| dc.description.abstract | This thesis examines the rights of landowners in Scotland in relation to water flowing
through their land. In the first part of the thesis, it is argued that water is a communal
thing which is incapable of ownership (or other real rights) in its natural state.
Instead, the only right which anyone can have, and which everyone indeed does
have, to water in its natural state is the right to obtain ownership through
appropriation. In practice, however, those who own the beds of bodies of water such
as rivers and lochs have the best opportunity to use water and exercise the right of
appropriation due to their ability to access water freely. The second part of the thesis
then examines who owns the land beneath water including the sea-bed, foreshore and
alveus of rivers and lochs. The law regarding changes to boundaries between dry
land and land covered by water is also investigated.
The third and most substantial part of the thesis analyses the restrictions to which
owners of the banks and beds of rivers and lochs are subject through common
interest. This doctrine comprises a set of (generally) reciprocal rights and obligations
which regulates the use of water by landowners. Common interest evolved as a result
of the burgeoning use of water power between 1730 and 1830. Due to the limited
material available from Roman law and the institutional writers, the courts had to
experiment with various theories to resolve the disputes with which they were
confronted. Following the establishment of the doctrinal foundation of common
interest – in which Lord Kames had a pivotal role – there was rapid development of
the content of the rights and obligations of landowners with respect to water over the
18th and 19th centuries. In light of the preceding explanation of the historical
background, the final chapter of the thesis provides a restatement of the modern law
of common interest.
This thesis has adopted a historical and, to a lesser extent, comparative approach with
the aim of providing a comprehensive study of a distinct area of water law and water
rights in Scotland. | en |
