Property owners with water geographically connected to their land need to know their legal rights. The water could be a river, lake, the ocean or even the water underground.
Types of water. Three basic types of water may have a connection to your property.
- A watercourse is any lake, river or stream.
- Groundwater is underneath a property. Rights differ depending on if it is part of the water table or if it is a flowing underground stream.
- Surface water is standing water from rainfall or snowmelt.
Different views of rights. States vary in handling of water rights, depending on how scarce water is in each state. Eastern states where rainfall and water supplies are more abundant tend to be more generous with water rights, whereas drier western states are more controlling.
Watercourse rights. With rivers or streams, eastern states tend to favor what is called the Riparian Doctrine which says that landowners along a watercourse, known as riparian owners, all have equal rights to the use and enjoyment of the water. None may use the water in such a way as to harm or deprive the other owners of its use.
If the waterway is navigable, the property line is the edge of the water. Property owner are permitted to construct a dock on the water’s edge. If the waterway is non-navigable, the property line is the center of the river or stream.
In some western states the Prior Appropriation Doctrine applies. This doctrine asserts that the government is the original owner of all watercourses and can decide who has rights to their use and enjoyment. Usually an owner adjacent to water will be granted rights in such states, but the state reserves the right to allow non-adjacent owners access without compensation to the adjacent owner.
If a body of water is large and navigable, such as a large lake, the sea or ocean, the landowner is said to have littoral land with littoral water rights. This means that they have free access to the water, but only own the land up to the median high water mark. Beyond that the water is for public use and enjoyment.
Groundwater rights. With groundwater, the most common owner usage would be drilling a well. Most state jurisdictions grant the owner of the land the right to pump a reasonable amount of groundwater. A minority number of mostly eastern states allow the owners to take as much water as they want from their own land.
If the source of underground water is a flowing stream, riparian water rights apply.
Surface water. The majority of jurisdictions hold to a simple doctrine that if water stands on a property from snowmelt or rainfall, it is for the sole use of that landowner. It gets more complicated when the landowner diverts such water they deem harmful to their property. Diverting sends the water onto neighboring properties affecting other landowners. Again, jurisdictions differ in their handling of this, with three legal doctrines.
- The Natural Flow Rule says that an owner may not divert water off of his own property at all, but must devise other means of coping with it.
- The Common Enemy rule says that harmful water is everyone’s problem and an owner can divert to other properties.
- The Reasonable Use rule says that the owner can divert the water off of his property as long as it is in a reasonable fashion, taking into consideration the effect on other owners.
