Hodgson writes that water rights in both civil law and common law traditions are "land based approaches". He states "Under both the common law and civil law traditions, the right to use water depended primarily on the use or ownership of land or structures built on such land. The logic of this approach is based on the fact that historically most water rights, apart from those relating to "in-stream" uses, related to the use of water on land".
He separates surface water rights (pages 19-25) from ground water rights (pages 25-27) in his study. It may be noted that both traditions treat underground streams on par with surface water. I will follow my own method of separating civil law from common law.
Hodgson also devotes a few paragraphs to "rights to water in artificial water courses". I do not propose delving into this subject.
Hodgson states Roman law (and others including Islamic law) held that running water was a part of the "negative community" (res communes) of things that could not be owned along with air, the seas and wildlife. However, it could be used for benefit and the usufruct (i.e. right of enjoying a negative community item) needs to be regulated.
Roman law differentiated between the more important watercourses (e.g. rivers) from the less important. The latter was considered amenable to private ownership but the others were deemed to be public. A public stream was open to anyone who had access to them.
The Napoleonic code retained a similar distinction. A "navigable" or "floatable" watercourse was deemed to be public. Their use required a permit or authorization from the Government.
Hodgson mentions other cases including "the Spanish Water Act of 1886 considered as private all surface waters, that is waters springing in a private property and rainfall waters, but only for its use on that land and not beyond the limits of that estate".
Hodgson writes civil law surface water rights could be considered a riparian system to some extent as "Roman law did not provide for involuntary servitude of access". This point will become clear when we discuss the doctrine of riparian rights applicable in common law.
Regarding ground water, Hodgson shows it to be a property of the owner of the land above it. He cites article 552 of the French Civil Code "Ownership of the ground involves ownership of what is above and below it. An owner may make above all the plantings and constructions which he deems proper, unless otherwise provided for in the Title of Servitudes or Land Services".
India, like most of the former English colonies, follows the common law. Krishna Water Disputes Tribunal (KWDT or KWDT-I) states: "The Indian law is based on the common law of England. The common law doctrine has been considerably modified in England by the Water Resources Act 1963, Chapter 38, sections 23 to 32, but the general Indian law continues to be the same as before" (volume I, page 79).
As the Indian law is based on the common law of England (as it was in 1950), it is important for us to understand the system in slightly greater detail than the previous chapter's brief coverage. The following paragraphs provide adequate input on the fundamental thrust of the common law tradition.
Justice David Brewer in the opinion (as judgments are called in the US) in Kansas v. Colorado, 206 U.S. 46 (1907) quotes the jurist James Kent: "The common law includes those principles, usages, and rules of action applicable to the government and security of persons and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature".
Justice Brewer goes on to explain further: "As it does not rest on any statute or other written declaration of the sovereign, there must, as to each principle thereof, be a first statement. Those statements are found in the decisions of courts, and the first statement presents the principle as certainly as the last".
The role of precedent in common law is confusing to many people including some in the legal fraternity. Precedence as a concept relates to the principle, not the fact being judged.
The importance of precedent has sometimes led to the common law tradition being described as "judge made". This is misleading: judges state the legal principles applicable but do not draft the law. The "first statement" is a summary of positions already established and being followed.
Several judgments in the American system are "unpublished" i.e. these opinions are not published in the appropriate Law Report. This is because the judge deems these are deemed not to have any precedential value.
Stare decisis is subject to the hierarchy as well as jurisdiction. A legal principle set out in a lower court may not be relied upon by a superior or appeals court. Similarly a precedent from a different jurisdiction may not be treated as binding.
It is essential to note stare decisis is neither infallible nor eternal. Legal principles can be (and, in several instances, have been) subsequently overturned. A legal principle thus overturned on fundamental grounds ceases to be stare decisis and may not be relied in further discourse.
For instance, the landmark class action suit Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) overturned the "separate but equal" principle legal doctrine prevalent for over sixty years and previously upheld in Plessy v. Ferguson, 163 U.S. 537 (1896). Chief Justice Earl Warren took a fresh look at the doctrine writing "In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written". Justice Warren goes on to state: "Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected. We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal".
Hodgson states that common law tradition did not share the distinction between public and private waters. However, common law continued the Roman practice of treating flowing water as publici juris. On a different note, Hodgson is no fan of the distinction writing elsewhere "Whatever logic it may have held for the legal scholars of old, the idea of distinguishing private waters from public waters is nonsense from a hydrological perspective".
Hodgson describes the riparian rights doctrine (sometimes referred as riparianism) in detail. The doctrine developed gradually in England and the original 13 US states through a series of court decisions.
Riparian rights were treated as not subsidiary land rights but an integral part of land ownership.
The riparian rights doctrine held that a riparian owner had the right of making "ordinary" use of water flowing in his or next to his property. This encompassed "reasonable use" for domestic purposes and for watering livestock. These rights could be exercised without considering any effect they may have on downstream proprietors.
In addition, a riparian proprietor also had the right of using the water for "extraordinary" purposes (such as irrigation) provided it did not interfere with the rights of other proprietors, whether upstream or downstream.
Hodgson states that the extraordinary use rights are subject to significant restrictions. He writes "Specifically, the use of the water must be reasonable, the purpose for which it is taken must be connected with the abstracter's land and the water must be restored to the watercourse substantially undiminished in volume and unaltered in character". The question of reasonableness of an extraordinary use must, he avers, be ascertained by reference to all circumstances.
Hodgson details a special system called "prior appropriation doctrine" prevalent in certain parts of the USA. As we will see, this doctrine is of considerable importance to this study. We will therefore go into it in a greater detail later in the study.
Regarding ground water, Hodgson says the net effect is the same as in civil law although the conceptual route is different. He quotes Ballard v. Tomlinson, 1885, to show "there is no property in water percolating through the sub-soil until it has been the object of an appropriation". This means the proprietor can sink a well in his property to prevent the flow of water to nearby streams. The major difference is that a common law proprietor can not bring suit on a neighbor whose actions interfere with "his" ground water.
The prior appropriation doctrine, often stated as "first in time, first in right" and sometimes referred to as the "Colorado doctrine" presents a dramatically different approach to water rights. This doctrine effectively severs the link between land ownership and water rights.
Hodgson explains the doctrine originated in the nineteenth century gold rush to meet the needs of miners. As they washed their gold in public lands, they could not claim riparian rights. Subsequently the doctrine was extended to include private lands.
Hodgson cites David Getches to show the prior appropriation doctrine applies to nine American states (including Colorado, New Mexico & Wyoming). The situation in ten states (including Kansas & Nebraska) is mixed as both prior appropriation and riparian rights doctrines prevailed either simultaneously (in different parts) or in parallel (at different times).
The prior appropriation doctrine confers water rights on any individual who diverts water for a beneficial use. The date of appropriation determines the priority of an individual proprietor. If the volume of water available is inadequate for the requirements of all users, junior proprietors may receive only some of their needs or even none.
Hodgson lists three essential elements for an appropriation to be valid:
· "the intention to apply the water to a beneficial use;
· an actual diversion of water from a natural source;
· the application of the water to a beneficial use within a reasonable time period"
Hodgson cites Getches to demonstrate that the states following the prior appropriation doctrine established administrative measures (e.g. a permit) to record the water volume and priority (i.e. the effective date of appropriation).
Justice Willis Van Devanter writes in his opinion in Wyoming v. Colorado, 259 U.S. 419 (1922):
"This doctrine of appropriation, prompted by necessity and formulated by custom, received early legislative recognition in both territories, and was enforced in their courts. When the states were admitted into the Union, it received further sanction in their Constitutions and statutes, and their courts have been uniformly enforcing it".
Justice Van Devanter also dwells at length to determine the principle behind the effective date of appropriation. While the first proposal for the project at the heart of the dispute was mooted in 1897, the eminent judge held "the appropriation should be accorded a priority by relation as of the latter part of October, 1909, when the work was begun".
The priority is tightly coupled to the beneficial use of the appropriation, not to the proprietor. The priority ceases when the use is abandoned, modified, terminated or when the termination activities are begun. A new use of a previously beneficial appropriation goes to the bottom of the line. The priority can not be traded or transferred independent of the use. Different proprietors pooling their uses would still retain the individual priorities.
Justice Thurgood Marshall writes in his opinion in Colorado v. New Mexico, 459 U.S. 176 (1982):
"Appropriative rights do not depend on land ownership, and are acquired and maintained by actual use. Riparian rights, by contrast, originate from land ownership and remain vested even if unexercised. Appropriative rights are fixed in quantity; riparian rights are variable, depending on stream flow and subject to the reasonable uses of others".
Justice Gregory Hobbs, Jr. of the Colorado Supreme Court in his paper "History of Colorado Water Law: Adaptation & Change" (published by the Colorado Foundation for Water Education) provides an interesting insight into the origin and applicability of the prior appropriation doctrine. We will go into this at a more appropriate point later in this work.
As we will see later, the prior appropriation principle is neither unfettered nor absolute. The limitations of a priority are recognized in American case law and acknowledged internationally.
It is important to note the prior appropriation doctrine is not limited to water rights. Simultaneously (and in large parts for similar reasons), the doctrine was also applied to the mining of precious metals. The federal General Mining Act of 1872 gave individuals the right to stake mining claims on public lands with similar restrictions (e.g. effective date of appropriation & invalidation in the case of non-use). The application of the doctrine to both domains complemented each other.
"A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it": Justice Oliver Wendell Holmes, Jr. in New Jersey v. New York, 283 U.S. 336 (1931)