Document Type


Publication Date

Spring 2015


The history of water law throughout the United States is dynamic. Beginning with the inherited doctrine of English common law natural flow riparianism, the changes in law can be described as instrumentalist in the sense that "judges and legislatures made this branch of water law an instrument of pro-developmental policy." When the natural flow doctrine's requirement that the stream flow down to lower owners undiminished as to quantity and quality clashed with the needs of the extensive utilization of water powered mills in the nineteenth century, the courts pioneered an American doctrine of reasonable use riparianism that would sustain water-dependent industrialization. Legislatures joined in as well, passing the Mill Acts, which defused the threat of injunction against mills whose ponds inundated portions of neighboring lands. Those laws effectively forbade injunctions for continuing trespass and substituted judicially determined amounts of compensation in what can only be viewed as an early instrumentally driven form of condemnation favoring a private use that allowed water to be used in a manner that contributed to growth and prosperity.