Nature versus the common law IV: Shifting watercourses

In the last posts in this series we looked at court decisions that discussed whether the ownership of rivers should follow the common law or change to reflect local environmental conditions. Another branch of water-related law dealt with the legal consequences of changes in the course of a river or a shoreline over time. The property-law questions thrown up by these changes, under the legal terms "alluvion" and "diluvion", were to whom newly formed dry land belonged – to the former owner of the dry land now submerged, or to the owner of the adjacent riverbed. The English rule, based on Roman law, was that gradual accumulations of land from water belonged to the to the owner of the land to which the new land was added, while gradual losses of land were lost to the landowner and became part of the river (Foster v Wright, 4 CPD 438 (1878)). Sudden changes in the course of a river, on the other hand, were held not to bring about changes in ownership of the bed.

One line of legal thought held that the English common law rules in this area of law applied everywhere. The English Court of Exchequer in 1839 (In re Hull and Selby Rwy, 151 English Reports 139 (Ex 1839)) opined that the common law of alluvion "is not peculiar to this country, but obtains also in others, and is founded on the necessity which exists for some such rule of law, for the permanent protection and adjustment of property." Similarly, seventy-five years later, the Privy Council rejected arguments that the English law did not apply to the Nigerian shoreline due to differences in the local conditions, Lord Shaw stating that the court did not doubt the "general applicability" of the English law of accretion. This, however, was the minority position.

Customary groundwater management in Japan

Recently published in Water History, Takahiro Endo's "The Kabu-ido system and factors affecting local groundwater extraction control: case study of a customary groundwater management in Japan". The abstract:

In the early 1800s, a water conflict occurred in a community named the Fukuzuka Ring Levee on the Noubi Plain, Japan. Upper villages required artesian wells for irrigation and domestic uses, but lower villages did not welcome them because drainage from the wells caused impoundment damage to their paddy fields. The Kabu-ido system was a set of rules, including regulation of the number of wells per village, introduced to de-escalate the conflict. Under the system, groundwater uses were controlled not by external authority, but by the community residents themselves. This paper has two purposes. First, it reconstructs the daily operations of the Kabu-ido system, principally by referring to surviving local diaries, to describe hitherto unknown details regarding the management of groundwater by local people 200 years ago. The diaries show that well managers, selected from residents, regulated the use of wells using various tools, including permission and surprise inspection. Second, this paper evaluates to what extent self-imposed numerical regulation was successful by checking the number of wells listed in village expenditure notes. The documents indicate that regulation did not always work. The factors underlying this are considered using the analytical framework from the commons studies. Analysis shows that, while institutional arrangements of the Kabu-ido system, such as well management with keys, rules of joint responsibility, and the prohibition of indoor wells, work positively in enforcing numerical regulation by lowering the costs of monitoring for unauthorized wells, the natural characteristics of groundwater and climate conditions such as sudden drought work negatively.

Noubi Plain

Nature versus the common law III: Canadian and Indian rivers

Bhanutpt, Krishna River

In the previous post in this series, we looked at how nineteenth-century American courts debated whether the common law rules of riparian rights applied to the grand American rivers, seemingly so different from those of England. But the question of whether the common law applied to environments unlike England's soon arose in territories around the British Empire as well. Robert Travers has argued that while judges in England had used ideas of natural law to modify the common law, in India natural law arguments were used in some contexts to support the replacement of local law by English norms. Here, however, we see the reverse, with nature invoked to reject English rules of water law in favor of new norms, felt to be more appropriate to the local environment.

In an 1842 case (Esson v M’Master, 3 NBR 501 (1842)) the New Brunswick Supreme Court noted the "great difference in the character of the small rivers of England and those of this Province", but thought that this consideration "may be thought more fit for the Legislature than the Court ". Yet the same court in 1849 (Rowe v Titus, 6 NBR 326 (1849)) adopted the ruling of an American court, following the argument of counsel that:

The principles of the law of England, in respect to rivers, cannot be applied to this country : there the rivers are not subject to such sudden freshets, nor are they used for the same purposes as in this country ; the cases therefore on this subject in the United States, where the rivers are used for the same purposes as in this country, will be very important.

The idea that Canadian courts should follow American courts rather than English ones when dealing with rivers was not limited to New Brunswick. In an 1852 case (R v Meyers, 3 UCCP 305 (1852)), Chief Justice James Macaulay of the Upper Canada (Ontario) Court of Common Pleas, after examining the English precedents which normally would be thought binding in the British colony, demonstrated the legal power of geography over the common law by contrasting English precedents with decisions from "this side of the Atlantic", lumping together American and Canadian cases without distinguishing between them. Macaulay's judgment was also significant in ruling that the test for navigability of a river was its "natural capacity", not its use in practice, once again demonstrating the normative power of nature. The influence of American jurisprudence was evident as well in an 1882 opinion of Justice Samuel Strong of the Supreme Court of Canada :

I do not hesitate to say that the rule which appears to have been adopted as a principle of the common law as administered in England, that no rivers are to be considered in law as public and navigable above the ebb and flow of the tide, is not applicable to the great rivers of this continent, as has been determined by the Supreme Court of the United States and by the courts of most of the States […]

The right to nature in 1880s Ireland

Just out in The Historical Journal is "The Right to Life, the Right to Nature, and the Impact of Irish Land on Political Thought in the 1880s" by Andrew Phemister. The abstract:

The Irish Land War was a pivotal conflict in the history of liberal political thought. With significant impacts on both sides of the Atlantic, events in Ireland were about more than Irish self-determination. Heavily reliant on a discourse of natural right, and asserting a relationship between land ownership and democratic-republican citizenship, the Land War provided a vehicle for popular radical opposition to an increasingly positivist liberalism. This article examines the rationales and political assumptions underlying the demand for land, and how such arguments catalysed an intellectual response among liberal political thinkers. Particular moral and metaphysical ideas about the distinctiveness of land allowed agrarian and labour radicals to reassert individualized but non-possessive rights to natural resources. Rooted in a materialist politics of the human body, this purposive conception of land posed a significant threat to claims for private property, social order, and the ameliorative authority of the state, pressing both liberal and conservative thinkers away from unstable notions of individual rights. The crisis over Irish land helped to shift the terrain of political argument away from questions of participation and popular power, and toward amelioration and public welfare.

Sic utere versus salus populi

In a series of publications, most importantly her 2009 book, Chasing the Wind, Noga Morag-Levine has argued forcefully for distinguishing between continental European-style "police" regulation and common-law-style environmental regulation based on a nuisance conception. The recent issue of Law and History Review has an interesting article by Morag-Levine, "The Case of Proclamations (1610), Aldred's Case (1610), and the Origins of the Sic Utere/Salus Populi Antithesis", in which she finds the roots of this distinction in English law much earlier than she has previously argued. The abstract:

At least since the middle of the eighteenth-century, salus populi (the people’s welfare) and sic utere (use your own without injuring others) have encapsulated alternative conceptions of regulatory power, with the former associated with continental police regimes and the latter with Anglo-American conceptions of limited government. This article finds the origins of this antithesis in the intersection of two landmark cases addressed by Coke in the fall of 1610: Aldred’s Case, sic utere’s foundational text, and the Case of Proclamations, where Coke disputed the legality of building and starch proclamations. The Crown had provided common-good justifications for these proclamations, but their beneficiaries had included the individual neighbors of smelly starch makers and obstructive new buildings who had been left unprotected by previously existing local law. Rather than acquiescing to centralized legislation enacted via proclamation or parliament, Coke hinted in Aldred’s Case towards common law nuisance adjudication based on the sic utere principle as the desired mechanism for overriding local law that had privileged injurious land uses. Like salus populi, sic utere served a centralizing function. But whereas the former invited expansive regulatory agendas, the latter conditioned interventions on a judicial finding of a nuisance. In this, Coke’s invocation of sic utere in Aldred’s Case presaged the maxim’s eventual role as a substantive limit on the police power.

from John Speed's 'The Theatre of the Empire of Great Britaine' (1611-1612) (British Museum)

More on nature versus the common law: American judges on American rivers

As I mentioned in a post last week, the first topic covered in my article "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World" is the question of whether the water, bed, or other resources of a non-tidal river belonged to the riparian landowners or to the state or public. 

While the civil law (for example Article 538 of the Code Napoleon) distinguished between private and public rivers based on tests of navigability and floatability, the English common law adopted a slightly different distinction : Tidal rivers were held to be the property of the Crown, while rivers and lakes above the reach of the tide were the property of the adjoining landowners, with each riparian owner owning the river from the edge of his dry land up to the median of the water body ("usque filum aquæ" or "ad medium filum"). Non-tidal but navigable bodies of water typically were subject to a public right or servitude of navigation, while the water, the submerged land, and other resources (such as fish) belonged to the riparian owners.

These rules were relatively uncontroversial in England, but in British colonies and the new United States they were often felt to be inappropriate to the environmental reality of other continents, in which rivers might be kilometers wide in some portions and navigable for thousands of kilometers above the reach of the tides, while freshwater lakes might bear a closer resemblance to seas than to the small lakes of England. In this context, a rule under which all non-tidal waters were private seemed problematic to many.

The first reported case in which the tension between the received law of England and the local environment arose was the 1807 Pennsylvania case of Carson v Blazer, in which a landowner along the Susquehanna River, near Harrisburg, demanded compensation from some fishermen who had fished shad from the river alongside his land4. As the Susquehanna at this point was navigable but not a tidal river, the common law rule seemed to be clear – the river, and the right to fish, belonged to the riparian owners. But Chief Justice William Tilghman, presiding over the trial, thought otherwise, distinguishing between the geographies of England and Pennsylvania :

Natural transplants

A few months ago the NYU Law Review published an article by Vanessa Casado Pérez and Yael R. Lifshitz, "Natural Transplants". The abstract:

Policymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions borrow from each other, scholars call this a “legal transplant”—as when one state copies another state’s innovations or when the federal government learns from the “laboratories of democracy.” This Article unveils a new dimension of legal transplants: transplants across subject areas. By transplants across subject areas, this article refers to instances when a jurisdiction looks for doctrines in other legal areas, often within its own legal system, when regulating a new resource or addressing a new challenge.

This Article makes three key contributions. First, it identifies a new type of transplant—between subject matters within a jurisdiction. Second, it analyzes the reasons for internal, cross-subject legal transplants and the criteria for selecting which subject areas to copy from. Third, the Article brings the legal transplants literature to bear, specifically, on natural resource law. It explores two cases, groundwater and wind energy, where policymakers and courts have borrowed from other resource schemes, often ignoring the scientific and social differences between these natural resources. Other areas of law, such as the incorporation of contract doctrines in landlord-tenant relations, are also described to show the explanatory power of the natural transplant framework. This conceptual framework is then applied to new mineral developments in space and the deep sea. Cross-subject transplants may be more prevalent than previously appreciated, and understanding them will pave the way to analyze the regulation of new developments in natural resources, infrastructure, and beyond.

Linnaea Mallette, Wind turbines in the ocean

Negotiating the maritime commons

Another chapter from the previously-noted book, Greening Europe, is "Negotiating the Maritime Commons: Protecting the Baltic Sea in a European Context", by Simo Laakkonen and Tuomas Räsänen. The abstract:

The environmental history of the seas and oceans has generally remained a relatively unexplored theme. This chapter addresses the environmental history of the Baltic Sea, which is a European sea par excellence and the only sea that is entirely located within the continent. We will examine the links between wider historical currents in Europe and the marine environmental history of the Baltic Sea by focusing on three environmental regimes from the end of the nineteenth century until the 1990s. The first environmental regime was developed on an urban level and prevailed from the late nineteenth century until the Second World War. The second environmental regime was developed from the 1960s until the 1970sonaninternational level in the Baltic Sea region. The third environmental regime, spanning the 1980s and 1990s, consisted of developing wider European cooperation. These three different environmental regimes continue to cooperate in the region even today.

Nature versus the common law

A little while back I published "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World" in the French journal Clio@Themis. The article explores some of the areas of water law in which courts around the common law world departed from the established rules of the common law in order to make the legal rules more appropriate, as they saw it, to the local environment. As the article shows, they did so consciously, explicitly granting nature normative force. It also looks at other courts and judges, ones that resisted this kind of normative claim, arguing that the law in new environments had to conform to the old common-law rules, regardless of what nature seemed to demand. 

The question of whether environmental factors required or justified a departure from the inherited rules of the common law arose in courts around British Empire and United States in connection with a variety of legal issues, four of which are examined in the article: a) the question of whether the water, bed, or other resources of a non-tidal river belonged to the riparian landowners or to the state or public ; b) conflicts over property rights following shifts in the course of a river ; c) the issue of the degree of liability of reservoir owners for damage caused to others by escaping waters ; and d) conflicts over whether water might be diverted from a river for irrigation, to the detriment of downstream landowners.

Discovery of the Hudson River, Albert Bierstadt, 1874

I'll be posting some selections from the article later.

Decolonising the Nile water agreements

The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international has an article by Fekade Abebe, "Exclusion vs Cooperation in the Utilisation of Transboundary Watercourses: The Case for Decolonising the Nile Water Agreements". The abstract:

The relationship between Egypt and Ethiopia was marked with tension for centuries due to the utilisation of the Nile river. Recently, it took a turn for the worst after Ethiopia announced it is building the Grand Ethiopian Renaissance Dam (GERD) on the Nile river. This article argues that one important explanation for the deep-seated disagreements between Egypt and Ethiopia is the history of the legal instruments frequently invoked which were set up to safeguard the colonial interest of Britain over Egypt and the entire upper Nile region. Britain’s use of these legal instruments to advance its colonial domination of the region, with disregard to the interests of native communities, had left a legacy of exclusive utilisation over the river which haunts the current legal discourse. The article argues that the Nile basin countries need to acknowledge this colonial legacy in the legal discourse and need to move towards cooperation.

The legal environment and communal irrigation

The latest issue of the International Journal of the Commons has an article by Steven M. Smith, "Dynamics of the Legal Environment and the Development of Communal Irrigation Systems". From the Introduction (citations removed):

Archinia, Acequia System of El Rancho de las Golondrinas

Given the importance of external forces to the success of the commons, calls to integrate political ecology with the commons literature are becoming a common refrain. The combination can be approached from both directions: how do power structures shape institutions and how do institutions shape power structures? I take a historical perspective to explore both questions and their dynamic relationship. Specifically, I consider how external legal changes alter the incentives for how local users organize themselves and how those changes in local organizations alters the political coalitions, affecting subsequent legal changes.

To explore the question, I document and analyze the evolution of the legal environment and the development of communal irrigation systems, known as acequias, in current day New Mexico, US. Acequias have been held up as a case of a long-lived successful communal management regime of a natural resource . In the region of study, some acequias date back to the 16th century when Spain first colonized the area. The acequias have experienced sizeable shifts in their external legal surroundings, most rapidly and significantly during the US territorial period (1851–1912), that can be used to assess the relationship of external legislation and communal irrigation systems.