Legal Blog

This Week In Real Estate: Water Rights

What are the rights of owners of property that contains and/or is adjacent to bodies of water?

These rights are called “riparian rights.  Traditionally, the term “riparian rights” referred to the rights of owners of land abutting a stream and “littoral rights” referred to the rights of owners of land abutting a lake or sea.  However, the term “riparian” is now used to refer to the rights of owners of land bordering upon, bounded by, fronting or adjacent and contiguous to and in contact with any body of water.

The owner of real property has certain riparian rights when the property abuts a body of water or water flows through the property. This generally includes property owners with property that either contains or borders a pond, lake, stream, or river. In most situations, even artificial bodies of water, such as reservoirs and drainage canals, are included. Regardless of the nature of the water, the property must actually “touch” the water. Owners of such property are commonly referred to as “riparian owners.” If the property is in proximity to water but doesn’t actually come into contact with water, no riparian rights are associated with it. Usually, if a body of water borders a lot or property, the property rights extend up to the boundary of the water and sometimes into the middle of the body of water, especially in the cases of running water (e.g., streams, drainage canals, rivers, etc.).

Historically, riparian rights were determined by the natural flow theory. Pursuant to this theory, riparian owners were ensured the water would continue in its natural course of flow or natural existence. The riparian owners were allowed continued use of the water, as long as it did not hamper other riparian owners’ rights to continue the water in its natural course of flow or natural existence. Essentially, each riparian owner was guaranteed the water would be maintained in its natural integrity or, would continue to remain as the owners had found it, specifically in the amount of water present. Essentially, the riparian owners were guaranteed that the volume of water available to them would remain the same.

Most jurisdictions have now moved away from the natural flow theory, especially in the eastern part of the United States, and have adopted the reasonable use theory. Pursuant to this theory, a riparian owner is guaranteed the reasonable use of the water. Basically, this theory is not the guarantee of water volume, but rather that the riparian owner is guaranteed the reasonable use of the water. A use is reasonable if it does not substantially interfere with another riparian owner’s use of the water. Basically, each riparian owner’s use must be balanced with the other riparian owners’ reasonable uses, without a focus on guaranteeing any specific volume to any riparian owner. The basic premise and underlying goal of this theory is to encourage and promote the beneficial use and allocation of water resources.

What happens when the boundary line of the property adjacent to the body of water changes?  Tune in next week to find out.

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Jim Landon has practiced real estate law since 2002 and has been involved in real estate investment and construction for most of his life. Jim’s practice focuses on real estate transactions and land use.

Jim represents individuals and privately and publicly held companies in the purchase, sale, leasing, financing, and development of real property. He also represents title insurance companies on commercial purchases and refinancing transactions, as well as providing third-party legal opinions regarding Delaware law related to Delaware entities.







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