In Hart v. Burnett, 15 Cal. 530, it was held that the pueblo had a “certain right or title” to the lands within its general limits, notwithstanding the fact that the Mexican government retained the power to make grants within those limits; that the pueblo authorities were more than mere agents of the government to dispose of the lands as public lands, but the pueblo itself had a vested interest in the lands, and that the portions of such lands not set aside or dedicated to common uses, or for special purposes, could be granted in lots by the municipal officers to private persons in full ownership; that the city of San Francisco succeeded to the right or title of the pueblo, and that the municipal lands to which it thus succeeded were held in trust for the public use of the city, and were not subject to seizure and sale under execution issued on a judgment against the city; that the property and trusts were public and municipal in their nature, were within the supervision and control of the state sovereignty, and the federal government had no such supervision or control; that the act of the state legislature of March, 1858, confirming the so-called Van Ness Ordinance, was a legal and proper exercise of this sovereign power.
–Lux v Hagin
Why riparianism persists in California
Riparian lands are irrigated naturally by the waters percolating through the soil and dissolving its fertilizing properties. This is sufficiently apparent from the consequences which ordinarily follow from a continual cessation of the flow of a stream.
If, in accordance with the law, such lands may be deprived of the natural irrigation without compensation to the owners, we must so hold; but we fail to discover the principles of “public policy” which are of themselves of paramount authority and demand that the law shall be so declared.
In our opinion, it does not require a prophetic vision to anticipate that the adoption of the rule, so called, of “appropriation” would result in time in a monopoly of all the waters of the state by comparatively few individuals, or combinations of individuals controlling aggregated capital, who could either apply the water to purposes useful to themselves, or sell it to those from whom they had taken it away, as well as to others.
Whether the fact that the power of fixing rates would be in the supervisors, etc., would be a sufficient guaranty against over-charges would remain to be tested by experience. Whatever the rule laid down, a monopoly or concentration of the waters in a few hands may occur in the future. But surely it is not requiring too much to demand that the owners of lands shall be compensated for the natural advantages of which they are to be deprived.
–Lux v Hagin, the foundational California water law case (paragraphs added; emphasis original).
It’s all the fault of the miners
Part of the reading for class this week involves the historical evolution of western water law, from communal-equitable roots to the appropriation system.
It seems the prior appropriation system originally evolved among mid-nineteenth-century western miners: typically they were working under conditions where there was no effective government and no lawyers to tell them what the common law rules were, drafting rules which would work amongst themselves and prevent dispute settling at gunpoint. Riparian rights didn’t work because (a) nobody cared about the land adjoining the river, what they wanted was the ability to divert water and silt and then scour the silt; and (b) they were all squatters anyway, so could have no riparian rights.
The system they developed worked well as between them; it only became problematic when extended outside the mining context.
In most of the west, the primary push for that extension came from second- and third- wave settlers who homesteaded non-riparian parcels and saw no reason that the abundant waters in rivers shouldn’t be be available to help them put their new (free!) land to productive use.
Writing to thousands of party workers, [RNC chairman] Gabrielson warned that “perhaps as dangerous as the actual Communists are the sexual perverts who have infiltrated our government in recent years.
Everyone learns about the Red Scare in school, and absorbs feelings about it from our popular culture: either they like it because they believe it was a justified attempt to protect the government from the danger of Soviet infiltration or – more common in my social circle – they dislike it as an example of paranoia run amok, damaging and destructive of all it touched.
But – almost certainly because teachers aren’t willing to go into a topic which is still more controversial than communism – virtually nobody learns in school about the corollary: a concerted effort over years to drive homosexuals out of the government, under the theory that they were almost as bad as Communists.
According to The Lavender Scare, a 2004 study of the subject, homosexuality was as common in the new deal-era DC as it was in Berlin in the 20s (albeit less flashy and open). But then it became the subject of politics.
Headlines warning of “Perverts Fleeing State Dept.” peppered newspapers throughout the country. While members of Congress held hearings to determine how to “eradicate this menace”, jokes circulated about the “lavender lads” in the State Department. The issue was so frequently discussed on the Senate and House floors that one Congressman complained about all the attention being given to homosexuals. … The issue of homosexual sin government, observed columnist John O’Donnell, constituted a new type of political weapon – never used in this republic.” He predicted it would destroy the confidence of the American people in the State Department and might “wreck the administration.” Seeing this as evidence of “depravity in the Roosevelt-Truman bureaucracy,” Westbrook Pegler lamented, “[T]here is no record of comparable corruption in American history.”
The last point is an important one: it is not clear to what degree the scandal-mongers were motivated by an honest belief that homosexuals presented a clear and present danger to the nation, and to what degree they were motivated by the belief that whipping up a frenzy about it could serve to discredit the party which had controlled DC, and the country, for almost two decades. It is said that diplomacy is a continuation of war by other means, and the same might well be said for politics.
All of which goes to show two things: first, that it’s no more than a myth that politics has always stopped at the water’s edge; even in the height of the cold war, the US foreign service was subject to attack for purely political reasons. And second – however frustrating and unpleasant the contemporary “politics of personal destruction” may be, they are not unique, and the politics of our age are no worse than the politics of any other. Politicians have always been willing to destroy innocents in the cause of political victory.
Warren Harding got a bad rap
at least in some ways. He’s widely known for his corruption, but just as Wilson’s incredible racism isn’t taught and is largely forgotten, so too is this aspect of Harding:
“On October 26, 1921, in one of the boldest speeches ever delivered by an American president, he traveled into the heart of the South to tell an enormous crowd in Birmingham, ‘I would say let the black man vote when he is fit to vote; prohibit the white man voting when he is unfit to vote.” (–Last Call, by Daniel Okrent).
Even in the darkest days of race relations in America, there were men who swum against the tide, and it is a shame that Harding’s swimming has been consigned to the dustbin of history.
This was an awkward way of framing the debate
One of the issues which came up during the argument over adopting the prohibition amendment was whether or not the owners of breweries and distilleries – or of owners of large stocks of already-brewed or already-distilled liquor – should be compensated for their economic losses caused by prohibition. Early versions of the 18th amendment provided for compensation, but it was eventually dropped in favor of a one year delay between successful ratification and implementation of prohibition.
At least one of the arguments against compensation was somewhat disturbing.
“Less holy was the breathtakingly disingenuous no-compensation argument Representative Daniel E. Garrett of Texas had offered when Congress first debated the Hobson Amendment. After the Thirteenth Amendment abolished slavery, he said, four billion dollars’ worth of ‘property’ had been rendered valueless. ‘I doubt if any man deplores more than myself that the institution of slavery ever existed in this country,’ Garrett claimed, and ‘as it has been with human slavery, so shall it be with alcoholic liquors.’ Therefore, he argued, the liquor and beer interests ‘must pocket their loss just as our fathers had to pocket theirs when you took their niggers away from them. That is all there is to it.’”
(–Last Call, by Daniel Okrent).
This should, perhaps, be a warning of where precedent can take you.
The way we lived then.
I’ve never really understood the historic WASP disdain for non-WASPs, epitomized by the pictures from the 1920s of signs saying “no Irish need apply” and the like, and it’s particularly hard for me to believe that this was an issue in the Bay Area, where many of the local fishing villages were run by Portuguese and Italians, and where San Francisco had a huge Italian population. So I was surprised to encounter this quote in Last Call, last year’s extensive history of prohibition:
“Stanford Chancellor David Starr Jordan darkly noted that although San Mateo County was ’9/10 Anglo-Saxon’, he had determined that ‘about one-half the arrests for speeding, hit-and-run driving, or worse, are all men with Italian names, mostly from Naples and Sicily.”
I guess the moral of the story is that anglo-American racism truly has known few bounds, historically.
Why we aren’t aquarian communists.
The common right to the use of running water therefore applies only to those cases where the quantity of water is so great that its entire exclusive appropriation is not necessary, having regard to the general objects of the institution of property.
— Grotius
I wonder if this can be generalized to a concept that property need only exist when there is a shortage. Isn’t that the fundamental libertarian-anarchist objection to intellectual property?
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