WATER RIGHTS

Dunstan Times, Issue 480, 30 June 1871, Page 3

WATER RIGHTS

(to the editor of the dusstan times. ) Sir,—Water is not naturally nor in an economic sense, a subject of property. Legal right to objective propeity is f ounded on use or occupation. Water being the free gift of nature, not created nor emproved by human agency, is excluded from the sphere of private appropriation, and as the light of the sun and the fluid, ever moving atmosphere, is designed for the common use and enjoyment of all men and of all animated nature.

This principle of common right—the right of every individual to use the water of any natural spring, or stream or poo’—is recognised by the municipal law of civilized countries.

Hence the custom of reserving from sale or alienation portions of land on the margin of streams ; that the right of the public to free aeoesi and use of the water may not be

prevented, Hence also dictum of the common law that streams cannot he diverted from their natural channels ; because, by such diversion, the grounds of public right Would he invaded, and the'right and title of the whole community to the use of the water, in its natural course would he nullified.

Grounded also in the same fundamental principle of constitutional right is another legaYdictum, namely, that, while all may use the water of a stream, none must pollute it. All may use, but none abuse ; because this would interfere with the equal rights of others to the common usa.

These axioms of law and principles of judging action are derived from, and hive reference to the highest ruling principle and fundamental idea of constitutional government- that of justice, which is hte only true basis—the real terra-firma of sound legislation. But leaving the regions of constitutional principle for the arena of polbical action and popular opinion, we find that the public rights of tho community to the use: of water are sometimes ignored, or subordinated to private or class interests : that, in fact, streams are diverted and also defiled, and mere channels silted up with sludge and refuse in direct contrariety to the well established dicta of tho law. The Supposed rights and privileges of “ riparian proprietors ” —owners of laud on tho margin of streams—ore ruthlesslyviolated, their lands made subject to frequent inundation, by which their crops are destroyed and tho value of their property permanently depreciated,. , ...... •,

Moreover the industrial interests, whose operations have produced these' injurious olloc's, have the sanction or acquiescence of legal authority- for their practices, and claims are being ad vanned,'and in some instances havobcon authoritatively granted,

for the special appropriation of the water of streams td individual" uses."” ** '

The question arises, whether these practices and acts of authority, so apparently opposed to iho principle of common right, have any foundation in law, absolute’y or conditionally ? 1 . It seems reasonable'to suppose that if the pla’ms of the public, are satisfied, that is, if every ■ .individual in the community has su cient .water , .for, his natural requirements,, thafcnny surplus is the property of the State, and may he de lit [with by" laws and regulations for the common; good ; and it is presumable that this view will he maintained by Ihe common' kw, and the judges in equity. n' -v; .. , ! The first consequence from this position is, that in any public regulations for diversion of streams, or appropriation of -water for industrial purposes, the private and personal wants and necessities of individuals—in a Word, the requirements- for “ domestic purposes ’’ —must, be primarily regarded, and consequently, that the’supply of towns and populous districts should have priority of legal right to sufficient water for their several necessities, and that[ no "appropriation for other purposes should be sanctioned by law until these necessities are satisfied. ,

This provision would bring the local law into harmony withthe principle of constiutional right, and with the acts .and dicta of the common Maw. It is dedueible and will be apparent from the above considerations, that the overflow or surplus water, remaining over and above the quantity required by the community for “ domestic purposes ” ns it would otherwise run to waste, may he made use of for the various purposes of national industry, th e share or measure of right appropriated to individuals being determined Jaws , and regulations . the Govern cient. lam, Ac. .AGRICOLA, ..vJunertM, 1871.