Riparian rights

“ In short, as against the demands of commerce, an owner of land adjacent to navigable waters, whose fast lands are left uninvaded, has no private riparian rights of access to the waters to do such things as 'fishing and boating and the like', for which rights the government must pay. ”

“ We are informed that in the States but not in the Settlements riparian rights are held to belong to the State and not to the riparian owners and we have included this subject in List H. Water power has been little developed and there has not been sufficient control of erosion and silting. ”

“ Now the question arises between two states, one recognizing generally the common-law rule of riparian rights and the other prescribing the doctrine of the public ownership of flowing water. Neither state can legislate for, or impose its own policy upon the other. A stream flows through the two and a controversy is presented as to the flow of that stream. ”

“ As many features of the common law with regard to the rights of riparian owners were borrowed directly from the civil law, (Hale, De Jure Mar. P. I., c. 6, p. 28,) it would not be strange if the rule relating to lakes and ponds came from the same source. It was recommended by the same reasons that applied to fresh-water rivers and streams. When land is bounded by a lake or pond, the water, equally as in the case of a river, is appurtenant to it; it constitutes one of the advantages of its situation, and a material part of its value, and enters largely into the consideration for acquiring it. ”

“ In passing, attention is directed to the fact that some of the very lots in controversy in this cause, and as to which riparian rights are now denied, were allotted by the commissioners upon a division of water lots owned by persons incapable of acting for themselves, under the proceedings provided for in the Maryland statute, which clearly, as to such persons, negates the conception that their riparian rights had been or could be destroyed by the involuntary surrender of their property under the operation of the statute. ”

“ The Supreme Court of the territory sustained the appropriation and distinctly held that the common-law doctrine was not applicable to the conditions in the territory and never was in force there. On the latter point the court said (7 Utah, 225, 26 Pac. 291) :
'Riparian rights have never been recognized in this territory, or in any state or territory where irrigation is necessary; for the appropriation of water for the purpose of irrigation is entirely and unavoidably in conflict with the common-law doctrine of riparian proprietorship. ”

“ The purpose of the law is to secure to each riparian owner equality in the use of water as near as may be by requiring each to exercise his right reasonably and with due regard to the rights of others similarly situated. ”

“ Thus California set itself apart by its effort to reconcile the system of riparian rights with the system of appropriation, whereas other arid states rejected the doctrine of riparian rights forthrightly and completely.
The Twentieth Century inducted new parties into the old struggle. Gigantic electric power and irrigation projects succeeded smaller operations, and municipalities sought to by-pass intervening agricultural lands and go into the mountains to appropriate the streams for city supply. ”

“ But the time may come when it will be deemed indispensable that flowing wells should be brought under Government control, or their product be subject, as in the case of surface water, to riparian rights. The pastoralist who has spent several thousand pounds in sinking a successful bore not unnaturally claims the water issuing from it as his own property; but public policy may require that after diverting so much as may be requisite for his reasonable individual uses the remainder shall be made available for the occupiers of neighbouring lands. ”

“ Such water-power is everywhere regarded as a public right, and fisheries of the kind, even in waters not navigable, are also so far public rights that the legislature of the State may ordain and establish regulations to prevent obstructions to the passage of the fish, and to promote the usual and uninterrupted enjoyment of the right by the riparian owners. ”

“ But I think that where it is simply proposed, as is the case with many, if not all, the lots between the Long Bridge and the Arsenal Grounds, to appropriate the riparian rights simply by an arbitrary line running along the edge of the water on the map, thereby cutting off all wharves and buildings thereon upon the theory that none of the riparian rights segregated by the line were private property, this is but an appropriation of private property, requiring just compensation. ”

“ The idea being that conditions vary so tremendously—just as you have heard from the Governor of Mississippi and the Governor of Illinois, the latter of whom told you about a monopoly stepping in and stopping the State development of the water-power along one of their streams. Such a condition is absolutely impossible in the West, because that old law of riparian rights does not apply; there is no law in the West whereby we are compelled to allow the water in the streams to flow by your property undiminished in quantity and undefiled in quality. ”

“ It was also remarked that, upon the question how far the title of the owner of land extends bounding upon a river actually navigable, but above the ebb and flow of the tide, there is a diversity in the laws of the different states; and that the titles and rights of riparian or littoral proprietors in the soil below high-water mark are governed by the laws of the several states, subject to the rights granted to the United States by the constitution. ”

“ It should be noticed that rights of the public may be subject to private rights. Where the river is navigable, although the right of navigation is common to the subjects of the realm, it may be connected with a right to exclusive access to riparian land, the invasion of which may form the ground for legal proceedings by the riparian proprietor (see Lyon v. The Fishmongers' Company, 1876, 1 A.C. 662) . There is no common-law right of support by subterranean water. A grant of land passes all watercourses, unless reserved to the grantor. ”

“ All riparian owners adhere stoutly to their just rights. It must be remembered that the rights of the public are limited to passage along the navigable rivers and the navigable broads, and the use of the banks of navigable waters for mooring purposes and for towing. ”

“ Hence has arisen the old African fiction of underground rivers, which is true to the extent that no man has far to dig before he finds water. It is rather with such tank- and well-sinking that a water expert should deal, and with the regulation of the present ridiculous apportionment of water rights. No serious work can be done in this department till the State assumes the right of distributing water, and has it in its power to prevent the riparian owner from following an obstructive course to the detriment of his neighbours. ”

“ The contracts for the sale of water lots with riparian rights attached, the reports of the surveyors, and the action of the commissioners, all blend into a harmonious and perfect whole, working from an original conception to a successful consummation of a well-understood result. The contrary view produces discord and disarrangement, and leads to the supposition either that the plan of a street, cutting off riparian rights, was devised in ignorance of its legal result, and, of course, I have not the audacity to make such suggestion as to Washington and Jefferson and Madison, and Mr. ”

“ The rights of riparian proprietors where the flow of water is artificial rest on a different principle. s the artificial stream is made by a person for his own benefit, any right of another person as a riparian proprietor does not arise at common law, as in the case of a natural stream, but must be established by grant or prescription. ”

“ If the riparian owners were allowed to tap the pond at different places, and draw off the water for their own use, serious consequences might arise, not only in connection with the public demand for the purposes of navigation, but between the riparian owners themselves as to the proper proportion each was entitled to draw,-controversies which could only be avoided by the state reserving to itself the immediate supervision of the entire supply. ”

“ We are of opinion that an increase in the value of the remaining portion of any parcel of land caused by its frontage on the widened river, carrying a right of immediate access to and use of the improved stream, would constitute a special and direct benefit within the meaning of the statute, as distinguished from a benefit common to all the lands in the vicinity, although the remaining portions of other riparian parcels would be similarly benefited. ”

“ Any other rule would leave riparian owners continually in danger of losing the access to water which is often the most valuable feature of their property, and continually vulnerable to harassing litigation challenging the location of the original water lines. ”

“ Landowners may build embankments, dykes, or other obstructions to stop the flow of surface water upon their land. Although it appears that under Missouri law a riparian owner may not dam a watercourse so that it is obstructed or the lands of another are flooded, [2] no authority has been brought to my attention which would indicate that the obstruction of drainage by raising the water level of a stream confers a cause of action. I had not supposed that just compensation requires the Government to pay for that which a riparian owner may freely do under state law. ”

“ The fundamental question as to the rights of holders of land under tide waters does not present the conflict of two vitally important interests that exists with regard to fresh water streams. There the needs of water supply and of drainage compete. ”

“ We recognize in the reclamation of our arid lands one of the greatest factors in the future development of the State, because of the million acres of fertile lands that can and should be reclaimed by irrigation. Recognizing all vested rights, we encourage the conservation, storage, and equitable distribution of natural and flood waters of streams, artesian wells, springs, rainfall, and other sources of water supply. ”

“ In this case there is no riparian owner except the United States, and the record does not show that either of the parties even occupy along the margin of the stream. The lands being open to appropriation the rule of time is the rule of right, and the first taker is to be protected in his entry and possession. ”

“ We do not perceive why North Water street should have been adopted as the northern limit upon the old shore, as the basis in making the division, as it appears from the evidence and maps that the alluvial accretions extended much further north. The northern limit on the old shore should have been carried as far as the new-made land extended, as each riparian proprietor was entitled to his proper share, and it was essential that the entire line be regarded, in order that each might obtain his proportional part. ”