Disclaimer: The writer of the material below is not an attorney, and the content is not offered as legal advice. The material exists only as an example of writing quality and is not intended for any other purpose.
Water Rights Related to Real Estate Transactions
The items below were written as flash cards. Side A asks for information, and Side B provides the answer.
Side A: Explain riparian water rights.
Side B: A landowner whose property adjoins a body of water has the right to its use as long as the flow of the water is not impeded or altered, and the water is not contaminated. If water is in short supply, it is allotted according to each owner’s water frontage.
The principle of “Reasonable Use” applies. The rights of one owner must be weighed against the fair and equitable rights of another.
A landowner can not remove the water from the watershed. A riparian right can be sold or transferred only with the land to which the water adjoins.
If the body of water is a navigable stream or river, the state owns the land the water covers, and the owner’s property line extends only to the water’s edge. If a body of water is not navigable, the property line extends to the middle of the body of water.
Side A: Explain littoral water rights.
Side B: Littoral water rights are much like riparian water rights, but they govern lakes, reservoirs, seas, oceans, and other non-flowing bodies of water.
Unlike riparian rights, the property line is set according to the high water mark, and anything below it is state property. A land owner’s property is above that line, and the amount of land can decrease or increase. The amount of land owned can decrease due to erosion, and it can increase as a result of a falling water line.
Littoral rights also govern the use the shore. Normally, the land owner may navigate the water in front of the land and build a dock to facilitate its use. State legislatures may limit the landowner’s use of the land beyond the high water mark and govern its access by the public.
Littoral water rights can be sold or transferred only with the land which the water adjoins.
Side A: Explain the Reasonable Use Rule in connection with water rights.
Side B: The Reasonable Use Rule is common in eastern states and comes into play when determining surface water rights. It differs from the natural flow doctrine which discourages any change in a water course. Reasonable use encourages development of the nation’s waterways.
In the case of ground water, a landowner may make unrestricted use of the water so long as that use does not interfere with other wells or aquifers.
The tendency of the rule is to prevent a new user from affecting an established user.
The meaning of reasonable use is vague and frequently can only be resolved in a lawsuit. When that happens, the court must weigh the harm to one party against the benefits to another.
Critics claim that such litigation ignores the interests of other landowners and the public as a whole. They also state that lawsuits are unacceptably slow when water resources are scarce.
Side A: Explain prior appropriation.
Side B: Prior appropriation is a method for setting water rights. It is common in the western states where water is scarce. A permit holder is allowed to appropriate a limited amount of water if the use is beneficial.
The term prior appropriation means that the first person to use the water has a greater right to the water than later users. Many states regulate the process which determines who has priority for a water resource.
The act of diverting water for a beneficial use creates a water right. A beneficial use can be as varied as the watering of livestock, irrigation, mining, manufacturing, and snowmaking. A beneficial use can also be an environmental purpose such the maintenance of a body of water and the wildlife that use it.
In prior appropriation states, a permit holder may sell the permit. These water rights do not include the land or the water source.
Side A: Explain the Rule of Capture in groundwater rights.
Side B: The Rule of Capture allows each landowner to capture as much groundwater as may be put to beneficial use. The principle also states that the landowner is not liable for removing the water beneath the land of another owner. However, a landowner may not drill at a slant to extract water from the subsurface of another landowner’s property. Also, the effect must be beneficial and not malicious.
One advantage of the Rule of Capture is that it encourages economic development and full use of water resources. A second advantage is that it minimizes the need for government oversight.
The main disadvantage is that a landowner may capture as much water as possible to fill a particular need. For example, the bottling of water can lead nearby landowners to complain that this threatens the aquifer.
As a practical matter, local groundwater conservation districts often serve as a counterbalance to unlimited pumping.
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