Beneficial Use and Limits on Transfer
Beneficial Use and Limits on Transfer
This chapter focuses on the issue of water transfers. It also deals with the more general property-theory issue thereby implicated, the question of alienability. It shows that the restrictions on transfer of water rights imposed by the classic appropriation doctrine created an anticommons, in which welfare-enhancing transfers and assembly of property rights were severely limited. While water rights were in theory transferable to others, and in practice some transfers were carried out, the effect of this anticommons was to move property in water closer to inalienability than to the relatively full alienability often associated with private property. More importantly, this development was anticipated—and nonetheless consciously chosen—by the judges and officials who created the appropriation system, who preferred a property regime that encouraged broadly distributed rights over one that maximized value.
Keywords: water transfers, alienability, water rights, appropriation doctrine, anticommons, property rights
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