The Evolution of Water Rights

Abstract

This article looks at the evolution of water rights since early medieval times in England, North America and Australia.Different water rights characteristics such as quality of title, exclusivity and transferability are traced.Bases of two water regimes-types are identified: riparian land ownership (community of users) and actual use of the streamwater (priority of use).We identify periods in which one or the other of these types of regimes prevailed and suggest a "twists and turns" pattern of alternation between them.Aspects common to all periods, such as prescription and seniority, are described.Finally, after looking at the dynamics of change from one base to another, we project into the future a new property regime which could respond to increased and more varied demands to use water, conserve it and protect the water shed. PART I: INTRODUCTIONA water right can be widely defined as the right to use or enjoy the flowing water in a stream.It may emerge from a person's ownership of land on the banks of the stream ("riparian ownership"), or from a person's actual use of the stream.It may be administered and controlled by a government agency, or it may not be administered at all, and be subject to enforcement only in the courts.A water right can also be created indirectly through a contract with a rights holder.Some water rights are quantitative, applying to a fixed amount of water, measured by rate of flow.Others set no limits so long as the holder does not reduce or pollute the flow available to other water right-holders on the stream.Some continue only as long as the holder continues his specific water use, while others continue whether he uses the water or not.In different parts of the world, even among countries which have the same system of law (for example, the common law countries), and even *

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