irrigation in Illinois
The first move we have made to get out beyond
the library phase of the study, so far as the law is con-
cerned, is to send out letters to county clerks, and so
forth, to get a measure of the kinds of controversies that
actually have come into the court, to see what type of
things have actually arisen at the lower court level. We
have not yet received replies from that. That will be
followed up with personal interviews and actually looking
at the actual case situations to learn what we can out of
what is going on.
Then we will tie this together with a study of
the economics of irrigation to get a closer look at Just
where the farmers are located, the types of situations they
have, and what their competing uses are that they are facing
in that area, how some of these differences might be
reconciled within the existing framework of the law, and
move in that general direction.
This is all in Just a beginning stage; the study
of the economics of irrigation is just getting under way.
So, we have a long way to go yet. We are in the process
of formulating the best way to get at some of this infor-
mation and make up the tie-up between the economic factors
and the legal factors as closely as we can.
CHAIRMAN BEUSCHERI This assumes, of course, that
you have adequate physical data about how much water--
MR. ELLIS: That is a distinct problem of any
study in this type, as we are well aware.
Along with this, we are interested to the extent
that we can obtain information, the kinds of contractual
arrangements that farmers in particular have actually been
working out to try to alleviate some of the problems that
they face where there are two or three or half a dozen
actually irrigating from the same stream, or that type
I am not prepared to say yet that some of the
problems cannot be handled fairly satisfactorily in that
way for the immediate future. It is clear that when and
if irrigation gets to the point that there are 20 or 30-or
more lined up on a stream in one of these eastern states,
that it is going to be quite difficult to handle the prob-
lems that arise through contractual arrangements. It may
be that this district organization would be a way to get
around some of those problems, the problems of the fellow
who won't cooperate,
But things can be done in that way, and I think
that we are missing the boat if we don't make a study of
just what the possibilities are.
For instance, in Delaware, to cite one case,
where two farmers were lined up on the stream and one
fellow had a second stream that came in at a point on his
land, they worked out this, this was strictly an oral
arrangement, nothing in writing, worked out an arrangement
whereby the lower user would take the water out of the
stream that was coming in during a certain part of the time
so that when the upper user went to use it he used it at
another time, that the upper user would cut out and allow
him to take out of the main stream. They worked out a
seesaw arrangement like that; other rotation arrangements
// Of course, it is much easier to do it where a
farmer has some alternative source that he can turn to.
That, in general, is the type of thing that we
are interested in investigating. We have a study initiated
in Louisiana in which we will have an opportunity to
take a much closer look at this irrigation district possi-
bility, irrigation company operations, and so forth.
CHAIRMAN BEUSCHER: Where the area involved is
rural country, where urbanization is popping up all over
the landscape--this includes now a devil of a lot of land
in the United States--where that is the situation, it seems
to me that whatever kind of studies you are making with
respect to water using institutions and legal arrangements,
illegal arrangements and formal arrangements, you ought
to get the professional people at least who are attempting
to plan the use of land in your area on your team. I think
it is perhaps one thing this symposium missed. It seems
to me the land use planner has a very intimate interest in
this problem of water allocation.
I am not talking about what kind of a study; I
am Just talking now about another fellow who ought to be
on the team in making a study. Are there any other com-
MR, HUFFMAN On this question, I agree, because
I have thought for several years that there may be a real
opportunity to apply some of the techniques and ideas and
concepts of land economics to the water problem, as we have
discussed. And with reference to Mr. Haberts remarks
earlier, we accept that in terms of city planning or land
use planning, although we recognize the economist may make
errors and will make errors and will continue to make
errors, it seems to me if we are willing to accept it in
that area, and cities do, apparently, they hire city plan-
ning specialists, we ought to accept somewhat the same
thing in the case of water, because at least the error won't
be any greater, I presume, in projecting the demands for
water, whether it be for domestic consumption, industrial
use, than as in projecting and preserving land sites, and
things of that sort,
One other comment I would like to make with
respect to Mr. Marquis' question or comments If you allo-
cate water and divide it up, how do you enforce it?
In the West, I don't think we ever did eliminate
the enforcement problem, except where in a case the supply
of water was developed to a point where it took care of
everybody. I am not being facetious. In the early days
you had a real enforcement problem, and you still do in
areas of limited supply. With the result that it was
common practice, and still is in some areas, for example,
to have locked head gates in which the water master, when
he makes the adjustment, is the only man with the key.
In earlier stages than that, the water master
carried a gun, because that was the one basis on which he
was on an equal basis. The tendency has been not to solve
that problem of enforcement because you are dealing with
human nature. It is not much different than sugar rationing
with coupons, or anything else. People will get it some
place. It is to develop the supply so that you can take
care of everybody. I guess I should have said that about
two-thirds of what the Montana Water Board has developed has
been to develop enough water to take care of everybody.
14 I will say one more thing. I am happy myself to
see that we have ended up, I think, with some indication
that what we are really going to have to find is a middle-
ground approach. I tried to indicate it earlier. That is
the reason I rebutted Professor Haar's reference to Justice
Holmes, that it seemed to put us right back where I was
afraid we had been earlier, the implication that we had to
make a choice between one or the other. I think that is
about the worst mistake we could go out of here with as a
result of this thing, because for the last seven or eight
years I have been involved out there in the same sort of
thing, where people have tried to leave the implication
that the public had only two extremes to choose from in
trying to find administrative units for the Missouri Basin
or the Columbia. One was a duplicate of the TVA, on the
one hand, and nothing on the other. That is a sad sort of
situation to be in.
It is like giving a man a car. of white and black
paint and then saying he can only paint black or white. He
can paint ten thousand shades of grey, depending on how he
mixes the paint. I think we have many solutions in this.
I think we will find ourselves coming from different
directions but coming somewhere near the middle ground,
adopting institutional arrangements, other things, from
either side to solve a problem, which, after all, is the
MR. MARQUIS: I am glad to have that statement,
with which I am in 100 percent agreement.
MR. FISHER: I think our Chairman this morning
has summed up many of the aspects of the problem. I wonder
if the material he has on the other side of the board are
CHAIRMAN BEUSCHERS There are many blank spaces
on the other side. It is pretty clear that we aren't going
to talk about everything I have on the blackboard.
MR. BERGENS I think we could go on until one
o'clock. Lunch will be brought in here. I know some of
you have to leave. If you want to go on, I think we ought
to try to cover as many points as we can.
CHAIRMAN BEUSCHER: I don't have to leave until
MR. BERGENm Maybe we should find out how many
have to leave in the next hour. Could we stay until one
o'clock and then go on and have lunch at the table?
CHAIRMAN BEUSCHER: We will go on.
MR. HABER: I would like to mention just a few
more things. They have occurred to me as we have been
going on; I will probably think of more later on. I would
like to get them in the record. I think, first of all,
I would like to reiterate one study that Mr. Ellis men-
tioned, and others have mentioned, broadening it out a
little, that we should look into the actual district opera-
tions and find out more than simply there is a district and
what the enabling statutes are, find out on what basis the
districts do distribute the water, what kind of contracts
they make, what rates they charge, what is the basis for
their determinations and how flexible they are, and so on.
I think another thing that has come up here, and
will at least be an important factor for people who want
to consider whether they should go ahead and make any
radical changes, is this question: How come that under
this terrible law we have been getting.along for so long
and there is no litigation? I think we should look into
the question as to how water is actually allocated in
the eastern states. What are the actual practices, not only
by farmers, as Mr. Ellis has indicated he would study, but
by all other water users. What is the cost of their
getting water, and when has there actually'been a
discouragement of development because of the cost and cause
of legal obstacles.
I know that is a big order, but I think some of
us would like to find that out. It is a very interesting
study that could be made.
MR. MARQUIS: Would you add to that, just to
satisfy my curiosity, California, and how do they do it?
MR. HABER: I don't think you will get any
answer out of California.
The other point I would like to make about studies
is the fact that I indicated before, the possibility of
a water allocation plan, how far can you take it into the
future, into what detail, and on what basis would you do
the planning, what unit of planning?
I think Mr. Wollman's study is moving in that
direction, the one he is planning in New Mexico; and I think
perhaps as it goes along we can clarify to what extent the
kinds of conclusions such a study would meet would be useful
to an administrator who had to really allocate water,
I think there should be a constant back and forth
consultation between Mr. Wollman, or anybody else who
understands this kind of study, with people who have
problems of water allocation, to see whether the kind of
conclusions that he is going to reach would be useful to
such people if they ever had to administer such a plan.
I would suggest here, from the point of view of
future legislation in those states where there isn't any
immediate emergency but there they anticipate future trouble
that one of the things they might do, which has to do with
a study idea, because it is a study of legislation, instead
of just instructing study economists to study the situation,
which has been going on as far as I know up to now, that
they have a law which creates a water planning commission,
the way the city planning commissions were frequently
created, without any power whatsoever except to make
studies, and to actually develop a water plan.
I know there are water planning commissions in
some states. But mostly the plans have dealt with pure
development plans, where they have not tried to refine them
to the point of particular allocations or where the parti-
cular allocations pattern has simply been assumed, not a
matter of change and specific change.
I think getting into that kind of agency, with
that kind of authorization, might be a very good alternative
to just general studies. From what they can come up with
I think we will have a better idea as to the specific kind
of law and a specific kind of material that might be put
into such a commission later on that we might want.
Just other little legal points which interest
me, which I think will come up under any kind of law that
you are likely to get in the future: What is this question
of private condemnation? I think you should have some
legal examination as to how far you can go with private
condemnations, and that we have the material ready as a
I think there is a lot of case law on this, and
the analogizing of that case law might be a very interesting
thing to do, and to just have it ready. It might also give
us a clue as to how we should do it.
I think, for example, it might be much more
difficult to give private individuals or corporations
condemnation power but much less.difficult to give a public
corporation in a particular area for a particular function
condemnation power, with a power to transfer water by sale
to private individuals.
CHAIRMAN BEUSCHERI That would be water develop-
ment rather than urban development.
MR. HABERt One further thing that follows from
what I have said earlier would be that we might explore mort
fully, so we are ready, because I think many people anti-
cipate this problem coming up: To what extent is this
riparian land limitation really an important limitation
in the East so it would be held to give riparians a vested
right against non-riparian users?
I think many of the proposals here have
m93 contemplated non-riparian users, and sometimes without
compensation. I think we should know something more about
it and have something ready.
MR. MARQUIS: I would like to make another sug-
gestion, or request. I dontt know when the transcript of
this proceeding will be ready. Since I assume it will be
some time, I, for one, would like and very much appreciate
having a list of the questions that Professor Haber has
just covered, separately, and before that transcript is
CHAIRMAN BEUSCHER: That part might be the first
part transcribed. I would like to see the whole of it.
MR. BERGEN: I wanted to ask today Just what your
suggestions are for getting this out. What we could do, I
15 suppose, is send out the verbatim transcript, Of course,
there would be a lot of incoherencies here and there. It
wouldn't be as well presented as it would be when Dave
Haber finished editing these remarks.
We don't have any set idea at the moment as to
how to carry out the editing. We would appreciate sugges-
tions on that, too. But, first, would it be valuable to
send out just the verbatim transcript and try to get that
out as soon as possible; and secondly, what kind of editors
handling or relating of the subjects or topical tying
together would you suggest? I don't know whether we want
to discuss that right now. I think we need suggestions
MR. HABER: I think it should be a private
comment that you are making.
MR. BERGEN: We would appreciate your suggestions
on that. I will write you all a letter when we get back
home and ask about that. Also, I want to stress very
greatly that we need your written comments as well, ideas
that occurred to you on the way home, or things that you
have had in mind that you haven't said yet, on the papers or
on the discussion. We solicit those comments from you in
a most hearty way. I think those comments will help this
whole record of proceedings very much, indeed.
CHAIRMAN BEUSCHERt I have just one other sug-
gestion about the transcript, rather, my suggestion is about
the reporter. I think he should receive a Purple Heart.
I don't know whether you were aware of this
yesterday or not--I know I wasn't until I talked with him
this morning--he did three days' work in one. He tells
me that a normal days' work for a reporter is three hours
of reporting. Three times three times three is three days.
MR. HARRIS: In talking about studies, at least
I would like to make a prognosis of what sort of studies
will have to be made in the West. I would like to feel,
and I do feel that the studies of the doctrine of
appropriation will not be modification of the appropriation
but merely the normal growth of the doctrine.
Certainly more planning in water allocation will
be necessary. For instance, in New Mexico, we have an
economic development commission which works closely with
the administrator, and right now there is a good deal of
cooperation on how industry could be brought in, where it
could be brought in, and where water could be allocatted
There has been an assumption, I think, that
probably in many parts of the West there is now competition
between agriculture and industry. It appears to me, based
on my experience, that that actually is not a very large
conflict. In New Mexico, and I am sure it is true in
Wyoming, possibly less so in Colorado, water is not the
main factor for lack of industrialization. If it should
appear, I think, that with the tremendous concern on the
part of the public of unindustrialized states like New
Mexico, that the public policy will change so that there wil
be some sort of preferential right for industry, if they
cannot afford to buy the water on the market price, it may
well be there will have to be some sort of preferential
system, with possibly a private right of eminent domain.
In our next legislature there will be proposals
to extend the powers of municipalities, because we do have
cases now where there is competition between municipalities
and irrigation We have two cases of which I am aware of
competition between industry and irrigation, and we are
talking about a theoretical proposition, and we feel there
should be some change in our water allocation law to accom-
modate greater uses of water.
Certainly the whole policy of the law is geared
to the proposition that the water should be subject to the
highest possible use. We realize that may change, that
there may be higher uses as far as the public is concerned
with water. I am not now aware that there are higher uses
that could use this water that is now being used on the
The big problem that we have in the West is how
to better utilize the available water we now have, not from
an economic point of view, but from a physical point of
view, because our main competition now for water is competi-
tion not from different uses but from the same use. So,
the physical proposition of how we can relate our law in
order to prevent the great waste, and I am talking about
the physical--I don't like to get into the definition of
waste, but the fact that actually we have a certain amount
of water that has to be allocated when only a small fraction:
of it can be used because of evaporation, ditch losses and
channel losses, and actually the trend of our law will be
possibly a relocation of uses with adequate compensation.
Right now it would appear that the, and in the
foreseeable future, studies will be in the nature of
helpful remedies to prevent physical waste, and it may be
some time before we will have competition for water, not
only in New Mexico but in other areas of the state, competi-
tion, for instance, between industry and agriculture.
New Mexico, and I am sure other western states,
has worked up plans and programs for bringing this into
effect. Some of them have been somewhat successful, at
least in New Mexico. We haven't been eminently successful
in trying to get the industries in, and therefore we dontt
have now or within the foreseeable future a proposition
where it will be necessary to make such a change in our
law to allow this higher use, if it is a higher use.
For that reason I doubt that any radical change
will be practical because we don't have a choice of the
use of water. The main problem is a choice of place of
use and whether we should change our law to implement the
fairly detailed statutes against prevention of waste, for
instance. That would at least be my prognosis of what will
happen in the field of appropriation; and certainly possibly
we will have more changes and proposals in the West, because
we have greater problems than we will have in the East. Eve
though we may have more legislation in the East, from a
practical point of view we will probably have to have more
actual cases and changes in the West, and probably more
changes or more growth in the law of water in the West.
MR. STEELE: It seems to me we have been missing
one angle here in the discussion of, particularly, the
eastern states, that is, we have a trend now toward water
management that I think has _one much beyond what is
implied in a lot of the discussion.
We have a Federal Water Shed and Flood Prevention
Act which puts the Federal Government in the business of
giving grants in aid to local sponsoring organizations for
developing a water management plan for the whole water shed.
The Corps of Engineers have been in this water management
business in major streams for years and years. Now we are
setting up a comparable water management scheme for the
lands of watersheds and for the smaller tributaries, and
so on, before it gets into these major streams.
These acts are not limited to preventing damages
from water. They are very broad. They provide for putting
water to all sorts of uses, including municipal water.
We in the past in the East, I think, have dealt
with the wet side of the rainfall cycle. Generally, in
a lot of the East there is enough rainfall, but the distri-
bution is such that maybe it is about right 10 percent of
..* the time, too wet 45 percent of the time and too dry 45