When our country was first settled, the most ideal land upon which to build a home or business was usually next to a body of water, whether it be a lake, river or stream. As towns grew and access to water diminished, determining who had rights to use those rivers and streams became an issue. As a result the eastern portion of the
One’s right to use flowing water arises from his ownership of adjoining, or riparian, land. While the system has been modified over the years, especially in response to local needs, riparianism can be divided generally into two theories, “natural flow” and “reasonable use.” According to the natural flow theory, each riparian owner has a right to have the water flow past his land in the same quantity and quality that it flowed without human interference.
Under this theory, no owner can use the water in such a way that alters the natural flow to the detriment of another owner. For example, suppose you and your neighbor have a stream passing through each of your properties. Since both of you have riparian rights in the flowing water, under the “natural flow” rule the owner of the upstream land may not dam the stream to create a pond without the consent of the downstream landowner. Since this theory restricted economic uses such as manufacturing, irrigation, and power, the courts created the doctrine of “reasonable use,” which provides that each owner can use the water in a reasonable manner, considering the needs and uses of other riparian owners.
In both types of riparian systems, those using the water first have no greater rights than later users, and failing to put the water to use does not adversely affect one’s rights.
But what happens when a property owner improves or alters his land in some manner and diverts surface waters onto his neighbor’s property? Is that property owner liable for the injury caused to his neighbor’s property? The general rule is no, the neighbor has no actionable injury even if the damage to his property is substantial. But suppose for example the property owner diverts surface water onto his neighbor’s property, not by means of grading the land, but by a drain, ditch or other artificial means. Under these circumstances the property owner is absolutely liable for the damage if the water is diverted from where it would otherwise have flowed naturally.
I’ve only touched upon a few of the many different theories of property rights in water, but the basic concept is that even though one has rights to water flowing past or through his property, those rights are not absolute; and if you affect the flow of the water to the detriment of other owners, you may get soaked.
– Denise Ciampitti