I recently had a discussion with a libertarian friend over property rights in water. She’s under the impression that people who live next to a river and use its water have no lawful recourse against someone upstream who decides to dam the river there and hence deprive them of future water. Her reasoning for this is that the future water hasn’t reached those people yet, so they have no lawful claim to it.
My objection is that, while rights are often imputed to material objects per se, they can also be imputed to uses of objects. An example of the latter is an easement. It also seems difficult to ascribe ownership of a body of water to a single individual if he hasn’t contained it somehow. However, I’m having trouble articulating a theory of property rights from which riparian rights logically follow.
Can anyone help? Whose position is more consistent, hers or mine?
Check out the link right after on Prior Appropriation water rights. Rather than owning a specific tract of the river, you’d own rights to a specific quantity of water. This strategy is used in water-scarce areas, which would work in your context where building a dam would make water much more scarce. People would have various spots on a priority list depending on when various people made water claims from the source in question. Depending on how much water you need, and for what, (as well as everyone else), it may or may not be legal for someone else to build a dam, or restrict the use of water in any significant way. Under this system, what matters is not that there’s future water, but who laid claim first, and how much was claimed.
Right, I understand the concept of prior-appropriation water rights and agree with it. Maybe I should’ve named the thread “Water Rights” instead of “Riparian Rights”.
My friend’s issue is more about the water itself remaining unowned until someone contained it. She’s especially wondering how depriving someone of a certain amount of water flow (that they had previously received) constitutes harming them if the water wasn’t his to begin with.
Maybe the following is a reasonably good analogy. A mine is tunnelled deep underground to an ore deposit. Later on, someone buys the land over the ore deposit and starts farming it. He digs a new irrigation well and, in so doing, interferes with the ongoing mining operation. Under the homesteading principle, it would seem that the mining company had already homesteaded a mining easement to the land. Hence the landowning farmer would be enjoined to fill in the well and perhaps also compensate the mining company.
If the mining company were leasing the land or the right to mine on the land from a previous owner, which would be the only way I can imagine a mining company mining under someone else’s land, I can’t imagine why it would be a given that a contract with that previous owner would hold true to a new owner unless the new owner agreed at the time of sale… For example. Chrysler was owned by Chrysler until the downturn in 2009, when it was subsequently bought by Fiat. Chrysler had a previous agreement to offer only Cummins Diesel engines in the Dodge Ram (Heavy Duty pick-up truck). When Chrysler was bought by Fiat, there was no guarantee that Fiat would continue doing business with Cummins. At that point, previous contracts with Chrysler were no longer valid.
Unless it were a condition of sale, or a contract between the previous owner of the property and the mining company that such a stipulation be made should he sell the property… I can’t imagine the mining company having future claim to the property, AND if there was a breech of contract it was with the previous owner and not the new owner (in the absence of a condition of sale or a new contract with the new owner).
Otherwise what you have is a mining company that has defiled someone else’s property without his permission then sued him for interfering. Either way, I don’t see how it relates to the water thing… I promise I’m not trying to be difficult. I am trying to find a spare minute to read the other two links.
Under the riparian principle, all landowners whose property is adjoining to a body of water have the right to make reasonable use of it.
Tell me what “reasonable” means…
Second, I get both ideas… Prior appropriation and Riparian Rights… But it all seems arbitrary, and I’m failing to see how it is consistent absent prior agreement from all parties. I’m not a big fan of “implied consent.” For that matter, I don’t see how it is enforcable (minus prior explicit agreement to such a system) beyond normal social pressures (i.e. making everyone aware that Jerk A upstream is living up to his name). Absent an explicit agreement, I can’t imagine that a suit claiming damage by proprieters up-stream for withholding “flow” would be adjudicated in favor of the plaintiff.
Sorry, I should’ve been clearer. The land above the ore deposit is unowned when the mining company tunnels to the deposit. The farmer is the first person to ever own the land.
I disagree, if the land was previously unowned, the mining company would be the first-owner and I don’t see how the farmer could have “bought” or come to own the property without buying it from the mining company.
Of course, “reasonable” is still a rather subjective term. However, in a free-market court system, I think some standard(s) of reasonablity will emerge that are accepted by most or nearly all people.
What do you mean by “arbitrary”? A person taking a gallon of water from a river every day isn’t going to be entitled to a thousand gallons. The enforcement comes from lawsuits.
I suppose I can accept that. We talk about “Reasonable Force” in terms of self-defense rather regularly. That would be similar I suppose.
It seems like either idea would work just fine. I don’t see any value in either system that makes it inherently more valuable than the other, to me personally. I suppose, then, by arbitrary I mean subject to the whim (values) of individuals as opposed to one of them being logically more consistent.
So I’m prohibited form increasing my usage of the water as my family/agriculture/industry expands? Hmm.
Either way, this requires me to accept that there is an entitlement to the people down-stream, which as you know, I don’t. I haven’t seen an argument that is convincing that water is fundamentally different than other forms of property, or that there is some reason which is consistent with the libertarian idea of private property which gives inherent entitlement absent some sort of explicitly agreed-upon contract.
As you said before, I don’t see how the mere existence of water means you’re entitled to it, which is what these schemes seem to suggest. If what you’re saying is, “Yes, there would have to be an agreement in place,” then I would have no problem. But the insistence so far seems to be that people are entitled to water absent an explicit agreement. Am I incorrect?
And how are you going to sue someone who hasn’t agreed to a “water rights” scheme and expect to win? Unless there is some inherent property of water that makes it unlike all other property… Which I don’t think I’ve seen identified yet. Admittedly, I might be blind/deaf so far… But up to this point, I haven’t heard it… or at least haven’t heard it in a way I understand.
Do you really think it’s reasonable that they wouldn’t, knowing that not doing so would put them in such a precarious legal position?
Even in that unlikely scenario, I still think that if someone tried to homestead the land above the mine, the mining company would seek to stop them immediately or seek to reach an agreement. Though I would generally consider a mine existing under a property to laying claim to that property. I can’t imagine an idea of “property rights” that says, “I own the surface of the land but not that which is above it or below it…” I would think “land” in terms of ownership includes everything under it.
Riparian rights were introduced as an ex post facto concept. In other words, it was introduced to settle disputes between people who had been using river water for a long time before, to the point that no one knew who started using what first.
Prior-appropriation rights came about effectively at the beginning of settlement in the American West. No one had been out there before, so people knew (or could know) who used what first.
Does that make sense? In other words, I think each applies to a different kind of situation.
That depends. If you increase your water usage, are you interfering with others’ usage of water? If you’re not, then I’d say you can continue to take more.
It’s actually a lot like land ownership over history. For some time, there was always unowned arable land to be had. At some point, however, all the arable land was owned by people. One couldn’t go out and get “free land” anymore. Land thus became more economically scarce.
I think it’s more like water is a “free good” until people’s uses thereof interfere with one another. Then you’ll see explicit agreements form.
Well, how am I going to sue someone who tried to kill me and expect to win when he hadn’t already agreed to a “life rights” scheme?
How would it put them in a precarious legal position?
I don’t think it’s a question of ownership over physical things per se. It’s a question of use-rights. However, I’m not sure whether the ad coelum et ad inferos doctrine would be upheld in a free-market society. Note that, according to Wikipedia, the doctrine had no precedent in either English common law or in Roman law.
And you’re trying to liken it to water… I’m not sure I follow. Putting aside that water and land are both economically scarce, the nature of them as objects are entirely different. Water moves, land is relatively stationary. Water has a source, land is relatively not-new… especially in places like the continental US. I’m afraid I don’t understand how you can separate “water rights” from “land ownership” such that water that is currently on my land belongs to you, somehow.
So your answer is "there are no water rights until people downstream get peeved…? I mean, I totally dig that. I just want to make sure I’m reading it correctly.
I don’t view them as at all similar. And perhaps this is the heart of the issue. Tell me how water rights are inherent in the way that we view self-ownership (and by extension, non-body “private property”) as inherent, or tell me how water itself is different from land, persons, and other scarce resources.
I think I just had a brain wave. We’ll see what your answers are to the above and see if I go in this new direction very easily. I’m going to continue contemplating it for a bit.
Rivers are understood to have sources. Water does not.
The fact that free land (by and large) cannot be had no doesn’t mean it never could be. Likewise with free water. If you put rain barrels on the roof of your house to collect rainwater, that’s free water, isn’t it? My grandparents’ house has well water, so they don’t pay a water bill. Of course, that doesn’t mean one can use up as much water as he wants per unit time at their house.
If I come to visit you and park my car in your driveway, does it become your car because it’s on your property? The idea here is that one person’s land can happen to contain things that belong to one or more other people. In theory, I can rent land from someone and build a house on it. I then own the house but not the land. Not a very smart idea, but there you have it.
There are no property rights in anything, period, until people can be excluded from using it. Rivers can contain so much water relative to the people using them that they’re effectively non-scarce and thus free to use. In that case, they’re more like air than land.
My point was that all property rights, including self-ownership, are presumed to be inherent under certain conditions. If I take an apple from a tree that no one owns, on land that no one owns, the apple is presumed to become mine. Were someone to take that apple from me when I wanted to keep it, that is presumed to be theft. Does that make more sense?
I have seen “river” defined as no more than a road for “water.” That the land (the rut) and the water itsself are essentially separate, which would lend itself to the interpretation that “water” in rivers and lakes could be “homesteaded” in a way also independent of the land… I would think…
That I’ve seen other definitions, ones that don’t necessarily involve themselves with whether or not “rivers” have sources. I’m exploring the implications… To say the least…
It means I’m trying to decide whether or not I agree and figured I’d at least comment on what I felt like I could at the time. At this point, as to the rest of your points I will say I understand them. Will address them more thoroughly if I find some disagreement. As yet, they seem quite reasonable.
I promise I’m not trying to be difficult. I am trying to find a spare minute to read the other two links.