Riparian Rights

Question 1

What is the natural flow rule?

Answer 1

A riparian owner has the right to use (not own) the natural flow of a watercourse without diminution or obstruction.

Question 2

What constitutes injury under the natural flow rule?

Answer 2

Any diminishment in flow.

Question 3

What is the reasonable use doctrine?

Answer 3

The extent of a riparian’s right is reasonable use of the resource; reasonableness refers to an equal opportunity to use the watercourse and is determined at the time of use. Some injury is allowed.

Question 4

What constitutes injury under the reasonable use doctrine?

Answer 4

Interference with another riparian’s reasonable use by interruption, diversion, or pollution of the water.

Question 5

What are the factors in the R.2d reasonableness balancing test?

Answer 5

1) Purpose of use
2) Suitability of use to watercourse/lake
3) Economic value of use
4) Social value of use
5) Extent/amount of harm it causes
6) Practicality of avoiding harm by adjusting use/method of use of either riparian
7) Practicality of adjusting quantity of water used by each riparian
8) Protection for existing values of water uses, land, investment, and enterprises
9) Justice of requiring the user causing harm to bear the loss

Question 6

Can riparian rights be severed from land?

Answer 6

Yes—with a strong showing of intent.

Question 7

Can non-riparians use riparian water?

Answer 7

If they receive a right to the water by grant or condemnation, yes.

Question 8

What are the limitations on riparian rights besides injury to other riparians?

Answer 8

Riparian rights are subject to public rights to navigation/fisheries?

Question 9

What is a “natural” use? What is an “artificial” use?

Answer 9

Natural = “Necessary” for human existence.
Artificial = Increase comfort/prosperity.

Question 10

What is a “natural” use? What is an “artificial” use?

Answer 10

Natural = “Necessary” for human existence.
Artificial = Increase comfort/prosperity.

Question 11

What are the common and civil law approaches to surface use of a nonnavigable lake?

Answer 11

Common law = you own to the middle of the lake and can exclude others from the surface over your land.

Civil law = all riparians share a common right to reasonable use of entire surface so long as it does not interfere with other riparians.

Question 12

What are the elements of regulated riparian statutes?

Answer 12

1) Public ownership
2) Equitable sharing
3) Reasonable use
4) Non-riparian uses allowed
5) Protection for existing rights.

Question 13

What are the elements of american reasonable use riparianism?

Answer 13

1) riparian land owner
2) equal and relative
3) reasonable use
4) No unreasonable interference with flow or quality
5) Transfers allowed
6) Not lost by non use (but can be loss by prescription)
7) Shortages are shared
8) Domestic/natural use preferred

Question 14

What are the elements of prescription?

Answer 14

1) Hostile and adverse use over a period of time
2) Actual or presumed knowledge of adverse claim (hard to prove knowledge if lower riparian not using water; but see diversion)
3) Prescriptive period
4) Amount of prescriptive right (Share of flow or amount diverted)

Question 15

What are the main differences between natural flow and reasonable use?

Answer 15

1) Natural flow allows riparian to use (not own ) natural flow without diminution.
2) Injury is any diminishment in flow rather than interference with reasonable use (including by pollution)

Question 16

What is a “watercourse”?

Answer 16

1) Water flows, usually in a particular direction
2) In a particular channel with a bed, banks and sides
3) Usually discharging into some other body
4) Must have well defined and substantial existence—can be dry sometimes.