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Changes and Transfers of Water Rights

Frank J. Trelease, Proceedings of 13th Annual Rocky Mountain Mineral Law Institute (1967)

Basic Theories

The basic philosophy underlying Western water rights is one that should be pleasing to an audience representing the mining and petroleum industries. It is essentially one of laissez-faire treatment of private rights to water, rights carved out of resources that were once a part of the public domain. The major policy behind water law is the same as that behind the law for the development of any resourcethe nation, the state, and the people want to obtain the maximum or optimum benefits from its use. The mechanism the law has chosen to accomplish this in water resources is the legal device of property rights, not dissimilar from property rights in more stable and tangible assets. Decisions as to the most productive or wisest use of the property are to be made by private [508] personsthe ownersnot by administrators. The maximization principle is generally believed to be achieved, or approached, by free men in a capitalistic society when they make decisions on where and how they will employ their labor and capital. Each person will attempt to achieve the greatest possible benefit for himself, and the total result of all these individual actions will tend to produce maximum welfare. Western water law follows this pattern.1

Many people, when told that Western water rights are based on the doctrine of prior appropriation which gives the first user of