Circular 95—Water Law Atlas

By T. A. Garrity, Jr. and E. T. Nitzschke, Jr., 1968, reprinted 1975, 1996, 46 pp., 21 figs.

This series of 21 maps of the U.S. shows how the individual states solve particular problems of water law, giving with each map a discussion of the problems and the solutions. Facts affecting water use, land ownership, rainfall, elevation, population, irrigation, value of farm products, water-well drilling, and weather modification, are also shown.

Water is essential to life, and conflicts over water have existed since the dawn of civilization. Society relies on the law to settle such conflicts. Water law, as treated in this paper, is concerned with the rights of individuals to use surface or underground water. Other water problems, such as flood or unwanted water, which might be included in the broad definition of water law, are not covered.

Water law can be considered a branch of property law. Water law governs individual rights to use and enjoy property. But water, unlike land, does not remain stationary. It is in motion; it ignores land property lines. A water right is a special kind of property. The actual water while it is flowing in a stream cannot be owned. But, the right to use water is subject to private ownership. This right to use water is, nonetheless, a property right. In some states it is theoretically possible to own underground water while it is in place. This doctrine of absolute ownership of in-situ underground water merely makes it easier to recognize a water right as a property right.

The desire to own property is extremely powerful, if not basic to the human animal. Even if it were desirable, it would be just about impossible to change the legal concept of a water right as a property right. So, the emphasis on the property right aspect of water rights is quite necessary. Any attempt to solve a water management problem without taking into account the property nature of water rights will be doomed to failure. Most water administrators are technically trained and they are prone to attack water management problems with the standard techniques of applied science. Often the resulting technically correct solution conflicts with the concept of property rights. When the technical view of water, despite its scientific correctness, conflicts with the property nature of water, it is usually the technical view that is relegated to second place.