Home » Articles » Volume 42 » Issue 1 » The Legacy of Schodde v. Twin Falls Land and Water Company: The Evolving Reasonable Appropriation Principle

 
 

The Legacy of Schodde v. Twin Falls Land and Water Company: The Evolving Reasonable Appropriation Principle

 

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Abstract

This Article examines an underappreciated 1912 United States Supreme Court decision, Schodde v. Twin Falls Land and Water Company, which refused to enforce a prior appropriation right because it would have required dedicating the entire pre-dam current of the Snake River to lift a small amount of water actually devoted to beneficial use. Schodde both cleared a major legal barrier to dam construction and gave rise to the reasonable appropriation rule. After a long period of relative neglect, Schodde reemerged as an important precedent as courts, legislatures, and administrative agencies began to appreciate the inefficiencies of prior appropriation in an era of increasing scarcity, a problem that has become more pressing as the region confronts the real stresses of climate change. The case is a classic example of the development of a judicially imposed background limitation on a private property title. This tradition is now in doubt as the United States Supreme Court has opened up the prospect of an aggressive judicial takings doctrine. This Article’s basic argument is that the sensitive way in which courts have applied Schodde illustrates that courts can satisfactorily balance the protection of individual expectations about the use of resources of property with changing conceptions about the best use of resources, without the straightjacket of the Fifth Amendment. 

 

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