water rights Flashcards
Drainage
Concerned with “diffuse surface
waters” — water in the form of
precipitation
watercourse
Concerned with “diffuse surface
waters” — water in the form of
precipitation
Aquifer
Concerned with water found
beneath the ground
Littoral
Concerned with water found in
the ocean
Armstrong v. Francis Corp.
“[E]ach possessor is legally privileged to make a
reasonable use of his land, even though the flow of
surface waters is altered thereby and causes some
harm to others, but incurs liability when his harmful
interference with the flow of surface waters is
unreasonable” p. 702, ¶ 1
‘ Common enemy
- Owner can do whatever is necessary to get rid of
surface waters without liability
‘ Civil law rule
- Owner liable for all damage caused by changing
drainage patterns
law has to balance
(streams rivers lakes)
rts of earlier users
actual use of water being made
rts of upstream users
Eastern approach
Riparian System:
It presumes an abundance of water
-Regulates based on reasonable use
Western approach
priority of
appropriation”
- It presumes a shortage of water
- Regulates based on time when use began
natural flow
Each riparian owner is entitled to the water that would be provided by the natural flow of the watercourse (work in hindsight) difficult to predict if water use is allowed
reasonable use
Each riparian owner has the right to be free from other’s unreasonable uses of the water which would cause harm to his own reasonable use of the water
what land is riparian
contiguous to watercourse & w/in the watershed
watershed
area of land that
drains into a particular body of water
reasonable use test (riparian)
diversion of water to a different estate or watershed is improper unless there is no present or
future injury to a downstream riparian
holder
natural watercourse test (riparian)
natural watercourse test,”
natural flow theory
of riparian rights-minority
aquifers & groundwater
common law-use it for whatever who cares
restatement-Can extract whatever water as is
desired for a reasonable and
beneficial use unless:
- The pumping unreasonably lowers the water table or reduces artesian pressure,
- The pumping exceeds the proprietor’s reasonable share of the aquifer, or
- The pumping has a direct and unreasonable effect on a lake or stream
groundwater reas use test
- not a balancing test '*As long as the title holder is using the water for something reasonable — the water is not being pumped for no reason — it does not matter if there are other more reasonable uses for the water
air rights
As a general rule, the titleholder is free to use the airspace however the titleholder sees fit ' If anyone else has the right to use the airspace, they must avoid the titleholder’s uses
US v. Causby
“The landowner owns at least as much of
the space above the ground as he can
occupy or use in connection with the land”
p. 734, ¶ 2
minimum altitude of fligth airplane must fly above
1000’ above ground or any fixture on it
The air space above the minimum safe
altitude of flight as defined by the F.A.A.
can be used by all aviation without it
constituting a trespass to land
ancient lights doctrine
com. law-If the landowner received and used sunlight
across another’s land for long enough, the
landowner was entitled to continue to get the
sunlight (most reject US)
SPITE FENCE
historically only sunlight rights US juris recognized
today- apply nuisance laws or legistlative solutions
three rules of drainage
-Reasonable use” (majority) allows a land owner
to reasonably change drainage patterns as long
as no unreasonable harm occurs
- “Common enemy” (traditional) allows a land
owner to change drainage patterns regardless of
the consequences
- “Civil law” imposes strict liability on the owner for
changing drainage patterns
‘ Remember that wetlands regulations
change the common law in many states
natural flow (riparian)
Each riparian owner is entitled to receive the amount of water that the stream would normally provide
