2 Systems for determining water rights (streams, rivers, and lakes):
- Riparian doctrine: Water belongs to those who own the land bordering the watercourse.
- Riparians = share the right of reasonable use of the water. One riparian will be liable if his or her use unreasonably interferes with other’s use.
- Prior Appropriation doctrine: Water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner.
Rights determined by priority of beneficial use. Norm for allocation = first in time, first in right. Thus, a person can acquire the right to divert and use water from a watercourse merely by being the first to do so. Any productive or beneficial use of the water, including use for agriculture is sufficient to create the appropriation right.
- Surface owner entitled to make reasonable use of the groundwater. However, the use must not be wasteful.
Surface Waters: Those which come from rain, springs, or melting snow, and which have not yet reached a natural watercourse or basin.
- Common enemy rule: (b/c surface water is considered a nemesis) – a landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water. Many courts have modified the common enemy rule to prohibit unnecessary harm to others’ land.