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Riparian Theory of Water Rights

We will study only selected cases from this chapter of the casebook. Let's plan to discuss the following materials.

• Anaheim Union Water Co. v. Fuller
• Harris v. Brooks
• Pyle v. Gilbert
• Adams v. Greenwich Water Co.
• Hudson River Fisherman's Association v. Williams
• Village of Tequesta v. Jupiter Inlet Corporation
• Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Board

Riparian doctrine is primarily adhered to in the eastern half of the United States; a climate with considerably more water than the western states. The theory of riparian rights stems from European influence, but even this doctrine is being modified to accommodate current needs.

Riparian doctrine is generally common law, but some "eastern" states are beginning to codify their water law. Note however, that some statutes are codifications of the common law of riparian doctrine while other statutes are deviating from the common law.

• Missouri: 256.400 to 256.430 -- establishes a registration process for major users -- the purpose is to "provide an important part of the information required in the technical assessment of current and future requirements for the regulation of water use or consumption, or both, on a regional or statewide basis, as may be required... [Does not apply to] farm or other ponds ... which collect and hold surface water and which are located upon property [of] the withdrawer ... so long as the common law rights of downstream owners are not abridged, but ... shall apply to water withdrawn or diverted from wells or springs located on property [of] ... the withdrawer..."

 

• Tennessee: statutes chap. 69-07 and common law
  • 69-7-103(4) " Implement the basic water resource policy of the state by creating and defining the rights of respective competing users of the water resources of the state;"

 

• Florida: Chapter 373 -- codifies concepts similar to prior appropriation doctrine (e.g., see §373.219 and §373.223)

• 373.219(1)  "The governing board or the department may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area. However, no permit shall be required for domestic consumption of water by individual users."
• 373.223(1)  "To obtain a permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water: (a)  Is a reasonable-beneficial use as defined in s. 373.019; (b)  Will not interfere with any presently existing legal use of water; and (c)  Is consistent with the public interest."

 

• Minnesota: 103G.255 et. seq.
  • "Chapters 103A, 103B, 103C, 103D, 103E, 103F, and 103G constitute the water law of this state and may be cited as the Water Law." See Minneota Statute §103 A.001; also see Minnesota Statutes Chapters 103A to 103 G.
• Note the breadth of the statute, see §103 A.201(1)
  • "To conserve and use water resources of the state in the best interests of its people, and to promote the public health, safety, and welfare, it is the policy of the state that: (1) subject to existing rights, public waters are subject to the control of the state; (2) the state, to the extent provided by law, shall control the appropriation and use of waters of the state; and (3) the state shall control and supervise activity that changes or will change the course, current, or cross section of public waters ...

Riparian land is a parcel that is adjacent to a watercourse. Riparian rights permit the riparian landowner to use the water from the watercourse. But which land is riparian?

Basis of Right

Anaheim Union Water Co. v. Fuller, California, 1907 (p. 236 of Gould's 7th ed.)

• Plaintiffs diverted water from the Santa Ana river to irrigate.
• Defendants built a dam upstream to divert water to irrigate their land.
• Plaintiffs received an injunction against the defendants from diverting water from the river because the defendants' land that would be irrigated was not riparian.
• The land on which the water is used must be within the watershed, must be owned as one tract that extends from the water source to the point of use, and never have been severed from the land that borders the water source.
• Land that is not within the watershed of the river is not riparian and is not entitled as riparian land to the use or benefit of water from the river, even though it may be part of a tract that extends to the river.
• A principal reason for confining riparian rights to lands that border the stream is so after its use, the water returns to the stream.  
• Where two streams unite, it is correct to consider them as separate streams above their confluence and the land within the watershed of one stream is not riparian to the other stream.  
• Land that is conveyed and severed from the tract that is adjacent to the stream can never regain its riparian right even though it is in the watershed.
• In California, riparian owners have correlative rights in the stream and neither are trespassers against the other until one diverts more than that user's share, and injures and the damages the other; water of a stream belongs by a common right to the riparian owners and each is entitled to sever their share for use on the riparian land.  
• A riparian right is not lost by disuse, but it can be lost to a trespasser whose use matures into a prescriptive right.  

Riparian rights are part of riparian land; sticks in the bundle of rights. (p. 242 of Gould's 7th ed.)

Which land is riparian?

• Source of title test: smallest tract held under one title in the chain of title leading to the present owner; each time a portion of land is separated from the riparian land, the separated portion is no longer riparian and can never regain its status as riparian even if it is subsequently owned by the same person again. Restated, riparian land (under this test) is land bordering on a watercourse that has been in the same ownership in an uninterrupted chain of title.
• Unity of title test: all land comprising a tract that is adjacent to a watercourse; thus separated land can regain its riparian status if it is again owned as one tract by the riparian landowner.
• Government subdivision: riparian land should be defined by government survey subdivisions such as 40-acres or 160-acres

Must riparian land be within the watershed of the watercourse? Apparently, yes.

Riparian landowner does not need to own the riverbed to have riparian rights; only need to own the land adjacent to the watercourse.

Am I entitled to use diffused surface water (p. 241 taken from notes to a case we did NOT read).

• Diffused surface water may be captured, used, dammed and redirected by the landowner even though the water would otherwise reach a watercourse and these activities diminish the flow of the watercourse.

But how do people who are not riparian landowners acquire water? We know they need water, but how do they acquire it?

• Purchase the right from a riparian owner?
• Steal it (that is, acquire it as a prescriptive right)? Non-riparian entities can acquire water rights via prescription (continuous use for an extended time without the permission of the riparian landowner); conversely, riparian water rights can be lost by not stopping a trespasser water user.

But how much water can I use? -- Reasonable Use

Harris v. Brooks, Arkansas, 1955 (p. 246 of Gould's 7th ed.)

• Appellees were pumping water from a lake to irrigate rice.
• Appellant operated a boating and fishing business on the land and sought to enjoin the irrigation because it was reducing the water level of the lake.
• Injunction was not granted and the case was appealed.
• Owners of land that borders a lake have the right to use the water and this right is an incident of the land ownership.
• Natural flow theory -- land owner is entitled to have the water kept at its normal level and may take water for domestic purposes only.
• Reasonable use theory -- there is no reason to maintain water source at its normal level when the water can be used without causing unreasonable damage to other riparian owners; the rights of riparian land owners is mutual, common, or correlative; the riparian land owners are limited to using the water to what is reasonable having due regard to the rights of other riparian users.
• Domestic use of water is superior; all other uses are of equal value; when one lawful use destroys another lawful use, the destructive use must be enjoined; when one lawful uses only interferes with another lawful use, the court must decide if the second use is reasonable.
• Determining reasonable use involves evaluating the conflicting interests; equal protection to promote the greatest beneficial use of the water; individuals must put up with reasonable amount of annoyance and inconvenience from other lawful activities.
• Riparian use does not give rise to a prescriptive use; in this case, the first users were merely exercising their legal rights and these are not adverse to other riparian land owners.

In the eastern states, initial water uses were in-stream:  navigation, power to operate saw mill, gristmills, cotton gins. Legal issues often address whether "my dam interferes with the water flow that you desire." Since so little water was being diverted, riparian rights focused on water flow and the rule became that I cannot alter the flow of the water.  Thus the basis for the "natural flow" doctrine.

With time, more diversionary uses arose, especially for growing municipalities and new industrial uses. But the rule that "my use cannot alter the water flow" meant users could divert very little water. This left unmet needs even though significant water was flowing past the land. A new legal theory was needed - reasonable use.

• The reasonable use rule states that a riparian landowner's reasonable use is protected from unreasonable uses by other riparian landowners.
• Note that a use must be reasonable before the user could argue that someone else's use is unreasonable. 
• The reasonable use theory allows more water to be put to use than the natural flow theory.

Domestic uses were given priority over all other uses. Domestic use preference - riparian landowner can use the entire flow if necessary for domestic purposes. But domestic use was defined as natural wants. What is encompassed in natural wants? Does natural wants include minimum (not natural) in-stream flow? Is irrigation a preferred use? Are municipal uses preferred?

Restatement of torts - Reasonable Use of Water (p. 253 of Gould's 7th Ed.)

• Purpose of use
• Suitability of use to the watercourse
• Economic value of the use
• Social value of the use
• Extent and amount of harm caused by the use
• Whether altering the use could reduce the harm
• Whether the quantity being used could be adjusted
• Protecting existing values and investments
• The justice of requiring the user causing the harm to bear the loss

Examine 1) the use being harmed, 2) the use causing the harm, 3) the impact of the harming use on the harmed use, and 4) the impact of the harming use on society, the economy and the environment. It is a matter of weighing the benefits and harms of each use against each other.

Users will be required to use reasonable means to capture and divert water.

Existing users must accept later uses that do not impose substantial economic losses or that impose only an inconvenience; this is the inevitable result of development.

Are non-riparian uses reasonable? Do we distinguish between a non-riparian use by a riparian owner and a non-riparian use by someone who is not a riparian landowner?

• One rule: non-riparian use can be enjoined even if it does not cause harm to a downstream riparian landowner.
• A more likely rule: there must be damage in order for the non-riparian use to be enjoined.
  • Non-riparian use that causes injury or harm is per se unreasonable.
  • Downstream non-riparian use is per se unreasonable and is not entitled to be protected from an upstream riparian use that reduces the flow of water.
  • Non-riparian use by riparian landowner is not per se unreasonable.

How do I acquire water rights if I am not a riparian landowner?

Nonriparian Use: Grant

Pyle v. Gilbert, Georgia, 1980 (p. 279 of Gould's 7th ed.)

• This case involves a well-established power mill urging natural flow theory against an upper stream new irrigator who urges the adoption of reasonable use.
• Trial court ruled for the plaintiff; irrigation was an unreasonable use.
• This court rules that whether irrigation is unreasonable is a question for the court.
• Court rejects notion that water can be used only riparian land; instead, riparian rights are property rights that can be transferred; water law should be utilitarian and allow the best use of water.
• Georgia recognizes the right to condemn water rights; and that water acquired through condemnation can be used on non-riparian land. If water can be acquired through condemnation for use on non-riparian land, it also can be acquired for use on non-riparian land by grant (purchase).
• The only question remaining is whether the use of water to irrigate non-riparian land is reasonable, and that is a question to be resolved at trial.

Water right also can be acquired by lease, as long as riparian landowner's domestic (natural) needs are not substantially impaired.

Can a non-riparian entity acquire water rights by prescription? See Pabst case on page 272 (7th ed.) which we are NOT discussing. The general answer is "yes."

How does an muncipality acquire water rights in a riparian state?

Nonriparian use: Municipal supply

Adams v. Greenwich Water Co., Connecticut, 1951 (p. 284 of Gould's 7th ed.)

• The defendant is a corporation that is to furnish water for public and domestic use to the town.
• Plaintiff are riparian owners seeking to enjoin the diversion and the attempt by the defendant to take the water by condemnation.
• Defendant began to pump water from the river when it became apparent that the original water sources would not be enough to meet the contract due to drought conditions.
• Defendant admits it has no right to pump water from the river and will proceed to use condemnation, but that under the circumstances (drought and not enough water to the town) it was justified in its actions.
• Even though water was being diverted, plaintiffs were not injured.
• Previously , the General Assembly had granted the defendant authority to take by eminent domain.
• Water company should plan 10 to 20 years into the future.
• Trial court did not grant injunction because harm to plaintiffs was far outweighed by the needs of the defendant and the town it was supplying with water.
• Eminent domain question -- "taking" water is allowed if it is for a public use and based on foreseeable future; courts will interfere with eminent domain in case of bad faith or unreasonable conduct.
• Plaintiffs are entitled to be paid, but not necessarily entitled to an injunction. Court can deny an injunction if granting it would adversely affect public interest.
• But the trial court did not impose a limit on when the defendant must acquire the water right by eminent domain; therefore judgment reversed with trial court to determine a reasonable time in which the defendant must acquire the plaintiff's water rights and if that time is not met, an injunction will be issued.

What is the value of riparian water rights, especially if I am not using my rights, or if my needs will be met even if the other use is developed?

Can a user proceed with inverse condemnation if the municipality does not initiate eminent domain?

The authority for municipalities to acquire water rights from riparian landowners is often based on specific statutes.

Hudson River Fisherman's Association v. Williams, New York, 1988 (p. 289 of Gould's 7th ed.)

• Spring Valley Water Company provides water to Rockland County; it wants to build an additional reservoir and filtration plant to meet expected future needs.
• During hearings, the need for additional water was obvious, but the timing of the need was in dispute.
• Commission approved the project but established a triggering event for issuing the construction permits.
• Concerns about the project include loss of trout habitat.
• Petitioners argue that Spring Valley failed to demonstrate the public necessity for the construction of the water project -- the project should not be approved unless it will be developed in the immediate future.
• Court rejects this argument for 3 reasons -- present need does not mean dire need; there is a need for greater peak demand capacity; the trigger mechanism assures permits will not be issued prematurely.
• The trigger is based on average demand, rather than peak demand; but it is the peak demand that is of greatest concern; however, average demand is an acceptable benchmark due to its relatively constant ratio to peak demand.
• Environmental law was complied with -- the requested mitigation would doom the project, mitigation was provided for, and the high priority of domestic and municipal uses was a consideration.

Regulation of public water supply projects - state enacted statutes to authorize municipalities to acquire water to meet their needs. The statute was necessary to address the issues that arise under riparian rights; that is, there are non-riparian needs. But municipalities are required by the statutes to address a range of issues as part of acquiring the water rights.

Priority among competing public water supply projects - Pennsylvania - municipalities' unused water rights are cancelled, used rights must be registered (documented), and permit must be applied for.

Other rules - can only acquire water this is not already appropriated; imposed conditions on water usage; difficulty of determining whether downstream user is entitled to have the flow of the water undiminished; also, it is not clear that the upstream use is reasonable.

Federal regulation - federal law does not directly appropriate water, but laws such as Clean Water Act, Endangered Species Act, etc can influence whose project will be constructed.

State Regulation

Village of Tequesta v. Jupiter Inlet Corporation, Florida, 1979 (p. 298 of Gould's 7th ed.)

• Corporation proposed developing housing and pumping water for domestic purposes from a shallow aquifer that a nearby village was already pumping at its safe yield level.
• Common law gave the overlying landowner right to reasonable use of the water. This was modified by the correlative rights theory.
• Florida enacted a statute requiring a permit for all new withdrawals and provided for recognizing common law rights by also issuing permits.
• Corporation's application was denied.
• Corporation sues village in inverse condemnation for taking the corporation's water.
• Water right in Florida does not mean owning the water; only owning the right to use it.
• Water Act recognizes need for conservation and control, and makes all water subject to regulation.
• Right to use water under common law is different than right to use water under a permit.
• The act makes no provision to continue an unexercised common law right.
• Since corporation's common law right is now invalid, the village does not need to acquire the water right through condemnation.

Why permits in riparian states? To replace a system where rights are vague; unstable; not adequate on which to invest or build; is litigation driven; determination of rights is slow, expensive and unpredictable. System does not protect the environment or public values; does not effectively allocate water during drought; and limits use to riparian land.

Characteristics of permits in riparian states:

• time of initiating use is not the issue;
• can expire or be cancelled;
• administrators have considerable discretion to reallocate

Purpose of permit is to record (register) and quantify existing water right/usage. Also to control future/new use.

But system implies priority based on time of use by requiring that new use does not interfere with existing use.

Non-riparian entities can acquire a permit.

Administrative discretion -- do the permitting systems in riparian states grant the administrator too much discretion? If "time of initiating use" does not allocate water, and all uses are equal (except domestic use), what are the criteria for allocating water?  Will some uses become unreasonable during time of shortage but are reasonable during time of plenty?  If we are weighing competing water uses (as is implied under the Restatement of Torts), such a scenario could occur.

Thus the argument that the permits in riparian states are subject to too much administrative/judicial discretion, are too unpredictable, and may be based on type of use (e.g., domestic v. municipal v. irrigation).

• How does the law address the issue when a later use seems to be more valuable than senior uses?  Prior appropriation requires that the senior (but less valuable) use gets the water. The question of who gets the water during time of shortage is difficult for both riparian and prior appropriation doctrines.

"Shortage plans" as a way to address this problem; as a way to bring some predictability to these situations.

Inadequate control of over-development -- permit systems focus on use and assume only temporary shortages; is there an adequate process to stop issuing permits when water is fully appropriated?

Flexibility and reallocation -- use market; but if permits expire, market will adjust the value of water rights.

Other criticism -- no coordinated approach to planning and permitting; permits expire and no certainty of renewal; no mechanism for reallocating water.

Some links -- both of these statutes require permits.

• Florida §373.219
• Minnesota §103G.271

Abolition and Combination

Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Board, Oklahoma, 1990 (p. 312 of Gould's 7th ed.)

• 1963 legislation to regulate riparian water rights -- declared unconstitutional.
• Legislation provides mechanism to protect existing rights.
• Legislature may restrict use of private property by proper exercise of police power for the preservation of public health, morals, safety and general welfare without compensating the property owner.
• But these rules abolish the right of riparian owner to assert a vested interest in the prospective reasonable use of the stream.
• The legislation falls short of protecting the riparian owner's common law right; riparian rights are broader than those protected by the legislation.
• Rights of riparian owners are to be determined by relative reasonableness; not past use, present use, or non-use.
• DISSENT: majority misperceives the future; does not follow the lead of other jurisdictions; unexercised riparian rights are not property; legislature was placing everyone on equal footing with a unitary system; the legislation did not leave the land economically unviable.

Abolition of riparian rights - primarily in the western states that started with riparian rights and then developed and adopted the doctrine of prior appropriation; but those who already had riparian rights had to be protected; that is, there property rights could not be eliminated by a subsequent change in legislation; issues include

• how to protect existing rights that will not be allowed to arise in the future, such as riparian rights.
• how to accommodate riparian owners who have not used any water but who would argue they intended to use it in the future.
  • The first issue is legal; the second issue is more political.
• States recognized only rights that were actually put to use; the states will not recognize (compensate for) "possible" water use.
• States did not distinguish between water that was once used but is no longer being used, and water that was never used. In both cases, the water is unused and thus the opportunity to use it again or for the first time in the future was not a property right.
• Preserved the right (and the priority) to use water for domestic purposes.

California doctrine - effort to preserve the dual system

• An unreasonable water use is not limited to only a wasteful water use; but also includes a use whose alternative is more socially or economically valuable.
• Unexercised riparian rights would be subordinate to perfected appropriated rights; but the subordination can only occur through a statutory stream-wide (basin wide) adjudication.

Alteration of doctrine by permitting systems in eastern states -- permits are mandatory for new uses. This is different than riparian doctrine where one can simply begin using the water that is adjacent to your land.

Purchase of unused riparian rights -- pay you for your water right even though you are not using the water; that provides you an economic reward for allowing me to put the water to use. This clarifies that you have relinquished your right to me.

Resolving disputes by augmenting supply -- stopping someone from using water does not address the problem that there is not enough water; so in California (an area with water shortages) the focus has been on augmenting the water supply, rather than fighting over the existing supply.

Reversal of trend - Hawaii experience (p. 323 of Gould's 7th Ed.) -- state can change the water law but only prospectively; the change cannot divest vested rights. Rights that were based on practice can be required by subsequent law to be documented through a "declaration of use" or permit.

Last updated January 12, 2011

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