This Article examines the definition of water rights in western water law and explores the relationship between that definition and the inefficiencies of the current doctrinal regime, as well as the current system's inability to accommodate increasingly valued instream uses. In doing so, the Article first flushes out a theoretical framework for analyzing the compositional choices of property right regimes, from usufructory to quantity-measured rights. The compositional definition of a property right has significant implications for the behavior of the rights, particularly in the transition between initial allocation and efficient equilibrium of existing entitlements. The Article then applies this framework to western water law and challenges the traditional conception of appropriative water rights. Lastly, the Article addresses the consequences of the usufructory nature of appropriative water rights for instream uses and concludes that only by complete quantification can privately held instream rights become a reality.
Nicole L. Johnson,
Property Without Possession,
Yale J. on Reg.
Available at: http://digitalcommons.law.yale.edu/yjreg/vol24/iss2/2