by Ben Gutshall, ATG Law Clerk
What Does the Term "Riparian Rights" Mean?
The term "riparian rights" is neither simple to define nor clearly explained in any statutory provisions. The concept finds its origins in common law and has evolved over time to create a variety of implications for property owners whose property borders water and who want to make use of that water. As most commonly used, riparian rights refer to the rights associated with the use of the water for various purposes. These uses include water consumption by people or animals, irrigation of agricultural crops, and a multitude of industrial uses. Relatively recently, recreational use of water has also been included within the scope of riparian rights. If a property owner owns land that borders water, the concept of riparian rights will likely affect the owner's use of the water at some point. To clarify the sometimes murky ideas surrounding riparian rights, one first must determine which property owners have riparian rights.
Who Has Riparian Rights?
Generally, a property owner has riparian rights if the property borders a body of water or water flows through the property. For the most part, this 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, it is critical that the property actually "touch" 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.).
For example, in Illinois, it is a rule that "a grant of land bounded on a stream will convey the land to the middle thread of the stream." Rowland v Shoreline Boat & Ski Club, 187 Ill App 3d 144, 544 NE2d 5 (3rd D 1989). Also, in Illinois, "riparian rights apply to all flowing streams whether navigable or non-navigable . . ." Beidler v Sanitary District, 211 Ill 628, 71 NE 1118 (1904). In Indiana, a riparian owner acquires riparian rights to the water from the fee title to the shore. Brown v Heidersbach, 172 Ind App 434, 360 NE2d 614 (1977). Indiana recognizes that riparian rights are traditionally associated with owners of land abutting a river or stream but also includes land bordering a lake or pond. Hutner v Kellog, Ind App 563, NE2d 1338 (Ind Ct App 1990).
An important distinction in Indiana is that while riparian owners still have rights conveyed "to the middle of the stream" in the instance of riparian rights bordering a river or stream, the same does not apply to riparian owners along a lake. Indiana has clearly denied protection of a riparian right to the middle of a lake. Bath v Courts 459 NE2d 72 (Ind Ct App 1984). In Bath, riparian owners had built a pier that encroached upon the riparian rights of neighboring owners. In response, the neighboring owners built a pier within two feet of the first pier and effectively limited its use. Each owner suggested that his or her respective riparian rights extended to the middle of the lake and allowed the construction of the piers. The court held that the riparian owners did not own rights into the middle of the lake and that each owner was entitled to extend their riparian right "only so far out as not to interfere with the use of the lake by others." Id at 76.
Similarly, in Wisconsin, riparian owners are those who have title to the ownership of land on the bank of a body of water. Ellingsworth v Swiggum, 195 Wis 2d 142, 536 NW2d 112 (Wis App Ct 1995). Also, a riparian owner is accorded certain rights based upon title to the ownership of shorefront property. Sea View Estates Beach Club, Inc v Wisconsin Department of Natural Resources, 223 Wis 2d 138, 588 NW2d 667 (1998). Wisconsin also provides that riparian rights include the right to use the shoreline, have access to the waters, the right to reasonable use of the waters for domestic, agricultural, and recreational purposes, the right to construct a pier or similar structure in aid of navigation, and exclusive possession to the extent necessary to reach navigable water. Id.
What Happens if the Body of Water Changes Shape or Recedes?
A common problem or controversy involving riparian rights arises in situations where the boundary of the body of water changes. For example, during dry years, a lake or pond may recede from its banks or a stream may diminish in size. Other changes can result from floods that increase the size of the body of water or forever alter its physical boundary. Generally, if a body of water recedes and reveals new land, then the original owner's riparian property rights extend to the new water line and the property owner gains title to the newly exposed land (often termed "rights of accretion").
A case from Illinois, Linn Farms, Inc v Edlen, 111 Ill App 2d 294, 250 NE2d 681 (4th D 1969), illustrates the concept of rights of accretion. In Linn Farms, Inc, two property owners owned land in a subdivision near Meredosia Lake, an Illinois River lake, and sought to settle a dispute over land exposed by a change in the lake's water level. Due to a series of lock constructions on the Illinois River, the lake receded and thus "created" new land. Relying on the theory of accretion, and the decision in the earlier case of City of Peoria v Central National Bank, 224 Ill 43, 79 NE 296 (1906), the court held that the riparian owner on whose property the new land was exposed gained title to the "new" land. The court also stated that the accretion doctrine applied to lakes and ponds, "regardless of how large or small they may be." Indiana also recognizes rights of accretion and has provided that, "the increase in land caused by earth, sand, or sediment deposits, generates a source of title which usually vests in the riparian owners of the land." Longabaugh v Johnson, 163 Ind App 108, 321 NE2d 865 (Ind Ct App 1975).
Some Wisconsin cases have also addressed the theory of accretion and provide an example of how the rights of accretion relate to the adherence of that state to the public trust doctrine. In one case, the court held that a coal company's riparian rights entitled it to a parcel of land that was created from accretion along the shores of Lake Michigan, even though the state held title to the beds of the lake under the public trust doctrine. WH Pugh Coal Company v State of Wisconsin, 157 Wis 2d 620, 460 NW2d 787 (1990).
What Do Riparian Rights Allow a Property Owner to Do?
Historically, riparian rights were determined by the natural flow theory. Under this theory, riparian owners had a right that ensured the water would continue in its natural course of flow or natural existence. The riparian owners were allowed use of the water, as long as it did not hinder other riparian owners' rights to maintain 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, in other words, would continue to remain as the owners had found it, specifically in the quantity of water present. The focus of this theory was that the riparian owners were guaranteed that the volume of water available to them would remain the same.
Most jurisdictions have moved away from the natural flow theory, especially in the eastern half of the country, and have adopted the reasonable use theory. Under this theory, a riparian owner is guaranteed the reasonable use of the water. The focus of 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 doesn't substantially interfere with the use of another riparian owner. 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. Illinois, Indiana, and Wisconsin have all adopted some form of the reasonable use theory, with various minor modifications.
(NOTE: Western states, because of the aridness of the region and the problems stemming from the struggle to secure adequate access to water, have adopted some form of the prior appropriation theory. This theory grants the first riparian owner to make a beneficial use of the water, a right superior to the riparian rights of subsequent users. This theory has very different implications for riparian owners, but is relevant only in the western half of the country.)
Ultimately, a riparian right allows riparian owner to make reasonable use of the water. A question still remains, however, and brings us to the next section.
What is a Reasonable Use of Water by a Riparian Owner?
As stated above, under the reasonable use theory, a use is reasonable if it doesn't interfere with the reasonable use by another riparian owner. Of course, that definition sheds no light on what exactly a reasonable use is. Unfortunately, there are very few, if any, concrete rules that dictate what constitutes a reasonable use. In most situations, the determination of reasonable use requires a careful analysis of the fact pattern to determine whether the use is reasonable in light of the circumstances.
Factors that are considered are many, and include custom, climate, the size of the water body, the season of the year, the size of the diversion, the place and method of diversion, the type of use and its importance to society, the needs of other riparian owners, the suitability of the use of the stream, and the fairness of the use in relation to the cost the use will impose on other riparian owners. The preceding list is by no means exhaustive and the factors considered vary in each jurisdiction and case.
Access to water is often a key concern of riparian owners. In Illinois, a riparian owner's right of access to the water attaches to the entire shoreline of the property. Gibbons v Clarkson Grain Company, 281 Ill App 3d 529, 667 NE2d 126 (4th D 1996). Illinois also allows each owner of riparian rights to a private non-navigable lake the right to the reasonable use and enjoyment of the surface water of the entire lake. Beacham v Lake Zurich Property Owners Ass'n, 123 Ill 2d 227, 526 NE2d 154 (1988).
Indiana places some limits on riparian owners of lakeshore when it limits riparian owners rights to build a pier within the extension of his shore boundaries only so far out as not to interfere with the use of the lake by others. Bath v Courts, 459 NE2d 72 (Ind Ct App 1984). Illinois guarantees that the flow of water cannot be diverted, increased, diminished, or polluted against the owner's consent. Leitch v Sanitary Dist of Chicago, 17 NE2d 34 (Ill 1938).
Wisconsin provides that riparian rights in Wisconsin are subject to and limited by the public trust doctrine. RW. Docks & Slips v State of Wisconsin and Wisconsin Department of Natural Resources, 244 Wis 2d 497, 628 NW2d 781 (2001). The public trust doctrine gives title of the beds of all lakes and ponds, and of rivers navigable in fact, within the state, up to the line of the ordinary high-water mark, to the state to hold in trust to preserve the rights of the people to enjoy the use of the water. Id. Essentially, the public trust doctrine gives title of the beds of the water to the state to ensure that the public is guaranteed "reasonable use" of the water, including recreational purposes such as boating, swimming, fishing, hunting, and to preserve scenic beauty. State v Bleck, 114 Wis 2d 454, 338 NW2d 492 (1983).
Recreational Use of Water
Currently, a common dispute involving riparian rights is associated with the recreational use of water. Due to the recent surge in outdoor recreation, many states have passed legislation aimed at encouraging riparian owners to allow the public access to water under their control for recreation purposes by eliminating the liability that riparian owners might face to recreational users of their water resources.
Illinois and Wisconsin have both passed statutes that address recreational use of water and the liability associated with it. In Illinois, The Recreational Use of Land and Water Areas Act, 745 ILCS 65/1 et seq., is an example of legislation intended to encourage riparian owners to allow public access to the water they own riparian rights to. Wisconsin has a similar statutory provision, W.S.A. 895.52- Recreation activities; limitation of property owner's liability.
Are Riparian Rights Transferable?
Again, grounded mostly in common law doctrine, riparian rights can be granted, prescribed, and licensed to other owners, especially fellow riparian owners. However, in some jurisdictions, statutes limit the full transferability of riparian rights. The ABKA Limited Partnership (ABKA) case from Wisconsin illustrates one type of limit on transferability of riparian rights. In that case, ABKA had purchased a marina on Lake Geneva and planned to convert the marina into the condominium form of property ownership. ABKA intended to create 407 "units" or "dockominiums," each unit consisting of a four-by-five-by-six inch "lock box" to be located in an office with the configuration of the office similar to a set of small post-office boxes. When someone purchased one of these "units," the purchaser was entitled to "standard riparian rights of owners of waterfront real estate, under Wisconsin law . . ."
Essentially, the purchaser of one of the "lock box units" would be entitled to the same riparian rights to use Lake Geneva as a riparian owner who owned an actual land lot bordering the lake. The Supreme Court held that such a transfer of riparian rights violated Wis Stat § 30.133 that limits the conveyance of riparian rights for purposes other than the right to cross the land to have access to the navigable water. ABKA Limited Partnership v Wisconsin Department of Natural Resources, 255 Wis 2d 486, 648 NW 2d 854. (2002).
Another common illustration of transferring of riparian rights involves riparian owners forming contracts or agreements amongst themselves to build dams, levees, embankments, or flood gates to manage the water. Sometimes this also involves granting a riparian right in the form of an easement. Also, just as with other property rights, a riparian owner can divest all of his or her riparian rights, subject to whatever statutory limitations may apply, if the owner so desires.
What Is the Remedy for Violation of Riparian Rights?
In most situations, the favored remedy for violation of a riparian right is an injunction to halt the violating use. Usually, the injunction will restore the riparian right to the owner. In some situations, if the violation has severely diminished the value of the riparian right or completely eliminated it, as in the case of draining a lake, compensatory damages will be awarded.
So, What Is the Bottom Line?
Reasonableness. As evidenced in the discussion above, the topic of riparian rights is not one that can be summarized in an entirely clear fashion. The underlying emphasis of a riparian right is to allow reasonable use of water. In many situations, the most difficulty stems from the decision of which property owners have riparian rights. Generally, if the land or property borders water, the owner of that land is entitled to riparian rights. Next, the determination of what use qualifies as "reasonable" is also debatable, especially when dealing with multiple riparian owners or riparian owners with conflicting desires. In many instances, a court will base its decision on dated common law precedent or on a few of the statutes that directly address riparian rights concerns. Laws directly addressing riparian rights are increasing, however, as demand for water use increases, especially for recreational purposes. State legislatures are starting to pass statutes that encourage public use of water, always with the underlying goal that the use be reasonable.
© ATG atgc0309vol27