Georgia Law Review, Vol. 24, No. 2 (Winter 1990), pp. 163-221


This Article looks at aspects of a particular societal problem as it was approached at different historical periods in Roman, French, and American property law. The main point of the Article is to clarify understanding of the American course of development through an awareness of how the problem was dealt with elsewhere. This awareness will cast doubt on the simplicity of the American course of development as explained in a distinguished book, and on the relationship of the legal development to economic change. In THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, Morton J. Horwitz seeks "to show that one of the crucial choices made during the antebellum period was to promote economic growth primarily through legal, not the tax, system, a choice which had major consequences for the distribution of wealth and power in American society." In this Article I seek to show, on the basis of the cases analyzed by Horwitz (and of a few other cases), that this choice was not made by the American judges in the principal area of property law that he discusses. The general issue for consideration is: to what extent, in what ways, and with what remedies, may an owner of land be restrained by his neighbor from using his land in a way that is otherwise lawful in order to avoid causing a financial loss or reducing a financial benefit to the neighbor? As does Horwitz, I will here look only at issues concerned with water law. The problem, of course, is that almost any agricultural, domestic, commercial, or industrial use of water by one landowner will have an impact on other land owners. This Article posits two general conclusions. First, I argue that the starting point in the granting of legal remedies will have a considerable impact on the unfolding of the law. Legislators, judges, and jurists alike are so blinkered by the legal tradition that it is hard for them to change the thrust of the law. Second, in the absence of comprehensive, satisfactory legislation, subordinate lawmakers such as judges and jurists may well hold differing analyses of the law over a long period of time. It is not always true that one successful approach replaces another. The older approach may also continue.