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The Fluid Nature of Property Rights in Water

64 Pages Posted: 9 Jul 2010  

Shelley Ross Saxer

Pepperdine University School of Law

Date Written: 2010

Abstract

In this article, Professor Saxer discusses how the understanding of private and public rights in water influences the efficient allocation of this essential resource. Property rights to surface water, ground water, and rain water are explored and evaluated using the traditional comparison to the land-based “bundle of rights” metaphor. However, Professor Saxer concludes that this metaphor is inappropriate when applied to a resource such as water, which is constantly changing in form, quantity, and location and is difficult to exclusively possess. Rather, she argues that water rights should be viewed as a communal resource subject to state ownership under the public trust doctrine, with private rights allocated through government contracts granting revocable licenses to use.

Keywords: water, public, private, rights, surface water, ground water, rain water, bundle of rights, exclusive, possession, communal, resource, state, ownership, public trust doctrine, government, contract, revocable, license

Suggested Citation

Saxer, Shelley Ross, The Fluid Nature of Property Rights in Water (2010). Duke Environmental Law & Policy Forum, Vol. 21, 2010; Pepperdine University Legal Studies Research Paper No. 2010/13. Available at SSRN: https://ssrn.com/abstract=1636529

Shelley Ross Saxer (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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