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<br />" " 1 'j () r <br />lid LU("ll:' <br /> <br />Haruld E. Tht" <br /> <br />183 <br /> <br />privileges of landownership, and increasin~ emphasis on the landowner's <br />responsibility to the community and to society, <br />Reward in the form of property for individual effort also has a tradition <br />that goes back at least as far as the parable of the talents.' Some real <br />property rights have originated by grant from a benevolent or grateful <br />landowner, and others are recognized as having been earned in spite of the <br />landowner. <br /> <br />'>Vater Rig-his Based on Landownership <br /> <br />In the first half of the 19th century, when the landowner was truly a <br />land "lord," it may be taken for granted that he did as he pleased with <br />the water that was within the bounds of his "estate." This right as defined <br />for streams both in the United States::! and in England8 is stated in the <br />riparian doctrine: an owner of land along a stream Illay take as much as <br />he needs for "natural" uses, and he may divert all the water for any purpose <br />so long ;"IS he return., the ll:1tur:1! now-undiminished in fluantity and <br />unimpaired in quality-fO the ch~1I1llel so as to he available to others who <br />have a similar rjght, The correspondjng English doctrine for ground water4 <br />permitted a landowner to take wateT from wells on his land without <br />restriction, reg-ardless of the effect upon his neig-hbors. <br />During the past century the increasing population and increasing- use of <br />Wtlter per capita have scaled down these unlimited rights to ground water. <br />The American rule, first stated in 1862,G is that the landowner's use of water <br />must bear some reasonable relationship to the use of the overlying lanel, <br />and the doctrine of correlative rights, originated in 1903,6 requires not only <br />reasonable use but coequality of right and apportionment of water in time <br />of shortilgc. There havr. also hcen mOtlificatiolls of the riparian doctrine for <br />.'\urface water, as it was projected into areas of increasing demand and <br />decrca.sing supply. These restrictions do not alter the fundamental basis <br />of the right as appurtenant to the land and thus independent of actual <br />use or nonuse of the water. <br /> <br />'Vater Rig-hts Based on Water Use <br /> <br />Water rights based upon actual use of the water differ in many respects <br />from those based on l,mdownership. They commonly refer to a specific <br />qu:mtity or rate of flow 0.[ water. and they Tllay he lost by disllse. They are <br />independent of landownership, and Tllay origjnate by severance of the <br />water right from the land to which it had pertained. Among the commonly <br />recognized rights jn this group are those acquired by prescription, ap- <br />propriation, and license or pennit. <br />Prescriptive rights are acquired by continuous use of the water for a <br />specified period of time, adverse to the interest of the person in \\'hom the <br />right had been vested. The concept of mutually prescriptive rights was <br />developed in \949:' the court held that uses begun subsequent to the <br />beg-inning of overdraft upon a ground-water reservoir hecamc prescriptive <br /> <br />'Matthew 2.5: 14-30. <br />ZTyJer ,'. \\'ilkinsoll. 4 !\f~wtl 39i (1827). <br />~f,1a~on v. Hill. .Ij Ram. Arlo\. l. IJO En?,". Repl-illl 69~ (I~:n); Vyood v. \-V;"Iud, <br />o E,ch. (England) 748 (18'19). <br />'Acton v, Blundcll, 12 M. & W, 324 (18,j3), <br />5llasseti \'. Salishury J\.ff~. Co.. 43 N.H. !)1l9, 82 Am. Dee. 179 (l8fi2). <br />"Katz v, W,lkinshaw, 141 C,\if. 116, 74 P. 766 (1903), <br />'Pasadena v. Alhambra, 207 p, (2d) 17 (1949), <br />