Ground Water and the Law

GEOLOGICAL SURVEY 

CIRCULAR 446
Ground Water and the Law

GEOLOGICAL SURVEY CIRCULAR 446

Washington J96J
United States Department of the Interior

STEWART L. UDALL, Secretary

Geological Survey

William T. Pecora, Director

First printing 1961 

Second printing 1967

Free on application to the U.S. Geological Survey, Washington, D.C. 20242
CONTENTS

Page Page

Types of water rights_________________ 1 Insecurity of existing water rights.____ 4

History of water rights _______________ 3 Water law as an aid to optimum use ___ 6

III
Ground Water and the Law

By H. E. Thomas

Adapted from an address presented at the Fourth Annual 

Water Resources Conference in Butte, Mont., July 31, 1959.

My subject tonight ground water and the 

law places in juxtaposition the physical aspects of a vital natural resource and the human 

relations to that resource. During the conference today we have already heard from 

scientists and engineers concerning the physical aspects of the resource and its development, and from lawyers and economists concerning the human aspects. The water user 

is necessarily interested bo.th in the physical 

aspects of ground water including the location, quantity, and quality of it and in his 

right to the use of that water. However, he is 

likely to be very little concerned with water 

rights unless or until the physical resource 

becomes insufficient to supply the needs or 

wants of all who depend upon that resource. 

Water rights become a major concern in time 

or places of water shortage.

During a recent conference at the University 

of Colorado one of the speakers remarked 

that no State has more chaotic ground-water 

rights than Colorado, imless it be Montana. 

But I heard today, during the discussion of 

Mr. Coldiron's paper, that no disagreement 

between ground-water users or well owners 

has yet reached the courts in Montana. Thus, 

if your water rights are not clearly defined 

in Montana, it is at least partly because you 

haven't yet had the water shortages that give 

rise to major disputes over rights.

Among neighbors, when one is short of anything, it is common practice to borrow from 

another; and this practice has been extended 

by the legal profession to the point where, if 

you haven't enough troubles of your own, you 

borrow some from your neighbors. When you 

develop controversies over water rights you 

can be assured that arguments on both sides, 

and therefore the decisions, will be based in 

part on what has been done in other States.

Thus for ideas as to patterns of water rights 

that might eventually be accepted in Montana, 

we may siimmarize briefly the types of water 

rights recognized or claimed in other States.

TYPES OF WATER RIGHTS

There is no possibility of covering adequately the subject of water rights in a few 

minutes; great volumes have been written on 

the subject, and more is being added with 

every court decision, statute, compact, or 

treaty pertaining to water. Several base or 

doctrine rights have been mentioned during 

the meeting today, and even a list of these 

doctrines is fairly long. Some doctrines have 

beennamed after the places whence they originated: English, American, Colorado, California; some are named for significant features embraced by the doctrine: reasonable 

use, beneficial use, correlative use, prescription or adverse use, mutual prescription, 

appropriation. And with the development and 

application of these doctrines have come a 

large number of definitions and classifications 

of varioiis aspects of water rights.

A water right is universally defined as real 

property entitled to the same protection as 

any real estate, including the constitutional 

guarantee that no one shall be deprived of his 

property without due process of law. As we 

shall see, this definition leads to some complications, because real property is generally 

fixed and immovable whereas water is characteristically in motion, although in some 

places that movement may be so slow that it 

is not readily recognized.

Asa hydrologist who had not penetrated far 

into the forest of details concerning water 

rights, I realize that some of my attempts at 

generalization might not be acceptable in a 

court of law. It is with this reservation, then,
GROUND WATER AND THE LAW

that I propose to divide all rights to all water 

into two broad groups: rights based upon 

ownership of land, and rights based upon actual use of water.

Rights based upon ownership of land include 

riparian rights of land bordering streams or 

lakes, and equivalent rights to springs or to 

water wells that are located upon the landowner's property. The water right is appurtenant to the land and exists whether the landowner uses the water or not; thus he is entitled to water whenever he chooses to use it. 

As the riparian doctrine was originally conceived, no limitation was placed upon the 

quantity that could be used, other than the 

capabilities of the stream, spring, or well. 

As might be expected, this doctrine of water 

rights developed at places where, and in times 

when, water supplies were more than enough 

to meet the requirements of the people - it 

developed chiefly in England1'2'3 and the humid 

regions of the Eastern United States4 and it and

its variations constitute the common-lnw doctrines.

As water requirements increased, or as the 

common- law doctrines were applied to regions 

of less abundant water supply, varioiis restrictions were developed, as for example that 

water rights must be based upon reasonable use, 5 

or that they are correlative with ownership of 

land. 6

Water rights based upon actual use of the 

water are principally those developed under 

the doctrine of aporopriafr'on, which is widely accepted in the Western United States. By this 

doctrine, the first in time of beneficial use is 

the first in right, and the right is maintained 

only by use. This type of right generally requires a repudiation of the common-law doctrine of private ownership of the water by a 

statutory declaration that the water belongs 

to the public, or to the State. In some States 

where water rights are based on landownership, the development and use of water in 

critical areas are regulated by a permit system which is similar in many respects to the 

appropriation system. Also, under the common-law doctrines it is possible to obtain a 

water right by actual use of water "openly, 

notoriously, and adversely" to the interests 

of the man who owns the land that is, by

1 Mason v. Hill, 5 Bam. Adol. 1, 110 Eng. Reprint 692 (1833). 

^Wood v. WalTd. 3 Exch. (England) 748 (1849). 

^Xcton v. EEmaell, 12 M. W. 324 (1843). 

Tyler v. Wilkinson, 4 Mason 397 (1827).

5 5assett v. jalisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec. 

179 (1862). 

6 Katz v. Walkinshaw, 141 Calif. 116, 74 P. 766 (1903).

prescription. Generally the water-right systems 

based on actual use of water are characteristic 

of regions of water scarcity, including notably 

the arid Western States, whereas the waterright systems based upon landownership are 

favored in regions of water abimdance, including the humid Eastern States. Neither 

system is entirely satisfactory. In the humid 

regions there is increasing urge to give more 

emphasis to actual use of water as a basis of 

a water right, in order to protect the investments of those who have actually developed 

and are using the water resources. In fact, 

many people in the East regard enviously the 

appropriation system that has been developed 

in the Western States.

On the other hand, in the States that have 

accepted actual use of water as the dominant 

basis of a water right, there is increasing 

evidence that rights based on landownership 

are not absolutely abolished. In Utah, which 

in 1935 declared "all" water to be public property and subject to appropriation, the State 

Supreme Court in 1949 declared that a landowner had a right to water that cannot be determined to be a part of a stream or of a 

ground-water body.7 Similarly in New Mexico, 

which for at least three decades has accepted 

appropriation as the exclusive method of obtaining ground water or surface water, the 

State Supreme Court in a recent decision declared that the city of Las Vegas has ancient 

pueblo rights which include the water needed 

for the city's future growth.8 Las Vegas has 

not grown very much, but other cities in New 

Mexico, including Albuquerque, also may have 

pueblo rights, and they have grown tremendously in recent years. By the State Supreme 

Court decision, a city that can claim an ancient 

pueblo grant has water rights superior to those 

of people who have already appropriated and 

used water. In several Western States, the 

water rights of Indians on reservations pose 

a knotty problem wherever there is outflow 

from the reservation which has been developed 

and used by others in accordance with the appropriation doctrine. If water rights are based 

exclusively upon appropriation, Indians as 

wards of the Federal Government could not 

acquire rights to water except 'by favorable 

and timely congressional action, even though 

the lands of the reservation have been granted 

to them in perpetiiity.

7 Riordan v. West wood, 203 P. (2d) 922 (1949). 

8Cartwright et al. v. Public Service Co. of N. Mex.. (1958) not yet reported. ~ ' 
HISTORY OF WATER RIGHTS

In controversies over allocation of water 

within major river basins, the ownership of 

land is commonly considered a significant 

factor. Today there have been references to 

"Montana's water" which is flowing unused 

into other States. Similarly, other Western 

States which recognize water rights on the 

basis of appropriation lay claims to unappropriated water on the basis of ownership of the 

land whence that water flows. The Federal 

Government has similarly pointed out that 

there has never been any intention of relinquishment of rights to water on permanently 

reserved lands such as Indian reservations 

and national parks, monuments, and forests, 

and the U.S. Supreme Court recently confirmed the Federal right to water based on 

ownership of those lands.9 In States where 

appropriation had long been specified as the 

exclusive method of obtaining a water right, 

the declaration of Federal rights based on 

landownership has been unsettling, to say the 

least.

HISTORY OF WATER RIGHTS

The histories of our present doctrines of 

water rights have been traced back by several 

scholars to England, to Mexico and thence to 

Spain, to France and the Napoleonic code, and 

even to ancient Rome. The earliest court decisions now quoted concerning water rights, 

however, were announced little more than a 

century ago. Human nature being what it is, 

it is unlikely that those were the first disputes 

ever to have occurred over water. Nevertheless, the paucity of record concerning water 

rights may indicate that for many centuries 

of human history the population was small 

enough, the requirements for water low enough, 

and the supply of water great enough that water 

rights were a very minor problem. However, 

since water rights are defined as real property 

rights, and since our ancestors did and said a 

good deal about property rights, we can draw 

some inferences as to what they would have 

said and done about water rights had the problem come up.

The right to use of water on the basis of 

landownership is a corollary of the right of an 

individual to own land, including the right to 

do as he pleases with the land and upon his 

death to pass his estate to others in accordance with his will. This is a right that we take

for granted now, and perhaps deprecatingly 

because it includes the privilege of paying 

taxes. But it is a right that does not exist in 

many parts of the world today, and it was won 

for us by our ancestors only after a long 

struggle. Within the past millennium we have 

recorded the change from absolute ownership 

by a king of all the land and chattels, even including the people, within his kingdom. Doubtless most of our ancestors were the other 

people, rather than the kings, so that our lot 

has been improved over the centuries, starting 

with the Magna Car ta and reaching a high level 

with the framing of the U.S. Constitution. In 

the first century of our country's history, when 

there was a relatively small population and a 

large land area, the landowner could do just 

about as he pleased with his property, and the 

term land "lord" indicated a person having 

rights almost on a par with the ancient absolute monarchs. With the increasing population 

of recent decades, the landlord has been made 

increasingly aware of his responsibility to 

society, his freedom of action has become 

more restricted, and today he is likely to be 

as harried an individual as a schoolteacher 

or a government worker. Restrictive regulations concerning landownership have a parallel in the restrictive measures relating to 

water rights based on landownership, and are 

similarly a product of increasing pressure of 

the population.

Acquiring property by individual effort is 

also an ancient and well-recognized custom, 

honored for example in the parable of the 

talents.10 This method has long been recognized as a legel basis for acquiring property, 

whether by grant from a grateful landowner 

for services rendered, or by prescription from 

a landowner who was not strong enough or wise 

enough to protect his own property. The homestead laws encouraged the settling of the West 

by awards of property to those who made the 

necessary effort. Rights to land thus acquired 

have a parallel in the water rights developed 

on the basis of appropriation. Pursuing the 

parallel a step further, we may ask whether 

the appropriation system may be similarly 

only a phase in the Nation's history, especially adapted to encouraging habitation in a 

vast unoccupied public domain but of dwindling 

importance as the occupancy of the land approaches the ultimate-.- In the West today, for 

water as well as for land, we find less and 

less of the "virgin" resources untouched by

^Federal Power Comm. v. Oregon, 349 U.S. 435 (1955). "> Matthew 25: 14-30.
GROUND WATER AND THE LAW

human hand. Eventually we shall run out of 

unappropriated water, and in the arid West 

there is no question that this will occur before we runout of unappropriated land. Water 

for new uses and new users in the future, 

therefore, must come increasingly from 

sources in which rights have already been established. Thus comes the realization that 

valid water rights have value, and cannot be 

taken without just compensation. Montana is 

in a more fortunate position than most of the 

Western States, because there is still water 

unused and available for appropriation in several parts of the State. As long as these undeveloped sources remain, one can still develop a water right at essentially the cost of 

the storage facilities, wells, and pumps that 

are needed. Water users everywhere have 

these costs, but in many places they must also 

purchase the right to use water. It may be 

many years in the future, but Montana's water 

resources may similarly be entirely appropriated eventually, and then anyone desiring 

to use water must bargain with someone who 

owns a water right.

INSECURITY OF EXISTING WATER RIGHTS

The principal value of a water right is its 

assurance of water supply at all times, including periods of drought or of water shortage from any other cause. Thus it should 

provide insurance for investments not only in 

the water-development facilities but in the 

agricultural, industrial, or urban enterprises 

that depend upon that water. Unfortunately, 

in many instances, existing water rights do not 

provide this security.

Insecurity of water rights may result in part 

from uncertainty as to the fundamental basis 

of water rights whether by actual use of the 

water or as appurtenant to the land but even 

where the basis of water rights has been 

rather clearly stated in laws or construed in 

court decisions, insecurity may persist. Some 

insecurity is doubtless inevitable because of 

man's inability to overcome the natural fluctuations in supply; some insecurity results 

also from conflicts between the science of 

water (hydrology) and the popular concepts 

concerning water as developed in legal instruments defining water rights.

Obviously it is difficult to adapt our great 

body of law concerning real property which 

is solid and generally quite immovable to

water, which is fluid and mobile. In the hydrologic cycle, which depicts the prevailing 

circulation of water over, upon, and beneath 

the land surface, only one phase soil 

moisture can be truly adapted to our prevailing concepts of land and its ownership. 

In other phases of the cycle, water may cross 

property lines as overland runoff upon the 

land surface, as streamflow in watercourses, 

or as ground water beneath the land surface. 

And if the water crosses established property 

lines, a landowner cannot help affecting the 

water supplies of his neighbors when he develops and uses that water within his own 

property^ nor can he help being affected by 

the actions of his neighbors when they withdraw water within their property lines. If the 

quantity of water withdrawn is small, the effect 

at some distance may be negligible; and if the 

distance is great, the effect even of large 

withdrawals may be long delayed. It is obvious that, if the water resources of neighboring lands are interrelated, there must be 

some insecurity in investments that depend 

upon water withdrawn at any specific parcel 

of land, because of the possibility that withdrawal of water on other parcels will affect 

the supply.

Whenever rainfalls or snow melts upon the 

land to produce soil moisture, that water is 

universally accorded to the landowner it is 

his to use by cropping, to save by fallowing 

for future use, or to ignore. And a question 

naturally arises: Could not he be assured of 

a little more perhaps the small springs or 

seeps that rise on his property, or the ground 

water that is encountered in wells? The desire for an affirmative answer to this question, the prevailing ignorance about ground 

water where it comes from, where it goes, 

and whether it comes or goes plus our past 

experience with small widely spaced wells, 

all have encouraged the hope that landowners 

could develop and use water independently and 

without affecting their neighbors' supplies. 

Such could be the basis for classifying most 

ground water as "percolating" water, not 

flowing in a "defined" stream and sufficiently 

unknown that its place in the hydrologic cycle 

is not established. This legal distinction has 

no scientific basis, however, and with largescale ground-water development the rules for 

"percolating" water become figments.

Water rights based upon actual use of water 

generally provide greater security in investments for water development and use than
INSECURITY OF EXISTING WATER RIGHTS

water rights based upon landownership. Indeed, the "permanence" of a right based upon 

appropriation has been criticized by many on 

the ground that it makes for inflexibility in 

place and amount and purpose of use, and thus 

may prevent optimum use of the water resources as the requirements of society 

change. Nevertheless, appropriate rights 

may be insecure because of conflicts between 

hydrology and public attitudes as-reflected in 

present concepts concerning those rights. I 

refer to the popular concepts (1) that ground 

water and surface water are separate resources, and (2) that ground water is areplenishable resource.

As you know, the central theme in appropriative rights is "first in time of beneficial 

use is first in right." In Montana, as in other 

Western States, the oldest established rights 

are commonly those for surface water, and 

the "primary" rights among these are to the 

quantity -which constitutes the historic minimum flow of the stream, because these rights 

can be satisfied at all times under natural 

conditions. But this minimum flow is likely 

to consist chiefly if not entirely of outflow 

from ground-water reservoirs. Development 

that reduces the natural outflow from these 

reservoirs may thus render insecure the 

oldest and theoretically the best rights in the 

drainage basin. If the relations between surface water and ground water are not adequately 

known, or if ground-water and surface-water 

rights are developed, administered, and regulated independently, there is cause for concern among those who have long made beneficial use of the water.

Fresh water is almost universally classed 

among the renewable resources, and this is a 

good bird's-eye view. As seen from the 

clouds, there is precipitation upon the land 

surface, and this replenishes (1) the soil 

moisture, (2) the rivers and lakes that have 

been depleted by evaporation or flow to the 

sea, and (3) the ground-water reservoirs that 

are continually spilling over in springs and 

seeps and contributing to perennial streams. 

But now let's take a worm's-eye view, and 

consider the situation from the aspect of the 

ground-water reservoirs. These reservoirs 

in the United States contain something like a 

few hundred billion acre-feet of fresh water 

within half a mile of the land surface. If 

these reservoirs could be drained completely, 

they could not be renewed in our lifetime, because the total precipitation upon the country

averages only about 5 billion acre-feet a year, 

and only a fraction of that would enter the 

ground-water reservoirs. In other words, the 

bulk of our accumulated ground-water resource is not ireplenishable. The renewable 

partis not the accumulated resource, but only 

the overflow from full reservoirs.

Under the appropriation doctrine water is 

presumed to be a replenishable resource, and 

the appropriative right has been defined as 

the right to use a specified rate of flow 

"annually and forever." As to surface water, 

the total use cannot exceed the quantity that 

is available in the stream, and that quantity 

is replenishable. But ground water is under 

no such limitation, because of the vast quantity accumulated in aqiufers. Thua it is 

possible to pump much more ground water 

than can be replenished, and we are doing so 

in many places, particularly in the southwestern States. Obviously pumping at such rates 

cannot continue "annually and forever," ftftd 

the definition of appropriative ground-water 

rights must be modified accordingly. This 

has been done in New Mexico, for instance, 

where ground-water rights are based upon appropriation: In several parts of the State, the 

amount of ground-water replenishment each 

year is negligible in comparison to the accumulated water in storage, and is considerably 

less than the ciarrent rate of pumping; the 

State's regulation of ground-water development is planned so that the resource will constitute a productive economic resource for at 

least 40 years, which is a long time but far 

less than "forever."

In several States court decisions have enjoined the lowering, by pumping, of the water 

table or artesian pressure below a specified 

level; this is in accord with widespread popular demand that underground storage be 

maintained at constant volume, and in any 

event not be decreased below a certain specified minimum. This concept too can lead to 

insecurity of water rights, because the natural 

inflow to most reservoirs varies greatly from 

year to year, reflecting variations in precipitation. The amount of ground water in storage can be held constant only by increasing 

pumping in years of abundant precipitation, 

and reducing pumping in years of drought 

when the need for water is greatest.

The problem can be more easily seen by 

analogy with surface water, because we generally can "see" and understand surface water
GROUND WATER AND THE LAW

better than ground water. Take an unregulated stream that has a median flow of 100 

cfs (cubic feet per second), and a recorded 

range of from 5 cfs to 2,000 cfs in the past 

50 years. The rights to the first 5 cfs would 

be quite secure, because they could be satisfied at all times, but from there on each successively lower priority of right would be 

increasingly insecure, and the rights to water 

in excess of the average flow of the stream 

could be satisfied only occasionally. With 

storage provided by reservoirs on the same 

stream, the secure water rights could approach much more nearly the median flow of 

the stream, though at the expense of some 

floodwater rights. The analogy with ground 

water is that the ground-water reservoir does 

provide the storage, and can provide security 

in rights to water in quantities approaching 

the average annual inflow (the "safe yield" or 

perennial yield). Artificial maintenance of a 

constant level of storage in a ground-water 

reservoir as in a surface reservoir would 

prevent operation to overcome the natural 

variations in inflow, and would instead create 

a group of ground-water rights as insecure 

as floodwater rights on an unregulated stream.

WATER LAW AS AN AID TO OPTIMUM USE

These few examples are probably enough to 

indicate that there are many problems connected with water rights, and some of these 

problems can be traced to conflicts between 

the scientific and popular concepts of the occurrence and movement of water. Repeating 

my earlier remark that water rights become 

of increasing concern as water becomes a 

scarce commodity, you may now be relieved 

that Montana has had so few controversies 

over ground-water rights. All of us know of 

some fields in which we would prefer not to 

keep up with our neighbors, as for example 

overeating or going into debt. One might even 

ask whether the best policy would be to wait 

until there is a real need for law, on the ground 

that the American way is to encourage development by private initiative, and pass laws 

only to curb that initiative when necessary. 

Here the answer is that an effective system of 

water rights is needed to provide security for 

the investment necessary for development 

and beneficial use of water. Besides, laws 

need not necessarily be restrictive. Permissive legislation can encourage organization 

of public districts or water-service utilities 

having the common interest of economical and 

effective development and use of water within 

a specified area. Laws based upon recognition of the potentialities as well as the limitations of the water resource can accentuate 

the positive, rather than hamper development.

Throughout the country there are two fundamental bases for water rights: one as 

property appurtenant to the land, whose owner 

thus has the right to use water when, as, and 

if he chooses; the other developed by actual 

use of the water and not necessarily related 

to landownership. Both concepts are deeply 

ingrained in our minds as basic in property 

rights. Although the actual use of water is 

the preferred basis of right in areas of water 

scarcity, every State appears to accept both 

bases for water rights to some extent, and 

many conflicts of interest have resulted. In 

framing legislation or deciding water controversies, the best that can be hoped for is 

probably to avoid glaring inconsistencies, particularly with respect to attempts to define 

different "classes" of water which have no 

basis in fact.

The interrelation of water in the several 

phases of the hydrologic cycle is well established as a general principle, whether or not 

there is adequate evidence as to the degree 

of relation in specific areas. Separate and 

independent administration, control, or evaluation of surface and ground water is therefore likely to be ineffective. In all aspects of 

the water resources and their utilization, we 

can expect change: geographic variations, 

variations in natural hydrologic characteristics, variations from time to time in the natural supply and replenishment, and variations 

from time to time.in man's requirements as 

to quantity and quality of water and type of use. 

For an area so large and diverse as theJState 

of Montana (or even Rhode Island, for that 

matter) water laws must be flexible enough to 

be adaptable to these changing conditions. One 

method of achieving flexibility with safety is 

to enunciate only the basic principles in statutes, to confer broad powers upon the administrator responsible for working out detailed 

solutions to specific problems, and to provide 

for prompt and effective action by the courts 

on appeals from the administrators' decisions.

Finally, adequate hydrologic data are prerequisite to the regulation and control of development, the evaluation of water rights, and 

the assessment of the quantities and qualities 

of available water within each hydrologic unit. 

Such data are of inestimable value in preliminary consideration of the needs for legislation, and there is continuing need for more and 

more data throughout the process of achieving 

optimum use of the water resources, of which 

ground water is a fundamental part.