• 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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