I. Overview of Water Rights
A. Notes:
1.U.S. Geological Survey is a great source of information on water.
2.Water rights for agricultural use are considered property rights that can be taken away by the government for public use. If the city needs water, they can take water rights away from the agricultural users.
3.Washington Law: If you don’t use it, you lose it. Not really a mixed system, more prior appropriation now. Riparian users lose their right if they have not used it.
4.Bureau of Reclamation: constructs dams, reservoirs, aqueducts, and distribution systems. This is the largest water wholesaler in the country.
II. Riparianism
A. The Basic Tenets of Riparianism
1.Riparian doctrine – the owner of land bordering a water body acquires certain rights to
use the water, landowners bordering a waterway are considered riparians, each landowner
may make reasonable use of the water on riparian land if the use does not interfere with
the use of other riparians
·The amount a riparian may use depends in part on his purpose and in part on the amount other riparians are using, for all riparians have correlative rights.
·There are two distinct theories relating to the manner in which the right may be
exercised:
1. The English rule of natural flow – each landowner has the right to have the
water flow past his lands undiminished in quantity or undiminished in quality (strictly applied it is completely unworkable)
2. The American rule of reasonable use – differs in two respects from English rule: non-injurious use of the water does not give rise to a cause of action and the use of nonriparian land is not necessarily unprivileged
1. Defining the Riparian User Class and Identifying the Benefited Parcels
a. Reasons for having the Riparian system in water rich states is because prior appropriation gives rights to the first person who gets there. If there is no concern of shortage, then everyone can share equally. In prior appropriation, you only get as much as you had originally before other users.
b. English Common Law followed the Natural Flow Doctrine: Riparians have the right to receive, without diminution, the natural flow of the stream. Any diversion could be illegal. Different ways to deal with this:
English Common Law: No harm necessary to have a cause of action.
c. Currently, Riparian states follow permit systems and Reasonable Use Doctrine.
Reasonableness always takes into account who was there first. It isn’t the determining factor as it is in Prior Appropriation Doctrine, however.
2. Riparian Rights of Use and Incidents of Riparian Ownership
a. Natural Use: Most elemental use is that right to use water for domestic purposes (i.e., drinking, bathing, and raising a small quantity of garden produce and livestock). This is considered an absolute right and may be exercised without regard to its effect on co-riparians.
b. Artificial Use: Other rights that may be exercised with due regard for the effect on co-riparians. The list of artificial uses varies state-to-state. Some examples:
Power generation
Raising dairy and livestock herds.
Manufacturing
Recreation
c. Reasonable Use: The use of a riparian must be reasonable with respect to the cor
i. Martin v. Bigelow (Vermont, 1827)
a. Facts: Both were mill operators. D was downstream and started operating his mill first. P then came and his mill reduced the flow to D’s mill. D removed the waste gate from P’s mill pond to self-help remedy. Prescription is defined by statute. In this case, if the D had prescription to the water rights for more than 15 years, then he would have more of a right.
b. Rule: The mere prior occupancy of the water by the D does not give him a right to prevent the plaintiff from using the same water in a prudent way, as it flows down its channel. Basically, just because D was first, he cannot stop P from reasonable use of the water.
§ Water Quality Impacts and a More Comprehensive Form of Reasonable Use Riparianism
i. Snow v. Parsons (Vermont, 1856)
a. Facts: Is it proper for tanneries to expend their refuse or bark into the stream?
b. Rule: The reasonableness of a use depends upon its effect and detriment to other riparian downstream users and whether or not it is indispensable to any beneficial use at every point on the stream. Can tanning be done without this pollution?
Mason v. Hoyle (Conn. 1888) set forth a set of factors for courts to consider in resolving user conflicts to measure whether a use is reasonable.
