WSP01080

• File Number: 8407.500
• Description: Platte River Basin - River Basin General Publications - Missouri River
• State: CO
• Basin: South Platte
• Water Division: 1
• Date: 6/1/1978
• Author: Missouri Basin Inter
• Title: Missouri River Basin Comprehensive Framework Study-revised Volume III-Law-policies-and Administration-Appendix
• Water Supply Pro - Doc Type: Report/Study

Natural Watercourses

In Willis v. City of Perry, 92 Iowa 297,60 N.w. 727
(1894), the Iowa Court enunciated the broad principles
of Iowa water rights under the common' law. A riparian
owner (one whose land abuts the stream) may use as
much of the water in a natural watercourse as is needed
for "natural" uses (use for domestic purposes, including
household uses, such as cleansing and washing, and sup-
plying an ordinary number of horses or stock with water)
even to using the entire flow. All other uses of water are
"artificial" and are always subordinate to natural uses.
Water may be used for "artificial" purposes provided
such use does not unreasonably affect the rights of other
riparian proprietors. Use of water for irrigation and the
distribution and sale of water by a municipality are
"artificial" uses under Iowa decisions. In determining
whether a particular use is reasonable, the Iowa Court
had enumerated several criteria: what the use is for; its
extent, duration, necessity, and its application; the nature
and size of the stream, and the several uses to which it is
put; the extent of the injury to one proprietor, and of
benefit to the other; climatic conditions; the uses and
customs of the neighborhood; convenience in doing busi-
ness, the indispensable public necessity of cities and
villages for drainage; and all other facts which may bear
upon the reasonableness of the use.

Ground Water

The Iowa Court has held that riparian righ ts attach to
underground streams which flow in well-defined channels
capable of being distinctly traced in the same manner as
surface watercourses, with necessary exceptions due to
the difficulty of returning water underground. Under-
ground water is presumed to be percolating water until it
is proved that the water is flowing in a definite channel.
Apparently the only judicially imposed restriction on the
landowners right to use percolating water is that he not
waste it if such diversion and waste injures another and
prevents the latter from devoting the water to a benefi-
cial use.

Access to Lakes and Streams

Private owners of land along navigable streams own
only to the ordinary high water mark, the State retaining
title to the bed and banks. The Court has defined the
ordinary high water mark as the limit of the bed which
the water occupies sufficiently long and continuously to
wrest it from vegetation and destroy its val ue for agri-
cultural purposes. The Iowa Court held that, for the pur-
pose of fixing title to stream beds and banks, streams or
portions thereof meandered in the original government

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survey are navigable streams. The owner of land fronting
on a navigable stream or lake has a right of access to the
navigable part of the stream or lake from the front of his
land subject to the paramount right of the state to con-
struct or to authorize the construction of im provements
in aid of navigation (Peck v. Olson Construction Co.,
216 Iowa 519, 245 N.w. 13\). The general public has no
right to cross private property in getting to a navigable
stream or lake.

Diversion Between Basins

No rule has been enunciated by the Iowa Court re-
garding the diversion of water out of the basin in which
it occurs. Logically, the diversion of water to another
basin might be considered an "artificial" use, pennissible
to the extent that it does not unreasonably affect the
rights of riparian owners but this has not been before the
Iowa Court.

Eminent Domain

State powers of eminent domain are set forth in the
Iowa Constitution, Article I, Section 18, as follows:
"Private property shall not be taken for public use
without just compensation first being made, or se-
cured to be made to the owner thereof, as soon as
the damages shall be assessed by a jury, who shall not
take into consideration any advantages that may re-
sult to said owner on account of the improvement for
which it is ta,ken."
Amendment of 1908
"The general assembly, however, may pass laws
permitting the owners of lands to construct drains,
ditches, and levees for agricultural, sanitary or mining
purposes across the lands of others, and provide for
the organization of drainage districts, vest the proper
authorities with power to construct and maintain
levees, drains and ditches and to keep in repair all
drains, ditches, and levees heretofore constructed
under the laws of the state, by special assessments
upon the property benefited thereby. The General
Assembly may provide by law for the condemnation
of such real estate as shall be necessary for the con-
struction and maintenance of such drains, ditches and
levees, and prescribe the method of making such
condemna tion."
The procedure to be followed in exercising the power
of eminent domain is set forth in detail in Chapter 472,
Iowa Code 1966.
The broad powers of the State to acquire property
through condemnation for purposes of water manage-
ment and development of related land resources have