Home Buyers – Page 13 – Real Estate Info Guide

The other evening some friends and I were flicking through the streaming TV menus when we saw a new documentary about California and water rights. We started talking about this film and moved onto the movie “Chinatown,” which was about water rights in California in the 1920s. Eventually, we ended up wondering who owns bodies of water. None of us had any idea and it turns out that the ownership of bodies of water is incredibly complex. Can You Own A Body Of Water? Under the concept of common law, surface water is a resource that should be available to everyone, therefore you cannot own an actual body of water. However, in some cases, you may have the rights to utilize the water and to own the land under it. When it comes to understanding what belongs to you, what you can use, what you can do, and what rights other people may have in regard to a body of water on your land there are several factors at play. Bodies Of Water: What’s Yours And What’s Not Water ownership, access, and use are regulated by a complicated patchwork of Federal, State, and local laws that vary in their focus depending on where in the country you are. On top of that, there may be environmental regulations, zoning issues, and other rules that supersede the water laws and affect your rights and responsibilities. Finding a clear answer on the internet to settle our discussion over whether you can own a body of water was next to impossible. So. In case you ever need to know the what’s what of ownership, rights, and responsibilities when it comes to bodies of water, here is a quick(ish), plain language guide. I’ll steer away from quoting laws and regulations and stick with simple bite-sized chunks of information. The first thing you need to know is that in Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming they use the “prior appropriation water rights” system, while in the rest of the states the “riparian rights” system is used. First, the riparian system. What Kind Of Body Of Water Are We Talking About? When you are looking at the law, bodies of water are not defined in the same way as they are in simple language. It isn’t about whether the water concerned is a lake, an ocean, or a pond. When trying to establish ownership, rights, and responsibilities, the legal distinction is between whether or not the body of water is considered, by law, to be “navigatable” or not. Navigatable Waters To be considered navigatable, a body of water must meet all of the following criteria: The water is used, has been used in the past or could be used in the future as a “highway for commerce” This use is possible under the natural conditions of the body of water The use could take place using regular modes of water transport All of these criteria were met when the US became an independent nation Basically what this means is that if the water flows and you could sail a boat from one place to another in order to carry out some kind of business, then the body of water is navigatable. So the ocean and rivers and lakes large enough to sail a boat for the purposes of trade are navigable. An important point to note here is that if a body of water is legally navigatable for commerce then the public have equal rights to enjoy the water for pleasure. A person cannot own a navigatable waterway, nor can they own the land underneath the water or control anyone's right to the use of the water. This derives from the British legal concept of common law in which some things are important for the “common good” and thus unable to be owned by one person or entity. All people have the right to access and “enjoy” the water for the purposes of domestic use and recreation and the state owns the land under the water. You can think of it in the same way that we cannot own sunlight or air. Non-Navigatable Waters All other bodies of water, such as smaller lakes, and ponds are considered non-navigatable. In the case of non-navigatable waters, the land under the water can be owned by a private individual or a company and the owner has the right to use the water for domestic and leisure, but not commercial use. This means that is you were to purchase a property with a lake, and you owned all of the lands around the lake, you would also own the land under the water. You could swim, use the water for domestic, household purposes, but you would not be allowed to drain the water for any other use without additional permitting. Your Rights And Responsibilities Once you have established whether the body of water is navigable or non-navigable you can work out what you own, as well as what you can do and what you cannot do with the water. Large Navigable Lakes And Oceanfront Properties If your land borders a large, navigable lake or the ocean you have what are called Littoral rights. In practical terms, assuming there are no additional regulations, this means you: Own the land only as far as the median high tide line. Past this point, the land belongs to the state. May build a jetty, wharf, or similar structure that goes into the water, providing it complies with local permitting regulations and building codes. Have the right to unrestricted access to the water. This includes the right to an unobstructed view if there is one when you purchase the property. Can have free and unlimited recreational use of the water but you cannot remove large quantities of water for your use. Cannot restrict public enjoyment of the water. Must not do anything that causes the enjoyment of others to be impacted. Riverfront Properties The owner of a property that includes a bank that borders a flowing river has what is known as Riparian rights. With riparian rights you: Own the land up to the edge of the riverbank, but not the riverbed itself. Can build a jetty from your land into the water Use the water for domestic use such as watering your garden, providing fluids for animals etc. Have the right to unrestricted access to the water. Must not take part in any activity that impacts the use of others either directly in front of your property or up or downstream. Cannot pump water from the river or divert the flow for commercial use without additional permitting. Smaller Lakes, Ponds, Streams And Other Non-Navigable Waters The land under a non-navigable body of water can be privately owned and the person who owns the land under the water also has control of what happens in the water above their land. So, in the same way as a person walking on private land, without permission or legal authority is trespassing, a person who uses a body of water where the land underneath is privately owned is also guilty of trespass. It is important, when buying a waterfront property, to establish whether you will have littoral, riparian or any other rights to the use of the water and who has ownership of, and responsibility for the land underneath the water. You should also be careful to establish whether anyone else has any pre-existing rights to the water. For example, in some cases, the public has had access to use a body of water that is on private land and this access has been in place for many years and an attempt by a new landowner to restrict public access could be overturned by the courts. Prior Appropriation Water Rights This system allows the first person to take a particular amount of water from a water source has the right to continue using that water for that purpose. In theory, this means that you could have a body of water on your land and other people have the right to take a fixed quantity of the water for their own use. With this system, the first person to use the water has the right to use that same amount of water, from the same source, each year and this person is the “primary appropriator.” Any remaining water is also subject to appropriation rights with the second person to begin using it being given a specific allocation and so on. In theory, more prior appropriation rights may be given than there is water available, in which case some people, further down the ladder, may not receive their allocation of water at all. Final Thoughts So there you have it. You cannot own a body of water but sometimes you can own the land under the water and have the right to use it. Other people may be entitled to use the same body of water and in these cases, you cannot do anything that would impact their enjoyment About The Author Geoff Southworth is the creator of RealEstateInfoGuide.com, the site that helps new homeowners, investors, and homeowners-to-be successfully navigate the complex world of property ownership. Geoff is a real estate investor of 8 years has had experience as a manager of a debt-free, private real estate equity fund, as well as a Registered Nurse in Emergency Trauma and Cardiac Cath Lab Care. As a result, he has developed a unique “people first, business second” approach to real estate. Check out the Full Author Biography here. This article has been reviewed by our editorial board and has been approved for publication in accordance with our editorial policy.