Riparian Rights I

Natural  Rights

Riparian rights are natural rights that attach to land. Natural rights are attached to all land automatically. They arise automatically as part of the rights that go with ownership.

The riparian rights in relation to a natural river or stream attach to the adjoining owner’s title to land. That owner is the riparian owner.

They are similar to other natural rights, such as the right to support for land in its natural state from adjoining land. Riparian rights exist almost entirely under common law. This means that the principles in relation to those rights are found in cases

The land must be in contact with the water or must wholly contain the water. In the case of the tidal river, it is enough that the land is in contact with the river at ordinary high tide.

Generally, the riparian owner has the right to the benefit of a stream flowing in its natural course and the right to use it for purposes consistent with similar rights in the proprietors of land above and below. He cannot diminish the quantity or quality of water which otherwise would flow or throw back water without permission.

Fisheries

The right of fisheries in a river is part of the natural riparian rights. Third parties may have the proprietary fishery rights in it.

The general position is that the right to fishery is part of the riparian rights of the landowner. It is presumed that the adjoining owner owns halfway across the river, where there are two owners on either side of the watercourse. There is a presumption that the owner of the soil is the owner of the fishery.

The owner of the fishery has the right to the free passage of fish and the right to catch fish finding its way there. This is of course subject to fisheries legislation. The riparian owner, who is not the owner of the fishery, on the other side, must not make erections on the bed of the river to damage the fishery.

When Enjoyed

Riparian rights arise when a body of water flows through or abuts land.  Each riparian owner may enjoy rights to the water or river, subject to the rights of enjoyment to which others are entitled.

Riparian rights almost always arise in the land that adjoins a river. The riparian owner is presumed until the contrary is shown to be the owner of the river or lake bed adjoining his or her land to its midpoint.

Riparian rights apply to water flowing through defined and known channels. Water flowing through underground watercourses in defined and known channels enjoys riparian rights. Riparian rights do apply to underground watercourses that flow in undefined or unknown channels.

A defined channel implies that it is bound even if its course is not known. Known implies that it can be inferred from observable facts. Riparian rights can be shown without opening the ground from inference where the stream emerges from a defined underground channel.

When Available and Limits

Riparian rights can be used even though they were not previously used. Riparian rights are not lost by non-use. However, others may obtain easement rights, which restrict those rights to some extent.

A riparian owner who acquires a right to divert water from a watercourse is not bound to continue to exercise that right. However, if he abandons the right and restores water to its original channel, he must do so in a manner that does not expose others to damage.

Any unreasonable and unauthorised interference with the use of the water, to the prejudice of other riparian owners, may be the subject of an action for damages. It may be restrained by an injunction even though no actual damage is caused.

Must be natural

Natural rights do not apply to artificial watercourses. This is a watercourse created by human intervention. That can include pipes, ditches, drains, mill races and channels to drain water. Rights similar to natural rights can be acquired by long, unrestricted use.

Artificial watercourses may be built by public authorities. These will include canals, sewers, and other drainage infrastructure.

Underground Waters

The common law position is that there are no riparian rights in underground percolating water in undefined channels. The owner of the land through which water percolates in underground strata has no right or interest in it, which enables him to maintain an action against another landowner who interferes with the supply of water.  This also applies to all percolation and soakage of water through the soil.

Therefore, the owner of a well is unable to maintain an action against a landowner who is conducting mining operations in the usual manner and drains away water from the well and causes it to dry up. The distinction is between water flowing in defined channels and undefined and flowing through the soil. This underground water in not the subject of property law.

Not Like Easement Rights

In contrast to natural rights, easements are rights that are granted or acquired in relation to particular lands. This might happen because the previous owner granted an adjoining owner or other people rights over his or her land. It might happen because other people have exercised rights over the land concerned for a sufficiently long period that they have become established and can be enforced in court.

Easements may reduce the natural rights of the owner in some way for the benefit of others. For example, there might be a natural right to drainage for the latter where water flows naturally from one owner’s land to that of another.

If the water is diverted in some way, this might interfere with the owner’s natural rights. If the diversion is by reason of a p right to do so granted by the owner or if it has persisted for a long time, there might be an easement in relation to the diverted channel of water.

Navigation

The riparian owner has the right to navigate on his side of a non-tidal river. He is assumed to own the subsoil of the river to the middle point. The riparian owner may moor boats and build infrastructure subject to planning permission and not interfering with the rights of navigation of the public where they apply.

There is a presumed public right of navigation in tidal waters similar to the rights attached to public roads. A tidal river is where the tide ebbs and flows. They may usually be used by members of the public. The right of navigation is like the right of the users of a public road. Members of the public may stop and anchor, subject to reasonable use.

The riparian owner may moor vessels, construct jetties and do other things in the bed of the watercourse, provided that he does not interfere with the rights of other owners or the public right of navigation.  This is now subject to the requirement for planning permission.

Taking Water for Ordinary Use

Common law distinguishes between the ordinary purposes of the land and extraordinary use. The riparian owner has the right to the ordinary use of the water flowing past his land, even if this leaves other owners upstream and downstream short.

Ordinary primary or domestic uses include drinking, cleaning, washing and ordinary agricultural purposes. If the owner does not use the water for these purposes, he is not entitled to appropriate to other purposes the amount he would be entitled to take for domestic or agricultural purposes.

Where a riparian owner is entitled to abstract water from the stream for a particular purpose, he may not use it for other purposes.

Taking Water Non-ordinary Use

The general rule is that the riparian owner may use water for an extraordinary purpose associated with the lands concerned, provided he does not cause damage to the rights of other riparian owners.   The extraordinary purpose must not significantly interfere with the lawful use by owners upstream or downstream. The use of the water for extraordinary or secondary purposes must be in itself reasonable and connected to the land benefited.

Generally, other riparian owners have the right to an undiminished volume of water of unaltered character where a secondary extraordinary purpose is involved. The riparian owner is bound to restore the water which he takes and uses for purposes substantially undiminished in value and character.

A relatively small reduction in quantity may not constitute unlawful use. Manufacturing and other commercial uses are usually deemed extraordinary. Similarly, land irrigation and use for locomotive power cooling in a mill or factory are extraordinary.

None ordinary uses would include uses for industry et cetera.In the main case on the subject in 1904 that went to the House of Lords, McCartney v Londonderry Railway Company, the company sought to abstract water from a stream at a point that was crossed by the railway and to use it for purposes along the whole length of the line. This was found to be impermissible as the purpose was unconnected to the land at the point from which it was to be abstracted.

Irrigation and Extraordinary Use

Irrigation is usually considered an extraordinary use. The riparian owner may use the water of a stream for irrigation provided diversion is not continuous, and the water is returned with no greater diminution than that caused by evaporation and absorption attendant on the irrigation. If water is diverted for irrigation and delays the passage of the water so as to infringe the rights of lower riparian owners, an action for damages is available.

Where a right to irrigation exists, it does not matter what means are taken to transfer the water onto the irrigated land provided no more than the lawful quantity is diverted. The common law does not recognise ordinary or extraordinary rights to take water for spray irrigation where the water is not returned to the watercourse.

The taking of water for irrigation may be subject to statutory provisions.