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Drainage and Diking

This page considers the legal issues associated with ridding oneself of excess water, such as drainage from a field after spring thaw or a heavy rain. These legal issues have a long history, extending back centuries. State law generally addresses this question, that is, "can I drain unwanted water from my land". An associated question is "can I block unwanted water from draining onto my land." As one can expect, the situations when these questions arise are often emotional.

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State law generally addresses the issues of "can I drain my land" and "can I dike my land".  The process by which these questions are answered will vary by state.  In North Dakota, state law imposes considerable responsibility on local government to oversee what is often a local issue -- one landowner's actions impacting their neigbhor.  But the externalities of water management practices can have impacts for subtantial distances upstream and downstream.  Accordingly, North Dakota also defines a role for state government to help oversee practices used to rid onself of unwanted water.

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Quantity of discharged water

This page primarily addresses North Dakota law that directs the control of "too much water"; that is, North Dakota law that directs the construction and operation of drains and dikes intended to protect land from undesired excess water: 

  • "I drain my land of excess water to the frustration of my downstream neighbors."
  • "I dike my land to prevent excess water from flowing onto my land to the frustration of my upstream neighbors."
  • "That the owner of the lower, or servient, estate must receive surface water from the upper or dominant estate in its natural flow is a well established principle in this jurisdiction. See Jones v. Boeing Company, 153 N.W.2d 897, 903 (N.D. 1967); Rynestad v. Clemetson, 133 N.W.2d 559, 563 (N.D. 1965). Neither the owner of the upper land nor the owner of the lower land may interfere with the natural drainage so as to injure the rights of the other. See Nilson v. Markestad, 353 N.W.2d 312, 315 (N.D. 1984); Lemer, 86 N.W.2d at 45, Syllabus 1." Excerpt from Kadlec v. Greendale Township Board of Supervisors, 1998 ND 165, 583 N.W.2d 817 at http://www.ndcourts.gov/_court/opinions/970359.htm.

But even that statement does not resolve the many questions that arise over someone directing the flow of excess water.

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Like many legal concepts, early drainage law was set forth by courts as common law often based on principles of tort law.  Subsequently, state legislatures enacted statutory law that reiterated, modified or expanded the common law.  North Dakota drainage law followed a similar pattern.

"North Dakota's drainage law has existed since 1883 ... and has since been the subject of much legislative activity. A review of the major revisions leads to one basic conclusion: the drainage laws have been changed often over the years and a myriad of exceptions, cross-referrals, and administrative complexities have been added. Nevertheless, the basic method of establishing a drainage project remains the same.

"In 1975, drainage projects were handled by water management districts, county drain boards, or through the federal government under the .. Act.

"A board of drain commissioners was authorized to implement drainage projects within each county of the state.

"A drainage project could also be handled by a water management district..."

Since the time of this 1983 decision, the North Dakota legislature has further refined the state's drainage law.

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A fundamental principle of North Dakota drainage law is that local government is responsible for directing drainage (and diking), but the state also has a role when the drainage efforts have impacts beyond the jurisdiction of the local govenment.  The following statements drawn from North Dakota statutory law illustrates this principle.

  • [T]o provide for the management, conservation, protection, development, and control of water resources and for the prevention of flood damage in the watersheds of this state and thereby to protect and promote the health, safety, and general welfare of the people of this state ... [t]he legislative assembly ... declares that the most efficient and economical method ... is to establish water resource districts encompassing all of the geographic area of the state, and emphasizing hydrologic boundaries (derived from N.D.C.C. 61-16.1-01).
  • "...but the state engineer may require that applications proposing drainage of statewide or interdistrict significance be returned to the state engineer for final approval" (N.D.C.C. 61-32-03). 

  • Definitions from N.D.C.C. 61-16.1-02

    • "District" means a water resource district.
    • "Water resource board" means the water resource district's board of managers.
      • For a list of North Dakota's water resource boards (districts), see http://www.swc.state.nd.us/4dlink10/4dcgi/resourceboards/Water%20Links
      • Note that the jurisdiction of some districts is defined by a watershed basin, but other districts are defined by county boundaries.
      • Prior to the North Dakota Legislature enacting the current version of N.D.C.C. 61-16.1-01 (cited above), local water issues were considered the responsibilities of counties; thus defining local jurisdictions by county is a remnant of earlier statutory law.

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  • N.D.C.C. 61-16.1-09.  Each water resource board shall have the power and authority to (note the breadth of authority):
    • Exercise the power of eminent domain ... for the purpose of acquiring and securing ... necessary rights in land for the construction of dams, flood control projects, and other water conservation, distribution, and supply works of any nature ... 
    • Accept funds ... for the purposes of aiding the construction or maintenance of water conservation, distribution, and flood control projects; and cooperate and contract with the state or federal government ... [for] any project involving control, conservation, distribution, and use of water.
    • Plan, locate, relocate, construct, reconstruct, modify, maintain, repair, and control all dams and water conservation and management devices of every nature and water channels, and to control and regulate the same and all reservoirs, artificial lakes, and other water storage devices within the district.
    • Maintain and control the water levels and the flow of water in the bodies of water and streams involved in water conservation and flood control projects within the district and regulate streams, channels, or watercourses and the flow of water therein by changing, widening, deepening, or straightening the same, or otherwise improving the use and capacity thereof.
    • Regulate and control water for the prevention of floods and flood damages by deepening, widening, straightening, or diking the channels or floodplains of any stream or watercourse within the district, and construct reservoirs or other structures to impound and regulate such waters.
    • Make rules and regulations concerning the management, control, regulation, and conservation of waters and prevent the pollution, contamination, or other misuse of the water resources, streams, or bodies of water included within the district.
    • Construct, operate, and maintain recreational facilities, including beaches, swimming areas, boat docking and landing facilities, toilets, wells, picnic tables, trash receptacles, and parking areas...
    • Have ... the authority to construct an assessment drain ... 
    • Plan, locate, relocate, construct, reconstruct, modify, extend, improve, operate, maintain, and repair sanitary and storm sewer systems, or combinations thereof, including sewage and water treatment plants, and regulate the quantity of sewage effluent discharged from municipal lagoons... 
    • Develop water supply systems, store and transport water, and provide, contract for, and furnish water service for domestic, municipal, and rural water purposes, irrigation, milling, manufacturing, mining, metallurgical, and any and all other beneficial uses, and fix the terms and rates therefor.
    • Coordinate proposals for installation, modification, or construction of culverts and bridges in an effort to achieve appropriate sizing and maximum consistency of road openings.
    • Plug abandoned water wells ...

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More definitions:  N.D.C.C. 61-16.1-02. 

  • "Conservation" means planned management of water resources to prevent exploitation, destruction, neglect, or waste.
  • "Project" means any undertaking for water conservation, flood control, water supply, water delivery, erosion control and watershed improvement, drainage of surface waters, collection, processing, and treatment of sewage, or discharge of sewage effluent, or any combination thereof...
  • "Assessment drain" means any natural watercourse opened, or proposed to be opened, and improved for the purpose of drainage, and any artificial drain of any nature or description constructed for the purpose of drainage, including dikes and appurtenant works, which are financed in whole or in part by special assessment. 
  • "Affected landowners" means landowners whose land is subject to special assessment or condemnation for a project.

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Despite the focus on local water resource districts and boards, the state, as stated above, has a role in drainage.  The responsible state entities are the state water commission and the state engineer.  Personal observation:  the state engineer is at all times behind the scenes of North Dakota water issues and ready to step forward when necessary.

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Drains

North Dakota References

  • Statutory law: Creating Water Resource Districts:  N.D.C.C. chap. 61-16; note the role of local input, state water commission and state engineer in establishing water resource districts.

  • Statutory law: Operation of Water Resource Districts:  N.D.C.C. chap. 61-16.1; note the beadth of topics:  watercourses, bridges, culverts, dams, dikes, assessment drains, lateral drains, water conservation, and water storage.

  • Statutory law: Floodplain Management:  N.D.C.C. chap. 61-16.2; note the role of the community, water resource district, state engineer and state water commission.

  • Statutory law: Wetlands:  N.D.C.C. chap. 61-32; drainage permits and closing non-complying drains

  • N.D.A.C. chap. 89-02-01 (drainage permits regulations)

  • N.D.A.C. chap. 89-02-04 (drainage complaints regulations)

  • N.D.A.C. chap. 89-02-05.1 (emergency drains regulations) 

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Several fundamental principles of North Dakota drainage have been introduced in the prevous section of this web page; this section expands the discussion by addressing assessment drains, drainage permits and the role of state govenment.

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Assessment Drain

The board of the water resource district is authorized to establish drain projects, that is, projects to drain water from several tracts of land that are likely owned by several individuals.  One purpose of a drainage project is to coordinate efforts to remove (drain) unwanted water, rather than having each landowner doing what the landowner wants to do and leaving the community with an uncoordinated system of drains. 

In establishing a drainage project, the board needs to determine which land will benefit from the project and assess the cost of the project against the benefited land (that is, the board defines a special assessment district).  The affected landowners have an opportunity to vote on the project (see N.D.C.C. 61-16.1-20) and an opportunity to appeal the assessment to the state engineer (N.D.C.C. 61-16.1-23; also see N.D.A.C. Art. 89-02 ).

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Drainage Permit

An alternative to a district drain project is an individual developing a private drain; that is, not all drainage needs involve multiple tracts of land.  There are situations where a landowner wants to drain his or her land.  Such a project will not be assumed by the district, but the district has oversight responsibility in most cases.

  • Any person, before draining a pond, slough, lake, or sheetwater, or any series thereof, which has a watershed area comprising eighty acres or more, shall first secure a permit to do so (N.D.C.C. 61-32-03  ).
    • Note, this is an 80-acre watershed, not an 80-acre wetland.  A one-acre wetland in a watershed of 90 acres cannot be drained without a state permit.
  • The permit application must be submitted to the state engineer (see http://www.swc.state.nd.us/4dlink9/4dcgi/GetSubCategoryRecord/Permits/Drain%20Permits). The state engineer then refers the application to the water resource district or districts within which a majority of the watershed or drainage area is located for the board's consideration and approval.
    • The dispute over water, whether it is drainage or diking, is with the neighbor so local government is called on to provide a solution.  But what if the dispute extends to a neighoring local government, to a neighboring state, or to a neighboring nation?

    • The state engineer may require applications proposing drainage of statewide or interdistrict significance be returned to the state engineer for final approval.
    • N.D.A.C. 89-02-01-09. Criteria for determining whether drainage is of statewide or interdistrict significance:  Drainage would affect property owned by the state or its political subdivisions; drainage of sloughs, ponds, or lakes having recognized fish and wildlife values; drainage or partial drainage of a meandered lake; drainage would have a substantial effect on another district; drainage would convert noncontributing areas into permanently contributing areas, or for good cause, the state engineer may classify any proposed drainage as having statewide or interdistrict significance.

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A permit may not be granted by the board until an investigation discloses that the quantity of drained water will not flood or adversely affect downstream lands.

  • A landowner proposing to drain shall undertake and pay the expenses incurred in making the investigation.

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Evaluation of applications for drainage permit

N.D.A.C. 89-02-01-09.2. The board, for all applications to drain, shall consider the following factors:

  • The volume of water proposed to be drained and the impact of the flow or quantity of this water upon the watercourse into which the water will be drained.
  • Adverse effects that may occur to the lands of lower proprietors. This factor is limited to the project’s hydrologic effects such as erosion, duration of floods, impact of sustained flows, and impact on the operation of downstream water control devices.
  • The engineering design and other physical aspects of the drain.
  • The project’s impact on flooding problems in the project watershed.
  • The project’s impact on ponds, sloughs, streams, or lakes having recognized fish and wildlife values.
  • The project’s impact on agricultural lands.
  • Whether easements are required.
  • Other factors unique to the project.

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Flowage Easement

If the investigation shows that the proposed drainage will flood or adversely affect lands of downstream landowners, the water resource board may not issue a permit until flowage easements are obtained.

  • The flowage easements must be filed for record in the office of the recorder of the county or counties in which the lands are situated.
  • Flowage easement -- An easement is the legal right to use another person's land for a limited purpose, such as me travelling over your land to reach my land.  Without an easement or your permission, if I enter my land, I am committing a trespass.  The same legal principle applies to draining water; if I cause water to flow onto your land without your permission, I am trespassing on your property rights.  By requiring a person who wants to drain to acquire a flowage easement from downstream landowners, North Dakota law is encouraging a practice for water that is no different than when I travel across your land (N.D.C.C. 47-05-01).
    • How far downstream must a person who is draining acquire flowage easements?  Until the water reaches a watercourse?
    • What happens if the downstream landowner refuses to grant a flowage easement?  Water law allows a person to exercise eminent domain to acquire rights in private property to move appropriated water to the location of the water's use; there does not appear to be a comparable right for an individual to exercise eminent domain to acquire a flowage easement to drain water.
    • The water resource board arguably has the power of eminent domain to acquire flowage easements for assessment drains; see N.D.C.C. 61-16.1-09.
    • See Larson v. Wells County Water Resource Board, 385 N.W.2d 480 (N.D. 1986) at http://www.ndcourts.gov/_court/opinions/11035.htm.  Even though the Larson case does not answer the issues posed above, it does provide some insight into North Dakota's statutory law on flowage easements as they pertain to drainage permits.
    • See Nagel v. Emmons County ND Water Resource District, 474 N.W.2d 46 (ND 1991) at http://www.ndcourts.gov/court/opinions/900429.htm:  a flowage easement may be acquired by prescription.

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No drainage permit (common law)

If the watershed to be drained is less than 80 acres (which is uncommon, but does occur), no drainage permit is needed.  The state relies on common law to drect such drains; see the following North Dakota court decisions.

Rely on commmon law if area to be drained is less than 80-acres, see Martin v. Weckerly, 364 N.W.2d 93 (N.D. 1985) at http://www.ndcourts.gov/_court/opinions/10696.htm -- a North Dakota Supreme court decision in which the justices describe "reasonable use" as it applies to surface water drainage.

  • "The reasonable-use concept is based upon the principle that although every landowner has the right to the use and enjoyment of his property, such use must be reasonable so as not to cause unnecessary injury to others. 
  • "Therefore, drainage of surface waters complies with the reasonable-use rule if:

    (a) There is a reasonable necessity for such drainage;

    (b) If reasonable care be taken to avoid unnecessary injury to the land receiving the burden;

    (c) If the utility or benefit accruing to the land drained reasonably outweighs the gravity of the harm resulting to the land receiving the burden; and

    (d) If, where practicable, it is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or if, in the absence of a practicable natural drain, a reasonable and feasible artificial drainage system is adopted.

  • "Consequently, the objective of the reasonable-use rule is to determine whether or not circumstances exist which will justify a court in shifting the loss from the person harmed ( the downstream landowner ) to the person causing the harm ( the 'draining' landowner ).
  • "The reasonable necessity requirement must be considered in light of the policy established by the reasonable-use rule to equitably balance the developing and improving of land with any consequential harm to other property.
  • "... Weckerly conducted no investigation concerning the impact his drainage would have on downstream landowners and that he otherwise took no significant action to avoid unnecessary harm to Hanson's property.
  • " The trial court found Weckerly's drainage was the proximate cause of the damage to Hanson's property.
  • " Weckerly asserts there was no proof that his improved drainage caused any abnormal runoff and that any high runoff was attributable to unseasonably high rainfall... Weckerly claims that drainage from other upstream landowners was responsible for the bulk of the runoff, and consequently the bulk of the drainage, to Hanson's property. We find Weckerly's argument unconvincing. Weckerly voluntarily consented to the drainage of water onto his land by upstream landowners. It was, or should have been, reasonably foreseeable to Weckerly that the commingling and subsequent drainage of his surface water with that of upstream landowners could cause harm to Hanson's property.
  • " The law should not inhibit reasonable development and improvement of land, but neither should it allow a landowner to expel surface water without regard to the consequences."

Also see, Nilson v. Markestad, 353 N.W.2d 312 (N.D. 1984) at http://www.ndcourts.gov/_court/opinions/10549.htm (reasonable use)

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Maintaining a Drain

Maintaining an assessment drain (N.D.C.C. 61-16.1-45); maintaining a drain:  "A drainage permit ... is not required for maintenance of a drain." (N.D.A.C. 89-02-01-05(1) )

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Enforcement of Drainage

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License for emergency drain

The state engineer may adopt rules for temporary permits for emergency drainage.

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Dikes

  • North Dakota law addresses dikes, dams and other water conservation projects; it appears that drainage is not considered an "other water conservation project". 
  • Focus of this discussion is on dikes that are intended to limit water from flowing onto land; the discussion will not emphasize dams where the intent is to impound water for later use.
  • Water resource district/board has a regulatory role in matters involving dikes.
  • Need a permit to construct a dike or dam; see N.D.C.C. 61-16.1-38; N.D.A.C.  Art. 89-08 Dams, Dikes, and Other Devices
    • 61-16.1-38. Permit to construct or modify dam, dike, or other device required - Penalty - Emergency.

    • 61-16.1-39. Dams or other devices constructed within a district shall come under control of a water resource board.

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    • maintain a dike
    • Remove a non-complying dike (N.D.C.C. 61-16.1-53)

      • Upon receipt of a complaint of unauthorized dike, the water resource board shall promptly investigate and make a determination. If the board determines that a device has been established or constructed contrary to this title, the board shall notify the landowner.  The notice must specify the nature and extent of the noncompliance and must state that if the dike is not removed within the period the board determines, but not less than fifteen days, the board shall cause the removal of the dike and assess the cost of the removal against the property of the landowner.

      • In the event of an emergency, the board may immediately apply to the appropriate district court for an injunction prohibiting the landowner from constructing or maintaining the dike, or ordering the landowner to remove the dike.

  • Interstate dikes (Minnesota and North Dakota)
    • N.D.A.C. chap. 89-05-01 Construction of Dikes Within the Floodplains of the Red River of the North and the Bois de Sioux Rivers

  • common law for private dikes?

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North Dakota Drainage Law

Resolution of the concerns is led by state law

Larson v. Wells County Water Resource Board, 385 N.W.2d 480 (N.D. 1986) at http://www.ndcourts.gov/_court/opinions/11035.htm (flowage easement)

Eichhorn v. The Waldo Township Bd. of Supervisors, 2006 ND 214, 723 N.W.2d 112 at http://www.ndcourts.gov/_court/opinions/20050295.htm (upstream landowner's request for larger culvert to speed drainage was denied) 

private drainage (need a permit) and local government drainage (authority to impose an assessment to reflect benefit from the public drain project)

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This section does not apply to the construction or maintenance of any existing or prospective drain constructed under the supervision of a state or federal agency, as determined by the state engineer.

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Water resource district

Create a water resource district N.D.C.C. chap. 61-16

Operate a water resource district N.D.C.C. chap. 61-16.1

  • Powers of water resource boards N.D.C.C. 61-16.1-09

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Other States

South Dakota

South Dakota apparently enacted a major change in its "drainage" law in 1985.  SDCL chap. 46A-10ADid South Dakota primarily rely on common law and court adjudications prior to 1985?

46A-10A-31.   Recording existing drainage rights:  "Any drainage right lawfully acquired prior to July 1, 1985, arising from drainage which is natural with man-made modifications or entirely man-made is also deemed vested, provided the right is recorded with the appropriate county register of deeds within seven years of July 1, 1985."

46A-10A-30.   Permit system for drainage: "Any board or commission ... may adopt a permit system for drainage. Such permit system shall be prospective in nature. Permits shall be granted consistent with the principles outlined in § 46A-10A-20 ... However, permitted drainage which is enlarged, rerouted, or otherwise modified shall require a new permit. Any vested drainage right not recorded under the provisions of § 46A-10A-31 shall require a permit for its use if a permit system has been established in the county where it exists.

46A-10A-20.   Legal controls for drainage management"  "Official controls instituted by a board may include specific ordinances ... Any such ordinances ... shall embody the basic principle that any rural land which drains onto other rural land has a right to continue such drainage if: (1) The land receiving the drainage remains rural in character; (2) The land being drained is used in a reasonable manner; (3) The drainage creates no unreasonable hardship or injury to the owner of the land receiving the drainage; (4)  The drainage is natural and occurs by means of a natural water course or established water course;  (5)  The owner of the land being drained does not substantially alter on a permanent basis the course of flow, the amount of flow, or the time of flow from that which would occur; and (6) No other feasible alternative drainage system is available that will produce less harm without substantially greater cost to the owner of the land being drained.

 46A-10A-70.   Permissible drainage of land:  Subject to any official controls ... owners of land may drain the land in the general course of natural drainage by constructing open or covered drains and discharging the water into any natural watercourse, into any established watercourse or into any natural depression whereby the water will be carried into a natural watercourse, into an established watercourse or into a drain on a public highway... If such drainage is wholly upon an owner's land, he is not liable in damages to any person.

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Minnesota

MSA 103G.211 and 103G.221 et. seq.:  note the emphasis on having to replace any drained wetland. See 103G.211 and 103G.222.

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Federal Law

Swampbuster?

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Summary

This page focused on issues over the quantity of water being drained or directed.  The next page focuses on the quality of the water.  These topics will include federal statute (Clean Water Act), state implementation, discharge of water (such as Devils Lake).  Then address the question of Clean Water Act jurisdiction over wetland fill and wetland drainage.  Finally, move onto Endangered Species Act, etc.

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Can I rid myself of ground water I do not want?

Alameda County Water District v. Niles Sand & Gravel Co., California, 1974 (not in Gould's 7th ed)

  • Water district diverted water from creek so it could be stored in recharge areas and then percolate into a groundwater basin. A mining company had pits that flooded due to the recharge. The company removed the water by pumping it to the sea.
  • Trial court denied the mining company's claim for inverse condemnation and enjoined it from pumping the water to the sea.
  • Trial court stated that the mining company's land is subject to a "public servitude for water and water conservation."  The trial court also stated that the company's right to the water was only "a correlative and reasonably beneficial use" based on its status as an overlying landowner.
  • Appellate court agreed with the trial court -- pumping the water from the pit and discharging it to the sea was an unreasonable use. Also, the idea that the land was burden with a public servitude had been recognized since 1903.
  • No inverse condemnation -- the mining company is protected against arbitrary and unreasonable action by the water district (such as withholding consent to pump beyond the injunction) through access to the judicial system; also, imposition of correlative rights doctrine is an exercise of police power.

Public servitude -- required to allow water (groundwater?) to remain on your land even though it interferes with your activities? What rights do I have in my property?

Underground storage added as a beneficial use in some western states; that is, one can acquire the right to store water underground.  But what legal rights does the appropriator have to recapture the water, or does it once again become public water when it has re-entered the aquifer? What incentive would there be to recharge an aquifer if the water is then available to be appropriated by another user for another purpose?

Is it a trespass (private party) or taking (public entity) of my property when someone recharges the aquifer under my land? Or is my land subject to a servitude of having to accept water from natural (and artificial) sources that seep underground? How much artificially recharged water must I tolerate?

Recognize that this case is from the early 1970s, before the impact of environmental regulation (e.g., Clean Water Act) was in full effect.  If this fact arose today, there would likely be additional issues, such as can the water be pumped into the sea.

Disclaimer

Email:  david.saxowsky@ndsu.edu

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