Water law in common law cultures - Getzler's synthesis

The latest issue of Western Legal History is dedicated to the topic of "Water", and I plan to post on a number of the pieces in this issue. 

I'll start with Joshua Getzler's masterful survey of water law in Britain and many of the territories it ruled at various points in history, "Ownership and Control of Fresh Water in Common Law Cultures". Getzler manages not only to integrate major developments in many legal systems - including those of the US, Canada, Australia, New Zealand, India, and Mandate Palestine - and across nearly a millennium (beginning with Bracton), into a succinct and coherent whole, but he does so while elegantly connecting classical doctrine with current concerns, such as environmental protection and indigenous water rights. 

One aspect of the article that I particularly liked was its unpacking of the intertwined and often contradictory lines of thought in the common law, which Getzler deftly connects to Romanist and feudal ideas of property.

I highly recommend this article to anyone looking for a broad yet succinct survey of the history of water law.

(For more on water law in the British Empire, see my posts here.)

Public rights and standing

Owen Smitherman has posted "History, Public Rights, and Article III Standing", forthcoming in the Harvard Journal of Law and Public Policy. The abstract:

For decades, legal academics have complained about a conflict between history and the doctrine of Article III standing. First in Spokeo v. Robins (2016) and then notably in TransUnion LLC v. Ramirez (2021), Justice Clarence Thomas presented a halfway resolution. Thomas grounded Article III standing in a historical distinction between private and public rights. Suits for violations of private rights would require no showing of concrete injury-in-fact. Suits for violations of public rights would require the showing of special damage, a term borrowed from the public nuisance tort.

This Article questions this effective retention of injury-in-fact for public rights actions. In Part I, I explain Justice Thomas’s nuanced approach to Article III standing. In Part II, I investigate old English and early American materials on special damage to flesh out the meaning of Thomas’s requirement for public rights standing. I find a lack of historical consensus on the content of the special damage standard. Some materials go this way, others go that way, and still others another way. The materials do not align on a precise standard, making it difficult, either as a matter of 1788 original meaning or later liquidation, to operationalize Thomas’s special damage requirement. In Part III, I argue that there are good reasons to doubt that the requirement of special damage is constitutionally relevant to the original meaning of Article III. The Framers did not discuss special damage in relation to Article III. The traditional rationale for the specific damage requirement does not have constitutional significance. And it seems implausible that the Constitution incorporated a legal doctrine in such flux without textual indication. In conclusion, I critique the current Court’s lack of attention to original meaning for Article III standing.

Justice Thomas (Stetson University)

Not so fast: Nature versus the Common Law concludes

I haven't posted in the last few weeks, leading my friends at the Legal History Blog to reasonably conclude that my series on Nature versus the Common Law was finished. But now I have some time to post what is in fact the final installment in the series.

The posts in this series, based on my article in Clio@Themis, aimed to illustrate a once-common way of thinking about law and legal claims, in which the natural environment was held not only to provide the physical background on which polities and their legal systems existed, but to demand from these legal systems a measure of accommodation. For some judges, it is true, the demands of nature, however worthy or desirable from a social or economic point of view, had no place in court; a judge's role was to resist such claims in the name of the law. For many others, however, environmental realities might be imbued with normative force powerful enough to outweigh considerations of legal precedent and tradition. Moreover, while environmental differences could sometimes break the chains of black-letter law, environmental similarities might at the same time create new legal bonds, as in the Indian and Canadian cases that looked to the law of the independent United States of America, with is great rivers, for legal guidance. All this is to say that in the context of water law in the British Empire, nature could often be "jurisgenerative", to use Robert Cover's term – creating law.

The environmental rhetoric of these courts may, at first glance, seem but a particular instance of the wider phenomenon of colonial and newly independent courts working to stake out the independence of their legal systems from the law of the old country. Yet this would be a mistake: Most of the judges arguing for nature's normative force were themselves British; and in the cases examined here even judges of the independent United States argued not for a general rejection of the English common law, but for the inapplicability of some of its water law rules due to supposed environmental incompatibility.

In conclusion, though, it should be noted that this study has shown that nature also had a "jurispathic" role, impeding the smooth flow, or "transplant", of legal norms around the empire. Legal norms, in particular the common law, spread around the British Empire through a network of orders, legislation, publications, correspondence, educational institutions, career paths, and more. Yet the spread of norms, never smooth, was hampered by a number of factors, some of them natural : distance, forbidding seas, and monsoon winds, to name a few. These factors impeded the transmission of legal ideas and norms in all areas of law. At the same time, this study has highlighted an additional mechanism through which nature sometimes frustrated the spread of norms: perceived environmental similarity and difference.

Nature thus had a dual normative role in this context: creating new norms while at the same time extinguishing others. One need not take a deterministic view of the place of nature in legal history, nor recognize in nature any sort of agency of the intentional kind, to acknowledge that nature had an important role in constituting the connections that both facilitated and obstructed the global flow of water law in the age of empire.

Yet if the first set of law-impeding environmental factors, deriving from physical impediments to legal communication, has historically applied with similar force across all areas of law, the efficacy of the latter mechanism, based on perceived environmental factors, presumably has been correlated with the degree to which the area of law directly dealt with environmental issues. With regard to water law, as we have seen, whether environmental conditions in fact dictated or determined the rejection of common law norms, it is clear that judicial perceptions of nature did play a role in impeding the spread of English norms in this field. I have argued elsewhere that forest law, too, was at least in some contexts heavily influenced by perceptions of environmental foreignness and change. Further study might reveal similar patterns with regard to other related areas of law, from sanitation regulation to wildlife protection.

Happy spring holidays!

Nature versus the Common Law VI: Diversion of water

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]".

In the leading case of Evans v Merriweather in 1842, the Illinois Supreme Court advanced a distinction: An upper riparian might reasonably consume all the water in the stream if his use were a "natural" one, necessary for existence, but not were it to be considered "artificial", for the mere increase of "comfort and prosperity". The court then suggested that the application of this distinction would vary depending on natural conditions:

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:

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 […]

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 :

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.

Why are California's fires worse than those in Baja California?

California's Camp Fire, November 2018

Peter Reich recently posted "What Happened to Hispanic Natural Resources Law in California?". The abstract:

Before the US annexation of California in 1848, the region’s Spanish and Mexican governments supervised a geographically-adapted legal system emphasizing communal water rights and public allocation of minerals, land, and coastal areas. While many post-takeover judges considered Hispanic legal principles, the overall trend was to reject these in favor of common law. The prior anti-developmental tradition was in most cases distorted, overridden, or procedurally blocked, and the jurisprudence replacing it facilitated resource degradation that has been only partially reversed by California’s modern environmental policy. As one example, the stark contrast between fire zone rules in Mexico’s Baja California and in US Southern California, and the resulting far more destructive conflagrations in the latter, demonstrate the advantages of the more managed, sustainable Hispanic approach.

Digital Library VI: The Laws of England Relating to Public Health (1848)

This weeks addition to the digital library of historical environmental law is Joshua Toulmin Smith's The Laws of England Relating to Public Health, published in London by S. Sweet in 1848. The full title continues: Including an Epitome of the Law of Nuisances, Police, Highways, Waters, Water Courses, Coroners, Burial, &c. Relating Thereto; with an Historical Review of the Law of Sewersl and an Examination of the Proposed Measure of Sanatory* Legislation Now Before Parliament. As you can tell from the title, "public health" in the Victorian era included much of what we would today label "environmental law".

You wouldn't know it from the title, but Toulmin Smith was a major critic of England's mid-nineteenth century public health legislation, as Noga Morag-Levine has explained. A sort of "free-market environmentalist" of his time, he argued that the new centralized, administrative regulatory mechanisms enacted under Edwin Chadwick's reformist program--what Toulmin Smith called "empirical legislation"--were inconsistent with the English constitution, which (he argued) required regulation through the common law. (Compare Philip Hamburger's recent arguments in this vein.) So Toulmin Smith's work was more of an attack on contemporary environmental and health regulation than a treatise summarizing the law, as he explained in his Introduction:

The object of these pages is very simple. It is to show that the care, by law, for the public health, and for removing causes injurious to public health, is no new thing : that the law of England has ever had a most careful regard for all that concerns the public health: that the principles of the common law in reference to the matter are clear and decisive, and may be taken as models of what law should truly be in its regard for the welfare of the people. It is, further, to show that though, as manners and customs change with passing time, the machinery for carrying out certain principles of law into practice may be modified, those principles, based as they always are on national peculiarities, ought never to be neglected for the sake of introducing novel or speculative doctrines. Thus, it being a principle of the common law that any noxious accumulation is a nuisance which ought to be abated, it may be of little importance whether it be abated, in one age, by the bailiff of the court leet, or, in another, by the inspector of police; but it is of very great importance that new and theoretical remedies, interfering with numerous private rights and honest prejudices, should not be introduced and made compulsory.

The Common Law of England has been, in all ages, the great bulwark of the liberties of Englishmen. It is just in proportion as the principles of that common law have been neglected or superseded that those liberties have been endangered. And the people are bound to take care that, in the anxiety for sanatory improvement, no fresh invasion of those liberties do take place. For this purpose it is necessary that the principles of the common law be well known to the people themselves ;—and it is desired to be understood that these pages are addressed, for that purpose, to the general reader ; and that it has, therefore, been endeavoured to divest them of technical treatment.

It seems that Toulmin Smith's anti-regulatory agenda also made him something of a cholera skeptic:

Digital library II: A Treatise on the Law Relating to the Pollution & Obstruction of Watercourses (1877)

Following up last week's post on Michael Lobban's piece on the British Rivers Pollution Prevention Act, 1876, the second work to be added to our digital library of historical environmental law is Clement Higgins's A Treatise on the Law Relating to the Pollution & Obstruction of Watercourses, published in London by Stevens and Haynes in 1877 (a year after enactment of the water pollution legislation). (An 1882 advertisement for the work is here.)

Just as the treatise on game law covered here last week emphasized the inherent conflict of interest between different social groups and the distributive effects of the law, Higgins writes in the Preface:

It is to the interest of the public, and to the majority of riparian proprietors, to protect the purity of our rivers, whereas it is generally to the convenience of sanitary authorities and of manufacturers to pollute them.

An attempt is made in this book to place before the protectors of our rivers the nature of their rights and how they may best be protected, and before the polluters of our rivers the extent of their liabilities and how they may best be met.

The author was apparently not only a barrister but also a scientist, "formerly Demonstrator of Chemistry at King's College, London".

The treatise is divided into two parts: Part I covers the 1876 statute, organized around different types of pollution: solid matter, sewage, manufacturing effluents, and so on. Part II, entitled "Riparian Rights and Their Protection", covers the common law of water rights with an emphasis on issues of pollution.

A long appendix reproduces statutory provisions on the subject, a useful resources for any historian wanting to understand the environmental regulation of the time, anchored in laws that we might not recognize as "environmental" today, such as the Metropolis Management Act, 1855.

Historical analysis in environmental law I: Introduction

This past summer I noted that I posted a draft of my "Historical Analysis in Environmental Law" (on SSRN and Academia), forthcoming in the Oxford Handbook of Historical Legal Research, edited by Markus Dubber and Chris Tomlins. I believe there's still some time for modifications, so I'll post a series on it now, and hope some of you will have some helpful comments!

Environmental law has no history.

This is not to say environmental law has no past; indeed, scholars are beginning to uncover its historical roots. What I mean by having no history is, first, that there is a general feeling, common to legal historians and environmental lawyers (particularly in the United States), that environmental law is something new under the sun, having emerged in the 1970s from the environmental crises of the preceding decade (such as the Cuyahoga River catching fire) and a contemporaneous sharpening of ecological consciousness (spurred, most prominently, by Rachel Carson's Silent Spring). Modern environmental law lacks of connection both to earlier periods and to the great themes and trends of legal history.

The general view of environmental law's history is that before circa 1970 environmental regulation as we think of it today—a branch of public law in which the regulator sets standards for activities with environmental impacts—was insignificant. Rather, it is taught, the environment was regulated through nuisance law—a system relying on private parties, or sometimes the government, bringing a lawsuit to enjoin environmentally harmful activities or obtain damages for environmental harm: "Prior to the explosion of environmental legislation in the 1970s, the common law was the legal system's primary vehicle for responding to environmental problems.... The common law relied largely on nuisance law doctrines to resolve environmental controversies..." (Percival et al, 63) Some look to this period as a lost golden age; others see it as having been a workable system for its time; while yet others condemn it as a failure.

This view of modern environmental law being created ex nihilo in a moment of crisis is, first and foremost, inherently implausible.

Animal welfare law in Scotland

Daniel James Carr recently posted "The Historical Development of Animal Welfare Law in Nineteenth Century Scotland". The abstract:

This paper examines the development of animal welfare in Scotland. Whilst the law developed in tandem with developments across nineteenth century Britain, the paper draws attention to the distinctive Scottish situation. By examining the development from disparate common law protections to the statutory interventions of the nineteenth century the paper charts that development, and begins to place it within nascent 'humanist' movements emerging around this time. The piece examines how the Scottish doctrinal law took a distinctive direction in decisions, and in particular considers contemporary opinion. The paper is the first to take a look at the particular Scottish development and opens up new avenues of research into the nineteenth century, and also frames developments in the modern law which I will pursue in future research.

Inter-imperial riparian law VI: Miner as an inter-imperial legal authority and Conclusion

On Friday we discussed the place of French and American law in Privy Council water decisions, leading up to the seminal 1858 case of Miner v. Gilmour. Today we'll look at how Miner became an inter-imperial authority, as Lord Kingsdown's summary of the relative rights of riparian owners was cited widely throughout the British Empire and beyond (for examples of the case's influence, see the article on which this series is based).

Though arising in a case in which the applicable law was the old French law of Canada East, on the imperial periphery, it was taken as a faithful exposition of the common law of England, the imperial metropolis. In the 1876 case of Lyon v. Fishmongers’ Company, for instance, dealing with the right of access of riparian owners to the River Thames, the House of Lords (at the time the highest court for cases arising in Britain itself) referred to it as one of ‘the best authorities’ on riparian doctrine.

"a lord of appeal" [Colin Blackburn].
(Spy, Vanity Fair, 19 Nov. 1881)

Perhaps the most interesting reliance on Miner (for our purposes) in the water jurisprudence of the British Empire came in two decisions authored by the British judge Colin Blackburn. In the House of Lords case of Orr Ewing v. Colquhoun (1877), Blackburn rejected the rule of Scottish law applied by the Scottish court below, arguing (inter alia), "If such be the law of Scotland it is different from what Lord Kingsdown, in [Miner v. Gilmour], states to be the law of England and France". Lord Blackburn, it seems, was ready to modify the law of the metropolis (albeit of Scotland, a jurisdiction of secondary importance, and one in which the civil law, not the common law, applied), bending it to conform to the law as laid down in Miner, a case governed by the law of a foreign empire.

A few years later came Commissioners of French Hoek v. Hugo, an appeal to the Privy Council of a judgment of the supreme court of the Cape Colony, in today’s South Africa.  Governing the dispute over the waters of two small watercourses was what is known as Roman-Dutch law. This was the law in force in the Cape Colony when it was ceded by the Dutch to the British at the end of the Napoleonic wars (the metropolitan Netherlands had by this point adopted the Napoleonic Code for use in the home country), and, as the colony had been conquered from another state, not “settled”, this was the law that remained in force under British rule. Like the pre-Revolutionary French law in force in Quebec, Roman-Dutch law was based largely on the writings of learned ‘civilian’ jurists writing in the Roman law tradition. Indeed, in addition to Cape Colony cases and Roman-Dutch sources, lawyers for the appellants cited French treatises in support of their argument.

Writing for the Privy Council in French Hoek, Lord Blackburn referred approvingly to the summary of the law of riparian rights in Miner v. Gilmour, seeming to attach some importance to the similar positions of the Roman-influenced civil law in Canada East and the Cape Colony:

Inter-imperial riparian law V: Encounters of legal empires in Miner?

Yesterday I discussed why American water law may have been attractive to judges applying French law in Canada. Today we move the focus back to London and the Privy Council:

The reliance by counsel in Miner v. Gilmour on American sources for a question of French law, along with the court’s conflation of the French law and the common law (discussed in Part III of this series), would seem to be a faithful expression of the water law of Canada East, with its own heavy reliance on American sources and blending of the French law and common law, often by way of citing those same American sources.

W. Holman Hunt, The Right Hon. Stephen Lushington (1862)
(Victorian Web)

Moreover, the incorporation of the civil law into the common law of waters and the export of this mélange throughout the common-law world might be seen as the product not only of a one-time encounter with the law of Canada East in Miner v. Gilmour, but of an ongoing engagement with this odd jurisdiction, at once an integral part of the ascendant British Empire and the offspring of the old French Empire. Thus we find the Lower Canada case of St. Louis v. St. Louis, discussed earlier for Chief Justice Sewell’s use of Kent as authority for a point of French law, making its way to the Privy Council in 1841. The judge who delivered the judgment of the Judicial Committee, Stephen Lushington, a prominent and knowledgeable English civilian lawyer (he was a judge on ecclesiastical and admiralty courts, enclaves of civil law in the English legal system), was also a member of the panel that decided Miner v. Gilmour. Might the bold statement of the court in Miner, according to which riparian rights in the common law were essentially the same as in the civil law, have been influenced by Lushington’s exposure to precisely this attitude by the American-Canadian judge Sewell in St. Louis?

Sewell’s view in St. Louis may have influenced the common law of waters through yet another route, as well. Sitting alongside Lushington on the Judicial Committee to hear the appeal of Sewell’s judgment in St. Louis v. St. Louis was James Parke, the dominant judge on the English Court of Exchequer. Within the decade, his court decided two cases—Wood v. Waud and Embrey v. Owen—which were the first English cases to adopt the American law of riparian rights, relying heavily on Kent, Tyler v. Wilkinson, and French sources.  Could the Lower Canada case of St. Louis v. St. Louis have made an impression on Baron Parke, leading his court to base modern English riparian law on French and American sources?

Here we encounter a methodological difficulty—distinguishing between inter-imperial influences on the one hand, and transnational influences of the ‘ordinary’ kind, between two national jurisdictions, whether imperial metropolises or not, on the other. Put more concretely, was the intermixture of the laws of the old French Empire and the new American one in the courts of the British Empire a true inter-imperial encounter? Or might it be better conceived of as a case of British judges being influenced by the laws of France and the United States, two national jurisdictions the laws of which they were inclined to consider by factors such as geographic proximity, cultural affinity, common legal origins and the availability of law books, independently of their crossed imperial histories?

Inter-imperial riparian law IV: The attraction of American law

Yesterday I discussed the extensive use water law judicial decisions in the courts of Lower Canada, with its pre-revolutionary French property law, made of American sources. Today I discuss why they may have looked to a jurisdiction that had never belonged to the old empire from which the local law derived, and no longer belonged to the new empire of which Canada was now a part.

 Hon. Justice T.C. Aylwin (Library and Archives Canada)

In his dissent in the 1859 case of Boswell v. Denis Judge Aylwin indicated one reason why Canadians may have preferred American law over French in some cases. According to French law, a ‘navigable and floatable’ river was a public one, in which the public enjoyed rights that could not be impaired by the riparian owners. As the river in question in Boswell, the Jacques-Cartier, contained rapids and was therefore not ‘navigable’ by boat traffic, the majority of the court straightforwardly applied the French test and ruled that it could not be considered a public river. Aylwin objected to this analysis: ‘Our rivers cannot be compared with those of France or Europe; the Jacques Cartier is a good sized river and has plenty of water,—it has rapids it is true, but […] I believe the river to be both navigable and flottable.’ Following a tradition going back to Montesquieu and further, Aylwin argued that French law could not apply unmodified in North America, as it was developed for a different set of environmental circumstances. Similarly, in a 1905 case Justice Trenholme of the Quebec King’s Bench noted that American authorities on the question of navigability ‘possess more than ordinary interest for Canadian Courts, as the conditions there were and are precisely like those in our country’.

Yet it seems this was not the only reason for Canadians’ turn to American water law. Returning to Brown v. Gugy, it is significant that the American case which Judge Aylwin preferred over the lower court’s ruling was from Louisiana, the only American state which based its legal system on (French) civil law. Moreover, Kent’s discussion of water law (like his discussions of many other subjects) was replete with references to civilian sources. In the pages quoted in Aylwin’s opinion (sections 6 and 7 of Kent’s Lecture 52), the American jurist cited a large number of American and English cases, as was appropriate for a work purporting to be a commentary on American law, but his very first citations were to civilian sources: Justinian’s Digest, Pothier’s Traité du Contrat de Société and Toullier’s Droit Civil Français. Later in the section, he cited again to Pothier, quoted with approval a maxim of Roman law and stated that the Code Napoléon established the same rule as said maxim.

Later commentators have divided as to what extent Kent’s use of civilian sources was substantial or rather mere window dressing, with Alan Watson arguing that Kent’s use of the Roman and French sources in the section cited above was riddled with errors and that it provided little support to his exposition of riparian rights.  Nonetheless it seems that Judge Aylwin saw Kent as a good civilian source, prefacing his long quote from the Commentaries thus:

Inter-imperial riparian law II: The Law in Miner v. Gilmour

Continuing where yesterday's post left off:

As the judges of the Privy Council recognized, the law governing the conflict between Miner and Gilmour over the waters of the Yamaska was not English law. Quebec, before being conquered by the British in 1760, had been part of the French Empire. A royal edict of 1663 had declared the law of New France to be the law as applied in the Parlement of Paris.  This law included royal ordinances, Roman law as expounded by jurists, and the sixteenth-century official collection of the customary law of Paris known as the Coutume de Paris. The Quebec Act of 1774, passed by the British Parliament a few years after the British conquest of Canada from France, declared that the laws of property existing in the province of Quebec pre-conquest would remain in force under British rule.

The water law applicable to the case at hand was thus the law of the old French Empire, that is to say the law of ancien régime Paris, ironically no longer in force in France itself after the adoption of the Napoleonic Code in 1804, but preserved in British colonies that had been conquered from the French. Indeed, the lawyers arguing the case before the British court in Westminster cited the civilian Digest of Justinian, the great French scholar Pothier and said Custom of Paris.

Sitting of a Judicial Committee of the Privy Council
(Illustrated London News, vol. 8, no. 206, 11 April, 1846, p. 1)

The encounter between French and English law did not end with this infusion of French imperial law into a British imperial courtroom, nor with its application by British judges at the seat of imperial power. Despite the lack of formal authority for English common law in the civil-law jurisdiction of Canada East, the lawyers for Miner and Gilmour before the Privy Council cited not only the civilian sources mentioned above, but also recent English case law on the subject of riparian rights. The judges of the Judicial Committee were impressed with the ‘great learning and ingenuity’ displayed by counsel, and scheduled an unusual second round of oral arguments. Yet after all this learning and argument, they arrived at a surprising conclusion: ‘It did not appear that, for the purposes of this case, any material distinction exists between the French and the English law.’ According to both legal systems, the court opined, Miner could not demand that Gilmour keep the dam gate closed all the time, since a riparian proprietor had ‘no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury’.

The decision’s exposition of this and other principles of what Lord Kingsdown, writing for the court, termed the ‘general law applicable to running streams’—that is to say the law of riparian rights, according to him common to French and English law—went on to be cited extensively throughout the British Empire and beyond as the definitive statement of the rules of riparian rights in the common-law world, as will be discussed in a later post.

Inter-imperial riparian law I - Introduction: Inter-imperial law in an inter-imperial court

It seems I forgot to mention my own article when I posted it a while back. "Riparian Rights in Lower Canada and Canada East: Inter-Imperial Legal Influences" was published as chapter 4 of Imperial Co-operation and Transfer, 1870-1930: Empires and Encounters (Roland Cvetkovski & Volker Barth eds., Bloomsbury, 2015). I'll do a few posts based on the article now; for the full version, please see the book.

One of the most dynamic areas of law in the nineteenth-century Anglo-American world was that of water rights, or, as it was typically denoted then, “riparian rights”. This body of law dealt with the relative rights of owners of land adjacent to water—riparian land—to use the flowing waters, whether for power, irrigation, transportation, fishing, or waste disposal. The historical development of the law in this field in the nineteenth century has been analysed from several points of view, including economic property theory and Marxian legal history.  Transnational aspects of the subject have not been neglected, as some have highlighted the transatlantic—that is, Anglo-American—framework in which this body of doctrine developed, and others have examined the use of Continental, civil law sources by some of the American jurists responsible for that development.  Yet the inter-imperial aspect of this story, in particular the meeting of the laws of the British and French Empires, has gone unremarked.

The court case of Miner v. Gilmour can be seen as the epicentre of this inter-imperial encounter. The case began as a conflict in the 1850s between two prominent citizens of the Eastern Townships village of Granby, in the part of Canada then known as Canada East (in the half century preceding 1841 called Lower Canada, the southern part of today’s Quebec). Harlow Miner’s tannery on the south bank of the Yamaska River, the town’s major industrial enterprise, was powered by water directed from a dam in the river, but Francis Gilmour, the town’s store-keeper, had been opening a sluice on the north side of the dam in order to allow the water to flow through and power his gristmill downstream. In order to put a stop to Gilmour’s interference with his business, Miner brought a lawsuit in the Superior Court of the District of Montreal.  When the court ruled in Miner’s favour, ordering Gilmour to cease and desist diverting water away from Miner’s mill, Gilmour brought an appeal to the Court of Queen’s Bench of Canada. Here the decision went in his favour, and the court dismissed the plaintiff’s suit. Unsatisfied with this result, it was Miner who appealed this time, making use of the only remaining judicial recourse available to him, an appeal to the Judicial Committee of the Privy Council in London.

The Privy Council, an organ of the British monarchy, was for years the executive body through which British overseas possessions were governed, also hearing appeals from the courts of these colonies. In 1833, in an effort to give these appeals a more judicial character, Parliament created the Judicial Committee of the Privy Council, composed primarily of judges from other British high courts. Though formally not a court of law—the members of the committee did not wear judicial garb, they sat around a table with the parties’ counsel and their decisions were, strictly speaking, merely recommendations to the monarch, who would then issue an order giving force to the recommendation—in practice it functioned like a court, and was treated as such by all. This new judicial body was tasked with hearing appeals from overseas possessions (as well as from the British court of Admiralty and ecclesiastical courts).

The Judicial Committee, hearing cases from far-flung possessions around the globe, was an imperial institution par excellence. The nature of litigation in the common law, adversarial, system—in which the parties, not the state, generally determined if and when court proceedings would be conducted, and on what legal grounds—meant that the court’s agenda was largely shaped by the decisions of litigants in the courts below. Nonetheless the Judicial Committee’s worldwide jurisdiction, along with its judges’ parallel tenures on other British high courts, gave it a potentially harmonizing and homogenizing role; ‘The assumption was that there could be cohesion and certainty in the legal system of the Empire only if appeals could be referred up to a judicial body in London.’ (Cornish, Lobban, Smith, "Empire’s Law", p. 245)

At the same time the Judicial Committee was in effect an inter-imperial institution.

Water and the civil-common law divide

The next article from the special issue of Western Legal History on Southern California water is Peter Reich's own "The All-American Canal and the Civil-Common Law Divide". Reich writes:

The wide divergence in legal doctrine between civil law in Mexico and common law in the United States illustrates why resolution of water disputes... has been so difficult. Mexican water rights, descended from Roman and medieval Spanish concepts and applied in the northern territories that became the U.S. Southwest after 1848, have traditionally been shared among various users, especially during times of drought....
U.S. water law... differs significantly from Mexican law, particularly in the western states, which developed the doctrine of prior appropriation granting an absolute, exclusive legal right in surface waters and underground streams to the first beneficial user....

These conflicting water doctrines have affected not only internal jurisprudence in Mexico and the United States, but their relations with each other as well. In 1928, the two countries' representatives to the International Water Commission were negotiating the status of existing diversions from the Colorado and Rio Grande, and the American section proposed that, as a matter of comity, such uses be recognized and confirmed as prior appropriations. The Mexican section rejected the proposal, stating that it could not agree to any restriction on its sovereignty over river tributaries within its own territory, and so could not recognize even established uses of this water on the other side of the border....

Due to these doctrinal disparities, Mexico-U.S. water disputes have been addressed largely through diplomacy rather than the courts....

Notwithstanding divergent legal regimes and diplomatic limits, a few examples of Mexico-U.S. legal integration suggest opportunities for water law harmonization. The traditional Roman distinction between gradual accretion and rapid avulsion of watercourses became the basis for the International Boundary Commission's settling ownership of the Rio Bravo/Rio Grande bancos (sandbar islands). Bancos were allocated in the Colorado River on the same basis.... [T]he commission used a legal historical source, in this instance an ancestor of Mexican civil law, to fill a gap and reconcile two divergent regimes.

Colorado River Dry Delta, terminus of the Colorado River
 in the Sonoran Desert of Baja California and Sonora, Mexico

Waste and legal-historical methodology

Joe Jones, Wastelands (c. 1937)

Jill Fraley recently posted "Waste Law", a critique of Morton Horwitz's influential account of the changes in American property law brought about by industrialization, and of the methodology she thinks supported his work. For the uninitiated, "waste" is the common-law doctrine that says that tenants of real estate cannot make changes to the property to detriment of those with future interests in the land; Adam Wolkoff explains its significance from an environmental history perspective here. Fraley's abstract:

The history of waste law, posited as a radical transformation from the traditional English rule to a uniquely American one to support resource exploitation, provided a cornerstone for Morton Horwitz’s influential view of the transformation of American law. While Horwitz’s general approach to the transformation of law has been critiqued, his economics-driven view of waste law has remained the primary narrative from textbook to scholarly accounts. Yet Horwitz’s account of waste law’s transformation lacks evidentiary support. Indeed, the story of waste law has remained half written because scholars have examined the American doctrine without considering the prior and concurrent English cases. This article provides a previously unwritten history of waste law and demonstrates that despite vastly different social and economic contexts, American courts and English courts shifted roughly contemporaneously and in parallel. Both jurisdictions shifted in response to innovations in surveying technology and title recordation. For American courts, the changes were both less radical and less American than previously suggested, maintaining a deep fidelity to the English tradition.

Given that Horwitz’s overall theory of transformation has been criticized and that the evidence so little supports Horwitz’s account, the traction of Horwitz’s narrative of waste presents quite a quandary. By examining the resilience of Horwitz’s narrative, this article suggests a critique of the methodology of legal history. By overly focusing on social contexts, historians have allowed themselves to be anachronistically biased, viewing transformations of law through a lens of the inevitability of industrialization. While social contexts provide key data points, the law and society methodology does not absolve historians of their duties to doctrinal investigation. When scholars examine transformations through the lens of social context without engaging the history of doctrine, they risk distorting the role of law as an independent, stable, and internally consistent structure of society — one that promotes social stability and affirms existing rights and investments, particularly where property is concerned. Only by reintegrating and reaffirming the role of doctrinal investigation can we mold a more accurate method of examining the transformations of American law.

Public and private rights in waterways

I recently came across Maureen Brady's "Defining 'Navigability': Balancing State-Court Flexibility and Private Rights in Waterways". First the abstract:

Over the course of American history, state courts have eliminated property rights in waterways through a quirk of public trust law: declaring the water in question to be “navigable” makes it public property, while declaring it “non-navigable” leaves the water subject to private control. The historical record is flooded with examples of these declarations by state courts. While some navigability rulings have protected public rights in waters against irrational private claims, others have abused this peculiarity to seize private property to placate irate, and even violent, interest groups.

The scope of this authority to make navigability doctrine — especially whether it gives state judges the ability to change the definition of “navigability” once declared — is unclear. Current law fails to curb abuses of navigability doctrine and pays scant attention to constitutionally protected property rights. These issues are particularly salient today: prompted by large-scale water diversions, droughts, and fears of water shortages, twenty-first century litigants wishing to prevent water privatization are increasingly seeking new judicial declarations of “navigable” waterways.

This Article provides an original history and analysis of state-law navigability doctrine and the limitations that should be implemented. First, it shows how this unusual common-law authority was created and how state courts exercised it in two moments in history when water rights became vitally important: the explosion of American development in the mid-nineteenth century and the rise of the environmental movement in the mid-twentieth century. Building on this history, this Article argues that to avoid abuses while permitting reasonable exercises of judicial power, navigability must be viewed through a national constitutional lens. The Takings Clause and Due Process Clause — independently or in combination — can provide guidelines that permit evolution while safeguarding individual rights.

I'm not sure about this last part - how can we know if property was taken without reference to state court decisions about the limits of private rights? The history of expansive definitions of navigability is a long one, outside the US as well.

For more on public rights in navigable streams, see here and here.