Many property owners are fairly familiar with the laws that govern their home from the ground up. Yet, most homeowners overlook the very important concept of riparian rights, or water law. This important area of property rights determines who owns surface and subterranean water found on the property. It also dictates how a property owner, or nearby residents, can make use of a natural source of water. Learn how water rights affect your ability to fully enjoy your property.
The Two Major Distinctions
Our system of water law was inherited from common law and now exists as two separate doctrines. Some states use the theory of riparian law. This system views water as a public resource. However, only bodies of water that are navigable are considered government property. The underlying logic is that the land below a river or lake is state owned land. The state's ownership interest ends at an established high-water mark on land. Therefore, the property beyond the high-water mark may be owned by a private person.
Riparian law allows those who own property adjacent to a river to make reasonable use of the water. Acceptable forms of use include irrigation and consumption. Other forms of use, such as the sale of water, may not be legal in some jurisdictions. In the end, a landowner may use water for his or her benefit as long as it does not prevent use by others downstream.
Utah adheres to the second type of water law theory. Under the prior-appropriations rule, the first person to use the water has rights to it. To qualify for this protection, the user must make a beneficial use of the water source. This includes using it for industry, agriculture or for the home. One can even acquire rights by diverting the water if there is a beneficial use. Once a right exists, the person can continue using the amount of water needed to satisfy the purpose.
The federal government maintains rights in respect to certain bodies of water. Any government land (i.e. an Indian reservation) has the right to water under the reserved rights doctrine. The federal government can also block the appropriated use of rivers. In fact, several Supreme Court cases have supported the federal government's water rights. How federal regulations will affect your state rights to water use depends on several factors.
Taking Water Without a Right
What happens when you start using water without an established right? Such an act is often construed as trespassing. This can subject you to fines or a civil lawsuit. Dealing with water rights is complicated. Speak to a real estate attorney before attempting to use water on or near your property.
Water is scare in Utah. Determining your right to a water source is essential for your home or business. If you need assistance, contact Spencer and Collier, PLLC. An experienced lawyer can help you today!