ington's waterway commissioners nor their successors took much account of water save as a way for commerce; they failed to recognize water in itself as a resource and hence an object of property, except vaguely under the imported common-law notion of riparian rights—i. e., rights vesting essentially in the land with the water as an appurtenance thereto. Now as settlement extended into the arid regions, the pioneers learned through the bitterest experiences within human capacity that water itself is a primary value, indeed the greatest of all values; and gradually a new concept arose, under which individuals, then communities, and finally (in some cases) states came to recognize actual ownership in water. As the concept took form it became clear that the value of land itself—the chief value reckoned by the founders—is determined chiefly by the water on or in its substance, for if too wet it is worthless, if too dry a menace to life; indeed the market value of each acre of arable land in the United States to-day is determined within some ten per cent. by the associated water—i. e., the water-value is nine when the land-value is one.
The new concept of water as a primary value in its substance or corpus is not yet crystallized in statute or even in custom; it has come up with the natural growth and orderly development of the country; and it is still an open question whether the powers of the states or of the nation are paramount—though the view that the value pertains to the people and is to be administered primarily by the nation on account of its interstate quality, and secondarily by the states as an appurtenance of the land, would seem to accord with the principles framed into the constitution and interpreted by Marshall and contemporary jurists. Certainly a value of such magnitude as the 40,000,000,000 cubic feet of water flowing annually down to the sea is a natural resource too closely connected with the peace and perpetuity of the nation to long remain neglected; it alone would warrant conference between the executives of state and nation. It is within the memory of many now living that a man able to estimate the value of a raft of logs or a patch of standing timber more closely than his fellows, taking advantage of the fact that forests were still regarded as little more than obstructions to settlement, began to buy small tracts nominally as land but actually for the timber, and continued turning over his growing capital and buying larger and larger tracts as the pineries were despoiled, until he became an undercurrent of power in legislative halls and at last gained wealth probably exceeding that of any other individual in the world's history; and he but exercised prevision in taking freely that which was not at the time regarded as a
- Summarized by Hess in "An Illustration of Legal Development—the Passing of the Doctrine of Riparian Rights" (Am. Polit. Science Review, Vol. II., November, 1907, pp. 15-31).