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Kiowa K. Engwis Advanced Legal Research Project No. 1.

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Presentation on theme: "Kiowa K. Engwis Advanced Legal Research Project No. 1."— Presentation transcript:

1 Kiowa K. Engwis Advanced Legal Research Project No. 1

2 Hydrogen Oxygen = H 2 O

3 As a general proposition, property in water, and in the use and enjoyment of it, is as sacred as the right to the soil over which it flows, and controversies concerning water rights have been litigated in a myriad of cases, not only as between private persons and corporations, but also as between states, and as between states and the federal government. 78 Am Jur 2d WATERS § 1

4 In its natural state, water is ordinarily regarded as constituting a part of the land in or upon which it is found, and therefore as being in the nature of real rather than personal property. Water may be converted into personal property, however, by segregation from the natural stream or body. Water which is reduced to actual physical possession by being taken into vessels or storage receptacles, or by confinement in pipes or other artificial conduits, may be the subject of larceny. 78 Am Jur 2d WATERS § 1

5 Legal Encyclopedias American Law Reports Annotations Legal Periodicals Treatises Restatements

6 American Jurisprudence 78 Am. Jur. 2d. Waters 45 Am. Jur. 2d. Irrigation 25 Am. Jur. 2d. Drain & Drainage Districts 12 Am. Jur. 2d. Boundaries § 12 et seq. 45 Am. Jur. 2d. International Law § 63 et seq. 26 Am. Jur. 2d. Eminent Domain 50 Am. Jur. 2d. Levees and Flood Control 35 Am. Jur. 2d. Fish and Game

7 Corpus Jurus Secundum 93 CJS 291 Nature, Ownership, and Classification § 1 -2 93 CJS 307 Natural Watercourses § 3-8 93 CJS Subterranean &Waters § 190-235 93 CJS Natural Lakes and Ponds § 236-253 93 CJS 485 Surface Waters § 254-296 93 CJS 541 Artificial Watercourses, Conduits, Ponds & Other Works § 297-327

8 American Law Reports: Federal 146 ALR Fed. 387 Waters and Watercourses Construction and application of 7 USCA § 1926(b), prohibiting curtailment or condition of water or sewer service based on inclusion within municipal borders.

9 ALR 3d, ALR 4th and ALR 5th: State 10 ALR 4 th 447, Access 14 ALR 4 th 1028, Adjoining Landowners Property 36 ALR 4 th 843, Adverse Possession 49 ALR 5 th 769, Easement 78 ALR 4 th 817, Property Damage 6 ALR 4 th 1030, Recreation 93 ALR 3d 1193, Surface Waters Drainage

10 Legal Trac Adaptive management: how water law needs to change. Janet C. Neuman. Environmental Law Reporter Dec 2001 v31 i12 p11432-11437. Concurrency law: water as a land-use regulation. Adam Strachan. Journal of Land, Resources and Environmental Law Fall 2001 v21 i2 p435-460. An insatiable thirst: the impact of water law on sprawl in the West. (Urban Sprawl) Holly Jo Franz, Ramsey L. Kropf, Michael J. Pearce. Vranesh's Colorado Water Law, rev. ed. (Review) (book review) James Witwer. Water law: wilderness areas and federal reserved water rights; unlimited appropriation of unallocated water endorsed by Idaho court. (Potlatch v. United States) R. Clark Miller. Colorado Water Law. (Review)_(book review) Susan Klopman. University of Denver Water Law Review Spring 2000 v3 i2 p410-411.

11 Lexis Search – Law Reviews Copyright (c) 1999 University of Denver (Colorado Seminary) College of Law University of Denver Water Law Review, Fall, 1999, 3 U. Denv. Water L. Rev. 116, 1027 words, BOOK NOTE: David H. Getches, Water Law in a Nutshell, Anna Litaker. Copyright (c) 1987 Environmental Law Northwestern School of Law of Lewis & Clark College, WINTER, 1987, 17 Envtl. L. 325, 14785 words, NOTE: ROBINSON v. ARIYOSHI: A FEDERAL INTRUSION UPON STATE WATER LAW., By BRADFORD H. LAMB Copyright (c) 1994 Texas Wesleyan Law Review Texas Wesleyan Law Review, Spring, 1994, 1 Tex. Wesleyan L. Rev. 207, 10110 words, COMMENT: MAYBE OIL AND WATER SHOULD MIX - AT LEAST IN TEXAS LAW: AN ANALYSIS OF CURRENT PROBLEMS WITH TEXAS GROUND WATER LAW AND HOW ESTABLISHED OIL AND GAS LAW COULD PROVIDE APPROPRIATE SOLUTIONS, Robert A. McCleskey

12 Lexis Search – Law Reviews, contd. Copyright (c) 1996 Environmental Law Northwestern School of Law of Lewis & Clark College, Spring, 1996, 26 Envtl. L. 141, 10553 words, SYMPOSIUM: SEVEN MYTHS OF NORTHWEST WATER LAW AND ASSOCIATED STORIES, By Michael C. Blumm Copyright (c) 1983 College of William & Mary. William & Mary Law Review, Summer, 1983, 24 Wm and Mary L. Rev. 535, 4743 words, WATER RIGHTS SYMPOSIUM: ARTICLE: INTRODUCTION, A. DAN TARLOCK Copyright (c) 1997 University of Michigan Law School Michigan Journal of International Law, Fall, 1997, 19 Mich. J. Int'l L. 277, 13645 words, STUDENT NOTE: A RIGHT TO ICE?: THE APPLICATION OF INTERNATIONAL AND NATIONAL WATER LAWS TO THE ACQUISITION OF ICEBERG RIGHTS, Bryan S. Geon

13 Lexis Search – Bar Journals Copyright (c) 1998 State Bar of Nevada Nevada Lawyer, November, 1998, 6 Nevada Lawyer 18, FEATURE: FOCUS: WATER LAW: TREADING WATER LAW--A NEVADA WATER RIGHTS PRIMER, by Greg Walch, Esq. Copyright (c) 1996 by the Florida Bar The Florida Bar Journal, November, 1996, 70 Fla. Bar J. 77, COLUMN: ENVIRONMENTAL AND LAND USE LAW: WATER LAW IN TRANSITION: DEBATES THAT COULD SHAPE FLORIDA'S FUTURE, by Bram D.E. Canter and Sheri I. Holtz. Copyright (c) 2001 State Bar of Montana The Montana Lawyer, February, 2001, 26 Montana Lawyer 18, ARTICLE: HELENA HOSTS IMPORTANT WATER LAW CONFERENCE.. Copyright © 1999 by Hawaii State Association Hawaii Bar Journal, October, 1999, 3 Hawaii B.J. 13, ARTICLE: HSBA Convention: Centennial Convention Seminars: H20 and Y2K: Water Issues in Developing and Using Land in Hawaii.

14 Restatements RESTATEMENT OF THE LAW, THIRD, PROPERTY (SERVITUDES) Defines the subject matter of this Restatement. The servitudes covered by this Restatement are the private-law devices that create interests running with the land. Those devices are identified as easements, profits, and covenants running with the land, categories that are defined to include irrevocable licenses and equitable servitudes. Public-law doctrines and devices for regulating use of land and other natural resources, including the public-navigation servitude, zoning, and subdivision controls, and the riparian, prior appropriation, and ground-water-rights doctrines of water law, are not covered by this Restatement. Restatement of the Law, Property, § 117 § 117 Right of owner of Possessor Estate for Life That His Possession Be Not Disturbed The owner of a possessor estate for life has the same right that his possession be not disturbed as he would have if he were the owner of a possessory estate in fee simple absolute in the same land, except to the extent that the owner of a future interest in the same land has a privilege to interfere with such possession for the perfection, assertion or protection of the rights, powers or privileges of the owner of such future interest.

15 Restatements, contd. Restatement of the Law, Second, Torts This Chapter states the common law rules governing the beneficial use of streams, lakes, ground water and surface water. Although water use and consumption are governed almost entirely by statute in the western states and much water legislation has been enacted in the eastern, southern and mid-western states, the common law is basic to the legislation and in its absence is controlling. It is of increasing importance in those states that do not have regulatory statutes. Restatement of the Law, Second, Torts, § 858 (1) A proprietor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless (a) the withdrawal of ground water unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure, (b) the withdrawal of ground water exceeds the proprietor's reasonable share of the annual supply or total store of ground water, or (c) the withdrawal of the ground water has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to the use of its water. (2) The determination of liability under clauses (a), (b) and (c) of Subsection (1) is governed by the principles stated in §§ 850 to 857.

16 Restatements, contd. Restatement of the Law, Second, Torts, § 857 (1) Except as stated in Subsections (2), (3), and (4), a nonriparian is subject to liability for a use of the water of a watercourse or lake that interferes with the right of a riparian proprietor to use the water. (2) A nonriparian who holds a grant from one riparian proprietor of the grantor's right to the water of a watercourse or lake is subject to liability to another riparian proprietor for making an unreasonable use of the water that causes harm to the other riparian proprietor's reasonable use of water or to his land. (3) A nonriparian who is exercising a right created by governmental authority, permit or license to use public or private water is not subject to liability for making a use of a watercourse or lake that will interfere with or prevent the initiation of a subsequent use of water by a riparian proprietor. (4) A nonriparian who is exercising a public right is not subject to liability for making a use of public waters that causes harm by interfering with the use of the water by a riparian proprietor.

17 Restatements, contd. Restatement of the Law, Second, Torts, § 850 A riparian proprietor is subject to liability for making an unreasonable use of the water of a watercourse or lake that causes harm to another riparian proprietor's reasonable use of water or his land. Restatement of the Law, Second, Torts, § 850 The determination of the reasonableness of a use of water depends upon a consideration of the interests of the riparian proprietor making the use, of any riparian proprietor harmed by it and of society as a whole. Factors that affect the determination include the following: (a) The purpose of the use, (b) the suitability of the use to the watercourse or lake, (c) the economic value of the use, (d) the social value of the use, (e) the extent and amount of the harm it causes, (f) the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other, (g) the practicality of adjusting the quantity of water used by each proprietor, (h) the protection of existing values of water uses, land, investments and enterprises, and (i) the justice of requiring the user causing harm to bear the loss.

18 Treatises Water: A Natural History, Alice Outwater – GB 701.088.1996 Water Acquisition for the Mineral Development Institute, Rocky Mountain Mineral Law Foundation – KF646.A75W37.1978 Water and Agriculture in the Western US: Conservation, Reallocation, and Markets, edited by Gary D. Weatherford, 1982 – KF168.A75W36 Water and Arid Lands of the Western US, Mohamed T. El-Ashry & Diane C. Gibbons – HD1965.A17W364 Continental Water Marketing, Terry L. Anderson, editor – HD1964.A5 Water Boundaries, George M. Cole KF639.C65 1997

19 Water Rights/Determinations - State Regulated In Colorado – The Water Rights Determination Act of 1969 gave rise to the Colorado Division of Water Resources and the six-district Water Court system. Environmental Concerns – Federally Regulated All states must comply with the Clean Water Act and other applicable provisions pursuant to the United States Code. Growing Importance/Scarcity in the West As the supply of water decreases and demand increases, social policy will (and currently is) impact water rights determinations on every level. International Perspective Water Law does not apply only in the United States. Rivers and storage projects are shared across legal boundaries, thus countries must negotiate compacts for equitable sharing.

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