Comment, Groundwater Rights in Vermont

John P. Sahl, University of Akron School of Law

Abstract

Vermont's law for the allocation of percolating ground water, the absolute ownership doctrine, is inconsistent with well-established principles of groundwater movement. The doctrine essentially provides a landowner with unrestricted ownership and use of all groundwater accessible beneath the confines of his property. Under this rule, a landowner can intentionally deprive his neighbor of water without fear of liability. This was poignantly illustrated in the recent Vermont Supreme Court case of Drinkwine v. State."

The appellants, Harvey and Helen Drinkwine, owned property near the Salisbury Fish Hatchery, owned and operated by the respondent, State of Vermont. The Drinkwines used their property for farming purposes. The Drinkwine spring, their only source of water, was situated approximately 2,700 feet east of the fish hatchery. The spring had supplied all the water requirements of the Drinkwine's farm for over fifty years. In 1969, the state drilled and developed wells at the fish hatchery which pumped large quantities of water. Shortly after the state increased the frequency of operation of their pumps, the Drinkwine spring ceased flowing.

To prevent the permanent loss of their water supply, the Drinkwines argued for a change in Vermont's groundwater law which would apportion a reasonable share of groundwater for their needs and sought injunctive relief to restrain the operation of the state's pumps and wells. The lower court, basing its decision on the absolute ownership rule, summarily dismissed the complaint for failure to state a cause of action. On appeal, the Vermont Supreme Court reviewed the dismissal and stated the basic issue to be whether the court "should . . . modify the doctrine of absolute ownership of percolating waters in the light of changed environmental conditions?'' Despite acknowledging this issue, the court nevertheless, relying on precedent, refused to recognize the Drinkwine's claim and affirmed the lower court's dismissal. In addition, the court reaffirmed the traditional rule of Vermont which recognizes not only an absolute right in the ownership of percolating groundwater, but also implicitly sanctions its waste and malicious diversion.