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
If it were simply a matter of paying a group of landowners upstream to abstain from consuming water on their property, that would be totally acceptable. However, downstream landowners consider it a property rights violation and will sue landowners upstream for "taking" their "fair share" of a river, even though the water is on the upstream property and rightfully owned by said upstream landowner.
People downstream claim ownership of the water that resides on another man's upstream property, and Rothbard seems to be ok with this.
This might help put the article in perspective: http://en.wikipedia.org/wiki/Prior-appropriation_water_rights
The confusion arises when people talk about homesteading a river. An original homesteader, who is a fisherman, only homesteads the land with which the river lies- he has no "right" for those upstream to maintain his flow for him. Once the river is dried up or diverted, he still owns his homsteaded property. Similarly if an original homesteader exploits oil, when his well is dry he still owns his homesteaded property.
Obviously many libertarians (Rothbard included, apparently) disagree with me on this point and consider the ability to homestead part of the "river" itself valid.
AndrewH:If it were simply a matter of paying a group of landowners upstream to abstain from consuming water on their property, that would be totally acceptable. However, downstream landowners consider it a property rights violation and will sue landowners upstream for "taking" their "fair share" of a river, even though the water is on the upstream property and rightfully owned by said upstream landowner.
The water won't stay upstream unless it's collected. That's my point.
AndrewH:People downstream claim ownership of the water that resides on another man's upstream property, and Rothbard seems to be ok with this.
Where does the water in a river reside over the course of a day? A month? A year?
AndrewH:This might help put the article in perspective: http://en.wikipedia.org/wiki/Prior-appropriation_water_rights
I've read it before, but thanks.
AndrewH:The confusion arises when people talk about homesteading a river. An original homesteader, who is a fisherman, only homesteads the land with which the river lies- he has no "right" for those upstream to maintain his flow for him. Once the river is dried up or diverted, he still owns his homsteaded property. Similarly if an original homesteader exploits oil, when his well is dry he still owns his homesteaded property. Obviously many libertarians (Rothbard included, apparently) disagree with me on this point and consider the ability to homestead part of the "river" itself valid.
The river is a source of moving water, right? It doesn't stay put like land can be considered to stay put. So it makes no sense to speak of homesteading a river in the same way as homesteading land. Instead, it's the flow of the river that's homesteaded.
By your reasoning, you'd have no course of action against someone who sucked all the air out of your house. After all, your ownership was over the house, not the air flowing in, through, and around it.
The keyboard is mightier than the gun.
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Water is a natural resource like any other, why (short of private agreements or neighborrhood association rules against it) should it not be treated like any other privately owned natural resource, and be considered the landowner's owners absolute property? Why is collective ownership preferable in this instance, but no others?
Autolykos :Where does the water in a river reside over the course of a day? A month? A year?.
On countless, seperately owned properties. A drop might begin at my gutter, travel across my land and enter a neighbors property (if the neighbor is ok with this form of pollution, of course) only to end up in a river a thousand miles away. The point is, any water (or other natural resource) that resides on my property should be under my absolute control, until I allow it to leave- this is the capitalist position.
The idea that my immediate neighbor, and every other owner downstream partially owns the water hitting my roof and can stop me from using it is a socialist position.
I just wonder why Rothbard accepted this form of communal ownership of resources.
Autolykos:By your reasoning, you'd have no course of action against someone who sucked all the air out of your house. After all, your ownership was over the house, not the air flowing in, through, and around it.
Perhaps, you were simply imprecise, but actively sucking air out of someones home, is taking away the air which is in that persons house, and is therefore potentially a tort. I guess your point stands with regards to someone who owns the requisite property to make sealing your home from the outside feasible, but this odd scenario hardly strikes me as a convincing refutation of the legal theory any more so than the revelation that under liberty all those who farm have no positive obligation to offer you food and so you *may* legitimately starve.
AndrewH:Water is a natural resource like any other, why (short of private agreements or neighborrhood association rules against it) should it not be treated like any other privately owned natural resource, and be considered the landowner's owners absolute property? Why is collective ownership preferable in this instance, but no others?
How is the river collectively owned in this instance? No group of people has the right to sell the entire river, does it?
AndrewH:On countless, seperately owned properties. A drop might begin at my gutter, travel across my land and enter a neighbors property (if the neighbor is ok with this form of pollution, of course) only to end up in a river a thousand miles away. The point is, any water (or other natural resource) that resides on my property should be under my absolute control, until I allow it to leave- this is the capitalist position.
I'm sorry but that doesn't really answer my question. If a drop of water is in your gutter, for example, then it's not in the river at all.
Let me ask you this: if I own land that happens to abut a river, would you say I own any part of the river as a result? And would you say that any water in that adjacent river ever resides on my property?
AndrewH:The idea that my immediate neighbor, and every other owner downstream partially owns the water hitting my roof and can stop me from using it is a socialist position. I just wonder why Rothbard accepted this form of communal ownership of resources.
Well, I think you're mischaracterizing Rothbard's position. He's not talking about water in general, he's talking about water from rivers.
nirgrahamUK:Perhaps, you were simply imprecise, but actively sucking air out of someones home, is taking away the air which is in that persons house, and is therefore potentially a tort. I guess your point stands with regards to someone who owns the requisite property to make sealing your home from the outside feasible, but this odd scenario hardly strikes me as a convincing refutation of the legal theory any more so than the revelation that under liberty all those who farm have no positive obligation to offer you food and so you *may* legitimately starve.
I was addressing AndrewH's assertion that one has not been deprived of any rights if the river from which he's homesteaded a certain amount of water flow dries up due to his upstream neighbors taking the entire flow.
Yes, and I was saying that you haven't refuted it to my satisfaction.
Autolykos:I'm sorry but that doesn't really answer my question. If a drop of water is in your gutter, for example, then it's not in the river at all.
Yes it does- and you highlight the absurdity of prior appropriation water rights. If the drop could potentially find it's way downstream into a river, I no longer have the right to do with it as I wish, while it is still on my property. This article (http://online.wsj.com/article/SB123794222413232887.html) covers the appropriation or Colorado doctrine at work.
Autolykos:Let me ask you this: if I own land that happens to abut a river, would you say I own any part of the river as a result?
Well, do you own the actual land underneath the river? If so, yes you own any amount of water that enters your property and can do anything with it. If you do not own the land under the river, no you cannot use any water that has not crossed your property line. If each man owns land to the center of the river, both people can do with the water as they like, assuming it continues to flow on their land in the future.
Autolykos:How is the river collectively owned in this instance? No group of people has the right to sell the entire river, does it?
A landowner must abstain from using water that is flowing across his property, beccause people downstream claim the right to use it- downstreamers force upstreamers to provide them with water. How is that not communal ownership, and enforcement of positive rights?
If a hunter appropriates some land, and a neighbor decides to build a strip mall and ends up killing all the wild game, the builder is not liable to the hunter. The hunter still has his land, and he has no right to force his neighbors to maintain habitat as to provide him with a steady supply of deer. The same is true for fisherman and farmers using water flowing off of a neighbor's property.
nirgrahamUK:Yes, and I was saying that you haven't refuted it to my satisfaction.
What would satisfy you here?
An apt analogy would be someone sucking all the air out of their own property in such a way as to cause other property owners to lose their atmosphere... it's not very realistic though.
AndrewH:Yes it does-
No it doesn't. I still don't know on what property or properties outside of the river you think the water in the river resides on over a given length of time.
AndrewH:and you highlight the absurdity of prior appropriation water rights. If the drop could potentially find it's way downstream into a river, I no longer have the right to do with it as I wish, while it is still on my property. This article (http://online.wsj.com/article/SB123794222413232887.html) covers the appropriation or Colorado doctrine at work.
Here you're attacking a strawman, as my position is not identical with the government's view of prior-appropriation water rights.
AndrewH:Well, do you own the actual land underneath the river? If so, yes you own any amount of water that enters your property and can do anything with it. If you do not own the land under the river, no you cannot use any water that has not crossed your property line. If each man owns land to the center of the river, both people can do with the water as they like, assuming it continues to flow on their land in the future.
Implicit in my hypothetical scenario was that I don't own any part of the riverbed. However, I find it strange that you don't think I'm allowed to use any water in the river in that case. By your position here, homesteading of anything isn't allowed, because it must first be on someone's property, and at that point it's already owned by the person who's property it's on.
Let me also ask you this: do you think it's permissible (let alone possible) to have use-rights over something without actually owning it?
AndrewH:A landowner must abstain from using water that is flowing across his property, beccause people downstream claim the right to use it- downstreamers force upstreamers to provide them with water. How is that not communal ownership, and enforcement of positive rights?
If he doesn't own any part of the riverbed, then no water in the river is flowing across his property. But how do you define "communal ownership" and "positive rights"?
AndrewH:If a hunter appropriates some land, and a neighbor decides to build a strip mall and ends up killing all the wild game, the builder is not liable to the hunter. The hunter still has his land, and he has no right to force his neighbors to maintain habitat as to provide him with a steady supply of deer. The same is true for fisherman and farmers using water flowing off of a neighbor's property.
In that situation, I don't think the hunter appropriated land per se - I think he appropriated hunting rights over an area of land. If all the wild game gets killed off because someone else comes along and builds a strip mall, then yes, I'd consider the building of the strip mall to be an infringement on the hunter's rights. It's obvious to me that the hunter's rights extend over a larger area of land than you think they do.
Autolykos:No it doesn't. I still don't know on what property or properties outside of the river you think the water in the river resides on over a given length of time.
I think every property on earth would actually be the correct answer, but more realistically any property which encompasses any part of a watershed. Anyone who owns the smallest tributary is unable to use the water on their own land for the benefit of some distant, downstream, "original user", parasite.
Autolykos:Here you're attacking a strawman, as my position is not identical with the government's view of prior-appropriation water rights.
If your position is that of Rothbard's (which I assumed it was), then there is no strawman. If it differs from the one that Rothbard presents ro if I have misinterpreted, please elaborate.
Autolykos:In that situation, I don't think the hunter appropriated land per se - I think he appropriated hunting rights over an area of land. If all the wild game gets killed off because someone else comes along and builds a strip mall, then yes, I'd consider the building of the strip mall to be an infringement on the hunter's rights. It's obvious to me that the hunter's rights extend over a larger area of land than you think they do.
I thought homesteading defined how private property in land can legitimately arise. Land is the vessel for all natural resources, not the other way around. The first man to pump an aquifer does not own the entire aquifer, just a piece that he personally makes use of. The first man to use a hunting ground does not claim every inch of land the deer around him may migrate upon, just a piece of land that he personally makes use of. The first man to use a river does not own the entire river. A man does not homestead an entire resource, he homesteads a piece of land containing a resource. If the resource dries up, tough luck- that is a risk every landowner takes.
Autolykos : By your position here, homesteading of anything isn't allowed, because it must first be on someone's property, and at that point it's already owned by the person who's property it's on.
I have no idea what you are talking about.
Autolykos : Let me also ask you this: do you think it's permissible (let alone possible) to have use-rights over something without actually owning it?
Absolutely, but the rights must come from a voluntary agreement with a person who actually owns said resource. You seem to be implying that a first user of a riverbed should be allowed to "own" the flow of the entire waterway. That is, any upstream landowner cannot use their water in any way that will reduce the flow of the first user (parasite).
Now, Rothbard is absolutely right when he calls for the elimination of all requirements for "beneficial" use and for water to be be absolute property, not at the sufferance of the State. Rothbard errors by rejecting outright private property and favoring prior appropriation water rights, thus encouraging collective ownership and monopolization of potentially thousands of miles of river by the first user)
Complete privatization of rivers is preferable to Rothbard's appropriation theory if a person favors capitalism and liberty.
During privatization, one option would be to extend all riverbed property lines to the center of the flow- much like Walter Block mentions property ownership extending to the center of a road when privatizing that arena.