In the last installment in this series we looked at how the English rule on escaping water in Rylands v Fletcher was rejected in British India due to perceived differences in the environments and needs of the two countries. Today we look at a classic issue of water law, complaints by riparian owners of upstream water uses that interfered with their own uses. As with the issue of escaping water, what was considered "natural" could turn, here too, on local natural conditions.
The traditional common law rule of conflicting riparian uses – that an upstream riparian may not divert a stream's water to the (unreasonable) detriment of downstream owners – was explained by the court of King's Bench in 1625 (Shury v Piggot, 81 English Reports 280) in terms of natural law: "a water-course […] doth begin ex jure naturæ, having taken this course naturally, and cannot be averted" and "the nature of this [water-course] is to be current [i.e. to flow]".
The supply of man's artificial wants is not essential to his existence; it is not indispensable; he could live if water was not employed in irrigating lands, or in propelling his machinery. In countries differently situated from ours, with a hot and arid climate, water doubtless is absolutely indispensable to the cultivation of the soil, and in them, water for irrigation would be a natural want. Here [in Illinois] it might increase the products of the soil, but it is by no means essential, and can not, therefore, be considered a natural want of man.
What riparian uses were to be recognized as "natural", and therefore permitted, was thus dependent on the climate and environment. Irrigation would be considered an "artificial" use in the American Old Northwest, as it would be in England, but the court had legitimized changing the law if and when the common law spread to arid lands.
This way of thinking was crucial for the development of water law in the arid western states and territories of the United States, in which the traditional common law of riparian rights was rejected in favor of a new system. The new law, known as "prior appropriation", opened up water resources to appropriation by all, not just riparian owners, and allowed them to take as much of the water as they could put to beneficial use, regardless of the effect on later appropriators. An early case from Colorado discussed whether an appropriator could dig a ditch across another's land without permission, an invasion of property that would clearly not be allowed under the traditional common law. Along the way it advanced a general theory of the adaptation of property law to environmental conditions:
The principles of the law are undoubtedly of universal application, but some latitude of construction must be allowed to meet the various conditions of life in different countries. The principles of the decalogue may be applied to the conduct of men in every country and clime, but rules respecting the tenure of property must yield to the physical laws of nature, whenever such laws exert a controlling influence.
In a dry and thirsty land it is necessary to divert the waters of streams from their natural channels, in order to obtain the fruits of the soil, and this necessity is so universal and imperious that it claims recognition of the law. The value and usefulness of agricultural lands, in this territory, depend upon the supply of water for irrigation, and this can only be obtained by constructing artificial channels through which it may flow over adjacent lands […]. In other lands, where the rain falls upon the just and the unjust, this necessity is unknown, and is not recognized by the law. But here the law has made provision for this necessity, by withholding from the land-owner the absolute dominion of his estate, which would enable him to deny the right of others to enter upon it for the purpose of obtaining needed supplies of water.
Similarly, the leading case in the field explained why the common law of riparian rights could not apply in Colorado:
The climate is dry, and the soil, when moistened only by the usual rainfall, is arid and unproductive ; except in a few favored sections, artificial irrigation for agriculture is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it rises, when appropriated, to the dignity of a distinct usufructuary estate, or right of property.
[…].
We conclude, then, that the common law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inapplicable to Colorado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith.
These American courts, like Lord Sumner in Srinath Roy, depicted nature as practically a sort of legislature.
Some modern commentators have used decisions like these to support a deterministic theory of law, but that is not the argument here. In fact, at the same time as the Colorado courts here discussed were advancing their arguments about the power of arid environments to change the law, other courts in the common law world were rejecting this line of thinking. In Australia, for instance, where the climate was as arid Colorado's, courts consistently rejected attempts to argue that water law needed to change in response to the environment, and the law changed primarily through legislation. A series of decisions by the Privy Council and House of Lords in London similarly argued that the law of riparian rights was identical across legal systems.
This skeptical attitude toward the normative power of nature characterized the majority opinion in the leading California case of Lux v Haggin as well. In this case the state supreme court rejected the claim that California should follow Evans v Merriweather and allow diversion of water for irrigation as a "natural" use. It also rejected as unworkable the position that the law should vary across the state, with prior appropriation the rule in the arid portions of the state, and riparian rights applying "in the regions in which the climate more nearly resembles that of other states where the common-law rule is enforced". Most importantly for present purposes, it faced head-on the argument that environmental conditions on their own had normative force, contrasting them with political circumstances:
Since the [American] Revolution the common law of England has, of course, been inapplicable in the particulars that it does not harmonize with the political conditions on this continent […].
We know of no decisions which intimate that a difference in climatic or geographical conditions may operate to transfer a right of property from those in whom a right of property is vested by the common law.
So for the California court political changes had normative force; environmental differences did not.
Yet in a later California case, dealing with whether the use of underground water would be governed by a rule of "reasonable use" or rather follow the English rule allowing a landowner to extract groundwater indiscriminately, Justice Lucien Shaw of the state supreme court adopted the approach that the law must change with the environment. Citing many of the Pennsylvania and New York decisions discussed above, Shaw wrote:
Whenever it is found that, owing to the physical features and character of this state, and the peculiarities of its climate, soil, and productions, the application of a given common-law rule by our courts tends constantly to cause injustice and wrong, rather than the administration of justice and right, then the fundamental principles of right and justice on which that law is founded, and which its administration is intended to promote, requires that a different rule should be adopted […]
He then proceeded to outline "the conditions existing in many parts of this state, which are different from those existing where the rule had its origin":
In a large part of the state, and in almost all of the southern half of it, particularly south of the Tehachapi range of mountains, aside from grains, grasses, and some scant pasturage, there is practically no production by agriculture except by means of artificial irrigation. In a few places favored by nature crops are nourished by natural irrigation, due to the existence underneath the ordinary soil of a saturated layer of sand or gravel; but these places are so few that they are of no consequence in any general view of the situation.
Shaw's extended disquisition on the geography and history of California's water resources continued for over 1,000 words. He then went on to contrast California's environment with Britain's:
It is scarcely necessary to state the conditions existing in other countries referred to to show that they are vastly different from those above stated. There the rainfall is abundant, and water, instead of being of almost priceless value, is a substance that in many instance is to be gotten rid of rather than preserved. Drainage is there an important process in the development of the productive capacity of the land, and irrigation is unknown. The lands that from their situation in this country are classed as damp lands would in those countries be either covered by lakes or would be swamps and bogs.
The upshot of these natural differences (and the resulting economic and social effects) was, for Shaw, that the English rule of "absolute ownership" applicable to groundwater could not be applied in California; the state supreme court was practically bound by the nature of the state to adopt a different legal course. This type of reasoning was in line with that of the Colorado cases discussed above, but a departure from the attitude of Shaw's predecessors on the state supreme court in Lux v Haggin.
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