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Geographic Restrictions on Use

The page addresses the following questions:

• on what land can the water be used,
• can another use force me to incur the cost of changing my method of diverting the water for my use, and
• how do I gain access to water that I have the right to use but is located on another person's land?

Where can I use the water?

Coffin v. Left Hand Ditch Co., Colorado, 1882 (p. 95 of Gould's 7th ed.)

• Appellants tore out appellee's dam because the dam diverted water and left the appellants without enough water to irrigate their land.
• Appellants' land was riparian to the stream and thus the appellants argued their right is based on riparian rights (which appellants argue Colorado recognized until 1876) and appellee's use (which is non-riparian) has a lower priority.
• Court rejected the argument that Colorado adhered to riparian law until 1876; instead, court indicated that priority appropriation was recognized before then.
• Also, the right to use water under the prior appropriation doctrine does not limit the user to using the water in the watershed of its source. The water right can be established to allow the water to used in another valley (watershed).

The case holds that the water can be use on non-riparian land?  How far can the water be moved?  Can it be moved to another basin?

• California -- cannot remove water necessary for development.
• Colorado -- exporting water cannot increase the cost for users in the basin of origin; thus the exporter replaces the water by providing storage in the basin of origin.
• Nebraska -- return water to river of origin or Missouri River; since all of Nebraska is drained by Missouri River, water can be moved throughout the state as long as there is unappropriated water and the use would not be detrimental to public welfare.
• Texas & Kansas -- allow water to be moved between basins as long as benefits of importing exceed cost to users in the basin of origin.

Regulate land use to block interbasin transfer? (Colorado)

Rely on the market to determine water use, rather than an administrative agency?

Can the water be moved to another state?

• Prohibitions against interstate movement of water. Is such a prohibition constitutional? See Sporhase v. Nebraska (p. 100 of Gould's 7th Ed.).  "Water is an article of commerce."

Can I use the water on different land?  Can I use the water on additional land?

Appurtenance

Salt River Valley Users' Association v. Kovacovich, Arizona, 1966 (p. 101 of Gould's 7th ed.)

• Irrigators improved their use of water and then used the saved water to irrigate additional land.
• Lower court allowed irrigators to use the saved water. Court of Appeals reversed. Original user not entitled to use their saved water on additional acreage.
• Other water users would not be harmed because the irrigators were using no more water; they only were using the water over more acreage.
• A water right attaches to the land on which it is beneficially used; it is not a personal right.
• Saved water cannot be used on additional acreage. Beneficial use limits the water to the original land only.

• See N.D.A.C. §89-03-01-1.2 "An applicant for a conditional water permit must have an interest or intent and ability to acquire an interest in the land on which the point of diversion and conveyance system will be located or must demonstrate to the satisfaction of the state engineer that the applicant has the capability to put the water to beneficial use."

Assumption: early water rights were inflated and thus it was easy for senior appropriators to "save water" and expand their irrigated acreage. So to limit the amount of water used, the law limited the acreage that could benefit from the water right. Recall that irrigation was a major influence on the development of the prior appropriation doctrine.

• But where is the motivation to save water? Again, see Montana's statute on salvaged water.

Is this case being reversed through practices? 

• E.g., procedures to change water use, location, etc.
  • N.D.C.C. §61-04-15 A conditional or perfected water permit may be assigned only upon approval of the state engineer. Water permit may be transferred to any parcel owned or leased by the holder of the permit upon reasonable proof that such assignment can be made without detriment to existing rights. Water permit can be assigned, severed and transferred without losing priority.
  • N.D.A.C. §89-03-01-03.1 Transfer of an application (for a permit) to another parcel
• Allow water to be used on additional acreage as long as other appropriators are not injured.
  • N.D.A.C. §89-03-02-12; increase acreage to allow for more efficient operation of an irrigation system.

N.D.C.C. §61-04-15 Transfer of title of land shall carry with it all rights to the use of water for irrigation of such land.

Can I block a subordinate use if it detracts from my method of diversion?

Protecting the Means of Diversion

Also see http://www.ndsu.nodak.edu/instruct/swandal/aglawtextbk/chapters/waterlaw/Groundwater.html

State ex. rel. Crowley v. District Court, Montana, 1939 (p. 105 of Gould's 7th ed.)

• Plaintiff alleged that the defendant's dam reduced flow in the river to a level that the plaintiff could not divert water into the plaintiff's ditches even though the plaintiff's diversion dam was suitable and efficient, and was a reasonably adequate means of diversion, reasonably constructed and maintained. These causes were dismissed and the case was appealed.
• Subsequent appropriators take their water rights knowing the conditions of prior appropriators; both in terms of quantity of the prior appropriation and the means of diversion being used by the prior appropriators.
• Subsequent appropriators must assure there is water available to prior appropriators so they receive their quantity of water for use and a quantity to assure the operation of a reasonably efficient means of diversion. The prior appropriator's right is to have enough water to divert and use. But, there is no expectation that the means of diversion be absolutely efficient.
• The waste of water resources must be minimized, but there is no expectation that a more efficient and more expensive system of diversion be constructed to replace a reasonably efficient diversion system, especially if the added cost of the more efficient system outweighs the benefit of the saved water.
• A method of diversion that is unreasonable or inefficient cannot be used to interfere with reasonable use of water by others.
• There is no right to appropriate the current (flow) of a river so to render it impossible for others to beneficially use otherwise unappropriated water.
• The causes were reinstated.

This concern applies to both surface water and groundwater.

N.D.C.C. §61-04-06.3 Priority of appropriation does not include the right to prevent changes in the condition of water occurrence such as the increase or decrease of streamflow, or the lowering of a water table artesian pressure or water level if the prior appropriator can reasonably acquire the prior appropriator's water under the changed conditions.

The law does not require an absolutely efficient method of diversion; but it does require a reasonably efficient method of diversion.  Subsequent uses must leave enough water to meet the prior appropriators needs, assuming the prior appropriator has a reasonably efficient method of diversion.

• Is reasonable efficiency changing with time, technology, etc?
• Can law mandate that a holder of a water right invest in technology to improve the efficiency of the water use?  Why?  When does a regulation become a taking?  To what extent is a water right protected like any other property right?
• If adopting technology to improve the efficiency of water use cannot be mandated, are there incentive programs to encourage it?

Should a "market approach" be used to balance the benefits to subsequent appropriators against the cost to prior appropriators?  Is the cost of completing such a transaction too great (transaction cost)? Would this strategy ever impose an undesirable result on those who are not part of the transaction (externalities)? Would this strategy leave those with limited resources unable to acquire the critical resource of water?

• The authors are including in the notes the question of whether we should use the "market" to allocate water rather than an administrative approach.

Hallauer v. Sprectrum Properties, Inc. Washington, 2001 (p.112 of Gould's 7th ed.)

• Hallauers held the water right to water from a spring on neighboring land and sought to condemn a way across the land to transport the water to their property for domestic and other uses.
• Court of Appeals held that the Hallauers' land is not landlocked and alternative sources of water are available; therefore, there was no reasonable necessity for condemnation.
• Supreme Court reversed.
• There is state statutory authority for the condemnation.
• Condemnation (eminent domain) generally requires that the property being taken be put to a public use. However for right of ways for water, public use includes putting water to a beneficial use: "The benefit to the public ... is not public service, but is the development of the resources of the state, and the increase of its wealth..."
• "condemnation of any property or rights necessary to apply water to beneficial use is a condemnation for a public use."
• "Necessity" is not based on the landlocked nature of the condemnor's property, but on the necessity for the application of water to a beneficial use.

N.D.C.C. §61-01-04 Any person may exercise the right of eminent domain to acquire for a public use any property or rights when found necessary for the application of water to beneficial uses.

Mougey Farms v. Kaspari, 1998 ND 118 (6/4/98) (not included in Gould's 7th ed.)

• A limited circumstance in which a private party (any person) has the right to exercise eminent domain; that is, to acquire a right of way so water can be put to a beneficial use.
• Putting water to a beneficial use is in the "best interest of the state;" so a right of way that allows water to be put to a beneficial use is a "public use" as required by N.D.C.C. §61-01-04.
• An easement to convey water over another person's land is a legal right separate from the right to appropriate the water from its source.

• See Utah statute
• Right to construct and use a path for the conveyance of water. Treated like most other easements N.D.C.C. §47-05-01(11).
• How are these easements acquired? Purchase? Prescription? Eminent domain?
  • With respect to an individual's right to use eminent domain to acquire an easement for the conveyance of water, see ND Const. Art. I, Sec. 16 (second paragraph), which is North Dakota's response to the Kelo decision. Does this 2006 amendment to the state constitution now invalidate the state statute?
• Does the easement transfer when the dominant tenement is transferred?
• How can one acquire an easement to flow water over public land? Also see N.D.C.C. §61-01-19.
• Privilege to enter on someone else's land to investigate whether to to construct a water converyance?
• Can the easment be relocated?

Last updated February 21, 2007

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