Riparian Ownership Laws

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 What are Real Property Rights?

Real property is property that is fixed in nature, which may include land or buildings. In addition, real property includes anything that is built upon, affixed to, or growing on the land.

This may include items such as man-made buildings or crops. Real property is something which does not move or is attached to the land.

This may be distinguished from personal property. Personal property is something which may be moved physically or transferred.

Real property can also be referred to as real estate or premists. Additionally, it may include anything that is permanently located within or under the property, including:

  • Gasses;
  • Minerals found beneath the land; and
  • Oils.

Pursuant to the laws that govern real property, a landowner, or individual who owns property, possesses a bundle of rights associated with owning that land. These rights are often referred to as incidents of ownership.

These rights allow and owner do so the following with their land:

  • Sell;
  • Lease;
  • Exclusively possess;
  • Encumber, or mortgage; or
  • Dispose of the property by means of a will or other type of legal instrument.

What are Incidental Property Rights?

Incidental property rights are said to be attached to the land. Because of this, these rights pass to the recipient of the property if the land is conveyed, unless the grantor indicates otherwise.

One example of an incidental property right is the right to irrigate water from a natural source for use on a property. An incidental property right is also closely related to appurtenances.

These also pass with the land from owner to owner. An example of an appurtenance is an easement, which is the right of a non-owner to pass through the property.

In some cases, however, an appurtenance may be considered to be burdening the land. This means that the appurtenance creates an additional responsibility or even causes detriment to the owner or the property.

Incidental property rights, in contrast, usually refer to a benefit which is connected with land ownership.

What are Land Ownership Rights?

There are several rights which are inseparable from land ownership. Once an individual purchases a piece of land, they will most likely have the following rights:

  • Surface rights: The landowner has the right to occupy the surface of their land;
  • Subterranean rights: The landowner has a right to the valuable things beneath the land surface, including:
    • oill;
    • minerals; and
    • any other substances;
  • Air rights: The landowner has air space rights to the air above and below their land to a reasonable extent;
  • Vegetation rights: The landowner has the right to plant trees, crops, and other vegetation on the land;
  • Improvement rights: The landowner has the right to improve and place fixtures on their land, for example, patios or sheds;
  • The right to lateral and subjacent support: The landowner has the right to stop their neighbors from excavating or otherwise changing their land if it would damage their land or building;
  • The right to be free of public or private nuisances: The landowner has the right to request an injunction, or a court order, to stop non-consentented interferences with the enjoyment of their land;
    • Examples of nuisances include:
      • pollution;
      • noxious odors; and
      • excessive noise; and
  • Riparian rights: The landowner has the right to use a natural waterway located on their land, also referred to as riparian ownership for a more detailed discussion.

Are There Limits to How a Landowner May Exercise These Rights?

Yes, there are limits on how homeowners may exercise these rights. For example, a landowner typically cannot exercise their rights in such a way that it interferes with the rights of another landowner.

The government may impose zoning laws as well as special building laws that will limit how a landowner may use their land. The government can also exercise its power of eminent domain, which allows it to take away the land from a landowner for a public use.

There may be private restrictions which are placed on the land contained in the deed between the purchaser and the seller. These restrictions will typically be valid unless they are found to contradict public policy.

What is Riparian Ownership?

Riparian laws govern who is permitted to possess or use water as it flows or touches various properties. Riparian laws in the United States are generally followed in the eastern states.

The states located on the West Coast follow a doctrine referred to as prior appropriation. Pursuant to the riparian doctrine, the water from the waterways belongs to the individuals who own the land that borders the water.

Riparian rights attach to all contiguous tracts so long as one of the tracts borders the body of water, or watercourse, in question. A riparian owner is only permitted to use this water in connection with the riparian parcel.

A watercourse is a body of water that is defined as a:

  • Stream;
  • River; or
  • Lake.

The majority of modern water laws govern personal property rights that are associated with these bodies of water. Pursuant to the riparian doctrine, the water from watercourses belongs to individuals who own the land bordering the water.

What are Natural Flow and Reasonable Use?

There are two theories which guide the doctrine of riparian ownership, the natural flow theory and the reasonable use theory.

Pursuant to the natural flow theory, a riparian owner’s use of the water may be stopped if it results in a material decrease of the water’s:

  • Quantity;
  • Quality; or
  • Velocity.

Every riparian owner is entitled to have the water in the stream maintained in its natural state and not diminished in quality or quantity. The reasonable use theory is the most common theory.

Pursuant to this theory, all riparian owners share the right to reasonable use of the water, meaning that no one owner’s use can be stopped unless it substantially interferes with the use of the other riparian owners.

The reasonableness of the riparian owner’s use may be determined by evaluating the:

  • Changes to the flow of the water;
  • Purpose of the use;
  • Resulting pollution;
  • Extent of use; and
  • Where the water is going.

What is the Difference between Natural Use and Artificial Use?

When a court is assessing the fairness of water allocation, it will closely examine the nature of the water use. There are two basic categories of water usage, natural use and artificial use.

Natural uses are those which arise out of a necessity of lice. This may include water which is needed for:

  • Drinking;
  • Watering domestic animals; and
  • General household uses.

Artificial uses are uses which do not minister directly to the necessities of life on the land. These types of uses would be those primarily for the purpose of:

  • Improvement;
  • Trade; or
  • Profit.

Should I Contact a Property Attorney?

Water laws are very complex and may be controversial. If you are located in a riparian state and are a party to a dispute over the use of a watercourse, it may be helpful to consult with a property lawyer.

Your lawyer can advise you regarding the laws of your state and how they affect your rights. In addition, your lawyer can represent you in court if you are required to appear.

In some cases, you may attend a form of alternative dispute resolution in order to resolve the issue. If this occurs, your lawyer will also represent you during any of these processes.

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