Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 1 of 17 LAKES & STREAMS ON THE SURFACE Common Law Riparian Rights Statutory or Constitutionally Based Natural Flow Theory Reasonable Use Theory Prior Appropriation Theory England and a Few Eastern States Eastern States Western States 1. Landowner has right to water in its natural state 2. Each Riparian may use the water for either natural or artificial wants so long as he uses it only on riparian land and does not sensibly affect the quantity or quality of the water 3. The rights of all riparians are equal 4. A lower riparian has a right of action against an upper riparian whenever the latter’s use of the water materially affects either the quantity or quality of the lake or stream waters, even though such use results in no injury or damage to the lower riparian 5. This rule or theory has the merit of being relatively certain and definite so that the riparian owner knows fairly well just how far he can go in his use of the water. It is non-utilitarian in its restricted use and wastage of water 1. Each riparian proprietor has the fundamental right to make the maximum use of the water in the stream or lake provided such use does not unreasonably interfere with th4e like use by other riparians. Under this theory the stress is laid, not on the effect the used has on the stream or lake in its natural condition, but upon the effect the use has on other riparians. 2. Each riparian may use the water for any beneficial use either on riparian or nonripaaria lands so long as the use does not interfere with the reasonable use by other riparians. Reasonable use alone constitutes the measure and the limit of the water right. Reasonableness is a question of fact under the circumstances of each case measured by the importance of the use on one hand and the gravity of the effects on other riparians on the other hand 3. The rights of all riparians are equal 4. A lower riparian has no right of action against an upper riparian until he can show that the use is unreasonable and that such use has caused damage to the lower riparian 5. This theory has the merit of giving to each riparian the right to make the maximum beneficial use of the water available in the lake or stream, but its weakness is its definiteness for no riparian can determine the extent of his rights as against his fellow riparians The sole aim and purpose of the prior appropriation doctrine is to make possible the maximum beneficial use of the limited supply of water available. The underlying theory of this doctrine is this – he who first appropriates a supply of water to a beneficial use is first in right. Policy Example – Prior Appropriation Suppose A and B each owns 40 acres of arable and irrigable land; that it takes 3 acre feet of water to raise a crop on each acre of such land. This means there must be during the season for raising the crop a total amount of water three feet deep on each acre or that amount spread over each acre of the entire irrigated area. The available supply of water is just enough to cover 40 acres three feet deep during the season. If the entire available water supply is spread over the entire 80 acres owned by A and B, thus making 18 inches of water of the whole surface area, it is obvious that neither A nor B will raise a crop and all the water will have been lost or wasted. On the other hand if the entire available supply is used exclusively either on A’s 40 acres or on B’s 40 acres, there will be at least one 40 acre crop raised. Hence, if A first appropriates the 3 acre feet of water and puts it to a beneficial use on his 40 acres of land, his right to the water is recognized prior to any right of B to use any of such limited supply under the prior appropriation doctrine. If B makes such appropriation first, then A will have no right to such water supply. Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 2 of 17 Example Contrasting Natural Flow and Reasonable Use Theories A, an upper riparian along a stream of water, diverts the water from the stream for the purpose of irrigating both his riparian and non-riparian lands. The diversion of the water causes the level of the water in the stream to go down six inches below its normal level. However, there is plenty of water in the stream to supply all of the possible and reasonable uses to which the lower riparian, B, can put the water. B sues A to enjoin A’s unreasonable use of the water in the stream. Under the natural flow theory the injunction would issue because B has the right to have the natural level of the water in the stream maintained. Under the reasonable use theory the injunction would not issue because B can show no injury to himself as a lower riparian. Furthermore, under the natural flow theory it is an unreasonable use per se that A is using the water on non-riparian lands. To be riparian, land must border the stream and be within the watershed. The theory is that water used on riparian lands as thus restricted will eventually return to the same stream and therefore the water in the stream will remain undiminished in quantity. Under both the doctrine of riparian rights and the doctrine of prior appropriation the waters of lakes and streams belong to the public. Water is not the subject of private ownership, it can only be used. One may own water when he has it in a cup or vessel but when it is released it returns to public ownership. PERCOLATING WATERS (Water is below surface and seeps, oozes, or filters into the earth from the surface and moves, drips, or flows among the interstices of the earth) Law of Capture (Absolute Dominion) Reasonable Use Theory Prior Appropriation Theory Landowner has absolute ownership of water beneath the surface. Some jurisdictions require water to be used for a beneficial purpose Only reasonable use permitted, in light of all relevant circumstances, including the effect on neighboring landowners State ownership of percolating waters and protects the appropriators who comply with the law of seniority of appropriation, that is, a prior appropriator is protected against a subsequent appropriator who interferes with his available supply. SURFACE WATERS Comes from rains, springs and melting snow and ice; follows contours of earth; has not yet reached a stream or lake. Differentiate from flood waters which have already been in a stream or lake and have overflowed its banks Common Enemy Rule (Common Law) Natural Flow Theory (Civil Law) Reasonable Use Theory Landowner has unlimited discretion. Landowners may not interfere with the natural flow and must accept the natural flow of surface waters. This effectively imposes a servitude on each parcel of real estate to receive the natural flow of water from above. The landowner’s conduct in regard to surface water must be reasonable in the light of all relevant circumstances, including the benefit to himself and the harm which results to others. The rights of riparian proprietors to the use of waters in a non-navigable lake for boating and other recreational purposes are equal, and each riparian owner, under the civil law rule, which is more utilitarian, has the right to use all the water in the lake for such purposes so long as his use is not an unreasonable interference with the rights of other riparian owners. The common law rule, on the other hand, restricts each landowner to the use of the water overlaying the land he owns. Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 3 of 17 COMPARISON OF COMMON LAW RIPARIAN RULES TO PRIOR APPROPRIATION DOCTRINE Common Law Riparian Rules Prior Appropriation Doctrine 1. The distinguishing features of the common law riparian rules are Equality Of Rights and Reasonable Use. There is no priority of rights, the reasonable or permitted use by each is limited by a similar use in every other riparian. (This is true in both natural flow and reasonable use jurisdictions.) 1. The distinguishing feature of the prior appropriation doctrine is First In Time Is First In Right. There is no equality of rights and no reasonable use limited by the rights of others. 2. To be a riparian on needs only to be an owner of riparian land. Riparian land is land which abuts or touches the water of a lake or stream. 2. To be a prior appropriator one must do four things: a. Have an intent to appropriate water b. Divert the water from the source supply c. Put such water to beneficial use d. When applicable, follow the necessary administrative procedures 3. No one can be a riparian who does not own riparian land. 3. One need not own any land to be a prior appropriator. There is one exception – in some jurisdictions like Arizona if the appropriation is for irrigation purposes then the appropriator must own arable and irrigable land to which that water right is attached. 4. Riparian lands are lands bordering the stream and within its watershed. a. Under the natural flow theory a riparian cannot use water on non-riparian lands. b. Under the reasonable use theory a riparian may use water on non-riparian lands if such use is reasonable. 4. The prior appropriator may use the appropriated water on riparian and on non riparian lands alike. The character of the land is quite immaterial. 5. Under the common law riparian rules the use of water for natural purposes is paramount and takes precedence over the use of water for artificial purposes. Priority is: a. Domestic b. Agricultural c. Industrial 5. The prior appropriation doctrine makes no distinction between uses of water for natural wants and for artificial and industrial purposes. 6. The riparian owner, simply because he owns riparian land, has the right to have the stream of water flow to, by, through or over his land, under the doctrine of riparian rights. 6. An owner of land, simply as such owner, has no right to have a stream of water flow to, by, through or over his land, under the prior appropriation doctrine. 7. The riparian has the right to have the water in its natural state free from unreasonable diminution in quantity and free from unreasonable pollution in quality. 7. The prior appropriator has the right to the exclusive use of the water free from interference by anyone, reasonable or unreasonable. 8. The rights of riparians are equal. 8. The rights of appropriators are never equal. 9. The basis, measure and limit of the riparian’s water right is that of reasonable use. 9. The basis, measure and limit of the water right of the prior appropriator is the beneficial use to which he has put the water. He has no right to waste water. If his needs are smaller than his means of diversion, usually a ditch, then his needs determine his right. If his ditch is smaller than his needs, then the capacity of his ditch determines his right. 10. The doctrine of riparian rights came to this country from the common law of England although it seems to have had its origin in the French law. 10. The doctrine of prior appropriation is statutory in our western states although its origin seems lost in antiquity. Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 4 of 17 CASE 161: A is the owner in fee simple of Blackacre through which naturally flows Clear Creek. B is a mining company engaged in working mines in the vicinity of Black-acre. For many years from a point below Blackacre, and before A ever used any of the water from Clear Creek, B has been using all of the water from Clear Creek in its mining operations. A is a widow living alone on Blackacre and uses the water from Clear Creek for domestic purposes, for watering her cow, a few pigs and chickens, and for irrigating her small garden. B now finds it convenient in opening and operating a new mine above Blackacre to divert all of the water of Clear Creek from a point above Blackacre. It diverts all of the water of Clear Creek and carries it over the watershed and uses it in its mine on non-riparian land. This leaves no water at all flowing in Clear Creek which reaches A’s Blackacre. She is left wholly without any water from that or any other source. A brings suit against B to enjoin B from interfering with A’s supply of water flowing to Blackacre through Clear Creek. A alleges all of the facts given above and B demurs to the complaint. How should the court rule on the demurrer? Answer and Analysis The answer is this— (a) if the court in that jurisdiction is governed by the doctrine of riparian rights it should overrule the demurrer, but (b) if the court is governed by the doctrine of prior appropriation it should sustain the demurrer. (a) Under the riparian rights doctrine, whether the jurisdiction follows the natural flow or reasonable use rule, there are three reasons why the court should overrule B’s demurrer and hold that A has stated a claim or cause of action against B. First, as a riparian under the natural flow theory, A has the right to have Clear Creek flow in its natural condition to, by, through and over Blackacre, free from unreasonable diminution in quantity or quality. Further, under a reasonable use theory of riparian rights, B could not successfully claim the right to divert all of the water from this natural stream to be a reasonable use as to a lower riparian who has an equal right to the use of the waters of Clear Creek. Second, as between two riparian users, the use of water to supply natural wants is preferred over and takes precedence of the use of water to supply artificial wants. In our case A’s use of the water of Clear Creek is wholly to satisfy natural wants. She is using it for household and domestic purposes, for watering her cow, pigs and chickens and for watering her garden. On the other hand B is using the water solely for mining purposes which is entirely to satisfy artificial wants. Hence, A’s use of the water should take priority over B’s use of the water. Third, under the natural flow theory of riparian rights no riparian has the right to use stream water on non-riparian lands. B is violating such principle of riparian rights by using the water of Clear Creek on non-riparian lands and A has a right to enjoin such use. Under the reasonable use theory of riparian rights, use on non-riparian lands could not be reasonable as to the lower riparian when the upper riparian is using all of the stream water on non-riparian lands and is leaving none for the lower user. So it seems very clear that if the court is bound by the principles of riparian rights the demurrer of B should be overruled. (b) However, if the court is governed by the doctrine of prior appropriation it must apply the distinguishing feature of that doctrine, first in time is first in right. According to the facts B put to a beneficial use all of the water of Clear Creek before A ever used any of such water. Our conclusion must then be this—B is first in time, he is therefore first in right, and A has no right to the use of any of the water of Clear Creek as against the prior appropriator B. Furthermore, B having the prior right to use all of the water of Clear Creek, has the right to divert the water from any point in the stream as long as vested rights of other appropriators are not thereby injured. And under this doctrine it is wholly immaterial whether the prior appropriator uses the water on riparian or non-riparian lands and whether he uses it for the satisfaction of natural or artificial wants. As to such land and as to such wants the doctrine of prior appropriation makes no distinction whatsoever Under this doctrine B is first in time and is first in right and the injury to A is damnum absque injuria. B’s demurrer must be sustained for A’s complaint has stated no claim or cause of action against B. See a most instructive case, Mettler v. Ames Realty Co., 61 Mont 152, 201 P 702 (1921) CASE 162: In state X, the prior appropriation doctrine of water rights governs. In 1902, A, owner of Blackacre, diverted all of the water of Clear Creek into his large diversion ditch which then carried the water two and one-half miles to his property The base of the ditch was soil, and five-sixths of this water was lost en route to his property by absorption into the soil base, and only, negligibly, by evaporation. The water which actually arrived at his property originally was sufficient to irrigate fifteen acres of alfalfa, a family orchard, vegetable garden, and to satisfy household and cattle uses. Over the years the water reaching A’s ranch was diminished considerably, so that from 1956 through 1965 there was only enough water for agricultural and livestock use of a domestic and noncommeercia nature. Farther upstream, in 1966, B diverted, under authority of an appropriation permit, approximately half of the water from Clear Creek for use on his ranch. B’s use of the water was clearly a beneficial use. B’s Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 5 of 17 diversion caused a further decline in the amount of water coming into A’s ditch downsteam. A brought an action against B to quiet title as to all the waters of Clear Creek; will A be successful? Answer and Analysis The answer is no but there are some qualifications. The policy behind the prior appropriation doctrine adopted by the relatively arid western states is to prevent waste, unreasonable use, and unreasonable method of use of water. Here, the method of A’s use of the water from Clear Creek was unreasonable since five-sixths of the water was never put to use. Under the prior appropriation doctrine, the ac cent is placed upon the beneficial use of water. Here, most of the water from Clear Creek was not put to beneficial use by A, but was lost in his diversion ditch. An appropriative right is not measured by the flow originally appropriated, and not by the capacity of the diversion ditch, but by the amount of water put to beneficial use at the delivery point and such additional flow as is reasonably necessary to deliver it. No matter how great in extent the original quantity had been, an appropriator can hold as against one subsequent in right only the maximum quantity of water which is devoted to beneficial use at some time within the period by which his right would otherwise be barred for non-user. Thus, A was entitled to one-sixth of the water from Clear Creek plus such additional water as may be necessary to propel it to his property if reasonable means of transportation is used. However, an appropriator who has transported the water for many years by an open ditch may not be compelled at his own expense to install impervious conduit. But if a junior appropriator is willing to bear such an expense in order to capture some of the lost water, he should be entitled to do so. The water that actually did irrigate A’s property was put to a beneficial use. Domestic uses of water, such as the irrigation of pastures, gardens, and fruit trees, and the watering of livestock are all beneficial uses of water. A’s use of the water was reasonable, but only to the extent of the quantity that was reasonable to use to achieve his purposes. The excess water of Clear Creek that was not reasonably used by A can be used by a subsequent appropriator. Erickson v. Queen Val. Ranch Co., 22 Cal.App.3d 578, 99 Cal.Rptr. 446 (1971). The last paragraph of the court’s opinion in the preceding case reveals the following interesting facts: (1) for two and one half miles the irrigation ditch traverses land under the jurisdiction of the United States Forest Service; (2) over the years leakage from the ditch has generated vegetation; (3) the water and vegetation support a population of deer and quail; and (4) plaintiffs had sought permission to replace the ditch with a pipeline but the Forest Service declined for the sake of the animal and bird life. The court conjectured that Defendants might be able to work out a solution with the Forest Service, but that if a three-way extrajudicial solution were impossible, a three-way lawsuit in an appropriate forum would be necessary to resolve the problem. Note The 4 cases following deal with riparian rights. CASE 163: A is a lower riparian owning Blackacre which is a 160 acre tract abutting the waters of Red River. A maintains a mill on his land which is operated by power from the water flow of Red River. B is an upper riparian owning Whiteacre which abuts Red River. B also owns Greenacre which does not touch the waters of Red River and is not contiguous to Whiteacre but is located farther from the River than the most remote corner of Whiteacre. On Greenacre B maintains a manufacturing plant which uses 50,000 gallons of water per day. B obtains all of this water from Red River by leading it over a ditch on White-acre to Greenacre. B has been running his manufacturing plant since Jan. 1, 1935 and has always used water from Red River on Greenacre for such purposes. But only since 1948 has B’s plant grown to the point where he has used 50,000 gallons per day, and not until 1948 did B’s use of the water from Red River actually lower the level of the water at A’s mill six inches below its normal level, and make it impossible for A’s water power to be sufficient to operate his mill. Also, during 1948 B’s use of 50,000 gallons of water per day diverted across Whiteacre to Greenacre caused such a shortage of water power at A’s mill that he had to shut it down much of the time. A sues B on Sept. 1, 1955, to enjoin his interfering with the operation of A’s mill. B sets up a prescriptive right to the use of the water under a 10 year statute of limitation. Should the injunction issue? Answer and Analysis The answer is yes. One may gain a prescriptive right to use more water than he as a riparian owner normally has a right to use. But no such right can be had without there being a cause of action against the claimant thereof. A cause of action must accrue to the lower riparian to start the statute of limitations running. When, if at all, did B so act respecting the water of Red River as to give A a cause of action against him? Under the reasonable use theory of riparian rights an upper riparian has the right to make a reasonable use of the water of the stream on which he owns Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 6 of 17 riparian land. Such reasonable use includes the right to use the water on either riparian or non-riparian lands. Riparian lands are lands which (a) touch the water of a stream or lake and (b) which are within the watershed, that is land which drains into the stream or lake. The theory of this requirement that land be within the watershed to be riparian is this: if water is taken out of the stream and is used on land within the watershed, then that water will either flow back into the stream or by percolation will join the stream farther down on its course. Further more, when the rains come it is this land within the watershed which feeds the stream and makes it possible for the stream to exist. — Hence, there is good reason for permitting such land within the Watershed to use the water of the stream which it supplies with water, /and equally good reason for not permitting land outside the water shed to use the stream water without limitation. B’s Whiteacre is riparian land which makes B a riparian with rights as such. But B’s Greenacre is non-riparian land. That it is noncontiguous to Whiteacre is immaterial. Every riparian may make reasonable use of the water but when he uses the water on non-riparian land there is this important limitation. The use on non-riparian land ceases to be reasonable when such use materially interferes with or injures the lower riparian in his use of the water of the stream. Prior to 1948 B’s use of Red River water on Green-acre did not affect the level of the water at A’s mill and it did not affect the water power generated to operate the mill. During the period of 1935 to 1948 B’s use of the water from Red River was, as to A, entirely reasonable and therefore legal. After 1948 B’s use of 50,000 gallons per day on Greenacre was, as to A, entirely unreasonable and therefore illegal. Why? Because the facts disclose that such use materially interfered with and injured A’s use of the water by destroying part of his water power essential to the operation of A’s mill. Usually what is a reasonable use of water by a riparian is a question of fact. To determine whether a use is or is not reasonable many factors must be considered such as, the supply of water, the character of the soil to be irrigated, the area to be irrigated, the climatic conditions, the means of diversion and loss of water by evaporation and seepage, the purposes to be served by the use to which the water is put, the effect such use has on lower riparians, and all the surrounding circumstances attending its use. However, when the fact is established that the use is on non-riparian land and that such use injures the lower riparian, then the use is unreasonable as a matter of law. But such injury or damage to A did not occur till 1948. The cause of action did not accrue when the water was first used back in 1935 for there was then no damage to A. The cause of action first accrued to A when he was first injured which was in 1948. Then the statute of limitations in B’s favor began to run. But the 10 year period had not run when the action was brought in 1955. Therefore, B can claim no prescriptive right to use more water than that to which his position as a riparian entitles him. Thus, A has a right to an injunction. But how far should the decree enjoin B’s use of water? Should it decree that B use no more water from Red River on his Greenacre? Certainly not. An equity court should and will save as many claims of each of the parties as possible. The decree should provide that B is enjoined from using such water from Red River on Greenacre as causes injury to A in the operation of his mill. That means that B may continue to use as much water from Red River as does not interfere with A’s operating his mill. The number of gallons may be 20,000 or 40,000 gallons per day more or less, but the burden of letting enough water flow down to A to enable him to operate his mill is on B. Otherwise B would be in contempt of court. See Stratton v. Mount Herman Boys’ Sch., 216 Mass. 83, 103 N.E. 87, 49 L.R.A.,N.S., 57, Ann.Cas.1915A, 768 (1913); Harris v. Harrison, 93 Cal. 676, 29 P. 325 (1892). Note The threefold classification of waters into diffused surface waters, streams, and percolating waters, as well as the concomitant differentiation between riparian and non-riparian land, no doubt functioned fairly well in a largely agrarian society with limited technological knowledge. Today, with a greater understanding of the complete hydrological cycle this approach seems somewhat arbitrary and elementary. There is constant evolution of the water cycle through various stages of rainfall, surface waters, streams, ground seepage, percolations, evaporation, cloud formation and back again to rainfall, and all of these natural processes know no legal or political boundaries. Water is the same substance whether it be aloft in clouds, descending in torrents, babbling in brooks, raging in floods, or percolating beneath the surface. To treat water at each stage of the cycle as if it were a distinct commodity is somewhat unrealistic, but until now, at least, it seemingly has served fairly well in solving immediate controversies between individuals with that resource at a particular stage of the cycle. As population pressures and industrial demands for this scarce resource increase, more comprehensive approaches to the problem may be necessary. Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 7 of 17 See Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977), while adopting the rule of reasonable use as to surface drainage, made some interesting comments concerning the artificiality of the traditional three-fold classification of waters. CASE 164: A owns 160 acres of land, Blackacre, which abuts Red River on the east side thereof where the stream runs almost due north. All of Blackacre is within the Watershed. He has been irrigating all of Blackacre from the water of Red River. He conveys the east 80 acres of Black-acre to B. None of such 80 acres is closer than 80 rods to Red River. B diverts water from Red River to irrigate the 80 acres of land which he purchased from A. X, a lower riparian, then sought and obtained an injunction against B from using any water from Red River on such 80 acres. B then reconveyed the 80 acres to A who now has his original 160 acres again. X now sues A to enjoin A’s use of water from Red River on the 80 acres which were reconveyed from B to A. May X succeed? Answer and Analysis The answer is no under the “unity of title” test. Only riparian owners have the right to use the water of a stream or lake. One is a riparian owner if he owns land which is riparian. Land is riparian if (a) it touches the water of a lake or stream and (b) it is within the watershed. It will be noticed that all of Blackacre is within the watershed so there can be no question as to meeting that requirement. As long as A was the sole owner of all of Blackacre, such land was riparian. It is immaterial how small or how large a tract of land is and the length of frontage on the water is immaterial. If it has the two essentials mentioned above it is riparian and the right to use the water from the stream or lake to which it is riparian attaches to every part of the land. But these requirements must continue to exist for the land to remain riparian. When A sold his east 80 acres to B that 80 acres continued to be within the watershed but it did not touch the water of Red River. Therefore it ceased to be riparian and its owner had no rights of a riparian. It was therefore correct for the court to grant the injunction in favor of X and against B. But when B reconveyed that 80 acre tract to A and all of Blackacre was again under one single ownership, that reinstated all of Blackacre to the position of riparian land. A can therefore irrigate all of Black-acre, including the 80 acres reacquired from B, from the waters of Red River. Thus, the court should deny the injunction sought by X. The test used in this case is that called “unity of title”. Under it when the title to land comes within a single ownership and is all within a contiguous whole and all within the watershed, it is all riparian land regardless of the time when ownership is acquired. Under another view, called “source of title” test, the east half of Blackacre once having lost its position as riparian land, it cannot thereafter ever regain the status of riparian land. Under such test the right of irrigation is limited to the smallest tract touching the water and owned by any one ownership in the whole history of the title. This view permits the riparian land area to get smaller but not larger. See 36 Mich. Law R 346; Jones v. Conn, 39 Or. 30, 65 P. 1068, 87 Am.St.Rep. 634, 54 L.R.A. 630 (1901); Restatement, Second, Torts § 843, comment c; Burby, 50; 27 Cal.Law R. 92. CASE 165: City B owns a 40 acre tract of land, Blackacre, abutting Clear Creek, on which tract it has built a waterwoork plant for supplying its inhabitants and industrial units with water from Clear Creek. For this service and water B makes a regular charge monthly which is paid regularly by the water users. B City has so grown that it requires nearly all of the creek water to supply its needs. A is the owner of a lower riparian tract of land on which he operates a mill by the use of water power from Clear Creek. He has been so using the water for more than 50 years. Within the past 4 years and unaffected by any statute of limitations B’s use of the water from Clear Creek has been so enormous in quantity that it has caused too little water to flow to A’s mill to enable A to continue its operation. A seeks an in junction against B. May he succeed? Answer and Analysis The answer is yes. There is no reason why a municipality may not be a riparian the same as an individual person with similar riparian rights. In this case City B should be able to divert water from Clear Creek for the purpose of irrigating its Blackacre of 40 acres or for other purposes in its position of owner of the riparian tract. But City B is appropriating the water from Clear Creek and selling it to the inhabitants of the City. As to any inhabitant whose land abuts Clear Creek there can be no objection to B’s acting for such a riparian inhabitant and furnishing water which the inhabitant himself could use. But for the great number of inhabitants and industrial units within City B who have no riparian lands, the City has no power or right to furnish them water as such. To hold otherwise would be to permit a municipal corporation to take from the lower riparians their water rights, and to transfer such to nonripaarian who have no connection with the stream or with lands riparian to the stream. In substance it would be permitting the municipality to transform all of the non-riparian inhabitants of the city into riparians at the expense of the lower riparians and for which the municipality is being paid. Such is a clear taking of property for which the lower riparians have a right to compensation when it is used for public purposes. A is there fore entitled to have B Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 8 of 17 enjoined from using the water of Clear Creek in such amount as to injure A’s mill operations. If such injunction will result in B’s having a supply of water insufficient in quantity to care for its inhabitants, then the injunction decree may be delayed in the discretion of the equity court until City B has the proper time to bring condemnation proceedings against the lower riparians for the purpose of determining the just compensation due them for the taking by City B of the water rights of such lower riparians, including A. See City of Emporia v. Soden, 25 Kan. 588, 37 Am.Rep. 265 (1881); notes, 22 L.R.A.,N.S., 386, 9 Ann.Cas. 1236; City of Canton v. Shock, 66 Ohio St. 19, 63 N.E. 600, 58 L.R.A. 637, 90 Am.St.Rep.557 (1902); 12 Ky.L.J. 10 (1923). See Burby, 56, as to Pueblo Rights. CASE 166: B is a mining company which owns Blackacre on which it has erected valuable buildings and mining equipment. The mines on Blackacre are some of the largest and most valuable in the state. B has over $25,000,000.00 in vested and hires more than 1,500 men in the operation of its mines on Blackacre. This land is upper riparian land on Red River. A owns Whiteacre, a lower riparian tract used for farming and worth $8,000.00. A by a deed grants to C and agrees that C may use A’s riparian water right attached to his Whiteacre, for the irrigation of C’s Greenacre which abuts Whiteacre but does not abut Red River but is in the watershed of Red River. In the operation of its mines on Blackacre B casts into Red River poisonous material which makes the water therein totally unusable for irrigation purposes on either Whiteacre or Greenacre. C sues B for dam ages for injury to C’s crops on Greenacre caused by the pollution of the water of Red River. May C recover? Answer and Analysis The answer is yes. The first question to be determined is the effect of A’s deed to C of A’s riparian water right. Some cases say that such a riparian water right cannot be conveyed away from the land of which it is a part and that the most such an attempted conveyance can be is an agreement between the parties thereto. But an owner of real property can convey the trees thereon, or the coal thereunder or the sand or gravel thereunder. Hence, other cases and the majority reason that the riparian water right is also an interest in land which can be conveyed. Of course, the grantee of such a right can have no more than his riparian grantor had and the grantee can exercise no greater or different use of the water than the grantor could as to other riparian owners. Thus we may conclude that C owns the riparian right which A had as part of his Whiteacre. Every riparian has the right to have the water of the stream to which his land is riparian, come down to, by, or over his land free from unreasonable diminution in quantity and free from unreasonable pollution or deterioration in quality. A had that right and transferred it to C so that now C has that right. It should be carefully noticed that C’s suit is not for an injunction. It is at law for dam ages. In an equity suit for an injunction the equity court would balance the equities of the parties and might well conclude that it would do more harm than good by granting the injunction when the result of granting such injunction might put 1,500 men out of work and shut down a major industry of the state, if such in fact would be the result. But in a case for damages at law no such balancing of interests can take place. If there is an injury caused by B’s acts then there must be a remedy therefor and an action for damages is a proper remedy. And the fact that the defendant is large and powerful and the plaintiff may be poor and impotent is not a factor for consideration in a law case in a land which boasts of equality under the law. The facts disclose that the poisonous material cast into Red River by B makes the water of that stream totally unusable for irrigation purposes. While reasonable use is usually a question of fact under the circumstances, it is a question of law when no reasonable men can differ thereon. When the water of a stream is rendered to tally unusable for one of the basic uses such as irrigation for the raising of crops, then no reasonable men can differ that the use being made of the water in Red River by B is unreasonable in its pollution of the water and therefore illegal. It deprives the lower riparians and their grantees of their equal use as riparians. Hence, C has a right to damages from B for its unreasonable pollution of the waters of Red River. This same result would obtain in a state where the prior appropriation doctrine governs. Suppose B is a subsequent appropriator upstream from A, the prior appropriator. B pollutes the waters of the stream which injures the use thereof by A. A has a cause of action against B for damages or an injunction or both. See 56 Am.Jur. p. 710 et seq.; Stockport Waterworks Co. v. Potter, 159 Eng.Rep. 545; Arizona Copper Co. v. Gillespie, 230 U.S. 46, 33 S.Ct. 1004, 57 L.Ed. 1384 (1913). CASE 167: Red River is a small stream of water which flows due south to a point where it splits into the East Fork and the West Fork. This split in the river is caused by a sharp rock promontory appearing in the middle of the stream behind which rises Razor Back Knoll which continues to keep the waters of Red River separated as it continues its flow in a southerly direction. From the air Red River appears like a huge letter Y upside down with the prongs of the letter pointed to the southward. Lying across Red River at the point where it forks and extending north and south thereof is a 40 acre tract, Blackacre, which is owned by A. Abutting Blackacre on the north is B’s Whiteacre. South Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 9 of 17 of Blackacre and lying across the West Fork of Red River is C’s Greenacre. South of Blackacre and lying across the East Fork of Red River is D’s Brownacre. At the fork of Red River A builds a dam which backs up the water of the river onto B’s Whiteacre causing a large artificial lake thereon. When the level of the water of the lake has reached the top of his dam A turns the entire flow of the river down the West Fork of Red River and leaves the East Fork totally dry. Thereafter B builds a hotel, cottages and boat houses on the edge of the artificial lake on his land and makes a resort on his land. D levels off what was once the natural channel of the East Fork of Red River and makes it into an area of fields and gardens producing grains and vegetables. Other land owners along East Fork do likewise. With the increased water supply along the West Fork C establishes a fish hatchery and builds ice houses for the storage of ice. Other land owners along the West Fork build permanent structures depending on the continuation of the increased water supply. In the jurisdiction the statute of limitations for gaining a prescriptive right is 10 years. The conditions described continue for 40 years. There grow up around the artificial lake on B’s Whiteacre and along the edge of the water of West Fork large trees which make the lake and West Fork appear natural in origin. Over the dam built by A grow moss, shrubbery and vines which make it appear as though it were a natural dam not built by human hands. In what was once East Fork channel are now fields, gardens, houses and parts of villages. A now threatens to tear down his dam and let Red River pursue its natural course. This would leave B’s hotel, cottages and boat houses “high and dry”. It would flood the fields, gardens, structures and parts of the villages in the original channel of East Fork. It would leave C’s fish hatchery and ice houses without access to the water of West Fork. B, C, and D join in an action seeking to enjoin A from demolishing his dam. May they succeed? Answer and Analysis The answer is yes. If this case were to be solved purely on logic and legalistic grounds a negative answer would result. This side of the problem will be presented first. A few important principles will help to reveal the analysis necessary to understand the problems presented by this set of facts. 1. Damming, Diversion and Prescription First, any riparian has a right to build a dam in the stream to which his land is riparian and the right temporarily to stop the stream flow while creating the artificial lake behind the dam pro vided it does not unreasonably interfere with the lower riparians. Such a use is reasonable and when the water level of the artificial lake reaches the level of the top of the dam, the theory is that the natural flow of the stream will continue without unreasonable diminution in quantity or quality. But no riparian has the right to back up stream water on the land of the upper riparian. If he does so the upper riparian has a cause of action against the actor. So when A backed up the water of Red River onto B’s Whiteacre there accrued in B’s favor a cause of action against A for the wrongful act. Such accrual of a cause of action in B’s favor set the statute of limitations running in A’s favor, and if the wrong continues for the statutory period, 10 years in our set of facts, then A will gain a prescriptive right to maintain the backed up water on B’s land. And that is exactly what happened. A gained a prescriptive right to maintain the water of Red River on B’s Whiteacre. Second, no riparian has a right to divert a natural stream from its natural channel. When he does so a cause of action accrues against him in favor of each lower riparian. Thus in our case when A diverted East Fork from its natural channel a cause of action ac crued in D’s favor against A. And when A continued such diversion for more than the statutory period, 10 years in our case, A acquired a prescriptive right against D and other lower riparians to continue to divert the water of East Fork. Third, no riparian has a right to divert a natural stream into an other natural stream. When he does so each lower riparian on the stream into which the additional water is diverted has a cause of ac tion against him. Thus, when A diverted the water from East Fork into West Fork there accrued in C’s favor a cause of action against A. And when that diversion was continued for longer than the statutory period, A acquired against C and each other lower riparian a prescriptive right to maintain such diversion. Summarizing, it should be carefully noticed that A has acquired three distinct easements by prescription: (a) one against B to maintain backed up stream water on B’s Whiteacre; (b) one against D to divert all of the water of East Fork from its original natural channel; and (c) one against C to divert the water of East Fork into the channel of West Fork. And in each of these easements A is the dominant tenant. This means that A, by the inaction of B, C and D for the statutory period when each had a cause of action against A, is now in the controlling position having complete command of the situation. And in each of these easements B, C and D are respectively the servient tenants. Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 10 of 17 2. Rights of Dominant Tenant Thus, in our case, B, C and D, by their inaction, have become as to their properties affected by A’s wrongful acts and subject to A’s domination. As to the lands, the legal effect of these facts is that it makes A’s Blackacre the dominant tenement and Whiteacre, Green-acre and Brownacre servient tenements. Hence, in logic and on purely legalistic grounds, the conclusion would be that A, being a dominant tenant and the owner of the dominant tenement, has the right to maintain or demolish his dam at will, and no one may interfere with the exercise of such will even though A has no reason but only a whim to raze the dam. On the other hand it must be noticed that this is not a law case, it is a case in equity which is a court of conscience. A litigant does not have a right as a right to equitable relief. It is a matter of grace and in the sound discretion of the equity court. The court will balance the equities of the parties and determine whether the granting of the injunction will do more good than harm or whether the denying of the injunction will result in more harm than good. On the one hand it seems A is injured little by leaving things as they are. On the other hand irreparable damage will be done if the injunction is denied and A removes his dam. B’s resort with all its facilities will be rendered almost worthless, D’s fields and gardens and parts of villages along East Fork will be destroyed and the established structures and businesses built along the higher water level of West Fork will be rendered worthless or almost so. By refusing the injunction on such determination the court would arbitrarily take from A his position and rights as a dominant tenant without satisfactory reason. And to say that B, C and D have reciprocal easements is a conclusion wholly without merit and without any justifiable legal reason to support it. Why? Because an easement by prescription (and it can be none else in this case) must have for its foundation the accrual of a cause of action in favor of the servient tenant and against the dominant tenant. As to the reciprocal easements A would be the servient tenant and B, C and D the dominant tenants. Has either B, C or D committed any act which might constitute a cause of action in A’s favor against any of them? Of course not. They have merely been passive as to A’s wrongful acts of backing up water on B’s land and diverting the East Fork water into the West Fork. So such conclusion, even though reaching a proper result, is wholly without legal reason to support it. The court might use the doctrine of estoppel against A but the trouble with estoppel is this—A has done no act on which B, C or D had the right to rely and without right of reliance the doctrine is not properly applicable. 3. New Natural Conditions Most of the cases which have had to solve the problem presented here have concluded that A has no right to change the conditions which he has created. They reason that when conditions have been created artificially but have been maintained for as long as the forty year period in our case, then the element of time has transformed such conditions from artificial conditions into natural conditions and the law should treat them as such. Furthermore, such transformation is justified when to permit a change would cause irreparable damage to many quite innocent persons. With that premise as the first step, the next logical conclusion must be that the lake on B’s land is a natural lake, that West Fork with all the water from Red River flowing therein, is a natural stream and that East Fork as a stream no longer exists. Conclusion—A has no right to turn loose the water of a natural lake, no right to divert any of the water naturally flowing in West Fork and no right to cast water from a natural stream into the fields and gardens and villages in the valley of what was once in the dim and distant past the channel of a natural stream, East Fork. Perhaps this is an arbitrary determination also but it is probably the best reason yet devised on which to base what is considered a fair and just result. However, in the absence of a long period of time and irreparable injury, the law should protect A in his dominant estate. See Goodrich v. McMillan, 217 Mich. 630, 187 N.W. 368, 26 A.L.R. 801 (1922); Kray v. Muggli, 84 Minn. 90, 86 N.W. 882, 54 L.R.A. 473, 87 Am.St.Rep. 332 (1901); Hammond v. Antwerp Light & Power Co., 132 Misc. 786, 230 N.Y.S. 621 (1928); Burby, 49; 36 Mich.L.R. 1432. CASE 168: In state X the prior appropriation doctrine of water rights governs, and the water of running streams, either on the surface or underground, is made subject to prior appropriation. In that state percolating water is governed by the common law and is not subject to prior appropriation. A is a prior appropriator of all the water of Clear Creek which water is being used to irrigate A’s Blackacre. Farther upstream from where Blackacre is located, B is digging a series of wells on his own land, Whiteacre, across which Clear Creek flows. Some of B’s wells are within 25 feet of the banks of Clear Creek. B is pumping water from his wells and storing it in large reservoirs for stock watering. As B continues to dig more wells and pump more water, the supply of water which comes to A’s Blackacre de creases in amount, and A concludes that B’s pumping water from his wells is the cause of the diminishing supply of water to which A has a prior right as an appropriator. A sues to enjoin B’s pumping water in Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 11 of 17 such a way as to diminish his water supply. It is stipulated that B’s pumping is causing the diminution of A’s water supply, but B contends he has a right to continue pumping because the water which he is extracting from under the surface is percolating and therefore belongs to him as surface owner, and is no part of the stream water which A has appropriated. Should the in junction issue? Answer and Analysis The answer is yes. At common law percolating water may be taken and used by the owner of the surface under which the water is found. And it is presumed that underground water is percolating water, and the burden is on him who says it is otherwise to show it. So it is necessary to find out just what A appropriated when he became prior appropriator of all of the water of Clear Creek. A stream of water consists of (a) a bed (b) banks and (c) a flow of water. Usually the flow of water is evidenced by water which is seen on the surface of the ground held in place by well defined banks. If the bed and banks of a stream are composed of impervious granite that would be all there is to it. But the soil through which streams of water flow are not ordinarily composed of granite but of other soils such as clay, loam or sand or a mixture of these. When such is the case it usually takes a great deal of water under the bed and be yond the banks of a stream to support the surface flow. In other words, the ground which constitutes the bed and banks of a stream must be saturated with water before the surface flow can appear as a visible stream of water. And of course the more porous the soil the more water it will take to saturate the bed and banks to support the flow on the surface. This water which saturates the bed and banks of a stream and moves slowly through the soil in the direction of the surface stream constitutes the subflow and the lateral flow of the stream. But such subflow and lateral flow are part and parcel of the stream of water. When A became the prior appropriator of all of the water of Clear Creek his prior right not only included the right to the surface flow of the stream at the point of diversion, it also included a right that the subflow and the lateral flow remain without interference so that they might continue the support of the surface flow and carry it undiminished to A’s point of diversion on Blackacre. When it was stipulated that B’s pumping of water was diminishing the amount of water which was reaching A’s Blackacre for irrigation purposes, this was an admission on B’s part that his pumping was in an area where in Clear Creek’s subflow and lateral flow are located. Such stipulation carried A’s burden of proof as to causation which is usually a fact question. Hence, B’s pumping is drawing out of the earth the subflow and the lateral flow of Clear Creek at least to the extent that it is diminishing A’s surface supply of water for the irrigation of Blackacre. To that extent it is taking stream water which is subject to A’s prior appropriation right. The test for determining what underground water is percolating and what is the subflow or lateral flow of a stream is one which is easy to state but very difficult to apply to a given set of facts. It is this—if the drawing off of the underground water affects the flow of the stream, then the water being drawn off is a part of the subflow or lateral flow of the stream. If the drawing off of the underground water does not affect the flow of the stream, then such water is percolating water. In our case the usual fact question of causation is settled by the stipulation. It applies the test and shows that A is en titled to a decree enjoining B from pumping any water which interferes with the subflow or lateral flow of Clear Creek which detracts from A’s prior appropriation. See a very instructive case, Maricopa County Municipal Conservation Dist. No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369 (1931). CASE 169: A is the owner of Blackacre, an 80 acre tract on which he operates a small dairy. Through the tract flows a small stream called Squaw Creek. A spring flows out of the side of a small hill near A’s dairy and a well near by furnishes a plentiful supply of water. All three of these sources of water are used for operating A’s dairy, for household purposes, and for irrigation of a garden and a small field. City X buys a section of land above A’s dairy farm and expends $1,000,000.00 in erecting a waterworks plant, including 20 large artesian wells in order to supply water to the inhabitants of the city. The withdrawal of such amounts of underground water by City X causes the drying up of Squaw Creek, the spring and the well on A’s dairy farm. A sues City X for damages. All of the above facts are stipulated by the parties to be true but City X contends that the injury to A is damnum absque injuria which prevents his recovery. May A recover? Answer and Analysis The better answer is yes. Under the English rule as to percolating waters the owner of the surface is the owner of all underneath the soil whether the substance thereunder be solid or semi-solid or fluid like water. If such rule were applied in this case then X’s withdrawal of percolating water from under its own land would constitute mere extracting of its own property and indeed A would have no recovery. His loss of his water supply would be damnum Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 12 of 17 absque injuria for which the law can give no redress. But there are at least two flaws in the reasoning in such rule. One is that such rule assumes no difference between substances which underlie the surface soil. But solid rock under the soil which remains fixed in place should not be treated like a fluid such as water which is mobile in nature. Then again, if each surface owner owns all the substance underneath his surface, how can the conclusion be reached that if A pumps out all the water under A’s soil, and also through the same well pumps out all of the water under B’s soil, that A owns all the water he has pumped including that which was under B’s soil? Such reasoning is not satisfactory for it first says the water under B’s soil belongs to B, and then says that if A pumps out such water it belongs to A. The so-called American rule of “reasonable use” as to percolating water is based on better reasoning and brings about a more just and equitable result between landowners competing for the use of such underground water. The substance of such rule is this—every surface owner has the right to withdraw and make a reasonable use of the percolating water under the surface of his land, and such use is reasonable if the water is used beneficially on the land from under which it is withdrawn or used in the development of such land. Such use may be reasonable even when the water is used on other land provided it does not interfere with or injure neighboring landowners. But the use of such water on land other than that from under the surface of which it is withdrawn is unreasonable and illegal when it interferes with or injures the use thereof by neighboring proprietors. Applying this doctrine to our set of facts, it is clear that A should recover from City X. The City was pumping percolating water from under the surface which it owned. That it had a right to do. And it had a right to use such water on the section of land which it owned to the extent that it benefited such land or developed it. The City would have no right to waste such water simply because it pumped it from under the ground. The law has no interest in protecting any landowner in wasting water. But the facts do not disclose any use by City X on its owned section of land from under which the water is withdrawn. The water is used for the benefit of the inhabitants of the City. Therefore, when City X carries the percolating water from the land from under which it is withdrawn, and such use on other land injures the neighboring proprietor, A in our case, then such neighboring landowner can say such use is unreasonable and illegal. The doctrine of “reasonable use” does not prevent a landowner from withdrawing and using the percolating water from under his soil to develop his own land even though it may damage his neighbor, but it does prevent the use of such water as an article of merchandise or the use on other land at the expense of the neighbor. Thus, City X, which is using the percolating water on land other than its own from which it has been extracted, and for the purpose of furnishing it to the inhabitants of the City is liable to A, the neighboring proprietor, for the damage it has caused him. See the leading case, Meeker v. City of East Orange, 77 N.J.L. 623, 74 A. 379, 25 L.R.A.,N.S., 465, 134 Am.St.Rep. 798 (E. & A.1909); Acton v. Blundell, 12 M. & W. 324 (1843); 14 Mich.L.R. 119. CASE 170: A is the owner of Blackacre, a section of land. It is used for the purpose of raising cattle. A’s house with its outbuildings stands in the northeast corner of the tract. B owns the section abutting Blackacre on the north and C owns the section abutting Blackacre on the south. The general slope of the area is from north to south and southwest. When the heavy rains come a short low valley which is in no sense a natural water course carries the surface water from B’s land directly against A’s house, flows into his basement and into his outbuildings. A builds a concrete wall three feet high along his north border and across the low valley which carries the surface water to his buildings. This causes the surface water to stand and become stagnant on B’s property. In the southwest corner of Blackacre A builds a dike which impounds most of the surface water which falls from the rains on Blackacre and drains to the southwest. Behind this dike a large reservoir of water is formed from the natural drainage of the surface water on Blackacre and is used the year around by A for stock watering. B sues A to compel him to remove the concrete wall along his north border which prevents the natural flow of the surface water to the south. C sues A to compel him to remove the dike which impounds the surface water in the southwest corner of Blackacre contending that C has used this surface water for years on his land for the benefit of his crops. (a) May B succeed in his action? (b) May C succeed in his action? Answers and Analyses The traditional answer to (a) is no, but the trend of cases would answer yes if A’s conduct were considered unreasonable and resulted in substantial damages to B. The answer to (b) is no. Surface waters are those which come from rain, springs and melting snow and ice, simply follow the contours of the land and have not yet reached a natural water course or basin with well defined bed and banks. Waters in marshes and swampland are usually considered surface waters. In our set of facts all of the waters involved are obviously surface waters. None of such water has reached a natural water course and all has come from the rains. There are three doctrines governing rights over surface waters: (a) the civil law rule; (b) the common law rule; and (c) the reasonable use or reasonable Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 13 of 17 conduct rule. The first two of these rules permit the surface owner of land to impound and make use of any and all of the surface waters which he is able to capture on his land. The result would be the same under the third rule if the landowner’s conduct were considered reasonable. The principal difference in the application of the rules comes in the obstruction of the flow of surface water. Under the civil law rule every lower piece of land is burdened with a servitude in favor of the higher land to receive and carry the natural flow of surface water and the owner of the lower tract has no right to obstruct the natural flow of the surface water. Under the common law rule, sometimes called the common enemy rule, the lower tract is not burdened with any servitude in favor of the higher land and the owner of the lower tract has the right to protect his lower tract from “the common enemy” or the flow of surface water by making any improvements which are suitable for the purpose. The common law rule had been applied in most of the states, but an increasing number is adopting the rule of reasonable use. Under this rule each possessor is privileged to make a reasonable use of his land, even though an altered flow of surface water may cause some harm to others, but liability is incurred if his conduct is unreasonable and causes substantial damages. What then are the rights of B and C against A in their respective actions? (a) Under the civil law rule it is clear that B would have the right to compel A to remove his wall which obstructs the flow of the surface water onto Blackacre for the reason that Blackacre, being the lower tract as to B’s land, is burdened with a servitude in favor of B’s higher tract and is bound to receive and carry off such surface water which naturally flows from B’s land onto Blackacre. Hence, under this doctrine A has no right to obstruct the flow of such surface water. On the other hand under the common law rule every landowner has the right to obstruct and shut out a common enemy. He has the right to treat surface water as such common enemy and the right to protect his land against it. Under this doctrine A’s concrete wall or any improvements he makes on his land such as building, grading or planting which obstructs the flow of surface water onto his lower tract are considered reasonable use of the land and if such improvements affect injuriously the owner of the higher land, then such dam age is damnum absque injuria for which the law affords no redress. This rule permits every landowner the freedom to improve his land as he sees fit so long as he does no affirmative act in the direction of his neighbor such as actually casting water on his neighbor’s land, or does not commit a nuisance on his own land. Under the reasonable use rule, A would be privileged unless the court concluded that his conduct was unreasonable and resulted in substantial damages. Under the common law rule B has no right against A and should fail in his suit. Under the reasonable use rule the result would probably be the same. (b) C’s action is simple and easy of solution. Under either the civil law rule or the common law rule the landowner has the right to capture and use any and all surface waters which fall on or flow onto his land. When it is said that the has the right to “appropriate” such surface waters it should be carefully noted that this word is used in its generic sense and has nothing to do with the doctrine of prior appropriation. As here used it means merely the right to capture and use the surface water. Hence, when A impounded the surface waters on his Blackacre he was doing an act which he had a right to do and the fact that such act deprives C of the surface water he had been accustomed to use on his land is quite immaterial. C’s damage, if any, is damnum absque injuria and he has no cause of action against A. The result would appear to be the same under the reasonable use rule. Of course if the surface water on A’s Blackacre had entered a natural water course with well defined bed and banks, then such water would cease to be surface water and would have become stream water and subject to the rights of riparians. Then A would have no right to impound and use such waters to the exclusion of C who would then be a lower riparian with the right to have such stream flow down to, through or over his land free from unreasonable diminution either in quantity or quality. Much litigation in this field turns on the question as to whether the water has ceased to be surface water and has become stream water. This is usually a question of fact. See Burby, 59—61; 59 A.L.R.2d 424; Haferkamp v. City of Rock Hill, 316 S.W.2d 620 (Mo.1958), re common law rule; Ambrosio v. Perl-Mack Constr. Co., 143 Cob. 49, 351 P.2d 803 (1960), re civil law rule; Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977), re reasonable use rule. CASE 171: A owns Blackacre, a quarter section of land. B owns Whiteacre, the quarter section which abuts Blackacre on the north. C owns Greenacre, the quarter section which abuts Blackacre on the south. Through the center of the three quarter sections and extending from north to south is a low marshy, swampy area created and fed wholly by rains and having no well defined banks. The natural drainage is from north to south but the slope is so gradual as to be al most imperceptible. Within this wet spongy ground and lying across the boundary line between A’s Blackacre and B’s Whiteacre is an area containing about six acres, half on each quarter section, whereon water usually stands in depth from one to two feet. On his side of the boundary line B has developed a small business in Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 14 of 17 which he raises and sells water lilies which grow naturally in this marshy pool of water. C has partially drained the bog on his Greenacre and uses most of the area which was once spongy earth as fields for growing crops. A now conceives the idea of draining the swampland on his Blackacre so that he may grow crops thereon. By means of small ditches carefully constructed which follow the natural con tour of the land he drains the pool of water from his side of the boundary line between Blackacre and Whiteacre. But of course the draining of the part of the pool on Blackacre also causes the water from the pool on Whiteacre to flow south and leaves B’s lily pool without water. At the other end of A’s drainage project the water slowly flows, oozes or seeps onto C’s Greenacre thus interfering with C’s crops. A is not negligent. B sues A for damages for draining the water from Whiteacre and C sues A for damages for draining the water from Blackacre and causing it to drain onto Greenacre. (a) May B recover? (b) May C re cover? Answers and Analyses The answer to (a) is no. The answer to (b) is no. No landowner has the right to gather together surface water and cast it on his neighbor’s land. He is liable in damages for doing so. He is not liable if by natural flow or drainage, surface water passes from his land onto the land of his neighbor. Between these two situations is the case in which the landowner by artificial means assists nature in draining his land. Some cases lay down the rule that if the landowner by artificial means discharges surface water onto his neighbor’s land and thereby injures him there is liability. This treats the case as though any artificial means is a casting of water onto the land of the neighbor. Such a holding can be justified. On the other hand, a landowner should be able to improve his land and not be compelled in perpetuity to let his land lie unimproved and unproductive. In our case it should be noticed that A is free of negligence and that his efforts are directed solely to the improvement of his land. Further, it should be noticed that the artificial means used by A do not gather together the surface water and cast it onto C’s land. They merely assist the surface water to drain along the natural slope of the land. Of course it is a matter of degree. If a heavy rain should come and wash small ditches through the spongy material of the swamp or marsh and the same drainage would take place as is now occurring through A’s artificially made ditches, then there would obviously be no liability on A. Taking all the facts into consideration it appears that the principal ingredients of the cause of injury to C’s land is not the act of A but the combined natural elements involved, to-wit: the surface water lodged in the swamp, the natural slope of the drainage area and the weight of the spongy earth which squeezes out the water therein. Thus, in substance the forces of nature are causing a drainage of surface water from A’s land and the damage to B and C is damnum absque injuria, and neither can recover from A. In such case it seems better to leave B and C to their remedies of self help. Under the civil law rule A’s land would have to receive and carry the surface water from B’s land. But that B does not want. He wants the surface water of the swamp to remain and support his water lily business. All he has to do then is to improve his own land by erecting a wall or other improvement by which he captures such water and retains it on his Whiteacre. He can do the same under the common law and reasonable use rules. As to C, he could not object to the drainage of the surface water from Blackacre under the civil law rule for his Greenacre is bound to receive and carry away such surface water. And under the common law rule C has the right to erect an obstruction along his north border to protect his Greenacre from the drainage surface water from Blackacre. Under the reasonabbl use rule both A and C are entitled to act reasonably. A’s conduct clearly seems reasonable here, and C could take reasonable means to drain his lands. Thus, each landowner is free to improve his own land and is burdened with the problem of disposing of the surface water on his particular land, keeping in mind that any land owner is liable for negligent acts which cause injury to his neighbor and is liable for unreasonably casting water on his neighbor’s land. See Terry v. Heppner, 59 S.D. 317, 239 N.W. 759 (1931); Stouder v. Dashner, 242 Iowa 1340, 49 N.W.2d 859 (1951); Burby, 60. CASE 172: A’s railroad track runs due north and south. Indian Creek has a channel about 30 feet in width and 4 feet deep. Most of the year it is a dry wash. But when the heavy rains come the channel is full and much water over flows its banks and covers the country on either side thereof. The channel of Indian Creek runs in a southwesterly direction as it approaches A’s railroad track. When it gets within about 300 feet of the railroad track its course turns almost a right angle and following a southeasterly direction. On several occasions during the rainy season the channel of Indian Creek has not been of sufficient capacity to contain the great supply of water which flows down from the surrounding hills. The water overflows the banks of the Creek and drives onto A’s railroad tracks and so saturates the soil which supports the track that A’s trains are impeded in their progress and large additional sums of money are spent in track maintenance. To remedy this condition A builds large dikes between its tracks and Indian Creek and parallel with the tracks. B is the owner of agricultural land on the east side of Indian Creek, the opposite side of the Creek from where A’s dike is located. The floods theretofore have not materially affected B’s land or the Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 15 of 17 crops grown thereon. In the rainy season following the construction of A’s dike B’s land and the crop growing thereon are flooded and the crop is destroyed. The effect of A’s dike has been to cast the flood waters back into Indian Creek from where they continue across the channel of the Creek and overflow B’s land. B sues A for damage to his crop. May he recover? Answer and Analysis The answer is no. There is nothing in this set of facts to indicate any negligence on the part of A, and in the absence of such, the injury to B’s crops is damnum absque injuria Surface water is that which comes from rains, springs and melting snow and ice and follows the contours of the land and has not yet reached the waters of a stream or lake. On the other hand flood water is that which has been in the water of a stream or lake and has overflowed the banks of the stream or the lake. In the facts of our case the waters of Indian Creek have overflowed its banks and are flood waters. Any land owner is entitled to treat flood waters like surface waters as a common enemy and has a right to protect his land against its depredations. Therefore, when A built a dike to protect its railroad track from the encroachments of the flood waters of Indian Creek, it was doing only what good sense and reason would dictate, and the law will protect it even when such act on A’s part will result in injury to the neighboring proprietor. If B would protect his land and his crops from the flood waters of Indian Creek he will have to do as A has done and build a wall or a dike which will obstruct the destructive force of those flood waters. Hence, B’s action against A must fail. See Southern Pacific Co. v. Proebstel, 61 Ariz. 412, 150 P.2d 81 (1944). CASE 173: Lake A is a lake of approximately 75 acres. It is non-navigable and landlocked, and is wholly owned by the parties litigant and other adjoining landowners. D owns a 29 acre tract on the lake and operates thereon a public beach. D leases portions of his tract to B. B operates a water skiing school on the lake. The school operates every day in the week, from early morning until dark, and the skiers use the entire surface of the lake, frequently going close to shore and sending large waves and assorted debris onto the beaches. The boats make considerable noise, emit large quantities of exhaust fumes, and are frequently operated in congested areas thereby endangering the lives and safety of plaintiff and other landowners using the lake for bathing and other recreational purposes. The operation is alleged to be such as to interfere unreasonably with the use and enjoyment of P’s property and that of other landowners. P owns two parcels, one westerly near the northern end and the other at the southwestern portion of the lake. P’s northern tract has a common boundary with the southern property line of D’s tract. If the property lines are extend ed into the lake, they intersect at a point which gives D only a small wedge-shaped area on the lake surface. P brings an action against B and D seeking: (a) an injunction against the water skiing activities on the basis that they constitute a nuisance; and (b) a decree that D and B shall be restricted in the use of the lake to the waters overlying the wedge-shaped area which is owned by D. Is P entitled to the injunction and the decree? Answer and Analyses The answers are as follows: (a) D and B should be enjoined from carrying on water skiing activities in such a manner as to constitute a nuisance; and (b) D and B, under the more practical civil law rule, should not be restricted to the area of the lake which over-4 lies the bottom owned by D, but instead, their right to use the surface of the entire lake for recreational purposes should be recognized. (a) The facts stated in the problem are sufficient to support the 1 allegation that the operation of the water skiing activities constitute an unreasonable interference with the use and enjoyment of the property of the other landowners. Such activities therefore amount to a nuisance. The facts indicate a continued annoyance, discomfort, and even danger to the lakefront community. Accordingly, relief is authorized. Water skiing, however, is itself not a nuisance per se. The injunction should be phrased so as not to enjoin the defendants from engaging in water skiing activities entirely, but only from engaging in them in such a manner as to substantially interfere with the rights of the other landowners. The injunction should be framed in terms of restrictions on the hours of operation, the area of operation, and the number participating at any one time so as to protect the rights of all the landowners. (b) In regard to the use of waters of privately owned landlocked lakes, there are two different theories—the common law rule and the civil law rule. The common law rule restricts each landowner to the use of the waters overlying the land he owns, whereas the civil law rule permits all the owners of a portion of the lake bottom to use all of the waters for boating, bathing, and recreational purposes. The civil law rule commends itself as being more practical and utilitarian. Each landowner may find himself severely restricted if he is limited to waters overlying his owned land, whereas each will get a far greater benefit if all are entitled to use all of the waters. Each, how ever, must use the water in a reasonable manner so as not to interfere with the use of the other adjoining landowners. The right of each landowner is equal, and the rights must be so exercised as to recognize the similar rights of the other Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 16 of 17 landowners. Adopting, then, the civil law rule, the defendants in the instant case are entitled to use all of the waters, and the plaintiff is not entitled to a contrary decree. See Florlo v. State ex rel. Epperson, 119 So.2d 305 (Fla.2d D. C.A.1960) (water skiing); Duval v. Thomas, 114 So.2d 791 (Fla. 1959) (use of lake water). See also infra Chapter XIII as to nuisance. SUMMARY OF CASES IN CHAPTER XII Case 161. Under the doctrine of riparian rights every riparian has the right to have the stream of water flow down to, by, through and over his land free from unreasonable diminution in quantity and from unreasonable pollution in quality. This statement should apply equally in either a natural flow or reasonable use jurisdiction. Under such rules the use of water for the satisfaction of natural wants takes precedence over the use of water for the satisfaction of artificial wants. Under either theory of riparian rights it would be unreasonable for an upper riparian to use all of the water in a stream and on non-riparian lands and leave no water at all for the lower riparian. The rights of riparians are equal. Under the doctrine of prior appropriation the distinguishing feature is first in time is first in right, and such doctrine makes no distinction whatsoever between the use of water on riparian and non-riparian lands, and none between the use of water for natural and for artificial wants. Case 162. The extent of an appropriation right is measured not by the flow originally appropriated and not by the capacity of the diversion ditch, but rather by the amount of water put to beneficial use at the de livery point plus such additional flow as is reasonably necessary to deliver it. Domestic non-commercial uses for agricultural, irrigation and animal raising are beneficial uses for which an appropriation may be obtained. If a prior appropriator wastes water by use of inefficient diversion ditches, a later appropriator may be entitled to an appropriation of the wasted water if he invests in a more efficient transfer method on be half of the prior appropriator. Case 163. To be riparian land it must (a) touch the water of a lake or stream and (b) be within the watershed. By prescription a riparian owner may gain a right to use more water than he is entitled to as a riparian, but to do that he must do an act which gives the lower riparian a cause of action against him and the statute of limitations must run its full course. Under the reasonable use theory of riparian rights a riparian owner may use water on either riparian or non-riparian land, but if the water is used on non-riparian land and such use causes injury to the lower riparian, that use is unreasonable as a matter of law, and a cause of action accrues to the injured lower riparian. Case 164. Land is riparian if it touches the water of a lake or stream and is within the watershed. It is not material how small or large the tract is, and the length of frontage on the water is unimportant. When title to riparian land is severed and the part conveyed has no frontage on the water of the lake or stream, it ceases to be riparian and the owner has no riparian rights. If land within the watershed which is not riparian is purchased by a riparian and the two properties are contiguous, then that land which was non riparian becomes, under the “unity of title test”, riparian land Under the ‘ source of title” test once a piece of land ceases to be riparian it can never thereafter regain a riparian status. Under this test riparian status is limited to the smallest tract touching the water during the entire history of the title. Case 165. While a municipality which owns riparian land may exercise the same rights as any other riparian concerning the use of water, the better rule is that it cannot claim to be a riparian as to all and each of the inhabitants thereof and furnish water to such inhabitants at the expense of the lower riparian owners. For doing such the city should be liable to the lower riparians, and if it would continue to furnish water from the stream to its inhabitants, it may do so through condemnation proceedings and paying just compensation to the lower riparians for taking their water rights. Case 166. The general rule is that a riparian water right can be conveyed by its owner from the land of which it is a part and that the grantee has the same rights with the same limitations as had the riparian grantor, including the right to sue an upper riparian who unreasonably pollutes the water of the stream. Every riparian or his assignee or grantee has the right to have the water of the stream to which his land is riparian come down to, by or over such land free from unreasonable diminution in quantity and free from unreasonable pollution or deterioration in quality. If the lower riparian or his grantee sues the upper riparian for an injunction in equity the court will balance the equities in deciding whether or not to grant the injunction, but in an action at law for dam ages there is no such balancing of interests, and the plaintiff has a right to damages for unreasonable pollution of the waters of the stream by the upper riparian. Case 167. A riparian owner has the right to build a dam on the stream to which his land is riparian and a right to impound the water of the stream behind the dam. He has the right to stop the flow of the stream temporarily for such Water Rights Property Transactions, SCALE II Professors Gallagher and Shaffer, Fall 2004 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net $ASQLaw School Outline -Water Law.doc.doc Ted Finamore Page 17 of 17 purpose provided he does not unreasonably interfere with the lower riparians. A riparian owner does not have the right to back stream water onto the land of an upper riparian. If he does do so and continues to maintain the water thereon for the statutory period he gains a prescriptive right to maintain such water on the land of the upper riparian. A riparian owner has no right to divert the flow of a natural stream of water. If he does so and continues the diversion for the statutory period he gains a prescriptive right to continue the diversion as against the lower riparians. If a riparian creates an artificial lake above his dam or creates an artificial stream by diversion of the waters of a natural stream, and continues to maintain such artificial lake or stream for a long period of time, the law may treat such lake or stream as a natural lake or stream and subject to the common law governing natural lakes and streams. Case 168. A stream of water consists of (a), a bed (b), banks and (c), a flow of water. This flow of water consists of a subflow, a lateral flow and a visible flow on the surface, if the water is sufficient in amount that a surface flow appears. Under the prior appropriation doc trine one who appropriates all of the water of a stream has prior right to the subflow, the lateral flow and the surface flow, which means that he has the right that the supporting subflow and lateral flow which support the surface flow be not interfered with. At common law one who owns the surface of the land has the right to take and use the percolating water under the surface. Case 169. Under the English law percolating water under the surface is subject to the absolute control of the surface owner, and if the withdrawal thereof affects the neighboring proprietor injuriously, it is damnum absque injuria. Under the American doctrine of “reasonable use” the owner of the surface may withdraw the percolating water from under the surface of his land and make reasonable use thereof. Using such water beneficially on his land or to develop such land is reasonable even though it injures his neighbor landowner. But using such percolating water on land other than that from which it is withdrawn, or using it as an article of merchandise elsewhere, is unreasonable when such use injures the neighboring proprietor and creates in such neighboring land owner a cause of action for damages. Case 170. Surface waters are governed either by the civil law rule, the common law rule, or the rule of reasonable use. Under each or all of these rules the landowner may impound and use any or all surface water which falls on or flows onto his land, and if such causes injury to his neighbor it is damnum absque injuria. The difference in the rules appears when the flow of surface water is obstructed by the lower owner to prevent its reaching his land. Under the civil law rule the lower tract of land is burdened with a servitude in favor of the higher tract to receive and carry off surface water which naturally flows from the higher to the lower tract. Under the common law rule, the lower tract of land is not burdened with a servitude in favor of the higher tract. Any landowner may treat surface water as a common enemy and protect his land against it by obstructing the natural flow thereof, and if such obstruction injures the owner of the higher tract it is damnum absque injuria. Under the reasonable use rule each owner’s conduct will be measured by the test of reasonableness. Surface water includes water which comes from rains, springs, melting snow and ice, the water in marshes and swamplands, none of which has yet reached a natural water course or basin. Case 171. When the owner of lower land drains swamps and marshes on his own land and such act also drains similar areas on the higher land, it is damnum absque injuria as to the owner of the higher land. If the owner of the higher land drains his land along the natural course of drainage and in the improvement of his land injures a lower owner, it is damnum absque injuria as to the lower owner even if the drainage is onto the land of the lower owner. But a landowner is liable for gathering together surface water and forcefully casting it on his neighbor’s land, and for negligent acts which cause injury to his neighbor. Case 172. Surface waters are those which come from rains, springs and melting snow and ice, which follow the contour of the land and have not yet reached the water of a stream or lake. Flood waters are those which have already been a part of stream or lake waters and have over flowed the banks of the stream or lake. Any landowner may treat floodwaters or surface waters as a common enemy and may protect his land against the depredations thereof. If in the protection of one’s land against the encroachments of flood or surface waters the land of a neighbor is injured it is damnum absque injuria for which the law furnishes no redress. Case 173. Water skiing activities are not a nuisance per se but they become a nuisance when carried on in such a manner as to interfere un reasonably with the use and enjoyment of the property of adjoining land owners. Under the civil law rule each proprietor of a portion of a non navigable lake is entitled to use the waters of the entire lake for boating and other recreational purposes.