Real estate owners have rights to the available supply of naturally occurring water to their property. How you use that water may affect adjacent property owners. You may never have to deal with the law regarding water rights, but it doesn’t hurt to learn the basics, especially if you own acreage with a well or a stream.
Types of water supply
When it comes to water rights, the law divides naturally occurring water supplies into three categories.
- Watercourses are bodies of water such as lakes, rivers or creeks that pass through or alongside the property.
- Groundwater is underground water, such as what a well draws to the surface.
- Surface water collects on top of the ground in a rainstorm or when snow melts.
The legal rights regarding these types of water vary by state, and the regional availability of water strongly affects them. Eastern states with abundant water, where drought is rare, govern differently than southwestern states, where drought is common and water supplies scarce.
A legal concept known as riparian doctrine commonly governs watercourse rights in the eastern states. The doctrine holds that landowners along watercourses have equal rights to the water supply. Landowners adjoining the watercourse can only take actions that could positively affect water availability for other adjoining landowners.
In southern and western states, a doctrine known as prior appropriation governs watercourse rights. This principle holds that the state owns natural watercourses and has the authority to choose who may benefit from them, including property owners not adjacent to the watercourse itself.
Groundwater rules allow property owners to make reasonable use of the water supply beneath their land, such as from aquifers. A household well is considered reasonable use. However, if a landowner such as a farmer regularly pumps thousands of gallons of water from groundwater, a state water resource agency may require permits and impose usage caps.
An underground river differs from an aquifer and is considered a watercourse.
Surface water rights
A landowner has full rights to benefit from accumulated rain or melted snow on his land. Complications arise if the owner wants to divert the water off his property, affecting neighboring landowners. Again, states and jurisdictions follow different rules.
The natural flow rule says that the originally affected landowner cannot divert surface water onto neighboring property and must find a way to deal with it.
The common enemy rule allows the originally affected landowner to divert the water onto the property of any neighbors as he sees fit.
The reasonable use rule allows affected landowners to divert water as long as reasonable and harm can be averted.
Water rights in subdivisions
The most common water rights issue between owners in suburban subdivisions arises from how surface water is handled.
Suppose substantial water runoff affects property owners along a sloping ground, and none of the owners has done anything unreasonable to affect the flow. In that case, none is responsible to the other owners for any damages the water causes.
If a property owner acts unreasonably in diverting flow onto downstream owners, causing damage, he can be held liable in proportion to the damage his actions cause.
If a homeowner has an irrigation sprinkler system installed or landscape work done that changes the slope and flow of runoff onto neighboring property, the property owner and the installer must ensure that runoff does not negatively affect downstream owners.