Appropriation as Agrarianism: Distributive Justice in the Creation of Property Rights

Abstract

The water-law doctrine of prior appropriation, developed in Colorado in the late 1800s, has received much scholarly attention, due to the claimed efficiency advantages of the system of private property rights it is supposed to have instituted. Supporters and critics alike have associated the doctrine with values such as the preference for private over common property, the privatization of the public domain, and the facilitation of markets in natural resources. This article relies on analysis of previously unexamined historical sources to demonstrate that the appropriation doctrine actually was intended to express contemporary radical, agrarian ideals of broadly distributed property and antimonopolism. The unofficial codes of the Colorado mining districts, conventionally thought to be the source of the doctrine’s first in time, first in right principle, focused primarily on rules designed to ensure wide distribution of property. Similarly, the statutes of the Colorado Territory, the water-rights provisions of the state constitution of 1876, and early judicial decisions culminating in the leading case of Coffin v. Left Hand Ditch Co., were mainly concerned to prevent control of water by capitalists, and did so by breaking the common-law monopoly of riparian owners and opening access to the resource to all bona fide users. This historical analysis raises the broader question of whether distributive justice has been adequately considered, alongside efficiency and public choice, as a factor in explaining the evolution of property-rights regimes. SCHORR(FINAL) 5/31/2005 6:31:50 PM 3 Appropriation as Agrarianism: Distributive Justice in the Creation of Property Rights