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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

(p.63) 3 Rights over Flowing Water
The Evolution of Resource Property Rights

Anthony Scott

Georgina Coustalin

Oxford University Press

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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