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Comment by anonymouskimmer | Hacker News Reader

Something equivalent to manorial lordship. The title itself would be "senior water rights holder". The right granted by this heritable privilege is the right to first service. A first service which may result in an inferior holder of water rights not getting any water at all.

It's important to note that, at least some, constitutional scholars see a focus on an actual "title" as beside the point. A state can call Michael Jackson the "King of Pop" without violating the clause because this title does not actually grant noble privilege in any way. It's just a name. However granting a heritable privilege that is not available to anyone meeting a similar, non-heritable requirement (such as a driver's license, which is theoretically equally available to all), does violate the titles of nobility clauses even if no actual "title" is granted with it.

https://constitution.congress.gov/browse/essay/artI-S9-C8-2/...

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> Something equivalent to manorial lordship.

A manor lord is not a noble. Functionally speaking, people like Thomas Jefferson and George Washington, who held large estates, would have been roughly equivalent in stature to a manor lord, or what was by that time a gentleman. They would have been eligible to vote in, or be a member of, the House of Commons, but not the House of Lords. In general, the goal of the Titles and Nobility clause is to foreclose the possibility of an American peerage.

It is worth noting that there is a very important difference between a title of nobility and title to property rights. Were I an English peer, I would have no right to decide who should inherit my title upon my death (or even before then); the title's inheritance is strictly decided by the monarch. But for property, I can generally subdivide the property at will, and even grant other people the property or use thereof subject to almost whatever constraints I can put on it (this is where things like the rule against perpetuities come in).

Water rights are property rights, not titles of nobility, and it's not even a close question.

From the Wikipedia article on usufruct.

Thomas Jefferson famously wrote in 1789 that "Earth belongs – in usufruct – to the living." Jefferson's metaphor means that, like a usufructuary, human beings have the right to use the earth for their own benefit and derive profit from it, but only to the extent that their actions do not impoverish the earth's bounty for future generations.

I very much agree with Jefferson’s views on this matter.

> But for property, I can generally subdivide the property at will

From what I recently read, subinfeudation of a manorial property (lesser baron) was pretty much banned in 1290 with the Quia Emptores statute. After passage of the law they could only transfer the right entirely. A manor lord is a lesser noble, just like a knight, just not a peerage noble.

The ability to subdivide or lease out water rights is limited in Kansas according to certain laws. And regardless, it's the heritable senior right to this shared resource that certain holders have, that others with equally sized farms or populations cannot claim, that I'm calling a noble entitlement.

The reason why the lawyer looked at you strange is because if you applied that rule it would literally break all property rights, everywhere in the US. So of course no court is going to apply it that way.

Since property can always be inherited, and ownership of property confers rights.

None of this involves ‘nobility’ (necessarily) either.

Property rights are not rights to a common resource. Some mineral rights can be, but management of mineral rights (including gas) commonly fall under government supervision with any benefits (i.e. money) of use of the rights apportioned appropriately among all rights holders. Water rights, with seniority, are not so apportioned.

It's this senior right privilege, that is granted exclusively by the state, that I'm claiming is the title of nobility.

> Property rights are not rights to a common resource.

They can be. Native Americans considered e.g. land to be a common resource, and yet today you can own it. What is a "common resource" is a matter of social convention, not a consequence of the laws of physics.

Yes, of course. I'm particularly fond of the Scandinavian right to roam and the Californian right to access a beach.

Ownership of real property is the original ‘society protected monopoly on a public resource’!

Or do you think the ability to put up fences and signs around an area where other people would like to be too is natural?

There is a reason why wars are fought over land (and who controls it), and adjucation of who controls land is the monopoly of the gov’t - and is literally one of the primary responsibilities of every gov’t.

Yes, but if you and I have equally sized farms covering an equally sized portion of a common aquifer, you and I should have equal rights to the water in that reservoir. You shouldn't have a senior claim just because your great-grandfather (or the great-grandfather of the person you purchased title from) staked his farm out 10 years before my great-grandfather.

Should == ‘I wish’.

If it comes down to it, something has to break the tie somehow right? Because while in most years, there is plenty of water, in the years there isn’t it can literally be life and death. And timelines for figuring out who does and does not get access need to be as short as days sometimes.

Different courts have decided different rules, but senior rights holder having priority is basically ‘first person to be using it (historically) gets to keep using it if there is a conflict’.

Which stops someone from moving in and screwing over the existing people (as hard!). Think of the alternative - you build a house in a remote area, dependent on a spring. You have plenty of water.

Housing development gets built 20 years later, also dependent on the spring. In good years, everyone has plenty. In bad years…. You die of thirst? Or what? At least the subdivision knew what they were getting into, when you built your place there was no subdivision!

Same with your farm example. First guy to setup the farm did so with expectations of a certain situation. New guy moves in, and should he now get the rights to half of the ‘the first guys water’ in lean years? Maybe meaning neither have enough water to farm? Or should the first guy have the right to the water he was guaranteed when he first moved in, and the second guy might not get enough in a lean year - but at least knew that was what he deal before he moved in?

Others are king of Solomon like ‘split it down the middle’ (everyone hates this idea, since no one might end up with enough water), or ‘fixed allocations first, then proportional later’, or ‘life critical uses first, then lower priority later’ (easy to game/screw with existing rights holders - add enough new mouths, and none of the ‘less critical’ rights holders get any).

Courts move too slow to resolve these kinds of issues when they become critical - which could be on as short a term as a week or a few days, with no notice.

And not having a general rule resolve these kinds of things leaves a massive amount of uncertainly that due to the severe consequences of these kinds of situations can easily lead to people getting killed or even wide scale wars starting.

Or as they say in the US West - whiskey is for drinking, water is for fighting over.

> Property rights are not rights to a common resource.

You’re disagreeing with John Locke, among others, here.

I am not an economist. Yes, common resources such as water are rivalrous, and thus not public goods, but forgive me for not having the full vocabulary that a student of economics and privileges would.

You should be understanding the points I'm making here as I believe I've highlighted what I think is salient. Others can disagree with whether these points are indeed salient, but they (and you) should at least basically understand the point I am trying to make.

I assume John Locke would understand, as he was alive during the passing of the Tenures Abolition Act of 1660.

Naturally (as in without rules or laws), most water is very much a public good. Think ‘river’ or ‘lake’.

Anyone can go up to them and draw water from them. Wells and aquifers can be a bit more complicated, but aren’t that different when you get down to it, they just require some equipment to do the same thing. The closest equivalent would be someone needing to use a 4x truck to drive to the lake to get water.

Same with land - anyone can just walk to them and start using them. Beyond what you can personally, physically control at any one moment anyway, which is pretty limited.

What makes them NOT public is gov’t granted monopolies and rules. Like property rights. Society enforced restrictions, which means even if you’re not physically there guarding it 24/7 it can still be ‘yours’.

Examples of natural private property would be something like your own body parts, or things in your possession, or land you are currently standing on, or things in the contents of your mind.

But at the very least Henry George agrees with GP ;)

Locke was a dunce, what of it?

I mean, that is also true.

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