Rights, Riparian

Evolution of the Riparian Model

Understanding the traditional form of the riparian water law model helps in the modern legal understanding of water rights and use. The content of

the riparian structure differs from the "natural flow" traditions of the common law. Common law is made by judges, and is built through published decisions, although legislatures can add statutes. Historically, courts acted within common knowledge of the physical world. Thus, the courts considered a stream to be a recurring flow of water that created a bed for the water's flow and banks to confine the flow. The dry land on both sides is riparian to that stream and geographically extends to the rim of land draining into the stream.

The courts called the traditional rule the "natural flow doctrine." Under this doctrine in its purest form, the courts asserted the riparian landowner (the owner of riverside land) was entitled to receive and return water to a stream as it came naturally to their land: that is, the landowner could use the stream without changes to its flow, volume, temperature, and quality. But as water demands increased in agriculture and industry, the courts modified the rule: some say courts adopted a new rule. In any case, the courts expanded the reasonable use idea so that maintaining the purely natural condition of the stream was no longer required.

It should be remembered that under common law, the riparian landowner's interests in the river's water was protected. Yet the common law did not provide much protection to streams as public resources. Other legal rules provided that flowing water belonged to the public and that states could not transfer certain public waters to private parties in violation of public trust . Although these rules put few limits on riparian rights concerning streams, some other legal rules restricted what a riparian landowner could do with a stream. The riparian controlled access to the stream, but could not admit an unlimited number of users nor let an unlimited amount of water be transferred elsewhere. Doing either would be considered "unreasonable" at the least.

Mill Privilege.

Although the riparian landowner had no absolute control over access, sale, and use, one very significant exception existed, thereby conferring absolute power on a few riparian landowners. This was the mill privilege. A riparian landowner could receive a right to dam a stream to turn a mill wheel

and thus give a local monopoly to the owner. This privilege—exceptional in riparian states—was to mold an entirely different body of law, called the prior appropriation doctrine, which better suited the arid western states.

Today's Framework

Legal doctrines change over the course of time. In modern water law, legislatures are playing a more active role, in humid as well as arid states, because water supply cannot keep pace with human demand. Permits are increasingly required. Riparian landowners still have their powers and rights, but they are not what they were even a few decades ago. Reasonable use today in law emphasizes the full and beneficial employment of the stream for economic and other advantages that will insure the stream's living character.

SEE ALSO Law, Water ; Prior Appropriation ; Rights, Public Water.

Earl Finbar Murphy

Bibliography

Getches, David H. Water Law in a Nutshell, 3rd ed. St. Paul, MN: West InformationPublishing Group, 1997.

Tarlock, A. Daniel. Law of Water Rights and Resources (Environmental Law Series). NewYork: Clark Boardman Callaghan, 1988 (with annual supplements 1989–2002).