WATER RIGHTS

Q: When should you discuss water rights on a Property essay? (PDTI)

Whenever one landowner:

• Pumps groundwater,

• Diverts rain or drainage water,

• Takes water from a river, lake, or stream, or

• Interferes with another owner's access to or use of water.

Begin by identifying the type of water involved.

Q: What are the three principal categories of water for Property analysis?

• Underground water

• Surface water

• Running water, including rivers, lakes, and streams

Q: What is the IRAC order for a water-rights essay?

• Classify the water.

• Identify the governing doctrine.

• Determine whether the claimant has a protected right.

• Evaluate the reasonableness, priority, or purpose of the challenged use.

• Determine the available remedy.

UNDERGROUND WATER: Q: What two forms of underground water are identified according to Flemings?

• Percolating water

• Underground streams

Q: What is percolating groundwater?

Water that seeps or filters through the soil without flowing through a defined underground channel.

Q: What is an underground stream? How is it treated under water rights?

• Underground water flowing through a known and defined channel

• Its treatment may resemble the rules governing surface streams

Common-Law Groundwater Rule: Q: What is the traditional common-law/majority rule for groundwater?

• Surface owner has unrestricted right to pump for own use BUT;

• May NOT pump maliciously or wastefully

  • This is both common law and majority

Q: Under the common-law groundwater rule, is an owner liable merely because pumping dries up a neighbor’s well?

• No, so long as pumping for owner’s legitimate use and not malicious or wasteful.

Q: What facts should trigger the malice or waste exceptions to the common-law groundwater rule?

Look for facts showing that the owner:

• Pumps solely to harm a neighbor,

• Pumps water with no useful purpose,

• Allows substantial water to be wasted, or

• Extracts far more than could reasonably be used.

Q: What is the reasonable-use rule for groundwater?

• Use which is reasonable, taking into consideration effect upon neighbor

Q: What is prior appropriation as applied to groundwater?

• The first person to appropriate the water for a recognized beneficial use has priority over later appropriators.

• First in time, first in right

California Correlative-Rights Doctrine. Q: What groundwater doctrine does California apply according to the outline?

• The correlative-rights doctrine.

• Owners over a common groundwater basin share rights in the basin and are each subject to reasonable use.

Q: If several California landowners pump from the same groundwater basin, what should you analyze?

• Discuss correlative-rights doctrine and evaluate:

  • Their shared correlative rights,

  • Whether each use is reasonable,

  • The quantity each owner is taking, and

  • Whether one owner's pumping unreasonably harms the others.

SURFACE WATER - Q: What is “surface water” for Property purposes?

Water that collects or flows diffusely over the land, generally from:

• Rainfall,

• Melting snow, or

• Drainage.

It is not yet confined within a defined river, lake, or stream.

Q: What is the principal issue in a surface-water dispute?

Whether a landowner improperly diverted drainage water

Q: What is the common-enemy rule for surface water (common law rule)?

• Surface water is treated as a common enemy,

• and a landowner generally may take measures to protect the property by reasonably diverting it.

Q: What is the natural-servitude doctrine related to surface water?

• Landowner may not interfere with natural flow of water but reasonable changes in flow permitted

Q: Under the natural-servitude doctrine, what obligation does lower land generally bear?

• Lower land is ordinarily subject to the natural drainage of water from higher land.

• The upper owner may not artificially increase or redirect that burden unreasonably.

Reasonable-Use Rule Q: What is the modified or reasonable-use rule for surface water?

A landowner may divert surface water for the owner's benefit but must reasonably consider the effect on neighboring property owners.

Q: What factors should be considered under the reasonable-use surface-water rule?

• Necessity of the diversion,

• Foreseeability of harm,

• Extent of damage,

• Availability of less harmful alternatives,

• Social value of the improvement, and

• Whether reasonable precautions were taken.

RE-CAP: What are the three surface water doctrines?

Doctrine	Basic Rule
Common enemy	Owner may reasonably protect land and divert runoff
Natural servitude	Owner should not interfere with natural drainage
Reasonable use	Diversion permitted if reasonable in light of harm to others

RUNNING WATER: RIVERS, LAKES, AND STREAMS: Q: What rights generally belong to land adjoining a river, lake, or stream?

The land has riparian rights

• Land held under one title and contiguous to the water is riparian land

Q: What is a riparian owner?

An owner whose land borders a natural river, lake, or stream.

Q: Do riparian rights attach to the owner personally or to the land?

They attach to the riparian land.

They generally cannot be separated and transferred for the benefit of nonriparian land.

Q: If an owner sells water rights to benefit land that does not touch the watercourse, what issue should you identify?

• Evaluate whether riparian rights are improperly severed from the riparian parcel for use on nonriparian land

Natural-Flow Doctrine: Q: What is the natural-flow doctrine for riparian water rights?

Each riparian owner is entitled to receive the water in its natural condition without material reduction in:

• Quantity, or

• Quality.

Under this approach, a downstream owner may enjoin an upstream diversion even if the downstream owner still has enough water for personal needs.

Q: Under the natural-flow doctrine, must a downstream owner prove actual water shortage?

No.

A material alteration in the natural quantity or quality may be enough, even if the downstream owner still has sufficient water.

Reasonable-Use Doctrine Q: What is the reasonable-use doctrine for riparian owners?

Each riparian owner may make reasonable use of the water.

A downstream owner generally cannot stop an upstream use unless it:

• Leaves insufficient water for the downstream owner's needs, or

• Substantially interferes with those needs.

Domestic and Commercial Uses: Q: What use receives preferred status under riparian doctrine?

Domestic use, including water for:

• Drinking,

• Bathing,

• Household needs, and

• A household garden.

An upstream riparian owner may take water needed for domestic purposes even if this affects downstream owners.

Q: How are commercial or artificial uses treated under riparian doctrine?

Commercial uses are subordinate to domestic needs.

An upstream owner may use water commercially only if enough remains to satisfy the domestic needs of other riparian owners.

Q: Is irrigation always considered a domestic use?

No.

• Irrigation of a small household garden may qualify as domestic.

• Irrigation of a large commercial farm is generally treated as a commercial or artificial use.

DOCTRINE OF PRIOR APPROPRIATION FOR RUNNING WATER Q: What is the prior-appropriation doctrine for rivers and streams?

• The first person to divert water and put it to beneficial use receives priority over later users.

• First in time, first in right.

Q: What limitation applies even to a senior appropriator under prior appropriation for running water?

The water must be used beneficially and may not be wasted.

Q: Must an appropriator own land adjoining the water source?

No.

Prior appropriation may benefit either:

• Riparian land, or

• Nonriparian land.

Q: Does prior appropriation give users equal rights?

No.

Rights are ranked by priority, not shared equally.

Q: Does prior appropriation distinguish between domestic and commercial uses?

• Not in the same manner as riparian law.

• Priority and beneficial use generally control rather than the location of the land or classification of the use.

Can a senior appropriator prevail even if a junior user's proposed use appears more reasonable?

Generally yes, because priority controls, NOT riparian reasonableness

• Provided senior appropriator continues making beneficial + non wasteful use.

Q: Compare riparian rights and prior appropriation.

Riparian Rights	Prior Appropriation
Based on ownership of land bordering water	Based on first beneficial use
Rights attach to riparian land	Use may benefit nonriparian land
Owners generally share the resource	Senior user has priority
Reasonableness often controls	Priority and beneficial use control

IRAC checklist for a water-rights essay?

• What type of water is involved?

  • Groundwater?

  • Surface runoff?

  • River, lake, or stream?

• Which doctrine applies?

• Does the claimant have riparian, correlative, or appropriative rights?

• Is the challenged use domestic, commercial, beneficial, wasteful, or malicious?

• Does priority matter?

• Was the use or diversion reasonable?

• Did the conduct materially harm another protected user?

• Is an injunction or damages appropriate?