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Makar- Water law Outline- Prof Squillace

Makar- Water law Outline- Prof Squillace - Definitions...

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Definitions - Western US o 100 th Meridian o less than 20 inches of water/yr - Water Measurement o Volume rights: acre feet 1AF=325,851 gallons o Flow rights: cubic feet/sec 1CFS=7.48gallons/sec=448.8gpm=646,272gpd o Ground water rights: gallons/min (or day) Riparianism - Rules o “Source of title” Only those tracts of lands that have also included riparian lands qualify for water rights o “Unity of title” All tracts of land that are presently riparian qualify for riparian rights o Riparian rights can be severed by an express conveyance of such rights - Basic Legal Tenets o Water rights are an incident of riparian land ownership o Natural flow theory reasonable use/correlative rights theory R. of Torts balancing test o Absolute right to use water for domestic purposes, including drinking water, bathing, and maintaining a household garden o Rights do not depend on extent of riparian frontage, but that may affect what is deemed reasonable - Reasonable Use o Prior appropriation of water by downstream user doesn’t deprive upstream users from use of water in a prudent way ( Martin v. Bigelow ) o Fact specific inquiry: Extent to diminution of downstream users rights ( Snow v. Parsons ) o Law should be adjusted to the exigencies of the great industries ( Sanderson v. Penn. Coal Co. ) But generally pollution that interferes with other reasonable uses can be enjoined ( Mason v. Hoyle factors) Equal opportunity of all riparians No owner can use property to injure another Character and capacity of the stream Foreseeable shortages should be fairly apportioned Customary practices can inform what is reasonable o Georgia – Natural flow doctrine ( Pyle v. Gilbert )
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“No right to divert [water] from the channel so as to interfere with enjoyment of it by next owner” o Beneficial use ≠ reasonable use ( Joslin v. Marin Municipal Water District ) o Bottled Water ( Michigan Citizens for Water Conservation v. Nestle ) 24% withdrawal of stream flow unreasonable – more than “fair participation” - Lakes and Reservoirs o Lakes The owner of property that lies adjacent to or beneath a man-made, non-navigable water body is not entitled to the beneficial use of the surface waters of the entire water body by sole virtue of the fact that he/she owns contiguous lands ( Anderson v. Bell ) Opposite of natural lake rights o Reservoirs Recreational rights are beyond the scope of the easement to the land granted to the irrigation district by the fed gov’t ( Bijou Irrigation District v. Empire Club ) Dam owner may have duty to maintain dam for benefit of property owners ( Kray v. Mugli ) o Recreation Reasonable rights to fish and recreate on surface Right to “wharf out” - Municipal Water Supplies o Generally not considered a reasonable riparian use A municipal corporation will be liable for diverting the waters of stream or water course and depriving lower riparian owners of the use thereof ( Town of Purcellville v. Potts ) o City right to take water upheld ( Hudson R. Fisherman’s Ass’n v. Williams
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