Understanding Surface Water Rights in US Property Law

Water rights are inherent, meaning that they depend on the land and not on the owner. When a beachfront property is sold, the new owner obtains the coastal rights and the seller waives his rights. The Correlative Rights Doctrine distributes water equitably among landowners and allows uses outside the contract, although these uses are subject to uses within the contract. This doctrine is similar to the Rule of Absolute Dominion, which determines rights in groundwater based on land ownership.

However, the difference is that landowners who cover the same aquifer are limited to a reasonable part of the total aquifer supply, rather than having an absolute right to groundwater or an unlimited right to pump. Under current law, owners of overlying properties have a right to the water below their land. Those who extract “excess” groundwater outside a given basin for use on non-overlying properties are considered “minor rights claimants”.The states of the eastern United States (from Minnesota to Louisiana and to the east) primarily apply riverside doctrine to determine who has the legal right to use water. This page presents the riverside doctrine by reviewing some of the materials contained in chapter 3 of the ninth edition of Weber's Cases and Materials on the Law of Water.

The fundamental concept of this doctrine is that the owner of land adjacent to a body of water (e.g., a lake or river) has a legal right to use that water. Some of the questions that arise are what land is considered riverside, how water can be used, how much water can be used, and who enforces a riverine owner's right to water. Regarding enforcement, a riverine owner files a lawsuit against another riverine owner if they believe their use of water is being interfered with. The result of this enforcement practice is that many riverine landowners along a common body of water can be involved in extensive and numerous litigation to determine and enforce their water rights (see note 2 on p. 5).

Consequently, courts played a significant role in defining water legislation, as well as in imposing individualized solutions to resolve legal disputes. An example is a case where a plaintiff riverine owner ran a commercial boating and fishing company on a non-navigable lake; the defendants pumped water from the lake to irrigate (flood) their blueberry production. Irrigation reduced the lake's water level to the point where navigation and fishing were no longer possible. The plaintiff requested that the court prohibit the defendant from pumping an excessive amount of water from the lake; however, their request was denied and they appealed. The appellate court reaffirmed the riverside doctrine, since owners of land bordering a stream have the right to use their water for certain purposes and this right to use water is part of (an incident of) land ownership.

But how much water can be extracted from this source? In the past, most uses of water did not eliminate it; thus, courts applied the concept of natural flow, meaning that riverine owners could not extract more than what was needed for domestic purposes. Other riverine owners could initiate legal action when more than this amount was extracted. The shortcoming of this legal concept is that it does not allow for other uses such as irrigation. The court then considered the concept or theory of fair use. This concept holds that a riverine landowner can make reasonable use of water on riverine land, subject to correlative rights of other riverine landowners and certain rights of the public.

Every riverine has an equal right to use water but must exercise it reasonably with due regard for other riverine owners' rights. Riparian doctrine generally does not consider type of use when determining right to use water; reasonable use for recreational purposes has no legal value other than reasonable use for irrigation. However, preference is given to domestic use in that a domestic use that consumes all available water does not have to adjust its use to suit other users. The question may be what constitutes domestic use; are children's camps or military bases considered domestic? Riparian land is any plot located next to a body of water; riparian rights allow its owner to use this body's water. But what land is riverside? Riparian rights are part of riverine land; they are part of its set of rights. An example is when a defendant owns riverine land on a navigable lake and plans to dredge canals and sell lots with access to this lake for boating; plaintiffs claim these lots along canals are not riverside land.

The court agrees with plaintiffs that only land along natural bodies of water is riverine and a canal is not natural body of water. The second question is whether coastal rights can be transferred separately from land; riparian rights are not alienable, separable, or assignable apart from land (see p. 8). Is a lake behind a dam considered natural body of water? The case involves non-navigable waters used by riverine owners who own designated portions of underlying land; do these owners share use of entire surface?.