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Questions 14-15 are based on the following fact situation.

Upton is the owner of a hillside parcel of realty known as Slopeacre, on which he grows apples for sale to a company which makes juice from them. For several years, Upton has been irrigating his apple trees with water from a stream which flows across Slopeacre. After flowing across Slopeacre, the stream flows through Flatacre, a parcel of realty located in the valley below Slopeacre. Downey, who owns Flatacre, lives there with his family. Downey’s family uses water from the stream for household purposes. This year, Upton informed Downey that he was planning to build a small dam across the stream so that he would be able to pump water out of it more easily for irrigating his apple trees. Downey immediately instituted a proceeding to prevent Upton from constructing the dam.

The jurisdiction determines water rights by applying the common law.

  1. If it were the only one true, which of the following additional facts or inferences would be most likely to cause a court to grant the relief requested by Downey?

(A) Construction of a dam will increase Upton’s consumption of water from the stream.

(B) Construction of a dam will change the natural flow of the stream.

(C) Construction of a dam will cause Upton to consume more water from the stream than is reasonably necessary for the enjoyment of Slopeacre.

(D) Upton can continue to pump water from the stream without constructing a dam.

  1. Assume for the purpose of this question only that because of a drought there is enough water in the stream to satisfy the needs of either Flatacre or Slopeacre, but not both, and that there are no other riparian owners. Who is entitled to use the water?

(A) Upton, because he is the upstream owner.

(B) Upton, because he needs the water for agricultural use.

(C) Downey, because he needs the water for household use.

(D) Downey, because he is the downstream owner.

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