OCR Text |
Show GROUND WATER 53 landowner to use or interfere with percolating water, so that he could not act wastefully, maliciously, or negligently. In short, he was required to act reasonably, and most jurisdictions, particularly in riparian States, have now adopted the reasonable use rule, which is similar to the reasonable use rule applicable to surface water- courses. The landowner has both a right and a duty-he has a right to use the percolating water, or to interfere with its flow by improving or working his land, but in so doing he has a duty to act reasonably. There is no general definition of reasonable use or conduct, since circumstances vary from area to area and from use to use. The de- termination of reasonableness must be made on a case-by-case basis, and upon a consideration of all factors which have a bearing on the needs and interests of the landowner compared with the needs and interests of all others who are affected by his conduct. Uses or inter- ferences which are wasteful or excessive? which are careless or neg- ligent, which serve no useful or beneficial purpose, or which serve to contaminate or pollute the underground water, are almost always found to be unreasonable-and are enjoined or damages are awarded to those injured, or both. (3) CORRELATIVE RIGHTS A further refinement of the rule of reasonable use is found in the doctrine of correlative rights, as expressed in the ground water law of a number of appropriation States. While some cases and some writers have viewed these two doctrines as essentially the same, and have used the terms interchangeably, there is a difference. Literally applied, the doctrine of correlative rights gives each landowner a right in percolating water in the exact proportion which his land bears in relation to all other land overlying the underground basin. This presemes, of course, that the boundary of the underground basin can be ascertained-which it usually can, at least as the basin is de- veloped and data is acquired and analyzed. Thus, if an underground basin has a surface area of 25,000 acres, and a landowner has 250 acres located within the basin, then under the correlative rights doc- trine he would be entitled to 1 percent of the water in the basin. This result is similar to pooling arrangements in oil and gas, where sep- arately owned acreages are pooled together for economic or conser- vation reasons, and where each owner is entitled to his pro rata pro- portion of minerals produced. In actual practice, there is seldom a rigid application of the cor- relative rights doctrine in ground water law. Strictly applied, the doctrine would say that owner A, who owns half the land overlying a basin, can develop and use only half of the water, even though owner B, who owns the other half of the land overlying the basin, is making no use of the water and has no plan to make any future use of it. In such a situation, it is unlikely that any court would pre- vent A from using more than half of the water, so long as such use was for a reasonable and benefical purpose. Viewed from the stand- point of correlative rights, most courts would say that B has a right to develop and use his share of the water, but if he elects not to do |