Real Property: Water Rights

Water Rights

2 Systems for determining water rights (streams, rivers, and lakes):
  • Riparian doctrine: Water belongs to those who own the land bordering the watercourse.
    • Riparians = share the right of reasonable use of the water. One riparian will be liable if his or her use unreasonably interferes with other’s use.
  • Prior Appropriation doctrine: Water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner.

Rights determined by priority of beneficial use. Norm for allocation = first in time, first in right. Thus, a person can acquire the right to divert and use water from a watercourse merely by being the first to do so. Any productive or beneficial use of the water, including use for agriculture is sufficient to create the appropriation right.

Groundwater (percolating water): Water beneath the surface of the earth that is not confined to a known channel.

  • Surface owner entitled to make reasonable use of the groundwater. However, the use must not be wasteful.

Surface Waters: Those which come from rain, springs, or melting snow, and which have not yet reached a natural watercourse or basin.

  • Common enemy rule: (b/c surface water is considered a nemesis) – a landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water. Many courts have modified the common enemy rule to prohibit unnecessary harm to others’ land.