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Legal Doctrines

This page introduces riparian doctrine, prior appropriation doctrine, California doctrine, and allocation of groundwater.

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States in the United States apply several legal doctrines when allocating the right to use water.  Much of these practices reflect history.

Europeans who first settled along the eastern coastline allocated water by allowing persons to use the water adjacent to their land.  The primary uses of water were for domestic needs and navigation.  With time, water was used to power industry. A water user would protect their legal right to water by bringing a legal action, based on tort law, against a competing water user.  The understanding is that a water right has some of the characteristics of a property right and thus a person with a water right could protect their water right against those whose use adversely impacted the water right.  Bottom line, enforcing water rights was based on tort law.

As the European settlers moved west across the continent, the first practice was to apply riparian doctrine, but the settlers soon recognized that they needed to divert water from its source so the water could be used for irrigation and mining.  These projects required extensive investments, so the law was modified to assure water rights for the investors.  Thus the prior appropriation doctrine arose wherein the first to use water from a particular water source had the highest legal right to continue to use the water from that source.

The challenge of enforcing a water right against all other users from the water source via tort law was too cumbersome.  States began to devise alternative means of recording water rights, such as Colorado water courts or a state permitting system.

California was one of the early areas of European settlement in the west so it applied the riparian doctrine.  Subsequently, California began to adopt the prior appropriation doctrine.  However to preserve the existing riparian rights, the state continues to recognize those early rights that were based on riparian doctrine.  Accordingly, California has early water rights based on riparian doctrine and later water rights based on prior appropriation doctrine.  The California doctrine is based on both legal doctrines.

Much of this early water law addressed surface water but as needs and pumping technology advanced, groundwater would be used. Groundwater was first allocated much like riparian doctrine, but with time, states began to apply the prior appropriation doctrine to groundwater as well.

The purpose of this page is to introduce these several legal concepts:  riparian doctrine, prior appropriation doctrine, the California doctrine and groundwater allocation.

California law also has a limited recognition of Pueblo rights which extend back to the region's Spanish heritage.  For example, see pages 21-22 of Weber's 9th.  Pueblo rights grant priority to municipal water uses.

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Riparian Doctrine

Riparian 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.  Be certain to review pp. 5-8 of the casebook.

  • 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..."
  • 256.415. Any unregistered diversion of water by a major water user is hereby declared to be a nuisance and the director may request the attorney general to file an action in the name of the state for an injunction to stop all water withdrawal or diversion from a water source; provided, however, that any person withdrawing or diverting from a water source may continue to withdraw or divert from that water source while such action is pending. The issuing court shall dissolve the injunction issued under this section when the person files a current registration with the division. [emphasis added]

 

  • Tennessee: statutes chap. 69-07
    • 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;"
    • 69-7-202. "The general assembly finds that as the population and demand for water resources grow, it is prudent to engage in planning for the future and to have an explicit mechanism in place to regulate proposals for the diversion of water from one river basin to another. By removing water from rivers, such inter-basin transfers raise issues of the protection of the public health, safety, welfare and the environment as the water is no longer available for use in the original stream. The primary purpose of this part is to allow regulation on the basis of the quantity of water in river basins. Although the common law addresses some of these concerns, it relies on after-the-fact litigation rather than a modern regulatory system. As this is remedial and police power legislation, all sections of this part shall be liberally construed to effectuate its purpose."  [emphasis added

 

    • 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 §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 ...

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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Basis of Right (Riparian Doctrine)

Anaheim Union Water Co. v. Fuller, California, 1907 (p. 247 of Weber's 9th 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.  

 

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.

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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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But how much water can I use? -- Reasonable Use

Harris v. Brooks, Arkansas, 1955 (p. 258 of Weber's 9th 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 riparian users.
  • 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 lawful activities.
  • 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.

 

In the eastern states, initial water uses were in-stream:  navigation, power to operate saw mills, gristmills, cotton gins and other such industries.  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 "I cannot alter the flow of the water".  Thus the basis for the "natural flow" doctrine.

With 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.

  • Note that a use must be reasonable before the user could argue that someone else' use is unreasonable. 
  • The reasonable use theory allows more water to be put to use than the natural flow theory.

Domestic 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?

 

Restatement of Torts - Reasonable Use of Water (pp. 265-266 of Weber's 9th Ed.)

  • Purpose of use
  • Suitability of use to the watercourse
  • Economic value of the use
  • Social value of the use
  • 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

Examine 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 use.

 

Users will be required to use reasonable means to capture and divert water.

Existing users must accept later uses that do not impose substantial economic losses or that impose only an inconvenience; this is the inevitable result of development.

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Are 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 riparian landowner?

  • One rule: non-riparian use can be enjoined even if it does not cause harm to a downstream riparian landowner.
  • 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.
    • Remember, a riparian use needs to be reasonable in order to have standing to argue that another riparian use is unreasonable.  The downstream non-riparian use does not have standing to argue that an upstream riparian use is unreasonable.
  • Non-riparian use by riparian landowner is not per se unreasonable.

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Prior Appropriation Doctrine

Law for allocating water in the western states (the line of states from North Dakota to Texas and west) is primarily prior appropriation and generally means that "the first person to put the water to a beneficial (productive) use has the best legal right to continue to use the water."  Those who put water to a beneficial use at a later time have a subordinate water right and generally must not use water if there is not enough water to meet everyone's needs.

Note: a key concept is beneficial use. This idea will arise throughout the discussion of prior appropriation doctrine.

This case presents some thoughts on the origin of the doctrine of prior appropriation. Subsequent cases describe the attributes of the doctrine as it has evolved over the last 160 years.

Irwin v. Phillips, California 1855 (p. 16 of Weber's 9th ed.)

  • Can an individual divert water from a stream so the water can be used for mining even though that diversion leaves an inadequate amount of water for persons who subsequently settle the land next to the stream (that is, settled on riparian land)?
    • The eastern portion of the United States applies the riparian doctrine to determine who is entitled to use the water.  This doctrine, in general terms, holds that the person who occupies the land adjacent to the water source has the right to use the water.  Thus this court case presents the issue of whether riparian rights will be recognized in the western states.
  • A person has no right to complain if he or she has selected a piece of ground where the water has already been diverted to a legitimate use; the person must take the land as it is, including the fact that the water has been diverted for a high and legitimate purpose.
  • Riparian water law (which is based on the idea that the landowner owns the stream to the middle and requires that water be allowed to flow in its natural channel) was irrelevant because this was public land.
  • The court did not allowed subsequent parties to base a claim for the water on an argument that they are "tenants at will."
  • The court took notice that the persons in the area had allowed a system to develop; the population assented to the system; and governments also had explicitly or implicitly assented to it. Within the system is the idea of protecting the rights of those who spent money and effort to divert water.
  • The court also took notice that this "system" threw off the idea that all users of water were obligated to return the water to the stream of origin undiminished in quality and quantity. Instead, the person who uses the water is entitled to use the amount of water originally appropriated (as measured by the size of the diversion), and failure to use the water for a period of time would be considered an abandonment.
  • The person who first applied water to a beneficial use will be entitled to use that amount of water in the future and will have priority over subsequent users.

 

The authors' notes following the case (pp. 18-22 of Weber's 9th ed.) explain how prior appropriation theory is different from the riparian water rights theory that was followed in the eastern part of the country.  Note the authors' comments about the influence that mining, irrigation, Spanish or Mexican law, and the Morman church had on the emerging water law of the western United States during the second half of the 19th century.

  • Spanish and Mexican water law in southwestern United States was not riparian or prior appropriation. 
  • Early settlers in Utah (primarily Mormans) adopted a custom reflective of prior appropriation theory. 
  • Irrigation influenced the development of prior appropriation doctrine -- but what will influence water law in the future?

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Also note the comments on how other nations and legal systems (present and past) have wrestled with the issue of whether to adhere to riparian doctrine or prior appropriation doctrine.

  • The legal doctrine of other nations are similar to prior appropriation; restated, the law in other nations protect the first users. 

 

The brief description of the California doctrine introduces the notion of using a combination of the two doctrines. For example, California recognizes a combination of riparian and prior appropriation doctrines.

 

Finally, note the comment that water law is generally a matter of state law in the United States, not federal law -- but is that changing?

 

Additional thoughts

  • Key points within prior appropriation theory is that appropriators are entitled to use only as much water as they have been using; that is, can only use as much as the user has put to a beneficial use.
  • The court in the Irwin case mentioned the importance of having a legal system that protects a person's opportunity to reap the benefits of their investment.  This is an idea that applies throughout the legal system; not just in the area of water law.

 

Initial thoughts on Beneficial Use

N.D.C.C. §61-04-01.2 "A right to appropriate water can be acquired for beneficial use only as provided in this chapter. Beneficial use shall be the basis, the measure, and the limit of the right to the use of water."

 

  • The user must apply the water to a beneficial use to acquire the right to use the water; that is, the legal basis for the water right is that the user is applying the water to a beneficial use.
    • Beneficial use means a use of water for a purpose consistent with the best interests of the people of the state (N.D.C.C. §61-04-01.1(1)).
  • The quantity of water applied to a beneficial use is amount or measure of water that the user is entitled to use. Users cannot decide for themselves to increase the amount of water they will use; and if they decrease the amount of water they use, they will not be entitled, at a later time, to increase their use and return themselves to the original quantity of water.
  • The purpose, location, and other characteristics of the use of the water define the limits of how the water can be used.  The right to use the water is limited to the original purpose to which the water was used, in the original location in which the water was used, etc. We will study these limits and their exceptions throughout this chapter.

 

Initial Thoughts on Priority

If you divert water and put it to use (a beneficial use), you will have the right to continue using the water. Only if there is not enough water, will there be a question about who gets to use the water. In the western states, the first to use water has the priority; that is, the doctrine of prior appropriation.

 

But who really owns this water? 

In most states, the state owns the water; users only acquire the right to use the water. See ND Constitution.

  • ARTICLE XI, Section 3. All flowing streams and natural watercourses shall forever remain the property of the state for mining, irrigating and manufacturing purposes.
  • Also see N.D.C.C.61-01-01

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What water is being discussed?

  • N.D.C.C. §61-01-01 Waters of the state include:
    • Surface water excluding diffused surface water but including surface water flowing in a well-defined channel.
      • N.D.C.C. §61-01-06 A watercourse entitled to the protection of the law is constituted if there is sufficient natural and accustomed flow of water to form and maintain a distinct and defined channel. It is not essential that the supply of water by continuous or form a perennial living source. It is enough that the flow arises periodically from natural causes and reaches a plainly defined channel of permanent character.
      • Diffused surface water is water derived from falling rain and melting snow until it reaches a well-defined channel or watercourse.
    • Water under the surface of the earth, including water which flows in defined subterranean channels or are diffused percolating underground water.
      • Note that some states distinguish between percolating groundwater and subterranean channels.
    • Residual waters resulting from beneficial use.
    • Water artificially drained.
    • Water (excluding privately owned waters) in noncontributing drainage areas; that is, any area that does not contribute natural flowing surface water to a natural stream or watercourse at an average frequency more often than once in three years over the latest thirty-year period.

 

Initial Summary of Prior Appropriation Doctrine:

  • Water belongs to the state, but users can acquire the right to use water.
  • A user who has put water to a beneficial use is entitled to continue to use that quantity of water for that purpose.
    • Implied in this statement are the ideas that a user cannot increase the quantity of water used nor change the use of the water. Like all general rules, there are exceptions; these exceptions will be explored in subsequent sections.
  • The first user of water has priority (superior legal right) to continue using the water over subsequent users of the water.

 

Links to state water law

The following links connect to web sites containing the statutory water laws for other prior appropriation states. Consider visiting some of these sites to learn how other states address some of their water law issues.

Florida (a riparian state?) is added at the end of the list because of its emerging system of water permits -- this transition will be addressed in subsequent sections.

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California Doctrine

California doctrine - effort to preserve the dual system; see California Water Code, §101 and §1201

Lux v. Haggin, California 1886 (pp. 337, et seq & 21, Weber's 9th ed.)

  • Federal government granted land to California in 1850
  • Miller & Lux purchased land from California in 1872 and "irrigated" grass land for hay production.
  • In 1875, Haggin acquired the right to divert water upstream -- also to irrigate.
  • Miller & Lux sued Haggin to enjoin the proposed diversion on the basis that Haggin's upstream diversion would interfere with Miller & Lux's riparian rights
  • Miller & Lux relied on the notion that a grant of land to the state and the subsequent sale to them carried with it the riparian right.
  • The court cited the Congressional statute of July 1866:  "owners of [vested rights to use water] shall be maintained and protected"
  • The court also cited that "one who acquired a title to riparian lands from the United States prior to the act of July 26, 1866, could not ... be deprived of his common-law rights to the flow of the stream by one who appropriated its waters after the passage of that act".

The riparian rights arise at the time that federal land is patented to the first private owner.  Prior appropriated rights existing at time of the patent have priority over the riparian rights; appropriated rights arising subsequent to the patent are subordinated to the ripariarn doctrine.  In a sense, the patent established riparian rights even though the water was not appropriated (being used).

  • Unexercised riparian rights would be subordinate to perfected appropriated rights; but the subordination can only occur through a statutory stream-wide (basin wide) adjudication.

What does this mean?  The federal government owned the water rights before a state entered into the Union.  At the time the state entered the Union, the federal government transferred the unallocated waters to the state.  In this case, Lux's riparian water right stems back to the 1850 grant of water from the federal government to the state (and then to Lux), whereas Haggin's water right stems from the 1866 grant from the federal government to the state.

Just as important, though, this case establishes that a water right based on federal ownership prior to statehood has priority over water rights arsing from the state after statehood.  This issue will arise again when we address federal reserve water rigths and Indian water rights.  The argument, for example, will be that the Indian water rights arose from the federal government prior to statehood and therefore have priority over water rights that subsequently arise from the state AFTER statehood.

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The following statements paraphrase several California statutes and are offered only to illustrate the state's application of both basic water appropriation doctrines (paraphrased from http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=00001-01000&file=100-112).

  • 101. Riparian rights in a stream or watercourse attach to... so much of the flow thereof as may be required or used ... for the purposes for which such lands are adapted or may be adapted, in view of reasonable and beneficial uses. [H]owever, riparian owner should not be deprived of a reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, nor should any appropriator of water be deprived of water to which he is lawfully entitled.
  • 100. It is hereby declared that ...1) the water resources of the State be put to beneficial use to the fullest extent of which they are capable, 2) the waste or unreasonable use or unreasonable method of use of water be prevented, and 3) the conservation of such water is to be exercised with a view to the reasonable and beneficial use thereof.

The right to water or to the use or flow of water in or from any natural stream or watercourse in this State is limited to the water that is reasonably required for the beneficial use to be served.  Such right does not extend to the waste or unreasonable use, unreasonable method of use, or unreasonable method of diversion of water.

  • 100.5. Conformity of a use, method of use, or method of diversion of water with local custom shall not be solely determinative of its reasonableness, but shall be considered as one factor to be weighed in the determination of the reasonableness of the use, method of use, or method of diversion of water.

Also see http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=01001-02000&file=1200-1203

  • 1201. All water flowing in any natural channel is public water subject to appropriation, except water that 1) has been or is being applied to useful and beneficial purposes, or 2)  is or may be reasonably needed for useful and beneficial purposes upon riparian land.

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Groundwater Practices

Am I entitled to withdraw groundwater?

How much groundwater can I withdraw?  Am I liable if my pumping causes my neighbor to not have access to the groundwater?

  • Allocation or management of groundwater was addressed similarly to surface water under the riparian doctrine.  This practice extended into the western states even though those jurisdictions were adopting the prior appropriation doctrine to address surface water issues.  As a consequence, some western states applyied prior appropriation doctrine for surface water and aspects of riparian doctrine to groundwater.  This distinction became cumbersome as we improved our understanding of the interconnection between groundwater and surface water.  The following case provides an overview of how groundwater issues were initially addressed.

 

State v. Michels Pipeline Construction, Inc., Wisconsin, 1974 (p. 359 of Weber's 9th ed.)

  • City began pumping water from wells to dewater the soil so a sewer could be built. This caused private wells to dry up and damage buildings (due to subsidence of the soil).
  • Trial court dismissed complaint for no cause of action (for interference with ground water).
  • Court distinguishes between percolating groundwater and underground stream.
  • The court also summarizes various rules for resolving percolating ground water disputes. The court adopts the Restatement rule.
    • absolute ownership (English or common law) -- person who owns the surface can use as much water as desired (on overlying land and non-overlying land) without liability to neighbors (rule of capture); the right to withdraw water can be transferred to another; only limitation is that the damage to the neighbor cannot be done with malice, nor can the use of water be a waste. This doctrine is analogous to riparian doctrine in that owning adjacent land (that is, overlying surface in the case of groundwater) entitles the owner to use the groundwater.
    • reasonable use -- limited to amount of water needed for a useful or beneficial purpose on the overlying land (even if others are injured); use on non-overlying land is limited to "not injuring adjoining landowners;" that is, may use the water on other (non-overlying) land as long as persons with overlying land are not injured.
      • reasonable use theory does not protect a water user from the actions of an adjacent water user who is applying the water only to their overlying land; reasonable use theory primarily protects a water user from the actions of another water user who is applying the water to non-overlying land.
    • correlative rights -- all owners of overlying land are co-equals, and no one can extract more than their share, even for use on their portion of the overlying land, if other owners of overlying land are injured.  This theory arguably uses the reasonable use theory as long as there is no water shortage.  If that is true, the limitation under the correlative rights theory is triggered only if there is not enough water for all uses on the overlying land owners.  This doctrine holds that there is a limit to use on non-overlying land AND overlying land.
  • The court reinstated the complaint and remanded the case.
    • Restatement of Torts -- landowner who applies the water to a beneficial use is not liable for damages unless 1) the withdrawal of groundwater unreasonably causes harm through lowering the water table or reducing pressure (whether or not the harmful use is on overlying land), 2) the withdrawal exceeds the owners' reasonable share of the supply; or 3) the withdrawal has a direct and substantial effect upon a watercourse and unreasonably causes harm to a person entitled to the use of that water.

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Water rights have some characteristics of other property rights.  Also, the law initially held that proximity of land to the aquifer entitled the surface owner to use the water (similar to riparian doctrine); thus your actions that interfere with my use of water that I am entitled to is an interference with my "property" right and my recourse is through the legal theory of tort law.

Note that these doctrines are based on common law. This is not uncommon in our legal system, but for this area of the law, it appears that attempts to codify the common law have not progressed as far as in some other areas of the law, including prior appropriation doctrine for surface water.

  • Note on page 8 of the casebook (Weber's 9th ed.) the authors' statement that some states apply prior appropriation doctrine and a permitting system to allocate ground water.

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The theories of reasonable use and correlative rights are often blended by the courts.  Under these various theories, do I own the groundwater?

  • absolute theory -- you are the owner
  • other theories -- you are not the owner

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Next Topic

The next topic focuses on Riparian doctrine

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Email:  david.saxowsky@ndsu.edu

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