The 19th century approach to a 21st century problem

“[T]he existence, origin, movement and course of [underground] waters, and the causes which govern and direct their movements, are so secret, occult and concealed, that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would be, therefore, practically impossible.” – Frazier v. Brown, Ohio State court, 1861.

And thus, was set a common law precedence which dictated legal framework on water percolating from the ground for the next 150 years. Called the “absolute dominion” doctrine, the principle was not devoid of logic. Any restriction on estate owner’s right to extract subterranean water from stationary bodies was seen as an infringement of property rights.

This was because in property law “land extends downwards as well as upwards; whatever is in a direct line between the surface of the land and center of the earth, belongs to the owner of the surface”.

Once turned into a property rights issue, the principle also led to the emergence of “rule of capture”, at first with respect to oil and gas extraction, the so called “fugitive minerals”. In 1889, US Supreme Court observed that like wild animals, “fugitive minerals” tend to escape without volition of the owner. They only belong to the owner of the land, and are part of it, so long as they are on or in it. But when they escape, or go into other land, the title of the former owner is gone”.

This set the tone for regulators to treat ground and surface water legislation very differently. Surface streams and run-offs were acknowledged as scarce resources early on, which led to recognition of riparian rights for surface water. While the distinction first emerged in American law, it soon influenced similar litigation across the Atlantic, reflected in Acton v Blundell.

Twentieth century saw emergence of new technologies to exploit groundwater potential that came with a dramatic increase in demand. However, unabated abstraction turned groundwater into a tragedy of the commons. Over the last 40 years thus, courts in developed countries have begun to regulate the right under “reasonable use” rule.

One noted “a basic inconsistency in saying that a person has a property right in underground water that cannot be taken without compensation, for when he exercises that right to the detriment of his neighbour, he is actually taking his neighbour’s property without compensation”.

Thus, by regulating quantity of extraction, for example, by limiting it to use over said property only, “reasonable use” principle is now increasingly seen as protecting landowners’ property rights in groundwater (the neighbour’s), rather than infringing upon them.

Right of private property owner to limitless groundwater abstraction is now increasingly being questioned as resource availability has shifted from abundance to scarcity across the world. Courts are playing a central role in shaping this legislation because water is usually seen as a municipal subject, which inhibits policy making at federal level.

Water scarcity in Pakistan has recently brought commercial abstraction under public scrutiny. Here is hoping that arcane principles from 19th century will not be employed in courts to address a 21st century problem!