RIPARIAN RIGHTS

The rights appertaining to the ownership of land that is situated on or forms the bank of a river or natural watercourse; in particular, the bank of a non-tidal watercourse. "Riparian right, according to the strict meaning of the term, are such as follows or are connected with the ownership of the banks of streams or rivers. (note: Riparian is derived from Latin, ripa, 'river bank')", J.M. Gould, A Treatise on the Law of Waters (3rd ed. Chicago: 1900) (Johnson v. McCowen, 348 So.2d 357, 360 (Fl App 1977)). In particular, 'riparian rights' are those common-law rights recognised in Great Britain, the eastern United States and other countries that adopted the common law. An owner of land that abuts a stream or river—a 'riparian owner'—has natural rights to access and regress from the water therein, as long as the land is in contact with the flow of the stream (North Shore Rly Co v Pion (1889) 14 App Cas 612, 620 (PC); Lyon v Fishmongers' Co (1876) App Cas 662 (HL); Merritt v Toronto (City) (1912) 6 DLR 152, 163 (Can); United States v. 1,629.6 Acres of Land, 335 F Supp 255, 268–72 (D Del 1971)). This right arises as a result of the ownership of the land abutting the watercourse and not from the ownership of the bed of the stream. (The soil itself may be owned separately and, if the river is permanently diverted, the dry land may be used by the owner of the land to which it is annexed as he so wishes.)

A riparian owner has various rights in connection with the water that runs along the bank that he owns, either as 'non-consumptive' rights, which entail uses associated with the existence of the water running along the land; or as 'consumptive' rights, which entail the taking of the water for his use. These riparian rights, which are applicable to the non-tidal watercourse, include: (i) a right of access to the water, including a right to navigation, up to the point where the tide ebbs and flows (the public having the right to navigate the tidal part of the river up to the same point, unless limited by statute); (ii) a right to draw water for 'ordinary' use connected with the land adjoining the watercourse; (iii) a right to receive a free flow of water in its natural course and state, unaltered in quality and quantity by an upper riparian owner, except for the 'ordinary' use of that landowner; and (iv) an exclusive right to fish in non-tidal waters (except as limited by statute or environmental regulation). A riparian owner may also own the subsoil of a non-navigable watercourse (which he usually does up to the thread of the stream—ad medium filum aquæ), and he has the right to take action to prevent navigation by others (boomage). The landowner will also acquire land by the gradual and virtually imperceptible process of accretion (although he may loose land by the similar process of reliction). A riparian owner has a right to take reasonable precautions to protect his land from flooding, although such activity may require the approval of the local municipality or environmental agency. In addition, in the US, most jurisdictions recognize a right to build a wharf, dock or pier along the waters edge or into the water—called 'wharfing out' (subject to appropriate state zoning and building regulations).

A riparian owner also has duties including: (i) allowing water to flow in the watercourse so as not to affect the quality or quantity flowing to other riparian owners; (ii) to maintain the bed and banks and to clear debris from any culverts, weirs or mill gates, whether made-made or natural; and (iii) not to cause any undue obstruction that will affect the corresponding enjoyment of the watercourse by any lower riparian owner.

Under the common law, after the point where the tide ebbs and flows, the watercourse is vested in the Crown, unless it has been expressly granted to a subject or that right has been precluded by some binding authority (Malcomson v O'Dea (1863) 10 HL Cas 593, 11 Eng Rep 1155 (HL); A-G of Straits Settlement v Wemyss (1888) 13 App Cas 192 (PC)). In the United States, navigable waters (those up to the tidal reaches) are the public property of the individual state, being held in its sovereign capacity in trust for the public (In re Opinion of the Justices, 365 Mass 681, 313 NE.2d 561 (1974); 65 C.J.S., Navigable Waters (St. Paul, MN), § 10(c)), unlike the coastal tideland, up to the three-mile limit, which is retained in federal ownership (United States v. State of California, 332 US 19, 67 S Ct 1658, 91 L Ed 1889 (1947)). In the civil law, all navigable water up to the high-water mark is part of the public domain (C. Civ., art. 538; La CC., 450; Quebec CC, art. 919). Cf. littoral rights. See also reliction, water rights.