Riparian water rights
Riparian water rights (or simply riparian rights) is a system of allocating water among those who possess land about its source. It has its origins in English common law. Riparian rights exist in many countries with a common law heritage, such as Canada, Australia, and states in the eastern United States.
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General principle
Under the riparian principle, all landowners whose property is adjoining to a body of water have the right to make reasonable use of it. If there is not enough water to satisfy all users, allotments are generally fixed in proportion to frontage on the water source. These rights cannot be sold or transferred other than with the adjoining land, and water cannot be transferred out of the watershed.
Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations. Riparian rights also depend upon "reasonable use" as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners.[1]
Riparian rights and duties in England and Wales
The Environment Agency lists the riparian rights and duties in England and Wales:[2]
Rights:
- ownership of the land up to the centre of the watercourse - unless it is known to be owned by someone else
- right for water to flow onto your land in its natural quantity and quality
- right to protect property from flooding, and land from erosion (but subject to approval by the Agency)
- right to fish in the watercourse - however this right may be sold or leased, and a fisherman must have a valid Environment Agency rod licence.
- right to acquire accretion
- right to boomage
Duties:
- to pass on the flow of water without obstruction, pollution or diversion affecting the rights of others
- to accept flood flows, even if caused by inadequate capacity downstream, but there is no duty to improve the drainage capacity of a watercourse
- to maintain the bed and banks of the watercourse and to clear any debris, whether natural or man-made
- to keep the bed and banks clear of anything that could cause an obstruction, including an obstruction downstream, if it is washed away.
- to keep any culverts, trash screens, weirs and mill gates clear of debris
- to be responsible for protection of your land from flooding
- to not cause any obstructions - either temporary or permanent - that would prevent the free passage of fish
United States
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In determining boundaries there is a clear distinction between properties that front on navigable and non-navigable waters. Navigable waters are both those bodies of water that are obviously highways of commerce (the Hudson River, the Delaware River, the Ohio River, the Mississippi River, etc.) and those that have been declared by a state legislature as navigable.
In the case of navigable waters, title goes to the average low water mark. The Pennsylvania Supreme Court defined this as the "ordinary low water mark, unaffected by drought; that is, the height of the water at ordinary stages." Appeal of York Haven Water & Power Co., 212 Pa. 622, 62 A.97 (1905). Land beyond the low water mark belongs to the state government in the case of the 13 original states. Lands between the high and low water marks are subject to the police powers of the states. (See United States v. Pennsylvania Salt Mfg. Co., 16 F.2d 476 (E.D. Pa., 1926)). In the case of the original 13 states, upon ratification of the United States Constitution, title to these lands did not change, it remained vested in the several states.
However, these titles became subject to the "Commerce Clause" of the Constitution which created an easement or "servitude" benefiting the federal government for the purpose of regulating commerce on navigable bodies of water. Borax Consolidated, Ltd. v. City of Los Angeles, 29 U.S. 10, 56 S. Ct. 23, 80 L.Ed 9 (1935).
As new lands were acquired by the United States, either by purchase or treaty, title to the beds of all navigable or tidal lakes, rivers, or their tributaries became vested in the United States, unless they had been validly conveyed into private ownership by the former sovereign. McKnight v. Brodell, 212 F.Supp 45. During the territorial period of these lands, the United States held these title "in trust" for the benefit of the future states which would be carved out of the territory. Hymes v. Grimes Company, 165 F. 2d 323. Each of the states were to come into the Union on an "equal footing" with the original thirteen states.
Under the equal footing doctrine, territorial states are vested with the same sovereign title rights to wetlands as the original thirteen states. Pollard v. Hagan, 44 U.S. 212, 3 How. 212, 11 L.Ed. 565 (1845). However, during the territorial period, the United States could convey certain of these lands under the limited circumstances of promoting commerce. Brewer Elliot Oil and Gas Co. v. U S., 260 U.S. 77, 43 S.Ct 60, 67 L.Ed. 140 (1922).
Any questions as to the ownership of these lands was resolved by Congress passing the Submerged Lands Act, 43 U.S.C.A. 1301, which confirmed and quit-claimed title in various states to the beds of all navigable bodies of water. While this act conveyed navigable waters to the states, non-navigable waters outside the 13 colonies remained the property of the United States. Waters subject to the ebb and flow of the tides, but which are non-navigable passed to the states.
In the western United States, water rights are generally allocated under the principle of prior appropriation.
See also
- air rights
- Countryside and Rights of Way Act 2000 (in the UK)
- crown land (see "logging and mineral rights" under Canada)
- easement ("the right of use over the real property of another")
- freedom to roam
- land rights
- prior appropriation water rights
- riparian zone
- drinking water
- water rights
- sustainable habitat
- United States groundwater law
- right to light
Notes
- ^ Guerin, K. (2003). Property Rights and Environmental Policy: A New Zealand Perspective.Wellington, New Zealand: NZ Treasury
- ^ Living on the Edge - Environment Agency website, retrieved 10 December 2008
