Ripka v. Wansing - 589 S.W.2d 333 (Mo. Ct. App. 1979)

Rule:

The common law has two theories of the water rights of one owning property along a natural surface water course; the "natural flow" theory and the "reasonable use" theory. Some contend there is only the reasonable use theory. Under the natural flow theory, each proprietor of a water course is entitled to have the body of water flow naturally, qualified only by limited uses of those above him. This theory would prohibit certain uses although harm is not shown to others. Under the natural use theory, stream water cannot be used for irrigation. The "reasonable use" theory allows each riparian proprietor to make a reasonable use of the water for any purpose, providing that the use does not cause harm or damage to the reasonable uses of others. Missouri appears to have adopted the reasonable use theory.

Facts:

The plaintiffs and defendants each own two tracts of agricultural land along the creek. As relevant here, Sugar Creek flows northwesterly across land owned by plaintiffs, then across land owned by defendants, then across land owned by Ben Huhmann, then across defendants' second tract, and then across plaintiffs' second tract. Defendants used the water to irrigate corn and alfalfa upon their land adjoining the creek. When rain was insufficient, the defendants pumped water from the creek for a period of one to three hours two times a day. Their irrigating equipment was calculated to pump 280 gallons per minute. For at least a part of the time since defendants started irrigating, plaintiffs had cattle on their land. Plaintiffs' pleadings contend that defendants' use has, or will, cause the stream of water along the creek to be greatly reduced in volume and has, or will, cause the creek to become dry, resulting in injury to plaintiffs in the operation of their cattle business. They contend that the pumping created at least a one-third or ten inch drop in the water level along their land. There was evidence from defendants and their witnesses that the pumping had no noticeable effect upon the flow of water across plaintiffs' land. At the trial, the plaintiffs did not offer evidence that their cattle business had been damaged. The district court denied their petition for injunctive relief.

Issue:

Did the trial court err in allowing evidence that the plaintiffs had no specific loss or damage to their cattle business?

Answer:

No.

Conclusion:

Plaintiffs contended that the appropriate standard is whether defendants interfered with the riparian rights of plaintiffs by substantially reducing the flow of Sugar Creek. As earlier noted, this argument seems to be based upon the principles of the natural flow theory. The court did not believe this argument has merit when it considered it in view of the reasonable use theory. Under the reasonable use theory, the court should consider "the needs of other riparian proprietors". The court should also consider the extent and amount of harm the defendants' use causes.

The evidence supported a finding that the defendants' use of the water from Sugar Creek for irrigation was a reasonable use. There was evidence that no harm was caused to the plaintiffs and that the use had no noticeable effect on the water flowing downstream. There was also evidence that there was always water at least in pools on Sugar Creek and always sufficient water for cattle. Under the reasonable use theory, other proprietors have a limited right to use the water to irrigate. The court could not say that the use was unreasonable where there was evidence that the flow of the stream was not affected and plaintiffs were not damaged by defendants' use.