GEOLOGICAL SURVEY CIRCULAR 347

WATER RIGHTS IN AREAS OF

GROUND-WATER MINING

UNITED STATES DEPARTMENT OF THE INTERIOR 

Douglas McKay, Secretary

GEOLOGICAL SURVEY 

W. E. Wrather, Director

GEOLOGICAL SURVEY CIRCULAR 347

WATER RIGHTS IN AREAS OF GROUND-WATER MINING

By H. E. Thomas

Washington, D. C., 1956

Free on application to the Geological Survey, Washington 25, D. C.

CONTENTS

Page Page 

Abstract .................................. 1 Water rights and problems in some areas

Introduction ............................... 1 of ground-water mining ............. 9

Contrasting doctrines of water rights ........ 1 California............................... 9

Landownership.......................... 2 New Mexico............................. 10

Appropriation........................... 2 Nevada ................................. 12

Evaluation of existing systems of water Utah ................................... 13

rights............................. 3 Cedar City Valley..................... 13

Logical overall pattern................... 3 Escalante Valley...................... 13

Confusion in details of pattern ............ 4 Arizona................................. 14

Texas .................................. 14

Tentative conclusions....................... 15

ILLUSTRATION

Page 

Figure 1. Map of the United States showing areas of moisture surplus and deficiency as outlined by

Thornthwaite and basis of water rights by States .................................... facing p. 1

TABLE '

Page 

Table 1. Basis of water rights by States .......................................................... 5

 >* ;

i
RIGHTS

Areas of deficiency

Figure 1. --Map of the United States showing areas of moisture surplus and deficiency as outlined by Thornthwaite and basis of water rights by States.
WATER RIGHTS IN AREAS OF GROUND-WATER MINING

By H. E. Thomas

ABSTRACT

Ground-water mining, the progressive depletion of 

storage in a ground-water reservoir, has been going 

on for several years in some areas, chiefly in the 

Southwestern States. In some of these States a water 

right is based on ownership of land overlying the 

ground-water reservoir and does not depend upon putting the water to use; in some States a right is based 

upon priority of appropriation and use and may be forfeited if the water is allowed to go unused for a specified period, but ownership of land is not essential; and 

in several States both these doctrines or modifications 

thereof are accepted, and each applies to certain 

classes of water or to certain conditions of development.

Experience to date indicates that a cure for 

ground-water mining does not necessarily depend upon 

the water-rights doctrine that is accepted in the area. 

Indeed, some recent court decisions have incorporated 

both the areal factor of the landownership doctrines 

and the time factor of the appropriation doctrine. Overdraft can be eliminated if water is available from another source to replace some of the water taken from 

the affected aquifer. In areas where no alternate 

source of supply is available at reasonable cost, public 

opinion so far appears to favor treating ground water 

as a nonrenewable resource comparable to petroleum 

and metals, and mining it until the supply is exhausted, 

rather than curbing the withdrawals at<an earlier date.

INTRODUCTION

The average American citizen, particularly the 

urbanite, has no great problem in obtaining a continuing supply of water. Bills are presented to him periodically by some local governmental department or 

water company, and if he takes proper action the department or company will make every effort to assure 

a continued flow of water to his property.

The problem is more complex for the department 

or company that furnishes the water, or for the householder, farmer, or industrialist who develops his own 

water supply from wells, springs, streams, lakes, or 

reservoirs. These water users find that they must 

comply with certain requirements, which may be based 

on court decisions in their respective States or may be 

specified in statutes enacted by State Legislatures or 

other governmental units.

A common requirement, for instance, is that the 

use must be "beneficial, " a term that does not lend 

itself to accurate definition, although there are numerous court decisions as to specific uses under a definite set of circumstances. There is a wide range in 

degree of beneficial use; and in the water laws of 

many Western States, certain types of use are given 

preference over other uses, on the basis of public 

need and welfare. In some States preferential use 

may be a determining factor in allocations of water 

during periods of shortage; in others preferential use 

may be considered only in competition between proposed new developments. Another common requirement is that the water use must be "reasonable" in 

relation to use by others who have access to the same 

source of supply. This term is also relative and 

variable; it is measured by the circumstances in each 

case, and the weight of local custom is important.

These specifications as to beneficial use, preferential use, and reasonable use represent restrictions 

in the exercise of a right to use water, and they correspond to the restrictions imposed upon the motorist 

by posted speed limits along a public highway. Before 

the motorist ventures upon the highway, he must establish his right to use it by obtaining licenses for his 

vehicle and for himself as a driver. Similarly, the 

use of water is dependent fundamentally upon a right 

to that use.

This paper is concerned with these fundamental 

water rights, particularly as they are construed in 

areas of progressive ground-water depletion. It includes a sketch of the development of the legal doctrines pertaining to water rights, and some comments 

on the degree to which the present systems of water 

rights are in accord with sound principles of hydrology.

CONTRASTING DOCTRINES OF WATER RIGHTS

A water right is a property right and is entitled to 

protection to the same extent as other forms of property. It is a right to the flow and use of water, a 

usufructuary right; and the water is generally considered to remain common property until it has actually 

been diverted from its natural course and reduced to 

private possession by means of artificial devices.

The law of water rights embraces two diametrically opposed doctrines and numerous modifications 

and combinations of those doctrines. In many States 

water rights are based on ownership of land contiguous 

to a stream or other source, or overlying a groundwater reservoir; the right does not depend upon putting 

the water to use, and thus is not lost by nonuse. In 

some States water rights are based entirely upon appropriation and actual use of water that has been declared to belong to the public; the rights are based on
priority in time, and may be forfeited if the water is 

allowed to go unused for a specified period, but ownership of land is not essential. And in several States 

both these doctrines or modifications thereof are accepted, and each applies to certain classes of water 

or to certain conditions of development.

The resulting systems of water rights in many 

States can best be described as complex. They may 

be confusing not only to the layman but to his legal 

representative, and also to scientists whose entire 

careers have been devoted to hydrology and waterresource development. A brief historical sketch is 

therefore appended.

Landowner ship

The doctrines based on landownership are the 

"common-law" doctrines, developed in judicial decisions in the absence of express legislative acts. One 

of the earliest quoted decisions in disputes on water 

is that of Mason v. Hill, I/ which in 1833 abrogated 

the earlier custom in England of granting the right of 

use of water flowing through one's land to the first who 

appropriated it, and expounded the doctrine (subsequently termed the "riparian doctrine") that each 

owner of land along a stream is entitled to use the full 

natural flow, undiminished in quantity and unchanged 

in quality. The decision in Acton v. Blundell, 2/also 

in England, stated that a landowner is entitled to unrestricted use of water from a well dug on his property.

The English doctrine of unlimited use by the owners 

of land overlying or contiguous to a source of wate^ 

has been modified by decisions in numerous American 

courts. The New Hampshire Supreme Court in 1862 JJ/ 

ruled that a man's right to use water on his own land" 

must be restricted to a reasonable use, in view of the 

similar rights of others; this is commonly called the 

American doctrine of reasonable use. The California 

doctrine of correlative rights, stemming from the decision in Katz v. Walkinshaw 4/ in 1903, requires 

reasonable use and also states that, wherever landowners have rights in a common water supply but that 

supply is insufficient for all, each is to receive a fair 

and just proportion.

The doctrine of unlimited use and the modifications 

of reasonable use and correlative use share in common 

the principle that ownership of land is the prime basis 

for the right to use water. The modifications have 

been evolutionary products of the increasing competition for water in some areas, and more modifications 

are to be expected in the future with further increases 

in demand for water. Judging by the record in the 

States of greatest water development, reasonable use 

or correlative use or licensed use (as, for example, 

in New Jersey) can be required by statute or by the 

courts even in areas where the landowners were once 

considered to have the right to unlimited use of water.

Appropriation

The basic concept of the doctrine of appropriation, 

or Colorado doctrine, is that the landowner has no inherent right to use water from sources upon, contiguous to or underlying his land but that rights to these 

sources are based on priority in time of beneficial 

use and may be lost after the use ceases. This doctrine, obviously foreign to the doctrines based on 

landownership, nevertheless can be traced to a common ancestry and likewise has a common-law origin.

In common usage, an appropriator is one who takes 

exclusive possession of an article that had been recognized as common property or had been owned by others. 

Depending upon the reactions of the true owner, the 

courts may deem this act to be unlawful and criminal, 

or they may legitimize it by reason of either longcontinued adverse use or the owner's consent. The 

inception of the appropriation doctrine as it now stands 

in the United States can be traced to the early miners 

in California, who took water from streams for use in 

placer mining on the public lands. In decisions concerning disputes over the water E>/ 6/ the California 

Supreme Court sanctioned the practice and justified it 

with respect to the accepted common-law doctrines of 

landownership: T_/ "... a prior appropriation of either 

(wood or water) to steady individual purpose, establishes a quasi private proprietorship, which entitles 

the holder to be protected in its quiet enjoyment 

against all the world but the true owner ..."

The right to appropriate water on the public lands, 

confirmed in these decisions, was recognized by Congress in its Acts of 1866 7a/and 1870, 7b/ and protected even in those lands that were subsequently patented and passed to private possession. The Desert 

Land Act of 1877 was interpreted in 1935 by the U. S. 

Supreme Court 8/ to indicate the intent of Congress to 

dispose of the land and water of the public domain separately and to make all nonnavigable waters of the public 

domain subject to the plenary control of the States designated in that Act, with the right in each to determine 

for itself to what extent the rule of appropriation, or 

the common-law rule in respect of riparian rights, 

should obtain.

Each of the 17 Western States now recognizes the 

doctrine of appropriation to some extent. It was specified as the exclusive basis for water rights in the Constitution of Colorado in 1876, whence came the common 

designation as the "Colorado doctrine. " Fifteen other 

States, either by statute or in their constitutions, have 

dedicated all or part of their undeveloped water resources to the public and made them available for

1/5 Barn. & Adol. 1, 110 Eng. Reprint 692 (1833).

2/ 12 M. & W. 324 (1843).

3/ Bassett v. Salisbury Mfg. Co., 43 N. H. 569, 

82 Am. Dec. 179 (1862).

4/Katz v. Walkinshaw, 141 Calif. 116, 70 Pac. 

663 (1902T, 74 Pac. 766 (1903).

5/ Irwin v. Phillips, 5 Calif. 140, 63 Am. Dec. 

113 (185577

6/ Tartar v. Spring Creek Water & Min. Co., 

5 Calif. 395 (18551

7/ Idem.

7a/ Rev. Stat., sec. 2339, from Act of July 26, 

1866, sec. 9, 14 Stat. 251, 253, now codified as part 

of 43 U. S. C. 661.

7b/ Rev. Stat., sec. 2340, from Act of July 9, 

1870, sec. 17, 16 Stat. 217, 218, now codified as part 

of 43 U. S. C. 661.

8/ California Oregon Power Co. v. Beaver Portland 

Cement Co., 295 U. S. 142-164~(I335).
appropriation and use under State regulation. In 

Oklahoma there has been no dedication of unappropriated water to the public, but certain waters may be 

appropriated.

EVALUATION OF EXISTING SYSTEMS 

OF WATER RIGHTS

Logical Overall Pattern

The fundamental differences between the doctrines 

of water rights based on landownership and on appropriation reflect the contrasts in climate in the broad 

regions where they have been developed and applied. 

The general distinction between humid East and arid 

West has long been recognized, the humid areas being 

generally those having an average annual precipitation 

exceeding 30 inches. Thornthwaite 9/ has refined this 

distinction, and points out that water deficiency is 

habitual where the average potential evapotranspiration 

(the water that would be pulled back, if it were available, to the atmosphere by solar energy) exceeds the 

average annual precipitation. Where the precipitation 

exceeds potential evapotranspiration, there is a water 

surplus; and stream runoff is the evidence of it. As 

shown by figure 1, the 31 Eastern States comprise the 

principal region of water surplus, and the Pacific 

Northwest is another such region. Most of the 17 

Western States are in a region where water deficiency 

is normal, and only the mountain ranges have a surplus.

In the humid States, property owners generally may 

be assured that the annual precipitation on their property is enough for agricultural need, with some surplus left over. If the water they take from rivers, 

wells, or springs does not originate on their property, 

at least their property generates other water for other 

property downgradient so that they are not likely to 

cause a net depletion of the supplies in the drainage 

basin. The concentrated needs of industries and large 

cities may create a problem, for which one solution 

is the reserving of sufficient watershed area, as New 

York City has done in its Croton and Catskill watersupply systems. At any rate, landownership can be a 

logical basis for water rights in the regions of surplus, 

and it is so in the 31 Eastern States, as shown in figure 1.

The three Pacific Coast States each have some 

humid areas: rainfall of 80 to 100 inches a year is 

not uncommon in northern California and western Oregon and Washington. On the other hand, most of California's valleys, and eastern Oregon and Washington, 

are arid or semiarid. In those three States there is a 

tendency toward acceptance of both the doctrine of 

landownership and that of appropriation as a basis for 

water rights. In Oregon, ground-water rights are 

based on appropriation in the arid region east of the 

Cascades, and on landownership in the humid region 

to the west.

In the arid region appropriation is the generally 

accepted basis for water rights. The Rocky Mountain 

States are arid and are committed rather generally to

9/ Thornthwaite, C. W., 1948, An approach toward 

a rational classification of climate: Geog. Rev., 

v. 38, p. 56-75.

appropriation of ground water and entirely to appropriation of stream,s. In .these States the inhabited 

areas are predominantly areas of low rainfall. There 

are very few places where the rainfall is sufficient 

for dry farming. Nearjy everywhere, crops depend 

upon water from somewhere else for irrigation, and 

this is dependent upon surface- and ground-water 

supplies. If landownership were the basis for water 

rights here, so far as origin of precipitation is concerned, hardly any valley landowner would have 

enough water for his needs. The areas of surplus in 

the Mountain States are chiefly in the mountain ranges 

and, for the most part, are public lands. Water flowing from those public lands is appropriated in the inhabited lowlands that do not have sufficient supply. 

Utah and Nevada have declared all water to be subject to appropriation, and the water of streams is 

appropriable in all seven Mountain States.

The Great Plains, from Montana to Texas, have 

a semiarid climate, intermediate between those of the 

arid West and humid East. There is a tendency in 

most of these States to accept both doctrines of water 

rights to some extent. One hydrologic characteristic 

of the Plains States is that the major streams--the 

Arkansas, Platte, Yellowstone Rivers, and a few 

others--depend on water from the Rockies. The watercourses of these major streams are generally subject to appropriation within the Plains States. However, in large areas away from these streams the 

ground water is of local origin, for it is dependent 

on precipitation. Those ground-water sources have 

no connection with the Rocky Mountains and cannot be 

replenished by them. Generally rights to use of 

ground water in those States are based on landowiiefship. Three States have supported by statute the 

common-law doctrine that the owners of the land hawte 

paramount rights to the "diffused surface water" derived chiefly from precipitation. Thus in the Great 

Plains the bases of water rights appear to be adjusted 

broadly to the two prevailing sources of water. So 

far as the larger streams and watercourses are concerned, the dominant source is the Rocky Mountains, 

subject to appropriation when it reaches the Plains 

State concerned; in the areas away from these watercourses the dominant source is the precipitation within 

the State, and water rights are based in most States 

on landownership.

We may conclude that the contrasting bases for 

water rights--landownership on the one hand and appropriation on the other--are both workable in the respective broad regions where they are recognized, 

because those regions have corresponding contrasts 

in climatic and hydrologic patterns. In other words, 

the broad concepts that have been developed in our 

existing compendium of statutes and court decisions 

have sound support in hydrology. This is most fortunate, for in many States the fundamental bases for water rights have been outlined by statutes or court decisions and are not likely to be reversed, although 

modifications are possible and even probable.

For those who may hope that the present complex situation may be superseded by a simplified 

uniform water code, two quotations may be pertinent. 

One is from an address by Chief Justice Lucien
Shaw of the California Supreme Court 10/ in 1922:

The opponents of the doctrine of 

riparian rights had pointed out these results with much emphasis and repetition 

in the political campaign prior to the decision in Lux v. Haggin ll/ and they are 

still referred to as evidence that the doctrine is contrary to a sound public policy 

in states having the arid climate of California. The obvious answer on the question of policy is that the objection comes 

too late, that it should have been made 

to the legislature in 1850 prior to the 

enactment of the statute adopting the common law. When that was done the riparian 

rights became vested, and thereupon the 

much more important policy of protecting 

the right of private property became paramount and controlling. This policy is 

declared in our constitutions, has been 

adhered to throughout our national history, and it is through it that the remarkable progress and development of the country has been made possible.

Similarly, in the case of Bristor v. Cheatham, 12/ 

the Arizona Supreme Court says:

It is claimed that if we do not change 

the law, ground waters will be exhausted, 

and the legislature is shackled and powerless to enact a ground-water code. If the 

legislature is shackled, it is the Constitution that imposes the impediment. The 

court has no right to pull the rug from under the owner and release the constitutional 

obstructions, if any. It is the court's duty 

to protect constitutional rights. Possibly 

the only source of power the legislature 

possesses is the police power for the 

general welfare.

Confusion in Details of Pattern

There is great variation in the present bases for 

rights to use of various types of water, and particularly is this true in the 17 arid Western States, which 

have been exceedingly prolific in water disputes and 

problems. As shown in the following table, the 31 

Eastern States adhere to the doctrine of landowner ship, 

although the police power has been invoked in several 

of them to permit regulation and control of water development. In most of the 17 Western States landownership is an acceptable basis of rights to some water, 

and other waters are subject to appropriation. In the 

two States, Utah and Nevada, that have declared all 

water subject to appropriation, there have been no 

test cases establishing the paramount right of appropriators as against landowners to the water that 

falls as precipitation in source areas for surface 

and ground-water supplies. Indeed, the Utah

1Q/ Shaw, Lucien, 1922, The development of the 

law of waters in the West: 10 Calif. Law. Rev. 443, 

455; 189 Calif. 779, 791.

ll/Lux v. Haggin, 69 Calif. 255, 4 Pac. 919 

(188?), 10 Pac. 674 (1886).

12/ Bristor v. Cheatham, not yet reported.

Supreme Court in a recent decision 13/ has held that 

soil water is a part of the soil and noT subject to appropriation if its movement cannot be traced to land 

other than that on which it is found and if that water 

in the natural state produces plant life and benefits 

the land.

The "classes" of water shown in the table have 

been developed largely in court decisions and thus 

constitute a legal classification rather than a scientific classification of water. Not only these legal 

classes but many common assumptions and definitions 

accepted in courts of law were developed many years 

ago and are still extant chiefly because of the predilection of the legal mind for precedent. In the light 

of present scientific knowledge they are archaic and 

unsound. In a specific case a decision based on 

erroneous assumptions might, by accident, work out 

very well under the hydrologic conditions of the area 

to which it pertained, but it might be thoroughly untenable as a precedent for decisions in regions of contrasting hydrologic characteristics.

Archaic legal classification of waters. Hydrologists recognize that the ultimate source of practically 

all the fresh water on the continents is precipitation. 

In developing the concept of the hydrologic cycle, they 

have traced the movement and disposal of water upon 

or under the earth's surface and have shown that there 

are natural priorities in that movement. A brief 

sketch of the operations of the hydrologic cycle is 

quoted: 14/

... Except for the water that evaporates at the surface, the soil or mantlerock has top priority upon the water that 

falls as precipitation. Overland runoff 

does not occur unless or until precipitation 

exceeds the capacity of that surface layer 

to absorb the water. The soil holds water 

against the force of gravity until it has 

reached its capacity for holding water by 

molecular attraction, and only then does 

water start to percolate downward under 

the force of gravity [root cavities, animal 

burrows, and soil cracks facilitate movement downward in many places, however]. 

In the intervals between storm periods 

soil moisture may be depleted by evaporation and transpiration, and this depletion 

must be made up during subsequent storms 

before there can be additional downward 

percolation.

Ground-water reservoirs, including 

those perched upon impermeable rock 

layers, receive the water that percolates 

downward from the soil zone. These reservoirs, or aquifers, are composed of materials sufficiently permeable that water can 

move through them by gravity. Water accumulates until the reservoir is filled sufficiently to cause underground flow, which 

may ultimately be discharged into lakes or 

stream channels or oceans, or at the land

13/ Riordan v. Westwood, 115 Utah 215, 203 Pac. 

(2dT~922 (1949).

14_/ Thomas, H. E., 1951, The conservation of 

ground water: p. 17-18,. New York.
Table 1. --Basis of water rights by States I/

A--Appropriator (statutory) 

A(L)--Appropriator, first 

preference to landowner

L--Landowner

Ls--Landowner (statutory)

P--Police power

State

Legal classification of water

0)

o 

rt

H-l

(H

CQ^^i

C^ |

*O (H

CO -<->

5 ^

Q

(H

0) "rt

c*r^

rt

"Q

0

(H

S

^\

^* 1

co

 pH

(H

a

CO

_o

bC ffl

C 0) ^ co £ fa 5 S

« M^jfa

 5 rt

(H ^

C&

T3

1?

*m ^

 o 2 ,2

C bC 0)

^ *s s

1 §«

^^^

co 

co

(H

3

O 

u

(H

0)

-4-1

rt

T3

S

<l> "co'l 

'

co ^

c -2

O rt

c ^

&

Regulated areas

PACIFIC COAST

California

Oregon

Washington

L

A(L)

A

L, A

L,A

A

L

L

A

L,A

A

A

L,A

A

L,A

L,A

A

L,A

L,A

A(L)

--

Pasadena

ROCKY MOUNTAINS

Arizona

Colorado

Idaho

Nevada

New Mexico

Utah

Wyoming

L

A(L)

L

A

L

A

L

L

A

A

A

A

A

A

A

A(L)

L

A

L

A

A

A

A

A

A

A

A

A

A

A

A

A

A

A

A

A

A

A

A

A

A

A

L

A(L)

A

A

--

A

L, A

Las Vegas

9 districts

5 districts

GREAT PLAINS

Kansas

Montana

Nebraska

North Dakota

Oklahoma

South Dakota

Texas

__

__

--

Ls

Ls

Ls

L

A

L

L

L

A

L

L

A

A

L

L

L

L

L

A

A

L, A

L,A

L,A

L,A

L, A

A

A

A

L,A

L,A

L,A

L,A

A

A

A

L, A

L,A

L, A

L,A

A

A

--

--

L,A

L

L,A 3 districts

HUMID REGION

Alabama

Arkansas

Connecticut

Delaware

Florida

Georgia

Illinois

Indiana

Iowa

Kentucky

Louisiana

Maine

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Missouri

New Hampshire

New Jersey

--

--

__

--

--

__

--

__

--

--

--

--

P

--

--

L

--

L

L

L

L

P

L

L

P

L

L

L

L

P

L

L

P

L

L

L

P

__

__

__

__

--

__

--

_-

__

--

__

__

--

--

--

P

--

-_

--

--

__

__

__

__

--

__

--

__

__

--

__

__

__

__

--

P

__

__

__

--

__

__

__

__

--

__

--

__

__

--

__

__

__

__

--

P

__

__

__

--

L

L

L

L

L

L

L

L

L

L

L

L

P

L

L

P

L

L

L

P

__

__

__

__

--

__

--

__

__

--

 _

__

--

__

--

P

__

__

__

--

Sarasota

Savannah

Champaign

Louisville

Camden, Perth Amboy

See footnotes at end of table.
Table 1. --Basis of water rights by States I/ Continued

State

Legal classification of water

CD

Diffused surfac 

2/water 

>,

0)

Percolating wa

CO

S

(H

a 

w

o

Springs flowing watercourses

TS

define Waterin underground 

channels

^\

Watercourses J

Unconsumed 

6/water 

Regulated areas

HUMID REGION Continued

New York

North Carolina

Ohio

Pennsylvania

Rhode Island

South Carolina

Tennessee

Vermont

Virginia

West Virginia

Wisconsin

__

-_

L

--

--

__

--

--

--

--

--

P

L

L

L

L

L

P

L

L

L

P

__

-_

--

L

--

__

--

--

--

--

--

__

--

--

--

--

__

--

--

--

--

--

__

--

--

--

--

__

--

--

--

--

--

P

L

L

A

L

L

L

L

L

L

L

__

--

--

--

--

__

--

--

--

--

--

Long Island

County control

Memphis

I/ Sources: Hutchins, Wells A., 1942, Selected problems in the law of water rights in the West. U. S. Dept. 

Agr. Misc. Pub. 418, 488 p. McGuinness, C. L., 1951, Water law, with special reference to ground water: 

U. S. Geol. Survey Circ. 117, 30 p.

2_/ Standing water and overland flow from precipitation; seeps, bogs, and marshes; sloughs and escaped flood 

waters; playas.

3/ Soil moisture in excess of field capacity, water moving vertically in the zone of aeration, subsurface storm 

flow, most ground water

4/ Not observed to contribute to a watercourse.

5/ Streams, including their underflow, and associated lakes, ponds, and marshes.

6/ Water used nonconsumptively; waste; return flow.

surface by springs or seeps. Where 

ground water is at shallow depth, it may 

be discharged by evaporation or transpiration.

Streams are the spillways of the 

hydrologic cycle and carry off the surplus water that is not stored in lakes or 

underground or returned to the atmosphere by evapotranspiration. They have 

the lowest priority on water that falls as 

precipitation, for water enters a stream 

only if it falls directly in the channel or 

if it cannot get into the ground by infiltration or if it is discharged into the stream 

from ground-water reservoirs. Even 

after water has reached the stream, it 

may be lost by evapotranspiration or 

disappear by seepage into underlying 

ground-water reservoirs.

The great differences in groundwater resources and in streamflow

characteristics in various parts of the country are traced not only to differences in 

rates of rainfall and other climatic factors 

but to differences in the materials in and below the soil zone, through which the water 

may pass. In some places the soil is like a 

blanket over the earth, absorbing the rainfall even of intense storms until it can hold 

no more, so that some starts moving downward into underlying rock materials; in other 

places bare rock or other impermeable material or frozen or compacted ground cannot 

absorb the water even of moderate storms 

or of gradual snow melting, and the surplus 

may cause a stream to flood.

The underlying rock materials may be 

very permeable and form part of a groundwater reservoir capable of transmitting 

large quantities of water for considerable 

distances, finally discharging the water at 

a fairly constant rate into streams. In
other places, downward percolation may 

be stopped within a few feet or even a few 

inches of the surface by an impermeable 

layer, and the water collected above that 

layer may quickly reappear in streams 

only a short distance away, perhaps soon 

enough to contribute to floods in those 

streams.

Some "classes" of water indicated in the table 

differentiate between waters without regard to their 

close hydrologic relation, and others include waters 

of markedly contrasting genetic relations. Thus "diffused surface waters" include standing or flowing water on the surface resulting from precipitation, and 

also ground water rising in seeps or bogs and marshes, 

surface water escaped from stream channels, and 

playas, which may be formed by ground or flood water. 

"Percolating waters" were once defined 15/ as 

"vagrant, wandering drops moving by gravity in any 

and every direction along the lines of least resistance," 

and the term is still tainted by this definition which is 

based on the ignorance of a bygone era.

When one considers that the water from precipitation may initially form "diffused surface water, " then 

"percolating water" which may eventually enter a 

"defined underground channel, " and subsequently reappear at the surface as "springs" or as "diffused 

surface water" in a marsh, or even contribute to the 

base flow of a "watercourse, " it is evident that the 

legal classification of waters can be a lawyer's paradise and a logician's nightmare.

Provincialism in leading decisions. Each court 

decision that forms the basis for existing water law 

reflects the level of understanding of the principles of 

hydrology and details of water occurrence at the time 

the decision was rendered. These decisions are generally based upon all the hydrologic evidence that 

could be marshaled by the disputants, and they are 

likely to have a logical basis in the hydrology of the 

specific area, even though that hydrology is not fully 

understood. The decisions commonly reflect also the 

local attitudes toward water, and these attitudes vary 

tremendously, depending upon whether the area is 

one of habitual surplus, perennial deficiency, or alternating abundance and shortage.

When a decision is accepted as a precedent in 

subsequent suits, especially in jurisdiction far removed, it should be recognized that the leading decision is necessarily provincial, not only because of 

the specific hydrologic conditions but also because of 

the water philosophy at the place and time that the decision was rendered. This provincialism may not be 

fully recognized, particularly if the fundamental hydrology is not adequately understood.

A case in point is the riparian doctrine which 

originated more than a century ago in the humid 

British Isles. According to Hutchins 16/

Under the riparian doctrine in its 

strict sense, the owner of land contiguous 

to a watercourse is entitled to have the

15/ City of Los Angeles v. Hunter, 105 Pac. 755 (1909). ~ 

16/ Hutchins, Wells A., 1942, Selected problems in 

the law of water rights in the West: U. S. Dept. Agr. 

Misc. Pub. 418, p. 39.

stream flow by or through his land, undiminished in quantity and unpolluted in 

quality, except that any riparian proprietor may make whatever use of the water he 

requires for domestic and household purposes and the watering of farm animals.

As stated more recently by the U. S. Supreme 

Court in United States v. Gerlach Livestock Co. 17/

Riparian rights developed where lands 

were amply watered by rainfall. The primary natural asset was land, and the runoff in streams or rivers was incidental. 

Since access to flowing waters was possible 

only over private lands, access became a 

right annexed to the shore. The law followed 

the principle of equality which requires that 

the corpus of flowing water become no one's 

property and that, aside from rather limited 

use for domestic and agricultural purposes 

by those above, each riparian owner has a 

right to have the water flow down to him in 

its natural volume and channels and unimpaired in quality.

Strict adherence to the requirement that the water be undiminished in volume and unimpaired in 

quality would prevent any use of the water, because it 

is axiomatic that the volume must be diminished by 

consumptive use and nonconsumptive use results in 

some impairment of the property for which the water 

is used--for instance, water becomes polluted by use 

for sanitation, it is warmed by use in cooling, and 

dissolved or suspended impurities are introduced by 

industrial processing and washing. In humid regions 

a reasonable facsimile of the requirements of this 

doctrine results from the tributary inflow and accompanying dilution that are characteristic of most 

streams as they flow toward the sea. But in regions 

of less abundance of water, the riparian doctrine must 

be modified somehow to permit any use of water.

Various modifications of the riparian doctrine 

have been made in court decisions in the several 

Western States. In California a riparian owner has a 

prior and paramount right to reasonable beneficial 

use of the water, and if necessary to effectuate it he 

is entitled to the full natural flow of the stream or its 

equivalent undiminished in quantity and unimpaired 

in quality. 18/ In Kansas each riparian owner has a 

primary right to use all the water he may require for 

domestic use and to water livestock; and after all 

other riparian landowners have been served for such 

primary uses of water, they are all equally entitled 

to a fair and equal share of whatever water may remain in the stream for irrigation purposes. 19/ In 

South Dakota, uses of water are divided into natural, 

for domestic use and stockwatering, and artificial, 

for manufacturing, mining, and irrigation; a riparian 

owner may exhaust the stream for the former purposes, but rights of all riparians for the latter uses 

are equal. 20/ In North Dakota the right to have water

17/ United States v. Gerlach Livestock Co., 339 

U. S. 725, 744-74T1T950).

18/ Meridian v. San Francisco, 13 Calif. (2d) 

424, 90 Pac. (2d) 537 (1939).

19/ Frizell v. Bridley, 144 Kans. 84, 58 Pac. 

(2d) 95 (1936).

20/ Lone Tree Ditch Co. v. Cyclone Ditch Co., 

26 S. Dak. 307, 128 N. W. 596
flow in natural quantity and purity is subject to the 

right of each riparian proprietor to make reasonable 

use thereof. 21/ In Texas riparian waters are considered to include only the ordinary flow and underflow of the stream; waters of a stream above the line 

of highest ordinary flow are regarded as flood waters, 

to which riparian rights do not attach. 22/

By contrast with the doctrines that have originated 

in humid regions, the water philosophy of the West 

characteristically reflects the prevailing water scarcity. If one can establish a right to use water, he is 

expected to"use it up," and unconsumed water may be a 

vexing problem. In some cases the courts have resolved this problem in introducing the term "fugitive 

water, " defined by the Utah Supreme Court 23/ as 

water discharged by the owner from his irrigation 

system with an intent to abandon it. Any individual 

may scramble for the possession of fugitive water,and 

no one can obtain an exclusive right to its continued 

use.

Water nonconsumptively used includes return 

from irrigation, sewage, and "waste, " which has been 

variously defined by numerous statutes and court decisions in the Western States. Many of these States 

permit appropriation of water that has been used but 

not consumed under other rights, but the original 

user is generally under no obligation to continue the 

"wasteful" practices, so that such rights may be insecure in most States. Some court decisions have 

permitted irrigation companies to "save, " by means 

of canal linings or pipelines, the water that formerly 

seeped into the ground. In the case of J3ig Cottonwood 

Tanner Ditch Co. v. Moyle, 24/for example, the Utah 

Supreme Court considered such improvements reasonable, even though their greater depth and swiftness 

made them dangerous for children, but evidently the 

court did not have an opportunity to consider the important hydrologic fact that this seepage occurred in 

the recharge area for a major ground-water reservoir, 25/ and that wells in that reservoir have long 

made beneficial use of, and therefore might be considered to have established a prior right to, the water 

"lost" from the irrigation canal. As pointed out elsewhere, 26/it is a

... common fallacy that water is 

"lost" when it seeps from a stream into 

a ground-water reservoir and that it can 

be "saved" by preventing the seepage. The 

terminology is an anachronism from the 

days when little was known about ground 

water. Actually water "saved" by being 

held on the surface is subject to loss by 

evaporation, while the water that disappears into the ground is generally not

2 1/ McDonough v. Russell-Miller Milling Co. , 

38 N. Dak. 465, 165 N. W. 504 (IdllT.

22/Mpttv. Boyd, 116 Tex. 82, 286 S. W. 458 (1926). 

23/ Smithfield West Bench Irr. Co. v. Union Central Life Ins. Co. et al. , 105 Utah 468, 143 Pac7(2d) ~ ~

24/ Big Cottonwood Tanner Ditch Co. v. Moyle, 

174 Pac. (2d) 148 (1946)7

25/ Taylor, G. H. , and Leggette, R. M. , 1949, 

Ground water in Jordan Valley, Utah: U. S. Geol. Survey Water-Supply Paper 1029, p. 24-30.

26/ Thomas, op. cit. , p. 252.

subject to evaporation losses and is 

usually recoverable.

Need for sound hydrology in findings of fact. Scientists are generally devoted to research, which Webster's dictionary defines as "critical and exhaustive 

investigation or experimentation having for its aim the 

revision of accepted conclusions, in the light of newly 

discovered facts. " Thus they are true disciples of 

the American philosophy of progress, with its admiration for the new and dissatisfaction with the old. By 

contrast, the legal profession treats precedent and 

tradition with great respect. The scientist may feel 

uncomfortable in this environment and irked by its inadequacy in specific instances that pertain to his particular field of research.

In the field of hydrology, it must be recognized that 

conservatism in the courts has given a general consistency to the broad pattern of water-law development 

in the United States. Nevertheless, as indicated above, 

the courts in some decisions have enunciated inconsistencies and inaccuracies in basic hydrology. These 

can generally be traced to the findings of fact rather 

than to the conclusions of law, as is to be expected,, 

for the conclusions of law have been made by justices 

who are acknowledged as impartial and as experts at 

law; but the findings of fact have not been based upon \ 

a corresponding impartial, expert analysis of the 

hydrologic data.

The findings of fact in recent decisions may be 

weak because of indiscriminate reliance upon precedents established in decisions many years ago, when 

our knowledge of water and principles of its occurrence was far less than today. The elimination of 

obsolete concepts is a problem that requires hydrologic rather than legal training.

The established rules of evidence may also constitute a distinct handicap to a court in its efforts to 

reach sound conclusions concerning the water resources. The evidence in court hearings of water 

disputes is presented by partisans who may or may 

not deem it necessary to call upon hydrologic experts, 

but in any event the hydrologic testimony is likely to 

be incomplete and limited to that favoring one side. 

The court must decide on the basis of the evidence 

presented; although it can rule on the admissibility of 

evidence, its prerogatives ordinarily do not extend to 

calling for other data or demanding comprehensive 

studies in areas where existing knowledge is meager. 

Rarely does a court have the assistance of an impartial hydrologist in weighing the evidence and making 

findings of fact in water disputes.

The basic water data collected by the Geological 

Survey, and by other Federal and State agencies concerned with basic data, have been generally accepted 

in the courts and quoted by both sides in water disputes. However, these agencies generally have not 

been expected to furnish personnel to serve in the 

capacity of a friend of the court and to advise as to 

interpretation or overall adequacy and comprehensiveness of the data presented. Nevertheless, in 

some recent cases discussed below, the data collected 

by these governmental agencies have constituted the 

essential basis for the decisions of the court.
WATER RIGHTS AND PROBLEMS IN SOME AREAS 

OF GROUND-WATER MINING

The development and use of water have given rise 

to a host of problems. By careful selection, 

Hutchins 27/ was able to present in 488 pages an outstanding analysis of the major problems of the Western States. McGuinness 28/ has summarized several 

of the outstanding current problems that pertain especially to ground water. The following discussion is 

limited to one type of ground-water problem, which is 

considered by many to be the most serious water problem of all--that of persistent overdraft from a groundwater reservoir. In such reservoirs, wells and 

springs year after year draw water in excess of the 

annual replenishment, and the excess must come from 

storage. In other words, the water in the reservoir 

is being mined. The ground-water reservoirs with 

persistent overdraft are principally in the southwestern part of the country, extending from California to 

the lower Mississippi Valley. 29/

The extraction processes of a mining economy do 

not constitute a moral problem for other mineral resources. It is taken for granted that our use of steel, 

coal, copper, gasoline, or sulfuric acid means a depletion of the mineral reserves from whence they 

come. This does not deter us, although we are becoming increasingly aware of the value of these resources, and wasteful methods of extraction are not 

condoned as they were in the early days of exploitation.

Water, because it is generally a renewable resource, is commonly grouped with the soil and the 

timber and forage and food that soils can produce 

perennially by good management rather than with the 

irreplaceable mineral resources. The water in areas 

of ground-water mining, however, may have great 

storage volume but negligible replenishment, and thus 

may not qualify as a renewable resource. As a specific example, the water underlying the High Plains of 

Texas and New Mexico (p. 15, 11) has much more in 

common with the petroleum in an oil field than it does 

with water in the nearby Roswell Basin, which has a 

large perennial supply.

To a hydrologist, the water rights acquired by landownership are a function of area, or, more broadly, 

volume, and those acquired by appropriation are a 

function of time. Both these variables are important 

in the evaluation of the hydraulic characteristics of a 

ground-water reservoir, and indeed a water right is 

ordinarily expressed as a rate, or the product of 

volume by time. Recent cases in California and New 

Mexico suggest that both factors may ultimately be 

deemed essential in determination of rights in a fully 

developed or overdeveloped ground-water reservoir, 

regardless of whether appropriation or landownership 

is the currently favored basis for a water right.

California

California recognizes water rights acquired by 

landownership and also to some extent water rights 

acquired by appropriation. The general rule of water

rights to streams has been that the riparian right is

(1) coordinate with the rights of other riparian owners,

(2) subordinate to appropriative rights previously acquired on public land, and (3) superior to appropriative 

rights subsequently acquired. 30/ The rights to ground 

water are comparable insofar as overlying landowners 

are concerned, for they have equal rights to use of water on their lands and are entitled to an equitable apportionment if the supply is not enough for all. However, appropriation of ground water for distant uses 

is permitted only to the extent that there is a surplus 

over the reasonable requirements of the overlying landowners; the landowner's right to water for use on his 

land has been recognized as paramount to that of a 

taker for distant use. 31/ In the case of Pasadena v. 

Alhambra32/the Calif ornia Supreme Court gave judicial 

approval to a stipulated agreement for adjudication of 

all water rights in the Raymond Basin, whether those 

rights were acquired by landownership or by appropriation.

The Raymond Basin is a part of the San Gabriel 

Valley in southern California, but the ground water in 

it is separated from that in the rest of the valley by 

the Raymond fault. The land overlying this basin includes parts of Pasadena and four other incorporated 

cities, plus a few small agricultural areas. Alhambra 

and several other cities beyond the limits of the basin 

have long been using water pumped from the Raymond 

Basin. Available records indicate that the draft upon 

the basin began to exceed the replenishment about 1916. 

In 1938 the city of Pasadena initiated an action for 

adjudication of all ground-water rights in the basin, 

and upon petition of many of the 31 parties involved in 

the suit, the court referred the case to the State Division of Water Resources for a report on the physical 

facts. In 1943 the Division reported that recharge was 

about 70 percent of draft. 33/

By the terms of the adjudication, the only recognized water rights were those based upon actual development and use of water from the Raymond Basin, and 

unused rights based on ownership of land ceased to 

exist. As pointed out by Conkling, 34/ the California 

Supreme Court ruled in effect that those who were 

using water as overlying users were also appropriators 

and gave all users correlative rights in the source. In 

finding actual use to be a criterion for a water right, 

the court accepted one of the tenets of the appropriation doctrine and repudiated landownership rights to 

that extent. By recognizing the rights developed prior 

to the trial, the court also recognized the criterion of 

time but did not follow the appropriation doctrine to 

the extent of differentiating as to priority of individual 

rights, for all recognized rights were considered 

equivalent. The right of each water user was reduced 

to 70 percent of his previous actual pumpage. This reduction was accomplished without denying anyone his 

water supply, because Pasadena can depend upon the

27/ Hutchins, op. cit.

28/ McGuinness, op. cit.

29/ Thomas, op. cit., plate 2, p. 36-97.

30/ Hutchins, op. cit., p. 34.

31/ Hutchins, op. cit., p. 160.

32/ Pasadena v. Alhambra, 33 Calif. (2d) 908, 207 

Pac. (2d) 17 (1949); certiorari denied, 339 U. S. 937 (1950).

33/ Report of Referee, Pasadena v. Alhambra, 

Pasadena C-1323, Superior Court of Calif.

34/ Conkling, Harold, Oral discussion of "Statutory 

control of ground-water draft" by S. T. Harding, at 

the convention of the Am. Soc. Civil Engineers, San 

Francisco, March 1953.
10

Colorado River as developed by the Metropolitan Water District of Southern California. As a member of 

the District, Pasadena intends to do no pumping from 

the Raymond Basin. Those who do pump will pay 

Pasadena for the proportionate share that they pump 

under Pasadena's rights. Thus imported water makes 

up the difference between past demand and allowable 

draft from the Raymond Basin.

New Mexico

The State of New Mexico adheres to the appropriation doctrine for surface water and for practically all 

ground water. According to the U. S. Supreme 

Court, 35/

To appropriate water means to take 

and divert a specific quantity of water 

therefrom and to put it to beneficial use 

in accordance with the laws of the state 

where such water is found, and by so 

doing to acquire a right under such laws, 

a vested right to take and divert from the 

same source and to use and consume the 

same quantity of water annually forever.

This is the accepted usage of the term in the Western States, where it was applied first to surface water 

and then to all water; renewability of the resource is 

inherent in this definition.

An essential part of an appropriative right is its 

priority, because this determines who shall have the 

water when the supply is insufficient to meet all demands. Surface water is readily adapted to the appropriation doctrine, for the water can be apportioned 

strictly on a priority basis. A dry stream bed is the 

undebatable answer to any unsatisfied junior appropriator who would like to develop water in excess of 

the perennial yield of the stream. By contrast, many 

ground-water reservoirs contain far more water than 

the quantity that flows into them in an average year 

and it is physically possible, by drawing from this 

permanent storage, to take far more than the perennial 

yield for a time. Nevertheless, ground water can be 

apportioned in perpetuity as required under the appropriation doctrine only if a balance is maintained between the average recharge to and the average discharge from the ground-water reservoir.

In areas of persistent overdraft there is no possibility of guaranteeing rights forever. Under a mining 

economy, some of the water is removed from storage 

under the land, and although the stored quantity in some 

reservoirs may be large, it is nevertheless a finite 

quantity and subject to eventual exhaustion.

Several of the problems of ground-water mining 

under appropriative rights are exemplified in the appeal of Luther Cooper against the State Engineer's 

denial of his applications for wells in Lea County, 38/ 

although that appeal never got beyond the District 

Court, and the decision has not yet (1953) been finalized 

by the presiding judge. The appeal led to a modification of the State Engineer's regulation of overdeveloped ground-water reservoirs and also gave some 

insight into public opinion concerning mining. Following is a brief summary of the testimony: 37/

C. D. Harris, Special Assistant to the Attorney 

General of New Mexico, announced that the State 

would attempt to prove: (1) that the Lea County 

underground basin has reasonably ascertainable 

boundaries and comes within the purview of the State 

ground-water law, Section 77-1107 to 107, (2) that 

there is no unappropriated water in that basin, and 

(3) that the Luther Cooper permits would impair prior 

existing rights. J. O. Walton, attorney for Cooper, 

announced that he would attempt to prove: (1) that the 

State Engineer has no jurisdiction because the boundaries of the basin are not reasonably ascertainable, 

(2) that the basin cannot be administered on the basis 

of appropriation or of impairment of existing rights, 

and (3) that the State Engineer discriminated against 

Cooper in denying his application.

The Lea County ground-water basin. Practically 

all ground water pumped in Lea County comes from 

the Ogallala formation of Pliocene age. This formation is composed chiefly of stream-deposited sediments, including sand, silt, gravel, clay, and secondary caliche; it is unconsolidated or weakly consolidated and has a maximum thickness of 300 feet and an 

average thickness of about 175 feet. R. S. Cave aptly 

quoted an early geologist's description of the Ogallala 

as "homogeneous in its heterogeneity. " It was deposited upon an eroded surface having a relief of 

probably more than 50 feet and is generally underlain 

by Triassic red beds, although Cretaceous shales 

underlie the Ogallala in places. The Ogallala is the 

surficial formation in most of the High Plains in Lea 

County, but thin deposits of windblown or slope-wash 

material lie upon it in places. About 60 percent of 

Lea County, which includes some lands beyond the

35/ Arizona v. California, 283 U. S. 423 (1931).

36/ Application of Luther Cooper on appeal from 

State ^Engineer of New Mexico: Transcript of testimony, 

FiSJ6$ Judicial District Court, Lea County, N. Mex., 

Jan. 20-30, 1952.

37/ Evidence introduced during the hearing of the 

Luther Cooper appeal included a considerable amount 

of unpublished records, charts, and interpretive conclusions. The ground-water conditions in Lea County 

have been described in the following publications:

Nye, S. S., 1930, Shallow ground-water supplies 

in northern Lea County, N. Mex.: N. Mex. State 

Engineer's 9th Bienn. Rept., p. 363-387.

_____ 1932, Progress report on the groundwater supply of northern Lea County, N. Mex.: 

N. Mex. State Engineer's 10th Bienn. Rept., p. 229- 

2,51.

Theis, C. V., 1934, Progress report on the groundwater supply of Lea County, N. Mex.: N. Mex. State 

Engineer's llth Bienn. Rept., p. 127-153.

_____ 1938, Progress report on the ground-water 

supply of Lea County, N. Mex.: N. Mex. State Engineer's 12th, 13th Bienn. Repts., p. 121-134.

Conover, C. S., and Akin, P. D., 1942, Progress 

report on the ground-water supply of northern Lea 

County, N. Mex.: N. Mex. State Engineer's 14th, 15th 

Bienn. Repts., p. 285-309.
11

boundaries of the High Plains, is "scab land" unsuitable for agriculture.

Water in the Ogallala is unconf ined and apparently 

forms a continuous water table under most of the High 

Plains in Lea County, although a perched water table 

is recognized in the southern part of the county. The 

water table under natural conditions has a gradient of 

about 15 feet per mile to the east and southeast, except along the western edge of the plains. The rate of 

movement of water down this slope has been estimated 

to be about 1 foot per day. The water throughout the 

Ogallala is of good quality, but the small quantities of 

water in the underlying Triassic red beds are commonly saline.

It is generally agreed that the only possible source 

of recharge to this aquifer is precipitation upon the 

High Plains. The aquifer is cited as an outstanding 

example of an isolated aquifer and was so recognized 

by Judge Anderson. The amount of recharge in Lea 

County is estimated to average 25, 000 acre-feet a 

year, which is balanced by equivalent movement eastward from the county. State Exhibit S-15 indicates that 

recharge may be nil in perhaps 8 years out of 10; the 

25, 000-acre-foot average is maintained because several times that amount may be added to the reservoir 

in exceptional years like 1941 and, in lesser degree, 

1932 and 1946. There is, at least as yet, no prospect 

of increasing this recharge significantly by artificial 

means.

Pumpage from the Lea County basin was 15, 000 

acre-feet or less in each year prior to 1947; it increased to more than 25, 000 acre-feet in 1947 and 

then rose rapidly in the next 3 years, approaching 

120, 000 acre-feet in 1950 and 200, 000 acre-feet in 

1953. This pumping is practically all from storage 

and the natural discharge presumably has continued 

at an undiminished rate. The effects of pumping since 

1947 are shown by State Exhibit S-17 and are the basis 

for the finding of fact that the first appropriator will 

be adversely affected to some extent by each subsequent appropriation of water from the basin.

Problem of unappropriated water. One might well 

argue that there never has been any water available 

for appropriation in the High Plains of Lea County, 

because the natural discharge was not initially diminished, and has not yet been diminished, by pumping 

and therefore continues at a rate sufficient to balance 

the average recharge. All water pumped from this 

aquifer is taken from storage, the water in storage is 

a finite and diminishing quantity, and when it is gone 

"that is it. " Thus, none of the irrigation water rights 

in the basin are perennial rights as conceived under 

the appropriation doctrine. The basic problem is that 

the basin is on a mining economy and will continue to 

be so with only the rights heretofore granted; but 

existing New Mexico law (like that in other States 

adhering to the appropriation doctrine) recognizes no 

such economy and provides no guidance for the development of ground water in aquifers where storage 

volume is large but recharge is negligible.

This lack of guidance poses a tough practical 

problem for the administrative officer. In Lea County 

even the water developed before 1931 (the vested 

rights) should perhaps be classed as nonrenewable, 

although the quantity pumped under those rights is

small and the depletion in storage probably negligible. 

Until the end of 1947 the pumpage was less than the 

estimated average recharge, and the graphs of State 

Exhibit S-15 indicate that all the storage depletion 

resulting from pumping was more than offset by the 

recharge in 1941; even the recharge after 1946 appears to have restored the quantity withdrawn by 

pumps in the preceding 2 years.

The mining economy began in 1948. If the State 

Engineer had closed the basin when pumpage exceeded 

25, 000 acre-feet in 1947, it might have been argued 

that he was following the letter of the law, but he 

probably would not have been supported in this by 

either the public or the courts because he would not 

have had sufficient evidence of the effects of overdevelopment. By permitting the development to continue 

until the end of 1948, he obtained abundant proof of 

the effects of accelerated pumping upon the reservoir. 

Still, none of the holders of existing rights protested 

the Cooper applications, and Judge Anderson's memorandum opinion leans toward expansion rather than 

restriction of development.

Problem of reasonably ascertainable boundaries. 

A good deal of testimony was concerned with boundaries, both lateral and in depth, and it is a question 

whether the lawyers did better at confusing the scientists, or vice versa. The gist of it all was that some 

of the declared boundaries are based on economic 

pumping lifts that are no longer valid; some boundaries 

are indefinite because the aquifer is not accurately 

mapped, but those boundaries could be defined if funds 

and time were provided for geologic and geophysical 

studies, including test drilling; other boundaries could 

be set up, based on variations in hydrologic characteristics of the aquifer, but additional scientific investigation would be required before such boundaries 

could be drawn on any firm basis.

Boundaries are necessarily of great concern in administering renewable water resources under the 

appropriation doctrine, particularly if it is desired 

to achieve a balance between average recharge and 

discharge in a hydrologic unit. On the principle of 

"unity of the basin, " it is desirable to include all lands 

where wells may affect this balance and exclude unrelated areas so that owners of those lands are not subjected to unnecessary restriction.

The eastward movement of water in the High Plains 

in New Mexico and on into Texas is recognized by all. 

Much testimony was devoted to this movement of water, and it complicated the situation out of all proportion to its magnitude. Judge Anderson in his findings 

of fact mentions the differences in the basin that lead 

to differences in movement and follows this with a 

recommendation for further study in order to subdivide 

the basin into logical irrigation districts. Assuming 

an annual recharge of 25, 000 acre-feet, on the average, 

less than 1 percent of the precipitation moves through 

the zone of aeration and into the reservoir. The water 

under 1 square mile of land probably would take 12 to 

15 years to move naturally into the next section. And 

the quantity that gets away from New Mexico into Texas 

each year, like the recharge, is negligible compared 

to the total that is left in New Mexico storage. On all 

counts the movement of water is of very small stature 

in comparison with the storage of water. If this movement were ignored entirely in administration of the
12

basin, it would be possible to forego the expensive detailed studies of variations in permeability in the 

aquifer that would be required for subdividing the basin 

on the basis of differences in rates of underground 

flow.

Problem of impairment of existing rights. The 

chief impairment of existing rights appears to be the 

fact that under the mining economy now extant they 

are not perennial rights comparable to those that are 

characteristically earned under the appropriation doctrine. Actually they are extraction rights, properly 

measurable as a total volume of water rather than as a 

certain quantity to be pumped annually forever.

The degree of impairment of existing rights, or 

better, the mutual impairment of rights,can be gaged 

readily and progressively as extraction continues. 

State Exhibit S-17 shows, for instance, the effect of 

4 years of mining. In the several areas of heavy 

pumping, the pumps must be yielding less water (unless the original well and pump have been replaced by 

larger facilities) and lifting it farther than they did in 

1947. Additional wells in or near these areas of 

storage depletion would inevitably hasten the decline of 

water level and intensify the impairment of the existing 

rights. On the other hand, in most of the declared 

basin of Lea County, pumping so far has not produced 

a dent in the storage. The effects of pumping in the 

present developed areas will of course extend into 

larger areas in time, but slowly. Large quantities of 

water remain in storage in these unaffected areas, 

available for development, but this water cannot be 

extracted economically by pumping from existing wells, 

for some of it is 5 to 10 miles from those wells.

Problem of transfer of rights. Any decision to 

permit pumping and extraction of water in the currently undeveloped areas would require also a decision 

as to who should be permitted to pump this water. 

This poses the problem, when the basin is being developed by mining, of how to evaluate rights that were 

earlier assumed to be perennial. The problem is complicated by the likelihood that some of the earlier established rights might have been at least quasiperennial had it not been for the great increase in 

development beginning in 1947. The few records 

offered as exhibits suggest that the storage depletion 

resulting from all the pumping prior to 1941 may have 

been erased entirely by the recharge in that single 

year.

The State Engineer was questioned by Judge 

Anderson as to whether ultimate transfer of existing 

rights might be a conscious part of his method of denying or granting permits. The answer was negative. 

It is possible that a policy of denying new rights while 

transferring older rights would be subject to charges 

of discrimination, particularly if the transferred 

rights were acquired in 1948, for instance, when the 

basin had embarked definitely on a mining program.

Some minor legal problems. The New Mexico 

ground-water law evidently leaves an opening for extended debate as to how to classify ground water in 

each area of dispute. Attorney Walton wanted the 

State Engineer to "elect whether or not the waters in 

Lea County are an underground stream or channel or

artesian basin or a reservoir or a lake. ' Judge 

Anderson overruled this and ably disposed of the 

issue in his findings of fact by adopting a compound 

title. The wording of the law includes classifications 

both scientific and colloquial but all these classifications are likely to be immaterial to the main problems 

of ground-water development.

Attorney Harris argued that the burden of proof 

was upon Cooper to show that there is unappropriated 

water, but it had been determined at a pretrial conference that the State would assume the burden of 

proof and that procedure was followed. Ignoring the 

legal points involved, this appears to be a just procedure in any State that has assumed the burden of 

obtaining the technical data. Ground-water hydrology 

is so complex as to make it difficult for an individual 

to amass the evidence necessary to prove his point, 

and requiring him to do so might well be tantamount 

to shutting off any appeal from determinations of the 

administrative officer.

Aftermath of the hearing. The hearing indicated 

that pumping in Lea County since 1948 has been far in 

excess of the recharge and that the excess has come 

from storage; but on the other hand, large volumes of 

water remain in storage, and much of it cannot be 

extracted by existing wells, The memorandum 

opinion of the court, and the absence of protests from 

owners of existing wells, indicated that public opinion 

was not hostile to drilling of additional wells for mining of more water; no one seemed to favor a reduction 

in pumpage to bring it closer to the meager rate of 

recharge.

Accordingly, the State Engineer extended the 

boundaries of the declared basin to include the entire 

ground-water reservoir in the Ogallala formation in 

Lea County and set 40 years as a minimum period for 

depletion of the reservoir. Applications for new wells 

are now approved in townships where existing wells 

would not unwater the formation within that period, 

and encouragement is given to transfer of rights from 

areas of more concentrated pumpage into those relatively undeveloped townships. Thus the factor of area 

has become a criterion in appropriative water rights 

in Lea County, for new wells can be drilled only in the 

parts of the reservoir where the water could not be extracted by wells under prior permits.

Nevada

Nevada's statutes declare all water to be public 

property and subject to appropriation. Ground water 

is currently being mined in Las Vegas Valley, near 

the southern tip of the State. In recent years the draft 

on the Las Vegas artesian basin has ranged from 

35, 000 to 40, 000 acre-feet a year, which is estimated 

to be about 10, 000 acre-feet greater than the average 

annual replenishment. 38/ The water used nonconsumptively--in irrigation, and sewerage in the vicinity of 

the city of Las Vegas--enters a shallow ground-water 

reservoir, from which evapotranspiration is estimated 

to average about 8, 000 acre-feet a year.

38/Robinson, T. W., personal communication.
13

Artesian pressures in representative wells have 

been declining steadily since 1925. 39/ The rate of 

decline averaged about li feet a year since 1941. Since 

1949 the State Engineer has prohibited the drilling of 

new irrigation wells in a 42-square-mile area which 

includes Las Vegas and about 90 percent of the area 

of ground-water development.

Las Vegas, with its increasing number of people, 

evaporative coolers, and swimming pools, is understandably concerned over the limitations imposed by 

nature on its water supply. Furthermore, its efforts 

at conservation have been affected by a State law which 

prohibits metering of water by municipalities having a 

population of more than 4, 500.

Fortunately, another source of water is available to 

Las Vegas Valley: Lake Mead on the Colorado River 

is only 25 miles from Las Vegas, and the State of 

Nevada has been allocated 300, 000 acre-feet of water 

from this source. Currently the Henderson industrial 

area in the southeastern part of the valley is using 

about 13, 000 acre-feet of water from Lake Mead. In 

September 1953 Las Vegans voted overwhelmingly in 

favor of extending the existing pipeline which can provide as much as 15, 000 acre-feet of additional water 

to the city. As in the Raymond Basin of California, 

the overdraft on ground water in Las Vegas Valley can 

undoubtedly be eliminated when ample water is available from this new source.

Utah

Utah, like Nevada, has declared all water within 

the State to be public property and subject to appropriation. Several of the problems of control to prevent 

ground-water mining are epitomized in the histories of 

Cedar City Valley and Escalante Valley, in the southwestern part of the State.

Cedar City Valley. The ground water in Cedar City 

Valley was considered to be fully appropriated at the 

time the Utah ground-water law was passed in March 

1935, and the State Engineer approved no additional 

development pending investigation. In 1940, after investigation, he concluded that all ground water was 

appropriated in a designated area that includes practically all of the irrigation wells in Cedar City Valley, 

and this area has been closed to additional development except for domestic and stock wells. 40/ The 

small streams tributary to Cedar City Valley have 

been fully appropriated for many years.

The ground-water reservoir in the closed area is 

recharged chiefly by Coal Creek, which drains water 

from precipitation upon the Kolob Plateau. Many of 

the wells are used to supplement stream supplies for 

irrigation, and the annual pumpage in the closed area 

varies with runoff. Thus in 1951, when Coal Creek 

runoff totalled 9,100 acre-feet, about 17, 800 acre-feet 

was pumped from wells; but in the following year when

3£/ Maxey, G. B., and Jameson, C. H., 1948, 

Geology and water resources of Las Vegas, Pahrump, 

and Indian Springs Valleys, Nev.: Nev. State Engineer's 

Water Res. Bull. 5, 121 p.

40/ Thomas, H. E., Nelson, W. B., Lofgren, 

B. E., and Butler, R. G., 1952, Status of development of selected ground-water basins in Utah: Utah 

State Engineer Tech. Pub. 7, p. 22-34.

runoff exceeded 40, 000 acre-feet, the pumpage dropped 

to 11, 500 acre-feet. The water levels in wells also 

reflect the trends in precipitation and runoff: declines 

in dry years are attributed both to decreased recharge 

and increased pumpage, and conversely water levels 

commonly rise in wet years. Studies indicate 41/ that 

irrigation season runoff from Coal Creek must be 

10, 000 acre-feet greater than pumpage in order to prevent depletion of ground-water storage. In 1946 and 

again in 1951, the runoff was less than 10, 000 acrefeet, and water levels in wells would have declined 

even if all pumping had been prohibited in the closed 

area.

Recent trends in water levels in the closed area 

have been downward. By the end of 1951 they reached 

record lows, dropping more than 3 feet lower than in 

the preceding year, and lower than at the end of the 

1933-36 drought. Although water levels in representative wells rose several feet in 1952, they declined to 

new lows during 1953. Unquestionably drought conditions have been an important factor in this decline: 

Since 1942 precipitation at Cedar City has been less 

than the 1906-51 normal in every year except 1947, 

and runoff was below the 1934-51 average except in 

1944, 1947, 1949, and 1952. Although the declining 

water-level trends in the past decade indicate depletion of storage, there is still uncertainty as to whether 

present development and use exceed the average replenishment to the closed area.

Escalante Valley. Pumpage from wells in Escalante Valley increased from less than 20, 000 acre-feet 

in years prior to 1945 to about 80, 000 acre-feet 

annually in 1950-53. The most spectacular increase-- 

from 2, 600 acre-feet in 1940 to 5, 800 in 1945 to 51, 000 

acre-feet in 1950--occurred in the Beryl-Enterprise 

district in the southern part of the valley. Currently 

about 16, 000 acres is irrigated from wells in this 

district.

White's studies in 1927 42/ indicated that the average annual ground-water replenishment in the BerylEnterprise district was probably less than 10, 000 acrefeet. The district and its tributary drainage basin 

were therefore closed to further appropriation of water (except for domestic and stock-watering purposes) 

by proclamation of the Governor of Utah in April 1946. 

However, the drilling of wells under applications approved prior to that date has continued to the present. 

In 1953, 179 irrigation wells were operating in the 

district, compared with 163 in 1950 and only 37 in 1945.

It is evident that ground water is being mined in 

the district, for water levels in most wells have declined progressively since 1945, and the rate of decline is greater in areas where wells are most concentrated, and greater also in years of increased 

pumpage.

However, as stated by Lofgren, 43/

41/ Thomas, H. E.,,and others, op. cit., p. 29-33.

42/ White, W. N., 1932, A method of estimating 

ground-water supplies based on discharge by plants 

and evaporation from soil: U. S. Geol. Survey WaterSupply Paper 659, p. 1-105.

43/Thomas, H. E.,and others, op. cit., p. 47.
14

There is no likelihood of early or 

sudden exhaustion of the ground-water 

reservoir unless the rate of pumping is 

increased markedly above that in 1950. 

The quantity of water in that reservoir is 

not yet known, but present information 

shows that there is probably at least 

several million acre-feet, and each million acre-feet would be enough for about 

2 decades of pumping at 1950 rates. 

Further, the water table in the pumping 

district is declining at a rate of less than 

2 feet a year, so that the energy requirement for lifting the water is increasing 

only rather slowly. If the reservoir extends to sufficient depth, the economic 

factor of pumping cost, rather than the 

hydrologic factor of reservoir exhaustion, 

may set the date for reduction or cessation of pumping. ...

Mining of ground water from areas 

remote from the areas of natural discharge is one method, and perhaps the 

most feasible method, of making the maximum beneficial use of the water resources 

while salvaging as much of the water now 

lost by natural discharge as may be practicable. It has been stated that pumping 

to date has probably not made any material reduction in evapotranspiration because the water table has not been lowered 

where it is closest to the surface, and has 

been lowered less than 3 feet where it was 

once within 12 feet of the surface. But in 

comparison with the effects of pumping in 

many areas in certain other states, the 

water table has not yet been lowered 

very much ih any part of the district.

Since 1950 the annual pumpage has been about 

10 percent less than it was in that year. This reduction probably reflects economic factors other than the 

cost of pumping, for pumping lifts are increasing only 

slightly each year. Similarly in the future it is likely 

that the rate of mining will be determined by the overall cost of production in relation to value and marketability of produce.

Arizona

Arizona has long held the water of streams, springs, 

and defined underground channels to be subject to 

appropriation. Hence, the Supreme Court decision in 

the case of Bristor v. Cheatham, 44/ declaring landownership to be the exclusive basis for rights to "percolating" water, created some furor when it was 

announced in March 1953. Undoubtedly the protection 

of appropriative rights in springs and streams will 

provide some complex problems in places where those 

sources are dependent partly upon "percolating" water, 

if the landowners develop the "percolating" water at 

will; but such a situation is inevitable wherever mankind undertakes to apportion water without deference 

to the hydrologic cycle.

The Court suggested that the only recourse of the 

State in regulation of ground-water development and

44/ Bristor v. Cheatham, not yet reported.

use might be to exercise its police power for the 

general welfare. Such power has been exercised for 

regulation of ground-water development by many 

States, chiefly in the humid regions, chiefly in areas 

of local overdraft, and chiefly to prevent further 

overdraft. Overall reduction in draft by legislative 

action or court order is practically unheard of, unless 

there is an alternate source of supply to meet the 

built-up demand, as in the Raymond Basin in California.

Many of Arizona's ground-water reservoirs are 

being mined, as is shown by progressive decline of 

water levels in wells. 45/ The water users in some 

of these areas can see no feasible alternative supply, 

either now to reduce the current ground-water draft, 

or ultimately to meet the demand when the ground 

water reservoir is emptied. In other areas there is 

hope for diversions from the Colorado, which however would be at considerable expense and would have 

to be in accordance with the terms of a settlement of 

the Arizona-California dispute, not yet in sight.

Wherever there is no alternate source of water 

supply, the mining of ground water is likely to continue. The prospects for these areas are thus similar to those of Lea County, N. Mex. Several groundwater reservoirs in Arizona have an advantage over 

Lea County in that they receive appreciable recharge 

each year and are therefore capable of a larger yield 

perennially. Insofar as mining is concerned, however, 

measurements of the total water in storage and the 

quantity mined each year are enough to show by simple 

calculation how long the stored water will last. Of 

course, some parts of the reservoir will be drained 

earlier than others, unless measures are taken as in 

Lea County to distribute the depletion proportionately 

throughout the reservoir. Inasmuch as "percolating" 

water is declared to be private property in Arizona, 

the water rights will be determined by landownership, 

rather than by priority of use as in New Mexico. 

Economics adjusts for this difference, however, for 

a water right increases the value of land whether the 

right comes from an underlying aquifer or from a 

pioneer ancestor.

Texas

Texas, like Arizona, recognizes "percolating" 

water as private property, and like Arizona has several areas in which ground water is being mined. The 

State Legislature in 1949 provided for the creation of 

underground water conservation districts and prescribed the powers, functions, and limitations of such 

districts. Three districts have subsequently been 

created, all in west Texas. These districts have the 

power to regulate the drilling, spacing, and production 

of wells yielding more than 100, 000 gallons per day. 

It is provided, however, 46/ that the "owner of the 

land, his heirs, assigns or lessees, shall not be 

denied a permit to drill a well on his land and produce

45/ Halpenny, L. C. and others, 1952, Ground 

water in the Gila River basin and adjacent areas in 

Arizona--a summary: U.S. Geol. Survey open-file 

report, 224 p.

46/Act of the regular session of the 51st Legislature of the State of Texas, 1949, H. B. 162, amending 

Chapter 25 of the Acts of the 39th Legislature, and 

adding section 3(c).
15

underground water therefrom subject to rules and 

regulations promulgated hereunder to prevent waste, 

as herein defined."

Underground Water Conservation District No. 1 

comprises the southern High Plains, or Llano Estacado, where the principal aquifer is the Ogallala 

formation, the same as in Lea County, N. Mex., and 

where water is being mined similarly, but on a 

grander scale. As summarized by Gaum: 47/

Throughout the Llano Estacado, 

pumping so far exceeds any quantity replaceable by natural recharge that obviously most of the water is pumped from 

storage. On the assumption that the total 

water stored in the Ogallala formation is 

about 400 million acre-feet, this total supply would be enough for almost two centuries of pumping at the [then current] rate 

of 2 million acre-feet a year ....

The declining trends of water level in 

the past suggest the means for most effective utilization of the ground-water reserves under the Staked Plain a pattern 

for distribution of wells and for rates of 

pumping that will assure the most efficient extraction of the water, and at the 

same time best serve the needs of the 

lands, municipalities, and industries 

dependent upon that water. By optimum 

spacing of wells, interference between 

them can be held within bounds so as to 

minimize pumping lifts and pumping costs. 

Effectuating any such program will be complicated because two States are involved, 

Texas and New Mexico.

The preceding discussion assumes that 

"mining" may continue until the groundwater reservoir is emptied, even though 

that can be done only by lifting the water as 

much as 500 feet at some places. It is recognized that the cost' of pumping versus the 

value of resulting products is a controlling 

factor in the use of ground water; in many 

areas, cost would be the decisive factor. 

However, in the Llano Estacado there are 

two considerations that make predictions 

on this score inadvisable. First, there is 

no obvious alternate source @f water sufficient to supply the'present demand. Second, 

in parts of the irrigated area, at least, oil 

and gas reserves which are close at hand 

provide sources of power so cheap that the 

cost standards of other regions may not 

apply.

47/ Gaum, C. H., 1953, High Plains, or Llano 

Estacado, Texas-New Mexico, in Subsurface facilities 

of water management and patterns of supply type area 

studies: The Physical and Economic Foundation of 

Natural Resources, [part] IV, Interior and Insular 

Affairs Committee, House of Representatives, U. S. 

Congress, p. 103-104.

TENTATIVE CONCLUSIONS

If one may venture a conclusion on the basis of the 

very limited observations above, it is that a cure for 

ground-water mining does not necessarily depend 

upon the water-rights doctrine that is accepted in the 

area. Overdraft can be eliminated if water is available from another source to replace some of the water 

now taken from the affected aquifer, or to recharge 

that aquifer artificially; the "new" water may come 

from streams or lakes, or from another aquifer, or 

even from another part of the same aquifer. If there 

is no alternate source of "supply, public opinion so far 

seems to favor letting nature take its course now and 

deny water users their "rights" as the mined reservoir is exhausted, rather than curbing the withdrawals 

at an earlier date.

The States where mining of ground water is greatest are accepting the practice. In Arizona the only 

denial may be the eventual natural exhaustion; in Texas 

and New Mexico the development seems likely to-be 

regulated to the extent of encouraging maximum extraction by .spacing of wells. The appropriative rights 

in mined areas of New Mexico have ceased to be perennial rights; for they, like landownership rights in 

other States, are necessarily limited to the quantity 

of water underlying the land.

The prevention of ground-water mining is far 

easier than is the cure in areas where mining is already under way, although it too is difficult enough, 

as indicated,in the history of the described areas in 

Utah and in other States and areas not mentioned above. 

In Western States committed to the appropriation doctrine, several ground-water reservoirs have been declared to be fully appropriated, and new developments 

are not permitted. There are several such areas in 

New Mexico and Utah.

In several States adhering to landownership doctrines of water rights, the police power has been invoked for regulation of ground-water development in 

designated areas. Indiana, New York, and Tennessee 

are examples; in the regulated areas in New Jersey, 

new wells may be licensed for a certain draft over a 

specified number of years. 48/ As stated by Barksdale, 49/

In New Jersey we are coming rather 

rapidly to a combination of appropriative 

and landownership bases for ground-water 

rights because of the increasing tendency 

of overdevelopment in substantial areas, 

which leads to an exercise of authority by 

the State, based pretty largely on prior 

appropriation. The power under which 

the State does this may very well be a 

police power, but the effect on water rights 

in the so-called protected areas is the 

same, or nearly the same, as if the doctrine of prior appropriation were the basic 

one.

48/ Critchlow, H. T., 1948, Policies and problems 

in controlling ground-water resources: Am. Water 

Works Assoc. Jour., v. 40, p. 775-781.

49/ Barksdale, H. C., 1953, personal communication.
16

A prerequisite to prevention of mining is effective 

regulation timely applied, and that in turn requires 

recognition of the shadow of approaching overdevelopment. An adequate knowledge of the hydrology of the 

reservoir, and of the development and use of water, 

is essential for such recognition.

By its creation of underground water conservation 

districts, Texas has given the power of regulation to 

the local groups who are primarily concerned with the 

use and conservation of their water supplies. The 

idea is not new, for several States permit the organization of local water districts: Ohio authorizes 

counties to establish, within themselves or in cooperation with other counties, districts for regulation and 

conservation of water; and in several Western States 

water conservation districts have been functioning for 

many years. The districts in Texas, however, are 

exceptional in that their boundaries are required to be 

"coterminous with an underground reservoir or subdivision thereof, " which wouiu make them coextensive 

with a hydrologic unit. They are also exceptional in 

the degree of responsibility delegated to them, for in 

most other States the major responsibilities in water 

administration remain at State level.