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4 The ‘lost’ connection between land tenure rights and water rights

Throughout history, in many societies and legal traditions rights to use water and land have been closely inter-linked. Sometimes, particularly in arid areas, the right to use land depended on the application of water.[115] More commonly, the right to use water depended on the use or ownership of land or structures built on such land. In a sense, this is not surprising as most water rights, apart from those relating to hydro-power generation, and so-called ‘in-stream rights’, relate to the use of water on land.

4.1 Roman law

This approach, of conferring a privileged position on the owners of land adjacent to water courses, was one of the elements of Roman water law which in turn had a major influence on conceptions of water rights in the influential European legal traditions, prior to the introduction of modern water rights regimes. Indeed some of these influences can still be observed. For example, Roman law denied the possibility of private ownership of running water. The Institutes of Justinian published in A.D. 533-34 held that running water was a part of the ‘negative community’ of things that could not be owned along with air, the seas and wildlife.[116] At the same time it was recognised that things in the negative community could be used and that the ‘usufruct’ or right to use the advantage of the resource needed to be regulated to provide order and prevent over-exploitation.[117]

Roman law distinguished the more important, perennial streams and rivers from the less important. The former were considered to be common or public while the latter were private. The right to use a public stream or river was open to all those who had access to them.[118] Roman law, however, recognised the right of the government to prohibit the use of any public water and required an authorization for taking water from navigable streams.[119]

4.2 The historical approach of the civil law tradition

This distinction between public and private waters long retained an influence in the countries of the civil law tradition. Generally speaking, while an administrative permission was necessary for the use of public waters this was not necessary in the case of private waters. The distinction was maintained by the French Civil Code - the Code Napoleon - promulgated in 1804 after the French Revolution. Public waters were those which were considered to be ‘navigable’ or ‘floatable’ and belong to the public or national domain. Their use required a government permit or authorisation.

Private waters, which were those located below, along or on privately owned land, could be freely utilized subject to certain limitations of a statutory nature such as servitudes, rights of way etc. The right to use such private waters, both surface and underground, derived from land ownership which recognized the right of the owner to use at pleasure the water existing upon his land without any limitation.[120] Similarly the Spanish Water Act of 1886 considered all surface waters that spring on a privately owned parcel, as well as rainfall on that land, as private property, but only for its use on that land parcel (or the estate of which that land parcel formed a part).[121]

4.3 The historical approach of the common law tradition

The distinction between public waters and private waters was not, however, followed in the countries of the common law tradition.[122] The common law did, however, maintain the principle of Roman law that flowing waters are publici juris and in maintaining that those who have access to such waters may reasonably use them, thus privileging the owners of lands adjacent to watercourses.[123] From these basic principles, the doctrine of ‘riparianism’ developed in England and North America in the course of the nineteenth century.[124]

What is striking in the context of the topic of this paper is that riparian rights were not considered to be subsidiary land tenure rights like an easement or servitude, but were instead an integral part of the right of ownership of the land in question.[125] As regards the substantive content of such a right, a riparian land owner had the right to make ‘ordinary’ use of the water flowing in the watercourse. This encompassed the reasonable use of that water for domestic purposes and for the watering of livestock. Where such uses of water were made, abstraction could be undertaken without regard to the effect which they had on downstream riparian land owners.[126]

In addition a riparian land owner also had the right to use the water for any other purpose provided that it did not interfere with the rights of other riparian land owners, above or below. The limits of extraordinary water use have never been precisely defined and are probably incapable of definition. But it is clear that they are subject to significant restrictions. Specifically, it was necessary for the use of the water to be reasonable, the purpose for which it was taken had to be connected with the abstracter’s land parcel and the water had to be restored to the watercourse substantially undiminished in volume and un-altered in character. The question whether a particular extraordinary use was reasonable was a question of fact to be determined by reference to all the circumstances. In addition to such natural riparian rights, a riparian owner could acquire additional rights in the nature of ‘easements’, which it will be recalled are types of land tenure right, in accordance with relevant rules of land tenure.[127]

4.4 The benefits and limitations of the historical approaches

The main advantages of these historical land-right based approaches to water rights were that they could be relatively easily stated and furthermore that they could be claimed and exercised by the land owner without the need for state intervention.

However, they shared a number of serious disadvantages. First of all, there was the issue of quantification. The use of how much water constituted a ‘reasonable use’ in the common law riparian tradition? In some jurisdictions more detailed rules were developed but none were much better than general principles, as competition for water increased over time.[128] Similarly, problems arose with competing claims over the use of private waters in the civil law jurisdictions which gradually saw more and more restrictions being placed on the exercise of such water rights.

Particular problems arose in the context of the reception of such doctrines into colonial jurisdictions. Much of the development of the riparian doctrine took place in damp and water rich climates of England and New England, and indeed much of the case law (jurisprudence) on riparian rights related to disputes over the situation and operation of water mills rather than water abstraction. Such principles transferred with difficulty to more arid climates. For a start, given that the riparian doctrine conferred rights only on the owners of riparian land, large swathes of otherwise productive irrigable land beyond the riparian parcels were effectively denied rights to water. For example, in Canada the riparian doctrine effectively prohibited irrigation on any large scale in the southern regions of the prairie provinces which had an arid desert-like climate with an average precipitation of 28 centimetres per year.[129]

And finally, whatever logic it may have for lawyers, the concept of distinguishing private waters from public waters is something of a nonsense from a hydrological perspective. Several responses arose to the disadvantages of land-based water rights.

In the western United States, the flexibility of the common law tradition enabled the development of a new, more appropriate water rights doctrine, the ‘prior appropriation’ doctrine, described in Box C. Perhaps a harbinger of future developments, that doctrine severed the linkage between land tenure rights and the acquisition of water rights, the latter being acquired on the basis of beneficial use rather than land ownership.

Box C - The Prior Appropriation Doctrine

The prior appropriation doctrine was developed to serve the practical demands of nineteenth century water users in the western United States. It originated in the customs of miners on the federal public lands who accorded the best rights to those who first used water. It was later extended to farmers and other users, even on private lands. Where it applies, water rights are granted according to where a person applies a particular quantity of water to a particular beneficial use. Those rights continue as long as the beneficial use is maintained.

Most appropriation jurisdictions consider water to be a public resource owned by no-one. The right of individuals to use water under the prior appropriation system is based on application of a quantity of water to a beneficial use.

The traditional elements of a valid appropriation are:

- Intent to apply the water to a beneficial use;
- An actual diversion of water from a natural source;
- Application of the water to a beneficial use within a reasonable time.

The date of the appropriation determines the user’s priority to use water, with the earliest user having a superior right. If water is insufficient to meet all needs, those early in time of appropriation (senior appropriators) will obtain all of their allocated water; those who appropriated later (junior appropriators) may receive only some, or none, of the water to which they have rights. All of the states in which the prior appropriation doctrine applies have statutory administrative procedures to provide an orderly method for appropriating water and regulating established water rights.[130] Some states allow appropriators the options of applying for a permit or perfecting a common law appropriation by posting notice and diverting water. More typically state law requires a permit as the exclusive means of making a valid appropriation. While the prior appropriation doctrine has its criticisms, for example it tends to discourage water saving by senior appropriators, there appears to be little desire for substantive reform.[131]

The main response, however, has been legislative with the enactment of new water laws that have brought water resources within the state domain and introduced modern water rights regimes of the sort described above. The main legacy, such at it is, of land rights based approaches to water rights is found in those increasingly rare provisions in water legislation that restrict the right to hold (administrative) water rights to land owners and, as described at the end of the previous section, in tying the use of water subject to such rights to specific parcels of land including industrial, commercial or agri-business premises. Even these residual links are being lost. In a number of jurisdictions it is necessary for an applicant for a water right merely to be in possession of the relevant land parcel on which the water is to be abstracted or used or to have a legal right of access to the point at which water will be abstracted. The widespread introduction of fully tradable water rights would see the link finally broken.

In short, modern water rights regimes tend to be fully divorced from landed property and, as a direct result, represent a sophisticated response to the growing pressures on water resources. Such regimes enable rational choices to be made about the use of water and permit users to acquire secure and substantive legal rights while at the same time maintaining sufficient flexibility to ensure that future water requirements can be met. As seen above, a range of statutory mechanisms including river basin plans, the setting of priorities, the establishment of statutory minimum flow requirements, the creation of water ‘reserves’ and ‘in-stream rights’, the requirement for water rights applications to be subject to an environmental impact assessment and to satisfy a test that they are in the ‘public welfare’ seek to guide the basis on which decisions regarding the allocation of water rights are made.

[115] Historically, in the communities of the Ahaggar, in modern day Algeria, the right to possession of land was formed once an individual brought water there; the right so created applied to all of the irrigable land. The rights to land and water ran together and could only lawfully be determined with the permission of the original owner (right holder). From M. Maceau GAST Naissance et vie d’une communauté saharienne Page 9. Ramazzotti. M., Readings in African Customary Water Law FAO Legislative Study No. 58, FAO, Rome, 1996.
[116] Roman law is not the only legal system that rejects the idea of private ownership of running water. Islamic law, which also takes this approach plays an important role in shaping legal rules about the use of water.
[117] Getches, D.H., op cit, at page 16.
[118] Since Roman law did not provide for involuntary servitude of access, it could to that extent be considered a riparian system.
[119] Teclaff, L.A. Water Law in Historical Perspective, William S Hein Company, Buffalo, New York, 1985 at page 26.
[120] Ius utendi et abudtendi.
[121] However there was a possibility of some administrative control reflected in articles 413, 415, 420-422 which defined private waters as ‘special property’ subject to some restrictive covenants. Ruiz, J. J. ‘Modernization of Water Legislation: The Spanish Experience’ in Food and Agriculture Organization of the United Nations Issues in water law reform FAO, Rome, 1999 at page 112.
[122] Except to the extent that a distinction is made between the ownership of the banks and bed of tidal and non tidal waters. The banks and bed of former are generally in the private ownership of the riparian land owner while the banks and bed of the latter are owned by the Crown (ie the state).
[123] To acquire a riparian right it was sufficient to own land adjacent to a watercourse although in a number of common law jurisdictions the land beneath non-tidal waters, the river ‘bed’, is owned to the median line by the riparian land owners.
[124] It should, however, be noted that the riparian doctrine which as developed by the courts, replaced an earlier conception of water rights based on priority of use which was not as closely tied to land ownership. Scott, A. & Coustalin, G. ‘The Evolution of Water Rights’ 35 Natural Resources Journal 821 (1995) at pages 850-870.
[125] A the same time Riparian rights were considered to be interests in real property as opposed to personalty. Getches, op cit, at page 59.
[126] Howarth, W. Wisdom’s Law of Watercourses, Fifth Edition Shaw & Sons, Crayford, 1992 at page 72.
[127] A detailed description of this type of water right would involve the use of pure common law land tenure vocabulary. Such rights could be acquired: by grant, by prescription, by custom or by statute. The ‘tenement’ (or land parcel) in favour of which such a water easement (servitude) was created was the dominant tenement while that to which the easement is a detriment was the servient tenement. A legal easement of water as an incorporeal hereditament (a land right) could only be created or transferred by deed, and a verbal licence was insufficient. A prescriptive grant of a particular right to a watercourse could be claimed on proof of long use without interruption. As a matter of common law the enjoyment of the right must be shown to have continued since time immemorial, a date which is set at the limit of legal memory fixed at 1189. The inevitable difficulties of proving this led to the development of the presumption of lost modern grant though which in practice evidence of twenty years exclusive enjoyment of a right to water will provide a conclusive presumption of the existence of the right of the person enjoying the use. Howarth, W. op cit¸ page 104.
[128] Du Bois describes how in Swaziland the question of reasonableness was assessed in accordance with how much water was necessary for the efficient irrigation of a given land parcel rather than simply in proportion to its location or size relative to other parcels of land. Du Bois, F. ‘Water Rights and the Limits of Environmental Law’ 6 Journal of Environmental Law 1 (1994) at page 81.
[129] Percy, op cit, at page 5. After ‘considerable unrest’ the Federal Government passed comprehensive water legislation in 1894 in the form of the North West Irrigation Act S.C. 1893 c.30 in order to introduce a modern water rights regime.
[130] Getches, D. op cit at page 74.
[131] A full discussion of the doctrine is beyond the scope of this paper. See further Tarlock, A.D. ‘The Future of Prior Appropriation in the New West’ 41 Natural Resources Journal 769 (2001).

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