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The Evolution of Resource Property Rights$
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Anthony Scott

Print publication date: 2008

Print ISBN-13: 9780198286035

Published to Oxford Scholarship Online: May 2008

DOI: 10.1093/acprof:oso/9780198286035.001.0001

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Rights over Flowing Water

Rights over Flowing Water

Chapter:
(p.63) 3 Rights over Flowing Water
Source:
The Evolution of Resource Property Rights
Author(s):

Anthony Scott

Georgina Coustalin

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198286035.003.0003

This chapter follows the evolution of rights to use or enjoy streams and lakes. It distinguishes legally ‘land-based’ systems from those that are ‘use-based’. Tracing the alternation or cycling of these two systems in four countries, and beginning with a brief survey of Roman water law it shows that that medieval English law regarded rights over fresh water as a continuation of rights over the adjoining land. A change to use-based rights began when mill-owners ‘demanded’ that their water rights be interpreted by the courts to protect private title to a flow; this was accomplished in the Industrial Revolution by recognizing priority in use. This prior-use concept was found inadequate and in the next phase the English courts swung back to a land-based right, adopting ‘natural’-flow and ‘reasonable’-use criteria to decide which cities and factories should have rights. The chapter follows these phases abroad. It describes the western-lands invention of the appropriative-rights doctrine in the US, and its adaptation elsewhere. Throughout, the chapter also refers to changes in ‘prescriptive rights’ to water, distinguishing them from those in the prior-use and prior-appropriation phases.

Keywords:   appropriative rights, land-based system, Roman water law, prescriptive rights, reasonable use, Industrial Revolution, fresh water rights, prior use, use-based rights

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