jaguargene
Jr. Member
- Feb 8, 2011
- 59
- 1
I get this from my Lawyer
. Riparian Rights
Riparian rights are the rights of landowners to use water that is on or adjacent to their property. Landowners have riparian rights only if their land touches some body of water. There is no right to go over the property of others to take water, even if that intervening property is only a narrow strip such as a road or railroad. Landowners have rights in the groundwater underneath their property that are similar to surface water riparian rights
Reasonable Use
The guiding principle of riparian rights in North Carolina (and most other eastern states) is "reasonable use." Owners of property adjacent to a natural body of water have the right to make reasonable use of the water. (Such property owners are referred to generally in this paper as "riparian owners" although the correct technical term for owners of property adjacent to ocean or estuarine waters is "littoral owners.") Similar reasonable use rights also apply to ground- water.
"Reasonable use" means that each riparian owner can take, use, and discharge surface water so long as that use does not excessively diminish the quality or quantity of the water that flows to other riparian owners. All of the riparian landowners have equal riparian rights, and no one owner can unreasonably interfere with the reasonable uses of the others. A riparian owner who uses so much water that it impairs the reasonable uses of the other owners or who pollutes the water can be sued by the adversely affected owners for damages and an injunction to stop the infringing use. All customary household uses are presumptively reasonable. Agricultural and industrial uses are only reasonable if they do not cause unreasonable adverse effects for other riparian owners.
The reasonable use doctrine as applied to groundwater allows a landowner to withdraw groundwater for any use on the property, including manufacturing uses and agricultural irrigation. The courts have applied the reasonable use rule more liberally to groundwater than to surface water, and any use of groundwater on the property is presumed reasonable. The groundwater user is only liable to affected neighbors (e.g. those whose wells go dry) if the water was wasted or used for some purpose off the property.
A property owner who causes contamination of groundwater will be liable to affected neighbors in the same manner as a polluter of surface water who is liable to other riparian owners. Most riparian use issues concern the effects on downstream owners. However, damage can also be done to upstream riparian owners by building a dam or otherwise obstructing the natural water flow so that flooding occurs on upstream land. In such cases, the upstream owner has a cause of action for trespass against the downstream owner.
If the body of water is man-made, a canal or reservoir for example, the customary riparian rights may not apply, and the uses by littoral owners can be limited. For instance, an owner of property on a lake formed by a hydro-electric dam or on a man-made canal may have no riparian right to withdraw water or build a dock. On the other hand, landowners who build ponds on their own property would continue to have riparian rights in that water.
Land Ownership Issues
Private and State Ownership
Questions often arise concerning the ownership of the submerged lands under rivers and lakes and the tidal lands of the oceans, sounds and estuaries. Under North Carolina law, all land under saltwater bodies, lands subject to the ebb and flow of the tide, and land under water that is subject to the influx of saltwater is owned by the State "in trust" for the public. Such lands cannot be privately owned, with the exception of certain limited grants and sales of these lands that the State has made in the past.
The same rule of State ownership applies to lands underlying fresh water bodies that have an outlet to the ocean and would be potentially navigable by historical sea vessels. In all of the above cases, private property boundaries extend only to the high water line or the mean high tide line of the water body. When the State owns submerged lands, the owner of land adjacent to the water body still has riparian rights of access to and use of the water and bottoms (using water for irrigation or building a dock, for example). Those rights are limited, however, by the requirements of navigation and by the rights of the public to use the publicly-owned navigable waters and tidal lands. Other regulations also may apply, including the requirement to obtain a permit before building docks or piers in coastal waters.
Submerged lands that do not fall into the above categories, which would include most land under streams, smaller rivers, and lakes, can be privately owned. When a private property boundary is described in the deed as the course or "thread" of a stream, the property line is considered to run down the middle of the stream. The property line will shift as the stream slowly changes course. Gradual erosion from one side and gradual accretion on the other will respectively reduce and increase the amount of land held by the adjacent owners. If a flood or other unusual event causes a stream to change course suddenly and dramatically, the property boundary does not move and will be established at the center of the old stream bed.
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Public Use Rights
Although riparian owners have certain rights to use water, they do not actually own the water itself. All surface and ground waters are legally "waters of the State." The water, plus the fish and other aquatic life belongs to the State. (There is an exception for fish in private ponds if the fish cannot escape to or enter from public fishing waters.) Even when all of the submerged land under a water body belongs to private owners, the State owns the water, although the riparian owners continue to enjoy their riparian rights.
If the body of water that lies over privately owned submerged land can be navigated by any craft such as a canoe or a raft, then the public has a permanent right to use the water surface for all purposes of recreation and commerce, including fishing, whitewater canoeing, etc. It is not clearly settled whether the public's right to use such water bodies includes the right to wade on the privately owned stream bed for fishing or other recreation. When a stream is so small that it is no longer navigable by smaller craft such as a canoe, there is clearly no public right to wade, fish, or otherwise use or enter upon the stream.
Similarly, there is no public use right for man-made ponds on private property. On water bodies over submerged lands owned by the State (historically navigable waters and tidal waters) the public has a clear right to navigation, fishing, and other recreation on the water, as well as the right to use the foreshore the area between the low and high water lines.
There is no public right to travel over private property to obtain access to streams, lakes, tidal areas or other waters that the public has a right to use. Likewise, the public cannot generally trespass on private property on the banks of a stream, river or lake. Under traditional riparian law, the public had no right to use the dry sand above the high tide mark on coastal beaches. By custom, however, the public has long been allowed to use the dry sand between the dunes and ocean in North Carolina and many other states. With increasing development and public use of beaches, conflicts have sometimes arisen when property owners have tried to exclude the public from the dry sand.
In states other than North Carolina, the courts and legislatures have used various legal approaches to grant the public a formal right to use the dry sand portion of beaches when private property owners have sought to prevent such use. The issue has never been fully tested in North Carolina, but it is likely that the public does have a legal right to make reasonable use of the dry beach between the dunes and the ocean.
Water Runoff
Surface drainage (i.e. storm water runoff) creates water law issues. The laws of nature dictate that storm water will run downhill, and a property reasonable use of the land, which may necessarily cause some changes in the runoff.
If the higher landowner unreasonably diverts the flow of runoff, increases the flow, or contaminates the runoff in a way that causes material damage to the lower landowner, then the lower landowner can bring an action for an injunction and damages.
II. Statutory water law issues
The above concepts of water law and riparian rights are mostly traditional legal doctrines. Like other property rights, riparian rights are not absolute and numerous federal, state and local statutes, regulations, and ordinances may limit or modify the rights. For instance, some regulations restrict high capacity uses of surface and ground water. Most importantly, there are numerous regulations designed to control or prevent water pollution.
A detailed summary of all laws relating to water use and water quality is beyond the scope of this paper.
. Riparian Rights
Riparian rights are the rights of landowners to use water that is on or adjacent to their property. Landowners have riparian rights only if their land touches some body of water. There is no right to go over the property of others to take water, even if that intervening property is only a narrow strip such as a road or railroad. Landowners have rights in the groundwater underneath their property that are similar to surface water riparian rights
Reasonable Use
The guiding principle of riparian rights in North Carolina (and most other eastern states) is "reasonable use." Owners of property adjacent to a natural body of water have the right to make reasonable use of the water. (Such property owners are referred to generally in this paper as "riparian owners" although the correct technical term for owners of property adjacent to ocean or estuarine waters is "littoral owners.") Similar reasonable use rights also apply to ground- water.
"Reasonable use" means that each riparian owner can take, use, and discharge surface water so long as that use does not excessively diminish the quality or quantity of the water that flows to other riparian owners. All of the riparian landowners have equal riparian rights, and no one owner can unreasonably interfere with the reasonable uses of the others. A riparian owner who uses so much water that it impairs the reasonable uses of the other owners or who pollutes the water can be sued by the adversely affected owners for damages and an injunction to stop the infringing use. All customary household uses are presumptively reasonable. Agricultural and industrial uses are only reasonable if they do not cause unreasonable adverse effects for other riparian owners.
The reasonable use doctrine as applied to groundwater allows a landowner to withdraw groundwater for any use on the property, including manufacturing uses and agricultural irrigation. The courts have applied the reasonable use rule more liberally to groundwater than to surface water, and any use of groundwater on the property is presumed reasonable. The groundwater user is only liable to affected neighbors (e.g. those whose wells go dry) if the water was wasted or used for some purpose off the property.
A property owner who causes contamination of groundwater will be liable to affected neighbors in the same manner as a polluter of surface water who is liable to other riparian owners. Most riparian use issues concern the effects on downstream owners. However, damage can also be done to upstream riparian owners by building a dam or otherwise obstructing the natural water flow so that flooding occurs on upstream land. In such cases, the upstream owner has a cause of action for trespass against the downstream owner.
If the body of water is man-made, a canal or reservoir for example, the customary riparian rights may not apply, and the uses by littoral owners can be limited. For instance, an owner of property on a lake formed by a hydro-electric dam or on a man-made canal may have no riparian right to withdraw water or build a dock. On the other hand, landowners who build ponds on their own property would continue to have riparian rights in that water.
Land Ownership Issues
Private and State Ownership
Questions often arise concerning the ownership of the submerged lands under rivers and lakes and the tidal lands of the oceans, sounds and estuaries. Under North Carolina law, all land under saltwater bodies, lands subject to the ebb and flow of the tide, and land under water that is subject to the influx of saltwater is owned by the State "in trust" for the public. Such lands cannot be privately owned, with the exception of certain limited grants and sales of these lands that the State has made in the past.
The same rule of State ownership applies to lands underlying fresh water bodies that have an outlet to the ocean and would be potentially navigable by historical sea vessels. In all of the above cases, private property boundaries extend only to the high water line or the mean high tide line of the water body. When the State owns submerged lands, the owner of land adjacent to the water body still has riparian rights of access to and use of the water and bottoms (using water for irrigation or building a dock, for example). Those rights are limited, however, by the requirements of navigation and by the rights of the public to use the publicly-owned navigable waters and tidal lands. Other regulations also may apply, including the requirement to obtain a permit before building docks or piers in coastal waters.
Submerged lands that do not fall into the above categories, which would include most land under streams, smaller rivers, and lakes, can be privately owned. When a private property boundary is described in the deed as the course or "thread" of a stream, the property line is considered to run down the middle of the stream. The property line will shift as the stream slowly changes course. Gradual erosion from one side and gradual accretion on the other will respectively reduce and increase the amount of land held by the adjacent owners. If a flood or other unusual event causes a stream to change course suddenly and dramatically, the property boundary does not move and will be established at the center of the old stream bed.
Return to the Menu
Public Use Rights
Although riparian owners have certain rights to use water, they do not actually own the water itself. All surface and ground waters are legally "waters of the State." The water, plus the fish and other aquatic life belongs to the State. (There is an exception for fish in private ponds if the fish cannot escape to or enter from public fishing waters.) Even when all of the submerged land under a water body belongs to private owners, the State owns the water, although the riparian owners continue to enjoy their riparian rights.
If the body of water that lies over privately owned submerged land can be navigated by any craft such as a canoe or a raft, then the public has a permanent right to use the water surface for all purposes of recreation and commerce, including fishing, whitewater canoeing, etc. It is not clearly settled whether the public's right to use such water bodies includes the right to wade on the privately owned stream bed for fishing or other recreation. When a stream is so small that it is no longer navigable by smaller craft such as a canoe, there is clearly no public right to wade, fish, or otherwise use or enter upon the stream.
Similarly, there is no public use right for man-made ponds on private property. On water bodies over submerged lands owned by the State (historically navigable waters and tidal waters) the public has a clear right to navigation, fishing, and other recreation on the water, as well as the right to use the foreshore the area between the low and high water lines.
There is no public right to travel over private property to obtain access to streams, lakes, tidal areas or other waters that the public has a right to use. Likewise, the public cannot generally trespass on private property on the banks of a stream, river or lake. Under traditional riparian law, the public had no right to use the dry sand above the high tide mark on coastal beaches. By custom, however, the public has long been allowed to use the dry sand between the dunes and ocean in North Carolina and many other states. With increasing development and public use of beaches, conflicts have sometimes arisen when property owners have tried to exclude the public from the dry sand.
In states other than North Carolina, the courts and legislatures have used various legal approaches to grant the public a formal right to use the dry sand portion of beaches when private property owners have sought to prevent such use. The issue has never been fully tested in North Carolina, but it is likely that the public does have a legal right to make reasonable use of the dry beach between the dunes and the ocean.
Water Runoff
Surface drainage (i.e. storm water runoff) creates water law issues. The laws of nature dictate that storm water will run downhill, and a property reasonable use of the land, which may necessarily cause some changes in the runoff.
If the higher landowner unreasonably diverts the flow of runoff, increases the flow, or contaminates the runoff in a way that causes material damage to the lower landowner, then the lower landowner can bring an action for an injunction and damages.
II. Statutory water law issues
The above concepts of water law and riparian rights are mostly traditional legal doctrines. Like other property rights, riparian rights are not absolute and numerous federal, state and local statutes, regulations, and ordinances may limit or modify the rights. For instance, some regulations restrict high capacity uses of surface and ground water. Most importantly, there are numerous regulations designed to control or prevent water pollution.
A detailed summary of all laws relating to water use and water quality is beyond the scope of this paper.
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