Water Law- Squillace- 2006- Anonymous- Grade A-1

Water Law- Squillace- 2006- Anonymous- Grade A-1 - Water...

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Water Law Outline Riparianism Two Primary Issues : o 1) What lands are riparian? o 2) What rights attach to those lands? Basic Tenets of Riparianism & Defining Riparian Land o Rule: Riparian = a tract of land that is contiguous with the water’s edge Riparian law developed from English Doctrine of Natural Flow: you can use water so long as you don’t decrease the quantity or quality going to subsequent users. o Severance Rule: Severance of land not touching water from a larger tract destroys the riparian rights of the severed portion. However, it is possible to transfer lands and not transfer water rights, through express reservation of the water right. Note: A conveyance of riparian land carries w/ it all the appurtenant riparian rights, unless those rights have been severed. o Reunited Lands (formerly severed parcel rejoined w/ riparian parcel) Source of Title Rule: Once land has been severed, it is always non-riparian. States using this law allow for the creation of appropriative water rights to benefit non-riparian parcels Unity of Title Rule: Grants riparian rights to the non-riparian, severed portions of land if they were unified in the past w/ the riparian land o Rule: In the transfer of land, decreased frontage size and parcel size does not lead to decreased riparian rights. However, decreased frontage/parcel size may affect reasonableness. o Historically, riparians had to use water on the tract associated w/ the right and w/in the basin (on- tract, in-basin restrictions) o Today’s 3 Rules: 1) Anyone who can obtain lawful access to a point from which water may be diverted can participate in the competition for water 2) Off-tract uses only allowed in absence of objection by riparians (Minority rule: riparian must show harm; Majority rule: Off-tract use can be enjoined even in the absence of a showing of harm) 3) Stratton v. Mt. Hermon Boys’ School —uses on non-riparian lands can be enjoined upon a showing of harm by riparians. Riparian Rights to Use Water o Domestic Use Rule : Riparians have the right to use water for domestic purposes. This right is absolute (water can be used no matter what the harm is to others) Domestic uses = bathing, drinking, watering used for family livestock, watering for small gardens, etc. o Artificial Use ( subject to reasonableness— limits riparian’s right to reasonable use of water) Examples: Watering livestock, irrigating crops, floating logs, Industrial, and mining, storage rights, water power, etc. These rights are correlative and subject to reasonableness (they are determined on the basis of what every other riparian needs/wants; correlative doesn’t mean = rights) Rule: Irrigation is a “reasonable use ” ( Pyle v. Gilbert ) 1
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If artificial uses compete w/ one another, then there are two ways to determine reasonableness : 1) CLAW “reasonableness” set no preferences o Test: just look at the reasonableness of each use in comparison to one another ( Pyle v. Gilbert – Correlative rights) o Mason v. Hoyle
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  • Spring '07
  • Squillace
  • Law

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