Water law in Star Chamber

‘A plotte of the landes about Ashebourne’, Derbyshire. 1556–1557
(Folger Shakespeare Library)

One difficulty of English water-law history is the dearth of reported water cases predating the nineteenth century. Fortunately young historians are doing good work in digging up archival documentation of water litigation. We heard a few years ago from Leona Skelton about her interesting work on the Tyne River Court, and now I'd like to note Lehua Yim's work on a sixteenth century water law dispute litigated in the Court of Star Chamber: "A Watercourse ‘in Variance’: Re-situating a Sixteenth-Century Legal Map from Ashbourne, Derbyshire", published last year in Imago Mundi. The abstract:

Law-related English local maps, especially those dating from the early- to mid-sixteenth century, remain in need of both extensive and close study. In this article, a hand-drawn sketch map in the Folger Shakespeare Library, Washington, DC, is re-contextualized in relation to documents connected with lawsuits in The National Archives in England. These lawsuit documents, concerning disputes brought before the court of the Star Chamber in the mid-sixteenth century, allow us to correct the accepted date of the map’s creation, suggest its likely creator and identify its probable use at a time of expanding cartographic consciousness among the educated classes. The importance of the manuscript map to one English family’s subsequent assertions of proprietary rights in a small stream running from Bradbourne to Ashbourne, Derbyshire, explains its provenance outside official court records.

Star Chamber has gotten a bad name in the last few hundred years, especially in the US, but it was an important court in the early modern period, capable--as Yim's article shows--of providing justice where the common law courts could not.

Emergencies, the public interest, and legal change

Over at Legal Planet the University of California's Richard Frank recently posted "California Enacts Emergency Drought Legislation: State Water Rights Reforms a Key Part of the Legislative Package", in which he notes that the severe drought from which California is suffering this year has apparently "prompted enactment of water reforms that proved impossible just five years ago", in particular increased penalties for illegal diversions and modest regulation of groundwater use. Frank writes:

Let’s hope that these new, modest changes to California water law signal the beginning, rather than the end, of meaningful efforts to reform California’s systems of water rights enforcement and groundwater regulation. Recent political and environmental history demonstrates that it often takes a major crisis to motivate government decision-makers to enact often long-overdue reforms. For that reason, perhaps some good can come out of drought conditions that currently hang like a meteorological sword of Damocles over California’s economy and environment.

Having spent the last week in California archives, working on my research on the history of water law, I was struck by one of the two great sensations known to all historical researchers--the feeling that it's all happened before. (The other one is the feeling that things back then were really different.)

Specifically, at UC Riverside's Water Resources Archives (an incredibly rich collection with a friendly and helpful staff) I came across a document authored by S.T. Harding--like Frank, a UC professor--nearly a hundred years ago, entitled "Effect of War Emergency Conditions on Irrigation Water Rights and Service". 1918, the year in which Harding wrote the piece, was a year not only of increased demands for California food production, due to the World War, but also of drought, like 2014. Harding wrote:

from the Sidney T. Harding Papers,
Box 26, Item 134-6
Water Resources Collections and Archives,
University of California, Riverside Libraries

The situation was met... by methods which would have been considered drastic and practically unenforceable under normal conditions but which under the war emergency conditions existing in 1918 were not only acquiesced in by the parties affected but were carried out largely with their assistance and co-operation.

Harding wondered whether the emergency modification of the rules of California's water-rights regime would have lasting effects:

It is difficult to see how the general results can be anything but beneficial in the future of water right development. The present experience in going directly to the result desired even though the method may be new, will tend to remove prejudices against changes which are based merely on their newness. The use of public authority to handle matters involving public water supplies as in 1918 brings to the front the public interest in the utilization of the water resources and the right of the public interest to be more largely considered in the future than it has been in at least some cases in the past. It is to be hoped that a greater public interest in such matters may be maintained in the future after the war emergency has passed which will be exercised not as under necessity in 1918 to the injury of some individuals but on a broad basis to secure the greatest general benefits from the use of the available water supplies.

California's water law did undergo some important developments in the 1920s, though I believe that the extent that this may have been due to the effects of war and drought has not been explored.

Digital archives on western water law

The William A. Wise Law Library at Colorado Law has two digital archives that should be useful to those interested in the history of western water law. The Arizona v. California Collection contains, as the site explains,

more than 160 full-text, searchable pleadings, briefs, orders, transcripts, and reports from the historic, 12-year original proceeding in the U.S. Supreme Court filed by the State of Arizona against the State of California, which sought to clarify rights to the use of Colorado River basin water. The case culminated in a June 3, 1963 decision, reported in Arizona v. California, 373 U.S. 546, which was implemented by a March 9, 1964 decree, reported in Arizona v. California, 376 U.S. 340.

This archive should be useful not only to those interested in the monumental case, the results of which continue to affect the American Southwest, but also in legal developments of the years preceding the case, such as the Colorado River Compact of 1922.

Zyg Plater's new book on the snail darter case

Rachelle Adam has brought to my attention the release by Yale University Press of The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River by Zygmunt JB Plater, who represented opponents of the Tellico Dam in TVA v Hill. The case is famous for the US Supreme Court's uncompromising stance in prohibiting completion of a dam that would endanger a small and not particularly charismatic fish, the snail darter. However the drama, and the legal, environmental, political, and social issues raised, were considerably broader.