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The Evolution of Water Rights

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The Evolution of Water Rights Volume 35 Issue 4 Fall 1995 Fall 1995 The Evolution of Water Rights Anthony Scott Georgina Coustalin Recommended Citation Anthony Scott & Georgina Coustalin, The Evolution of Water Rights, 35 Nat. Resources J. 821 (1995). Available at: https://digitalrepository.unm.edu/nrj/vol35/iss4/4 This Article is brought to you for free and open access by the Law Journals at UNM Digital Repository. It has been accepted for inclusion in Natural Resources Journal by an authorized editor of UNM Digital Repository. For more information, please contact [email protected], [email protected], [email protected]. ANTHONY SCOTT* GEORGINA COUSTALIN The Evolution of Water Rights ABSTRACT This article looks at the evolution of water rights since early medieval times in England, North America and Australia. Different water rights characteristicssuch as quality of title, exclusivity and transferability are traced. Bases of two water regimes-types are identified: riparianland ownership (community of users) and actual use of the streamwater(priority of use). We identify periods in which one or the other of these types of regimes prevailed and suggest a "twists and turns" pattern of alternation between them. Aspects common to all periods, such as prescription and seniority, are described. Finally, after looking at the dynamics of change from one base to another, we project into the future a new property regime which could respond to increased and more varied demands to use water, conserve it and protect the water shed. PART I: INTRODUCTION A water right can be widely defined as the right to use or enjoy the flowing water in a stream. It may emerge from a person's ownership of land on the banks of the stream ("riparian ownership"), or from a person's actual use of the stream. It may be administered and controlled by a government agency, or it may not be administered at all, and be subject to enforcement only in the courts. A water right can also be created indirectly through a contract with a rights holder. Some water rights are quantitative, applying to a fixed amount of water, measured by rate of flow. Others set no limits so long as the holder does not reduce or pollute the flow available to other water right-holders on the stream. Some continue only as long as the holder continues his specific water use, while others continue whether he uses the water or not. In different parts of the world, even among countries which have the same system of law (for example, the common law countries), and even * Anthony Scott is emeritus professor of economics at the University of British Columbia. Has specialized in the economics of natural resources and of institutions. Georgina Coustalin, B.A., LI.B., is in practice with Steeves and Co. Vancouver. She has specialized in history of law. NATURAL RESOURCES JOURNAL [Vol. 35 within a single country, the regimes of water rights can be found to be very different. Demand and supply play a role here. Furthermore, over time, there have been "evolutions" of water rights. Comparative evolution is the theme of this study. Two questions suggest themselves: (1) Is a water right a different type of right than a land right?; and (2) Is a water right a 'property' right? We answer both questions in the affirmative. An affirmative answer to the first question gives us a reason to look at water rights separately from land rights, and an affirmative answer to the second question gives us a basis for comparing them through the mechanism of their "characteristics." The physical attribute of water in rivers and streams that distin- guishes it most from land for the purpose of a study of rights is its fluidity. The individual drops of water flowing in a stream are always in motion, and travel from one right-holder's location to another's. Hence the holder's right is more than to identifiable drops-it extends to theflow, as represent- ed by the stream's velocity, its level and its quality at any particular instant. This is a modem view of the water right; in early medieval times the law had tried to ignore the fluidity of water and to treat the right as if it were over land. What finally sets off a water right from a freehold, leasehold, profit-A-prendre or any other type of land holding, is the fact that the exercise of the right has "external" effects beyond those felt by the right-holder himself. Conversely, his right is vulnerable to challenges by others on the stream, just "his" flow is vulnerable to variations caused by others' uses. This interdependence among water users, which has led economists to dub such a stream a "common property" is far, far greater than among landowners or land users. The "common property" feature means that a water right has far less exclusivity than has a land right. Certain land rights also lack some exclusivity, but water rights lack so much more exclusivity as to warrant separate study. Is a water right a "property" right? A lawyer would say that only if the right derived directly from a grant of land, could it be called a "real property" right. Anything else would be a "personal right" and outside the scope of a study on natural resources property. An economist would not limit the definition in this way, but would call a property right any one which gave its holder powers to use, manage or alienate a thing or to drive profit from it. A contractual right regarding the use of land would therefore be a type of land property right in the eyes of an economist but not of a lawyer. What they would both have to agree on as a minimal requirement for a land property right, however, would be social recognition, enforce- ment and protection of the holder's powers given under the right. This minimal and broad definition gives us a basis of comparison of various water rights regimes. The points of comparison will be the extent of six "characteristics" of property rights: Fall 1995] EVOLUTION OF WATER RIGHTS duration or permanence; flexibility; exclusivity or specificity; quality of title or security; transferability or assignability; and divisibility. The changing regulation of water-rights holders by statute and by the several branches of the common law: criminal, tort, property and contract, has worked to alter the amount of each of the six characteristics oaf their right. The ability of legislators and courts to make these changes has itself been subject to change according to the prevailing powers of Parliament and the forms of legal action in use at the time. Different forms of action had, for example, different requirements regarding 'standing' of a plaintiff to sue, and the burden of proof. In proposing a reconciliation of the ideas of economists and lawyers with regard to property rights, we have been guided by the following 1. If a person has a legal entitlement to something that can be enforced and protected, he has a "right." 2. If a person has no legal entitlement to do something, but others have no means of preventing or blocking him from his use or enjoyment of it, and he has the legal means of protecting his action from harm from others, what he has is tantamount to a "right." He can use the thing unimpug- ned and unhindered. 3. The corollary of I and 2: If a person has a legal or technical entitlement which the court will not enforce, then he does not, practically speaking, have a "right," for any other member of the public is in as good a position as he is with regard to the use and enjoyment of the thing. The first statement is not controversial and would be accepted both in the courts and in economic analyses. Courts have parted from econo- mists over the second statement. They have strenuously resisted calling what is "tantamount to a right" a legal entitlement, because the instances of it have no roots in land or water ownership but only in the power of an individual to prevent others from doing something.' Yet for hundreds of years these same courts protected, through their procedures, the quasi-legal 1. The authors gratefully acknowledge the assistance and comments they have received form nay persons. Among them they would mention: Richard Campbell, Sandy Clark, Ronald Cummings, Anthony Dorcey, Mason Gaffney, David Getches, Mischa Gisser, Linda Hannah, Charles Howe, Elizabeth Kirk, Arthur Maass, Ben Marr, Mary McGregor, Christopher Mowlin, Peter H. Pearse, Christine Riek, Ruth Picha, Murray Rankin, Bernadette Stale, Jennifer Steward, Andrew Thompson, Stephen Wisenthal. See Mason v. Hill, 110 Eng. Rep. 692 (K.B. 1833), discussed in Part IIl.C., infra. NATURAL RESOURCES JOURNAL [Vol. 35 right of "prior-use" water diversion which was founded on this precept formed the basis of a huge network of contracting and industrial develop- ment on the rivers of England.2 The third statement may appear controver- sial, but was recognized by the courts in the eighteenth century case of Ashby v. White.3 In that case, which concerned voting rights, the court resolved that "want of right and want of remedy are reciprocal," or without a remedy, there is no right.4 Thus we propose as a further definition of a property right: "The ability to do something which is recognized directly or indirectly in law, to the extent that the law can be expected positively to protect that ability or negatively to prevent others from interfering with that ability." An evolution in water rights has indeed taken place in the common law world, if one considers "rights" in the sense of the above broad definition.
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