Water

Question 1

What are the three types of water?

Answer 1

Surface water; water in ground course; groundwater

Question 2

What is surface water?

Answer 2

Surface water – water that does not run in any well defined channel (rain from melting snow)

Question 3

What is the surface water rule for retaining surface water?

Answer 3

Rule of capture: doesn’t matter on whose land the rain or snow originally fell.

Question 4

Three rules for getting rid of surface water?

Answer 4

1. Common enemy rule: landowner can take steps to remove water; landowner can take steps to prevent water from coming on to proprety; some court have reasonable exception for artificial discharge.
2. Natural servitude (Texas): natural flow – an action is impermissbale if it would affect the natural flow of the water.
3. Reasonable use – factors: amount of harm, foreseeability purpose and motive, social utility, cost benefit, other possible solutions

Question 5

Two approaches to water in a water course?

Answer 5

(1) riparian rights system (2) prior appropriation system

Question 6

What is riparian land?

Answer 6

1. land that is
   a. adjacent (physically) to a watercourse, and
   b. in the same watershed as the watershed as the watercourse (drains into the same watercourse)

Question 7

What is the general idea of riparian land system?

Answer 7

Riparian landowners have rights to use the water, non riparian landowners have no rights to water use.

Question 8

What are the absolute rights of riparians?

Answer 8

(1) unlimited use of water if no effect on flow. (2) for domestic use, it can affect the flow.

Question 9

What are the correlative rights (non-domestic use) of riparians?

Answer 9

(1) Natural flow - use is permissible so long as it does not affect flow of lower riparians
(2) reasonable use (modern approach) - Factors = purpose, suitability, economic value, social value, harm to lower riparians, practicality of upper riparian avoiding harm,

Question 10

Under the prior appropriation system, rights to water are obtained in two ways?

Answer 10

(1) prior use - traditional approach

(2) permit from government - modern approach

Question 11

What are the two doctrines for riparian systems?

Answer 11

a. Colorado doctrine – abolish riparian rights

b. California doctrine (texas approach) – riparian rights coexist with prior appropriation rights

Question 12

What are the two approaches to changes in the size of riparian lands?

Answer 12

a. Source of title: cannot enlarge riparian land by purchasing adjoining tracts; once a parcel no longer borders watercourse, it becomes non-riparian
b. Unity of title – adjoining tracts under common ownership become riparian

Question 13

What is groundwater?

Answer 13

i. Percolating water: water that filters down from the surface from rains and snows; water that flows within a defined channel under the ground.

Question 14

What are the three rules for ownership of percolating groundwater?

Answer 14

a. Absolute ownership rule (common law (English) & Texas rule)
i. A landowner can withdraw unlimited amount he can capture, but cannot be malicious or wasteful . (outdated policy)
b. Reasonable Use (the American rule):
i. A landowner may use as much groundwater as is reasonable. Key factor is the replenishment rate – if cant replenish then it it probably unreasonable.
c. Prior appropriation: the first person to put to use the groundwater has rights superior to all others.