(14) Water Rights

What are the three general categories of water rights?

Underground water, surface waters, and running waters.

What are the two types of underground water?

Percolating waters and underground streams.

What are percolating waters?

Underground waters that seep through the soil without a defined channel.

What are underground streams?

Underground waters flowing through a defined channel.

What are the four doctrines governing underground water rights?

Common Law (Absolute Ownership), Reasonable Use, Prior Appropriation, and the Correlative Rights Doctrine.

What is the common-law rule governing underground water?

The surface owner has an unqualified right to pump groundwater for his own use.

What are the limitations on the common-law rule for underground water?

The right is limited only by protection against malice and prohibitive waste.

What is the reasonable-use rule for underground water?

A landowner may use groundwater so long as the use is reasonable considering its effect on neighboring landowners.

What is the modern trend governing underground water rights?

The Reasonable Use Doctrine.

What is the Prior Appropriation Doctrine for underground water?

First in time, first in right; the first appropriator has priority over later appropriators.

What is California's rule governing underground water?

The Correlative Rights Doctrine.

What is the Correlative Rights Doctrine?

Surface owners sharing a common groundwater basin have correlative rights and must make reasonable use of the water.

How are owners of a common groundwater basin treated under California's Correlative Rights Doctrine?

Like joint tenants with shared rights to the common water supply, subject to reasonable use.

What are surface waters?

Water from rainfall and melting snow.

What is the primary issue involving surface waters?

Diversion rather than use.

What three doctrines govern surface-water diversion?

Common Enemy, Natural Servitude, and Modified Reasonable Use.

What is the Common Enemy Doctrine?

A landowner has broad discretion to reasonably divert surface water from his property.

Why is surface water called the "common enemy"?

Because each landowner may generally protect his property from it.

What is the Natural Servitude Doctrine?

A landowner generally may not interfere with the natural flow of surface water, although reasonable alterations are permitted.

What is the Modified Reasonable Use Rule for surface waters?

A landowner may divert surface water for his own benefit so long as the diversion reasonably considers the effect on neighboring landowners.

What are running waters?

Rivers, lakes, and streams.

Who possesses riparian rights?

Owners of land contiguous to a stream or lake.

What is riparian land?

Land under one unit of title that is contiguous to a body of water.

Are riparian rights attached to the land or the owner personally?

They are annexed to the land.

Can riparian rights be conveyed for use on nonriparian land?

No.

What are the two principal doctrines governing the quantity of water available to riparian owners?

The Natural Flow Doctrine and the Reasonable Use Doctrine.

What is the majority rule governing riparian water quantity?

The Natural Flow Doctrine.

What is the Natural Flow Doctrine?

Riparian owners are entitled to the natural flow of water without material diminution in quantity or quality.

Under the Natural Flow Doctrine, may a downstream owner obtain an injunction even if sufficient water remains for his own needs?

Yes.

What is the Reasonable Use Doctrine for riparian rights?

Each riparian owner may make reasonable use of the water so long as downstream owners receive sufficient water for their reasonable needs.

Under the Reasonable Use Doctrine, when may a downstream owner enjoin an upstream owner?

When the upstream owner's use substantially interferes with the downstream owner's reasonable needs.

Under both the Natural Flow and Reasonable Use doctrines, what uses always receive priority?

Domestic uses.

What are examples of domestic uses of water?

Drinking, bathing, household use, and irrigation of a household garden.

Why are domestic uses given preferred status?

Because they are considered essential uses of water.

May an upstream owner use water for domestic purposes even if it affects downstream owners?

Yes.

When may an upstream owner use water for commercial purposes?

Only if enough water remains to satisfy the domestic needs of all riparian owners.

What is an example of a commercial use of water?

Irrigation of a large farm.

What is the Prior Appropriation Doctrine for running waters?

The first person to appropriate water acquires priority over later users.

What is the primary purpose of the Prior Appropriation Doctrine?

To maximize beneficial use of limited water resources.

What limitation applies under the Prior Appropriation Doctrine?

The water must be put to its highest and most beneficial use and may not be wasted.

What is the fundamental rule of Prior Appropriation?

First in time, first in right.

Does the Prior Appropriation Doctrine recognize equality of rights among users?

No.

Does the Prior Appropriation Doctrine apply a reasonable-use analysis?

No.

May water acquired by prior appropriation be used on nonriparian land?

Yes.

Does the Prior Appropriation Doctrine distinguish between natural and artificial uses?

No.

Under the Prior Appropriation Doctrine, does the location of the land matter?

No.

Under the Prior Appropriation Doctrine, does the type of use (riparian or nonriparian) matter?

No.

What determines priority under the Prior Appropriation Doctrine?

The first beneficial appropriation of the water.

May a prior appropriator exclude later users even if the prior use is unreasonable?

Yes, provided the water is being devoted to its highest and most beneficial use and is not wasteful.

What characteristic distinguishes Prior Appropriation from riparian rights?

Priority depends on first beneficial use rather than ownership of riparian land.

Testable Issue: What are the four doctrines governing underground water?

Common Law (Absolute Ownership), Reasonable Use, Prior Appropriation, and California's Correlative Rights Doctrine.

Testable Issue: What are the three doctrines governing surface-water diversion?

Common Enemy, Natural Servitude, and Modified Reasonable Use.

Testable Issue: What is the difference between the Natural Flow and Reasonable Use doctrines for riparian rights?

Natural Flow protects the natural quantity and quality of water, while Reasonable Use permits reasonable uses that do not substantially interfere with downstream owners.

Testable Issue: What uses always receive priority under both riparian doctrines?

Domestic uses.

Testable Issue: What are the defining characteristics of the Prior Appropriation Doctrine?

First in time, first in right; no equality of rights; no reasonable-use analysis; applies to riparian and nonriparian land alike; no distinction between natural and artificial uses; water must be put to its highest beneficial use without waste.

Essay Rule: How should you analyze a water-rights question?

First identify whether the dispute involves underground water, surface water, or running water, determine the governing doctrine, apply that doctrine's specific rules regarding priority and reasonable use, and resolve the parties' competing rights.

Master Synthesis: What is the framework for analyzing water-rights disputes?

Classify the type of water involved, identify the governing doctrine for that category, apply the doctrine's rules regarding use, diversion, priority, and beneficial use, and determine which party has the superior right to the water.