Who Owns Water?

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This article
originally appeared in the letters section of The
Freeman
, March 1956.

Dear Mr. Read:

Congratulations
on publishing the stimulating and challenging article on “Ownership
and Control of Water
” in the November
issue
of Ideas On Liberty.

It is highly
important that we think more about such fine points of complexity
in our societal system. I offer these further thoughts on water
rights, not as the final solution, but in an effort to help find
answers to some of the questions raised in the article by the anonymous
professor.

For some time,
I have believed that a crucial point in our societal system has
to do with land ownership, land meaning original nature-given
resources of whatever physical type. This problem of ownership is
at the crux of our dispute with the Socialists.

The
Socialists argue that the State is or should be the property owner
of the entire land area. If you grant this socialist premise, the
control of the people follows.

The key question
then is ownership. How should ownership be established? We contend,
of course, that an adult individual should be a self-owner, so that
he owns his own person. He also is entitled to all the property
he creates and has a right to give that property to others, if he
chooses, or to exchange it for other property. Hence, the right
of bequest and inheritance. But this still leaves the question about
nature-given property, which is not created by anyone. Who should
own the land?

Without attempting
here to develop the argument
at length
, it seems clear to me that neither society nor the
State has a right – a moral or an economic claim – to
ownership of land. Production clearly means to me that human
labor works with nature-given material and transforms it into more
usable condition. All production does this. If a man is entitled
to the product he creates, he also is entitled to the nature-given
land that he first finds and brings into productivity. In other
words, land including water, mines, and the like – in an unused,
primitive state is economically unowned and worthless and therefore
should be legally unowned. It should be owned legally by that person
who first makes use of it. This is a principle which we might call
“first ownership to first user.”

It
seems to me that this principle is consistent with libertarian doctrine,
and that it is only the principle of first ownership that makes
sense in terms of that doctrine. Now, the first-ownership-to-first-user
principle is a method of bringing unused, unowned property into
ownership – into the market. After this is done, it is clear
that the property, having been mixed with the labor and other effort
of the first owner, passes completely and absolutely into his hands.
From then on, it is his property to do with as he wishes. It may
turn out to be uneconomic to use the property after a few years,
and it will lie fallow. To leave his land fallow, however, should
be an owner’s privilege, for he should continue to have the unquestioned
right to do with the property as he sees fit. Once the first user
obtains the property, it must be absolutely his.

We now have
a libertarian benchmark to apply to the difficult problem of water
ownership. Where there is no scarcity but unlimited abundance for
purposes of human use, there should be no ownership; hence, there
is no need or call for anyone’s owning any part of the shipping
routes on the high seas.

Fisheries,
on the other hand, pose a different problem. Private individuals
and firms should definitely be able to own parts of the sea for
fishing purposes. The present communism in the sea has led, inevitably,
to progressive extermination of the fisheries, since it is to everyone’s
interest to grab as many fish as he can before the other fellow
does, and to no one’s interest to preserve the fishery resource.
The problem would be solved if, on the first-ownership-to-first-user
principle, parts of the sea could be owned by private enterprise.

Fixing the
ownership of flowing water, as the professor points out,
is more difficult. What’s the solution? We must concentrate first,
not on extricating ourselves from the present property relations
in water, should that be necessary, but in trying to visualize an
ideal arrangement. After the ideal is known, then one can begin
working toward it, given the present situation. But it is crucial
not to confuse the two. The ideal for scarce goods, then, is first-ownership-to-first-user.

It is immediately
clear that the route to justice lies along the appropriation
rather than the riparian path. Why riparian? What claim does
a landowner have to any part of a stream just because his land adjoins
the stream? No moral claim whatever. His riparian claim is not based
on his having made use of the water; in fact, his only purpose seems
to be to block anyone else from using the water, and the result
is criminal waste of rivers and streams. Why should a riparian owner
have a claim to a flow of water?

The appropriation
method is therefore far closer to the just one. Its chief flaw is
that it has been too limited, and we are all indebted to the professor
for his clear explanation of the various methods of property allocation.
The way to amend the appropriation method is as follows:

  1. eliminate
    all requirements for “beneficial” use – the term
    is meaningless, and can only be concretely decided on the free
    market;
  2. the water
    must be the appropriator’s absolute property, not at the sufferance
    of the State.

Hence,
he must be free to sell his right to the water to anyone else for
any purpose, or to stop using it altogether. If he fails either
to use his property right or sell it, the inference is that it is
not worth using on the market. At any rate, the decision must be
the property owner’s – the appropriator’s.

How to establish
the absolute appropriation method in the Eastern states – whether
with or without compensation to the present riparian owners –
is something that must be settled. If downstream owners want to
avoid pollution, there is one simple way they can do so, under the
appropriation method: buy the stream altogether – as a corporation,
perhaps – from the first appropriators, and then put it to
non-polluting uses, or keep it “fallow” altogether.

Where there
are underground rivers, the first appropriator can own his portion
of water and use it however he wishes. There is no reason for him
to own the whole river, however. Thus, for both the underground
and surface rivers, the first appropriator and later buyers own
the first used portion of a river flow, and the next appropriator
owns the next downstream portion used.

Further, if
downstream citizens wish to build a dam and flood upstream land
in order to protect themselves against floods, they must, in a libertarian
society, do two things:

  1. buy the
    rights to the water they propose to control, and
  2. buy the
    land to be flooded. If they want to preserve forests to avoid
    droughts, they can buy the forests from their private owners.

I
hope these remarks may prove helpful.

Murray N. Rothbard,
Economist
New York City

Murray
Rothbard Archives

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