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<br />Gll:)") i <br /> <br />merchandising it prevent lIs return, is, hOw- <br />ever, reasonable it may appear to defendant <br />and its customers. unreasonable as to the <br />plaintiff and others whose lands are thus <br />clandestinely sapped... ,19 <br /> <br />Thus. in substance. the American Rule was very <br />similar to the English Rule. Under both rules <br />rights are acquired. by capture. The only signifi- <br />cant limit on the right 10 capture under the <br />American Rule is the requirement thaI extracted <br />water be used in conjunction with the overlying <br />land. Under the American Rule, then, ground- <br />water cannot be captured and transported away <br />from the overlying land. at least to the extent thaI <br />other overlying landowners are injured. <br />Generally, any consumptive use on the overlying <br />land by an overlying owner will be permitted <br />although discharge 011 the overlying land may be <br />limited or prohibited. Thus. the essence of the <br />American Rule is that overlying landowners are <br />free to use as much groundwater as they can <br />capture and use it as fast as they can capture it. <br />as long as the groundwater use is intimately <br />connected with the overlying land. <br />At the time the American Rule was developed, <br />the rule gave all landowners an equal right of <br />access to the aquifer and, by limiting transfer off <br />the land, gave significant protection to the store <br />of water in the aquifer. In the early part of the <br />twentieth century the most significant demands <br />on groundwater were for off-land consumption, <br />chiefly municipal use. By restricting such <br />transfers. aquifers were protected. The wide- <br />spread development of groundwater irrigation in <br />the West, however, eventually led to ground- <br />water mining in many American Rule juris- <br />dictions. Significantly, however, the American <br />Rule did not give landowners a right to an <br />apportionment 01 the water in the underlying <br />aquifer. As under the English Rule, landowners <br />were given only a right of access to the aquifer. <br />The science of hydrology had not yet progressed <br />to the point where apportionment of ground- <br />waters was viewed as a practical alternative. <br /> <br />Case Study <br /> <br />The Iimitationsol the American Rule are clearly <br />demonstrated by experience in Arizona which <br />recently abandoned the American Rule and <br />adopted a comprehensive. statutory system of <br />groundwater management Much of Arizona's <br />historic groundwater law evolved through litiga- <br />tion involving the City of Tucson. In Jarvis v. State <br />Land Department. (JarVIS J}20 irrigators sought to <br />enjoin the City of Tucson from extracting water <br />located beneath lands in a critical groundwater <br />area The water was to be transferred to the city <br /> <br />some 15 miles away. Critical area designation <br />was applied by the state when groundwater <br />basins were found to have an insufficient supply <br />of groundwater from continued irrigation at the <br />then current levels of withdrawal. Developing <br />new irrigation in critical areas was effectively <br />prohibited. In Jarvis /, the court granted the <br />requested injunction since the American Rule <br />precludes transfers ofl the overlying land if <br />others are injured by the transfer. The existence <br />of a critical area designation was held to be <br />sufficient evidence of injury toother landowners. <br /> <br /> <br />In subsequent litigation. the Arizona Supreme <br />Court was called upon to clarify the doctrine. In <br />Jarvis v. State Land Department. (Jarvis 111'11 <br />irrigators again sought to limit the groundwater <br />operations of Tucson. The court generally reiter- <br />ated its rule in Jarvis J that water could not be <br />transported off the overlying land but created a <br />limited exception to permit transfer to an airfield <br />located in the critical area. The court reasoned <br />that Tucson should not be prohibited from <br />supplying the airfield since the airfield itself <br />could legally withdraw water from the same basin <br />for domestic purposes by sinking its own weHs.ln <br />an attempt to ease the burden on Tucson to <br />supply its residents with water, the court created <br />a further equitable exception to the American <br />Rule by authorizing Tucson to acquire cultivated <br />lands. retire them from cultivation. and withdraw <br />an amount of water equal to the historic max. <br />imum use upon the lands so acquired. The with- <br />drawn water could then be transferred off the <br />overlying land_ In Jarvis v. State Land Depart- <br />ment (Jarvis 111,22 the court held that the historic <br />maximum usage referred to in Jarvis If was <br /> <br />3.5 <br />