Prior-appropriation water rights

Prior appropriation water rights is the legal doctrine that the first person to take a quantity of water from a water source for "beneficial use" (agricultural, industrial or household) has the right to continue to use that quantity of water for that purpose.

Subsequent users can take the remaining water for their own beneficial use if they do not impinge on the rights of previous users.

The doctrine developed in the Western United States and is different from riparian water rights, which are applied in the rest of the United States. Water is very scarce in the West and so must be allocated sparingly, based on the productivity of its use. The right is also allotted to those who are "first in time of use."

Origin of the doctrine

The appropriation doctrine originated in California around the time of the Gold Rush where miners were looking for ways to increase the amount of water available for mining operations. The 1855 California Supreme Court case of Irwin v. Phillips is what brought the water appropriation problems to light. Matthew Irwin diverted a stream for his mining operation. Shortly afterward, Robert Phillips started a mining operation downstream and eventually tried to divert the water back to its original streambed. The case was taken all the way to the California Supreme Court, which ruled in favor of the appropriation law.


"Each drop of rain falling through the sky has already been allocated to a user. Leave the hose running between rinses while you wash your car and you won't run afoul of the law; but if you gather a pailful of rainwater and pour on your tomato plant, look over your shoulder for a water cop. You will be preventing those raindrops from entering the watershed, depriving people downstream from the surrounding creeks and rivers of their rights to use their apportioned amounts of streamflow. The doctrine of prior appropriation comes crashing up against the imperative to conserve scarce water. Colorado made it legal for some homeowners to harvest rain and snow from their roofs. Tucson is encouraging its citizens to gather rainwater. Santa Fe made catchment devices mandatory for new dwellings. But, in Utah and Washington (with the exception of Seattle), harvesting raindrops is still a crime."[1]

The legal details vary from state to state; however, the general principle is that water rights are unconnected to land ownership, and can be sold or mortgaged like other property. These rights can be lost over time if non-use of the water source is demonstrated or if the water has not been used for a certain number of years.[2]

There are four essential elements: intent, diversion, beneficial use, and priority. The first person to use a quantity of water from a water source for a beneficial use has the right to continue to use that quantity of water for that purpose. Subsequent users can use the remaining water for their own beneficial purposes provided that they do not impinge on the rights of previous users; this is the priority element of the doctrine. In addition to this, a user may not change the intent in which he is appropriating water such that the change hinders the use by another.[2] These Preservation of Conditions were granted to the second user after Farmers High Line v. City of Golden (CO 1954).

Beneficial use is commonly defined as agricultural, industrial or household use. Ecological purposes, such as maintaining a natural body of water and the wildlife that depends on it, were not initially deemed as beneficial uses in some Western states but have been accepted in some jurisdictions. The extent to which private parties may own such rights varies among the states.[3]

Each water right has a yearly quantity and an appropriation date. Each year, the user with the earliest appropriation date (known as the "senior appropriator") may use up to their full allocation (provided the water source can supply it). Then the user with the next earliest appropriation date may use their full allocation and so on. In times of drought, users with junior appropriation dates might not receive their full allocation or even any water at all.

When a water right is sold, it retains its original appropriation date. Only the amount of water historically consumed can be transferred if a water right is sold. For example, if alfalfa is grown, using flood irrigation, the amount of the return flow may not be transferred, only the amount that would be necessary to irrigate the amount of alfalfa historically grown. If a water right is not used for a beneficial purpose for a period of time it may lapse under the doctrine of abandonment. Abandonment of a water right is rare, but occurred in Colorado in a case involving the South Fork of San Isabel Creek in Saguache County, Colorado.[4]

For water sources with many users, a government or quasi-government agency is usually charged with overseeing allocations. Allocations involving water sources that cross state borders or international borders can be quite contentious, and are generally governed by federal court rulings, interstate agreements and international treaties.

Even though water markets are increasingly gaining ground, many have criticized the prior appropriation system for failing to adequately adjust to society's evolving values. For example, the vast majority of water in the West still is allocated to agricultural uses despite the cries for additional water from growing cities. Additionally, the high demand for the allocation of water can cause an over-appropriation of the waters. This means that there are more water rights for that particular stream than there is water actually available.[5] For example, in Nevada, approximately 45 basins are over-appropriated.[6] Similarly, environmentalists and those who use rivers for recreational and/or scenic purposes have demanded that more water be left in rivers in streams. The prior appropriation system has in many ways inhibited these calls for change.[7]

Prior appropriation adoptions

Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, Wyoming all use the prior appropriation doctrine, with permitting and reporting as their regulatory system.[8]

California and Texas recognize a dual doctrine system that employs both riparian and prior appropriation rights. Oregon mainly uses the prior appropriation doctrine with some remnants of the riparian doctrine.[8] Landowners have rights to water on their own land at a certain time at which it is then incorporated into the appropriation system.[9]

In these cases, riparian rights take precedence, unless they are not claimed by a certain date or are not used within a certain number of years.[2]

Arizona adopted the prior appropriation doctrine such that a person could acquire this water right simply by applying it to beneficial use and posting an appropriation notice at the point of diversion. On June 12, 1919, they enacted the Public Water Code in which the person must apply for and obtain a permit for water use.[10]

The appropriation doctrine was adopted in Colorado in 1872 when the territorial court ruled in Yunker v. Nichols, 1 Colo. 552 (1872), that a non-riparian user who had previously applied part of the water from a stream to beneficial use had superior rights to the water with respect to a riparian owner who claimed a right to use of all the water at a later time. The question was not squarely presented again to the Colorado Court until 1882 when in the landmark case, Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882), the court explicitly adopted the appropriation doctrine and rejected the riparian doctrine, citing Colorado irrigation and mining practices and the nature of the climate. The decision in Coffin ruled that prior to adoption of the appropriation doctrine in the Colorado Constitution of 1876 that the riparian doctrine had never been the law in Colorado.[11][12] Within 20 years the appropriation doctrine, the so-called Colorado Doctrine, had been adopted, in whole or part, by most of the states in the Western United States that had an arid climate.[13]

New Mexico enacted its appropriate Surface-Water Code in 1907. Later, in 1931, New Mexico enacted the Underground Water Law that adapted the state's surface law to ground water.[14]

The prior-appropriation doctrine was adopted in 1973 in Montana under the 1973 Water Use Act. Later, they then passed the Montana Ground Water Assessment Act in 1991.[15]

In 1967, Texas passed the Water Rights Adjudication Act in regards to surface waters such that the allocation of these waters was under a unified permit system.[16]

Prior Appropriation Theory applied to other goods

Water is not the only public good that has been subject to prior appropriation. The same first in time, first in right theory has been used in the United States to encourage and give a legal framework for other commercial activities.

The early prospectors and miners in the California Gold Rush of 1849, and later gold and silver rushes in the western United States, applied appropriation theory to mineral deposits. The first one to discover and begin mining a deposit was acknowledged to have a legal right to mine. Because appropriation theory in mineral lands and water rights developed in the same time and place, it is likely that they influenced one another. This was seen in the California case Irwin v. Phillips, 5 Cal. 140 (1855) which decided a water rights dispute between two non-riparian miners on the basis of "first in time, first in right", a maxim drawn from equity.[17] As with water rights, mining rights could be forfeited by nonuse. The miners codes were later legalized by the federal government in 1866, and then in the Mining Law of 1872.

The Homestead Act of 1862 granted legal title to the first farmer to put public land into agricultural production. This first in time right to agricultural land may have been influenced by appropriation theory applied to mineral lands.

In recent years, there has been some discussion of limiting air pollution by granting rights to existing pollution sources. Then it has been argued, a free cap and trade market could develop in pollution rights. This would be prior appropriation theory applied to air pollution. Recent concern over carbon dioxide and global warming has led to an economic market in CO2 emissions, in which some companies wish to balance emissions increases by offsetting decreases in existing emissions sources. This is essentially acknowledging a prior appropriation right to existing CO2 emitters.

See also


  1. ^ Grace, S. Dam Nation, 2012, PP 224.
  2. ^ a b c [1]
  3. ^ "Western States Instream Flow Summary". National Science & Technology Center. Retrieved 2007-05-08.
  4. ^ San Luis Val. Land & Cattle Co. v. Hazard, 114 Colo. 233 (1945).
  5. ^ "Archived copy" (PDF). Archived from the original (PDF) on 2014-09-13. Retrieved 2014-12-12.CS1 maint: Archived copy as title (link)
  6. ^ [2]
  7. ^ Brigham Daniels, Emerging Commons Tragic Institutions | Environmental Law | Vol. 37 (2007), pp. 515-571
  8. ^ a b [3]
  9. ^ [4]
  10. ^ [5]
  11. ^ Ralph Henry Hess (December 1916). "The Colorado Water Right". Columbia Law Review. 16 (8): 649–664. doi:10.2307/1110121. JSTOR 1110119.
  12. ^ Vranesh, George (1987). Colorado Water Law, Volume 1. Boulder, Colorado: Vranesh Publications. pp. 62–63.
  13. ^ Vranesh, George (1987). Colorado Water Law, Volume 1. Boulder, Colorado: Vranesh Publications. pp. 63–64.
  14. ^ [6]
  15. ^ "Archived copy" (PDF). Archived from the original (PDF) on 2013-06-01. Retrieved 2014-12-12.CS1 maint: Archived copy as title (link)
  16. ^ [7]
  17. ^ Vranesh, George (1987). Colorado Water Law, Volume 1. Boulder, Colorado: Vranesh Publications. p. 62.

External links

Air rights

Air rights are the property interest in the "space" above the earth's surface. Generally speaking, owning, or renting, land or a building includes the right to use and develop the space above the land without interference by others.

This legal concept is encoded in the Latin phrase Cuius est solum, eius est usque ad coelum et ad inferos ("Whoever owns the soil, it is theirs up to Heaven and down to Hell."), which appears in medieval Roman law and is credited to 13th-century glossator Accursius; it was notably popularized in common law in Commentaries on the Laws of England (1766) by William Blackstone; see origins of phrase for details.

Crown land

Crown land (sometimes spelled crownland), also known as royal domain or demesne, is a territorial area belonging to the monarch, who personifies the Crown. It is the equivalent of an entailed estate and passes with the monarchy, being inseparable from it. Today, in Commonwealth realms such as Canada and Australia, crown land is considered public land and is apart from the monarch's private estate.

In Britain, the hereditary revenues of Crown lands provided income for the monarch until the start of the reign of George III, when the profits from the Crown Estate were surrendered to the Parliament of Great Britain in return for a fixed civil list payment. The monarch retains the income from the Duchy of Lancaster.


An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". It is similar to real covenants and equitable servitudes; in the United States, the Restatement (Third) of Property takes steps to merge these concepts as servitudes.Easements are helpful for providing pathways across two or more pieces of property, allowing individuals to access other properties or a resource, for example to fish in a privately owned pond or to have access to a public beach. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions.

The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts would enforce only four types of easement:

Right-of-way (easements of way)

Easements of support (pertaining to excavations)

Easements of "light and air"

Rights pertaining to artificial waterwaysModern courts recognize more varieties of easements, but these original categories still form the foundation of easement law.

Freedom to roam

The freedom to roam, or "everyman's right", is the general public's right to access certain public or privately owned land, lakes, and rivers for recreation and exercise. The right is sometimes called the right of public access to the wilderness or the "right to roam".

In Scotland, the Nordic countries of Finland, Iceland, Norway and Sweden, the Baltic countries of Estonia, Latvia and Lithuania and the Central European countries of Austria, Czech Republic and Switzerland, the freedom to roam takes the form of general public rights which are sometimes codified in law. The access is ancient in parts of Northern Europe and has been regarded as sufficiently basic that it was not formalised in law until modern times. However, the right usually does not include any substantial economic exploitation, such as hunting or logging, or disruptive activities, such as making fires and driving offroad vehicles.

In England and Wales public access rights apply only to certain categories of mainly uncultivated land.

Little Blackfoot River

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Marsha Looper

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Solar access

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Solar access is differentiated from solar rights or solar easement, which is specifically meant for direct sunlight for solar energy systems, whereas solar access is a right to sunlight upon certain building façades regardless of the presence of active or passive solar energy systems.

Sustainable Water and Innovative Irrigation Management

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Tenmile Creek (Lewis and Clark County, Montana)

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Title (property)

In property law, a title is a bundle of rights in a piece of property in which a party may own either a legal interest or equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document, such as a deed, that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, possession and title may each be transferred independently of the other. For real property, land registration and recording provide public notice of ownership information.

In United States law, typically evidence of title is established through title reports written up by title insurance companies, which show the history of title (property abstract and chain of title) as determined by the recorded public record deeds; the title report will also show applicable encumbrances such as easements, liens, or covenants. In exchange for insurance premiums, the title insurance company conducts a title search through public records and provides assurance of good title, reimbursing the insured if a dispute over the title arises. In the case of vehicle ownership, a simple vehicle title document may be issued by a governmental agency.

The main rights in the title bundle are usually:

Exclusive possession

Exclusive use and enclosure


Conveyance, including by bequest

Access easement


PartitionThe rights in real property may be separated further, examples including:

Water rights, including riparian rights and runoff rights

In some U.S. states, water rights are completely separate from land—see prior appropriation water rights

Mineral rights

Easement to neighboring property, for utility lines, etc.

Tenancy or tenure in improvements

Timber rights

Farming rights

Grazing rights

Hunting rights

Air rights

Development rights to erect improvements under various restrictions

Appearance rights, often subjected to local zoning ordinances and deed restrictionsPossession is the actual holding of a thing, whether or not one has any right to do so. The right of possession is the legitimacy of possession (with or without actual possession), the evidence for which is such that the law will uphold it unless a better claim is proven. The right of property is that right which, if all relevant facts were known (and allowed), would defeat all other claims. Each of these may be in a different person.

For example, suppose A steals from B, what B had previously bought in good faith from C, which C had earlier stolen from D, which had been an heirloom of D's family for generations, but had originally been stolen centuries earlier (though this fact is now forgotten by all) from E. Here A has the possession, B has an apparent right of possession (as evidenced by the purchase), D has the absolute right of possession (being the best claim that can be proven), and the heirs of E, if they knew it, have the right of property, which they cannot prove. Good title consists in uniting these three (possession, right of possession, and right of property) in the same person(s).

The extinguishing of ancient, forgotten, or unasserted claims, such as E's in the example above, was the original purpose of statutes of limitations. Otherwise, title to property would always be uncertain.

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Water in Colorado

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Water right

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Water trading

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In the United States, water trading takes on several forms that differ from project to project, and are dependent upon the history, geography, and other factors of the area. Water law in many western U.S. states is based in the doctrine of "prior appropriation," or "first in time, first in use." Economists argue that this has created inefficiency in the way water is allocated, especially as urban populations increase and in times of drought. Water markets are promoted as a way to correct these inefficiencies.

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Wyoming v. Colorado

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