Riparian Rights Flashcards
What are Riparian Rights in General?
A system for allocating water among those who possess land about its source (either water on or under the land)
How do Eastern States view underground water rights?
Eastern States→(C.L. Riparian Rights)
(i) Water can’t be severed from the land
(ii) English Absolute Right (Minority)→ each surface owner is free to withdraw as much water as he likes from beneath the surface of his property without liability even if it has the effect of taking water from underneath a neighbor’s property
(ii) US Reasonable use (Majority)→owners are not permitted to withdraw the water in a way that wastes it, nor may the do so out of spite
How do Western States view underground water rights?
Western States-→Prior Appropriation
(i) First in Time= First in Right
(ii) Correlative Rights→allows each owner to withdraw a specified portion of the groundwater based on dividing up rights to the “annual recharge” to the aquifer that comes from natural sources
How do Eastern States view surface water rights?
Eastern States
(i) Natural Flow→prohibits interference with the force or flow of the stream
(ii)Flooding→anytime you cause damage to another’s water source downstream, or to their land, you will most likely be liable
(iii)In times of draught
• Upstream is always priority if domestic
• If both commercial then no priority
How Do Western State’s view surface water rights?
Western States
(i) Prior appropriation→first in time, first in right
(ii) Permit System→you own title to the water, you can sell it
What are the 3 rules for harm from Surface Water Runoff?
You can’t divert water away from your property if it damages another’s property; 3 Tests
(i) Common Enemy Rule→each landowner has an unqualified right, by operations on his own land, to fend off surface water as he sees fit without being required to take into account the consequences to other landowners, who have a duty and right to protect themselves the best they can (privileges free use of land over interests in security)(growing trend is reasonable use)
• Some courts allow negligence (can’t fuck w/neighbors)
• Can’t collect water artificially and discharge it (reasonable)
(ii) Natural Flow→prevents owners from discharging water by any means other than the natural drainage paths
• Any changes to force of flow you are held liable
• Can make some changes, but not substantial ones
(ii) Reasonable Use→allowing reasonable discharge but not allowing substantial harm to be committed
(Westland Skating Center)
What happened in Westland Skating Center v. Machado?
1) Machado and Westland are on adjoining parcels of land
2) Dealership is at a lower elevation then Westland-waters flow naturally from Westland to Machado
3) Skating rink is constructed=Machado gets flooded bc Westland created a roof drain that forced large pools of water onto Machado
4) Machado builds a wall=which forces the water back under the rink
5) Court says=balance the reasonableness of both parties use of the water (remanded)
6) Takeaway=common enemy and natural flow are too strict so use reasonable use instead
What is the state government regulation of use of surface water?
State→Generally hold surface water in public trust and may regulate the use in times of draught (state generally owns the bed)
What is the federal government regulation of use of surface water?
Federal→regulates the use of navigable waters (rivers/lakes)
- Federal Clean Waters Act
(i) To dredge and fill the bed of a natural water way you must have a special permit from the core of engineers
(ii) If you want to develop wetlands you can’t do so without a permit from the core of engineers
(iii) If you have a conduit depositing foreign matter into the water you must have a permit from the EPA (otherwise illegal)
2) Federal Rivers and Harbors Act
(i) You can’t block navigation of navigable waters
What are the surface and private property rights of Navigable Waters?
Navigable Waters→ water held in public trust
(i) State owns the waterbed
(ii) Federal owns the navigational servitude on the bed
(iii) Private owners own only to the mean high water line (first line of vegetation from the water)
What are the surface and private property rights of Non-Navigable Waters?
Non-Navigable Water→can’t put a boat in it
(i) Private owners own the bed
(ii) State holds water in public trust
(iii) Public use of water & bed?
• No= trespassing
• Yes= water only (Colo. Minn)
• Yes= water and bed up to mean high water line (Oregon and Montana)
What is accretion?
(Common Law) Where surface water forms boundary for privately owned land
Accretion→Slow changes in build-up of land caused by slow deposit of silt or sand on the border of the land
(i) Belongs to the owner of the land whose borders are thus enlarged
(ii) Erosion of land would shrink your land
What is Avulsion?
(Common Law) Where surface water forms boundary for privately owned land
Avulsion→ Very sudden changes caused by events such as earthquakes or floods (or could be man-made)
(i)Boundaries do not change
