ERM 535

February 3, 2021

Water Law – Doctrines I

Riparian Doctrine – Origins, Administration, Reasonable Use, and
Selected Case Studies/Examples
Doctrine is a legal principle that is widely adhered to. It
is a rule or principle of the law established through the
repeated application of legal precedents. 

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The Four Primary Water Doctrines
• dominus fluminis - absolute ownership
principle granting complete control of the
resource by the governing party
• Riparian
• Prior Appropriation
• Correlative

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 Where in the World is Dominus Fluminis?

• Historical Example from Ancient Rome

• More recent example
– South Africa; Dutch colonials applied the Roman-
Dutch system of dominus fluminis
• Authoritarian States

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 Origins of the Riparian Doctrine

Riparian Doctrine arising from English Common Law includes:

• Ownership of the land up to the center of the watercourse
unless it is known to be owned by someone else
• The right for water to flow onto land in its natural quantity and
quality
• The right to protect property from flooding and land from
erosion
• The right to fish in the watercourse unless the right is sold or
leased
• The right to acquire accretion and the right to boomage (a fee
charge for securing a boom, generally for the retention of logs)

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 Duties and Obligations

• Pass on the flow of water without obstruction, pollution or

diversion affecting the rights of others
• Maintain the bed and banks of the watercourse and to clear
any debris, whether natural or artificial, to keep any culverts,
rubbish screens, weirs and mill gates clear of debris
• Be responsible for protection of land from flooding and
cause no obstructions, temporary or permanent, preventing
the free passage of fish
• Accept flood flows even if caused by inadequate capacity
downstream, but there is no duty to improve the drainage
capacity of a watercourse

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 Riparian Doctrine in the United States
• Water is a public good like the air, sunlight, or wildlife
• It is not "owned" by the government, state or private individual but is rather included
as part of the land over which it falls from the sky or then travels along the surface (A
right to use – also called a usufructory right)
• There is a clear distinction between navigable (public) waters and non-navigable
waters
• The land below navigable waters is the property of state, and subject to all the public
land laws and in most states public trust rights
• Navigable waters are treated as public highways with any exclusive riparian right
ending at the ordinary high water mark
• Riparian right is subordinate to the public's right to travel on the river, but any public
right is subject to nuisance laws and the police power of the state
• Not an individual right or liberty interest. Because a finding of navigability establishes
state versus federal property, navigability for purposes of riverbed title is a federal
question determined under federal law

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 Riparian Doctrine in the United States
(cont’d)
• States retain residual power to define navigability for the purposes of defining
the public trust over water within their borders
• A non-navigable stream is synonymous with private property, or jointly-owned
property if it serves as a boundary
• The reasonable use of the water by a riparian owner is subject to the downstream
riparian owners 'riparian right' to receive waters undiminished in flow and quality
• Since all surface waters eventually flow to the public ocean, federal regulatory
authority under the Clean Waters Act, like the Clean Air Act, extends beyond only
public (navigable) waters to prevent downstream pollution
• In the case of navigable waters, title goes to the average low water mark
• The Pennsylvania Supreme Court defined it as the "ordinary low water mark,
unaffected by drought; that is, the height of the water at ordinary stages." Land
below the low water mark on navigable rivers belongs to the state government in
the case of the 13 original states

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Riparian Doctrine in the United States (cont’d)

• Lands between the high and low water marks

on navigable rivers are subject to the police
powers of the states. In the case of the
original 13 states, upon ratification of the US
Constitution, title to these submerged lands
remained vested in the several states similar
to the public or common roads

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 Conclusions
Riparian doctrine

In dealing with water rights, the riparian doctrine states that reasonable
use of the water belongs to the person whose land borders a body of
water. Riparian owners are permitted to make reasonable use of this water
provided it does not unreasonably interfere with the reasonable use of this
water by others with riparian rights.
– In order to be classified as a riparian landowner, the landowner must own a
parcel of land adjacent to a watercourse, such as streams, lakes, and ponds
– The water may only be put to a reasonable use, and the courts can enjoin
unreasonable uses.
– The riparian landowner may make a reasonable use of the waters, as long as that
use does not interfere with the reasonable use of another downstream riparian
landowner

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The riparian landowner may make
a reasonable use of the waters, as
long as that use does not interfere
with the reasonable use of another
downstream riparian landowner.

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 Reasonable Use
Reasonableness is a comparison of the proposed use
with the other riparians’ uses.

The law considered any natural uses, such as water for

drinking, watering livestock, or watering a garden, as
reasonable.

Artificial uses, such as those for irrigation or industry, are

considered reasonable uses under most states’ laws.

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• Non-riparian landowners generally have no
right to use water, although some riparian
jurisdictions may allow it.
• A majority of jurisdictions require proof of
actual harm from the use of water on non-
riparian land

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• Under riparian rights, use of the water is not
required to keep the right alive (no
abandonment or forfeiture by non-use)
However, beware of prescriptive rights
(definition coming).
• New uses may be started at any time as long as
the new use is a reasonable one.
• Because the right is attached to the riparian
land, non-use does not extinguish the right.
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• Today, almost all riparian states have enacted
some form of a permit system, moving
towards what has been described as a
“regulated riparian” system.
• Regulated riparianism allows for a permit
system to allocate water usage.
• Each state that uses a form of regulated
riparianism has a central state agency with the
control to say who may use the water, how
much they can use, and when they can use it.

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• Regulated riparianism departs from common law
riparianism by looking at the projected use before
any water is ever actually used.
• The state will use the same reasonable use
criterion as with the common law but determine
beforehand if the new use is reasonable.
• This allows the state to take into account both the
potential benefits to society and the compatibility
with current uses before granting a new permit.

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• In many cases, the permit is only required on
consumptive uses and excludes non-consumptive uses,
or those that do not require a diversion or removal of
water from the watercourse.
• The permitting system allows the state to plan for the
future, and maximize water usage in the future.
• the rules governing whether a use requires a permit
vary from state to state.
• In many states, agricultural uses are exempt from
permit requirements
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Regulated riparian permits are not for indefinite periods of
time, like those in prior appropriation states, but for a
fixed period of years.

The quantity of water allowed, under the permit, can also

be adjusted in the public interest, in times of shortages, to
protect environmental resources.

During times of shortages, the state can require a pro rata

reduction across the board, or a reduction based on
seniority of use.

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• The permit also gives priority to users holding
permit over non-permitted users whose
withdrawals maybe hurting the permitted users.

• Finally, riparian landowners who do not obtain

a permit within the required statutory time
period may see a reduction or a forfeiture of
their common law riparian rights.

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The eastern states of the United States
(Minnesota to Louisiana and eastward) primarily
apply the riparian doctrine to determine who
has the legal right to use water.

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Some questions are:

1) What land is considered riparian,

2) How can the water be used,
3) How much water can be used, and
4) Who enforces a riparian landowner's water
right. 

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With respect to the enforcement question, the
simple answer is that a riparian landowner
brings a lawsuit against another riparian
landowner if the first landowner feels that the
second landowner's use of the common
waterbody is interfering with the first
landowner's use of the water. 

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 Tort Law

A tort, in common law jurisdictions, is a civil wrong

that causes someone else to suffer loss or harm
resulting in legal liability for the person who commits
the tortious act.

The person who commits the act is called a tortfeasor.

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The legal action is based on tort law, such as
trespass; that is, "your use of the water is
interfering with my right to use the water."  The
result of this enforcement practice is that
numerous riparian landowners' along a common
waterbody may be engaged in extensive and
numerous litigations to determine and enforce
their relative water rights.  Consequently, courts
had a considerable role in defining water law as
well as imposing individualized solutions in
resolving legal disputes.
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 Case Studies

Note – Citations are not in proper format (or may be

missing entirely).

Again, this is not intended to prepare law students but

provided to introduce the concepts and principles
incorporated within water law and policy.

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How Much Water Can be Used?
• Harris v. Brooks
– Arkansas 1955
• Plaintiff riparian landowner conducted a commercial boating and fishing
enterprise on a non-navigable lake; defendants pumped water from the lake to
irrigate (flood) their cranberry production.  The irrigation lowered the water
level of the lake to the extent that boating and fishing were no longer possible. 
The plaintiff requested that the court enjoin the defendant from pumping
excessive amount of water from the lake. The court denied the injunction and
the plaintiffs appealed.
• The appellate court restates the riparian doctrine as "the owners of land
bordering on a stream has the right to use the water therefrom for certain
purposes and this right to use the water is part of (an incident of) owning the
land."

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But how much water can the riparian owner remove from the water source? 

This often was not a question in the past because most water uses, such as
navigation and power, did not remove water.  Consequently, the law applied
the concept of natural flow, that is, the riparian landowner could not remove
more than the amount of water the landowner needed for domestic
purposes, and other riparian landowners could bring legal action when a
riparian landowner removed more than the quantity of water needed for
domestic purposes. 

The remaining water in the waterbody was expected to continue to flow to

and be available to other riparian landowners.  The shortfall of this legal
concept is that water could not be used for other purposes, such as irrigation.

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The court then considered the reasonable use concept or
theory. 

This concept holds that a riparian landowner can make a

reasonable use of water on riparian land subject to the
correlative rights of other riparian landowners and certain
rights of the public. 

Each riparian is equally entitled to use the water but each

riparian owner is required to exercise that right reasonably and
with due regard to the rights of the other riparian owners. 

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• The right to use water for domestic needs is superior to the
right to use water for other purposes, such as fishing,
recreation or irrigation.
• All other lawful uses of water are equal.
• A lawful use that destroys another lawful use must yield
(reduce the use) or be enjoined.
• A lawful use that interferes with or detracts from another
lawful use raises the question of whether the first use is
unreasonable and should be enjoined, or if the competing
uses can be reasonably and equitably adjusted to
accommodate the reasonable rights of each riparian user.
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Priority of Domestic Use 
Riparian doctrine generally does not consider the type
of use when determining the right to use water; a
reasonable use for recreation is given no different legal
value than a reasonable use for irrigation, for example.

Domestic use is given preference in that a domestic use

that consumes all the water of a waterbody does not
have to adjust its use to accommodate other users. 

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What is a domestic use?

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A kids camp?

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A military base?

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Definitions of Domestic Use can vary by State
Law

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Does riparian doctrine recognize and protect
recreational and environmental values by
directing that water be retained in the
waterbody for the benefit of non-riparian
users/visitors?

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The public has a right to have water in a
waterbody; the rights to use water are not
fully held by only the riparian landowners.

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Reasonableness of use considers:

a) the interests of the user,

b) the interests of other riparian owners
affected by the use, and
c) the interests of society as a whole. 

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 Factors
• The purpose of the water use
• The suitability of the use to the waterbody
• The economic value of the use
• The social value of the use
• The extent and amount of harm the use causes
• The practicality of adjusting any of the competing uses to avoid the
harm
• The practicality of adjusting the quantity of water used by the
competing uses
• The existing values of water uses, land, investments & enterprises,
and
• The justice of requiring the user causing the harm to bear the loss.

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 Riparian Land
A parcel that is adjacent to a watercourse
• Riparian rights permit the riparian landowner to use
the water from the watercourse
– But which land is riparian?

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California 1907
• Plaintiffs diverted water from the Santa Ana river to irrigate.
• Defendants built a dam upstream to divert water to irrigate their land.
• Plaintiffs received an injunction against the defendants from diverting
water from the river because the defendants' land that would be
irrigated was not riparian.
• The land on which the water is used must be within the watershed,
must be owned as one tract that extends from the water source to the
point of use, and never have been severed from the land that borders
the water source.
• Land that is not within the watershed of the river is not riparian and is
not entitled as riparian land to the use or benefit of water from the river,
even though it may be part of a tract that extends to the river.

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• A principal reason for confining riparian rights to lands that border the
stream is so after its use, the water returns to the stream.  
• Where two streams unite, it is correct to consider them as separate streams
above their confluence and the land within the watershed of one stream is
not riparian to the other stream.  
• Land that is conveyed and severed from the tract that is adjacent to the
stream can never regain its riparian right even though it is in the watershed.
• In California, riparian owners have correlative rights in the stream
and neither are trespassers against the other until one diverts more than
that user's share, and injures and the damages the other.  Water of a stream
belongs by a common right to the riparian owners and each is entitled to
sever their share for use on the riparian land.  
• A riparian right is not lost by disuse, but it can be lost to a trespasser whose
use matures into a prescriptive right.  

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 Correlative Rights
The correlative rights doctrine is a legal doctrine limiting
the rights of landowners to a common source of
groundwater (such as an aquifer) to a reasonable share,
typically based on the amount of land owned by each on
the surface above.
This doctrine is also applied to oil and gas in some U.S.
states.
(this doctrine evolved from the absolute ownership
doctrine in the UK where the individual use of the resource
does NOT have to recognize potential harm to others)

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 Prescriptive Rights
Prescription is the property concept that if one
person uses a second person's property right
without the second person's permission and the
second person does not complain about the first
person's unauthorized use of the second
person's property right, the first person will
acquire the second person's property right if the
unauthorized activity continues for the legal
prescribed time.
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 Which land is riparian?

Source of title test

• Smallest tract held under one title in the chain
of title leading to the present owner; each
time a portion of land is separated from the
riparian land, the separated portion is no
longer riparian and can never regain its status
as riparian even if it is subsequently owned by
the same person again.

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Unity of title test
• All land comprising a tract that is adjacent to a
watercourse; separated land can regain its
riparian status if it is again owned as one tract
by the riparian landowner.

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Q: Must riparian land be within the watershed
of the watercourse?

A: Apparently, yes.

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Q: Does a riparian landowner need to own the
riverbed to have riparian rights?

A: A riparian owner only needs to own the land

adjacent to the watercourse.

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 Diffuse Surface Water
Q: Am I entitled to use diffused surface water?

A: Diffused surface water may be captured, used,

dammed and redirected by the landowner even though
the water would otherwise reach a watercourse and
these activities diminish the flow of the watercourse.

Note - A similar concept is followed in prior appropriation

doctrine

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Michigan 1967

Defendant owns riparian land on a navigable

lake and plans to dredge canals and sell lots.

The buyers of the lots would be allowed to use

the canal to access the lake for boating.

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Plaintiffs claim lots along the canals are not
riparian land.

Do you agree?

Why, or why not?

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Court agrees with plaintiffs that only land along
natural waterbodies are riparian and a canal is
not a natural waterbody.

Q: Can riparian rights be transferred separate

from the land?

A: The court rules no.

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Why?

Riparian rights are not alienable, severable,

divisible or assignable apart from the land.

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 How Can the Water be Used?

Iowa 2007
The case involves the use of non-
navigable water by riparian owners who own
designated portions of the underlying land. 

Do the land owners share the use of the entire

lake surface or is each landowner limited to the
area of the lake that overlies their private land?

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Common law or exclusive dominion rule
• Owners can only enter upon the water above
their land
• Landowner can prevent other owners of land
underlying the non-navigable land from
entering into their area on the lake surface
• The owners also may erect barriers in the lake
along their property boundary line. 

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 What if it was “Navigable Water”?
Land underlying navigable water is owned by the state and
the water over state-owned land is open to the public.

But….the dissenting justice cites Minnesota as following

the free access rule which states –
all riparian landowners whose ownership extends to
land underlying non-navigable water are entitled to access
the entire surface of the non- navigable land as long as
their use does not unduly interfere with the rights of the
other riparian landowners.

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Navigability is applied in determining ownership of
land under a waterbody. 
If the waterbody is navigable, the underlying land
belongs to the state and the surface is available for
public use as long as the public can access the land
without trespassing on private land. 
If the land is non-navigable (as in the preceding
case), the underlying land is privately owned and
the use of the surface is limited to riparian owners.
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 Navigability (this case)
Navigability 
There are several definitions of navigable: 
1) tidal ebb and flow,
2) susceptible of use for purposes of commerce or
possessing capacity for valuable floatage in
transportation,
3) capable of floating logs,
4) capable of floating shallow draft boats for
recreation.
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Washington, 1966
The state and others were riparian owners of a non-
navigable lake.

The state had its land open for public use which also gave
the public access to the non-navigable lake.

The other riparian users complained of the public use of

the lake; claimed the use was "unreasonable interference"
and the state should buy their lands.
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Q : Did the court find this was unreasonable
interference?

Why or why not?

A: The court found the uses were unreasonable

interference; but did not require the state to buy the
other lands.  The public use, however, would be enjoined
until the state devised a plan to prevent the
unreasonable interference.
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Illinois, 1842
Evans and Merriweather owned adjacent riparian land on
a non-navigable stream, Evan was upstream. 
They both operated mills. 
During a drought, Evans' employee dammed the stream
immediately below Evans' mill and diverted to full flow to
power Evans' mill.
Without the diversion, there was not enough water power
to operate Evans' mill.
Merriweather sued.
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To what extent can riparian owners divert the
water of a non-navigable stream?

Q: What is the legal test?

A: Reasonable Use

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Q: Is consuming the entire river a reasonable use?

If yes, why; if no, why not?

A: The jury found the use to be unreasonable. 

The court stated "where all have a right to participate in a

common benefit, none can have an exclusive enjoyment."  The
quantity that can be withdrawn by any must be determined on a
case by case basis -- which the jury had already done in this
case by deciding the Evans' action was unreasonable.

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Riparian doctrine is a proportional allocation of
water; this is different than prior appropriation
doctrine. 

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 How do people who are not riparian
landowners acquire water?
• Purchase the right from a riparian owner?
• Steal it (that is, acquire it as a prescriptive
right)?
– Non-riparian entities can acquire water rights
via prescription(continuous use for an extended
time without the permission of the riparian
landowner); conversely, riparian water rights can
be lost by not stopping a trespassing water user.

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California 1922
Can a non-riparian landowner acquire a water
right by prescription?
Can a riparian landowner acquire the right to
more than a reasonable amount of water
through prescription?

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A non-riparian landowner acquired a water right by
prescription in a waterbody by diverting the water
from its source for the legally required time without
the owner of lower riparian land raising a complaint. 

This is the outcome even if the riparian owner was

not aware of the diversion if the diversion was visible
and the riparian could have learned of the non-
riparian diversion.

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A riparian owner cannot acquire a water right
against another riparian owner because the
riparian use, even if unreasonable, is not a claim
against the other riparian's right. 

This is the outcome even if the second riparian

landowner is not using any water.  This outcome is
based on the idea that a riparian right exists even
if the water is not being used.
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California 1910
Riparian owner can grant their share of the waterbody
to another person but the new owner will share in the
overall water resource in the same way that the
granting riparian owner could have shared.
The granting riparian owner cannot attempt to retake
some of the granted water by arguing that he/she still
owns riparian land.  Once the water is granted away by
the riparian owner, the riparian owner no longer owns
the right.
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Q: During a drought, could one water user (say, a state operated
fish hatchery) require another riparian user to reduce their use
during a drought to maintain the flow through the fish hatchery?

If yes, why; if no, why not?

A: Reasonable use among riparian owners/users implies that

each user adjusts their water use during times of water
shortages.  An arrangement that allowed one user to maintain
full use while another user endured a disproportionate reduction
is an unreasonable use of the water. No.

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 Municipal Water Supply
A municipality, even if situated adjacent to a
waterbody most likely includes non-riparian
land.  How does the law allow a municipality to
draw water from a waterbody to meet the needs
of the entire community?

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Connecticut 1951
State law authorized municipality to acquire
water right by purchase, eminent domain or
other means.

Plaintiff requested that city be enjoined from

constructing water project and taking water.

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Trial court did not enjoin the city. 

Appellate court agreed that injunction should

not be granted but required the city to
compensate the plaintiff/riparian owner.

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Wisconsin 1952

This case illustrates the challenge of altering law

as society recognizes additional uses of
resources, in this case, the "new" use is the
beauty and recreational use of water resources.

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A company applied to the state Public Service Commission for a
permit to construct a dam.

The Conservation Commission and at least one private citizen

appeared at the hearing to testify in opposition to granting the
permit. 

The Public Service Commission granted the permit for the dam
and denied a rehearing.

The private citizen then appealed.

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The court summarized the history that this region of the country was
deeded by colony/state to the newly formed United States on several
conditions; one condition was that navigable rivers would remain
open for public transportation. 

This language was continued by the State of Wisconsin. 

Navigability was defined in an earlier case to include capacity to float

shallow draft boats. 

Subsequently, navigability was broadly defined as "navigable in fact for

any purpose."

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Wisconsin state law provides that a permit could
be granted as long as the project did not
materially obstruct existing navigation or other
public rights.
Relying on an earlier case, the court reiterated
that a public right, once accrued, is not lost. 
For example, a small stream that once fit the
broad definition of navigability would remain part
of the public domain.
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A legislative amendment provided that the
public service commission should consider
"enjoyment of scenic beauty." 
Thus the public service commission needed to
consider impact on navigation and beauty in its
decisions affecting broadly-defined navigable
waters.

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Court ordered the Public Service Commission to
make findings about the public rights of
navigation and scenic beauty/recreation in
deciding whether to grant the permit to
construction the dam. 

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"...required to make findings as to whether
public rights for the recreational enjoyment of
this stream in its present natural condition
outweigh the benefits to the public which would
result in the construction of the dam."

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Colorado 1882
• Colorado court replaces riparian doctrine with
prior appropriation doctrine primarily on the basis
that prior appropriation doctrine would result in
better utilization of the state's water resources.
• Even state constitutional or statutory language
has not been interpreted to mean that the English
riparian doctrine would be strictly applied in the
United States.

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 Conclusion
Many legal concepts in the United States were first developed by courts
in the form of common law.  In the past 150 years, the United States
legal system has evolved to relying more on statutory and regulatory
laws, but many of the enacted concepts have a foundation based in
common law.

As states adopted statutes to refine their respective riparian water

laws, some states continued the existing concepts, other states used
the statutes as an opportunity to refine or even redirect their water
law.  As one reviews and compares state statutes, there will situations
where some statutes reinforce existing common law and there will be
situations where the statutes negate and replace the common law
concepts.

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