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Gus Van Horn blog

Reblogged:Lax Property Protection and Water Pollution

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Last week, in a post titled "Cause -- or Apt Analogy?," I stated incorrectly (but admittedly from hazy memory), that "At one time, for example, property rights to riverbeds were taken away from their owners so companies could dump waste into them without fear of being sued." An interested commenter asked for a citation or source, which I was unable to supply.

Fortunately, reader Snedcat mentioned in a comment of his own a couple of illuminating sources directly pertinent to the matter:

Image via Pixabay.
[The] lax, "pro-business" legal climate around that time" ... especially involved a series of legal decisions picking up in the 1880s. An overview is available here. One of the legal issues not discussed so much in it is that common law (from Roman law through Bracton) considered river beds one category of property owned by the state; the legal cases above refer to riparian rights, the rights of people along the river to certain amounts of water of a certain quality. This discusses it. [links in original]
I find the following passage, from the first of these, particularly relevant:
Yet the judges were not insulated from broader social developments and thus their decisions reflected changes in values in the nineteenth and early twentieth centuries. Strict protection of property rights in the early nineteenth century was compatible with the early republican thought, which attributed intrinsic value to property; it was the foundation of propriety and political participation in the society and the source of the citizen's independence. Utilitarian values gained prominence throughout the nineteenth century, culminating in the Progressive Era when Gifford Pinchot promoted the use of water and forest resources for "the greatest happiness for the greatest numbers." The mid-nineteenth century case reports indicate that for judges industry was the vanguard of economic development that benefited everybody. Public opinion turned against corporations and big business at the end of the nineteenth century, when their misuse of power had been amply demonstrated. By then it was considered that social welfare and the interests of large corporations were not compatible. [format and punctuation edits, bold added]
So I was generally correct that government protection of the property rights of many downstream of polluters was lessened. But these weren't rights to the riverbed. I further think that it would be wrong to infer or imply that the property status of rivers were ever laid out perfectly at any time.

With that, let me thank Snedcat for the helpful correction and my much-improved understanding of those historical developments. (And chalk one up to the value of admitting when you don't have an answer.)

-- CAV

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