LEGISLATION & ETHICS

Basic principles of legislation:

Definition of law: a collection of rules of human conduct prescribed by human beings for
the obedience of human beings e.g. rules which regulate students conduct in a college.
However the law student will talk of law proper, usually meaning laws made by a sovereign
body, parliament, or by judges. The rule of law means that government officials and citizens
are bound by and abide by the law

Nature of law:

i. Laws must exist and those laws should be obeyed by all, including government
officials.
ii. Laws must be published
iii. Laws must be prospective (who or which may do something in the future/ potential)
in nature so that the effect of the law may only take place after the law has been
passed. For example, the court cannot convict a person of a crime committed before a
criminal statute prohibiting the conduct was passed.
iv. Laws should be written with reasonable clarity to avoid unfair enforcement.
v. Law must avoid contradictions.
vi. Law must not command the impossible.
vii. Law must stay constant through time to allow the formalization of rules; however, law
also must allow for timely revision when the underlying social and political
circumstances have changed.
viii. Official action should be consistent with the declared rule.

Sources of law in Kenya:

The constitution - some constitutions are written (a formal document drawn up containing all
the fundamental laws) or unwritten as in the United Kingdom where there is no single code of
laws containing all the constitutional laws.

Legislation/Act of parliament - the legislative power of parliament is exercisable by bills

passed the national assembly. A bill is a draft of proposed Act of parliament. When a bill has
been passed by the national assembly it is presented to the president for his assent. When this
assent is given it becomes law and by definition an act of parliament.

Subsidiary legislation – is part of the written law and is, therefore, a source of law. It is also
described as delegated legislation. When parliament delegates legislation to another person or
body, it then becomes known as delegated legislation. Local authorities, statutory boards and
professional bodies like law society of Kenya and the council of legal education exercise a
delegated power to legislate.

The doctrines of equity and substance of the English common law – the common law
consists of the ancient customs and usages of England which has been recognized and given
the force of law.
African common law – before the adoption of English law, there were rules applicable to the
different ethnic groups in Kenya and these rules formed what is described as African
customary law. Customary law includes matters like land held under customary tenure,
marriage, divorce, dowry, succession. However, the rules of African customary laws are not
common to all ethnic groups, will only apply in civil cases and do not apply in criminal cases.

Islamic law – Muslim law is applied by Kadhi’s courts when all the parties profess the
Muslim religion.

Judge made laws- legal doctrines established by judicial precedents other than by a statute

International conventions – treaties/agreements or charters entered into by sovereign states

and international organizations

Classification of law:
There are various ways in which the law may be classified; the most important are as follows:
Public and private law
(a) Public law: Public law is concerned with the relationship between the state and its
citizens. This comprises several specialist areas such as:

i. Constitutional law: Constitutional law is concerned with the workings of the

British constitution. It covers such matters as the position of the Crown, the
composition and procedures of Parliament, the functioning of central and local
government, citizenship and the civil liberties of individual citizens
ii. Administrative law: Schemes have been introduced to help ensure a minimum
standard of living for everybody. Government agencies are involved, for example,
in the provision of a state retirement pension, income support and child benefit. A
large number of disputes arise from the administration of these schemes and a body
of law, administrative law, has developed to deal with the complaints of
individuals against the decisions of the administering agency.
iii. Criminal law: Certain kinds of wrongdoing pose such a serious threat to the good
order of society that they are considered crimes against the whole community. The
criminal law makes such anti-social behaviour an offence against the state and
offenders are liable to punishment. The state accepts responsibility for the
detection, prosecution and punishment of offenders

(b) Private law: Private law is primarily concerned with the rights and duties of
individuals towards each other. The state’s involvement in this area of law is confined
to providing a civilised method of resolving the dispute that has arisen. Thus, the legal
process is begun by the aggrieved citizen and not by the state. Private law is also
called civil law and is often contrasted with criminal law.
Criminal and civil law

(a) Criminal law: The criminal law is concerned with forbidding certain forms of wrongful
conduct and punishing those who engage in the prohibited acts. Criminal proceedings are
normally called prosecutions. In 1985 responsibility for the process of prosecution
passed from the police to a newly created independent Crown Prosecution Service under
the direction of the Director of Public Prosecutions (Prosecution of Offences Act 1985).
It should be noted that prosecutions may also be undertaken by bodies, such as the
trading standards department of the local authority, and by private individuals, e.g. a
store detective prosecuting a shoplifter. In criminal cases you have a prosecutor who
prosecutes a defendant in the criminal courts. The consequences of being found guilty
are so serious that the standard of proof is higher than in civil cases: the allegations of
criminal conduct must be proved beyond a reasonable doubt. If the prosecution is
successful, the defendant is found guilty (convicted) and may be punished by the courts.
The Criminal Justice Act 2003 sets out for the first time in legislation the purposes of
sentencing adult offenders, which are punishment, crime reduction, the reform and
rehabilitation of offenders, and reparation. Punishments available to the court include
imprisonment, fines, or community orders such as an unpaid work requirement. If the
prosecution is unsuccessful, the defendant is found not guilty (acquitted). A
businessperson may find themselves in breach of the criminal law under such enactments
as the Companies Act 2006, the Consumer Protection from Unfair Trading Regulations
2008 and the Health and Safety at Work etc. Act 1974.
(b) Civil law: The civil law deals with the private rights and obligations which arise between
individuals. The purpose of the action is to remedy the wrong that has been suffered.
Enforcement of the civil law is the responsibility of the individual who has been
wronged; the state’s role is to provide the procedure and the courts necessary to resolve
the dispute. In civil proceedings a claimant sues a defendant in the civil courts. The
claimant will be successful if he can prove his case on the balance of probabilities, i.e.
the evidence weighs more in favour of the claimant than the defendant. If the claimant
wins his action, the defendant is said to be liable and the court will order an appropriate
remedy, such as damages (financial compensation) or an injunction (an order to do or not
do something). If the claimant is not successful, the defendant is found not liable. Many
of the laws affecting the businessperson are part of the civil law, especially contract, tort
and property law.
The law of torts
Definition:

The word Tort is derived from a Latin word 'Tortus' which means 'twisted' or 'cooked act'. In
English it means, 'wrong'. The Expression 'Tort' is of French Origin.
The term 'Tort' means a wrongful act committed by a person, causing injury or damages to
another, thereby the injured institutes (files) an action in Civil Court for a remedy viz.,
unliquidated damages (amount of damages to be fixed or determined by the Court)
or injunction or restitution (compensation for loss) of property or other available relief. Or
A tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to
suffer loss or harm resulting in legal liability for the person who commits the tortious act,
called a tortfeasor.

Characteristics of tort

 The person who commits or is guilty of a tort is called a "tortfeasor"(defendant)/

Wrong doer.
 The person who suffered injury or damage by a tortfeasor is called injured or
aggrieved (claimant or plaintiff)
 Tort is a common law term and its equivalent in Civil Law is "Delict".
 In general, the victim of a tortious act is the plaintiff in a tort case.
 As a general rule, all persons have the capacity to sue and be sued in a tort.
 Tort is a private wrong, which infringes the legal right of an individual or specific
group of individuals.
  The place of trial is Civil Court.
 Tort litigation is compoundable i.e. the plaintiff can withdraw the suit filed by
him.
 The remedy in tort is unliquidated damages or other equitable relief to the injured
 Tort Law provides an avenue for an injured person of a remedy but it does not
provide a guarantee of recovery.

Differences between Tort and a Crime

Tort Crime

 Crimes are tried in Criminal

 Tort is tried in Civil Courts
Courts
 A person who commits Tort is a  A person who commits Crime
'tortfeasor' is a 'Criminal' or 'Offender'
 The remedy of tort is unliquidated
 The remedy is to punish the
damages or other equitable relief to the
offender
injured
 Criminal cases are not
 Tort litigation is compoundable
compoundable

Elements of the Law of Tort:

There are four elements to a tort, each of which needs to be present for a remedy to be
provided. They are as follows:

i. Duty of Care
The defendant owes a duty of care to the plaintiff. It means a legal duty rather than a
mere moral, religious or social duty. Duty depends on reasonable foresee ability of
injury. If at the time of omission, the defendant could reasonably foresee injury to the
plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable.
No liability when injury is not foreseeable e.g.
 A purchased a bottle of beer from a retailer for the appellant. She
consumed that and seriously suffered in her health. She found some
snail at the bottom of the bottle. She sued for compensation. The
defendant pleaded that he did not owe any duty of care towards the
plaintiff. The House of Lords held that the manufacturer owed her a
duty to take care that the bottle did not contain any noxious matter,
and that he would be liable on the breach of the duty.
 The plaintiff with a package was trying to board a moving train. Two
servants of the defendant came to help her. One of them pushed her
 from the back. At this moment the package fell on the rail track. The
package contained fireworks and it exploded. The plaintiff was
injured. She sued the defendants alleging negligence on the part of
their servants. It was held that she could not recover. Cardozo CJ
said, the conduct of the defendant’s servant was not wrong. Relatively
to her it was not negligence at all.
 The defendant boarded a train which had just started moving but kept
the door of the carriage open. The door opened outside, and created a
danger to those standing on the platform. The plaintiff, a porter, who
was standing on the edge of the platform was hit by the door and
injured. It was held that the defendant was liable because a person
boarding a moving train owed a duty of care to a person standing near
it on the platform.
 The manageress of the defendant Corporation tea-rooms permitted a
picnic party. Two members of the picnic party were carrying a urn of
tea through a passage. There were some children buying sweets and
ice-cream. Suddenly, one of the persons lost his grip and the children
including Eleanor Muir were injured. It was held that the manageress
could not anticipate that such an event would happen as a
consequence of tea urn being carried through the passage, and,
therefore, she had no duty to take precautions against the occurrence
of such an event.
ii. Breach of Duty/ Wrongful act or Omission by the Defendant
For a tort to occur the defendant for an action must have breached the duty that was
legally imposed on him. Breach of duty means non-observance of due care which is
required in a particular situation. The law requires taking the following points into
consideration to determine the standard of care required:
 The importance of the object to be attained – e.g. Due to construction
of a canal by the state government, all the trees of the plaintiff’s
orchard died. The plaintiff alleged that the government due to
negligence did not cement the floor. It was held that the construction
of canal was of great importance and to not cementing the floor was
not negligence from the state government.
 The magnitude of risk – e.g. A minor boy came in contact with
overhead electric wire which had sagged to 3 feet above the ground,
got electrocuted thereby and received burn injuries. The Electricity
Board had a duty to keep the overhead wire 15 feet above the ground.
The Board was held liable for the breach of its statutory duty.
 The amount of consideration for which services, etc. are offered – e.g.
the question of liability of a five star hotel arose to a visitor, who got
seriously injured when he took a dive in the swimming pool. It was
observed that there is no difference between a five star hotel owner
 and insurer so far as the safety of the guests is concerned. It was also
observed, a five star hotel charging high from its guests owes a high
degree of care as regards quality and safety of its structure and
services it offers and makes available.
iii. Damage or Injury

There must be damage or injury. This does not necessarily have to be physical
damage or injury it could be monetary or often emotional distress or embarrassment
are included i.e. It is necessary that the defendant’s breach of duty must cause damage
to the plaintiff. The plaintiff has also to show that the damage thus caused is not too
remote a consequence of the defendant’s negligence e.g. –

 Soon after parted with her children in a narrow street, a lady saw a lorry
violently running down the narrow street. When told by some bystander
that a child answering the description of one of her children had been
injured, she suffered a nervous shock which resulted in her death. The
defendant was held liable i.e. Res ipsa loquitur- It means ‘the things itself
speaks’. When the accident explains only one thing and that is that the
accident could not ordinarily occur unless the defendant had been
negligent, the law raises a presumption of negligence on the part of the
defendant.

Capacity in tort (Capacity to Sue and be sued)

The general rule is that all persons have the capacity to sue and be sued in a tort. However,
certain persons are subject to certain disabilities or possess certain rights or privileges under
the law:

Minors or infants: a minor sues by a next friend (parent or guardian) ad litem (Note: a minor,
is a person under the age of 18 years of age.)

Intellectually Disabled Persons: an intellectually disabled person may sue or be sued. A legal
representative will be appointed to act on his/her behalf. Note that mental incapacity is no
defence where the defendant is aware of the nature and quality of his/her act.

Government: the Government proceedings Act (cap.40) makes the Government subject to
liabilities in tort as if it were a private person of full age and capacity.

Husband and wife: under the married women’s property Acts, 1870-1884, (English statutes
of general application in Kenya), a wife can sue her husband in tort for the protection and
security of her property. Otherwise, neither spouse can sue each other in tort for the common
law considers such litigation is unseemly, distressing and embittering.
Aliens or non citizens: normally an alien is under no disability and can sue or be sued.
However an enemy alien cannot sue, but if sued can defend the action and counterclaim.

Heads of state and diplomats: the constitution of Kenya, section 14, provides that no civil or
criminal proceedings can be instituted against the president while he is in office. The
privileges and immunity Act (Cap.179) provides that heads of foreign states, the accredited
representatives and staff can claim immunity from the jurisdiction of the courts. However,
such persons are still subject to the law of Kenya, but they may claim what is described as
diplomatic immunity. The immunity does not extend to the Kenyans who are employed by
diplomatic missions. It is always open to the ministry of foreign affairs to declare a diplomat
persona non grata, thereby requiring his removal from Kenya. Representatives of the United
Nations organization and its specialized agencies can also diplomatic immunity.

Judges and magistrates: Under section 6 of the judicature Act (Cap.8), no judge, magistrate
and no other person acting judicially, can be sued in civil court for any act done or ordered by
him in the discharge of his official duty. A similar protection extends to the officers of the
court acting in process of any order of the court.

Trade unions: under the trade unions Act (Cap.233), section 23, neither trade unions nor their
officers or members can be sued in respect to any act done in contemplation or in furtherance
of a trade dispute e.g. calling a strike. However trade union officials and members are not
exempted from actions for torts committed in their personal capacity.

Corporations: a corporation can sue and be sued in the same way as any private person.
However, there are two qualifications to this general rule: it is not possible for a corporation
to commit certain torts, e.g. assault and battery, personal deflation. Secondly, if a servant of a
corporation commits a tort which is ultra vires (outside the powers of) the corporation then
the corporation is not liable

Husband and wife: Under the married women and tortfeasors Act, 1935(English statute of
general application in Kenya), in Kenya a husband is still liable for his wife’s tort. Also under
the married Women’s property Acts, 1870-1884 English statute of general application in
Kenya), a wife can sue her husband in tort for the protection and security of her property.
Otherwise, neither spouse can sue each other in tort for the common law considers such
litigation is unseemly, distressing and embittering.

Joint tortfeasors: where two or more persons assist each other in the furtherance of a
common design and commit a tort they are known as joint tortfeasors. They may be sued
separately, or any one of them may be sued for the whole of the damage. As between the joint
tortfeasors, there is a right of contribution, under which the court may apportion the damages
in such a way as is just having to their respective degrees of blame.

Vicarious liability: the person who commits a tort is always liable, but sometimes another
person who did not a tort is also liable (relationship of master and servant).the basic rule is
that the master is liable for any tort which the servant commits in the course of his
employment. This is because the master has the benefit of his servant’s services, he should
also accept liabilities. Before a master can be sued for a tort committed by his servant it must
be proved that the tortfeasor is a servant and that the tort the tort was committed when the
servant was acting within the course of his employment.

Agency in tort

Agent is a person employed to do any act for another or to represent another in dealings with
third person. Thus, agent is a person who acts in place of another. The person for whom or on
whose behalf he acts is called the Principal. For instance, Otieno appoints Mwangi, a broker,
to sell his Maruti Car on his behalf. Njoroge is the Principal and Mwangi is his agent. The
relationship between Otieno and Mwangi is called Agency. This relationship is based upon an
agreement whereby one person acts for another in transaction with a third person.
An agent’s primary duties are:

 Act on behalf of and be subject to the control of the principal;

 Act within the scope of authority or power delegated by the principal;
 Discharge his/her duties with appropriate care and diligence; and
 Avoid conflict between his/her personal interests
 Not to acquire any material benefit from a third party in connection with transactions
conducted or through the use of his/her positions as an agent
 To act with the care, competence, and diligence normally exercised by agents in
similar circumstances
 To take action only within the scope of the his/her actual authority
 To comply with all lawful instructions received from the principal and persons
designated by the principal concerning agent’s actions on behalf of the principal
 To act reasonably and to refrain from conduct that is likely to damage the principal’s
enterprise
 An agent is liable to a principal when he/she acts without actual authority, but with
apparent authority.
 An agent is liable to indemnify a principal for loss or damage resulting from his/her
act.

A principal’s primary duties to his/her agent include:

 To compensate the agent as agreed; and

 To indemnify and protect the agent against claims, liabilities, and expenses incurred
in discharging the duties assigned by the principal
 Because of the fiduciary relationship, a principal owes his/her agent a duty of good
faith and fair dealing. However, a principal can be relieved of contractual obligations
by an agent’s prior breach of contract.
 A principal has a duty to act in accordance with the express and implied terms of any
contract between a principal and an agent
No person who is not of the age of majority and of sound mind can become agent,
as to be responsible to his principal. Thus, if the agent happens to be a person
incapable of contracting, then the principal cannot hold the agent liable, in case
he misconducts or has been negligent in the performance of his duties.

Example: Mutua appoints Kibet, a minor, to sell his car for not less than Ksh. 900,000. Kibet
sells it for Ksh. 800,000. Mutua will be held bound by the transaction and further shall have
no right against Kibet for claiming the compensation for having not obeyed the instructions,
since Kibet is a minor and a contract with a minor is void ab initio.

Negligence in tort

Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent man would do. The tort of negligence can be found in such areas
as the driving of automobiles to the administering of medical practices. To succeed in action
for negligence, the plaintiff must prove: (essentials of negligence)

i. The defendant owes a duty of care to the plaintiff;

ii. The defendant made a breach of that duty; and
iii. The plaintiff suffered damage as a consequence thereof.

Examples:

 The conductor of an overcrowded bus invited passengers to travel on the roof of the
bus. The driver ignored the fact that there were passengers on the roof and tried to
overtake a cart. As a result, a passenger was hit by a branch of tree, fell down,
received injury and died. It was held that both the driver and the conductor were
negligent towards the passengers; there was also contributory negligence on the part
of the passengers including the deceased, who took the risk of travelling on the roof of
the bus.
 (1972) – The Delhi High Court has held that a pedestrian who tries to cross a road all
of a sudden and is hit by a moving vehicle, is guilty of contributory negligence

Nuisance in tort

Nuisances are divided into two main classes:

Public nuisance: an unlawful act or an omission to discharge a legal duty which causes in
convenience or annoyance to the public, or interfering with the exercise of employment of a
right common to all. Examples of public nuisances which a prosecution can be instituted
include causing an obstruction of the highway, rendering the highway dangerous, throwing
fireworks in a public place and keeping a disorderly house.
Private nuisance: is an unauthorized act or omission which interferes with a person’s use or
enjoyment of his land e.g. noise smells in the form of smoke or fumes, pollution of the air or
water, and access to the public highway.

The normal remedy for a nuisance is an injunction, which is an order of the court to the
defendant to cease and desist certain conduct or to do something specific. Nuisance may also
give rise to damages where:

i. The injury to the plaintiff's legal rights is small;

ii. The injury to the plaintiff's legal rights is capable of being estimated in money;
iii. The injury to the plaintiff's legal rights is one which can be adequately compensated
by a small money payment; and
iv. It would be oppressive to the defendant to grant and injunction

Defamation

It is the publication of a statement which injures the reputation of another by exposing him to
hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking
members of society. Defamation consists of libel and slander. The basic differences between
the torts of libel and slander are as follows:

 Libel is a defamatory statement in permanent form, for example, writing, wax

images, films, radio and television broadcasts, and public performances of plays
whereas Slander is a defamatory statement in a transient form (contained in speech or
in some significant sign or gesture.
 Libel is actionable per se whereas damage must be proved for slander, except in four
instances:
i. Where there is an allegation that the claimant has committed an
imprisonable/serious offence;
ii. Where there is an imputation that the claimant is suffering from a contagious
disease, such as venereal disease, leprosy, plagues and, arguably, HIV/AIDS;
iii. Where there is an imputation that a woman has committed adultery or
otherwise behaved in an 'unchaste' fashion
iv. Where there is an imputation that the claimant is unfit to carry on his trade,
profession or calling.
 Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.

Essentials of defamation
i. The statement must be defamatory: the statement must tend to lower the claimant in
the estimation of right-thinking members of society generally, and in particular cause
him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem.
Mere abuse /vulgar abuse - Spoken words which are prima facie defamatory are not
actionable if it is clear that they were uttered merely as general vituperation and were
 so understood by those who heard them. Further, the same applies to words spoken in
jest.
Innuendo- Sometimes a statement may not be defamatory on the face of it but contain
an innuendo, which has a defamatory meaning. Such a statement may be actionable.
The hidden meaning must be one that could be understood from the words themselves
by people who knew the claimant and must be specifically pleaded by the claimant
ii. The statement must refer to the claimant, ie, identify him or her, either directly or
indirectly.
iii. The statement must be published, ie communicated, to a person other than the
claimant.
For example, dictating a defamatory letter to a typist is probably slander but when the
letter is published to a third party it is libel. However, in Bryanston Finance v De
Vries [1975] QB 703 it was held that where a letter was written to protect the interests
of the business there was a common interest between the employer and employee, and
so a letter dictated to a secretary in the normal course of business was protected by
qualified privilege.

Defences in tort

Self-defence – a person is entitled to defend himself or members of his family and his
property. In a fierce dog, broken glass on a boundary wall defending himself, a man may use
such force as is reasonably necessary and the means of defence must be related to the harm
which would be otherwise be suffered. A person is also entitled to take reasonable steps to
take reasonable steps to protect his property e.g. keeping a fierce dog, broken glass on a
boundary wall.

Volenti Non Fit Injuria – this is the defence that the plaintiff both knew of the risk he was
running and willingly consented to run that risk e.g. in the world of sport such as boxing,
football, cricket, rugby. The consent to the risk can be either implied or expressed. It is
implied in the case of sporting events and would be express where, for example it was
stipulated in a contract.

Examples:

In a certain case, the defendants were going to a petrol station in their jeep,
when the plaintiffs stopped them and asked for a ride, the defendants agreed and
the plaintiffs boarded the jeep. While travelling, one of the screws in the wheels
came off and the jeep crashed, killing one of the plaintiffs. The court found that
the defendants were not liable because of the sheer accidental nature of the
incident and also the plaintiffs agreed to board the jeep and thus, consented to
the possibility of being injured in an accident. The principle of Volenti non fit
Injuria is applicable in this case.
In a different case, the plaintiff had a tumour on her breast and went to a hospital
to get it surgically removed; she consented to the surgical procedure for the
removal of the tumour. The tumour had nothing to do with her uterus. The surgeon
not only removed the tumour, but also removed her uterus. The hospital was held
liable because they had performed an action without the consent of the patient
and the court found the defendants liable.

Inevitable accident: An inevitable accident is an occurrence not avoidable by any precaution

a reasonable person would be expected to take. The person invoking the defence must show
that something happened over which he or she had no control, and the effect of which could
not have been prevented by using great skill and care. He or she must show either the cause
of the accident and the inevitability of its result, or all the possible causes and the inevitability
of the result of each.

The defence of inevitable accident holds that where an accident is purely inevitable, and not
caused by the fault of either party, the loss lies where it falls. Although normally the
defendant need not prove inevitable accident but only deny negligence, the defence is still
used occasionally. The courts, however, are not quick to accept it.

Example:

The defendant’s horse carriage was being driven down the road when the barking
of a dog startled the horses and they became unmanageable, despite the best
efforts of the defendant’s servant they knocked down the plaintiff. The court
found that the incident was an accident and that the defendant had taken due
care and could not have foreseen the event.

Act of God: An act of God is a legal term for events outside human control, such as sudden
disasters, for which no one can be held responsible. Under the Act of God defence, the
defendant is insulated from liability for personal injury or property damage caused natural
disaster such as floods, earthquakes, hurricanes and lightning.

Statutory authority: statutory authority implies that an act is done by a person to fulfil his
duty imposed by the state. If a statute is construed so as to compel some public authority to
carry out a particular duty which, but for statute, would amount to tort, then no action can be
taken against the authority.

History of water law (Early Doctrines)

(a) The riparian rights doctrine

 The eastern states of the United States (Minnesota to Louisiana and eastward) primarily apply
the riparian doctrine to determine who has the legal right to use water (Chapter 3 of Weber's
9th edition of Cases and Materials on Water Law).

The fundamental concept of riparian doctrine is that the owner of land adjacent to a water
body (e.g., lake, river, and stream) has the right to use the water. Some of the questions that
arise are:

i. What land is considered riparian?

ii. How can the water be used,
iii. How much water can be used, and
iv. Who enforces a riparian landowner's water right?

With respect to the enforcement question, the simple answer is that a riparian landowner
brings a lawsuit against another riparian landowner if the first landowner feels that the second
landowner's use of the common water body is interfering with the first landowner's use of the
water. The legal action is based on tort law, such as trespass; that is, "your use of the water is
interfering with my right to use the water." The result of this enforcement practice is that
numerous riparian landowners' along a common water body may be engaged in extensive and
numerous litigations to determine and enforce their relative water rights (see note 2 on p. 331
of Weber's 9th). Consequently, courts had a considerable role in defining water law as well
as imposing individualized solutions in resolving legal disputes.

(b) The prior appropriation rights doctrine

The appropriation doctrine originated in California around the time of the Gold Rush where
miners were looking for ways to increase the amount of water available for mining
operations. The 1855 California Supreme Court Case of Irwin v. Phillips is what brought the
water appropriation problems to light at this time. Matthew Irwin diverted a stream for his
mining operation. Shortly after, Robert Phillips started a mining operation downstream and
eventually tried to divert the water back to its original streambed. This case was taken all the
way to the California Supreme Court where the court ruled in favour of the appropriation law.

The legal details vary from state to state; however, the general principle is that water rights
are unconnected to land ownership, and can be sold or mortgaged like other property. These
rights can be lost over time if non-use of the water source is demonstrated or if the water has
not been used for a certain number of years. There are four essential elements: intent,
diversion, beneficial use, and priority.
 The first person to use a quantity of water from a water source for a beneficial use
has the right to continue to use that quantity of water for that purpose.
 Subsequent users can use the remaining water for their own beneficial purposes
provided that they do not impinge on the rights of previous users - this is the priority
element of the doctrine.
 In addition to this, a user may not change the intent in which he is appropriating
water such that the change hinders the use by another. {These Preservation of
Conditions were granted to the second user after Farmers High Line v. City of
Golden}(CO 1954).