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Show 182 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES Mr. Wiel's thesis asserts that the common law of watercourses is not the ancient result of English law, but is a modern French doctrine received into English law only through the influence of two eminent American jurists; that Blackstone's rule of prior appropriation was accepted by the English courts at the beginning of the 19th century and as late as 1831; that toward the close of this period, and at about the same time, the American jurists Story and Kent had expounded the civil law doctrine of "riparian" proprietorship, with Kent citing the French sources; that subsequently, in 1833, the modern doctrine was first laid down by the English courts in Mason v. Hill,105 but without using the term "riparian" or citing either of these American jurists; and that the English law wavered from then on until the decision in 1849 in Wood v. Waud,106 in which the term "riparian" was apparently first used by the English authorities, main reliance being placed upon Kent and Story, contention thereby being set at rest. This he believed to have marked the definite adoption of the riparian doctrine as a part of the common law of England. Dissents.-For several decades Wiel's exposition was cited by many writers (including the present one) without contradiction. The first disagreement that came to the author's attention was in an address by Associate Justice Wilson of the Texas Supreme Court, in collaboration with one given by Dean White of the School of Law, University of Houston.107 Judge Wilson stated that Texas had received the riparian system from the common law of England, and that he and Dean White questioned the conclusions of Mr. Wiel upon the history of the riparian doctrine contained in his Harvard Law Review article. Further: Although we have had neither the time nor access to the sources needed to make an exhaustive study of this, we are of the opinion now that the English did not get this doctrine from the writings of Kent and Story as suggested by Mr. Weil [Wiel], but rather the converse is true. Story's citations are all common law. The riparian is an old common law doctrine whose roots can be traced to the year books. It may well be that it is parallel to the French water law in that both the English common law and land title system and much of the French law and land title system had a common origin in Norman feudalism, but only in this sense is the English riparian doctrine of French origin. An article by Maass and Zobel published in 1960 takes issue with Wiel's entire thesis.108 Having found no detailed study of Wiel's 1919 article by 105Mason v. Hill, 5 Barn. & Adol. 1, 110 Eng. Reprint 692 (1833). 106 Wood v. Waud, 3 Exch. 748, 154 Eng. Reprint 1047 (1849). 107 Wilson, Will, "Reappraisal of Molt v. Boyd," and White, A.A., "The Flow and Underflow of Motl v. Boyd," Proceedings, Water Law Conferences, Univ. of Texas, pp. 38, 44 (1955). 108 Maass, Arthur and Zobel, Hiller B., "Anglo-American Water Law: Who Appropriated the Riparian Doctrine?" Graduate School of Public Administration, Harvard, 10 Public Policy 109-156 (1960). |