Water Law Exam -Solved

Axline - ANSWER-(Riparianism - defining property) P not riparian b/c property bounded by shore of a lake, not lake itself (state owned shore lands) City of Orange Beach - ANSWER-(Riparianism - defining property) when public road separates water's edge from inland property, whoever owns (in fee) riparian lands that abut the water has riparian rights Alderson v. Fatlan - ANSWER-(Riparianism - artificial waterways) Artificial becomes natural rule; 3 factors: 1) temporary or permanent; 2) circumstances under which it was created; 3) mode in which it's been used or enjoyed Little v. Kin - ANSWER-(Riparianism - conveyance) Riparians can grant easements to non-riparian grantee; grantee can engage in activity as long as it's within scope of easement and doesn't unreasonably interfere w/riparian use and enjoyment. Have to look at intent. Problem = 3rd party (riparians) externalities. Keys v. Romley - ANSWER-(Riparianism - diffuse flow) Ice rink case. If water flows naturally down, civil law applies (servitude of natural drainage). But D has to act reasonably; failure to use care may -- liability. RAE: If P makes things worse, should be joint causation. Merritt - ANSWER-(Riparianism - reasonable use) Riparian has enforceable right to be free from unreasonable interference with natural flow of water past mill Harris v. Brooks - ANSWER-(Riparianism - reasonable use) P's boating/fishing business hurt b/c D pumped water from lake for irrigation. Reasonable use theory controls if conflict b/t reasonable use and uniform flow. No reason to keep water at natural level when can be beneficially used w/o causing unreasonable harm. Red River Roller Mills v. Wright - ANSWER-(Riparianism - reasonable use factors) D's upstream sawmill dumping shit in river that clogs P's downstream mill. Use not reasonable b/c only reason it's necessary is b/c he put mill in wrong place. RAE: should have used SL, not antecedent negligence. If loss substantial, enjoin. If gains at top losses at bottom, have bottom guy mitigate (internalize externalities). Ripka v. Wansing - ANSWER-(Riparianism) RST 2d of Torts. P cattle rancher sued to stop D from pumping river for irrigation. Irrigation = reasonable use + no evidence of harm, so D is ok. Adams v. Greenwich Water Co. - ANSWER-(Riparianism - public water supplies) Rich people in CT upset about water going to NY. No evidence pumping was hurting Ps; court says proper use of eminent domain even tho also benefits NY. Injunction not appropriate, but if permanent taking Ps should be compensated. Borsellino v. Wisconsin DNR - ANSWER-(Riparianism - right to wharf out) Italians. DNR granted permit for upland owner to build pier; P sued, saying exceeded reasonable use. Court upheld DNR b/c permit was conditioned on compliance w/local ordinances and based on substantial evidence. 627 Smith St. Corp. v. Bureau of Waste Disposal of NYC - ANSWER-(Riparianism - right to access water) Gowanus Canal. Treatment plant's activity denied P's access to canal by damaging bulkhead, etc.; violated P's riparian right to maintain wharves/piers w/right of passage to and from them with convenience. Johnson v. Seifert - ANSWER-(Riparianism - right to use entire surface of waterbody) Riparian rights stem from shore ownership, not ownership of lakebed. Riparian abutting lake has right to make (reasonable) use of entire surface. Strom v. Sheldon - ANSWER-(Riparianism - accretion/avulsion) Whiskey Slough. Boundary remains middle of stream even though stream was shifted onto D's property, even though not technically accretion/reliction. RAE: should have been treated as torts case instead of messing with categories. Stop the Beach v. FL DEP - ANSWER-(Riparianism - accretion/avulsion) Ps opposed to beach restoration b/c it eliminated right to recieve accretions to property + to have contact of property w/water. No judicial taking. RAE: Should have been taking with in-kind compensation. Coffin v. Left Hand Ditch - ANSWER-(PA - Colorado Doctrine) Riparian Ds blew up PA P's dams to get water; PA sued b/c riparian D was using water when there wasn't enough for both. Court says riparian rights inapplicable in CO. California Oregon Power v. Beaver Portland Cement - ANSWER-(PA - fed law + legal history of PA) Homestead Act carries no CL right to water. If water isn't being used, others can use it -- beneficial use requirement. Pleasant Valley Canal Co. v. Borror - ANSWER-(PA - dual system - California doctrine) D riparian cattle ranchers sued by P for unreasonable and wasteful use of water. Court upheld D's riparian rights as against other appropriators as long as they were putting water to reasonable water. CA doctrine = unused riparian claims not cut off by PA, but those rights are limited to reasonable use. City of Marshall v. City of Uncertain - ANSWER-(PA - dual system - Oregon doctrine) History of water law in TX. Oregon doctrine recognizes all vested riparian claims (in which water presently applied to beneficial use), but after that new claims based on PA.