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From the very earliest European settlement of the North American Continent, water rights and ownership have been an ongoing issue. Ownership of real property did not always automatically confer rights to water either adjacent to or flowing through the property. Water law dates back into Roman times and even further into antiquity. Present court litigation over water rights in the Western United States, often involves extensive investigations into the oldest verifiable uses of the water. In all of this, the investigation of water rights and research into ownership can be a productive way to provide genealogical information. Where allowed by law primarily in the West, water rights could be bought and sold just as any other property right. In addition, water rights could be inherited.
In most geographic areas, water rights were registered through a system of water shares or deeds. In the East, these rights were included with the sale of real property, in the Western United States, they could be transferred separately from real estate transfers and the transfers are controlled by some specially created commission or agency.
HistoryEven in the ancient Roman Empire, property owners who were adjacent to water were acknowledged to have an interest called a riparian water right. This principle influenced water rights in most of the European countries. These riparian rights were appurtenant to the property, this means that they could not be sold or transferred separate from the property. There is a distinction made between navigable and non-navigable waterways. The system of riparian rights was adopted by most of the Eastern states but in the Western states another system of allocating water rights developed called the right of prior appropriation or in other words, first in time, first in right.
These two different methods of allocating water rights have now co-existed in America throughout the entire history of its occupation by European and other ethnic groups.
Importance of Water Records
Particularly in the western part of the United States, water rights were transferable in the same way any other property rights were transferred; by deed, by lease or testamentary distribution. Since water records were maintained separately from other land title records, they may provide information not contained in the land and property records. You may not be aware at all that your ancestors had or owned water rights until you begin looking for documents with reference to those rights.
In most of the western part of the United States, water rights were often the subject of bitter controversy and extensive litigation. Some of the water rights litigation has continued for decades and the reports of the cases have created their own archives. For an idea of the length of time involved and the complexity of these extensive litigations, see Feller, Joseph M., The Adjudication that ate Arizona Water Law, Volume 49 Number 2 of the Arizona Law Review.
There are several other huge law cases involving hundreds of litigants and likely millions of pages of transcripts, pleadings and exhibits that contain a huge amount of information about the history of the State of Arizona and all of the adjoining states and those states along the Colorado River waterway.
Finding Water Records
In the eastern states of the United States, water records are part of the general land and property record and will be found in the same locations, usually county recorders offices, as any other land records. See United States Land and Property and the same topic in each of the individual states. As you move west across the United States, it is more and more likely that there are separate state, county and local agencies that record water rights including any transfers of those rights. To find such records, search for the name of the state and include the term "water rights."
Major legal cases in American water law
- Arizona v. California (Colorado River)
- Gila River and Little Colorado River General Stream Adjudications
- Colorado River Water Conservation Dist. v. United States
- Sun Belt Water Inc. v. Government of Canada
- Winters vs. United States
- The State of Wyoming v. The State of Colorado (Laramie River)
- Tri-state water dispute (Georgia, Alabama, Florida)
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