Question

Real Estate Law

Henry owns a farm adjoining Black River and withdraws water from the river for domestic purposes. Deep Pockets, Inc. (DP), a manufacturing company, owns real estate downstream from Henry and uses all of the water from Black River for manufacturing purposes. DP began using the water before Henry purchased the farm. Recently DP purchased real estate upstream from Henry and transports all of the Black River water from that real estate to a new plant twenty miles away. As a result, Henry has no water and he sues to stop DP from interfering with his water rights. If Henry lives in a riparian rights state, will he win? Why?


In the above question, will your result change if the property lies in a prior appropriation state? If so, how and why?

Answer 1

Henry will win in a riparian rights state. If the state follows the natural flow theory, Henry will win because DP has materially changed the flow of the water for an artificial purpose. If the state follows the reasonable use theory, Henry will probably win because his use of the water for domestic purposes is favored and because the company is using the water on non-riparian land.

Yes, the answer will change. Since as per the Prior appropriation water rights, this legal theory for allocating water generally means that "the first person to put the water to a beneficial (productive) use has the best legal right to continue to use the water." Those who put water to beneficial use at a later time have a subordinate water right and generally will have to not use water if there is not enough water to meet everyone's needs. Therefore, in this case, DP the manufacturing company which has been using the water before even Henry purchased the farm would be entitled to the water rights.