The appropriation doctrine is a system of water rights that gives an individual the right to use a quantifiable amount of water. The appropriation doctrine is also referred to as prior appropriation because the right to use water is prioritized on the basis of the date the use was established. This characteristic is often summed up in the phrase "first in time, first in right." Under appropriation law, the first person to obtain an appropriation right receives the right to use a fixed amount of water without regard for other water users. In the case of a water shortage, the holder of the first prioritized right receives his or her entire amount to the possible exclusion of all others. Subsequent appropriative rights are filled based on the order of the dates of acquisition, until there is no more water available.
Traditionally there are three elements necessary to acquire an appropriative right: intent to use the water, a physical diversion of the water from the natural stream course, and an application of the water diverted to a beneficial use. Once acquired the right can be bought and sold. Water obtained under the appropriation doctrine can be used in a manner not consistent with the use existing at the time the right was acquired, so long as it is considered a "beneficial" use. An appropriative right is a usufructuary right, or right to use the water, as opposed to owning the water itself. There is no requirement that the water be applied to riparian land or even to land within the same watershed. Thus the appropriation doctrine promotes the consumptive use of water as a commodity, without regard to the location of the use or location of the source.
The rationale of the doctrine comes from personal property law theory. Traditionally, society is deemed enriched as individuals transform nature into usable economic commodities. For example, the law gave individuals incentives to capture wild animals or to mine gold by giving the person title to that which he or she had brought into possession. In like manner, water meandering through the Great Plains was captured by individuals and transformed into an economic commodity usable to settlers.
The appropriation doctrine originated in California as nineteenth-century miners looked for ways to augment the supply of water needed for mining operations. The doctrine first became law in the Great Plains in 1882 as a remedy for conflicts arising from agricultural water use in northeastern Colorado. Promoted by agricultural interests in the Great Plains, the appropriation doctrine was widely adopted as an alternative to riparian rights because of a common vision of future growth and a perception of water scarcity in the region. The doctrine promoted settlement because it allowed water to be detached and used in areas remote from the stream. Appropriation law rewarded those who had diverted water for use in a dry environment by giving them a secure right to a quantifiable amount of water upon which to base their operations. In North Dakota, South Dakota, Nebraska, and Kansas, appropriation is now the exclusive means of acquiring water rights, and in Oklahoma the conflicting doctrine of riparian rights is restricted to household and livestock uses.
Theron Josephson Ferris State University
Dunbar, Robert G. Forging New Rights in Western Water. Lincoln: University of Nebraska Press, 1983.
Hutchins, W. A. Water Rights in the Nineteen Western States. Washington DC: Government Printing Office, 1974.
Trelease, Frank J., and George A. Gould. Cases and Materials on Water Law, 4th ed. St. Paul MN: West Publishing Company, 1986.