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nq/1'<l1 merchandising it prevent its return. is. how- ever, reasonable it may appear to defendant and its customers. unreasonable as to the plaintiff and others whose lands are thus clandestinely sapped., 1Q Thus. in substance.theAmerican Ru!ewasvery similar to the English Rule. Under both rules rights are acquired by capture. The only signifi- cant limit on the right to capture under the American Rule is the requirement that extracted water be used in conjunction with the overlying land. Under the American Rule, then. ground, water cannot be captured and transported away from the overlying land. at least to the extent that other overlying landowners are injured Generally, any consumptive use on the overlying land by an overlying owner will be permitted although discharge off the overlying land may be limited or prohibited Thus, the essence of the American Rule is that overlying landowners are free to use as much groundwater as they can capture and use It 25 fast as they can capture It, as long as the groundwater use is intimately connected with the overlying land At the time the American Rule was developed, the rule gave all landowners an equal right of access to the aquifer and. by limiting transfer 011 the land, gave significant protection to the store of water in the aquifer. In the early part of the twentieth century the most significant demands on groundwater were for off. land consumption. chiefly municipal use. By restricting such transfers, aquifers were protected. The wide- spread development of groundwater irrigation in the West. however, eventually led to ground- water mining in many American Rule juris- dictions. Significantly, however, the American Rule did not give landowners a right to an apportionment of the water in the underlying aquifer. As under the English Rule, landowners were given only a right of access to the aquder. The science of hydrology had not yet progressed to the point where apportionment of ground- waters was viewed as a practical alternative. Case Study The limitations of theAmerican Rule are clearly demonstrated by experience in Arizona which recently abandoned the American Rule and adOPted i'l comprehensive. statutory system of groundwater management Much of Arizona's historic groundwater law evolved through litiga- tion involving the City of Tucson. In Jarvis v. State Land Department. (Jarvis fJ20 irrigators sought to enjoin the City of Tucson from extracting water located beneath lands In a critical groundwater area. The water was to be transferred to the cIty some 15 miles away. Critical area designation was applied by the state when groundwater basins were found to have an insufficient supply of groundwater from continued Irrigation at the then current levels of withdrawal. Developing new irrigation in critical areas was effectively prohibited. In Jarvis f. the court granted the requested injunction since the American Rule precludes transfers of! the overlying land if others are injured by the transfer. The existencE' of a Cfllical area designation was held to be sufficient evidence of injury to other landowners. ~ r.~'~}:'~ }N-~"':.,~' ~ Ji~1l In subsequent litigation, the Arizona Supreme Court was called upon to clarify the doctrine. In JarvIS v. Statf> Land Department, (Jarvis /1)21 irrigators again soughl to limit the groundwater operations of Tucson. The court generally reiter- ated its rule In Jarvis I thaI water could not be transported off the overlying land but created a limited exception to permit transfer to an air1leld located in Ihe critical area. The court reasoned that Tucson should not be prohibited from supplying the airfield since the airfield itself could legally withdraw water from the same basin for domestic purposes by sinking its own wells. In an attempt to ease the burden on Tucson 10 supply Its residents with water, the court created a further equitable exception to the American Rule by authorizing Tucson to acquire cultivated lands, retire them from cultivation. and withdraw an amount of water equal to the historic max- imum use upon the lands so acquired. The with- drawn water could then be transferred off the overlying land. In Jarvis v. Stale Land Depart. ment (Jarvis linn the court held that the historic maximum usage referred to In Jarvis If was 3-5