Riparian Rights

The concept of riparian rights refers to the rights of all landowners whose properties connect to a running body of water, such as a river or stream. More specifically, the term refers to their right to make “reasonable use” of the water that flows either through or over their properties. Examples of riparian rights include swimming, boating, or fishing. To explore this concept, consider the following riparian rights definition.

Definition of Riparian Rights

Noun

1. Certain rights of all landowners whose properties abut a running body of water, such as a river or stream.

Origin

1885-1890       Origin of “riparian” from Latin  rīpāri

What are Water Rights

Water rights is a term used in the body of law addressing the right to use water from various water sources, such as rivers and streams, ponds, lakes, and even groundwater. In states where water is plentiful, this is not an issue that many people ever consider. In states where land is arid – such as the desert states of California, Arizona, Nevada, and New Mexico – the right to use certain water sources is sometimes a contentious issue.

Water rights laws are complex, and must be considered when purchasing property – especially in arid areas in which groundwater is a necessary resource. This includes the rights to water resources that feed underground water supplies of properties “downstream.”

Riparian Water Rights

Riparian water rights are the rights that landowners have to make “reasonable use” of the water that abuts, or flows through or over their properties. Examples of riparian rights include the right to build structures like docks or piers, access to the water for the purposes of swimming or fishing, and the right to exclusive use of the water on their property if the water is not navigable.

Exclusive use, in this case, means that the property owner does not have to allow other people to use the water at the point it is on their private property. For instance, other families do not have the right to swim in, or sunbathe on the side of, the river – on someone else’s property. If the water is navigable, the landowner has no right to stop navigation or travel down the river or stream.

A “reasonable use” of riparian rights is translated to mean that the rights exercised by one property owner are fair and equitable when weighed in comparison to the rights of the owners of other properties by or through which the water flows. For instance, one landowner is not permitted to use the entire body of water for his own purposes. He must share that body of water with everyone in the area who also owns a piece of property that is connected to that source of water.

For example:

Neal and Amy love to have their family and friends over for barbecues down by the creek that flows through their property. The kids play in the water, but the family wishes it was deeper so that they could swim. The couple decides to build up a small dam to restrict the flow of the water, causing the water level to rise.

Walter, whose cattle drink from the river downstream from Neal and Amy’s property, notices that the flow of water has suddenly decreased so much that the cattle are making a churned up muddy mess where they are normally able to stand in the water to drink. This, of course, makes the river unusable for recreational purposes at that point. While investigating upstream, Walter talks to Neal about the issue, but Neal insists he has the right to do whatever he wants with the water on his property.

In this example of riparian water rights, the river flows through both families’ properties, and both families had been using the water for a variety of purposes for years. The problem comes when one family decided it had exclusive rights over the water as it ran through their property, with no thought to how restricting its flow would affect all of the properties downstream. This is the type of riparian rights case that often makes its way to civil court, where the court must determine who can do what with the water.

Riparian Rights vs. Prior Appropriation Rights

Riparian rights require that everyone who owns a property that is connected to a body of water to equally share the water with other owners of properties that abut, or through which the water flows. On the other hand, prior appropriation rights give special rights to the property owner that first uses the water, ahead of subsequent users of the water. This means that someone who buys property through which the water flows cannot divert, dam, reducing the flow for the long-time property owner downstream.

Prior appropriation rights are the legal rights afforded to the first property owner who uses or takes any amount of water from the water source for “beneficial use.” Those uses can be for agricultural, industrial, or household needs. That property owner then has the right to continue to use the amount of water he took for that purpose Anyone else from that point forward who also needs to use the water can use what remains, so long as they do not impose on the first person’s rights. This includes, not only use by those downstream, but use by those upstream who purchase their property – or don’t begin using the water – until a later date than the first user of the water.

Prior appropriation rights find their origins in the western half of the United States, where water tends to be more scarce. In western states, it is necessary to allocate the water and use it sparingly, so as to maximize its productivity. Put another way, prior appropriation rights are often afforded on a “first come, first served” basis, though such rights can be owned, bought, and traded, with deeds separate from land deeds. Riparian rights, on the other hand, are more commonly used in the remainder of the United States.

The laws regarding prior appropriation rights vary from state to state. However, it is generally accepted that water rights are not connected to land ownership and, as such, they can be mortgaged and sold like parcels of property. Water rights in western states are complex, and apply not only to rivers and streams, but to ground water sources and water table supplies. Prior appropriation rights can actually be forfeited over time if it can be proven that a landowner is not making use of his water source, or if the water itself has not been used in some time.

In some cases, water right allot an annual quantity of water that is allowed, along with an appropriation date. Every year, the user with the earliest appropriation date can use up to their maximum allocated amount of water, so long as the water source is capable of supplying that much water. The user with the next appropriation date then takes what he needs, and so on. During times of drought, those who have later appropriation dates may not be permitted to take their maximum allocation of water, or perhaps any water at all.

Riparian Rights vs. Littoral Rights

If a moving body of water, such as a stream or a river, connects to a parcel of property, the owner of that property is afforded riparian rights. The word “riparian” actually translates to “riverbank.” If, however, his property is connected to a body of water that is not flowing, such as a pond or lake, then that landowner has what are called “littoral rights.”

Landowners also have littoral rights if they own land that borders the shore of a sea or an ocean. Despite the fact that the ocean is constantly moving with tidal currents, it is not the type of current that takes the water downstream. The distinguishing factor here is that properties that border the sea are regularly affected by its changing tide currents. Littoral rights apply more to landowners’ usage of the shore, rather than the waters themselves.

Riparian Rights Example in Kern County, California

An example of riparian rights being litigated in court can be found in the case of Lux v. Haggin. Charles Lux and Henry Miller – both German immigrants – met each other in San Francisco after they had each established their own successful butcher shops. They ended up becoming business partners, raising cattle for their shops. The two began purchasing land in 1868 in Kern County, California, along the Buena Vista Slough, which was a swampy area that received its moisture from the Kern River.

Miller and Lux claimed riparian rights, as their land was connected to the river. The two also developed a canal system that diverted the water from the Buena Vista Slough to their properties, in order to irrigate them and protect them from the droughts that so often plagued the area.

This is where James Ben-Ali Haggin comes in. Haggin was a wealthy business man who traveled to California during the Gold Rush. He also owned two major companies in Kern County. Haggin exercised his prior appropriation rights to divert water from the Kern River to his properties for irrigation purposes. By 1877, he had diverted so much water that the Buena Vista Slough dried up completely. Nearly 10,000 head of Miller and Lux’s cattle died as a result.

Miller and Lux sued Haggin in 1879. The most important issue to decide here was whether Miller and Lux should be legally recognized as riparian landowners. Haggin’s primary argument initially was that the slough was not a watercourse, but an overflow from the nearby lake. Miller’s and Lux’s argument was that the slough was part of a major water system, and that there was a clearly defined waterway.

In November of 1881, the court ruled that “no continuous or defined channel” was present in Buena Vista swamp. Therefore, Miller and Lux could not be legally recognized as riparian landowners. The court also ruled that it was a “natural necessity” for irrigation to be conducted in accordance with appropriation in California.

Miller and Lux appealed in 1884 to the California Supreme Court. Here, the two argued that Haggin’s appropriations “carried the Kern River thirty miles from where nature had placed it.” They claimed that Haggin had violated their property rights. Their main argument was simple: they had purchased land that naturally contained water, and Haggin’s efforts had caused all of the water on their land to dry up. The appeals court agreed and ultimately overturned the lower court in a 4-3 decision.

This case was historical insofar as establishing water rights in the state of California. This was a time when the population in the state that is largely a natural desert was steadily climbing. Water became such a concern that appropriation of the resource was deemed to be nothing short of a necessity. This case gave the courts an opportunity to continue to support the riparian rights that had already been in effect, or to give appropriation rights a higher priority.

Ultimately, the court recognized both water rights systems, but decided that riparian rights were to be given a higher priority over appropriative rights. The court’s ruling fostered disorder by creating two incompatible water allocation systems for the state.

As a result, the court decided that water could be used both for agricultural and commercial purposes, so long as the use of the water did not have negative impacts for the other riparian landowners in the area. This was also the point when the term “reasonable” was amended. The term was broadened so as to permit riparian land owners to use more water than they had previously been afforded.

Related Legal Terms and Issues

• Waterway – A body of water used for travel purposes.
• Watercourse – A channel along which a body of water flows.