Water

Question 1

a) Usufructuary right:

Answer 1

right to use what one does not own; once removed, water itself becomes property

Question 2

b) Surface water

Answer 2

(1) prior appropriation: 1st user has exclusive right –> American West
(2) natural flow system (no excessive diminution): anti-developmental
(a) more restrictive approach: no right to diminish water at all: would deny any economical use
(3) reasonable use approach: can use as long as not wasteful and not injurious to another
(a) Merriweather: drought = not enough for both; E dammed branch so all water was diverted to mill; no water left for M’s mill –>against E; use was injurious to M
(b) use itself (milling) wasn’t unreasonable, but the effect (injury) was

Question 3

c) Ground water

Answer 3

i) If the water can be pumped out, owner of the surface land owns the water beneath
ii) Approaches
(1) Pure capture rule: do not own water (but have right to use (extract)) until you capture it: pro-development
(a) Acton v Blundell: coal pits were constructed, draining reserves–>in favor of ∆ coal pits; ownership rights attach to 1st person to capture water
(2) Reasonable Use (what is ‘reasonable’?) prob: have to know how much water is under surface
(3) Correlative (proportional) rights: problem: hydrological cycle would have to be factored into calculation