§ 419. “The Reasonable Use.”

REASONABLE USE.—As originally proposed by Mr. Reid, without the word “reasonable,” this provision would have prevented any interference whatever by the Federal Parliament, under the trade and commerce power, with the absolute right of the States to appropriate the waters of rivers for the purposes named. On the other hand, the omission of the whole provision would have left the navigation power supreme over the rights of the States, and would have made it legally possible for the Federal Parliament to ignore the requirements of conservation and irrigation altogether. The words as they stand recognize the supremacy of the navigation power only so far as it does not conflict with “reasonable use” for conservation and irrigation—thus subordinating navigation to the reasonable requirements of the States for such purposes.

Before discussing the interpretation of the word “reasonable,” it will be well to point out how, in the United States, in spite of the legal supremacy of the navigation power, the actual necessities of the “arid region” have secured some slight recognition at the hands of the courts.

In Broder v. Water Co., 101 U.S. 274, 276, the court said: “It is the established doctrine of this court that rights of miners, who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the Government had, by its conduct, recognized and encouraged and was bound to protect, before the passage of the Act of 1866. We are of opinion that the section of the Act which we have quoted was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.”

This was a recognition of a right of “reasonable use,” based on encouragement on the one side and expectation on the other, apart altogether from federal legislation.

In United States v. Rio Grande Dam and Irrigation Co., New Mex., 51 Pac. Rep. 674, it was held in the Court of the Territory of New Mexico that where a stream is of small value for navigation, and of great importance for irrigation, a State may destroy its navigability in the interests of irrigation. In the Supreme Court, however, this doctrine was not upheld. It was admitted that every State has the power, within its

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dominion, to alter the common law rule as to the appropriation of flowing waters, and to permit their appropriation for such purposes as the State deems desirable. It was also admitted that by Acts of Congress (cited in the opinion) Congress had recognized and assented to such appropriation; but it was not to be inferred that Congress thereby meant to confer on any State the right to appropriate all the waters of the tributary streams which unite into a navigable watercourse, and so destroy the navigability of that watercourse, in derogation of the interests of the people of the United States. (United States v. Rio Grande Dam and Irrigation Co, 174 U.S. 690.)

This Constitution, however, gives explicitly what Congress and the Courts of the United States have only partially conceded—the right of the States and their residents to the reasonable use of the water for certain purposes, notwithstanding that navigability may be interfered with.

WHAT IS REASONABLE.—The difficulty of conceding absolute paramountcy to either navigation on the one hand, or conservation and irrigation on the other hand, has been met by the word “reasonable,” which gives the “reasonable use” for conservation or irrigation a priority over navigation, but which gives navigation a priority over the unreasonable use for conservation or irrigation. That is to say, the question of priority is not determined absolutely by the Constitution, but is left to be determined in each case according to the circumstances, by the application of principles laid down by the Constitution.

What is “reasonable” must depend on the facts of each case; but the facts in each case ought to be considered and balanced in accordance with fixed principles. To secure uniformity and certainty in the law, it is important that the elements of reasonableness —the principles upon which any use is declared reasonable or unreasonable—should be clearly laid down. This can only be done authoritatively by the Courts; but a short discussion of some aspects of the question will perhaps be useful.

From whose point of view is “reasonableness” to be decided? Are the requirements of the conserving or irrigating State or citizen to be taken into account alone, irrespective of the needs of navigation; or are the public interests as a whole to be considered, by balancing the requirements for both purposes, and regulating the use of the water according to the relative importance of the two purposes? On the first assumption, the fair requirements of cultivation have to be estimated independently, whether the damage to navigation be great or small; on the second assumption, the amount of water which may reasonably be used for cultivation will vary according to its importance for navigation. Neither assumption is wholly free from difficulty. On the one hand, if the amount which the cultivator may appropriate is to be determined irrespective of navigation, it would seem “reasonable” for him to drain the river dry, if he derived the least profit from doing so, although the damage to navigation might be immensely greater than his gain. From his point of view, every use would be reasonable which benefited him, no matter how much it might cost others. On the other hand, if navigation and cultivation are to be weighed equally in the balance, according to their respective value to the community, the reasonable priority of user may vanish altogether, and the importance of navigation may make it unreasonable, in some cases, to take a single drop for cultivation.

Or again it may be argued that the spirit and intention of the clause require an intermediate basis—one which would not determine “reasonable use” without reference to the requirements of navigation, but which would, whilst considering both requirements, give a “reasonable” degree of priority to the rights of cultivators. It may be said that the section refers to existing rights, and forbids any abridgment of those rights so far as they involve reasonable use; and that the spirit of this prohibition requires a liberal construction of existing rights, and a strict construction of the abridging power. The reasonableness of use may involve questions, not only of the amount of water taken, but of the season at which it is taken, the utility of the purpose to which it is applied, and the manner of its application to that purpose. It may

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be unreasonable to conserve or divert any water when the river is low, but reasonable to conserve or divert large quantities when the river is high; it may be reasonable to irrigate, but unreasonable to adopt a needlessly wasteful mode of irrigation; and so on.

ANALOGY WITH THE COMMON LAW.—The limitation placed by this section on federal legislation bears an interesting analogy with the rules of the common law on the subject of riparian rights. The common law recognizes, and is obliged to some extent to compromise between, the right of the lower riparian proprietor to an undiminished flow, and the right of the upper riparian proprietor to use the water. The compromise it makes is to require, on the one hand, that the flow shall not be substantially diminished, and on the other that the consumption of water must be reasonable. (Embrey v. Owen, 6 Exch 353.)

“If a lower proprietor has a right to the free flow of the water without diminution or alteration, a right to consume the water before it reaches him is apparently irreconcilable with it; but such inconsistencies are to be met with in all natural rights, and the law reconciles them by holding that each is only to be enjoyed reasonably, that they are not absolute rights without limit, but that they are rights modified by all the rights of others. The right to uninterrupted flow of water is therefore subject to limit by the right to reasonable use and consumption of the water by others, and the right to use and consume must be exercised so reasonably and moderately that others may not be immoderately deprived of the quantity of water they are entitled to.” (Encycl. of the Laws of Eng. sub tit. “Watercourse.”)

“On the one hand, it could not be permitted that the owner of a tract of many thousand acres of porous soil abutting on one part of the stream could be permitted to irrigate them continually by canals and drains, and to cause a serious diminution of the quantity of water; .… on the other hand, one's common sense would be shocked by supposing that a riparian owner could not dip a watering-pot into the stream in order to water his garden, or allow his family or his cattle to drink it. It is entirely a question of degree.” (Per Parke, B., Embrey v. Owen, 6 Exch. at p. 372.)

The distinction has been drawn in another way by saying that every proprietor has a right to the “ordinary” use of the waters without regard to the effect on other proprietors, but he is not entitled to the “extraordinary” use if he thereby interferes with the rights of others. (Miner v. Gilmour, 12 Moo. P.C. 156; Ormerod v. Todmorden Joint Stock Mill Co., 11 Q.B.D. 155.)

The principle of modifying the right to the uninterrupted flow by a countervailing right to “reasonable use” is therefore a part of the common law of England; but its application, under English conditions, has been to restrict the “reasonable use” within very narrow limits—to allow a riparian proprietor to “dip a watering-pot,” but to insist on a substantially undiminished flow. (See Medway Navigation Co. v. Romney, 9 C.B.N.S. 575; Wilts and Berks Canal Co. v. Swindon Waterworks Co., L.R. 9 Ch. 451.) In Australia the use of the water for cultivation is vastly more important; and though the principle of ‘reasonable use” is the same, its application must be widely different. Parke, B., in the case cited, chose irrigation as a striking example of an unpermissible and unreasonable use; but in Australia the wholesale appropriation of the water may be not only reasonable, but often essential to pastoral and agricultural settlement.

ANALOGY WITH RAILWAYS.—The section also presents an interesting analogy with the sections dealing with unreasonable preferences on railways. The interests of cultivation and navigation in the one case may be compared with the interests of the railways and the ports in the other; and the State-right of user of water with the State-right of making developmental rates. In the case of the rivers, however, the protection given to State-rights is not so complete as in the case of the railways. The right to make developmental rates—if they apply equally to goods from other States—is absolutely preserved, no matter what may be their effect on inter-state commerce; but the right to the user of water may be abridged so far as it is unreasonable.

In the case of rivers, the Constitution does not provide, as in the case of railways, that a use may not be deemed unreasonable unless the Inter-State Commission decide that it is so. The question of unreasonableness, however, would seem to be more proper

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for the Commission than for the courts; and under sec. 101 the Parliament may give the Inter-State Commission such powers of adjudication and administration as it deems necessary for the execution of this, as every other, part of the trade and commerce law.