Riparian Water Rights - United States

United States

In determining boundaries there is a clear distinction between properties that front on navigable and non-navigable waters. Navigable waters are both those bodies of water that are obviously highways of commerce (the Hudson River, the Delaware River, the Ohio River, the Mississippi River, etc.) and those that have been declared by a state legislature as navigable.

In the case of navigable waters, title goes to the average low water mark. The Pennsylvania Supreme Court defined this as the "ordinary low water mark, unaffected by drought; that is, the height of the water at ordinary stages." Appeal of York Haven Water & Power Co., 212 Pa. 622, 62 A.97 (1905). Land beyond the low water mark belongs to the state government in the case of the 13 original states. Lands between the high and low water marks are subject to the police powers of the states. (See United States v. Pennsylvania Salt Mfg. Co., 16 F.2d 476 (E.D. Pa., 1926)). In the case of the original 13 states, upon ratification of the United States Constitution, title to these lands did not change, it remained vested in the several states.

However, these titles became subject to the "Commerce Clause" of the Constitution which created an easement or "servitude" benefiting the federal government for the purpose of regulating commerce on navigable bodies of water. Borax Consolidated, Ltd. v. City of Los Angeles, 29 U.S. 10, 56 S. Ct. 23, 80 L.Ed 9 (1935).

As new lands were acquired by the United States, either by purchase or treaty, title to the beds of all navigable or tidal lakes, or rivers became vested in the United States, unless they had been validly conveyed into private ownership by the former sovereign. McKnight v. Brodell, 212 F.Supp 45. During the territorial period of these lands, the United States held these title "in trust" for the benefit of the future states which would be carved out of the territory. Hymes v. Grimes Company, 165 F. 2d 323. Each of the states were to come into the Union on an "equal footing" with the original thirteen states.

Under the equal footing doctrine, territorial states are vested with the same sovereign title rights to wetlands as the original thirteen states. Pollard v. Hagan, 44 U.S. 212, 3 How. 212, 11 L.Ed. 565 (1845). However, during the territorial period, the United States could convey certain of these lands under the limited circumstances of promoting commerce. Brewer Elliot Oil and Gas Co. v. U S., 260 U.S. 77, 43 S.Ct 60, 67 L.Ed. 140 (1922).

Any questions as to the ownership of these lands was resolved by Congress passing the Submerged Lands Act, 43 U.S.C.A. 1301, which confirmed and quit-claimed title in various states to the beds of all navigable bodies of water. While this act conveyed navigable waters to the states, non-navigable waters outside the 13 colonies remained the property of the United States. Waters subject to the ebb and flow of the tides, even though non-navigable, also passed to the states.

In the western United States, water rights are generally allocated under the principle of prior appropriation.

Of particular interest to many landowners is how Riparian Rights pertain to the installation and placement of piers, dock, wharves and moorings.

There is some variance in how this issue is interpreted from one state to another. And, there is an abundance of case law, including rulings that directly contradict one another. In general, the courts have ruled to the effect that a "Riparian Zone" is delineated by extending property lines into the waterway, such that no landowner may install docks that cross these lines into the Riparian Zone associated with another property.

There is some controversy regarding how far into the waterway these lines extend: In Indiana, the phrase "One point is well-settled...the boundaries of riparian property do not extend to the middle of the lake" is frequently quoted in reference to Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992). This notion differs from interpretations founded on English law, which regarded Riparian Rights as extending to the "middle of the stream".

An argument can be made that the jurists in Zapffe did not fully understand the nature of Riparian Rights as applied to the placement of docks, wharves, piers and moorings. This ruling, as well as many others, seems to be based on two fundamental fallacies: 1)That Riparian Rights as related to docks, etc. are tied somehow to a landowner's title to the soil beneath the water, and 2) That the notion of the Riparian Zone extending to "the middle of the stream" is excessively permissive in a way that might allow a Riparian landowner to block the waterway.

A possible rebuttal to this interpretation may be formed using a simple ontology:

1) The waterway belongs to the public. No individual may take any portion of the waterway for private use.

2) A person who owns land on the waterway may install docks within the confines of his shoreline boundaries extended into the waterway.

Proposition (2) is an exception to Proposition (1). And, if we agree these propositions are "true" we can test other ideas against them.

Q. What are the rights of an adjacent landowner regarding placement of docks in front of my property?

A. The same rights as the public: None. The adjacent landowner enjoys an exception to Proposition (1) that has force ONLY in front of his own property.

Q. How far into the waterway does my exclusive right to install docks extend?

A. Until your rights collide with the (equal) rights of the riparian owner on the opposite bank: In the middle of the waterway.

Q. Does this mean I can build docks out to the middle of the waterway?

A. No. The law only creates an exclusion zone where nobody else can install docks. What YOU can build is further constrained by rules regarding obstruction of navigation, reasonableness, and so forth.

One of the ways this interpretation serves the public interest is that it avoids the problem of a "lawless" space in the waterway where a person might install a structure and claim that nobody has sufficient standing to require its removal. This was the outcome in Zapffe, and forms perhaps the most glaring shortcoming of this case.