Water Rights of Real Property Owners

Terms:

Watercourse:
An external source of water, such as a river, stream or lake.

Riparian:
On the banks of a body of water.

Riparian Doctrine:
The rule, followed in many states, that provides that all properties on the banks of a water source have equal rights to use and enjoyment of that water.

Prior Appropriation Doctrine:
A rule that considers all water sources to be initially owned by the state that can be appropriated to the use of a person through usage or permission from the state.

Ground water:
Water that is present within or underneath the ground.

Surface Water:
Water that collects on the surface of the ground, such as collected rain water.

There are three issues regarding the rights and duties of land owners with regard to water that must be addressed:

1) The right of landowners to waters that are in watercourses (e.g. streams, rivers etc.) that border on the landowner’s property.

2) The rights of landowners regarding ground or well water.

3) The right of landowners to use surface water, such as standing rainwater and melting snow or to divert such water that would otherwise prove harmful to that property.

Watercourses

The first issue that arises is the question of who has the rights to streams and rivers that flow along the sides of peoples’ property. There are two schools of thought as to who should own the rights to the water that flow alongside properties. All states generally follow one of the following two doctrines.

1) Riparian Doctrine

The Riparian doctrine, which is most popular in the eastern part of the United States, provides that the rights to water belongs equally to all the owners of lands that border the water source. The owner of property that adjoins the water is called a “riparian” owner. Therefore, none of the land owners may take action with regard to the water source that will deprive the other “riparian owners” of the use of the water. For example:

Arlene, Cob, Cindy and Derek own four parcels of property that border the Euphrates River, in the manner set forth in this diagram:

Under the riparian doctrine, all four have equal rights to use of the water in the river. Therefore, Arlene and Bob would not be allowed to use the river in a manner that would impact Cindy’s and Derek’s usage of the water. So, Arlene and Bob could not, for example, divert the Euphrates water in a manner that would decrease or stop the flow of water from reaching the properties of Cindy and Derek.

An interesting problem arises when part of a riparian property that does not border the water source is sold. For example, in the diagram above, what if Bob sells the eastern most part of his property to Ethel? Would Ethel retain the right to use water from the Euphrates? Jurisdictions are split on this question. The majority rule is that Ethel’s property would retain its riparian status even though it is now owned by someone who does not own any waterfront property. (Once a riparian property, always a riparian property.) The minority rule is that only the property that actually borders the water source would have the status of a riparian property.

2) Prior Appropriation Doctrine

The “prior appropriation” doctrine is followed mostly by western states, where water is scarcer than it is in the east. Under that doctrine, the state is the initial owner of the water in all water sources. The state then decides how to appropriate the water rights. Any party, even a non-riparian, can acquire the right to use the water from the state. In some jurisdictions, the right to use the water can actually be acquired by actual use, in addition to acquisition by grant from the state government.

A major difference between this doctrine and the riparian doctrine is that under the prior use doctrine, a state can sell the water rights to a non-riparian and not have to pay just compensation to the riparian owners (since the state owned the water rights in the first place).

Ground water

Ground water is water that is withdrawn from the ground. The most common type of ground water is well water that is pumped from the water table beneath the ground. Note that if there is a flowing underground stream, this would be considered a watercourse and not ground water.

Just as with watercourse water, there is a split among jurisdictions, mostly based on geographical lines, as to how to deal with the ownership of, and rights to, ground water. The majority rule is to allow each property owner “reasonable use” of the ground water beneath his or her property. Essentially, this means that the owner can use the property to whatever extent is reasonably necessary for the use and enjoyment of that property.

Some eastern states allow people to make any use of the water beneath his or her property, even if the usage far exceeds the needs of that property. Again, these jurisdictions are the jurisdictions in which water is plentiful and there is therefore no need to restrict water use. For example:

1) Jack digs a well on a hill on his property. Every morning, Jack goes up his hill to fetch a pail of water from the well to use in his house for various tasks around the house. In all jurisdictions, Jack’s usage of his well would be allowed. Using some water to perform tasks around the house is certainly a reasonable use of his groundwater.

2) Jack digs a well on a hill on his property. Every morning, Jack goes up his hill and uses a "state of the art" machine to pump 5,000 gallons through his well to provide water for the surrounding 5 blocks, for which he is handsomely compensated. Under the majority rule, Jack would not be allowed to do this, because it is not a reasonable use of his access to the water table. Under the minority (eastern) rule, however, Jack may do this as long as he is using his own property to access the water table.

Surface Waters

Surface waters include standing rain water, melted snow, etc. The rule regarding usage of standing water is simple and intuitive. The owner of property on which the standing water sits has complete and exclusive rights to use it.

Problems arise when, as is often the case, standing water is harmful to land because it floods crops or otherwise interferes with the owner’s use and enjoyment of the land. The question is, to what extent, if at all, each property owner should be allowed to divert the harmful water, through the use of dams or dikes etc., off of his or her own property and onto the property of another person. Once again, jurisdictions are split in terms of how to handle this problem. Below is a sampling of some of the applicable rules that are applied by various jurisdictions:

1) Natural Flow Rule: Under this rule, land owners may not take steps to divert harmful waters onto other lands at all. Instead, it is the responsibility of each land owner to deal with the water that naturally enters his or her land to the best of his or her ability.

2) Common Enemy Rule: This doctrine, at the other extreme from the natural flow rule, is based on the theory that the harmful water is the “common enemy” of everyone. Therefore, anyone may take any steps he or she desires to keep the harmful water off their property, even if that means diverting the water onto someone else’ s property.

3) Reasonable Use Rule: This rule is a compromise between the above two doctrines. According to this rule, harmful water may be diverted where such a diversion is reasonable, in light of the surrounding circumstances, including gravity of the harm that will be caused by the water and ease with which that harm can be avoided.

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