Watercourses are those bodies of water defined as streams, rivers and lakes. Much of modern water law concerns itself with personal property rights associate with these bodies of water. Under the riparian doctrine, the water from watercourses belongs to those who own the land bordering the water. Riparian rights attach to all contiguous tracts as long as one of them borders the water in question. Riparian owners are only allowed to use this water in connection with the riparian parcel.
Two theories currently guide the riparian ownership doctrine. The following are the basic guidelines that make up these competing theories of water use:
- Natural Flow Theory – Under this theory, a riparian owner’s use resulting in material diminution of the water’s quantity, quality, or velocity is enjoinable. Each riparian owner was entitled to have the water in the stream maintained in its natural state and not diminished in quantity or quality.
- Reasonable Use Theory – Under this theory, which is the most common, the owner’s use is not enjoinable unless it substantially interferes with the use of other riparian owners. In determining the reasonable use, court’s balance the utility of the act versus the harm it causes by looking at the following factors:
- Alteration of the flow
- Purpose of the use
- Resulting pollution
- Extent of use
- Destination of water taken
- Miscellaneous conduct that may give rise to litigation
When assessing the fairness of water allocation, courts also look closely to the nature of the water use:
- Natural Use – Natural uses are those arising out of a necessity of life, such as water needed for drinking, water for domestic animals, or for general household uses.
- Artificial Use – Artificial uses are those that do not minister directly to the necessities of life upon the land. Such uses are primarily for the purpose of improvement, trade or profit.
If you are in a riparian state, and are involved in a dispute over the use of a watercourse, the advice of a real estate attorney can be extremely helpful in resolving your legal matter. Because of the complicated nature of law in this area, and the variety of ways in which different jurisdictions handle property disputes, the counsel of a property attorney who specializes in this field of law can be beneficial in achieving the outcome you want.