reasonable use doctrine in Arizona

2000Percolating groundwater, on the other hand, is not appropriable and may be pumped by the overlying landowner, subject to the doctrine of reasonable use, Gila River II, 175 Ariz. at 386 , 857 P.2d at 1240 ; Bristor v. Cheatham, 75 Ariz. 227 , 255 P.2d 173 (1953), and the federal reserved water rights doctrine discussed in Gila River III. ¶ 4 The boundary between surface water and groundwater is not at all clear.

2000Percolating groundwater, on the other hand, is not appropriable and may be pumped by the overlying landowner, subject to the doctrine of reasonable use, Gila River II, 175 Ariz. at 386 , 857 P.2d at 1240 ; Bristor v. Cheatham, 75 Ariz. 227 , 255 P.2d 173 (1953), and the federal reserved water rights doctrine discussed in Gila River III. ¶ 4 The boundary between surface water and groundwater is not at all clear.

1981Appellants rely on the cases of Howard v. Perrin, 8 Ariz. 347 , 76 P. 460 (1904), and Maricopa County Water Conservation District No. 1 v. Southwest Cotton Co., 39 Ariz. 65 , 4 P.2d 369 (1931), for their basic proposition that they own the water percolating beneath their lands under the doctrine of reasonable use.

1981Appellants rely on the cases of Howard v. Perrin, 8 Ariz. 347 , 76 P. 460 (1904), and Maricopa County Water Conservation District No. 1 v. Southwest Cotton Co., 39 Ariz. 65 , 4 P.2d 369 (1931), for their basic proposition that they own the water percolating beneath their lands under the doctrine of reasonable use.

2018Thus, the federal reserved water rights doctrine effectively modifies the doctrine of reasonable use, as codified in § 45-453, because it restricts an overlying landowner's right to pump groundwater to the extent required "to preserve the waters necessary to accomplish the purpose of [a federal] reservation." See Gila III , 195 Ariz. at 421-22 ¶¶ 34-38, 989 P.2d at 749 -50 . ¶ 14 Another regulation on the use of water in Arizona is the adequate water supply designation process.

2018Thus, the federal reserved water rights doctrine effectively modifies the doctrine of reasonable use, as codified in § 45-453, because it restricts an overlying landowner's right to pump groundwater to the extent required "to preserve the waters necessary to accomplish the purpose of [a federal] reservation." See Gila III , 195 Ariz. at 421-22 ¶¶ 34-38, 989 P.2d at 749 -50 . ¶ 14 Another regulation on the use of water in Arizona is the adequate water supply designation process.

2018Id. ¶ 11 Groundwater, by contrast, is not subject to prior appropriation, but is instead "governed by the traditional common law notion that water percolating generally through the soil belongs to the overlying landowner, as limited by the doctrine of reasonable use." In re Gen.

2009In contrast, under Arizona’s common law, groundwater “is not appropriable and may be pumped by the overlying landowner, subject to the doctrine of reasonable use.” Id. ¶ 11 Because others have detailed the history of Arizona groundwater law, see Cherry v. Steiner, 543 F.Supp. 1270, 1273-76 (D.Ariz.1982), aff'd, 716 F.2d 687 (9th Cir.1983); Leshy & Belanger, supra, at 666-700, we present only a brief overview here.

2008See, e.g., Bristor, 75 Ariz. at 234 , 255 P.2d at 177 (“[P]rior right to the use of ground waters cannot now be acquired and never could have been acquired under the law of prior appropriation.”); Neal, 112 Ariz. at 312 , 541 P.2d at 564 ; A.R.S. §§ 45-451, -453.

2008See, e.g., Bristor, 75 Ariz. at 234 , 255 P.2d at 177 (“[P]rior right to the use of ground waters cannot now be acquired and never could have been acquired under the law of prior appropriation.”); Neal, 112 Ariz. at 312 , 541 P.2d at 564 ; A.R.S. §§ 45-451, -453.

2008And Jarvis I, Jarvis II and Town of Chino Valley v. State Land Department, 119 Ariz. 243 , 580 P.2d 704 (1978), teach that percolating groundwater may be pumped and removed from the land, as long as the withdrawal does not damage other owners of the overlying property.

2008And Jarvis I, Jarvis II and Town of Chino Valley v. State Land Department, 119 Ariz. 243 , 580 P.2d 704 (1978), teach that percolating groundwater may be pumped and removed from the land, as long as the withdrawal does not damage other owners of the overlying property.

1960Bristor v. Cheatham, 75 Ariz. 227 , 255 P.2d 173 , reversing Bristor v. Cheatham, 73 Ariz. 228 , 240 P.2d 185, 195 .

1960Bristor v. Cheatham, 75 Ariz. 227 , 255 P.2d 173 , reversing Bristor v. Cheatham, 73 Ariz. 228 , 240 P.2d 185, 195 .

1953Justice Sutherland in construing the language of this act in California Oregon Power Co. v. Beaver Portland Cement Co., supra [ 295 U.S. 142 , 55 S.Ct. 729 ], said: “ * * * it effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself. * * * ” (Emphasis supplied.) This pronouncement is in irreconcilable conflict with the rule laid down by this court in Howard v. Perrin and subsequent cases which the prevailing opinion in effect reaffirms, enlarged by the reasonable use doctrine.

1953Justice Sutherland in construing the language of this act in California Oregon Power Co. v. Beaver Portland Cement Co., supra [ 295 U.S. 142 , 55 S.Ct. 729 ], said: *240 "* * * it effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself. * * *" (Emphasis supplied.) This pronouncement is in irreconcilable conflict with the rule laid down by this court in Howard v. Perrin and subsequent cases which the prevailing opinion in effect reaffirms, enlarged by the reasonable use doctrine.