THE PUNJAB RIVER WATER ISSUE*
Dr Rajinder Singh Bajwa
The abuse of the peoples’ right to access and use Punjab river waters to sustain agriculture, livelihood and industry precipitated the Kapoori Morcha, launched by Sant Langowal in 1981. This agitation protested the violations of riparian rights of Punjab citizens, but especially of farmers, with respect to large-scale water transfer from Punjab rivers to other non-riparian States. Since that time, the Sikh struggle for justice in India has intensified. This issue has impacted the lives of millions of people in the Punjab and caused the death of thousands, and many thousands more are missing. Not only are internationally recognized water laws ignored, but the very judicial process which is supposed to uphold these laws is circumvented.1
For example, an organization of farmers’ filed a petition in the Punjab and Haryana High. Court regarding the illegality of large-scale water transfers from Punjab rivers to non-riparian States under the Reorganization Act of 1966. The Court was to hear this issue on November 25,1983, by full Bench, where Chief Justice S. S. Sandhawalia would have been Chairman of the Court. Two days before he could hear the arguments on this petition, he was transferred to the High Court of Patna, a long distance away from Punjab. Thereby, neither the Bench could sit, nor could the hearing of the case proceed. As if this action was not enough to derail the petition, the case was then forwarded to the Supreme Court of India on the grounds that this issue is of great public interest. Since that time, this case of immense importance has remained dormant for the last many years.
Lawmakers formulate water laws to be observed. Unfortunately, in India these laws can be twisted in any way that suits the ruling authorities in New Delhi. With this history in mind, we should at least know how water laws came into existence, as well as how other countries have interpreted riparian doctrine. A short history of how riparian doctrine has been legislated and interpreted in the United States is included to enable our reader to comprehend better the meaning and purpose of this doctrine.
The owners of the lands contiguous to a river have been considered by the laws of most civilized nations as the owners of the water courses. The bordering lands are called “riparian” lands; their owners “riparian” owners; their rights “riparian” rights. Some scholars have assumed that this doctrine owes its beginning to the Common Law itself.
Wiel2 contends that it is a civil law doctrine, owing its formulation to the Code Napoleon (1804) the French Civil Code, and borrowed thence by American jurists, especially by Justice Joseph Story and Chancellor James Kent around 1827. This initial doctrine found its complete reception into English Law only through the influence of these two American jurists. Article 645 of the Code Napoleon added that:
If a dispute arises between the proprietors to whom these waters may be of use, the courts in giving judgements, should reconcile the interests of agriculture with the consideration due to property rights; and in all cases special and local rules upon the flow and use of water should be observed.
Wiel noted (pp. 254-255), that some earlier scholars felt that Roman civil law recognized the riparian doctrine, while others felt that it did not.
Arthur Maass and Hiller B. Zobel believe that Wiel was wrong in asserting that Story introduced the riparian doctrine into the Common Law, deriving it from the Code Napoleon. In fact, Story built his famous opinion in Tyler V. Wilkinson (1827) on Anglo-American precedent, using the very language of the English and American judges.3
Maass and Zobel state that there are two basic principles in the common Law of Waters. Bracton enunciated them in the thirteenth century. English water law has developed on the lines he laid down, and the American law has followed suit.4 First, the right of riparian owners to an uninterrupted flow of water is a natural right. Second, the right to divert a stream, for the purpose of driving a mill or otherwise, can be acquired by grant or prescription as an easement in derogation of that natural right.
Furthermore, if the natural right of a riparian owner is to be effective, then no other land owners may use the water to which he has a right in a manner which will impair his natural right.
Angell,5 in his Treatise on water courses, published three years before the Tyler vs.
Wilkinson case and used by Story as a source in his opinion, put the natural riparian rights in these words :
Water flows in its natural course, and ought always to be permitted to run there, so that all through whose land it pursues its natural course may have the privilege of using it, though not to the injury of another. Subject to the restriction imposed by this limitation, the water may unquestionably be appropriated to any use, and so restrained and regulated in its progress, that its power may be advantageously applied to the operation of mills manufactories, etc.
Wiel found strong support for his thesis in the commentaries of Sir William Blackstone (1765) and maintains that by the end of eighteenth century and beginning of nineteenth there was a judicial tendency to recognize the use of watercourses that was based upon prescription or ancient custom.6 From this tendency the law of prior appropriation appeared. Prior possession, whether ancient or not, became the doctrine of prior appropriation. This doctrine is also known as the doctrine of Blackstone.
By the then law of England the person who first appropriates any part of water flowing through his own land to his own uses has the right to use so much water as he thus appropriates against any other.
Wiel also argued that term “riparian” used by Chief Baron Pollack in reference to the subject of water courses in Wood v. Waud in 1849 for the first time (so far as we have discovered) in any English authority.
Harold Ellis7 asserts that the riparian doctrine came down through French civil law to the state of Louisiana and indirectly through French civil law to most other states through the influence of Story and Kent.
On the other hand Murphy8 argues that a considerable amount of water law appears to have been present in England before 1400, having been borrowed in part from the Roman civil law. Therefore, it appears that Murphy is supporting the arguments of Arthur Maass and Zobel that riparian doctrine was well recognized in England, as testified by the Statements of Sir John Leach (1823). Maass and Zobel indicate that Story followed not only Leach’s thought and order of presentation, but his very words and sentence structure.9
In some early English cases the courts spoke of noninterference with the natural flow of streams, while some courts allowed various rights to use watercourses to be based on long established use and prescription. Later on, especially around 1800, various courts indicated that such rights might be based merely on prior use, without requiring ancient usage or prescription.
Differences in the Riparian and the Appropriation Systems
The essential differences between the riparian and appropriative Systems of water rights were these:
(A) Location: Under the riparian system the use of stream flow was limited to the owners of land contiguous to the watercourse, whereas place of use has been disregarded in the appropriation system.
(B) Certainty: Prior appropriation defined a system of exclusive rights; the prior appropriator has a right to a fixed quantity of water to the extent of his priority and could exclude all others. The riparian system, on the other hand, was one of correlative rights; the rights of landowners bordering upon a stream were relative to each other and no one had a right to a fixed quantity of water.
(C) Equality versus priority: The riparian system recognized no priorities in anyone, all riparian owners have equal rights to use and no one is allowed unreasonably to impair the equal use of another. The appropriative system was based on priority; first in time of use was first in right.
(D) Nonuse: Actual use was the foundation of right by appropriation; thus nonuse caused a loss of the right. Because in the riparian system the right to water depended on the ownership of bankside land, non use, per-se, did not void a right.10
The Riparian Right as a Property
Primarily, there have been four reasons advanced for assigning to the owners of riparian lands exclusive rights:
1. Ownership of the underlying lands gives ownership of the watercourses;
2. The right to the watercourse is a natural incident of the ownership of the adjoining land;
3. Since riparians have the right to exclude all others from access to the watercourses they have the exclusive rights in the watercourses; and
4. Limitation of riparian owners is a legal doctrine compelled by the existence of a limited amount of water and a theoretically unlimited demand for its use.11
(A) References
BAJWA, RAJINDER S., Irrigation in Humid Regions: An Annotated Interdisciplinary Bibliography, Natural Resource Economic Division, ERS, USDA, Staff Report No. AGES 820218, March 1982, 38 pp.
HUTCHINS, WELLS A., Water Rights for Agriculture, paper presented at the meeting of American Association for Advancement of Science, Berkeley, California, December.27, 1954, 11 pp.
RADOSEVICH, GEORGE E., Muslim Water Law and Its Influence on Spanish Water Law, and the Irrigation System of Valencia, presented at the Seminario, La Legislacion y Administracion de las Aquas en las raises del Grupo Andion, Quito, Equador, Jan. 14-19, 1974, 20 pp.
References
1. Bajwa, Rajinder S., “Punjab Rivers and the origin of the Riparian Rights, in the Spokesmen, Vol. 4, No. 4, April 1, 1987, Published at Scarborough, Ontario, Canada MIW 3P5.
2. Wiel, Samuel C, “Origins and Comparative Development of the Law of Water-Courses in the Common Law and in the Civil Law”, California Law Review, Vol. VI, May , 1918, NO. 4, pp.. 245-267. Also continued in the same journal in Vol. VI, July, 1918, No. 5, pp. 342-371, See also Wiel, Samuel C., “Waters : American Law and French Authority”, Harvard Law Review, Vol. 33, December 1919, No. 2, pp. 133-167.
Reviewed by Peter DeBraal, General Attorney, Land Economics Branch, Natural Resource Economics Division, Economic Research Service, US Department of Agriculture, Washington, D.C.
3. Maass, Authur and Hiller B Zobel, “Anglo-American Water Law : Who Appropriated The Riparian Doctrine ?” Public Policy A year book of the Graduate School of Public Administration, Harvard University, 1960, Vol. X, pp. 109-156.
4. Bracton, De Legibus ET Consuetudinibus Angliae, f. 221a, f232a (Twiss ed. 1880)
5. For the American Common Law beforeTyler v. Wilkinson, See Angell, Water-Course (Ist ed. 1824), passim. Angell’s first book praises justice story for having distinguished talents and profound knowledge of the law of water-courses, which made him an ornament and a blessing to this country. By 1833 the word riparian was fully developed as a major doctrine of the flowing waters.
Chancellor Kent, in the commentaries published the year after Story’s opinion (1828), relied almost exclusively on Anglo-American precedent, citation to the Code Napoleon, to Pothier, and to other European writers merely supplemented the larger number of English and American authorities.
6. Prescription is a Common Law Doctrine for acquiring title to property by long-continued use.
7. Ellis, Harold H. Development and Elements of the Riparian Doctrine with Reference to the Eastern United States, Paper presented at the Water Rights Conference, March 29-30, 1960, at the Kellogg Center, Michigan State University, East Lansing, Michigan.
8. Murphy, Earl F., “English Water Law Doctrines Before 1400”, 1 American Journal of Legal History, 103, (1957).
9. Story’s debt to Leach : In an earlier case Wright v. Howard, riparian doctrine had been applied, and Story cited this case in his judgement in Tyler v. Wilkinson.
10. These basic differences have been stated clearly. They have been modified by principles of “reasonable use”, “beneficial use”, and the long standing common law doctrine of prescription.
11. Lauer, Theodore E., The Riparian Right As Property in Water Resources and The Law, of (Prepared by the Legislative Research Center). The University of Michigan Law School, Ann Arbor, Michigan, 1958, pp. 177-190. (especially see p. 180).
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