Water rights

“ In the arid States the only right to water which should be recognized is that of use. In irrigation this right should attach to the land reclaimed and be inseparable therefrom. Granting perpetual water rights to others than users, without compensation to the public, is open to all the objections which apply to giving away perpetual franchises to the public utilities of cities. A few of the Western States have already recognized this, and have incorporated in their constitutions the doctrine of perpetual State ownership of water. ”

“ Water rights of the kind, whether the streams are used for mill purposes or merely as fisheries, are justly entitled to public protection, as they are in many cases of great value to the community where they exist, but they are the source of many conflicting interests which the State legislatures as well as the courts have found it difficult to adjust, as appears from the countless efforts which have been made in that behalf without complete success. ”

“ Section 8 thus respects 'any vested right' acquired under state water laws relating to irrigation, in 'any interstate stream or the waters thereof.' When such rights will be destroyed or interfered with by a proposed reclamation project, authority is found to acquire them under § 7. The customary method of acquiring the water rights is to file a notice of appropriation pursuant to state law. ”

“ The United States, under the Reclamation Act, constructed an irrigation system for the purpose of storing and distributing water for irrigation of arid lands. Respondents own water rights under the system for lands of that kind; and these lands require artificial irrigation to render them productive. So far as these respondents are concerned, the government did not become the owner of the water rights, because those rights by act of Congress were made 'appurtenant to the land irrigated' ”

“ We are dealing here only with an allocation, through the States, of water rights among appropriators. The rights of the United States in respect to the storage of water are recognized. So are the water rights of the landowners. To allocate those water rights to the United States would be to disregard the rights of the landowners. To allocate them to the States, who represent their citizens parens patriae in this proceeding, [12] in no wise interferes with the ownership and operation by the United States of its storage and power plants, works, and facilities. ”

“ The fundamental question as to the rights of holders of land under tide waters does not present the conflict of two vitally important interests that exists with regard to fresh water streams. There the needs of water supply and of drainage compete. ”

“ Whoever controls a stream practically controls the land it renders productive, and the doctrine of private ownership of water apart from land cannot prevail without causing enduring wrong. The recognition of such ownership, which has been permitted to grow up in the arid regions, should give way to a more enlightened and larger recognition of the rights of the public in the control and disposal of the public water supplies. Laws founded upon conditions obtaining in humid regions, where water is too abundant to justify hoarding it, have no proper application in a dry country. ”

“ The diminution of underground water collected by percolation, even though malicious, does not give a cause of action to the owner of the land in which it collects, it being merely damnum sine injuria, though he is entitled to have it unpolluted unless a right of pollution be gained against him by prescription. The right to draw water from another’s well is an easement, not a profit à prendre, and is therefore claimable by custom. As a general rule a riparian proprietor, whether on a tidal or a non-tidal river, has full rights of user of his property. ”

“ Hundreds of thousands of pioneers from the Middle West have crossed the national boundary into Canadian wheat fields eager to find farms for their children, although under an alien flag. And finally the government has taken to itself great areas of arid land for reclamation by costly irrigation projects whereby to furnish twenty-acre tracts in the desert to settlers under careful regulation of water rights. The government supplies the capital for huge irrigation dams and reservoirs and builds them itself. ”

“ Such water-power is everywhere regarded as a public right, and fisheries of the kind, even in waters not navigable, are also so far public rights that the legislature of the State may ordain and establish regulations to prevent obstructions to the passage of the fish, and to promote the usual and uninterrupted enjoyment of the right by the riparian owners. ”

“ The use of water for irrigation purposes does decrease the amount flowing in the stream. That is the reason we object to the Federal Government coming in and taking charge of our water-power and giving it out—we do not care so much about the little income that may be received: that is the reason we are insisting upon the rights of the State. ”

“ We favor a uniform system of irrigation laws that will give security for the investment of capital in the development of irrigation projects, and at the same time fully protect and safeguard the users of water and define the rights as well as the obligations of the enterprises delivering the water to them. We favor the State never parting with title to her water-power and the control of her streams to corporations or private individuals ”

“ The idea being that conditions vary so tremendously—just as you have heard from the Governor of Mississippi and the Governor of Illinois, the latter of whom told you about a monopoly stepping in and stopping the State development of the water-power along one of their streams. Such a condition is absolutely impossible in the West, because that old law of riparian rights does not apply; there is no law in the West whereby we are compelled to allow the water in the streams to flow by your property undiminished in quantity and undefiled in quality. ”

“ It is so far-reaching, and so frankly expresses the principle of placing public rights in the "natural commodity" of pure water in our rivers before private convenience in saving expense, that it is a hopeful sign of the times. ”

“ Now the question arises between two states, one recognizing generally the common-law rule of riparian rights and the other prescribing the doctrine of the public ownership of flowing water. Neither state can legislate for, or impose its own policy upon the other. A stream flows through the two and a controversy is presented as to the flow of that stream. ”

“ Lax and uncertain laws have made it possible to establish rights to water in excess of actual uses or necessities, and many streams have already passed into private ownership, or a control equivalent to ownership. ”

“ The purpose of the law is to secure to each riparian owner equality in the use of water as near as may be by requiring each to exercise his right reasonably and with due regard to the rights of others similarly situated. ”

“ Step by step they were compelled to work out the solution of these problems until the rights of the users of water, the digging of ditches and establishment of reservoirs, had been settled. Years passed before many of the questions had been settled and the law laid down for all time. ”

“ It recognizes that there is no sound reason for maintaining our lakes and streams at a normal level when the water can be beneficially used without causing unreasonable damage to other riparian owners. The progress of civilization, particularly in regard to manufacturing, irrigation, and recreation, has forced the realization that a strict adherence to the uninterrupted flow doctrine placed an unwarranted limitation on the use of water, and consequently the courts developed what we now call the reasonable use theory. ”

“ Where that principle is established there is not much left to discuss. The removal of water to a different watershed obviously must be allowed at times unless States are to be deprived of the most beneficial use on formal grounds. ”

“ If you’ve lately swum in a lake, happily drunk a glass of water straight from the tap, or sat down to a good fish dinner, you can appreciate what the law has accomplished.
Vital to the Clean Water Act’s project is the protection of wetlands—both those contiguous to covered waters and others nearby. ”

“ No one has a right to diminish the quantity which will, according to the natural current, flow to the proprietor below, or to throw it back upon a proprietor above."
Chief Justice Richardson, of New Hampshire, thus briefly states the same position:
"In general, every man has a right to the use of the water flowing in a stream through his land, and if any one divert the water from its natural channel, or throw it back, so as to deprive him of the use of it, the law will give him redress. ”

“ Where their purpose is to regulate the flow of streams, the water should be turned freely into the channels in the dry season, to take the same course under the same laws as the natural flow.
“The reclamation of the unsettled arid public lands presents a different problem. Here it is not enough to regulate the flow of streams. The object of the government is to dispose of the land to settlers who will build homes upon it. To accomplish the object water must be brought within their reach. ”

“ The study of the opportunities of reclamation of the vast extent of arid land shows that whether this reclamation is done by individuals, corporations, or the State, the sources of water supply must be effectively protected and the reservoirs guarded by the preservation of the forests at the headwaters of the streams. The engineers making the preliminary examinations continually emphasize this need and urge that the remaining public lands at the headwaters of the important streams of the West be reserved to insure permanency of water supply for irrigation. ”

“ It is increasingly evident that the Federal Government must in the future take a leading part in the impounding of water for conservation with incidental power for the development of the irrigable lands of the and region. The unused waters of the West are found mainly in large rivers. Works to store and distribute these have such magnitude and cost that they are not attractive to private enterprise. Water is the irreplaceable natural resource. ”

“ In respect of the area embraced by the desert land states, with the exception of a comparatively narrow strip along the Pacific seaboard, it had become evident to Congress, as it had to the inhabitants, that the future growth and well-being of the entire region depended upon a complete adherence to the rule of appropriation for a beneficial use as the exclusive criterion of the right to the use of water. ”

“ Yet all of those eight different administrations have recognized as a matter of law that the Clean Water Act’s coverage of adjacent wetlands means more than adjoining wetlands and also includes wetlands separated from covered waters by man-made dikes or barriers, natural river berms, beach dunes, or the like. ”

“ That is the view we take of it in the South; and in taking that view we hold to the National idea that water, being one of those natural resources which needs conservation in respect to its greater and wiser use, ought to be controlled by the Federal Government. Water is one of those natural resources that man can do nothing to add to or diminish in quantity ”

“ Provision for a pure and adequate supply of water for domestic purposes for all its inhabitants is one of the first duties of the sovereign State. Through its important effect upon public health alone, the general use of pure water is a matter of the gravest importance to every man, woman, and child regardless of local divisions of government or grouping of citizens. ”

“ There irrigation practice and laws are exceedingly crude and remain so chiefly because of the abundance of water, and the ease and facility with which it can be diverted to the land; as a consequence of this latter fact the laws were framed in the most liberal spirit, declaring right of eminent domain, acknowledging the right of priority in appropriating the waters, and further stating, that any person having a ditch leading to irrigable lands may use the waters of the territory for irrigation. ”

“ Continued litigation, and a great pressure to secure legislative restrictions of the use of water supply, and the constant irritation and turmoil involved in these disputes, were all, happily, laid to rest by the discovery of the farmers themselves that extravagance in the use of water was not conducive to their own prosperity. In the matter of flood waters the irrigation experts of the state are quite generally meeting the condition in their own way. ”

“ Ever since that decision it has been held generally throughout the Pacific States and Territories that the right to water by prior appropriation for any beneficial purpose is entitled to protection. Water is diverted to propel machinery in flour-mills and saw-mills, and to irrigate land for cultivation, as well as to enable miners to work their mining claims ”

“ XIV, § 3 of the State Constitution, which provides: 'It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. ”