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Connecticut Water Law: Judicial Allocation of Water Resources Ronert I

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Connecticut Water Law: Judicial Allocation of Water Resources Ronert I University of Connecticut OpenCommons@UConn Special Reports Connecticut Institute of Water Resources January 1967 Connecticut Water Law: Judicial Allocation of Water Resources Ronert I. Reis University of Connecticut Follow this and additional works at: https://opencommons.uconn.edu/ctiwr_specreports Recommended Citation Reis, Ronert I., "Connecticut Water Law: Judicial Allocation of Water Resources" (1967). Special Reports. 3. https://opencommons.uconn.edu/ctiwr_specreports/3 Connecticut Water Law: Judicial Allocation of Water Resources ROBERT I. REIS INSTITUTE OF WATER RESOURCES THE UNIVERSITY OF CONNECTICUT STORRS, CONNECTICUT Connecticut Water Law: Judicial Allocation of Water Resources REPORT NO. 4 Connecticut Water Law: Judicial Allocation of Water Resources By ROBERT I. REIS ASSISTANT PROFESSOR OF LAW THE UNIVERSITY OF CONNECTICUT SCHOOL OF LAW The research on which this publication is based was sup- ported in part by funds provided by the United States Department of the Interior as authorized under the Water Resources Research Act of 1964, Public Law 88-379. COPYRIGHT © 1967 BY THE UNIVERSITY OF CONNECTICUT Any part or parts of this book may be utilized, quoted, or otherwise reproduced, so long as reference and credit is made to this source. FoREwoRD W TrrH the growth in population and industry and with in- creased water use per capita, the development and allocation of our water supplies has become a critical problem not only for Connecticut but also for the entire nation. The successful handling of this vital natural resource is con- tingent upon a thorough understanding of the many factors which influence it. Prominent among these is water law. In 1966, the distinguished attorney and teacher of law, Dr. Frank J. Trelease, Dean of the University of Wyoming College of Law, lectured in the seminar program of The University of Con- necticut Institute of Water Resources. In discussing legal contribu- tions to water resource development he stated, "The function of law is to regulate the relations between men or groups of men. In playing this role the law serves essentially a dual purpose. It pro- vides a mechanism, the lawsuit, for the solution of conflicts after they have arisen, and it furnishes a guide, the rule of law, for the ordering of future conduct." In this publication, through a study of court cases and decisions, Professor Reis has indeed prepared a guide to water law which will give historical perspective as well as serving as a base in planning for the future. Going back to the inception of recorded judicial opinions in Connecticut, he has reviewed and synthesized the more than two hundred decisions which have been made regarding the allocation of water use. Professor Reis has set forth the four distinct categories of water which the courts have developed: (1) surface waters flowing in a definite channel-public; (2) surface waters flowing in a definite channel-private; (3) ground water; and, (4) diffuse surface waters. While pointing out the arbitrariness of this classification system, he notes that it forms the basis for the discussion of legal rights in and to the use of water in Connecticut. Although restricted to Connecticut law, the principles and opinions which he has recorded will be a valuable guide to all individuals who are, or expect to be, active in planning, developing, and allocating water resources. In this thorough and comprehensive work, Professor Reis has rendered a high service to those concerned with water resources. The Institute of Water Resources is pleased and proud to have sponsored the study. September 8, 1967 WILLIAM C. KENNARD Director Institute of Water Resources PREFACE Tins STUDY is intended to satisfy a notable void in any recent work devoted to Connecticut Water Law. The need for such a work has been apparent for some time. The immediate cause of this study, however, was an interdisciplinary study of water resource allocation (under the auspices of the Institute of Water Resources, Storrs, Connecticut). Before the cooperative project could achieve its fuller objectives, a survey of Connecticut Water Law appeared necessary. The problems of water resource allocation are directly related to the growth of legal regulation of water resources. If the body of law attached to water resources is antiquated, archaic, and incapable of flexible adaptation for modern needs, then economic technological and hydrological principles toward maximizing water use cannot be realized. The lesson of this book is not only in what it says, but in what it does not say. A survey of Connecticut cases has proven that a complete and workable system of water rights law is remarkably lacking in this state. It is hoped that by this start-a survey of what the law s-further studies will be free to discuss what the law ought to be in order to maximize the use of water resources in this state, thereby ensuring the public well-being. August 17, 1967 R.I.R. ACKNOWLEDGEMENTS EVEN a work of relatively short length involves the talents and encouragement of many people. I would like to express my appreciation to Dr. William C. Kennard, director of the Institute of Water Resources, Storrs, Connecticut-without whose initiation, encouragement and continued cooperation this work could neither have been undertaken, nor completed. My colleagues on this project, Theodore H. Focht and Dr. Robert Leonard, have been most helpful to me during my research and preparation of manuscript for publication-to them I extend my gratitude. Mr. Edward Dolan and Mr. Juri Taalman (second year law students at The University of Connecticut School of Law) have been two of the most diligent research assistants one could hope for. Both gentlemen significantly lightened my burden in the editing and proofing stages of manuscript preparation. Mr. Dolan further prepared rough drafts from my research notes of parts three and four, which were truly creditable. My further appreciation may be extended to Mrs. Mildred Mobilia and Mrs. Adeline Krompegal for their work in typing the several drafts of the manuscript; and, to Mrs. Pat Sechrist for her typing of the final draft. Mrs. Carl Silber deserves special commendation for her many hours of diligent proof reading and perceptive comments. To E.S.R. and J.C.R. TABLE OF CONTENTS INTRODUCTION ...................................................... ............ 13 PART ONE: RIPARIAN RIGHTS IN NONNAVIGABLE WATERS ---.. 17 SECTION 1. INTRODUCTION ....................................... ....... .... 17 SECTION 2. NATURE OF RIPARAN RIGHTS-EVOLUTION OF THE REASONABLE USE DOCTRINE .....--..............-..... .. 18 A. Riparian Rights Defined ..........--.......-........... 21 1. Property Right Annexed to Soil ........-...... - 21 2. Usufructuary Right -Not Ownership of Water Itself .. ................................ 22 3. Right of Use on Riparian Lands ............... 24 B. Evolution of Reasonable Use Limitation ........ 26 1. Prior Occupation Theory ...................-...... 26 2. Natural Flow Theory ................................... 28 3. Reasonable Use Theory .........................-..... 30 SECTION 3. SPECIFIC REASONABLE USE CONTROVERSIES-DE- TENTION AND DAMS -.. ....-......-........-........ 35 A. Title to Bed ..................................... 35 B. Reasonableness of Detention-Lower Riparians 36 C. Reasonableness of Detention-Upper Riparians 41 D. Reasonableness of Detention-Injury to Lower Riparians by Release of Waters or Flood ........ 41 E. Reasonableness of Lowering Pond Levels ...... 43 SECTION 4. SPECIFIC REASONABLE USE CONTROVERSIES-DIVER- SIONS - .... ........................................................ 44 A. The Right to Divert Among Riparians ........... 44 B. Effect of Non-Riparian Purchase of Water Rights Against Riparian Grantor ..................... 46 C. Diversion by Riparian Proprietor for Use on Non-Riparian Land .......................... .......... 48 D. Effect of Conveyance of Water Rights to Non-Riparians Against Lower Riparians ...... 48 SECTION 5. SPECIFIC REASONABLE USE CONTROVERSIES-POL- LUTION BY ONE OTHER THAN A MUNICIPALITY -.. 49 SECTION 6. RECREATIONAL USE ......................................... 51 SECTION 7. MUNICIPAL WATER SUPPLIES - ACQUISITION AND PROTECTION .......... ......-............................ 53 A. Municipal Water Supply-Riparian or Non- Riparian U se ............................... ......... 54 B. Municipal Acquisition of the Right to Divert- Condemnation and Damages .......................... 55 1. Damages ........-.................-......-...... 55 2. Acquisition by Condemnation .-.............. 59 C. Protection of Public Water Supplies .............. 64 SECTION 8. MUNICIPAL LIABILITY FOR SEWERAGE, ACCELER- ATED STREAM FLOW AND POLLUTION ......-------....- 70 A. Sewerage and Pollution ........................ 70 B. Accelerated Stream and Flood Waters .............. 74 SECTION 9. EXTINCTION OF THE RIPARIAN RIGHT AND Loss OF THE "RIGHT" TO EXERCISE EXISTING RIPARIAN RIGHTS .............-........ ........ ..--- - 77 A. Extinction of the Riparian Right ..--..........--... 77 B. Loss of the "Right" to Exercise Existing Ripa- rian Rights of Use ................-...........-.... 79 1. Estoppel and Laches ................................. 79 2. Condemnation and Damages in Lieu of Injunction ......-........-............- ... .. 79 3. Police Power Regulations .......................-.. 81 4. Prescriptive Rights .-................................ 82 5. Grants ..........................................- 87 SECTION 10. LITTORAL RIGHTS ON LAKES AND PONDS
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