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Introduction to Riparian Doctrine

This page is based on Chapter 3 of Weber, Harder & Bearden's 9th edition of Cases and Materials on Water Law (2014)

 

The eastern states of the United States (Minnesota to Louisiana and eastward) primarily apply the riparian doctrine to determine who has the legal right to use water.  This page introduces the riparian doctrine by reviewing some of the materials contained in Chapter 3 of Weber's 9th edition of Cases and Materials on Water Law.

The fundamental concept of riparian doctrine is that the owner of land adjacent to a waterbody (e.g., lake, river, stream) has the right to use the water.  Some of the questions that arise are 1) what land is considered riparian, 2) how can the water be used, 3) how much water can be used, and 4) who enforces a riparian landowner's water right. 

With respect to the enforcement question, the simple answer is that a riparian landowner brings a lawsuit against another riparian landowner if the first landowner feels that the second landowner's use of the common waterbody is interfering with the first landowner's use of the water.  The legal action is based on tort law, such as trespass; that is, "your use of the water is interfering with my right to use the water."  The result of this enforcement practice is that numerous riparian landowners' along a common waterbody may be engaged in extensive and numerous litigations to determine and enforce their relative water rights (see note 2 on p. 331 of Weber's 9th).  Consequently, courts had a considerable role in defining water law as well as imposing individualized solutions in resolving legal disputes.

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How Much Water Can be Used

Harris v. Brooks

Plaintiff riparian landowner conducted a commercial boating and fishing enterprise on a non-navigable lake; defendants pumped water from the lake to irrigate (flood) their cranberry production.  The irrigation lowered the water level of the lake to the extent that boating and fishing were no longer possible.  The plaintiff requested that the court enjoin the defendant from pumping excessive amount of water from the lake. The court denied the injunction and the plaintiffs appealed.

The appellate court restates the riparian doctrine as "the owners of land bordering on a stream has the right to use the water therefrom for certain purposes and this right to use the water is part of (an incident of) owning the land."

But how much water can the riparian owner remove from the water source?  This often was not a question in the past because most water uses, such as navigation and power, did not remove water.  Consequently, the law applied the concept of natural flow, that is, the riparian landowner could not remove more than the amount of water the landowner needed for domestic purposes, and other riparian landowners could bring legal action when a riparian landowner removed more than the quantity of water needed for domestic purposes.  The remaining water in the waterbody was expected to continue to flow to and be available to other riparian landowners.  The shortfall of this legal concept is that water could not be used for other purposes, such as irrigation.

The court then considered the reasonable use concept or theory.  This concept holds that a riparian landowner can make a reasonable use of water on riparian land subject to the correlative rights of other riparian landowners and certain rights of the public.  Each riparian is equally entitled to use the water but each riparian owner is required to exercise that right reasonably and with due regard to the rights of the other riparian owners. 

  • The right to use water for domestic needs is superior to the right to use water for other purposes, such as fishing, recreation or irrigation.
  • All other lawful uses of water are equal.
  • A lawful use that destroys another lawful use must yield (reduce the use) or be enjoined.
  • A lawful use that interferes with or detracts from another lawful use raises the question of whether the first use is unreasonable and should be enjoined, or if the competing uses can be reasonably and equitably adjusted to accommodate the reasonable rights of each riparian user.

Priority of Domestic Use (Weber's 9th, p. 266, p. 301)

Riparian doctrine generally does not consider the type of use when determining the right to use water; a reasonable use for recreation is given no different legal value than a reasonable use for irrigation, for example.  However, a domestic use is given preference in that a domestic use that consumes all the water of a waterbody does not have to adjust its use to accommodate other users.  The question, however, may be "what is a domestic use."  As cited by the authors, is a kids camp or a military base a domestic use?

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Does riparian doctrine recognize and protect recreational and environmental values by directing that water be retained in the waterbody for the benefit of non-riparian users/visitors?  See p. 281, Weber's 9th, note 3.  The public has a right to have water in a waterbody; the rights to use water is not fully held by only the riparian landowners.

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Restatement of Torts

Restatement of Torts (Weber's 9th, p. 265)

Reasonableness of use considers a) the interests of the user, b) the interests of other riparian owners affected by the use, and c) the interests of society as a whole.  Factors to be considered are

  • purpose of the water use
  • suitability of the use to the waterbody
  • the economic value of the use
  • the social value of the use
  • the extent and amount of harm the use causes
  • the practicality of adjusting any of the competing uses to avoid the harm
  • the practicality of adjusting the quantity of water used by the competing uses
  • the existing values of water uses, land, investments & enterprises, and
  • the justice of requiring the user causing the harm to bear the loss.

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Apply the Restatement standards to facts on p. 290, note 6?  Harness manufacturer versus automobile manufacturer.

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On What Land Can the Water be Used

Riparian 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?

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 Anaheim Union Water Co., v. Fuller

  • California 1907
  • Weber's 9th, p. 247
  • Outline in Legal Doctrines copied here
  • 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.  

 

Riparian rights are part of riparian land; sticks in the bundle of rights. (p. 253 of Weber's 9th ed.)

Which 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.
  • Government subdivision: riparian land should be defined by government survey subdivisions such as 40-acres or 160-acres

 

Must riparian land be within the watershed of the watercourse? Apparently, yes.

Riparian landowner does not need to own the riverbed to have riparian rights; only need to own the land adjacent to the watercourse.

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Am I entitled to use diffused surface water (p. 257 of Weber's 9th ed.).

  • 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.
  • A similar concept is followed in prior appropriation doctrine.

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Thompson v. Enz

  • Michigan 1967
  • Weber's 9th, p. 254

Defendant owns riparian land on a navigable lake and plans to dredge canals and sell lots.  The buyers of the lots would be allowed to use the canal to access the lake for boating. Plaintiffs claim lots along the canals are not riparian land.

Court agrees with plaintiffs that only land along natural waterbodies are riparian and a canal is not a natural waterbody.

Second question is whether riparian rights can be transferred separate from the land.  The court rules no.  Riparian rights are not alienable, severable, divisible or assignable apart from the land.

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The casebook authors note on p. 256 (Weber's 9th) that riparian rights were retained by separated (and therefore, no longer riparian) land when the grant of land ownership explicitly conveyed a proportionate part of the riparian right originally held by the riparian land.  Bottom line -- riparian water rights can be transferred.

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This case is mentioned again (p. 282, note 5) and introduces estoppel, that is, can the plaintiffs wait until the defendants had made the investment in dredging canals and preparing to sell the lots before initiating a legal action to stop the project?   

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Does a lake formed by a dam create riparian rights for the land that is now adjacent to the lake shore?  See p. 297, note 5 in Weber's 9th.  Is a lake behind a dam a natural waterbody?

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How Can the Water be Used

Historically, most of the water use was in the waterbody -- transportation and power.  Diversionary uses grew more common (domestic, municipal, irrigation, industrial).  In stream uses expanded as well:  recreation, natural beauty, environmental.  Do these changes in how water is used alter the riparian water doctrine?

Orr v. Mortvedt

  • Iowa 2007
  • Weber's 9th, p. 268

The case involves the use of non-navigable water by riparian owners who own designated portions of the underlying land.  Do the land owners share the use of the entire lake surface or is each landowner limited to the area of the lake that overlies their private land?

  • Majority adopts common law or exclusive dominion rule that owners can only enter upon the water above their land; a landowner can prevent other owners of land underlying the non-navigable land from entering into their area on the lake surface.  The owners also may erect barriers in the lake along their property boundary line. 
  • Majority also recognizes that land underlying navigable water is owned by the state and the water over state-owned land is open to the public.
  • Dissenting justice would adopt the civil law or free access rule which states that all riparian landowners whose ownership extends to land underlying non-navigable water are entitled to access the entire surface of the non-navigable land as long as their use does not unduly interfere with the rights of the other riparian landowners.  The dissenting justice cites Minnesota as following the free access rule.

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Navigability (p. 274 of Weber's 9th)  There are several definitions of navigable:  1) tidal ebb and flow, 2) susceptible of use for purposes of commerce or possessing capacity for valuable floatage in transportation (p. 269), 3) capable of floating logs, 4) capable of floating shallow draft boats for recreation (p. 324).

Navigability is applied in determining ownership of land under a waterbody.  If the waterbody is navigable, the underlying land belongs to the state and the surface is available for public use as long as the public can access the land without trespassing on private land.  If the land is non-navigable (as in the preceding case), the underlying land is privately owned and the use of the surface is limited to riparian owners.

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Botton v. State

  • Washington, 1966
  • Weber's 9th, p. 275

The state and others were riparian owners of a non-navigable lake.  The state had its land open for public use which also gave the public access to the non-navigable lake.  The other riparian users complained of the public use of the lake; claimed the use was "unreasonable interference" and the state should buy their lands.

The court found the uses were unreasonable interference, but did not require the state to buy the other lands.  The public use, however, would be enjoined until the state devised a plan to prevent the unreasonable interference.

Dissenting justice commented that riparian owners should expect the lake to be used and that the other riparian owners should direct their concerns to the local authorities and not the state.

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Can a riparian owner decrease the surface of a lake by filling the lake or building a structure?  Would such an use of the surface be unreasonable?  See p. 280, Weber's 9th, note 1.

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How much water can be used -- again

Evans v. Merriweather

  • Illinois, 1842
  • Weber's 9th, p. 282

Evans and Merriweather owned adjacent riparian land on a non-navigable stream, Evan was upstream.  They both operated mills.  During a drought, Evans' employee dam the stream immediately below Evans' mill and diverted to full flow to power Evans' mill.  Without the diversion, there was not enough water power to operate Evans' mill.

Merriweather brought a lawsuit.

Court stated the issue as "to what extent can riparian owners divert the water of a non-navigable stream?"  Court stated that the rule was that each riparian owner was to use the flowing water with as little injury on the downstream user as possible.  The use must be a reasonable use.  Is consuming the entire river a reasonable use?  The jury found the use to be unreasonable.  The court stated "where all have a right to participate in a common benefit, none can have an exclusive enjoyment."  The quantity that can be withdrawn by any must be determined on a case by case basis -- which the jury had already done in this case by deciding the Evans' action was unreasonable.

 

Farrell v. Richards

  • New Jersey, 1879
  • Weber's 9th, p. 286

Court was requested to restrain Richards from diverting water from a stream that others relied on to operate their mills.  Richards was diverting water for cranberry production, that is, irrigation.  Plaintiffs asked that defendant must permit the "natural and ancient flow" of the water.

Court enjoined the diversion because it caused serious injury to the plaintiffs:  riparian owners have the right to divert water to irrigate but not to the extent that is causes material injury downstream.

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A diminished supply of water is accommodated by reducing the amount of water available to each riparian owner.  What if the remaining amount for each riparian user is not enough to provide any value?  How about sharing the water by alternating time when user may take the water?  A key point, though, is that riparian doctrine is a proportional allocation of water; this is different than prior appropriation doctrine.  See notes on pp. 284-286, Weber's 9th

Occasionally, a court mentions that the timing of initiating a riparian use is a consideration. p. 288

Riparian owner could construct a dam and flood upstream land; compensation would be paid if the upstream landowner brought a timely legal action. p. 288

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How might someone not owning riparian land acquire the right to use water

But 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 trespassing water user.

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Pabst v. Finmand

  • California 1922
  • Weber's 9th, p. 291
  • Can a water right be acquired by prescription?  Restated, can a non-riparian landowner acquire a water right by prescription?  Can a riparian landowner acquire the right to more than a reasonable amount of water through prescription?

Prescription is the property concept that if one person uses a second person's property right without the second person's permission and the second person does not complaint about the first person's unauthorized use of the second person's property right, the first person will acquire the second person's property right if the unauthorized activity continues for the legal prescribed time.

A non-riparian landowner acquired a water right by prescription in a waterbody by diverting the water from its source for the legally required time without the owner of lower riparian land raising a complaint.  This is the outcome even if the riparian owner was not aware of the diversion if the diversion was visible and the riparian could have learned of the non-riparian diversion.

A riparian owner cannot acquire a water right against another riparian owner because the riparian use, even if unreasonable, is not a claim against the other riparian's right.  This is the outcome even if the second riparian landowner is not using any water.  This outcome is based on the idea that a riparian right exists even if the water is not being used.

  • Perhaps an unreasonable use of water by a riparian owner would give sufficient notice to another riparian owner, whether or not the second owner also is using water.

 

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Duckworth v. Watsonville Water & Light Co.

  • California 1910
  • Weber's 9th, p. 297
  • Grant water rights

Riparian owner can grant their share of the waterbody to another person but the new owner will share in the overall water resource in the same way that the granting riparian owner could have shared. 

The granting riparian owner cannot attempt to retake some of the granted water by arguing that he/she still owns riparian land.  Once the water is granted away by the riparian owner, the riparian owner no longer owns the right.

 

Pyle v. Gilbert

  • Georgia 1980
  • Weber's 9th, p. 299

State law grants municipality the authority to use eminent domain to acquire water rights.  Thus the municipality can also acquire water rights by grant from a riparian owner.

Can riparian rights be leased?  P. 301, note 1.

Can a riparian owner use inverse condemnation to force a municipality to compensate the riparian owner for water taken by the municipality? P. 308

 

State v. Apfelbacher

  • Wisconsin 1918
  • Weber's 9th, p. 302

The defendant maintained a dam and used the water to operate a mill upstream from the plaintiff's dam and mill.  Subsequently, the defendant agreed with the State that the State could draw water from above the defendant's dam to operate a fish hatchery, and that if the water level dropped excessively, water would not be discharged from the lake behind the defendant's dam.  The purpose of the stopping the discharge was to allow the State to receive a specified flow of water. 

When the water level dropped, the flow was discontinued which also deprived the plaintiff of water to power the plaintiff's mill.

A riparian owner can retain water during shortages but does not have the right to a specified quantity of water (as was implied by the agreement between the defendant and the State).  The State (or any user) cannot acquire (by contract, in this case) a better legal right to the water than was originally held by the riparian owner/user.

Bottom line -- reasonable use among riparian owners/users implies that each user adjusts their water use during times of water shortages.  An arrangement that allowed one user to maintain full use while another user endured a disproportionate reduction is an unreasonable use of the water.

 

Municipal Water Supply

A municipality, even if situated adjacent to a waterbody most likely includes non-riparian land.  How does the law allow a municipality to draw water from a waterbody to meet the needs of the entire community?

Adams v. Greenwich Water Co.

  • Connecticut 1951
  • Weber's 9th, p. 304
  • Municipal supply

State law authorized municipality to acquire water right by purchase, eminent domain or other means.  Plaintiff requested that city be enjoined from constructing water project and taking water.  Trial court did not enjoin the city.  Appellate court agreed that injunction should not be granted but required the city to compensate the plaintiff/riparian owner.

 

Hudson River Fisherman's Ass'n v. Williams

  • New York 1988
  • Weber's 9th, p. 309

How far/long into the future can a municipality plan for increased water needs?  Was it too early to allow a water project to be build for future municipal needs?

Commissioner specified events that would trigger when project could be commenced.  Court upheld the imposition of those triggering events.

 

In re MDL-1824 Tri-State Water Rights Litigation

  • 11th Circuit 2011
  • Weber's 9th, p. 314

Federal statute (Congress) empowered/authorized the Corps of Engineers to supply municipal water. The Corps was not limited to power, navigation and flood control.

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State Regulation rather than Solely Relying on Common Law

Muench v. Public Service Commission

  • Wisconsin 1952
  • Weber's 9th, p. 323

This case illustrates the challenge of altering law as society recognizes additional uses of resources, in this case, the "new" use is the beauty and recreational use of water resources.

In this case, a company applied to the state Public Service Commission for a permit to construct a dam.  The Conservation Commission and at least one private citizen appeared at the hear to testify in opposition to granting the permit.  The Public Service Commission granted the permit for the dam and denied a rehearing. The private citizen then appealed.

The court summarized the history that this region of the country was deeded by colony/state to the newly formed United States on several conditions; one condition was that navigable rivers would remain open for public transportation.  This language was continued by the State of Wisconsin.  Navigability was defined in an earlier case to include capacity to float shallow draft boats.  Subsequently, navigability was broadly defined as "navigable in fact for any purpose."

Wisconsin state law also provides that a permit could be granted as long as the project did not materially obstruct existing navigation or other public rights.

Relying on an earlier case, the court reiterates that a public right, once accrued, is not lost.  For example, a small stream that once fit the broad definition of navigability would remain part of the public domain.

A legislative amendment provided that the public service commission should consider "enjoyment of scenic beauty."  Thus the public service commission needs to consider impact on navigation and beauty in its decisions affecting broadly-defined navigable waters.

The court also determined that a citizen could pursue legal action to assure the public service commission was considering the public rights specified in the law.

Court ordered the Public Service Commission to make findings about the public rights of navigation and scenic beauty/recreation in deciding whether to grant the permit to construction the dam. 

"...required to make findings as to whether public rights for the recreational enjoyment of this stream in its present natural condition outweigh the benefits to the public which would result in the construction of the dam."

 

Village of Tequesta v. Jupiter  Inlet Corp.

  • Florida 1979
  • Weber's 9th, p. 327

This case illustrates several legal concepts and the challenge of making a significant change in law to adapt to changed needs and uses.

Florida adopted a major change in its water law in 1972.  The court's opinion in this subsequent court case explains the implications and implementation of this major legislation.  First, a review of the Florida statute, see Florida Statutes, Chap. 373.

 

Back to the court case

Plaintiff is a developer who applied for a groundwater permit.  Application was denied because nearby municipality already held a permit for that water for the aquifer's "safe yield."  Plaintiff sued the community under a theory of inverse condemnation, that is, the groundwater belonged to the surface owner (that is, the developer) and the community's claim to that water is a trespass.

Court acknowledges that prior to 1972 the common law granted the surface owner right to underlying groundwater subject to the correlative rights of adjacent landowners.  But the court explained that the 1972 statute changed that law.  First, the water is owned by the state, not the surface owners -- even under the common law.  This 1972 legislation, therefore, is not a state taking of water rights; the state already owned the water.  The 1972 legislation is merely an acceptable use of the state's "police power."

The 1972 legislation requires that water use now requires a permit, except for domestic use by the property owner (Fla. Stat. 373,219(1)).  This development would NOT meet the definition of domestic use by the property owner.

The 1972 legislation recognizes rights to use water under the pre-existing common law.  The holder of a common-law right had two years in which to acquire a permit (see Fla. Stat. 373.226(2)).

The governing board or the department shall issue an initial permit for the continuation of all uses in existence before the effective date of implementation of this part if the existing use is a reasonable-beneficial use as defined in s. 373.019 and is allowable under the common law of this state.

Apparently, the developer nor previous owners of the land had previously made use of the aquifer, so after the 1972 legislation, the landowner had no claim to the water right. 

The court states that the legislation permits use of eminent domain only for land to operate wells and transmit water.  The statute prohibits the use of eminent domain to acquire water rights.  This same statute prohibits plaintiffs from using inverse condemnation to force a government entity to pay for water rights (whether or not used) because water rights (according to this statute) cannot be acquired by eminent domain, or conversely, via use that would lead to the application of inverse condemnation.

The court observes that if the water had been previously used, a permit must be acquired within the two transitional years or the right would be considered abandoned.  Since no permit was acquired, there is no prior claim to this water. The state could then grant a permit to another user, which it did by granting a permit to the nearby community. 

In summary, neither the state nor the community "took" a water right from this land developer.

 

Authors' Notes (pp. 326-327 & 330-336, Weber's 9th)

Enacting Statutes that Address Riparian Water Rights

Many legal concepts in the United States were first developed by courts in the form of common law.  in the past 150 years, the United States legal system has evolved to relying more on statutory and regulatory laws, but many of the enacted concepts have a foundation based in common law.

As states adopted statutes to refine their respective riparian water laws, some states continued the existing concepts, other states used the statutes as an opportunity to refine or even redirect their water law.  As one reviews and compares state statutes, there will situations where some statutes reinforce existing common law and there will be situations where the statutes negate and replace the common law concepts.

 

Coffin v. Left Hand Ditch Co.

  • Colorado 1882
  • Weber's 9th, p. 337 & 98

Colorado court replaces riparian doctrine with prior appropriation doctrine primarily on the basis that prior appropriation doctrine would result in better utilization of the state's water resources.

Even state constitutional or statutory language has not been interpreted to mean that the English riparian doctrine would be strictly applied in the United States.

 

Lux v. Haggin

  • California 1886
  • Weber's 9th, p. 337

Federal government granted ownership of land to the state in 1850.

The state sold the land to Lux in 1872.

Haggin acquired a water appropriation in 1875; the point of diversion was on federal land above Lux's land.  Lux sued to enjoin the diversion.  Trial court ruled for Haggin.  State appellate court reversed and ruled in favor of Lux.

The land and water was originally owned by the United States.  What land and water rights did the United States grant to the state?

In 1866, Congress stated that whatever water rights and rights of easement already recognized in the community would be considered established/vested.  The 1850 grant did not state a reservation of water or recognition of water rights as did the 1866 language.  Haggin appropriated water subsequently in 1875. 

Land acquired from the United States prior to 1866 included riparian water rights except if stated differently in the grant. 

Any rights granted by the United States after 1866 were subject to the riparian rights on lands acquired prior to 1866 and any other rights (such as prior appropriation rights) recognized by the  state prior to 1866.

 

Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Board

  • Oklahoma 1990
  • Weber's 9th, p. 344

Court ruled that water law amendments that terminated unused riparian rights violated state Constitution.

Dissenting justice argued that water law amendments did not violate state constitution by terminating unused riparian water rights.  Argued that water rights are not owned by the riparian landowner and therefor terminating an opportunity for future riparian water rights was not a taking. 

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Review N.D.C.C. 61-01-03.

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Some features of water permit statutes in riparian states that may not be found in prior appropriation states (p. 330, Weber's 9th):  priority of time is not an important consideration, permits expire or can be terminated, discretion in allocating water in times of shortage, discretion to reallocate water to new or emerging needs.

 

Closing Thoughts

Note that court cases at the beginning of the chapter stated that water rights were part of the riparian land and that the cases at the end of the chapter stated that water rights are NOT part of the riparian land.  But also note that these rules arose in different states.

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Disclaimer

Email:  david.saxowsky@ndsu.edu

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