I was reading "Who Owns Water" by Murray Rothbard as a part of Robert Wenzel's 30 day reading list ( http://mises.org/daily/2553/Who-Owns-Water ) and found Rothbard's anaysis quite peculiar.
He writes:
"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."
and "the water must be the appropriator's absolute property, not at the sufferance of the State."
These two passages give me the impression that any person who owns a given piece of river can use 100% of the water, if he so chooses. I completely agree with Rothbard, so far.
Then he writes:
"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:
buy the rights to the water they propose to control, and....."
Now at this point he implies that people living downstream of a potential dam legitimately "own" water that is not on their property. That is they demand that the upstream property owner use his property in such a way as to allow them contimued access to water, indefinetly.
Is this not a positive right? How can the water be the appropriator's absolute property, yet simultaneously belong to others downstream? It is collective ownership, by definition.
If we accept this dubious property rights claim, any development that alters the flow of any waterway that crosses a property line- even a tiny spring- would require consent from another owner. In wet areas any development at all could be easily stifled by a naysayer.
At the end of the day having water on your land is not a right- it is a priveledge. I could see how a neighbor who causes flooding to those downstream could be liable, but not someone who reduces the flow! There is no property violation, unless those downstream claim legitimate ownership of the water on someone else's land.
Am I misinterpreting Rothbard somehow? Are there libertarian arguments which describe why one person would have a legitimate claim to water that is located on another man's property?
Please help me straighten this out, as I know Rothbard would never openly support positive rights, although that is my interpretation of his position in this article.
That's cool. In the comments there you ask:
Isn't owning the "right" to have x amount of water flow over your property a positive right?
I would answer, yes... unless of course you are buying water from the upstream water owner. Assuming you aren't buying the service of having the upstream water flow down to you, then it would be an illegitimate positive right, to claim that the water should flow and that the upstream owner shouldnt direct it away from you.
Where there is no property there is no justice; a proposition as certain as any demonstration in Euclid
Fools! not to see that what they madly desire would be a calamity to them as no hands but their own could bring
How are you confusing the exhortation that they should buy the water that they propose to control with the statement that they have a positive right to water which they don't own?
In Rothbard's hypothetical the dam builders must own all the land which is to be flooded, now from who should they purchace the "rights to the water they propose to control" exactly? They already own all the land, they literally do controll it- the only reason a dam builder would have to buy "water rights" in addition to all the land in question is if people downstream claim partial ownership of the water on the dambuilder's property.
Rothbard's statement implies that people downstream hold some claim to water upstream.
The idea that a person upstream owes everyone downstream a certain amount of water is a positive right. The property owner is forced to leave x amount of water untouched for those downstream.
I think I detect your confusion.
Rothbard iss considering the right and wrongs of a downstream would-be-dambuilders possible courses of action. The downstream-would-be-dambuilder, IF he went ahead and built the damn, would cause flooding to lands UPSTREAM. This is the erection of a barrier so as to compell water to submerge land, who's land? If the upstream is owned by the downstream-would-be-dambuilder, then there is no conflict between downstream and upstream owner, as they are one and the same. This then is the solution. How to legitimately build a downstream damn, well you need to BUY the right to build your downstream damn, by either outright buying the upstream land, or else BUYING the consent of the upstream landowner to your proposed water pollution.
If you keep in mind the upstream/downstream land owners, and the direction in which the damn does property damage ( the *damage* flows upstream) then when we recast your question, it is exposed as beffudled. ( At least on my best reading !)
i.e.
In Rothbard's hypothetical the (DOWNSTREAM) dam builders must own all the land which is to be flooded, now from who should they purchace the "rights to the water they propose to control" exactly? They already own all the land(all the downstream land, not ALL the land), they literally do controll it- the only reason a (DOWNSTREAM) dam builder would have to buy "water rights" in addition to all the land in question is if people downstream claim partial ownership of the water on the (DOWNSTREAM) dambuilder's property.
To me it seems like you have missed out on including upstream in your question, and I can't therefore follow it. Apologies if I am reading your poorly.
After further consideration, perhaps you are alluding to the fact that building a damn could be said to be 'damaging' in both direction, upstream (flooding land) , downstream (causing drought). Is that what you were asking?
Here is my point of confusion, Rothbard writes: "
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:
buy the rights to the water they propose to control, AND [emphasis added]
buy the land to be flooded. If they want to preserve forests to avoid droughts, they can buy the forests from their private owners.
This sentence implies that both points must be implimented, and considering that it wouldn't make much sense to me for a downstream dambuilder to pay people upstream to use their "water rights", I can only conclude that he is talking about buying water rights from people downstream. If you own all the land to be flooded, the only people who would be affected are those downstream- right (the effect would be a more stable flow of water, with less flash floods)?
Maybe it's a typo, but I kinda doubt it.
thanks alot for bearing with me here- i've been thinking about this all day.
Yes, I think he is talking about buying water rights from people who would be affected by drought. Implying that those downstream have a "right" to their water. This is a positive right because the man upstream must set aside and provide water for the man downstream- or pay him for the right to use it.
In the damn-builder scenario he gives, he is not fully stipulating a detailed world of great intracacy. I read him as setting up two opposed owners. 'Upstream' and 'Downstream' , and then considering how something like a damnbuild could be achieved legitametely. I don't think he has considered a setup of 'Upstream' and 'Downstream' and 'Further Downstream' such that Downstream should buy Land from Up and Water from Further Down. But perhaps you disagree and think that thats the fairest reading of his article?
Your absolutely right, I just thought it was interesting that he identifies a dichotomy between owning all the land that will be flooded and owning the "water rights" to the river running upon it. It gives me the impression that he considers land ownership to be seperate from water ownership.
In most states, you cannot obstruct the flow of water from your property onto your neighbors- no dams or ponds or rainwater tanks. The water that falls on a man's property is considered the property of those downstream, in effect. This is background with which I interpreted his remarks.
Even if he was talking only about "upstream" and "downstream" without regard for "further downstream" as you put it, from who do you think the downstream landowner dambuilder should buy his "water rights" from? Does he pay the people upstream? That wouldn't make sense to me.
AndrewH:Yes, I think he is talking about buying water rights from people who would be affected by drought. Implying that those downstream have a "right" to their water. This is a positive right because the man upstream must set aside and provide water for the man downstream- or pay him for the right to use it.
It may be that this article is just too ambigious on that point...
There probably are reasonable grounds for debate amongst libertarians on such topics as what is homesteadable (i.e. a 'water-flow'; My personal taste is to be quite strict and only consider only actual material homesteadable, and not processes. Although I am pretty sure that I can find examples of Rothbard and Rothbardians ( Walter Block comes to mind) , making the case for homesteable proceses, like sunlight for agriculture, and presumably water...(In http://www.walterblock.com/wp-content/uploads/publications/block-block_roads-bridges-sunlight-property-1996.pdf) he first rejects view-ownership, which I think is right, but then allows for the possibility in particular cases for rain-rights & sunlight rights, in the case of farm land per say. but I wouldnt be suprised to find counter-examples, and perhaps the arguments are more subtle than I'm giving them credit for.
Thanks for the link! There's some interesting agruments being made about that very topic in the comments section of the aforementioned daily. We might be best suited to continue our conversation there. (i thought the thread was dead, for some reason)
thanks again,
I'm glad we agree. It's interesting how Rothbard and many other libertarians support this positive right. I understand the concept that supports a fisherman homesteading a piece of riverside property, but ultimately he has no right to tell property owners upstream what to do with their portion of a waterway (short of polluting it). Its similar to two competing oil companies working on the same field. Whoever pumps his property first will affect the "flow" or availability of oil on the neighbor's land, but they both should have the right to pump oil to their heart's content.
No landowner has a positive right to the resource they are exploiting.
As the old saying goes, you never step into the same river twice. Unless collected, the water in a river will flow from one person's property to his downstream neighbor's. In other words, water doesn't necessarily stay in the same place. Purchasing additional water rights in the river simply means purchasing the right to use more water from the river than before.
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