Flow of the Water
At common law, the riparian owner is entitled to have the stream flow down as it has been accustomed to flow, subject to the ordinary reasonable use of the flowing water by upper owners, without sensible (appreciable) diminution ore increase and without sensible alteration in its character or quality.
The riparian owner may protect the flow of the water. A riparian owner is entitled to protect and preserve the flow of water through the watercourse.
An interference with this right causing actual damage may entitle the owner to injunction or damages. He may restrain obstructions and damming by others by injunction. He may take action against owners upstream from him, even if they are some distance away.
Action may be taken in respect of an apprehended or threatened injury, which is likely to occur. Owners downstream several miles who are affected by an obstruction may take legal action
The owner concerned must show that he will suffer damage actual or threatened. For example, in a case where the increase in the height of weir caused no actual damage but did raise the level of the river as it flowed past another owners land, he was entitled to nominal damages. Even if there are no damages quantifiable in monetary terms, the owner may be entitled to an injunction to stop the interference with his riparian rights.
In the case of a navigable river, a member of the public may take an injunction to restrain obstruction.
Changing the Flow
A person who diverts in watercourse into a new artificial channel for his own her own convenience must make it capable of carrying off all the water which may reasonably be expected to flow into it regardless of the capacity of the natural channel. If there is damage due to the deficiency of the modified channel, the person who modified channel is held liable for damages.
An upper riparian owner who has the right to take water by a channel of a certain size cannot enlarge the channel so as to divert more water to the prejudice of a lower owner. A person who diverts water from a watercourse in large quantities so as to leave insufficient amount for the other users may be restrained by injunction without proof of actual loss damage or inconvenience. This is because if repeated sufficiently, it might become an adverse right by long use.
The question is whether there is a “sensible” or appreciable alteration to the natural quality of the water in the watercourse. Accordingly, where a dam was placed across a stream, it gave rise to a complaint by the operator of a downstream mail. It was held that the water had been returned to its former course before it reached the mill and that there was no detriment so there was no liability.
Diversion which interferes with the movement to migratory fish may be the subject of criminal prosecution.
Preservation of Water Quality
The riparian owner has a right to the preservation of water in its natural state. This may be breached if there is a significant alteration in its character or quality. The riparian owner is entitled to an injunction to protect fouling of the water. This also covers raising its temperature polluting materials and conversion of soft water to hard water.
The right to clean and wholesome water could be subject to established rights to pollute and foul at common law, which had itself been established by long use. Considerable statutory rights now exist against pollution and long use is no defence.
A right to pollute can be acquired as an easement at common law. It must not amount to a public nuisance or interference with public rights. The whole area of water pollution has been radically changed by the modern Fisheries Act and later the Water Pollution Legislation.
A water pollution licence is required to discharge trade or sewage effluents. However, it does not entitle the licence holder to override the owner’s riparian rights. A property right and licence is required.
A person may take injunctive action against any polluter of waters under modern water pollution and environmental legislation. Both the local authority and in some cases, the Environmental Protection Agency have administrative powers to require cessation of pollution and may also seek an injunction to so do.
Private owners may also take action based on anti-pollution legislation. They may seek an injunction to restrain unlawful pollutants.
Where injury has been caused in breach of rights, the person affected may be entitled to damages of either a nominal or substantial character. He may be entitled to an injunction.
Where the injury is likely to continue or increase to become serious or permanent, the court may grant an injunction to restrain the continuation of the breach. However, injunctions are not automatically available. An injunction may be declined where it would not serve to restore the claimant’s rights or where the matter complained of could be compensated for, by damages.
The riparian owner or other persons who own the fishery has a right of action against persons who unlawfully disturb the enjoyment of the fishery. This would include discharges into water which drive away fish or interfere with breeding. Interference with a fishery is a claim of damage to property so it may be maintained without proof of special damage.
Wells at Common Law
Under the common law principle a landowner may sink a borehole well to intercept water percolation underground even though the effect might be to interfere with the supply of underground springs, provided that the water does not flow in a defined channel. However, the position may be subject to statutory provisions.
A spring is characterised at common law as a natural source of water of a definite and marked extent. It is a natural chasm in which water has collected and from which it is either lost by percolation or rises in a defined channel.
It constitutes a watercourse at that point and is not considered the produce of the soil so as to be the subject of a profit to take it for domestic purposes. This can only exist as an easement benefiting adjoining property and not a profit which can exist independently of adjoining property. It may arise by long use or custom.
The continuous interrupted use of spring water for 20 years law will generally give rise to an entitlement to an easement. Amendments made in 2009 required that an easement is only perfected in a court application or registration in the land registry. The law was reversed in 2021. The registry will not generally register unless the position is very clear or the adjoining owner consents and does not contest the legal basis.
Possible Limits to Rights
The courts have expanded the law of negligence so that when a person does something which foreseeably damages another without any good justifiable reason, he may be liable to his neighbour who suffers loss in consequence. Generally, the modern approach does not allow absolute property right to be used to damage neighbours.
The traditional absolute position of property rights has tended in modern times to be limited, where others are foreseeably damaged. The traditional principle is even less likely to apply where the abstraction is malicious and deliberate for no good reason.
At common law, an owner cannot withdraw the support of adjacent soil from neighbouring land. This is part of the natural rights attached to land.
At common law there was no right of support from adjacent subterranean water. This principle has been as affirmed in UK in the 20th century. However, it is questionable whether this principle would apply in modern times. The modern cases say that the owner must take reasonable care to mitigate any hazard on land which may have a foreseeable adverse effect on a neighbour even where it arises by action of nature.
The above riparian owners’ rights and obligations are based on common law. Most of the cases are over 50 years old. Accordingly, they predate modern laws on water pollution and environmental standards. Many come from the UK in a very different time. However, they are the basis of the law.
Modern water pollution and environmental laws create new rights of damages that did not exist before. In addition, the law of negligence which has regard to statutory duties.
There are two possibilities. One is that the duties laid out in environmental legislation define what landowners can do, so that breach of them causing damage or loss to another is negligence by itself and gives rise to a right compensation. There may also be a right of compensation in some cases for breach of statutory duty. The courts infer whether this was intended by the lawmakers.
In both instances this may mean that modern environmental law redefines and changes what can be done as between adjoining owners. The tendency at common law was to give huge respect property rights. Property rights include riparian rights.
There are instances where under the older cases, neighbours can act in their own interest and stand by and do things that cause predictable loss to neighbours. Where new legislation creates a particular duty under environmental regulations, failure to comply with this duty might itself give rise to a right of compensation
In addition to the above, the law of negligence has evolved over the last 50 years. More and more where somebody causes loss to another by acting carelessly (and all the more so deliberately) he or she is compensate the other. To a greater extent, where there are competing rights between riparian owners the courts look at the matter from a negligence point of view.
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