Overlying rights refers to the right of a real estate owner to take the ground water below the surface of their land.

Water belongs in one of two categories:

  • surface water, consisting of watercourses, lakes, springs, marshes, ponds, sloughs, and any other water flowing over the surface of the earth caused by rain, snow, springs or seepage; or
  • ground water, consisting of percolating, subterranean bodies of water located in underground basins.

Holders of rights to withdraw surface waters have riparian rights.

Related article:

Word-of-the-Week: Riparian Rights

Holders of rights to pump ground water have overlying rights. An overlying landowner has rights to an allotment of water which is measured by the ground water in the basin over which their land is located.

Overlying landowners have equal rights against other overlying landowners to a basin’s ground water percolating underneath their land, subject to their reasonable use of the water.

Overlying and riparian rights are legally analogous to one another, except for the limitations placed on overlying landowners to use ground water and riparian landowners to use surface water.

A landowner’s use of water in the exercise of their riparian or overlying water rights has priority over water rights held by appropriators licensed by the state.

Riparian and overlying water rights are part of the ownership of land, and run with the title to the land when it is sold. Water rights are not personal property which can be assigned or used for the benefit of other property.

Related case:

Are prescriptive rights to groundwater forfeited if the holder does not assert their priority during a surplus?

History of the term

“Overly” finds its root in the Old English term “oferlice,” meaning “excessively.” Until 20th century, the word was mostly in Scottish and American English and was often regarded as an “Americanism” in the United Kingdom.

It was first used to reference above or beyond a proper amount or degree in the early mid-15th century.