Water Rights

In the Roman tradition, the idea that water should
be allowed to flow as it had always flowed was described like this:

Aqua currit et debet currerer, ut currerer solebat.

“Water runs, and ought to run, as it has used to run. “ Or, a running stream should be left to flow in its natural channel, without alteration or diversion, and by implication, that water is the common and equal property of every one through whose domain it flows. This is the ancient basis of the modern public trust doctrine. 

“By natural law these things are common to all: the air, running water, the sea, and as a consequence the shores of the sea’…They are not property, or , as has been said, they are in the ‘negative community.’ This is sometimes phrased that they ‘belong to the public’ or to the ‘state in trust for the people.’ ….all systems of water law adopt the elemental idea that running water while in its natural situation is not owned; that the law regulates the use of it, but that rights of flow and use are what the law recognizes, and not property in the water itself. The water itself is ‘common’ or ‘publici juris.’” ^[1] 

So while private property rights are important in understanding water allocation, it is also not historically possible (in places with the English and American common law traditions) to view water in its natural watercourse as solely a matter of private property.
There is always a need to recognize the shared, public nature of water.

1. Samuel Wiel, “Theories of Water Law,” 27 HARV. L. REV. 530-531 (1914).


Posted by Nell Schofield