Best if printed in landscape.
Theory of Water Rights
will study only selected cases from this chapter of the casebook. Let's
plan to discuss the following materials.
- Anaheim Union Water
Co. v. Fuller
- Harris v. Brooks
- Pyle v. Gilbert
- Adams v. Greenwich
- Hudson River Fisherman's
Association v. Williams
- Village of Tequesta
v. Jupiter Inlet Corporation
Charolaise, Ltd. v. Oklahoma Water Resources Board
doctrine is primarily adhered to in the eastern half of the United States; a climate
with considerably more water than the western states. The theory of riparian
rights stems from European influence, but even this doctrine is being
modified to accommodate current needs.
Riparian doctrine is generally common law, but some "eastern" states are beginning to codify their water law. Note however, that some statutes are codifications of the common law of riparian doctrine while other statutes are deviating from the common law.
- Missouri: 256.400 to 256.430 -- establishes a registration process for major users -- the purpose is to "provide an important part of the information required in the technical assessment of current and future requirements for the regulation of water use or consumption, or both, on a regional or statewide basis, as may be required...
[Does not apply to] farm or other ponds ... which collect and hold surface water and which are located upon property [of] the withdrawer ... so long as the common law rights of downstream owners are not abridged, but ...
shall apply to water withdrawn or diverted from wells or springs located on property [of] ... the withdrawer..."
- Tennessee: statutes chap. 69-07 and common law
- 69-7-103(4) " Implement the basic water resource policy of the state by creating and defining the rights of respective competing users of the water resources of the state;"
- Florida: Chapter 373 -- codifies concepts similar to prior appropriation doctrine (e.g., see §373.219 and §373.223)
- 373.219(1) "The governing board or the department may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area. However, no permit shall be required for domestic consumption of water by individual users."
- 373.223(1) "To obtain a permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water:
(a) Is a reasonable-beneficial use as defined in s. 373.019;
(b) Will not interfere with any presently existing legal use of water; and
(c) Is consistent with the public interest."
- Minnesota: 103G.255 et. seq.
- Note the breadth of the statute, see §103 A.201(1)
- "To conserve and use water resources of the state in the best interests of
its people, and to promote the public health, safety, and welfare, it is the policy of the state that:
(1) subject to existing rights, public waters are subject to the control of the state;
(2) the state, to the extent provided by law, shall control the appropriation and use of waters
of the state; and
(3) the state shall control and supervise activity that changes or will change the course,
current, or cross section of public waters ...
land is a parcel that is adjacent to a watercourse. Riparian rights permit
the riparian landowner to use the water from the watercourse. But
which land is riparian?
Union Water Co. v. Fuller, California, 1907
(p. 236 of Gould's 7th ed.)
- Plaintiffs diverted
water from the Santa Ana river to irrigate.
- Defendants built
a dam upstream to divert water to irrigate their land.
- Plaintiffs received
an injunction against the defendants from diverting water from the river
because the defendants' land that would be irrigated was not riparian.
- The land on which
the water is used must be within the watershed, must be owned as one
tract that extends from the water source to the point of use, and never
have been severed from the land that borders the water source.
- Land that is not
within the watershed of the river is not riparian and is not entitled
as riparian land to the use or benefit of water from the river, even
though it may be part of a tract that extends to the river.
- A principal reason
for confining riparian rights to lands that border the stream is so
after its use, the water returns to the stream.
- Where two streams
unite, it is correct to consider them as separate streams above their
confluence and the land within the watershed of one stream is not riparian
to the other stream.
- Land that is conveyed
and severed from the tract that is adjacent to the stream can never
regain its riparian right even though it is in the watershed.
- In California,
riparian owners have correlative rights in the stream and neither are
trespassers against the other until one diverts more than that user's
share, and injures and the damages the other; water of a stream belongs
by a common right to the riparian owners and each is entitled to sever
their share for use on the riparian land.
- A riparian right
is not lost by disuse, but it can be lost to a trespasser whose use
matures into a prescriptive right.
rights are part of riparian land; sticks in the bundle of rights. (p.
242 of Gould's 7th ed.)
land is riparian?
- Source of title
test: smallest tract held under one title in the chain of title
leading to the present owner; each time a portion of land is separated
from the riparian land, the separated portion is no longer riparian
and can never regain its status as riparian even if it is subsequently
owned by the same person again. Restated, riparian land (under this
test) is land bordering on a watercourse that has been in the same ownership
in an uninterrupted chain of title.
- Unity of title
test: all land comprising a tract that is adjacent to a watercourse;
thus separated land can regain its riparian status if it is again owned
as one tract by the riparian landowner.
subdivision: riparian land should be defined by government survey
subdivisions such as 40-acres or 160-acres
riparian land be within the watershed of the watercourse? Apparently,
landowner does not need to own the riverbed to have riparian rights; only
need to own the land adjacent to the watercourse.
I entitled to use diffused surface water (p. 241 taken from notes to a
case we did NOT read).
- Diffused surface
water may be captured, used, dammed and redirected by the landowner
even though the water would otherwise reach a watercourse and these
activities diminish the flow of the watercourse.
how do people who are not riparian landowners acquire water? We know they
need water, but how do they acquire it?
- Purchase the right
from a riparian owner?
- Steal it (that
is, acquire it as a prescriptive right)? Non-riparian entities can acquire
water rights via prescription (continuous use for an extended time without
the permission of the riparian landowner); conversely, riparian water rights can be lost
by not stopping a trespasser water user.
how much water can I use? -- Reasonable Use
v. Brooks, Arkansas, 1955
(p. 246 of Gould's 7th ed.)
- Appellees were
pumping water from a lake to irrigate rice.
- Appellant operated
a boating and fishing business on the land and sought to enjoin the
irrigation because it was reducing the water level of the lake.
- Injunction was
not granted and the case was appealed.
- Owners of land
that borders a lake have the right to use the water and this right is
an incident of the land ownership.
- Natural flow theory -- land owner is entitled to have the water kept at its normal level
and may take water for domestic purposes only.
- Reasonable use
theory -- there is no reason to maintain water source at its normal
level when the water can be used without causing unreasonable damage
to other riparian owners; the rights of riparian land owners is mutual,
common, or correlative; the riparian land owners are limited to using
the water to what is reasonable having due regard to the rights of other
- Domestic use of
water is superior; all other uses are of equal value; when one lawful
use destroys another lawful use, the destructive use must be enjoined;
when one lawful uses only interferes with another lawful use, the court
must decide if the second use is reasonable.
- Determining reasonable
use involves evaluating the conflicting interests; equal protection
to promote the greatest beneficial use of the water; individuals must
put up with reasonable amount of annoyance and inconvenience from other
- Riparian use does
not give rise to a prescriptive use; in this case, the first users were
merely exercising their legal rights and these are not adverse to other
riparian land owners.
the eastern states, initial water uses were in-stream: navigation,
power to operate saw mill, gristmills, cotton gins. Legal issues often
address whether "my dam interferes with the water flow that you desire."
Since so little water was being diverted, riparian rights focused on water
flow and the rule became that I cannot alter the flow of the water.
Thus the basis for the "natural flow" doctrine.
time, more diversionary uses arose, especially for growing municipalities
and new industrial uses. But the rule that "my use cannot alter the
water flow" meant users could divert very little water. This left
unmet needs even though significant water was flowing past the land. A
new legal theory was needed - reasonable use.
- The reasonable
use rule states that a riparian landowner's reasonable use is protected
from unreasonable uses by other riparian landowners.
that a use must be reasonable before the user could argue that someone
else's use is unreasonable.
- The reasonable use theory allows
more water to be put to use than the natural flow theory.
uses were given priority over all other uses. Domestic use preference - riparian landowner can use the entire flow if necessary for domestic
purposes. But domestic use was defined as natural wants. What is encompassed
in natural wants? Does natural wants include minimum (not natural) in-stream
flow? Is irrigation a preferred use? Are municipal uses preferred?
of torts - Reasonable Use of Water (p. 253 of Gould's 7th Ed.)
- Purpose of use
- Suitability of
use to the watercourse
- Economic value
of the use
- Social value of
- Extent and amount
of harm caused by the use
- Whether altering
the use could reduce the harm
- Whether the quantity
being used could be adjusted
- Protecting existing
values and investments
- The justice of
requiring the user causing the harm to bear the loss
1) the use being harmed, 2) the use causing the harm, 3) the impact of
the harming use on the harmed use, and 4) the impact of the harming use
on society, the economy and the environment. It is a matter of weighing
the benefits and harms of each use against each other.
will be required to use reasonable means to capture and divert water.
users must accept later uses that do not impose substantial economic losses
or that impose only an inconvenience; this is the inevitable result of
non-riparian uses reasonable? Do we distinguish between a non-riparian
use by a riparian owner and a non-riparian use by someone who is not a
- One rule: non-riparian use
can be enjoined even if it does not cause harm to a downstream riparian
- A more likely rule:
there must be damage in order for the non-riparian use to be enjoined.
- Non-riparian use
that causes injury or harm is per se unreasonable.
- Downstream non-riparian
use is per se unreasonable and is not entitled to be protected from
an upstream riparian use that reduces the flow of water.
- Non-riparian use
by riparian landowner is not per se unreasonable.
do I acquire water rights if I am not a riparian landowner?
v. Gilbert, Georgia, 1980
(p. 279 of Gould's 7th ed.)
- This case involves
a well-established power mill urging natural flow theory against an
upper stream new irrigator who urges the adoption of reasonable use.
- Trial court ruled
for the plaintiff; irrigation was an unreasonable use.
- This court rules
that whether irrigation is unreasonable is a question for the court.
- Court rejects notion
that water can be used only riparian land; instead, riparian rights
are property rights that can be transferred; water law should be utilitarian
and allow the best use of water.
- Georgia recognizes
the right to condemn water rights; and that water acquired through condemnation
can be used on non-riparian land. If water can be acquired through condemnation
for use on non-riparian land, it also can be acquired for use on non-riparian
land by grant (purchase).
- The only question
remaining is whether the use of water to irrigate non-riparian land
is reasonable, and that is a question to be resolved at trial.
right also can be acquired by lease, as long as riparian landowner's domestic
(natural) needs are not substantially impaired.
a non-riparian entity acquire water rights by prescription? See Pabst
case on page 272 (7th ed.) which we are NOT discussing. The general answer is "yes."
does an muncipality acquire water rights in a riparian state?
use: Municipal supply
v. Greenwich Water Co., Connecticut, 1951
(p. 284 of Gould's 7th ed.)
- The defendant is
a corporation that is to furnish water for public and domestic use to
- Plaintiff are riparian
owners seeking to enjoin the diversion and the attempt by the defendant to take the water
- Defendant began
to pump water from the river when it became apparent that the original
water sources would not be enough to meet the contract due to drought
- Defendant admits
it has no right to pump water from the river and will proceed to use
condemnation, but that under the circumstances (drought and not enough
water to the town) it was justified in its actions.
- Even though water
was being diverted, plaintiffs were not injured.
- Previously , the General Assembly
had granted the defendant authority to take by eminent domain.
- Water company should
plan 10 to 20 years into the future.
- Trial court did
not grant injunction because harm to plaintiffs was far outweighed by
the needs of the defendant and the town it was supplying with water.
- Eminent domain
question -- "taking" water is allowed if it is for a public
use and based on foreseeable future; courts will interfere with eminent
domain in case of bad faith or unreasonable conduct.
- Plaintiffs are
entitled to be paid, but not necessarily entitled to an injunction.
Court can deny an injunction if granting it would adversely affect public
- But the trial court
did not impose a limit on when the defendant must acquire the water
right by eminent domain; therefore judgment reversed with trial court
to determine a reasonable time in which the defendant must acquire the
plaintiff's water rights and if that time is not met, an injunction
will be issued.
is the value of riparian water rights, especially if I am not using my
rights, or if my needs will be met even if the other use is developed?
a user proceed with inverse condemnation if the municipality does not
initiate eminent domain?
authority for municipalities to acquire water rights from riparian landowners
is often based on specific statutes.
River Fisherman's Association v. Williams, New York, 1988
(p. 289 of Gould's 7th ed.)
- Spring Valley Water
Company provides water to Rockland County; it wants to build an additional
reservoir and filtration plant to meet expected future needs.
- During hearings,
the need for additional water was obvious, but the timing of the need
was in dispute.
- Commission approved
the project but established a triggering event for issuing the construction
- Concerns about
the project include loss of trout habitat.
- Petitioners argue
that Spring Valley failed to demonstrate the public necessity for the
construction of the water project -- the project should not be approved
unless it will be developed in the immediate future.
- Court rejects this
argument for 3 reasons -- present need does not mean dire need; there
is a need for greater peak demand capacity; the trigger mechanism assures
permits will not be issued prematurely.
- The trigger is
based on average demand, rather than peak demand; but it is the peak
demand that is of greatest concern; however, average demand is an acceptable
benchmark due to its relatively constant ratio to peak demand.
- Environmental law
was complied with -- the requested mitigation would doom the project,
mitigation was provided for, and the high priority of domestic and municipal
uses was a consideration.
of public water supply projects - state enacted statutes to authorize
municipalities to acquire water to meet their needs. The statute was necessary
to address the issues that arise under riparian rights; that is, there
are non-riparian needs. But municipalities are required by the statutes
to address a range of issues as part of acquiring the water rights.
among competing public water supply projects - Pennsylvania - municipalities'
unused water rights are cancelled, used rights must be registered (documented),
and permit must be applied for.
rules - can only acquire water this is not already appropriated; imposed
conditions on water usage; difficulty of determining whether downstream
user is entitled to have the flow of the water undiminished; also, it
is not clear that the upstream use is reasonable.
regulation - federal law does not directly appropriate water, but laws
such as Clean Water Act, Endangered Species Act, etc can influence whose
project will be constructed.
of Tequesta v. Jupiter Inlet Corporation, Florida, 1979
(p. 298 of Gould's 7th ed.)
- Corporation proposed
developing housing and pumping water for domestic purposes from a shallow
aquifer that a nearby village was already pumping at its safe yield
- Common law gave
the overlying landowner right to reasonable use of the water. This was
modified by the correlative rights theory.
- Florida enacted
a statute requiring a permit for all new withdrawals and provided for
recognizing common law rights by also issuing permits.
- Corporation's application
- Corporation sues
village in inverse condemnation for taking the corporation's water.
- Water right in
Florida does not mean owning the water; only owning the right to use
- Water Act recognizes
need for conservation and control, and makes all water subject to regulation.
- Right to use water
under common law is different than right to use water under a permit.
- The act makes no
provision to continue an unexercised common law right.
- Since corporation's
common law right is now invalid, the village does not need to acquire
the water right through condemnation.
permits in riparian states? To replace a system where rights are vague;
unstable; not adequate on which to invest or build; is litigation driven;
determination of rights is slow, expensive and unpredictable. System does
not protect the environment or public values; does not effectively allocate
water during drought; and limits use to riparian land.
of permits in riparian states:
- time of initiating
use is not the issue;
- can expire or be
have considerable discretion to reallocate
of permit is to record (register) and quantify existing water right/usage.
Also to control future/new use.
system implies priority based on time of use by requiring that new use
does not interfere with existing use.
entities can acquire a permit.
discretion -- do the permitting systems in riparian states grant the administrator
too much discretion? If "time of initiating use" does not allocate
water, and all uses are equal (except domestic use), what are the criteria
for allocating water? Will some uses become unreasonable during
time of shortage but are reasonable during time of plenty? If we
are weighing competing water uses (as is implied under the Restatement
of Torts), such a scenario could occur.
the argument that the permits in riparian states are subject to too much
administrative/judicial discretion, are too unpredictable, and may be
based on type of use (e.g., domestic v. municipal v. irrigation).
- How does the law
address the issue when a later use seems to be more valuable than senior
uses? Prior appropriation requires that the senior (but less valuable)
use gets the water. The question of who gets the water during time of
shortage is difficult for both riparian and prior appropriation doctrines.
plans" as a way to address this problem; as a way to bring some predictability
to these situations.
control of over-development -- permit systems focus on use and assume
only temporary shortages; is there an adequate process to stop issuing
permits when water is fully appropriated?
and reallocation -- use market; but if permits expire, market will adjust
the value of water rights.
criticism -- no coordinated approach to planning and permitting; permits
expire and no certainty of renewal; no mechanism for reallocating water.
links -- both of these statutes require permits.
Charolaise, Ltd. v. Oklahoma Water Resources Board, Oklahoma, 1990
(p. 312 of Gould's 7th ed.)
- 1963 legislation
to regulate riparian water rights -- declared unconstitutional.
- Legislation provides
mechanism to protect existing rights.
- Legislature may
restrict use of private property by proper exercise of police power
for the preservation of public health, morals, safety and general welfare
without compensating the property owner.
- But these rules
abolish the right of riparian owner to assert a vested interest in the
prospective reasonable use of the stream.
- The legislation
falls short of protecting the riparian owner's common law right; riparian
rights are broader than those protected by the legislation.
- Rights of riparian
owners are to be determined by relative reasonableness; not past use,
present use, or non-use.
- DISSENT: majority
misperceives the future; does not follow the lead of other jurisdictions;
unexercised riparian rights are not property; legislature was placing
everyone on equal footing with a unitary system; the legislation did
not leave the land economically unviable.
of riparian rights - primarily in the western states that started with
riparian rights and then developed and adopted the doctrine of prior appropriation;
but those who already had riparian rights had to be protected; that is,
there property rights could not be eliminated by a subsequent change in
legislation; issues include
- how to protect
existing rights that will not be allowed to arise in the future, such
as riparian rights.
- how to accommodate
riparian owners who have not used any water but who would argue they
intended to use it in the future.
- The first issue
is legal; the second issue is more political.
- States recognized
only rights that were actually put to use; the states will not recognize
(compensate for) "possible" water use.
- States did not
distinguish between water that was once used but is no longer being
used, and water that was never used. In both cases, the water is unused
and thus the opportunity to use it again or for the first time in the
future was not a property right.
- Preserved the right
(and the priority) to use water for domestic purposes.
doctrine - effort to preserve the dual system
- An unreasonable
water use is not limited to only a wasteful water use; but also includes
a use whose alternative is more socially or economically valuable.
- Unexercised riparian
rights would be subordinate to perfected appropriated rights; but the
subordination can only occur through a statutory stream-wide (basin
of doctrine by permitting systems in eastern states -- permits are mandatory
for new uses. This is different than riparian doctrine where one can simply
begin using the water that is adjacent to your land.
of unused riparian rights -- pay you for your water right even though
you are not using the water; that provides you an economic reward for
allowing me to put the water to use. This clarifies that you have relinquished
your right to me.
disputes by augmenting supply -- stopping someone from using water does
not address the problem that there is not enough water; so in California
(an area with water shortages) the focus has been on augmenting the water
supply, rather than fighting over the existing supply.
of trend - Hawaii experience (p. 323 of Gould's 7th Ed.) -- state can change the water law but only
prospectively; the change cannot divest vested rights. Rights that were
based on practice can be required by subsequent law to be documented through
a "declaration of use" or permit.
January 12, 2011