Water Music and Water Rights
Handel’s Water Music is one of the most famous pieces of classical music. The Water Music is actually about 21 orchestral pieces, which usually are published in three suites. But many people do not know that the music was composed for performance on water.
The Water Music was composed for King George I. At its premiere on July 17, 1717, a 50-member orchestra, performed the music on a barge while floating up the Thames, with Handel, himself conducting.
King George I and a group of nobles partied as they cruised upstream on another barge. The King was so pleased that he demanded that the suite be performed multiple times, so the musicians played on the barge in the water for four hours.
News reports of the day tell this event was such a spectacle that the Thames was blocked by barges and boats. That makes me wonder whether the rights of adjacent landowners were affected by this spectacle.
In much of the United States and many countries whose law is based upon English common law, landowners whose properties abut a body of water have water rights. This article generally describes some of those water rights in the United States.
What Real Estate Do You Own?
Normally, property owners know what land they own. They have a deed with a legal description and a survey which clearly shows their property line.
For waterfront property, sometimes it is not as clear what a property owner owns. For natural bodies of water, the visible boundaries of the land can change due to flooding, drought, or accretion.
This may differ depending upon whether the waterway is navigable, whether it can be used for transportation. The Maryland Court of Special Appeals stated “[T]itle to all navigable waters and to the soil below the mean high-water mark of those waters is vested in the State….” Thus, navigable waters (and the land below them) belong to the public. Owners of land adjacent to navigable waters usually only own the land up to the ordinary high water point.
If the water is not navigable, then traditionally, the adjacent property owners own up to the middle of the waterway.
Over time, erosion might wash away part of the boundary of a stream or river. On the other hand, accretion, or deposits along the shore, might add silt and expand the shoreline and possibly increase the amount of property owned by adjacent property owners. However, if the change in the amount of land is sudden, as recently occurred with lava flow in Hawaii, then under traditional rules, the neighboring property owners do not own the newly created land.
Different rules might apply when the body of water is an artificial lake or in the common areas of a subdivision. Or, a local or state law might change the traditional ownership rules.
These and other circumstances can result in boundaries that don’t follow the ordinary rules. Therefore, owners of property adjacent to bodies of water should consult with a real estate attorney and surveyor to determine what property they own.
What are Riparian Rights?
In the Eastern United States, most owners of property adjacent to bodies of water will have riparian rights. Riparian rights date to the settlement of the United States. Most settlements in the Eastern US follow English law and recognize these rights.
Traditionally, riparian rights related to flowing water, such as creeks, rivers, and streams. Littoral rights applied to water on the shore of an ocean or lake. However, nowadays, most people refer to all both riparian and littoral rights as “riparian rights.”
Riparian rights are based upon the concept of res communes or a “common thing.” Thus, under riparian rights, no one person owns the water rights, but rather, they have limited rights to use the water in a way that does not interfere with others’ rights.
Under riparian rights, property owners who are adjacent to bodies of water have rights to their use. Such rights traditionally include the right to use a reasonable amount of water for drinking, agricultural, and some industrial uses. In some areas, riparian rights also include the right to use the water for recreation.
Riparian rights do not permit any owner to use water in a way which interrupts the flow of water or quantity of water. Nor do riparian rights permit a property owner to unreasonably interfere with the rights of downstream property owners.
What is the Doctrine of Prior Appropriation?
Some states don’t have riparian rights. Riparian rights work well where water is plentiful, as in most of the Eastern United States. However, they don’t work as well in the west where water is scarce. Therefore, in the Western United States, a different water rights concept, the doctrine of prior appropriation, developed.
The prior appropriation system, it is “first in time, first in right.” The first person who takes the water from the stream or creek has the rights to that water on an ongoing basis.
Over time, the prior appropriation system has evolved. States have adopted laws governing water allocation. Colorado even has Water Courts, which adjudicate water rights. Prospective buyers now need to consult with an experienced attorney to understand their rights before buying a property.
Real Life Example -- Payne v. Coulbourne
The Maryland Court of Special Appeals grappled with riparian rights in Payne v. Coulbourne. There, the Army Corps of Engineers had dredged the Wicomico River to create an eight-acre peninsula. Over time, accretion created tidal flats and marsh between the peninsula and the landowners’ property.
The landowners claimed they owned the tidal flats and part of the peninsula, to access the river. The court agreed. It didn’t matter whether the accretion was natural or artificial. All that mattered was that the landowners’ access to the river, as it existed before the accretion, was preserved.
Know Your Rights
People frequently pay a premium for waterfront property. For many, the sound of flowing water or waves hitting the shore can be music to their ears. But both nature and human actions can cause shoreline changes, making it unclear what rights property owners have.
Many states have laws which modify the traditional riparian or prior appropriation rules. States also may have laws addressing concerns specific to those states. States also differ in the method for conveying certain water rights, including whether certain rights are automatically conveyed in a deed for the adjacent land.
Plus, although not discussed in this article state or federal environmental laws may significantly impact a property owner’s use of land or water in or adjacent to it. For instance, in Maryland, there are laws protecting the Chesapeake Bay watershed from pollution, which can impact land located far from the bay.
Water rights is a complicated area involving federal, state, and private rights. These rights can be as unique as the adjacent real estate, itself, and cannot be described in a single article.
Prospective buyers should consult with an experienced attorney before buying waterfront property or any property that depends upon a stream, river, or lake for agricultural or industrial use. After buying real estate, owners should consult an attorney before making changes that could impact existing ponds, streams, or marshes. Owners also should consult an attorney if natural or man-made changes alter their ability to use or access water adjacent to their land.
© 2019 by Elizabeth A. Whitman
Any references clients and their legal situations have been modified to protect client confidentiality
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