Part One
Controlling and Harnessing Water
1
Water Rights
Introduction
The United Nations estimates that in the twentieth century, water usage increased more than twice the rate of population growth,1 and we are already seeing the stresses caused by competition for clean water on a planet with a rising population. The Indian subcontinent is facing a water crisis because of rapid urban growth, privatization of water resources, agricultural demands (India is a major grain producer), and industrial and human waste (among other issues). There is, additionally, concern that Indiaâs aquifers may not be replenishable in the long term.2 Similar stresses are faced by Africaâs rural poor. As human population increases globally, the supply of safe water will be further burdened and will no doubt become a political flashpoint.
Another anxiety regards access to and ownership of water sources. The Pima of the Gila Valley in south-central Arizona had long been successful agriculturalists because of their knowledge of crop irrigation, until white immigrants began to settle above the Pima villages in the 1890s, creating stresses on the water supply, threatening Pima prosperity, and compelling them to rely on the US government for subsistence aid.3 Pima frustration was expressed in Clay Southworthâs 1931 series of interviews conducted in order to âsupport Pima rights to the waters of the Gila River.â4 Here follows one representative expression of the general Pima grievance:
We Indians on both sides of the river were getting all the water we wanted for irrigation and were self-supporting people. But when white people began to take the water above, we were reduced to poverty and sought aid from the government.
Havelena of the Blackwater District5
Before the federal government imposed its settlement policies on the Pima, the land was sufficiently watered and quite capable of sustaining the agricultural needs of the population. Once white settlers arrived, the waterways were diverted away from Pima land, parching their territory, undermining their agriculture, and destroying their livelihoods.
The experience of the Pima raises important questions regarding who has the right to access water. Does water belong to the land or to the people who control that land? Greek and Roman law addressed these concerns, safeguarding landowners against such diversions. The anxieties regarding water access resonated with Greco-Roman thinkers in many genres. In Ovid, for example, Latona (Leto in Greek), who had recently given birth to the divine twins, Apollo and Artemis/Diana, expressed irritation similar to the Pimaâs when she sought a drink of water from an inviting pond on a hot day in Lycia (Turkey). When the locals tried to drive her away from their precious water, she delivered a vitriolic rant on water rights:
Why do you prohibit us from the water? The use of the waters is shared. Nature has made neither the ground, nor the air, nor the delicate waves its own: I came to public works. I who ask, however, as a suppliant, that you give (me a drink of water. I was not preparing to wash my joints and tired limbs here, but to relieve my thirst. My mouth lacks the moisture for speaking, and my throat is dry, and scarcely is there a path for my voice. A drink of water will be nectar for me, and I will confess to receiving life at the same time: you will give life from the water.
Metamorphoses 6.349â365
Latona, then, fittingly turned the sullen Lycians into amphibious frogs. The goddess may have been better served visiting the Red Sea where the Trogodytes collected rainwater explicitly for use by travelers in the mid-first century CE (Pliny 6.189).
Here we shall survey the regulations that guided water use and oversight in the ancient Mediterranean. The topic is vast and complex, and evidence is marshaled from sources that cover a very wide chronological period. Our treatment is necessarily selective.6
Water Regulation in the Poleis (City States) of Classical Greece
Access
Solon would have agreed with Latona that water should be made freely and widely available. Elected as Archon of Athens in 594 BCE, the legendary statesman was responsible for reforming the Athenian political system, enacting legislation against economic and political corruption, and laying the groundwork for the Athenian democracy. Some of his laws were transmitted by Plutarch in the second century CE, including one on access to water:
Since nearby water is sufficient for the place neither in free-flowing rivers or lakes or generous springs, but most folk use constructed wells, Solon wrote a law that where there was a public well within a hippicon (ca. 2300 feet = ca. 710 meters), the people should use it. But where a well was further away, they should seek their own water. If they did not find water, after digging to a depth of ten orguia (ca. 18 meters [ca. 60 feet]), then they could take from their neighbor twenty hydrias (ca. 20 liters [ca. 5 gallons]) twice each day. For he thought it necessary to furnish resources against lack but not against idleness.
Solon 23.5
Public wells were communal, and those who had to travel an inconvenient distance to collect their water and whose lands lacked viable sources had the right to obtain modest amounts of water from their neighbors. The law likely remained intact at least into the Classical period.7 River water was also regulated by municipal decree. At Gortyn in Crete, in the fifth century BCE, residents were allowed to draw water from the Mitropolianos (Litheos) River, so long as the water level did not drop, but the documentary evidence does not specify if river water was intended to benefit only the farms abutting the river or also those further away.8
Plato (428/427â348/347 BCE) surveyed âexcellent old lawsâ in Athens that regulated water rights (Laws 844aâc). In sum, farmers could bring water onto their properties from public resources, but they could not damage someone elseâs land by doing so. Individuals could procure from a neighborâs supply only as much drinking water as required by the household. Farmers could not restrict the flow of water to downstream plots nor conversely damage the fields of the downstream plot with excessive flooding. Plato also referred to laws that secured property owners against water theft and poisoning in Athens (Laws 845e).
Water and Property Rights
The Greek legal code was not as well curated as its Roman counterpart, but scattered evidence suggests oversight of the water rights for property owners. Landholders were liable for accommodating the natural flow of water towards downslope estates, as we see in one case preserved in Demosthenesâ convoluted, Against Callicles (fourth century BCE). Calliclesâ neighbor had built a wall around his own property some fifteen years earlier, whichâCallicles allegedâblocked a gully and had thus caused flooding and damage to his (Calliclesâ) fields during a recent storm. Callicles brought suit against the neighborâs son, Teisias, seeking damages in the amount of 1,000 drachmas.9 Teisias denied that a natural watercourse existed across his land, countering that Callicles had built his own wall that subsequently raised the level of the road separating the two estates and increased the threat of flooding. Calliclesâ suit was inappropriateâso argued Teisiasâmotivated by years of strife between the neighbors. The case, moreover, so Teisias maintained, was not supported by Calliclesâ âfacts.â The juryâs decision has not come down to us.
Regulations restricted personal use of private property in order to preserve access to water. Laws similar to Solonâs decrees would later be codified under Roman legislation. For example, water-hoarding fig and olive trees could not be planted within 9 feet (2.7 meters) of property boundaries, and other (less thirsty) trees were to be planted at least 5 feet (1.5 meters) from the property line. Ditches were required to be as far from the property line as they were deep.10 Evidence from horoi (âmortgageâ-stones) also indicates that the right to use water was not necessarily linked with property leases, but separate legal agreements might be required to guarantee access to the lessee.11 Plato added that owners of upslope p...