Word-of-the-Week: Riparian Rights

What are riparian rights?

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. [Restatement of the Law 2d Torts §§841, 845, 846]

Holders of rights to withdraw surface waters have riparian rights. Holders of rights to pump ground water have overlying rights.

The legal rights to extract and use water are based on priorities and are classified as:

landowner’s rights consisting of both riparian and overlying rights;
appropriative rights to withdraw water under license from the state; and
prescriptive rights to withdraw water legally entitled to be used by others.

Riparian rights refer to a landowner’s appurtenant property right to withdraw water from an adjacent river or lake for beneficial use on their riparian land.

Overlying rights refer to a landowner’s right to the use of ground water below the surface of their land.

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. [City of Barstow v. Mojave Water Agency (2000) 23 C4th 1224]

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.

Land entitled to water rights

Riparian land is a parcel of real estate located both adjacent to a water source with surface water and within the watershed (basin) of the surface water.

A parcel is considered riparian land if it:

touches the surface water; or
was part of a larger riparian parcel and retained its riparian rights by reassignment when parceled.

The amount of frontage in actual contact with the surface water of a river or lake does not determine whether a parcel is considered riparian land. For example, a 40-acre tract of land, of which only 250 feet abuts a stream, is considered riparian land. [Joeger v. Mt. Shasta Power Corp. (1932) 214 C 630]

To constitute riparian land, a property needs to also be located within the watershed surrounding the watercourse. If a portion of riparian land extends outside the watershed, only the portion within the watershed is entitled to use the water from the watercourse.

Surface water used on land located within its watershed will eventually return to the watercourse, minus the water consumed, in a natural process called percolation. Additionally, rain falling on lands within the watershed of a watercourse feeds the watercourse. Thus, a riparian land owner can only divert water to the portion of their land which will allow the water to return to the watercourse.

Land lying within the watershed of one stream above the point where the two streams unite, called a confluence, is not considered to be riparian to the other. Further, the surface flow (river) below the confluence of two streams is a new and entirely different watershed, justifying a new name for the river below the confluence, as is the practice in Mexico to distinguish the watershed. [Anaheim Union Water Co. v. Fuller (1907) 150 C 327]

Riparian rights are appurtenant

The right to use riparian water is an appurtenant (incidental) right attached to and transferred with the ownership of real estate. [Calif. Civil Code §§658, 662]

Each riparian landowner is entitled to a reasonable use of the natural flow of stream water running through or adjacent to their land. However, the quantity of the water withdrawn is subject to an upstream riparian landowner’s priority right to first withdraw water for reasonable use on their upstream riparian land.

Additionally, a riparian landowner cannot divert stream water to nonriparian lands, even if they are entitled to use the water on their riparian land, since they are subject to the rules of percolation within the watershed. The landowner’s riparian right to use the surface water is appurtenant to the land bordering the stream, not other lands not bordering the stream. [Gould v. Eaton (1897) 117 C 539]

Reasonable use and domestic priorities

Riparian rights are limited by the requirement that water taken from a stream is to be put to a reasonable and beneficial use. No one has a protectable interest in the unreasonable use of water. [Calif. Constitution, Article X §2]

Reasonable and beneficial uses include:

domestic uses; and
agricultural irrigation.

Whether a particular use of water is reasonable and beneficial is determined on a case-by-case basis. [Calif. Constitution, Article X §2]

While riparian landowners hold the same classification of legal rights to water, they are to share the water, giving priority to domestic uses over other uses, including agricultural irrigation.

The sharing of water between riparian landowners, with priority to upstream owners, is based on a tiered variety of priority and subordinate uses across the entire group of riparian owners, called correlative rights. Each landowner holds correlative rights within the riparian class of water rights.

Water rights are usufructuary

Owners of land and water providers (appropriators) who hold water rights do not legally own water. They own rights to the reasonable use of the water. Their right-to-use is subject to change when circumstances controlling the use of water change, called usufructuary rights. It is a sort of “here today, gone tomorrow” approach to access and possession.

If a riparian land owner is not using water, downstream riparian land owners are entitled to the full flow of the water, subject to the upstream riparian owner’s future reasonable use. Thus, the lack of use of the appurtenant right to water is not lost by mere nonuse alone.

However, an upstream riparian owner who is not using their allotment of water may not divert water to nonriparian land since the water would not percolate into the watershed. [Gould, supra]

Competing water rights and allotments

In 1943, California established the State Water Resources Control Board (Board). The Board acts as a referee for all disputes over water rights. The Board advises the California courts on the appropriate water allotment each of the disputing parties is entitled to take. Also, on a request from holders of water rights, the board itself may hear legitimate disputes between the parties to determine the water allotment each party is entitled to take. [Wat C §§2000, 2501]

When the Board determines the allotment of water to each holder of riparian rights, the needs of all riparian landowners within the watershed are taken into account. The amount of water allocated to a riparian owner is individually determined based on numerous factors, such as the need for domestic use, irrigation and generating power.

For example, an upstream owner of 66 acres of riparian land suitable for profitable irrigation is entitled to a smaller proportion of the water from a watercourse running through their land than a downstream owner of 96 acres of riparian land also suitable for profitable irrigation. [Half Moon Bay Land Co. v. Cowell (1916) 173 C 543]

Related article:

Does an agricultural users’ water rights constitute an entitlement to a particular amount of water?

Termination of riparian rights

Consider riparian land fronting a river or lake which is parceled. One of the parcels created has no frontage on the watercourse. The parcel is later conveyed without a provision in the deed transferring the riparian rights.

Here, the parcel conveyed without reference to its riparian rights loses its riparian land status forever. The conveyance of a parcel, severed from a larger parcel which has riparian rights, terminates the conveyed parcel’s riparian rights unless the rights are transferred by the deed which severed the parcel.

Even if the severed parcel is eventually conveyed to waterfront owners of portions of the original riparian tract, the severed parcel’s status remains nonriparian. [Anaheim Union Water Co., supra]

Appropriation and prescriptive rights by non-riparian owners

The right to the use of water located within the state of California may be acquired by appropriation by applying for a permit from the Board. [Wat C §102]

On the approval of an application for an appropriation permit by the Board, the permit is issued granting the appropriator the right to use water only to the extent and for the purpose described in the permit. [Wat C §1381]

Waters flowing underground or surface waters flowing in natural channels in excess of the entitlement of riparian, overlying and previously appropriated water rights are considered the public water of the State of California. These excess waters are subject to appropriation by anyone. [Wat C §1201]

Prescriptive rights to the use of water can be established when a person wrongfully appropriates nonsurplus water openly and adversely for an uninterrupted period of five years, and does so without documentation or evidence of a legal right.

Riparian and overlying owners may interrupt anyone trying to obtain prescriptive rights by continuing to use their allotment of water. [City of Barstow, supra]

History behind the word

According to the Merriam Webster Dictionary, the word riparian comes from the Latin word riparius deriving from ripa, meaning “bank” or “shore.” It was first used in English in the 19^th century.

Definition from CAG

Riparian rights – The right of a real estate owner to take surface water from a running water source contiguous to their land, such as a river or stream.

[1] The right to take water may be acquired by appropriation. The appropriator of water diverts water from a river or watercourse to their real estate for reasonable use.

[2] Also, an individual may obtain prescriptive rights in water by wrongfully appropriating nonsurplus water openly and adversely under a claim of right for an uninterrupted period of at least five years.

[3] Riparian land is a parcel of real estate located both adjacent to a water source with surface water and within the watershed of the surface water.

[4] A parcel is considered riparian land if it: