Also known as:prior appropriations · prior-appropriation · prior appropriation doctrine · appropriation doctrine · Colorado doctrine
Written by attorneys — see sources below.
A water allocation system under which the first person to make beneficial use of water acquires a vested right to continue that use. Priority among users is determined by the chronological order of their appropriations.
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How its tested
Common Examples
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Recorded Water Sharing Agreement
Portia Price and Pavel Petrov, owners of adjoining farms drawing from the same creek under state-issued prior appropriation permits, recorded an agreement declaring their priorities mutual burdens and benefits running with the land. When Portia sold her farm to Priscilla Parks, Priscilla refused to honor the sharing terms during a drought. The court held that the recorded agreement created no enforceable servitude because rights determined by prior appropriation doctrines fall outside servitude law.
Solar Access Claim
Preston Pratt installed solar panels on his roof years before his neighbor Nathan North began building a home that would block the sunlight. Preston invoked the doctrine of prior appropriation to claim a continuing right to the light. The court evaluated whether the earlier beneficial use of sunlight for energy production established a protected priority against the later construction.
The plaintiff, Frank Prah, owns a residence in a subdivision in the Town of Muskego that he constructed during 1978 or 1979.
His home includes a solar energy system which includes roof-mounted solar collectors located on the south side of the roof. The solar energy system supplies heat for the plaintiff's domestic hot water and space heating.
The plaintiff has invested $20,000 in his solar heating system.
In 1980, the defendant, Richard D. Maretti, acquired the vacant lot immediately south of Prah's property and began planning to build a two-story residence whose roof would extend to within twelve feet of the lot line. The proposed structure would cast a shadow over Prah's solar collectors during the winter months, rendering the heating system inoperable.
Prah informed Maretti about the solar system and asked him to adjust the location of the new home to avoid interference with the collectors, but Maretti declined to modify his plans. Prah then filed suit in the Circuit Court for Waukesha County, alleging that the construction would constitute a private nuisance and seeking injunctive relief along with compensatory and punitive damages.
The circuit court dismissed the complaint for failure to state a claim. On appeal, the court of appeals certified the case to the Supreme Court of Wisconsin, which accepted certification.
How does a user establish priority under prior appropriation?
The user must divert water and apply it to a beneficial use. The date of that first beneficial use fixes the priority date, giving the senior appropriator the right to take the full amount of the right before any junior user receives water.
Does prior appropriation apply only to surface water?
No. Many western states apply the same first-in-time, first-in-right rule to hydrologically connected groundwater when the withdrawal would impair senior surface rights.
Can private parties convert prior appropriation rights into servitudes by agreement?
No. Rights determined by prior appropriation doctrines are excluded from the definition of servitudes, so recorded agreements attempting to make those rights run as private covenants are unenforceable as servitudes.
Supporting sources
What happens when a junior appropriator's use impairs a senior right?
The senior appropriator may obtain an injunction or other relief to protect the full quantity of the senior right, because the first-in-time rule gives the senior user priority to the exclusion of later claimants.
Supporting sources
321 N.W.2d 182 (Wis. 1982)
…to a home constructed in accordance with deed and municipal ordinance requirements. Further, the circuit court rejected the prior appropriation doctrine as "an intrusion of judicial egoism over legislative passivity." We consider first whether the complaint states a claim for relief based on common law private nuisance. This state has long…
TortsOther torts · Claims based on defamation and invasion of privacy, defenses, and constitutional limitationsUBEIntermediate