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Riparian Rights

Written by Daniel P. Dalton on February 17, 2015 Category: Land Use and Zoning

This month, we were fortunate to have an article concerning Riparian Rights published in Terra Firma, a publication of the Realtors Land Institute. See, https://www.rliland.com/terra-firma-for-members?servId=3900. We thought you may enjoy this article as well.

What Are Riparian Rights?

Riparian rights refer to a system of allocating water rights among landowners along the path of a waterway. Riparian rights have their origins in American common law, and before that in English common law. The riparian system is used primarily by the Eastern and Midwestern United States. The central idea of riparian rights is that landowners whose property adjoins a body of water have the right to make reasonable use of that water as it flows through or over their property. As with many legal concepts, conflicts involving riparian rights often come down to what a court decides is reasonable in a given situation.

What Are the Rules of Riparian Rights?

A case that is often recognized as the first in the U.S. involving riparian rights illustrates the type of conflict that can happen between landowners on a body of water. In Tyler v. Wilkinson (1827), there was a dispute between an upstream mill owner and a downstream mill owner. The question was what rights did each mill owner have in the water from the stream? Could the upstream mill owner substantially impede the flow of water to the downstream mill owner? The court discussed the common custom which stated that a landowner could use water as long as it did not decrease or obstruct the water flowing to the next landowner. However, the court modified the common custom and concluded that there may be some decrease of downstream water as long as such a decrease was reasonable given the uses of the landowners. Thus, the concept of reasonable use in water rights became law.

As with many things, reasonableness is often in the eye of the beholder. Therefore, simply saying that the rule restricts one to a “reasonable” use is often unhelpful. At most, reasonableness rules out the obvious non-reasonable uses. For example, a landowner living on a river would not be permitted to build a dam on her property and stop the river. What about disputes where both landowners have conceivably reasonable arguments? Fortunately, there are also some general principles for landowners to follow on closer questions.

First, riparian rights continue indefinitely and cannot be lost due to non-use of the water. However, if there is a dispute between two landowners, courts tend to view the existing use more favorably than the new use. Second, riparian rights are typically not severable from the land. This means that the riparian rights are transferred with the land and cannot be sold separately. However, some states have modified this general principle. There is also a difference between navigable and non-navigable waters. Navigable waters, such as a large lake or river, are considered to be public waters, and the land below such waters public land. Thus, the land is subject to public land laws, and landowners may not prevent the general public from traveling on these navigable waterways. However, the public right of way generally ends on the high water mark of a landowner’s property. Further, the public right to travel is typically subject to local nuisance laws. In other words, the general public may travel in public waters and across the adjoining land up to the high water mark of one’s property as long as such travel does not create a nuisance for the landowner.

While each state has slightly different rules regarding water rights, landowners with riparian rights are generally permitted to: access the water, install a dock anchored to bottomland, anchor a boat to bottomland or secure it to a dock, use water for domestic purposes, and maintain exposed bottomland. It is worth repeating that each state has slightly different rights and restrictions in regard to water rights. For example, Great Lakes states such as Michigan or Wisconsin will likely have rules associated with lakes that a landlocked state may not have. While some rules are written in state statutes, many are found in the case law from each state.

In the case of a person encroaching on the riparian rights of landowners, the enforcement mechanism is usually a trespass suit or a nuisance suit. As has already been discussed, a court will decide a dispute like this by using the reasonableness factor. As a result of this factor, cases involving riparian rights are very fact-specific, so it is vital to present your case in a way that will present your side of the dispute as the reasonable side. As stated above, courts tend to favor pre-existing uses over new uses. Courts also tend to favor “natural” purposes over “artificial” purposes. “Natural” uses are those which are essential for the existence of the landowner and his family, while “artificial” purposes are those having to do with prosperity and recreation. So for example, in a dispute where one landowner wants to use a body of water for domestic drinking water and the other landowner simply wants to build a larger dock for his party boat, it makes good sense that the court would likely see the first landowner as having the more reasonable claim. This makes it very important to choose a good attorney when navigating a riparian dispute with either the government or a private citizen.

Prior Appropriation Rights

The riparian system is not the only system for handling water rights in the U.S. Much of the Western United States operates under the prior appropriation doctrine, also known as the Colorado Doctrine. This doctrine has also been referred to as the “first in time-first in right” doctrine. This system of water rights was initially developed in the West during the gold rush in response to the overall lack of water in the region. In the mining camps, water would be diverted from streams to places where it was needed to process the ore. The miners developed the simple rule of whoever put the water to the first beneficial use retained the right to that amount of water. This was essentially a first-come, first-serve system.

The prior appropriation doctrine has evolved since its early days as a somewhat-simplistic invention of gold miners. Today, the main principles behind the doctrine begin with the foundation that, unlike in riparian rights states, water rights are not connected to land ownership. Instead, a person who does not own land adjacent to a body of water can have rights to that body of water if she is the first person to put that body of water to beneficial use. The remaining water can be utilized by other users so long as the subsequent uses do not impede the first use. However, again unlike riparian rights, appropriative rights can be lost due to a period of nonuse. Appropriative rights can be held by private citizens or entities and also by public entities.

The prior appropriation doctrine has four elements: intent, diversion, beneficial use, and priority. In the past, intent could be shown by any number of activities on-site such as surveys or preparation to install equipment. Today, intent is usually satisfied by simply applying for a permit. Diversion of the water, while historically required for appropriation rights, has been somewhat deemphasized in recent years. However, some point of diversion is typically still required to establish the right.

The most important element of appropriation right is usually beneficial use. Satisfying the beneficial use element goes a long way in making sure that a use is protected under the law against later uses. The idea behind beneficial use is to prevent waste and conserve resources to the highest extent possible, especially in the dry western states. What uses count as “beneficial” uses under the law is a question that varies from state to state. A use that may qualify in one state may not qualify in another. It is best to consult local case law on questions of any particular use.

In regard to priority, the general rule is that the first appropriator of a water source may use as much water as is needed to satisfy his right. A later appropriator will not be allowed to continue a use if that use somehow impedes the rights of the first appropriator. However, the first appropriator is also not permitted to change his use of the water, if that change will damage the use of a later appropriator. So while the system favors the user that is first-in-time, it also affords protections for later users.

The Hybrid System

While most states use either riparian or appropriative rights, some states have a hybrid system of dealing with water rights. As you might suspect, a hybrid system recognizes both riparian and appropriative rights. The usual reason for a hybrid system is that a state originally operated under riparian rights but has since adopted parts of the appropriative system. Typically, this works by the state allowing riparian landowners to keep their rights as part of a prior appropriation system. The existing riparian rights are usually given priority over appropriative rights even if the water is not necessarily being put to beneficial use. As with the other systems, there are some differences between how states administer these hybrid systems. States with hybrid systems include Kansas, Nebraska, North and South Dakota, Washington, Oregon, Oklahoma, Texas, and most notably California.

Regardless of what system of water rights a landowner is under, there will always be issues unique to each state. There will also be issues that are unique to each individual conflict. The upshot of all this is that buyers and sellers need to be aware of these water rights when dealing with property near water. If a conflict arises, the fact-intensive nature of these claims as well as the legal complexities involved should lead anyone involved in such a conflict to consult a good attorney.

Please feel free to contact a professional at Dalton & Tomich PLC to answer your questions concerning riparian rights.

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