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1 - Instream Rights and the Public Trust

Published online by Cambridge University Press:  18 February 2021

Paul Stanton Kibel
Affiliation:
Golden Gate University School of Law
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Summary

As legal creatures go, the public trust is an odd duck. Public trust principles are often echoed in constitutional provisions, but constitutions are often not the source of the public trust. Statutory provisions often reference the public trust, but its legal foundation is not found in such statutes. The public trust has been characterized as a property interest, but one that is not held by any particular entity.

The public trust is also now a legal concept that continues to gain broader acceptance internationally. As noted in the Introduction to this book, variations of the public trust have now been recognized in such countries as India, Kenya, and South Africa.1 Given that the origins of the public trust can be traced back to the English common law, it is perhaps not surprising that it has often been given a positive reception in many of England’s former colonies (such as India, Kenya, South Africa, and the United States), which are the inheritors of this tradition.

Type
Chapter
Information
Riverflow
The Right to Keep Water Instream
, pp. 15 - 30
Publisher: Cambridge University Press
Print publication year: 2021

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