Real Estate Law

Water and Riparian Rights

Historical records of court decisions have shaped how riparian water rights are divided between landowners who have real estate on or around bodies of water.

Riparian rights let property owners make reasonable use of the water that touches or flows through their properties. For example, owners of waterfront properties may use that amount of the water supply that touches their land.

But riparian rights cannot violate the rights of others. This means waterway access runs with the ownership of land, and a watercourse cannot be purposefully diverted from its watershed in a way that violates the property rights of homeowners farther downstream.

If you’re involved in a dispute over the beneficial use of water sources, speak with a real estate attorney who understands the complex world of riparian rights.

Types of Water Rights

Riparian water rights include the reasonable and beneficial usage of water for activities, including:

  • Natural uses like drinking, watering, and agricultural irrigation
  • Recreational uses like boating, fishing, and swimming
  • Commercial uses like crossing into navigable waters and building piers and docks.

For example, a business owner might wish to start fishing or bottling water at a nearby stream. This could conflict with a homeowner’s right to play water polo in the same body of water. Both may have rightful claims if their uses are beneficial and reasonable and if they own land next to the water.

Reasonable use of a water body means more than just beneficial use. It also means:

  • A landowner can’t redirect the flow of water to deprive others downstream
  • The landowner must not pollute or drain the water
  • The owner must not obstruct or fill the waterway with debris

For example, a business owner who bottles water should not pollute a stream by leaving or dumping plastic. Also, a homeowner shouldn’t try to create a makeshift dam that weakens the stream and leaves less water for others farther down the pathway. These are both scenarios that could create legal liability for the violators.

Appropriative Rights

Water laws vary depending on state law. Eastern states generally follow the riparian principles discussed above, that homeowners must use water reasonably and proportionately to the amount of the owner’s land that it touches.

But, many states with drier climates — especially western states — follow a “first in time, first in use” approach known as “prior-appropriation water rights.” Appropriative rights allow the diversion and beneficial use of surface water to non-waterfront lands, as long as the purpose is:

  • Agricultural
  • Industrial
  • Household-related

Whoever uses the water first will have priority over others even if it only leaves some water for others to use downstream. You can transfer and sell appropriative rights. But they can also be taken through adverse possession (squatting that meets certain legal requirements).

Accretion and Littoral Rights

Disputes can also arise over who has access to shorelines and land that comes and goes depending on water levels and elevation:

  • Accretion occurs when land is added as a result of a body of water receding or being depleted.
  • Littoral rights refer to private shore access that oceanfront properties enjoy. Land use made possible by accretion can be one type of littoral right.

For example, a waterfront property owner might argue that they should have exclusive access to land (a “littoral right”) caused by accretion due to a tidal shift. But the people in the homeowner’s community may argue that the land should be accessible to all.

Depending on state laws that control a jurisdiction, the property owner may or may not win the dispute — or they might have to compromise. In some situations, they might willingly or involuntarily be put in a position to grant a public easement (legal permission for the right of way) that allows others to cross into the land that touches the shoreline.

How a Water Law Lawyer Can Help

Whether you’re a commercial farmer, business owner, homeowner, or a casual fan of hydration and aquatics, you might feel like you’re drowning in a heated water dispute with unfriendly neighbors. A water war can take a stormy toll on just about anyone, but a legal expert can have you smooth sailing in no time.

water and riparian rights lawyer can help determine how much you and others can use water near you. They can also help you resolve disputes involving waterways, resource usage, and the ability to cross into a water source. Having an attorney by your side might mean the difference between a clean stream you can swim in and a polluted water dump you’re deprived of.

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