riparian rights
Riparian rights are a system of rights and duties that determine the reasonable use, duties, and allocations of water to owners of waterfront property. Riparian rights are rooted in English common law, so they are typically implemented in former British colonies such as the eastern United States, Canada, and Australia. In principle, these rights ensure that riparian owners can make reasonable use of water adjacent to their property while protecting the rights of other riparian owners.
Riparian Rights
Thomas Strong, P.L.S.
Laws with respect to the claims of ownership of lands under bodies of water and waterways have its foundation in English common law. U.S. National Water Commission, A Summary-Digest of State Water Laws, p.3, 1973.
While England recognized a public interest in all waters affected by the ebb and flow of the tides, all fresh water inland lakes and streams above tidewater were classified as private waters in which the public had no rights. Thus, under English common law, the public's ownership interest extended only to the bed of the lakes and streams that were subject to the ebb and flow of the tide. Barney v. Keokuk 94 U.S. 324, (1876).
Those bodies of water and waterways which were subject to the ebb and flow of the tide were considered to be" navigable waters" under English common law. The English crown owned the bed to the navigable waters in trust for the public use. The bed of non-navigable waters, (private), was owned by those who owned the land adjacent to or upon which the non-navigable water flowed.
As a result of the American Revolution, each state acquired absolute ownership of all land beneath their respective navigable waters which had been held by the English sovereign under the so called "public trust doctrine". Shively v. Bowlby, 152 U.S. 1, (1894).
New states admitted into the Union since the adoption of the Constitution have the same rights as the original States in the tide waters, and the land under them, within their respective jurisdictions. The title and rights of riparian or littoral owners in the soil below the high water mark are governed by the laws of the states, subject to the rights granted to the United States by the Constitution. Skelton on the Legal Elements of Boundaries and Adjacent Properties, Second Edition, (1997).
Navigability
In determining riparian ownership it is important for the land surveyor to determine whether the waterway is navigable or non-navigable. Basically the surveyor needs to determine if the waterway is navigable- in- law or navigable- in- fact. Tidal waters are generally considered navigable-in-law, if said waters can serve some useful commercial purpose. This is according to the Federal definition.
Navigable-in-law is based on the English common law definition of what waters were considered navigable and include only those waters, which are tidal.
Navigable- In-Fact pertains to whether or not the waterway has ever been used for trade or commerce, or other valid purposes under state law. Also, a determination of whether or not the waterway is susceptible to the use of the public applies. A great deal of time often results in research in order to determine this type of navigability. In non-tidal waters, navigability for title purposes generally is a question of navigability-in-fact.
In the United States a general rule is that riparian owners along tidal, navigable waters own to the high water mark. This also applies where the water is tidal but not navigable. However along navigable, non-tidal rivers the laws of the state you are in would apply.
Along non-tidal, non-navigable waters, the riparian owners generally hold the title to the bed. Along tidal or navigable waters the title to the bed in generally held by the state for the benefit of the public.
In tidal waters, navigability for title purposes appears to be not always based on navigability-in-fact. In some states public ownership appears to extend to submerged lands subject to the ebb and flow of the tide, regardless of actual navigability. For example, in Louisiana, Maryland, Mississippi, New Jersey, New York and Texas, State ownership extends to all waters subject to tidal ebb and flow, but in California, Connecticut, Florida, North Carolina and Washington, public ownership is based on navigability-in-fact. Maloney andAusness 1974.
Boundaries in Streams
The most common case involving non-sovereign water boundaries is that involving a stream as the boundary between two parcels of land. In such cases where the deeds of the premises call, "to the stream", the center of the main stream would be the boundary. This is called the thread of the stream. When there are multiple channels, then the main channel would form the boundary. This is called the thalweg. It is the deepest part of the channel. This type of boundary would shift if the thread of the stream shifts with time, unless such a shift is due to avulsion.
Boundaries in Lakes
Rights associated with water that is not flowing are called "Littoral". Generally land beneath non-sovereign lakes are owned by the surrounding upland owners. When all the deeds call "to the lake", each owner has title to a center point. This creates a complicated boundary problem since there is a lack of a main channel and a lake is rarely perfectly round. Where the description in the conveyance uses language such as "to the shores" or "along the shore", then title to the lands underwater is not conveyed. Similarly where the description in the deed makes reference to features on dry land, such as the bank, shore,
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Do a little research and see if that beach area has ever had any renourishment by public funds, if so you can also hunt that area.......
