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I asked a wider version of this question here http://bit.ly/Qxcvy7 but I think the answer stream started to get too broad. Just to hone in on the issue, I am asking a hopefully more focused version of the question: should a given property owner that owns the headwaters of a river be allowed to dam it up even if many other people downstream totally depend on the water ? Assume that the owner in question wants to raise fish and needs an artificial lake (i.e. a perfectly reasonable desire). Do "downstream" residents have any rights to water or do they exist at the mercy of the owner of the headwaters? Assume that damming the river would reduce the downstream flow to a trickle and would not be sufficient for downstream residents needs. This is admittedly a "thought experiment" but it captures the concern about property rights not having enough consideration of natural ecosystems (including human ecoystems) that exist across the boundary lines. I got some pretty interesting answers to my earlier query but I wanted to get a clear, practical answer to this situation?

asked Oct 19 '12 at 17:48

Danneskjold_repo's gravatar image

Danneskjold_repo
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Is what you're saying even possible? I can see how a dam from someone in the middle might clog things up. But that person has water flowing into his property as well as flowing out of it. I'd guess that any area which doesn't have any water flowing into it likely doesn't have very much flowing out of it. But maybe I'm wrong. Do you have some science behind this question that I'm not aware of?

(Oct 19 '12 at 20:57) anthony anthony's gravatar image

Anthony- to simplify this, consider the headwaters of a river. Water gushes out of the ground at say 1000 cubic/feet/sec. You decide as owner that you would prefer that there be a reservoir stocked with fish. You dam up the the water and the downstream flow reduces, say, to 250 cubic/feet/sec. The people downstream now see 3/4 less water than they did when the earlier owner owned the land and let the river flow at its natural rate. Do the downstream guys have any rights over water that they once enjoyed or is it your prerogative to dam and divert it as you the owner see fit?

(Oct 19 '12 at 23:16) Danneskjold_repo Danneskjold_repo's gravatar image

I'm still a bit skeptical as to how realistic this is. Water doesn't appear from nowhere. And the flow of the water should return after the lake fills.

But assuming it's realistic, I'm not sure of the answer. There is certainly an argument that the "downstream guys" had been granted an implied easement by the earlier owner. There is also an argument that the rights of the surrounding property owners are being violated when the owner of the spring "drinks their milkshake". They would need to argue this in court, and probably would need to bring evidence of more facts than you have alluded to.

(Oct 20 '12 at 08:15) anthony anthony's gravatar image

In any case, I think this is an excellent example of where the Coase theorem applies. Whichever way the courts decide, the losing party will still be able to negotiate with the winning party, if that leads to a more efficient outcome. What is important is that clear property rights are assigned (as opposed to, for example, saying that water is a free resource to be shared by all).

(Oct 20 '12 at 08:19) anthony anthony's gravatar image

As far as returning the water after the lake fills, one could easily imagine that the new owner then wants to irrigate an orchard and thus the water will never return to its original level. Remember this is a thought experiment :-) The issue is that people's property rights can, with zero nefarious intent, have significant consequences for people living far away. How should we handle the fact that what person A does on his own land legally can affect person B who lives on a different parcel of land given that air, animals and water don't follow human property boundaries?

(Oct 20 '12 at 10:00) Danneskjold_repo Danneskjold_repo's gravatar image

There is an extensive body of case law that addresses this exact issue in the western united states where water rights are hotly debated. Can someone with knowledge of that weigh in? That'd be really helpful and interesting.

(Oct 20 '12 at 13:32) John Hoffman ♦ John%20Hoffman's gravatar image

I'm specifically trying to avoid talking about US water rights, as the question is about proper law, not actual law.

(Oct 20 '12 at 18:41) anthony anthony's gravatar image

"As far as returning the water after the lake fills, one could easily imagine that the new owner then wants to irrigate an orchard and thus the water will never return to its original level."

Where is the runoff supposed to be going?

"Remember this is a thought experiment :-)"

Right, and I've been willing to play along. But I do feel the need to point out that it doesn't seem to be a realistic thought experiment.

(Oct 20 '12 at 18:43) anthony anthony's gravatar image

"The issue is that people's property rights can, with zero nefarious intent, have significant consequences for people living far away."

We have lots of tort law which addresses unintentional behavior. (And even the intentional torts address behavior which, though in some sense intentional, is not necessarily nefarious.) Your issue is much much more specific than that.

(Oct 20 '12 at 18:48) anthony anthony's gravatar image

"How should we handle the fact that what person A does on his own land legally can affect person B who lives on a different parcel of land given that air, animals and water don't follow human property boundaries?"

I think your use of the word "legally" is misplaced. If the act is done legally, then it's legal.

Anyway, the key issue is who is the owner of the property. If a dog runs across my yard, that doesn't, in itself, make me the owner of the dog. Likewise if water runs across my property, that doesn't, in itself, make me the owner of the water.

(Oct 20 '12 at 18:53) anthony anthony's gravatar image

Also, the common law rule that the owner of the soil owns everything from heaven to hell, is both overturned in practice and inconsistent with an objective theory of rights to begin with. Just because the water came from the ground directly below my property, that doesn't, in itself, make it my water. (Although, this is also the part which is unrealistic. For a spring to produce such a large volume of water, some of it must be coming from underneath other properties.)

(Oct 20 '12 at 18:57) anthony anthony's gravatar image

so what is the answer ? Does the owner of the land above the spring of water have the ability to dispose of the water as he/she sees fit? If you didn't care for the orchard example, consider that an owner can bottle and sell the water effectively removing it from further use...

(Oct 21 '12 at 20:42) Danneskjold_repo Danneskjold_repo's gravatar image

The answer is maybe.

The fact that he owns the land doesn't mean that he owns the water. Nor does it mean that he doesn't own the water.

(Oct 21 '12 at 20:58) anthony anthony's gravatar image

http://www.youtube.com/watch?v=tdO3HZLDUcQ

http://en.wikipedia.org/wiki/Big_Spring_(Missouri)

One of the largest springs in the world, at half the rate of this hypothetical spring, through it flows more than twice as much water as is bottled and sold worldwide.

(Oct 21 '12 at 21:24) anthony anthony's gravatar image

Interesting question and really got me thinking. I'm definitely no expert.

I think from an ethical point of view the owner should be able to dam the river. They have not directly caused damage to their neighbours. Although the neighbours have suffered a detriment in the form of less water, this is caused by the property owner's increased use of the water on their own land. If the property owner uses more water logically less flows down stream.

I think the problem can probably be answered in a practical way, by looking at it in its full context. That is that these property owners do not...

(Oct 22 '12 at 20:23) Daniel Daniel's gravatar image

exist in a vacuum, but there is a prevailing system of government which has a legal system and rules of law regulating rights as between land owners. I don't know how you would arrive at what form those rules should take from a philosophical point of view.

I would like to suggest that a legal system must have some rules regulating rights between property owners, but those rules may vary within certain parameters.

For example consider these two contrasting legal systems.

Legal system one classifies the restriction of riverflows to downstream property owners as a form of damage, which

(Oct 22 '12 at 20:30) Daniel Daniel's gravatar image

gives the downstream owners a right of action to seek monetary compensation or a mandatory injunction (removal of the dam) against the upstream owner. In this case the owner should have sought covenants from the downstream owners to procure the increased use.

Legal system two does not recognise such a form of damage. In this case the downstream owners, knowing that their water flow depends on those upstream should seek restrictive covenants with the upstream owners, preventing them from blocking off water above a certain amount.

These rules exist when the owners acquire their land,

(Oct 22 '12 at 20:50) Daniel Daniel's gravatar image

so the owners take ownership of the land with at least the implicit understanding of what property rights run with it.

Accordingly, I think the answer to your question is that the property owner should act in accordance with the property rights that the legal system grants them when they acquired the land:

If there is no law preventing it, yes, as long as you haven't entered an agreement with those downstream not to.

If there is a law preventing it, no, unless you have entered an agreement with those downstream to allow it.

(Oct 22 '12 at 20:52) Daniel Daniel's gravatar image
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Asked: Oct 19 '12 at 17:48

Seen: 2,749 times

Last updated: Oct 22 '12 at 20:52