WATER LAW

THIS IS A DISCUSSION OF SYSTEMS OF WATER LAW AND THE GENERAL BACKGROUND OF THE COMMON LAW AND THE "APPROPRIATION" SYSTEM COMMON THROUGH THE WESTERN UNITED STATES. IT DOES NOT CONSIDER TORT REMEDIES SUCH AS NUISANCE OR INTERFERENCE WITH WATER RIGHTS, APPROPRIATIONS FOR STATUTORY PURPOSES SUCH AS THE FEDERAL CLEAN WATER ACT ARE OUTSIDE THE SCOPE OF THIS BASIC DISCUSSION.

I.    SYSTEMS OF WATER LAW.

A.    WATER RIGHTS FOR THE PURPOSES OF WATER LAW, USUALLY REFERS TO 2 KINDS OF "WATER":

1. A definite body, including running water, whether in watercourses on the surface or subterranean, and standing water in definite bodies such as lakes or ponds. Early, traditional systems of water law generally dealt with the first class of water (definite bodies) only. Irrigation law amounts to a set of legal rules and case law applying those principles which govern the rights to water of natural streams and watercourses. Early statutory law, including the law of the several United States was directed at determining respective rights of water users to appropriate running or standing water for uses upon the land. In most states the traditional or common law is superseded by other doctrines of public domain, or may be superseded anywhere by condemnation of pre-existing rights acquired thereunder.

2. Diffused water or water not in any definite body or form, including surface water, that is, rainwater, and water in swamps and marshes, and percolating water, diffused underground water. The evolving view of the law has been to determine the law of water rights rather than of the law of irrigation and to provide for appropriation of water for any and all beneficial purposes. The laws reach uses and protection of rights to artesian wells, and storage or rainwater. The range of beneficial purposes may extend to hydroelectric production, protection of riparian lands or enhancing fish habitat.

B.    COMMON LAW.

1. Water cannot be "owned."

The fundamental principle of the common law with respect to water is that running water may not be owned. It may only be used. The common law determines who may use it and how it may be used. Allowing no one to own the water and hence to claim an exclusive right to appropriate, divert, or dispose of it, the common law permits a reasonable use of the water by all riparian owners, that is, by all owners along or over whose lands the stream or watercourse flows.

But a distinction is made with respect to the character of the use to which the water is put by the riparian owner. If he or she uses the water for domestic purposes there is no limit to the amount that may be taken. If used it for purposes other than domestic, the use to which it may be put is limited by the right of every other riparian owner to make a like use and he or she is allowed only a reasonable use of the water. Confusion has arisen in this connection from the unfortunate employment of the words "natural" and "ordinary" to mark those uses which the common law does not attempt to limit, and "artificial" extraordinary" to mark those with respect to which a limitation is imposed. It has been said that domestic use is a use to satisfy a "natural" or an "ordinary" want, while use in irrigation, in mining, for power, or to carry off waste is use to meet an "artificial" or "extraordinary" want. Misled by these words, legislatures have indulged in no little argument in the semi-arid Western United States to the effect that irrigation supplies a "natural" want and that use of water for that purpose is natural and ordinary in semiarid regions. But these distinctions miss the real point of the common law doctrine. As one court has said: "The law does not regard the needs and desires of the person taking the water solely, to the exclusion of all other riparian proprietors, but looks rather to the natural effect of his use of the water upon the stream and the equal rights of others therein. The true distinction seems to lie between those modes of use which ordinarily involve the taking of small quantities and but little interference with the stream, such as drinking and other household purposes, and those which necessarily involve the taking or diversion of large quantities and a considerable interference with its ordinary course and flow, such as manufacturing purposes" Meng v. Coffee, 67 Neb. 500, 513. Irrigation must be put in the latter category, and it is now conceded that, where the common law prevails, use of water for irrigation is not only confined to riparian owners, but is subject to the limitation that the use must be reasonable under the facts of the case in hand.

2. What is reasonable use?

By "reasonable" use, the common law means a use consistent with a like right of use in all other riparian proprietors. The leading case upon this point is Embrey v. Owen, [6 Ex., 353.] The plaintiff occupied a grist mill on the banks of a river. The defendant owned land on the river above the mill and was diverting part of the water to irrigate certain meadows. The working of the plaintiff's mill was in no way impeded by the amount of water diverted, there was no sensible diminution of the stream by reason of the diversion, and the loss of water was ascertainable only "by inference from scientific experiments on the absorption and evaporation of water poured out on the soil." The court held that the plaintiff had no case, since the use by the defendant was consistent with a like use by other riparian owners and hence reasonable. Baron Parke said (p. 368): "This right to the benefit and advantage of the water flowing past his land is not an absolute and exclusive right to the flow of all the water in its natural state * * * but it is a right only to the flow of the water, and the enjoyment of it, subject to the similar rights of all the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence."

Obviously no fixed rules may be laid down with respect to what is a reasonable use. The common law, as courts have often said, "seeks to secure equality in the use of the water among all those who are so situated that they may use it." But certain uses are so clearly unreasonable that the courts have settled that they will not be permitted. These are: (1) diversion to and use on non-riparian lands; (2) consumption of all the water; (3) waste of water; (4) needless diminution of the amount of water; and (5) failure to return the unused water to the stream, to the injury of other owners or so as to prevent reasonable use of the stream by them also. Subject to these propositions, the uses which a riparian owner may make of a stream for purposes of irrigation "must be judged, in determining whether they are reasonable, with reference to the size, situation, and character of the stream, the uses to which its waters may be put by other riparian owners, the season of the year and the nature of the region. These circumstances differ in different cases, and what use is reasonable must be largely a question of fact in each case." Meng v. Coffee, 67 Neb. 500, 504, 515 (citing cases); Lux v. Haggin, 69 Cal. 255.

3. What are riparian lands?

The requirement that the use be upon riparian lands does not mean that use upon the whole tract owned by a riparian owner is necessarily permitted. If the tract is non-riparian, the use is obviously unreasonable. But the lands of a riparian owner may extend back a long way from the stream, and much ingenuity has been expended in the attempt to fax some absolute tests by which it may be determined to what extent he or she may claim a right of use upon his lands in such cases. Thus it has been said that lands beyond the divide or watershed, although part of the same tract with riparian lands, are not riparian; that contiguous land subsequently acquired by a riparian owner, which itself lies away from the stream, is not riparian; and that "the extent of riparian land cannot in any event exceed the area acquired by a single entry or purchase from the government." And it has even been suggested that riparian land "may not exceed the smallest legal subdivision of a section, that is, forty acres, or, in lieu thereof, if an irregular tract, a designated numbered lot, which is bordered by a natural stream or over which it flows." Crawford Company v. Hathaway, 67 Neb. 325. See Lux v. Haggin, 69 Cal. 425; Bathgate v. Irvine, 126 Cal. 135; Watkins Land Co. v. Clements, 98 Tex. 578. Contra: Jones v. Conn, 39 Ore. 30.

A leading scholar suggested that such attempts are futile and unnecessary. The requirement that the water be used on riparian lands is not a primary rule, but a corollary of the prime requirement that the use be reasonable. Hence it is not the number of acres in the tract nor the manner in which the tract was acquired, but the amount of water in the stream and the uses to which it may be put by others that should be looked to. If there is abundance of water and those who can possibly use it are few, use over large tracts may be in no way inconsistent with equality of use by others. If, on the other hand, there is little water and there are many to use it, use on all of the tract first acquired, or on the whole of the smallest government subdivision might prevent a like use by others.

C.    ROMAN AND CIVIL (MODERN EUROPEAN) IRRIGATION LAW.

The Roman law held that running water, along with light, air and the sea, was res communis. That property "belonged" to no one and the right to use it in every one. This proposition in one way or another has entered into all systems of water law. Its real meaning is that streams and bodies of water as natural resources are assets of society so that the water in them is not and cannot be owned by individuals. There is a social interest, however, in the use as well as in the conservation of such natural assets. Consequently part of the water may be taken out and for the time being, as it were, reduced to the possession of the individual and while he or she is using it and to the extent of such use, he or she may have a property interest in such use. Accordingly every system of water law, starting with the premise that running water may be used and not owned, seeks to determine, first, who may use it, and, second, how it may be used.

In Roman law a distinction seems to have been made between public streams, those which flowed continually, and private streams, those which were dry at certain periods (6). According to the civil law, public streams are natural watercourses, navigable by boats or rafts; all others are private streams. Public streams are the property of the state and the use of them belongs to the state, which grants rights of using the water to individuals by way of concession (franchise), charging a toll therefor. In the Roman law the owner of a private stream had the same power that he or she had over any other property. According to the civil law (i. e., the modern law of continental Europe) a certain community of use in private streams is preserved; the upper owners cannot permanently withdraw the water that would naturally come down to the lower owner; then the upper owners must restore the water to the bed of the stream after using it (8). Indeed this followed from the proposition of the Roman law that running water was res communis. It is important to remember that the civilians did not think of running water as owned by the state or by the public. They held that it was owned by no one, that it belonged to no one person any more than any other person, and that it could not be owned while in its natural condition. In considering the language of some of the statutes and decisions in our western states in recent years this is significant.

D.    APPROPRIATION DOCTRINE: AMERICAN IRRIGATION LAW IN SEMI-ARID REGIONS.

1. Overview.

It is apparent that neither the common law nor the civil law systems were adapted to the necessities of the arid states and territories, nor even to all parts of the semi-arid jurisdictions. The difficulty with the common law rules was that where there was no more than water enough for one to use with advantage, the requirement of equality of use prevented anyone from using. The difficulty with the civil law rule was that at the time when the law upon this subject was evolving there was usually no organized government at hand on the public domain to license use of streams, there had been no survey of the water resources of the country, and the idea of such license or concession was foreign to the individualistic ideas of the pioneer. Hence a third system was evolved from the necessities of the situation by the pioneers of the Pacific slope, which has become the foundation of the American law of irrigation. This is based on what is known as the appropriation doctrine. Today after development along common law lines or along the lines of the appropriation doctrine has become substantially complete a collectivist tendency is moving many to urge the civil law idea or even to urge a new idea of ownership of running water by the state. Except so far as the latter means simply that the state as the guardian of social interests is to exercise a regulating power with respect to the use of a natural asset of society, to put these newer tendencies into action would require confiscation or else condemnation.

2. Origin in mining custom.

Whereas the fundamental notion of the common law is equality in use among riparian owners, the fundamental idea of the appropriation system is that priority of application to a beneficial use gives a right to use the water so appropriated, so long as the use is kept up, even though it be all the water of the stream, whether applied on riparian or non-riparian tracts, to the exclusion of those whose claims are subsequent in time. At one time there was a tendency in the common law toward such a doctrine. In Williams v. Morland (2 B. & C. (Eng.), 910.), Bayley, J., said: "Flowing water is originally publici juris. So soon as it is appropriated by an individual, his right is co-extensive with the beneficial use to which he appropriates it. Subject to that right, all the rest of the water remains publici juris." But the common law, as has been seen, eventually took another course. The idea of acquisition of a right by priority of appropriation to a beneficial use arose on the public domain at the time of the discovery of gold in California. Government and law had not been established, there was no agricultural population, there were no riparian owners, and streams could be put to no use except f or mining. "From the necessities of the case, there being no law applicable, the miners held meetings in each district or locality and adopted regulations by which they agreed to be governed. As at that time streams could be put to no use except for mining, and as the use of large quantities of water was essential to mining operations, it became settled as one of the mining customs or regulations that the right to a definite quantity of water and to divert it from streams or lakes, could be acquired by prior appropriation. This custom acquired strength; rights were gained under it and investments made, and it was soon approved by the courts and by local legislation; and, though not originally available against the general government or its patentees, was made so available by act of Congress in 1866." See Atchison v. Peterson, 20 Wall. 507, 510.

3. Application to irrigation.

From mining this doctrine spread to irrigation. In California, where it originated, it was applied to the public domain only. Colorado applied it to private lands as well, and that state has taken the lead in the development of the law upon this subject. The common law doctrine and the appropriation doctrine are well contrasted by the supreme court of Colorado in Oppenlander v. Left Hand Ditch Co., 18 Co. 142, 147, thus:

At common law the water of a natural stream is an incident of the soil through which it flows; under the constitution [of Colorado--i.e., the appropriation doctrine] the unappropriated water of every natural stream is the property of the public. At common law their riparian owner is, for certain purposes, entitled to the exclusive use of the water as it flows through his land; under the constitution the use of the water is dedicated to the people of the state subject to appropriation. The riparian owner's right to the use of water does not depend upon user and is not forfeited by non-user; the appropriator has no superior right or privilege in respect to the use of water on the ground that he is a riparian owner; his right of use depends solely upon appropriation and user; and he may forfeit such right by abandonment or by non-user for such length of time as that abandonment may be implied. A riparian proprietor owning both sides of a running stream may divert the water therefrom, provided he returns the same to the natural stream before it leaves his own land, so that it may reach the riparian proprietor below without material diminution in quantity, quality or force; the appropriator, though. he may not own the land on either bank of a running stream, may divert the water therefrom, and carry the same withersoever necessity may require for beneficial use, without returning it or any of it to the natural stream in any manner.

The four distinctions between the common law and the appropriation doctrine thus pointed out require some comment. With respect to the first, it is not a sound statement of the common law doctrine to say that the water is an incident of the soil. It is the right to make a reasonable use of the water which the common law regards as appurtenant to riparian lands. The statement that the unappropriated water of streams is the property of the public is a bit of rhetoric of which western legislators and courts have been very fond. The truth is that under the appropriation doctrine, as under any system of water law, rights with respect to water are rights of use only. Water in running streams is not owned by the state in the sense in which public buildings or public lands are owned. Possibly some legislators have intended to enact that the state should own the water as it owns public buildings and that water rights should be concessions or licenses from the state. But as to the water on the public domain of the United States obviously this could not be true and in localities where private water rights under the common law or appropriation doctrine had long been established such a legislative transfer of property from the individual to the state without condemnation and compensation is inadmissible. Hence the courts today are generally saying that running water belongs to the state in trust for the people or in trust for the public, meaning thereby simply that the state as guardian of social interests and as an incident of its sovereignty claims the right to regulate the use of this social asset. The third and fourth distinctions made in the opinion last quoted deserve careful attention since these are fundamental points of difference.

4. Where and to what extent in force?

The jurisdictions in which the appropriation system obtains may be divided into three classes: (1) those in which the system obtains exclusively over the entire domain; (2) those in which it is in force on the public domain, while the common law is in force on private lands, but appropriations made on the public domain are valid against subsequently acquired riparian rights; and (3) those in which the common law was originally in force but statutes have introduced the appropriation system for all or a part of the state, and it may be put in force by condemnation or acquisition of any previously acquired riparian rights.
THIS IS A MATTER OF STATE LAW AND MUST BE RESEARCHED BY STATUTE AND CASE LAW FOR EACH STATE.

5. Basis of rights of appropriation.

At the present time the legal basis for rights of appropriation is found in legislation. With respect to the public domain of the United States, appropriations are founded primarily upon the act of Congress of 1866 and the act of 1870, and subsequent amendments. The act of 1866 provides: "Whenever by priority of possession rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of the courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed." The act of 1870 provides: "All patents granted or preemptions or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section. Secondarily they rest upon local customs, laws, and decisions of the courts in the jurisdiction where the land lies, to rights acquired under Congress. Originally, appropriations were governed by custom just as mining claims were governed by miners' customs and district rules, and the courts have recognized and developed this body of customary law by judicial decision, taking judicial notice of it as a part of the local law. But legislation soon took the matter in hand, and in every jurisdiction the details are now regulated by statute. These statutes, however, follow the lines of the original customary law and a new common law of irrigation has grown up by judicial decision, applicable in all states wherein appropriation is permitted. Where appropriations are made on lands not part of the public domain, of course the local state law alone must be looked to.

6. Priorities between patentees and appropriators.

a.    Before act of 1866.

This question is important only in jurisdictions in classes two and three. As the Federal Constitution forbids the general government to deprive any person of property without due process of law, it follows that the act of 1866 could not cut off rights acquired by patentees of public lands prior thereto.

b.    After act of 1866 and Appropriation before patent.

In many states a patent carries with it the common-law rights of a riparian owner with respect to flowing streams upon the tract, except as rights may have been acquired prior to those of the patentee by virtue of local custom or law since the Act of 1866. But when such rights have accrued, the patentee takes subject to those rights.

c.    After act of 1866 and Appropriation after patent.

On the other hand, after a patentee has acquired a portion of the public domain, in jurisdictions where riparian rights exist, no subsequent appropriation of the water which flows over the land may be made to the patentee's injury.

7. Who may appropriate?

There are no limitations with respect to who may appropriate water. If an alien appropriates water on the public domain, that is a matter purely between the appropriator and the government of the United States. As to water not upon the public domain the state may, if it chooses, by legislation limit appropriations, for example, to citizens. Appropriations may be made by trespassers on private lands or by disseisors. But it has often been held that appropriation by a trespasser does not marine the appropriation appurtenant to the property on which he or she uses the water, but that he or she acquires, as it were, an appropriation in gross which will fail unless by change of the use to other property he or she applies the water to a beneficial use in a reasonable time. Only the owner can dispute use of water by a trespasser. Santa Paula Water Works v. Peralta, 113 Cal. 38; Hutchinson v. Watson Slough Ditch Co., 16 Idaho 454; Smith v. Logan, 18 Nev. 149; Hough v. Porter, 51 Ore. 318.

8. What waters are subject to appropriation.

Statutes govern the storage and appropriation of surface water. They vary greatly. The constitutional and statutory provisions in the several states which authorize appropriations of water use the words "natural streams and watercourses," "flowing streams," "running water in rivers or streams," or some equivalent expression. What, then, is a natural stream or watercourse, the water of which is subject to appropriation In the first place the flow need not be continuous and uninterrupted at all times. Natural streams, well understood so to be, may be dry at times in periods of drought, or regularly in the dry season, either from failure of water or because they sink beneath the surface and become for a time subterranean. For example, in Barnes v. Sabron, 10 Nev 217, the evidence showed that the stream in question was supplied partly at certain seasons of the year from springs along its banks, but was supplied chiefly from melting snow on the mountains. There was no regularity as to the quantity of water. The court head that there need not be a continual flow of water, but that the distinction was to be drawn between a regularly flowing stream of water which is dried up at certain seasons, and water flowing through hollows, gulches, or ravines only in times of rains or melting snow. As another court put the matter, "it must appear that the water usually flows therein in a certain direction and in a regular channel with banks and sides. It may not flow continuously and
it may at times be dry. It must have, however, a substantial existences.

The stream need not, however, have defined banks or channel throughout its whole course. Not infrequently, especially in and or semi-arid regions, there will be shallow places along the course of a stream where it spreads out into a marsh or is lost for the time being, to resume a regular course farther down.

9. Appropriation of Percolating and underground waters.

Percolating waters are beneath the surface what surface water is above the surface. In some states, it was covered by stature at the turn of this century (Kansas and South Dakota and, as to waste of artesian water, in California, Kansas, Nebraska, and New Mexico) and in some jurisdictions it is governed still governed by the common law. In those states, accordingly percolating waters are not subject to appropriation. An interesting case involving this point is Willow Creek Irrigation Co. v. Michaelson, 21 Utah 249. The plaintiff in that case had appropriated all the waters of a creek for irrigation. Afterwards the United States conveyed a tract of land to the defendant. There was no water on the tract at the time, but afterwards water, appeared on the surface and formed a marsh. The water stood in a natural depression, gradually increasing in volume for some years, and finally broke through in a stream and flowed into the creek. The defendant diverted water from this marsh, preventing it from flowing into the creek, and claimed the right to use it on his land. The plaintiffs sought an injunction to prevent this. This was denied. The court said:

When the United States issued its patent to the respondent (defendant) neither the bog, nor marsh, nor the water in question was visible upon the land conveyed. Nor was there any known or defined subterranean stream thereon. At that time the water, if it existed at all, was..... flowing in a subterranean stream having no defined or known channels, courses or banks. Water so percolating and flowing forms a part of the realty, and belongs to the owner of the soil. A conveyance or grant by the United States of any part of the public domain..... carries with it the right of filtrating water, and to streams flowing through the soil beneath the surface, but in undefined and unknown channels, just the same as it carries with it the right to rocks and minerals in the ground.

10. Appropriation of Springs.

So also a spring which is not supplied by a defined flowing stream and does not flow into a natural stream is not the subject of appropriation at common law. On the other hand, where a spring is part of or flows into a natural stream, the water may be appropriated and diverted from the spring itself. In Cross v. Kitts, 9 Cal. 217, a tunnel in a mining claim intercepted and collected percolating water and formed a spring from which water flowed in a defined, running stream. The court held that it could be appropriated. But a tunnel into which water flows from the drainage of a mine is not a stream for this purpose. Cardelli v. Comstock Tunnel Co., 26 Nev. 284.

11. Appropriation of Defined underground streams.

Where underground water flows in a definite course, as where a portion of the course of a stream is below the surface, it is subject to the same rules as a watercourse upon the surface, and may be the subject of appropriation. In McClellan v. Hurdle, 3 Col. App. 130, a plaintiff, who sought to recover from the defendant for diverting water by wells upon defendant's own lands, alleged that the water was part of the flow of a creek, the water of which he had appropriated, and that its course at the point in question was underground "as a subterranean current. " The court held that a case was stated. For the same reasons the "underflow" of a natural stream, that is, that part of its waters which flow through the sand beneath the surface, but with a defined course as a part of the stream, may be appropriated.

12. Water used and returned.

There may be an appropriation of water used and returned and the appropriator of such water may insist that the unused water be not diverted elsewhere, but be allowed to return to the stream to meet his appropriation.

13. What constitutes appropriation?

An appropriation of water is an actual diversion of the water of a natural stream, with the intent and purpose of applying it to a beneficial use, consummated in a reasonable time thereafter by actual application of the water to such a use. The requisites of an appropriation are: (1) by custom or statute a preliminary notice, posted and recorded, of the intention to divert the water, or in most states today application to state authority for permission to make the appropriation, and approval thereof; (2) actual diversion of water within a reasonable time thereafter; (3) intent to apply the water diverted to a beneficial use; (4) actual application of the water to such a use within a reasonable time after it is so diverted (24). In the main this analysis of the law as it stood until recently still holds. But a transition is in progress. The older doctrine has been called "a possessory system." This is gradually giving way as a result of judicial decision and of legislation to what may be called "a use ystem." This change affects particularly the second and third requisites of appropriation noted above and tends so far as possible to make everything depend upon the fourth requisite, so that beneficial use shall be the sole measure of the right. This is a highly desirable change, but the fact that the law is in a process of transition from the one position to the other makes it very difficult at present on many points to state the exact law with precision.

14. Preliminary requirements: Notice, Statutory requirements.

Posting a notice was generally required by custom when the practice of appropriation grew up. But legislation soon took control of the matter and the preliminary step came to be governed by statute wherever required. The purpose of the preliminary requirement as to posting and recording notice is to preserve evidence as to priorities. If notice is posted and recorded, the appropriation, when complete, takes its date from the notice, whereas if such notice is not given, the appropriation, in determining priorities, takes its date from its completion. In general, when an act consists of successive stages, the law gives effect to it, when it is completed, from the date of the first step. But in appropriations of water in unsettled or sparsely settled regions, oral testimony as to the date of the first step, where it consists, perhaps, of labor upon a ditch by one man remote from all observers, leaves too much scope for fraud or dispute. Hence the preliminary notice was required by custom and sanctioned by legislation. As the notice serves the purpose of fixing priorities only, it is obvious that priority only should be affected by failure to give it or to give it properly. The appropriation, itself, when complete, should not fail for that reason. And the courts so hold.

As the purpose of the statutes as to notice is to enable one who makes an appropriation to obtain priority over others who begin later but complete their work first, one who seeks the advantage of such a notice must pursue the statutory or customary requirement strictly.

15. Mode of diversion.

Any mode of diversion whereby the water is actually withdrawn from the stream will suffice. Under the appropriation doctrine merely settling on the banks of a stream gives no right to use the water; being a riparian owner is not an appropriator. With increased settlement in the states where the appropriation doctrine obtains, however, certain inherent advantages in the common-law doctrine have became clear. As between riparian and "on-riparian tracts the former are in a better position to use the water beneficially and that a riparian tract by its mere situation is enabled to use water beneficially without any actual diversion. Yet under the strict doctrine of appropriation these natural advantages may be entirely cut off by appropriation and use of the water upon non-riparian tracts and the riparian owner who needs to make no diversion to acquire the benefit of the flow of water past his land is in no position to protect himself. This situation has been dealt with in two ways, on the one hand by a judicial doctrine of appropriation by sub-irrigation; on the other hand by legislation.

The doctrine of sub-irrigation has a logical foundation in the theory of appropriation measured by actual use and amounts to holding that actual use without diversion is sufficient. Thus in Cascade Town Co. v. Empire Water & Power Co., 181 Fed. 1011, plaintiff built a hotel and pleasure resort in a canyon in Colorado where a waterfall made a natural garden. There was no diversion but the spray and seepage watered vegetation which made the place attractive. Defendant, a light and power company, appropriated water above the falls and was so diverting the stream as not to return the water. Although the plaintiff made-no actual diversion the diversion by the defendant was enjoined. By statute, called the Meadow Act, natural overflow or natural sub-irrigation by which a tract of land is benefited may be given the same effect as an appropriation by diversion and have priority as to the time of first cultivation of the land. Colorado Revised Statutes, 1908, § 3176.

16. Intent to apply the water to a beneficial use.

Diversion merely to forestall others, in the expectation that an opportunity for use will develop or as a matter of speculation, will confer no right. In order to be the basis of an appropriation, the diversion, when made, must be made as a means to a beneficial use, which the appropriator has in mind at the time, and must be in furtherance of that purpose. The purpose may be changed after the diversion or after the appropriation is complete, without destroying the right, legislation is strictly limiting such changes. Finally, to take advantage of the preceding steps for the purpose of claiming priority from the date of the notice or other first step, there must be actual use of the water for a beneficial purpose within a reasonable time.

II.    PRIORITIES, TRANSFER, AND EXTINGUISHMENT OF WATER RIGHTS.

A.    PRIORITY.

1. General principles.

   Three general principles may be laid down with respect to the conflicting claims of appropriators from the same stream or its sources or tributaries:

   a.    Priority of appropriation gives priority of right to the extent of the appropriation.

   Only unappropriated waters are subject to appropriation. Hence a subsequent appropriator must show that there is water left to be appropriated after the needs of the prior appropriator to the extent of his appropriation are satisfied, and, whenever there is a failure of water, must yield to the right of the prior appropriator to be satisfied. And where there is an appropriation senior to both, the last in time must yield to the first. Thus, in Water Storage Co. v. Larimer & Weld Reservoir Co., 25 Col. 87, the storage company diverted from the main stream, the reservoir company from a tributary. There were appropriations senior to both below the point where the tributary joined. The storage company's appropriation was prior to that of the reservoir company's. The court said:

   In times of scarcity of water in the main stream, there is insufficient flowing to the headgate of the storage company to supply it and the senior appropriations below, and, therefore, when these conditions exist, the storage company has the right to demand that the reservoir company shall first surrender the water which it claims the right to divert from Dry Creek [the tributary] in favor of the senior appropriations below the mouth thereof in the main stream, thereby to this extent augmenting the flow which shall reach such senior appropriations and correspondingly decreasing the volume which must pass by the headgate of the storage company for the use of such appropriations.

b.    Every appropriation is limited, both as to its extent and its continuance, by the beneficial use to which the water is put.

Water cannot be claimed unless it is used, except as the appropriator is proceeding with reasonable diligence to use it, nor can it be claimed for any purpose but use (see §§ 35-38, below).

c.    Appropriation of the water of a stream includes the water of its tributaries and sources of supply.

Source of supply include lakes or springs, so far as necessary to enable the appropriator to obtain therefrom, for diversion from the stream, the amount to which the appropriator is entitled.

2. Priority as determined by character of use.

By constitutional provision in Colorado and Idaho and by statute in Nebraska, domestic uses are entitled to priority. The term domestic use here has the same meaning as at common law. In Crawford v. Hathaway, 67 Nev, 325, 371, the plaintiff was under contract to furnish water to a village for general municipal purposes, including sprinkling streets and power for lighting plant, and also to furnish water to the general government to flush the sewers at a military post. It claimed priority for these as domestic purposes. The court stated:

The term `domestic purposes,' as used in the statute, has reference to the use -of water for domestic purposes as known and recognized at common law. . . . The common law distinguishes between those modes of use which ordinarily involve the taking of small quantities of water and but little interference with the stream, and those which necessarily involve a taking or diversion of large quantities and a considerable interference with its ordinary flow. The use of a stream in the ordinary way by riparian owner for drinking and cooking purposes and for watering his stock is a domestic use. It involves no considerable diversion of water and no appreciable interference with the stream."

Sometimes appropriations for municipal water works are spoken of as domestic appropriations. The same result could have been reached through the power of the municipality to condemn for a public use without any such straining of the term domestic use. is right, as against other appropriators, must be limited by the needs of the land for which the water is appropriated. Diversion of water by ditches or pipes does not come within these provisions

B.    LIMITATIONS UPON THE QUANTITY THAT MAY BE CLAIMED AS AGAINST SUBSEQUENT APPROPRIATORS.

1. Needs of land irrigated.

Application of the water to a beneficial use is the measure of the appropriator's right. Hence the extent of the right, measured against other appropriators, must be limited to the nees of the land for which the water is used. Any surplus not used must be returned to the stream for use by subsequent appropriators; it cannot be sold or disposed of to others. In Creek v. Bozeman Water Works Co., 15 Mont 21, there being several other appropriations, the first appropriator after his individual needs had been supplied, which was the purpose of his original appropriation, sold the surplus to the inhabitants of a city. On suit to prevent this, brought by the subsequent appropriators, the court held that he should be enjoined:

The right acquired by an appropriator in and to the waters of a natural stream is not ownership of a running volume of the dimensions claimed, like the individual ownership of a chattel, so that it may be transferred corporally and carried away, but the right acquired by the appropriator is a right to use a certain quantity for necessary and beneficial purposes, such as supplying household needs and the carrying on of some useful industry; and when such want is supplied, or the use is subserved, all the rest of the creek, and all that returns thereto after such use, is subject to appropriation and use by another for some beneficial purpose. The same volume of water, therefore, in its flow down the creek, may supply many persons, even though the first appropriator claims the whole volume and can, at times, or even constantly, use the same for some industrial purpose, because such use does not usually swallow it, but leaves it available to others. But by such an appropriation the first appropriator does not acquire a preemption of the whole creek, so that he . . . may, after enjoying the use of it for some beneficial purpose, convey the creek away and cut off subsequent appropriators. Therefore a subsequent right to use the same water, or so much of it as returns to the creek, and to use the waters of the creek when the first is not using the same, may be acquired.

2. Limitation through capacity of ditch.

A second limitation is the capacity of the appropriator's ditch at its point of least capacity; though if its capacity is greater than the reasonable needs of the land supplied, of course the latter will fix the limit.

3. Limitations through Economical use.

Ordinary means of use. A third limitation is that the manner of using and applying the water must be reasonable; one can claim no right to take water which is wasted in using it. In Shotwell v. Dodge, 7 Wash. 217, the defendant dug a single ditch for ● long distance through his farm, diverted the water of creek into it, and allowed the water to flow through it until it became lost at the end of the ditch. The soil was porous and the water percolated sidewise through the banks and enabled him to grow fruit trees and vegetables, but large quantities of water were lost and no means were taken to prevent waste. The court held:

This was not irrigation at all; much less, reasonable irrigation. Where water is an important feature in the success of farming operations, it becomes the irrigator to use proper means to bring water to points where it is needed, to use it only at such times and in such quantities as are necessary for the purpose, and then, if others situated like himself require the water, to stop its flow until it shall again become necessary. The constant flow of water in the ditch all the summer through to the extent to which the defendant caused the water of the Mima Creek to flow would be inexcusable under any circumstances, when others had equal need of the water for irrigation).

Hence the court may require an appropriator to improve his means of diversion so as to avoid unnecessary waste.

Finally, the appropriator can claim a prior right to receive and use the water only for the times or periods when it is needed for the use to which he or she puts it, and in consequence of this limitation, a court has the power to apportion the use of the water in point of time, allowing the first appropriator to use at stated periods or intervals, as needs require, and then allowing use of what remains by subsequent appropriators until the time arrives when the first in right is again entitled because of recurring need of the water.

C.    TRANSFER OF WATER RIGHTS.

1. Generally.

Water rights are appurtenances of land upon which water is used. Recent legislation is attacking this rule and providing that use of water inheres in the land and cannot be separated or at least cannot be separated without permission from the state engineer. Such statutes exist in Idaho, Nebraska, Nevada, New Mexico, Oklahoma, Oregon, and Utah. Such severance may take place through condemnation or through adverse user of the right by another for the benefit of other lands, or it may take place by grant of the right to another, retaining the land, or by conveyance of the land, retaining the right, or by grant of the right to one and conveyance of the land to another.

2. Loss of water rights by abandonment.

Any property or right may be lost by abandonment. For instance, one may throw a chattel upon the garbage pile, intending to give up all rights to it. Here, it will be seen, there are two elements: (a) the giving up of possession; (b) the intention to relinquish all right. So it is with abandonment of a water right. To show loss of a water right in this way, both an act of abandonment and an intent to abandon must be established. Obviously no particular time is required; a clear abandonment might be made in a very short time. But as the act relied on is generally non-user of the right, the actual cases are not so simple, because there may be many other reasons for the non-user, and intent to relinquish as well as non-user must be shown (21). Still, long non-user may be evidence of such intent.

3. Loss and acquisition through adverse user.

Exactly the same principles apply here as in the loss and acquisition of easements and profits by adverse user and prescription. Open, notorious, continuous, exclusive, adverse use for the statutory period of limitation is a mode of original acquisition of water rights, the same as of any other rights of the sort. At common law the period is twenty years. In many states it is ten. The matter is governed by statute in all jurisdictions.