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Introduction to the Doctrine of Prior Appropriation

We will begin our study of water law by focusing on the rules applied in the western states (the line of states from North Dakota to Texas and west). This legal theory for allocating water is known as prior appropriation and generally means that "the first person to put the water to a beneficial (productive) use has the best legal right to continue to use the water."  Those who put water to a beneficial use at a later time have a subordinate water right and generally will have to not use water if there is not enough water to meet everyone's needs.

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

The first case presents some thoughts on the origin of the doctrine of prior appropriation. Subsequent cases describe the attributes of the doctrine as it has evolved over the last 150 years.

Irwin v. Phillips, California 1855 (p. 18 of Gould's 7th ed.)

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

The authors' notes following the case (pp. 20-23 of Gould's 7th ed.) explain how prior appropriation theory is different from the riparian water rights theory that was followed in the eastern part of the country.  Note the authors' comments about the influence that mining, irrigation, Spanish or Mexican law, and the Morman church had on the emerging water law of the western United States during the second half of the 19th century.

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

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

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

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

• See California Water Code, Section 101.

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

Additional thoughts

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

Initial thoughts on Beneficial Use

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

• Also see New Mexico statutes at §72-1-2
• Montana: §85-2-311(d)

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

Initial Thoughts on Priority

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

• N.D.C.C. §61-04-06.3 "Priority in time shall give the superior water right."
• Montana: §85-2-401

But who really owns this water? 

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

• ARTICLE XI, Section 3. All flowing streams and natural watercourses shall forever remain the property of the state for mining, irrigating and manufacturing purposes.

• Texas: Water Code §11.021
• §11.021

What water is being discussed?

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

Initial Summary of Prior Appropriation Doctrine:

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

Links to state water law

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

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

• Arizona: Title 45
• California Law:  Water Code
• Colorado statutes: Title 37; also Colorado Water Districts: Water Courts

• Idaho statutes: Title 42 Irrigation and Drainage -- Water Rights and Reclamation

• Kansas statutes:  82a-701 et seq.
• Montana statutes:  Title 85. Water Use; Chapter 2. Surface Water and Ground Water
• Nebraska statutes:  46 Irrigation and Regulation of Water (see 46-202 et seq)
• Nevada Revised Statutes:  Title 48 Water
• New Mexico: Chapter 72
• North Dakota:  Statutes; Regulations
• Oklahoma statutes: Title 82 Waters and Water Rights
• Oregon: Chapter 537
• South Dakota:  statutes (SDCL title 46); regulations:  SD Administrative Rules article 74.02
• Texas Water Code:  Title 2, Chapters 11 and 12
• Utah Code: Title 73 -- Water and Irrigation
• Washington -- Rules, Laws, Policy and Procedures, and Case Law, Department of Ecology web page
• Wyoming statutes: Title 41 Water

• Florida: Chapter 373 (e.g., see §373.219)
• Minnesota 103G.255 et. seq.
• Missouri 256.400 to 256.430
• Tennessee statutes chap. 69-07 and common law

The first topic of the next section considers how a person or entity historically acquired a water right.

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