However, questions regarding property become problematic when it comes to properties that stretch over the boundaries of many private properties (as well as public properties) owned by several owners such as water bodies like streams or rivers. Therefore, it worthwhile to analyse water rights in the light of property issues.
McPherson states that property has different connotations in different contexts and he rightly argues that property is a right and not physical possession. For instance, a person may be in possession of a house on rent or for safekeeping on behalf of a friend or a landlord, but that does not mean that the current occupant is the owner of the property. Assuming that rights will settle the matter as to who owns the property there are several instances where the boundaries of rights can become confusing. One is where the property is described as a common one and the other is where the property in question is a water body. As McPherson purports everyone has an 'enforceable claim to use' common lands, public parks, city streets, highways (McPherson 4). On the other hand, there are state owned properties like for example, NASA or other properties owned by the state and federal governments. These properties do not provide the same rights to citizens as do common properties. Such properties are maintained for some specific purpose aimed at the benefit of the society or individual sections of the society and not for individual enjoyment. A court of law is an ideal example, which does not provide an enforceable claim to use sections of the property as in the case of a park or a highway. It may be used under certain conditions to address the rights of citizens to enforce law.
The question here is where water bodies that cannot be defined clearly fall in the case of property rights. In an area where there is abundant rainfall or availability of common water bodies, this might not be much of an issue. But the case of the American west, where availability of water is more of an issue, the rights of property becomes an issue that needs legal and statutory assistance to find a settlement. Gillian and Brown, in their paper titled 'Instream flow protection' has discussed this issue in some detail, referring to the history of water disputes and laws right from the start of colonization of the country. For instance, the Spaniards followed their own domestic water laws which provide the property owner to use water flowing through their property. But public benefit would override private needs and in such an instance, the latter would prevail. British settlers, who back home had few problems with water, were not as well prepared. After attaining independence, different states in the union had to develop their own laws regarding management of water and most were made according to current demands at the time. For example, the California gold rush prompted lawmakers to allow property owners to use water for their own use. American law following British statutes aimed at implementing what is known as the Riparian law whereby any owner who has access to flowing water (watercourse) adjacent or through his property can make reasonable use of it for his own use.
Another factor that affected laws and statutes in western United States was the practical use of scarce water for irrigation and domestic needs by Mormons who had