Water Rights

Question 1

Three types of water

Answer 1

1. riparian water
2. percolating ground water
3. surface water

Question 2

What are the two main doctrines that cover property rights in water?

Answer 2

1. riparian doctrine
2. prior appropriation doctrine

Question 3

What is the riparian doctrine?

Answer 3

it defines who has rights in water by establishing that those who have land adjacent to the water are permitted to use the water only in ways in which won’t unreasonably interfere with others who have land adjacent to the same body of water. All in all, everyone who has land adjacent to the water has equal rights in the use of the water, so long as their use does not significantly interfere with others’ use.

Question 4

What are the two standards used to evaluate rights in riparian land?

Answer 4

Reasonable use standard - use reasonably keeping in mind how your use will affect your neighbors availability
Natural flow standard - a riparian landowner can be liable to a downstream riparian landowner if they affect the natural flow in terms of quantity or quality

Question 5

What are the two doctrines that are used to evaluate use of land in a prior appropriation jurisdiction? (WESTERN US)

Answer 5

Colorado doctrine - ½ of the western states -> replaces entirely the common law riparian system - (does away w/ the reasonable use/natural flow doctrines and focuses on beneficial use)

California doctrine - ½ the western states -> riparian rights are still relevant but we are also gonna allow for more beneficial use to occur (still utilizes the reasonable use/natural flow doctrines but focuses too on beneficial use)

Question 6

What is the general rule applied in prior appropriation jurisdictions?

Answer 6

Prior Appropriation establishes that “the first appropriator of water from a natural stream for a beneficial purpose has, with the qualifications in the constitution, a prior right thereto, to the extent of such appropriation”. Essentially, this means that the first person to use the water in a beneficial manner has a property right in the water.

Question 7

What are the three approaches to evaluating the use of percolating ground water?

Answer 7

1. Absolute (common law) you can take as much as you want as long as you are not being malicious ex: bringing up so much water that you dry up neighbor’s well
2. Reasonable use
3. Correlative - you can bring up an amount of water that correlates w/ the amount of water that is proportionate to your surface ownership

Question 8

What is surface water?

Answer 8

runoff water that falls from the sky

Question 9

What are examples of riparian water?

Answer 9

streams, rivers, and lakes (“littoral”) EASTERN US

Question 10

What happens if you cause damage by changing the flow of surface water? (two approaches)

Answer 10

1. Common enemy doctrine -> surface water is the enemy of all do what you can do to save yourself e.g. you can do whatever you want on your land to make sure your property is safe (i.e. no liability so long as it is not malicious)
2. Civil law rule - you make any change on your land that alters the runoff in a way different from its natural state -> you are liable

[for these two think of the skating rink/parking garage example - skating rink made a slanted roof to avoid flooding - water went flowing into a carport next to it]
All of these are subject to local statutes and ordinances about the collection/ diffuse of surface water