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The Colorado Doctrine$

David Schorr

Print publication date: 2012

Print ISBN-13: 9780300134476

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300134476.001.0001

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Introduction

Introduction

Chapter:
(p.1) Chapter 1 Introduction
Source:
The Colorado Doctrine
Author(s):

David Schorr

Publisher:
Yale University Press
DOI:10.12987/yale/9780300134476.003.0001

Abstract and Keywords

This introductory chapter begins with a brief discussion of the significance of the Colorado Supreme Court's seminal 1882 decision in Coffin v. Left Hand Ditch Co. for American property law. It then sets out the book's main purpose, which is to challenge the received wisdom regarding the ideology of western water law. The claims advanced in this book, stressing considerations of widespread distribution of property as the primary motivating factor in the adoption of appropriation law, challenge consensus views regarding property law and American legal history in general. An overview of the subsequent chapters is also presented.

Keywords:   Colorado Supreme Court, Coffin v. Left Hand Ditch Co, American property law, water rights, appropriation doctrine, water law, property law

We conclude, then, that the common law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inapplicable to Colorado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith. And we hold that, in the absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose has, with the qualifications contained in the constitution, a prior right thereto, to the extent of such appropriation.1

With these words the Colorado Supreme Court made history. Coffin v. Left Hand Ditch Co., the court's seminal 1882 decision, has become one of the most prominent cases in American property law.

Prior to the mid-nineteenth-century gold and silver rushes into the American West, the property law of surface waters throughout the United States was the “riparian rights” doctrine, inherited from the English common law. In this legal regime, all landowners along a stream had rights to use the water flowing by or through their land. The quantities and manner of use were variable, depending on the uses and (p.2) demands of other riparians; each had the right to demand that others limit themselves to “reasonable” uses. What was reasonable was decided on a case-by-case basis by courts.2

Symbolizing to this day the rejection of the common law of property in surface waters in the most arid portions of the western United States, the Coffin opinion abrogated entirely the system of riparian rights inherited from the common law, and so laid out what became known as the Colorado Doctrine of “pure appropriation” for property in water. Under the appropriation doctrine, water rights are created (appropriated) not by landownership, but by diverting water from the stream and putting it to use. Conflicts between users are resolved by the criterion of temporal priority; a user whose right is “senior” to another's has the right to demand that the holder of the “junior” right cease his diversion if it is not leaving enough water in the stream for the senior user to satisfy his own right.3 Coffin was widely influential in the adoption of the appropriation doctrine by other western jurisdictions in the years that followed, and it has remained a leading case in practically all modern discussions of water law.4

For all its salience, though, Coffin, along with the appropriation doctrine for which it has come to stand, is today widely misunderstood, largely due to ignorance of the social and legal context in which it arose. Both decision and doctrine have become associated with a set of values—the preference for private over common property, the privatization of the public domain, the facilitation of markets in natural resources—that have little to do with the ideology behind the decision or how contemporaries saw it. Analysis of the available historical evidence makes it quite clear not only that the doctrine of appropriation as developed in nineteenth-century Colorado was viewed at the time as striking a blow at private property in order to advance distributive justice, but also that it had that very effect as its central goal.

While the primary purpose of this book is to challenge the received wisdom regarding the ideology of western water law, relying primarily on an examination of contemporary sources, the significance of the argument goes beyond revision of the historical record for its own sake. Historians and theoreticians of property rights have tended to agree that the primary concern driving the rejection of riparian doctrine in favor of appropriation in the western United States was economic growth, part of (p.3) that nineteenth-century “release of individual creative energy” by American law, to use Willard Hurst's phrase,5 or the common law's characteristic tendency toward efficiency, as some economic analysts of the law would have it.6 The claims advanced in this book, stressing considerations of widespread distribution of property as the primary motivating factor in the adoption of appropriation law, challenge these consensus views regarding property law and American legal history in general. In doing so, they raise the question as to whether considerations of distributive justice have been given their due in study of these fields. Given the value American legal culture places on arguments from past practice and precedent, they also challenge current paradigms of natural-resource law.

Property Rights and Prior Appropriation

Why does society create rights of private property, particularly in natural resources? A major issue in property theory, environmental policy, and environmental history concerns the ever-shifting relationships between various property regimes—with common and private property typically the main characters in the drama. For centuries, philosophers, economists, lawyers, and others have struggled to explain, on the descriptive level, why these various forms exist, as well as how and why the governance of particular resources moves between the types. On the normative level, they have often sought to justify (or condemn) particular forms of property and the transitions between them. While the famous negative accounts (tragedies) as well as their lesser-known positive ones (comedies) are based on a utilitarian narrative of efficiency concerns, this book will suggest that the issue be viewed in distributive terms—as a “morality play.”7

In recent decades, with the ascendance of efficiency or wealth-maximization approaches to law, a dominant school of thought has stressed the advantages of private property over common property. Writers on the subject have emphasized, on the one hand, the gains in social welfare made possible by private property, with the clearly delineated rights and powers, certainty, and transferability made possible by its exclusivity;8 and, on the other hand, the inefficiencies inherent in common property—at its open-access extreme a veritable tragedy.9

(p.4) Descriptively, in an approach identified with economist Harold Demsetz, the focus on allocative efficiency has led scholars to portray the progression from common to private property as guided by a sort of continual cost-benefit analysis, the tipping point of privatization being reached when the increasing value of a resource renders the advantages of its privatization greater than the administrative costs of establishing and maintaining a private-property regime.10 Prescriptively, it has led many to advocate increasing privatization of resources as a way of increasing aggregate welfare.11

More recently, the literature has seen a more complicated view of the private/commons relationship, as economics-oriented scholars have shown that the transition to private property may be driven less by efficiency than by interest-group manipulation of the law to redistribute resources in their favor.12 Others have pointed out not only that common ownership need not rule out effective management,13 but that in many contexts it may actually be more efficient than private property—in Rose's felicitous formulation, a “comedy of the commons.”14 At the same time, a developing literature on the “anticommons” has made the case that “too much” private property, in the form of overly fragmented entitlements to resources, may lead to its own tragedy, as resources so burdened suffer from underutilization and underdevelopment.15

What has generally been left out of all these analyses, however, is an appreciation of the role that considerations of distributive justice may have to play—in both positive and normative terms—in the selection, development, and evolution of property regimes. The classic welfarist law-and-economics approach typically tags distributive issues as “merely” so; the question of fair distribution, in this view, is irrelevant to the optimal allocation of rights, and best relegated to a tax-and-transfer mechanism outside of private law.16 While public-choice analysis attributes importance to “distributional” factors in the creation of property rights, these are of the decidedly pernicious sort, as powerful interest groups bend the law to enrich themselves at the expense of societal welfare.17 Critical legal history, too, has tended to see the development of property rights as a story of redistribution in favor of the rich and powerful.18 Despite what seems to be a basic intuition that distributional fairness should play a role in the allotment of property (p.5) rights, this angle is largely absent from contemporary writing on property theory.19

This book explores this third approach to the development of property rights, arguing for the explanatory power of distributive justice in understanding the origins and evolution of the prior appropriation doctrine of water law in the western United States. This episode in legal history may seem a surprising one to illustrate the role of distributive justice in property rights; for not only is the history of prior appropriation a well-worn topic in the historical, property theory, and natural resources law literature, but the consensus view of that history would seem to make any distributive-justice basis for the doctrine unlikely.20

The outline of the standard story is well known, having achieved mythical status in the property theory and natural resources law literature.21 The first whites to arrive in most of the territories of the Pacific and Rocky Mountain West in any sort of numbers were prospectors and miners of precious metals, a generally coarse bunch, interested in getting rich quick and lacking concern for the niceties of legal doctrine or communal values. The regnant principle in the gold diggings in regard to property in mining claims was “first in time, first in right,” an expression of the frontier ethics of individualism, initiative, and exploitation.22 When it came to resolving disputes over water use, the miners, finding the eastern law of riparian rights unsuited to the exigencies of their environment, applied the rules they had created for mining claims to surface water claims, and created a new system of property rights based on the priority of appropriation of the water. Applying the miners' rules to water rights provided security of title to those displaying the entrepreneurial initiative necessary to make the earliest claims on the water, thereby facilitating economic expansion. This new doctrine, with its exclusive private-property rights, stood in bold contrast to the common-property regime of correlative rights under the English and eastern U.S. riparian doctrine. Nonetheless, it was particularly suited to the arid climate of the new western territories and states, and so the miners' rule of prior appropriation became the guiding principle of water-rights law in the western United States, symbolized most clearly in the Colorado court's complete rejection of riparianism in Coffin.23

Despite this broad agreement on the circumstances surrounding prior appropriation's creation, lawyers and scholars have sharply disagreed over (p.6) the meaning of this mythical episode in legal history, again roughly dividing into “optimistic” and “pessimistic” camps. To some, the rule of prior appropriation represents the possibility and promise of efficiency in natural resources law, with the extension of this model to other resources devoutly wished. On this view, the certainty and transferability associated with the creation of private-property rights benefit society by enhancing efficiency, particularly in comparison with the common-property-like riparian rights doctrine.24 For this group, Demsetzian efficiency provides the key to understanding the creation of the prior appropriation doctrine in the West: the high value of water induced by its scarcity in this region, argues an influential article, outweighed the definition and enforcement costs associated with the creation of private-property rights in water and thus made the prior appropriation doctrine possible.25 Criticisms of the western law from this quarter tend to focus on certain efficiency-impairing aspects of the law, depicting such elements of western water law as public ownership of waters, the requirement of beneficial use, and the rules of forfeiture and abandonment as foreign impurities that have seeped into the law.26

In contrast, other scholars, particularly those with an environmentalist bent, see in prior appropriation a symbol of everything that is wrong about private-property regimes in natural resources: environmental degradation, inequality, unsustainability, giveaways of public property, corporate control of the environment. Like their opponents, this group also views the doctrine as a creature of the individualistic frontier, but for them the abandonment of the riparian doctrine's equitable sharing in favor of exclusive rights by appropriation was a tragedy, with the greater good of the community being sacrificed to greed.27

Eric Freyfogle, for instance, spins a tale of a certain Boone in Aridia, in which Boone, the first settler to arrive at the only river in an arid country, claims the whole river for himself, forcing all subsequent settlers to pay him for the privilege of watering their lands; Freyfogle argues that Boone's priority in time is unimportant in terms of natural justice.28 “Water law certainly promoted economic growth,” writes historian Donald Pisani, “but the requirement that law achieve some measure of justice in allocating a scarce resource was not met.”29 Scholars from this quarter tend to stress not only the welfare-enhancing qualities of common property in water (particularly in encouraging sustainable use), but also its moral advantages.30

(p.7) While advocates on either side of the debate over private property and natural resources thus sharply dispute the meaning of the myth of prior appropriation, they tend to agree with the consensus of most historians of western water law about at least two important features of the story: first, that the law of prior appropriation originated in the practices of the miners in the Sierra Nevada Mountains and their successors in the Rockies, and second, that the primary concern of the appropriation doctrine was wealth creation, accomplished through the efficiency advantages of private-property rights in water.31

However, this consensus view, which stresses the wealth-maximizing focus of prior appropriation, seems unlikely, as it fails to explain—other than as foreign implants in the pure capture doctrine—the many aspects of the law generally agreed to be inefficient, such as the beneficial use requirement and forfeiture for non-use.32 It also falls short in accounting for such features of western law as the constitutional or statutory declarations of public or state ownership of waters found in all appropriation states.33

It is, moreover, contradicted by the historical evidence. The sources to be examined in this book are of four types. First, the unofficial codes of Colorado's mining districts in the early years of white settlement in the area are usually identified as the source of the state's doctrine of prior appropriation. Contrary to the standard view, these rules generally expressed a concern for broad and equitable distribution of resources, and included the roots of those supposedly eastern imports the contamination by which some have bemoaned.34 The miners' ideology and analogs to their rules are clearly discernible in Colorado's official water law, as found in the next group of sources, the water-law statutes of Colorado's legislature and the relevant sections of the state's 1876 constitution. These, too, exhibit a concern with equitable distribution of water and limiting the power of corporations, a value not usually thought to be part of the prior appropriation milieu. Third, the decisions of Colorado's supreme court in its first decades advanced a like commitment to equal access and the prevention of concentrated control over water. Throughout, the ideological assumptions behind the law created by Colorado's pioneers are illustrated by the fourth group of sources—contemporary primary sources and published works.

In the following chapters, these historical sources will be explored, with the aim of building a new picture of the creation and early evolution of (p.8) the appropriation doctrine. Chapter 2 presents a new account of Colorado's mining district laws, generally considered to be the font of the state's appropriation doctrine, and explores the ideological background of, and precedents for, both the miners' codes and the appropriation doctrine. It argues that the Colorado rules advanced certain ideals of distributive justice, as part of a broader nineteenth-century agrarian reform movement in American law and politics. Chapter 3 analyzes the genesis of the appropriation doctrine itself, as laid down in territorial statutes, the Colorado state constitution, and early judicial decisions, with Coffin v. Left Hand Ditch as their climax. Chapters 4 and 5 carry this analysis forward into the two decades following Coffin, focusing on the legal doctrines used to curb the power of corporations and speculators and reserve the state's water for bona fide users. Chapter 4 focuses on Colorado's draconian regulation of water corporations, highlighting the historical distinction between private property and corporate property that motivated the law. Chapter 5 discusses the beneficial-use rule of appropriation law and the difficulties it created for efficient allocation of the resource, arguing that the type of property regime created by the law (an anticommons), typically viewed as a disastrous result, was the anticipated and desired outcome, for reasons of distributive justice. Finally, Chapter 6 examines some theoretical issues raised by the historical study, and concludes with thoughts on practical implications of the view of the appropriation doctrine advanced in the book.

Notes:

(1) . Coffin v. Left Hand Ditch Co., 6 Colo. 443, 447 (Colo. 1882).

(2) . See Joseph L. Sax et al., Legal Control of Water Resources 27–37 (4th ed. 2006).

(3) . Colorado was the first state to do away entirely with riparian rights, applying the doctrine of appropriation to all surface water in the state, including that found on private land—hence “pure appropriation.” The Pacific coast states and those on the semi-arid eastern fringe of the prior appropriation region have retained some mixture of riparian and appropriative rights for surface water, while the law of the drier states lying in between these two groups followed the lead of the “Colorado Doctrine,” abolishing riparian rights completely. See Sax et al., supra note 2, at 326–51; John T. Ganoe, The Beginnings of Irrigation in the United States, 25 Miss. Valley Hist. Rev. 59, 65–70 (1938).

(4) . For Coffin's influence on the adoption of the appropriation doctrine by other jurisdictions, see 1 Report of the Special Comm. of the U.S. Sen. on the Irrigation and Reclamation of Arid Lands, Sen. Rep. 928, 51st Cong., 1st Sess. 74 (1890); Tom I. Romero, II, Uncertain Waters and Contested Lands: Excavating the Layers of Colorado's Legal Past, 73 U. Colo. L. Rev. 521, 540 (2002). For its continuing status as a leading case, see, for example, Barlow Burke, Natural Resources Cases and Materials 280 (1998); Dean Lueck, First Possession, in 2 New Palgrave Dictionary of Economics and the Law 132, 133–36 (1998); Sax et al., supra note 2, at 335.

(5) . James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States 6 (1956); see also Donald J. Pisani, Promotion and Regulation: Constitutionalism and the American Economy, 74 J. Am. Hist. 740, 750 (1987).

(6) . See, for example, Richard A. Posner, A Theory of Negligence, 1 J. Leg. Stud. 29 (1972); George L. Priest, The Common Law Process and the Selection of Efficient Rules, 6 J. Leg. Stud. 65 (1977).

(7) . For justice in morality plays, see J. Wilson McCutchan, Justice and Equity in the English Morality Play, 19 J. Hist. Ideas 405 (1958).

(8) . See, for example, Robert C. Ellickson, Property in Land, 102 Yale L. J. 1315 (1993); Clifford Holderness, A Legal Foundation for Exchange, 14 J. Legal Stud. 321 (1985); Richard A. Posner, Economic Analysis of Law 32–33 (6th ed. 2003).

(9) . Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (1968).

(10) . Harold Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. (papers & proc.) 347 (1967). See also Terry L. Anderson & P. J. Hill, The Evolution of Property Rights: A Study of the American West, 18 J. L. & Econ. 163 (1975); Gary D. Libecap, Economic Variables and the Development of the Law: The Case of Western Mineral Rights, 38 J. Econ. Hist. 338 (1978).

(11) . See, for example, Terry L. Anderson & Donald R. Leal, Free Market Environmentalism (rev. ed. 2001); Abraham Bell & Gideon Parchomovsky, Of Property and Antiproperty, 120 Mich. L. Rev. 1 (2003); Dean Lueck, The Rule of First Possession and the Design of the Law, 38 J. L. & Econ. 393 (1995).

(12) . Stuart Banner, Transitions Between Property Regimes, 31 J. Leg. Stud. S359 (2002); Saul Levmore, Two Stories About the Evolution of Property Rights, 31 J. Leg. Stud. S421 (2002); Gary D. Libecap, Contracting for Property Rights (1989).

(13) . The classic work is Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (1990).

(14) . Carol Rose, The Comedy of the Commons: Commerce, Custom and Inherently Public Property, 53 U. Chi. L. Rev. 711 (1986). See also Carol Rose, Energy and Efficiency in the Realignment of Common-Law Water Rights, in Property and Persuasion 163 (1994); Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. Leg. Stud. S453 (2002). In the intellectual-property context, see, for example, Yochai Benkler, Coase's Penguin, or, Linux and the Nature of the Firm, 112 Yale L. J. 369 (2002); James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 Law & Contemp. Probs. 33 (2003); Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Science 698 (1998).

(15) . The leading article is Michael Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv. L. Rev. 621 (1998). See also James M. Buchanan & Yong J. Yoon, Symmetric Tragedies: Commons and Anticommons, 43 J. L. & Econ. 1 (2000).

(16) . See, for example, Steven Shavell, Foundations of Economic Analysis of Law 654–55 (2004).

(17) . Libecap, supra note 12.

(18) . Robert C. Allen, The Efficiency and Distributional Consequences of Eighteenth Century Enclosures, 92 Econ. J. 937 (1982); Morton J. Horwitz, The Transformation of American Law, 1780–1860 (1977).

(19) . A notable exception, though limited to the intellectual-property context, is Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 Cal. L. Rev. 1331 (2004); distributive justice has also long been recognized as a central factor in takings scholarship; see Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165 (1967); Hanoch Dagan, Takings and Distributive Justice, 85 Va. L. Rev. 741 (1999). A few studies have noted the importance of “fairness” in the establishment of property rights, but primarily as a “focal point” facilitating privatization for efficiency goals, see Andrea G. McDowell, From Commons to Claims: Property Rights in the California Gold Rush, 14 Yale J. L. & Human. 1 (2002), and Richard O. Zerbe Jr. & Leigh Anderson, Culture and Fairness in the Development of Institutions in the California Gold Fields, 61 J. Econ. Hist. 114 (2001).

(20) . But see Lon. L. Fuller, Irrigation and Tyranny, 17 Stan. L. Rev. 1021, 1037–42 (1965) (distributive justice the central issue of irrigation law).

(21) . See Dale D. Goble, Prior Appropriation and the Property Clause: A Dialogue of Accommodation, 71 Or. L. Rev. 381, 382 (1992) (water plays key role in founding myth of West); Charles F. Wilkinson, In Memoriam: Prior Appropriation, 1848–1991, 21 Envtl. L., pt. 3, v, v (1991) (story of prior appropriation's birth “has been told so often that it has become part of the bedrock of western history”).

(22) . Wilkinson, id. at viii, has it thus in his personification of Prior Appropriation and the General Mining Law: “Prior and the General knew every bar from Columbia to the Klondike and from Virginia City to Cripple Creek and they caroused and drank and whored and fought in them all. They were men's men—broad-shouldered, barrel-chested, and square-jawed. Prior, who not only read Mark Twain but knew him, was fond of summing it all up by quoting Twain's comment upon his first visit to Nevada in the 1860s: ‘This is no place for a God-fearing Methodist and I did not long remain one.’”

See also Joseph W. Dellapenna, Adapting Riparian Rights to the Twenty-first Century, 106 W. Va. L. Rev. 539, 567–68 (2004); Goble, supra note 21, at 381–82; Norris Hundley, Jr., Water and the West 67 (1975); Patricia Nelson Limerick, The Legacy of Conquest 66–67 (1987); J. Byron McCormick, The Adequacy of the Prior Appropriation Doctrine Today, in Water Resources and the Law 33, 34 (1958); A. Dan Tarlock, Prior Appropriation: Rule, Principle, or Rhetoric?, 76 N. Dak. L. Rev. 881, 890 (2000).

(23) . 6 Colo. 443. For an overview of the origins of the prior appropriation doctrine in miners' practice and its adoption by the law, see 1 Samuel C. Wiel, Water Rights in the Western States 65–117 (3rd ed. 1911); Robert G. Dunbar, Forging New Rights in Western Waters 59–85 (1983) [hereinafter Dunbar, New Rights]; U.S. v. Gerlach Live Stock Co., 339 U.S. 725, 745–48 (1950). The view that the law of prior appropriation was a necessary response to the aridity of the West is associated most strongly with Walter Prescott Webb, The Great Plains 431–52 (1931). See also Gordon M. Bakken, The English Common Law in (p.168) the Rocky Mountain West, 11 Ariz. & the West 109, 121–28 (1969); Yoram Barzel, Economic Analysis of Property Rights 118–19 (2nd ed. 1997); Robert G. Dunbar, The Adaptability of Water Law to the Aridity of the West, 24 J. of the West 57, 57 (1985) [hereinafter Dunbar, Adaptability]. The element of secure title as encouraging commoditization and economic expansion is developed in Gordon Morris Bakken, The Development of Law on the Rocky Mountain Frontier 71–72 (1983) [hereinafter Bakken, Development of Law]; Norris Hundley, Jr., The Great American Desert Transformed: Aridity, Exploitation, and Imperialism in the Making of the Modern American West, in Water and Arid Lands of the Western United States 21, 34 (Mohammed T. El-Ashry & Diana C. Gibbons eds. 1988); see also Horwitz, supra note 18, at 33, 43 (emphasizing the dimension of monopoly in the stimulation of development by the recognition of priority as the basis for property rights). A useful bibliographic essay is Peter L. Reich, Studies in Western Water Law: Historiographical Trends, 9 W. Leg. Hist. 1 (1996).

(24) . See, for example, Terry L. Anderson & Donald R. Leal, Free Market Environmentalism 33–35 (rev. ed. 2001); Water Rights: Scarce Resource Allocation, Bureaucracy, and the Environment passim (Terry L. Anderson ed. 1983), described by a reviewer as “a hymn of praise to the doctrine of prior appropriation and to the ideal of water rights as exclusively private property,” Paul Herrington, in Book Notes, 94 Econ. J. 1013, 1043 (1984), particularly Alfred G. Cuzán, Appropriators versus Expropriators: The Political Economy of Water in the West, in id. 13, 19; Dunbar, Adaptability, supra note 23, at 64; Jack Hirshleifer et al., Water Supply 232 (rev. ed. 1969); Lueck, supra note 11, at 427–30; J. W. Milliman, Water Law and Private Decision-making: A Critique, 2 J. L. & Econ. 41 (1959); Timothy D. Tregarthen, The Market for Property Rights in Water, in Water Needs for the Future 139, 142–43 (Ved P. Nanda ed. 1977).

(25) . Terry L. Anderson & P. J. Hill, The Evolution of Property Rights: A Study of the American West, 18 J. L. & Econ. 163, 176–78 (1975); see also Dunbar, New Rights, supra note 23, at 60. Cf. Gary D. Libecap, Economic Variables and the Development of the Law: The Case of Western Mineral Rights, 38 J. Econ. Hist. 338 (1978) (Demsetzian explanation of increased specificity of property rights in minerals in West).

(26) . See, for example, Terry L. Anderson & Pamela Snyder, Water Markets: Priming the Invisible Pump 33–34 (1997); Hirshleifer et al., supra note 24, at 233; Timothy D. Tregarthen, Water in Colorado: Fear and Loathing of the Marketplace, in Water Rights 119, supra note 24, at 119.

(27) . See Sarah F. Bates et al., Searching Out the Headwaters: Change and Rediscovery in Western Water Policy 136–137 (1993); Mark Fiege, Irrigated Eden: The Making of an Agricultural Landscape in the American West (1999); Robert Glennon, Bottling a Birthright?, in Whose Water Is It? 9, 15 (Bernadette MacDonald & Douglas Jehl eds. 2003); William Lilley III & Lewis L. Gould, The Western Irrigation Movement, 1878–1902: A Reappraisal, in The American West: A Reorientation 57, 63 (Gene M. Gressley ed. 1966); Donald J. Pisani, Enterprise and Equity: A Critique of Western Water Law in the Nineteenth Century, 18 W. Hist. Q. 15, 19 (1987); Marc Reisner & Sarah Bates, Overtapped Oasis 62–65 (1990); (p.169) Vandana Shiva, Water Wars: Privatization, Pollution and Profit 20–23 (2002); Frank J. Trelease, Alternatives to Appropriation Law, in Water Needs for the Future 59, supra note 24, at 59–60; Donald Worster, Rivers of Empire 88–92 (1985). Interestingly, Theodore Steinberg's influential account of riparian law in industrializing New England, Nature Incorporated: Industrialization and the Waters of New England 85–89 (1991), stresses the destruction, alienation, and commodification brought about by riparian law. This negative characterization of riparian rights tends to be ignored by those finding the same faults in the appropriation doctrine.

(28) . Eric T. Freyfogle, The Land We Share 101–03, 124 (2003).

(29) . Donald J. Pisani, Promotion and Regulation: Constitutionalism and the American Economy, 74 J. Am. Hist. 740, 750 (1987).

(30) . See, for example, Stefania Barca, Enclosing Water: Nature and Political Economy in a Mediterranean Valley, 1796–1916 95–116 (2010); Shiva, supra note 27; Erik Swyngedouw, Dispossessing H2O: The Contested Terrain of Water Privatization, 16 Capitalism Nature Socialism 81 (2005); Paul Trawick, The Moral Economy of Water: Equity and Antiquity in the Andean Commons, 103 Am. Anthropologist (n.s.) 361 (2001).

(31) . See, for example, Dunbar, New Rights, supra note 23; Bakken, Development of Law, supra note 23; Hundley, supra note 23; Donald J. Pisani, Natural Resources and Economic Liberty in American History, in The State and Freedom of Contract 236, 245 (Harry N. Scheiber ed. 1998); Pisani, supra note 29, at 750. But see Gregory J. Hobbs, Jr., Colorado Water Law: An Historical Overview, 1 U. Denv. L. Rev. 1 (1997) (noting anti-speculation aspects of Colorado water law); Sam S. Kepfield, Great Plains Legal Culture and Irrigation Development: The Minitare (Mutual) Irrigation Ditch Company, 1887–1896, 19:4 Envtl. Hist. Rev. 49, 51 (1995) (Colorado laws aimed against corporations); Donald J. Pisani, “I am resolved not to interfere, but permit all to work freely”: The Gold Rush and American Resource Law, in A Golden State: Mining and Economic Development in Gold Rush California 123, 125 (James J. Rawls & Richard J. Orsi eds. 1999) (prior appropriation encouraged equal access as well as monopoly).

(32) . On the inefficiency of these rules, see Terry L. Anderson & P. J. Hill, The Race for Property Rights, 33 J. L. & Econ. 177 (1990); Lueck, supra note 4, at 133–36; Tregarthen, supra note 26, at 123–24, 132–33; Stephen F. Williams, The Requirement of Beneficial Use as a Cause of Waste in Water Resource Development, 23 Natural Resources J. 7 (1983). For their supposed origins outside of the pure appropriation rule, see, for example, Mohamed T. El-Ashry & Diana C. Gibbons, The West in Profile, in Water and Arid Lands of the Western United States 1, supra note 23, at 4; Bates et al., supra note 27, at 140; Anderson & Snyder, supra note 26, at 34, 79.

(33) . See Frank J. Trelease, Government Ownership and Trusteeship of Water, 45 Cal. L. Rev. 638, 642 (1957). It also fails to explain the diversity of water rights regimes in arid environments outside the western United States; see, for example, D. A. Caponera, Water Laws in Moslem Countries (1973); Fuller, supra note 20, at 1039; Arthur Maass & Raymond L. Anderson, … and the Desert Shall Rejoice (1978).

(34) . See, for example, Anderson & Snyder, supra note 26, at 53–56, 61.