<br />and to reasonable use of the flood plains. The
<br />Council may cooperate with and assist local units
<br />of government in the establishment of encroach-
<br />ment limits, flood plain regulations and zoning or-
<br />dinances relating to flood plain areas within their
<br />jurisdiction.
<br />Flood plain information studies are completed
<br />or underway for several areas of the State. Reports
<br />have been prepared and published by the U. S.
<br />Corps of Engineers for streams at Cedar Rapids,
<br />Davenport and Ames. A study of the Iowa River at
<br />Iowa City was made by the Resources Council in
<br />1960 and regulations based on the study and gov-
<br />erning use of the floodway and flood plains were
<br />adopted in 1962 by the City as part of its compre-
<br />hensive zoning ordinance (See Plate I, Iowa City
<br />Flood Plain Regulation). The ordinance permits
<br />only open-type uses in the flood way area and, in
<br />those flood plain areas not needed for conveyance,
<br />permits development consistent with the adjoining
<br />use district provided the area is filled to a specified
<br />elevation.
<br />
<br />Case Law
<br />
<br />Prior to the establishment of the Iowa water use per-
<br />mit system in 1957, the water law of the state was con-
<br />tained in decisions of the Iowa Supreme Court. The
<br />court has used the common law as the rule of decision in
<br />water resources cases. Although many provisions of the
<br />water rights law appear to have been drafted to preserve
<br />the common law, the effect of the water rights statute
<br />on the common law riparian doctrine has not been judi-
<br />cially established. Rules of law taken from leading court
<br />decisions rendered prior to enactment of the water rights
<br />law may therefore be useful in predicting the attitude of
<br />the Iowa court, particularly in those areas where the
<br />statute may be ambiguous or where the existence of a
<br />'vested right' to a particular use is asserted.
<br />The doctrine of riparian rights has always prevailed in
<br />Iowa, attaching to any natural watercourse, a term which
<br />has been defined very broadly by the Iowa Supreme
<br />Court. Where water naturally and habitually follows a
<br />certain general path, within reasonable limits as to wid th,
<br />the line of flow is a natural watercourse (Hinkle v. Avery,
<br />gg Iowa 47). It need not have a definite channel or
<br />
<br />banks, a swale may be a natural watercourse (Hunt v.
<br />Smith, 23.8 Iowa 543, 28 N.W. 2d 213; Stouder v.
<br />Dashner, 242 Iowa 1340, 49 N .W. 2d 859). It need not
<br />be entirely natural but may be aided by the hand of man,
<br />(Falcon v. Boyer, 157 Iowa 745, 142 N.W. 427) as by
<br />deepening or straightening in a swale or stream (Logsdon
<br />v. Anderson, 239 Iowa 585, 30 N.W. 2d 787). An artifi.
<br />cial ditch, as a drainage ditch, may become a natural
<br />watercourse by lapse of time (IO years) as between pri-
<br />
<br />18
<br />
<br />vate individuals on principles similar to the creation of
<br />an easement by prescription (Nixon v. Welch, 238 Iowa
<br />34, 24 N.W. 2d 476) but such rights may not be urged
<br />against the public (Droegmiller v. Olson, 241 Iowa 456,
<br />40 N.W. 2d 292).
<br />On many occasions, the Iowa court has recognized the
<br />right of a riparian owner to have the water in a stream
<br />flow by or through his property in its natural state sub-
<br />ject only to the equal right of other riparian owners to
<br />make reasonable use of the water (Harp v. Iowa Falls
<br />Electric Co., 196 Iowa 317, 191 N.W. 520; Watt v.
<br />Robbins, 160 Iowa 587, 142 N.W. 387; Gibson & KJop-
<br />penstein v. Fischer & Orton, 68 Iowa 29, 25 N.W. 914;
<br />Decorah Woolen Mill Co. v. Greer, 49 Iowa 490). In de-
<br />te.rmining whether a particular use is reasonable the Iowa
<br />court has enumerated several criteria - what the use is
<br />for; its extent, duration, necessity, and its application;
<br />the nature and size of the stream, and the several uses to
<br />which it is put; the extent of the injury to the one pro-
<br />prietor, and of the benefit to the other; climatic condi-
<br />tions; the uses and customs of the neighborhood; con-
<br />venience in doing business; and indispensable public ne-
<br />cessity of cities and villages for drainage, and all other
<br />facts which may bear upon the reasonableness of the llse
<br />(Gehlen Brothers v. Knorr, 101 Iowa 700, 70 N.W. 757).
<br />Generally, riparian rights accrue only to the smallest
<br />abutting tract held under one chain of title leading to the
<br />present owner. The Iowa court has stated that a riparian
<br />owner is one "whose land abuts upon a river" (Peck v.
<br />Olsen Construction Co., 216 Iowa 519,245 N.W. 131).
<br />Owners of land riparian to a navigable or meandered
<br />stream own only to the ordinary high water mark, the
<br />State retaining title to the bed and banks (Shortell v. Des
<br />Moines Electric Co., 186 Iowa 469,172 N.W. 649). The
<br />court has defined the ordinary high water mark as the
<br />limit of the bed which the water occupies sufficiently
<br />long and continuously to wrest it from vegetation and
<br />destroy its value for agricultural purposes (Merrill v. Bd.
<br />of Supvr's of Cerro Gordo County, 146 Iowa 325, 125
<br />N.W. 222: Solomon v. City of Sioux City, 243 Iowa 633,
<br />51 N.W. 2d 420; Wilcox v. Pinney. 250 Iowa 1378,98
<br />N.W. 2d 720).
<br />Although the Iowa court has experienced little diffi-.
<br />culty in enunciating and applying the classic riparian
<br />doctrines regarding uses of water which do not diminish
<br />supplies or impair quality, consumptive IJses of wa ter
<br />create more problems and doctrine concerning such uses
<br />is much less certain. The court has in such cases distin-
<br />quished between "natural" and "artitlcial" uses.
<br />Natural uses have been defined by the court as use for
<br />domestic purposes, including household uses, such as
<br />cleansing and washing, and supplying an ordinary num-
<br />ber of horses or stock with water. A riparian owner may
<br />take all of the water needed for these purposes even if
<br />al\ of the water in the stream is thereby consumed. All
<br />
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