Exploring The Legal Aspects Of Water Rights In Property Law
Author: LawSphereX
Category: Property & Real Estate
Published:
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EXPLORING THE LEGAL ASPECTS OF WATER RIGHTS IN
PROPERTY LAW
Kanishk Muchhala, BBA LLB (Hons.), Jindal Global Law School
ABSTRACT
This paper investigates the legal notion of "property," with a focus on the rights tied to water bodies that are on or near land in different legal systems. Property is typically defined as something that can be owned, giving the owner exclusive rights to use and control it. Specifically, water rights enable property owners to use, sell, or manage water from designated sources. In India, the Transfer of Property Act, 1882, oversees the transfer of immovable property but does not address water rights related to nearby or adjoining water bodies. The study compares how different countries, including the United States, the United Kingdom, South Africa, and India, approach water rights and resource management. It also examines national property laws for structures in international waters under the United Nations Convention on the Law of the Sea (UNCLOS).
The analysis highlights the importance of evolving legal frameworks to meet global water challenges, ensuring a balance between individual property rights and broader regulatory needs for sustainable water access. Keywords: property law, water rights, comparative analysis, riparian rights, littoral rights UNCLOS, national property
INTRODUCTION
The term “property” has nowhere been defined in the Act, but it is used in the widest and most generic sense. Property is the most comprehensive of all terms which can be used, much as it is indicative and prescriptive of every possible interest which any person can have. Thus, it means not only the physical objects but includes rights and interests existing in or derived out of the actual physical object as well. 1 ‘A “water right” is the legal right of a property owner to use, sell, divert and manage water from a specific source for a specific purpose. These sources include both groundwater (such as well water) and surface water (such as rivers, lakes and streams) that border the land they own. ’2 In India, the transfer of immovable property built on land is governed by the Transfer of Property Act 1882.
However, it lacks provisions addressing the rights of property owners concerning water bodies adjacent to or within their property. This paper delves into the examination of these property rights by conducting a comparative analysis of water rights between International Legislations with different legal systems like the United States of America as a civil law legal system, the United Kingdom as a common law legal system, and South Africa as a mixed legal system, with India. Additionally, the scope of national property and the rights associated with constructing property on international waters is examined.
COMPARATIVE
ANALYSIS
BETWEEN INTERNATIONAL LAW AND INDIA United States of America (USA) The United States of America follows a civil law legal system with codified laws at the top. In the USA, water rights exhibit diversity, primarily categorized into two types depending on the water bodies adjacent to or on an individual's private property: surface water rights and groundwater rights. Surface water encompasses water bodies visible on the earth's surface, such as rivers, lakes, oceans, ponds, etc. Property owners adjoining such water bodies possess specific entitlements known as Riparian rights, Prior appropriation water rights, and Littoral rights pertaining to the allocation of groundwater, which individual states regulate separately from surface water rights. Many states utilize a mix of legal doctrines, such as Absolute Dominion Water Rights, Reasonable Use Water Rights, Correlative Water Rights, and the
1 3 POONAM PRADHAN SAXENA, PROPERTY LAW 12, (LexisNexis 2017).
2 James Chen, What Are Water Rights and How Do They Work, INVSTOPEDIA (Dec. 24, 2024, 8:04PM),
https://www.investopedia.com/terms/w/water-rights.asp - :~:text=Water rights pertain to the,or exist on a property.
Restatement of Torts Water Rights to govern groundwater allocation. Let's delve deeper into each of these rights. “Riparian right” is a term used with regard to riparian proprietors, said to mean access to the navigable river in front of his lot, the right to make a landing wharf or pier for his own use, or the use of the public, subject to the general rules imposed by the legislature for the rights of the public. 3 The riparian landowner is entitled to exercise "reasonable use" of the watercourse. This implies that they can utilize the water reasonably, provided it does not impede downstream riparian landowners' reasonable usage of water. The assessment of reasonableness involves comparing the intended use with the uses of other riparian landowners. According to the law, natural purposes like drinking water, livestock watering, or garden irrigation are considered reasonable.
Artificial purposes such as irrigation or industrial use are also generally considered reasonable under the laws of most states. 4 According to riparian rights, landowners are not obligated to actively utilize water to maintain their riparian rights. They retain the privilege to initiate new uses at any point, provided these uses are deemed reasonable. Since the right is inherently linked to the riparian land, its validity persists even in instances of non-use, without risk of extinction. The rights to water along a river, linked to land granted by the United States, are dictated by the laws of the state where the property is located as mentioned in Hardin v. Jordan (1891). 5 In the case of Illinois Central Railroad Co. v.
Illinois (1892),6 the Illinois Supreme Court held that the state could not grant a private company title to submerged lands along Lake Michigan because it would infringe on the public's common law rights to use the lake for navigation, fishing, and other activities. This case highlighted the importance of protecting riparian rights and public access to waterways. The Doctrine of Prior Appropriation follows the principle of "first in time, first in right" to manage water rights. Within this framework, ‘the first person or entity to divert water from a source for a deemed "beneficial use" is given precedence in allocations from that source. Beneficial use, as determined by the state, typically encompasses any purpose deemed nonwasteful, such as drinking water, irrigation, or recreational activities.
Subsequent users may only access the water once the primary appropriator has fulfilled their requirements. 7
3 4 P RAMANATHA AIYAR, THE MAJOR LAW LEXICON, (LexisNexis 2010).
4 Water Law Overview, NATIONAL AGRICULTURAL LAW CENTER (Dec. 24, 2024, 8:11pm),
https://nationalaglawcenter.org/overview/water-law.
5 Hardin v Jordan (1891) 140 U.S. 371.
6 Illinois Central Rail Co. v Illinois (1892) 146 U.S. 387.
7 Kelli Pate, What Are Water Rights?, FORBES (Dec. 2024, 8:18PM),
https://www.forbes.com/advisor/mortgages/what-are-water-rights/.
Littoral rights are ‘the rights of one owning littoral land to have access to and use of the shore and water. ’ Littoral rights apply to property owners whose land adjoins expansive, navigable bodies of water like lakes, seas and oceans. These rights afford landowners unrestricted entry to the water, yet their ownership extends solely to the median of the high-water mark. Beyond this boundary, the ownership transfers to the government. 8 Now coming to groundwater rights, starting with Absolute Dominion Water Rights, often dubbed the "rule of capture," afford landowners unrestricted access to extract groundwater without incurring liability for its impact on others. This principle, followed by only a limited number of states as indicated by The National Agricultural Law Centre, allows individuals to monopolize groundwater sources without legal consequences.
Conversely, Reasonable Use Water Rights ‘adjust the absolute dominion principle by allowing unrestricted use of groundwater for "reasonable" purposes, if the extraction takes place from the land above the source. 9 Just like riparian rights concerning surface water, Correlative Water Rights enforce a "proportionality rule," requiring landowners to regulate their groundwater usage to prevent interference with others' rights within the same aquifer. However, off-site uses are not constrained by this doctrine. The Restatement of Torts Water Rights doctrine ‘combines elements from both the absolute dominion rule and the reasonable use doctrine. It permits groundwater usage without legal repercussions, provided it does not cause harm to neighbouring users or exhaust an unreasonable portion of the accessible groundwater.
Additionally, it prohibits any harm to adjacent surface waters, such as lakes. 10 So far, the property built adjacent to a water body has been discussed. Now let’s look at the property that is built on water with the example of a houseboat. Owning a houseboat will require the owner to lease out the mooring area from the port authority or the Government of that country. “Mooring” is such a mode of attachment as will allow a vessel to leave from time to time and to come back and re-take possession of the old attachment. 11 Houseboats are considered “Personal” Property, not “Real” Property. Real property’ denotes land and things attached to land to become part of it. 12 Personal property or personality may be roughly
8 Adam Hayes, Littoral Land, INVSTOPEDIA (Dec. 2024, 8:18PM),
https://www.investopedia.com/terms/l/littoral-land.asp.
9 PATE, Supra
10 Id.
11 AIYAR, Supra
12 SAXENA, Supra
described as comprising all forms of property, movable or immovable, corporeal or incorporeal, other than freehold estates and interests in land (which may include chattels affixed to land) and its appurtenances. 13 ‘Ownership in “real property” must necessarily involve a freehold estate in land. ’14 As mentioned in Brighton v Noble Tax (2002),15 state taxing authorities do not recognize houseboats as "real" property for assessment or taxation related to real property. According to Article 2 of the Uniform Commercial Code (1952) (Chapter 62A. 2 RCW), ‘A “houseboat” is a tangible good subject to sale, lease or other assignment’. It was held in Lozman v. City of Riviera Beach (2013)16 that a houseboat is not a floating vessel under admiralty law.
United Kingdom (UK) The United Kingdom, unlike the USA, follows a common law legal system and has certain different rights for individuals who own property that is situated either adjacent to or on top of water bodies. ‘As a riparian owner in the UK, one is considered the landowner up to the centreline of any river where their property boundary meets it unless specifically stated differently in their property deeds. If a watercourse passes through or is beneath their land, they are the owner of that portion of the watercourse. A landowner has the right to the unrestricted flow of water onto or beneath their land as well as the ability to control erosion and flooding, provided that the appropriate permissions and approvals are obtained from the relevant authorities.
17 One of the responsibilities of a riparian owner is to allow water to pass through your property without creating any obstructions, pollution, or diversion that could infringe the rights of other riparian owners. In addition, they must keep the watercourse maintained by removing any debris from it, protecting the banks, and making sure that structures, such as culverts, remain unobstructed. Moreover, they must refrain from any activity that could harm the watercourse or the ecology around it and are obligated to maintain a buffer zone free of development along the banks to permit access and compliance with local bylaws. For those who fail to comply with these obligations, legal action could be taken under the applicable statutes, including but
13 Id.
14 Thomas W. Merrill, The Restatement of Property
The Curse of Incompleteness, OXFORD UNIVERSITY PRESS EBOOKS, 203–218 (2023) https://doi.org/10.1093/oso/9780197685341.003.0010.
15 Brighton v Noble Tax (2002) LEXIS 148.
16 Lozman v. City of Riviera Beach (2013) No. 11626, 2013 WL 149633.
17 Riparian Rights and Responsibilities, CAMBRIDGESHIRE COUNTY COUNCIL, (Dec. 24, 2024, 8:36pm),
https://www. cambridgeshire. gov. uk/business/planning-and-development/flood-and-water/watercoursemanagement/riparian-rights-and-responsibilities. not limited to, The Water Resources Act (1991), The Land Drainage Acts (1991) and (1994), The Public Health Act (1936), and The Environment Agency Land Drainage Bylaws (1981). 18 South Africa In South Africa, the rights and obligations of riparian owners are regulated by the National Water Act of 1998, which was a major change to the legal framework governing water rights. Historically, riparian owners possessed inherent rights to use the water flowing through or adjacent to their property, however the National Water Act has fundamentally altered this paradigm.
This legislation designates water as a national resource under state custodianship, requiring formal licence by the Department of Water and Sanitation for all uses of water, including riparian owners. 19 Riparian owners in South Africa are still entitled to apply for water usage permits, which are awarded according to standards like equitable use, environmental preservation, and sustainable use. As a result, the right to use water is now subject to governmental regulation rather than being granted automatically to guarantee effective resource management and fair distribution among all socioeconomic sectors. Additionally, riparian owners are entitled to participate in local water management procedures, such as those governed by Catchment Management Agencies, which oversee managing regional water resources.
Moreover, any legitimate rights to use water that riparian owners had before the National Water Act came into force could be recognized as legitimate uses that still exist today, contingent upon verification and adherence to current regulations. 20 In conjunction with these rights, riparian owners have substantial obligations. They must ensure that their use of water doesn't negatively affect other users or the environment. This includes avoiding water pollution, deteriorating the quality of the water, and causing harm to communities and ecosystems downstream. Furthermore, owners of riparian areas must coordinate their use of water with national interests, such as meeting basic human needs and preserving ecological balance. By carrying out these responsibilities, riparian owners contribute to the larger goals of fair access to water resources and sustainable development in South Africa.
21
18 Id.
19 D. D. Tewari, A Brief Historical Analysis of Water Rights in South Africa, 30(4) WATER INTERNATIONAL, 438–445 (2005), https://doi.org/10.1080/02508060508691888.
20 Id.
21 Id.
India Across the globe, governments adhere to three separates yet interlinked legal principles: a) Riparian Rights Doctrine, b) Prior Appropriation Doctrine, and c) Public Trust Doctrine. In India, water laws find their origins in the Indian Easements Act of 1882. Concerning surface water, these laws adhere to the Doctrine of Riparian Rights. India's current legal framework concerning water resources reflects a complex blend of colonial-era statutes, traditional laws, and post-independence constitutional and legal provisions. The legal structure governing irrigation implicitly assumes the state's absolute authority over water resources. As per the Constitution of India, water is under the authority of the State (Entry 17 - List II States), with provisions subject to Entry 56 of List I (Union List).
This indicates that the Union government can also take charge of issues concerning interstate rivers, as explicitly stated by Parliament through legislation. However, the power to pass laws governing and managing groundwater is not held by the central government. 22 As per the Easements Act, the privileges of a riparian, i. e. , an individual who possesses land adjoining a river or watercourse, are recognized. A riparian owner is granted the privilege to utilize the watercourse running past their property on par with other riparian owners. Additionally, a riparian holds the entitlement for the water to reach them without reduction in flow, volume, or quality, and to flow beyond their property unimpeded. Section 7 of the Act stipulates that each riparian owner has the right to the continuous flow of water in a natural stream without excessive damage or contamination.
23 Section 7 of the Indian Easements Act (1882) lays down that easements restrict property rights, including (a) Owners' exclusive right to use and dispose of property, subject to laws. (b) Owners' right to benefit from property's natural advantages without disturbance, subject to laws. Illustration (f) states that landowners neighbouring natural streams, lakes, or ponds have the entitlement to utilize and consume the water for drinking, domestic purposes, watering livestock, and irrigating their land. They can also employ it for manufacturing on their premises, provided it does not result in substantial harm to other neighbouring landowners. 24 22 Prof. V. P. Gupta, Emerging Issues in Water Management – The Question of Ownership, 32(8) National Academy of Agricultural Sciences, (2005), https://naas. org. in/Policy%20Papers/Policy%2032. pdf.
23 Ruchi Pant, From Communities’ Hands to MNCs’ BOOTs: A Case Study from India on Right to Water, Rights and Humanity, UK (Right to Water Project), (2003) https://citeseerx. ist. psu. edu/document? repid=rep1&type=pdf&doi=c86520c822efc981743a1e0c713a17cbe0f0db fb.
24 Indian Easements Act, § 7, (1882).
Looking at the legal precedents in India through case laws, we can better understand water rights. In the case of M. C. Mehta v. Union of India (1988),25 recognized as the Ganga River Pollution Case, the Supreme Court of India reiterated the doctrine of riparian rights. The petitioner, a riparian owner, contended that the pollution of the Ganga River violated his rights. The Court approved the Public Interest Litigation, recognizing the petitioner's dual status as a public health protector and riparian owner. The case of Vuppalapati Suryanarayaneswara Jogi Jagannadharaju v. Raja of Vizianagram (1936),26 heard by the Madras High Court, emphasized and reaffirmed the importance of riparian rights. This case, preceding the Ganga Water Pollution case, included a dam that obstructed riparian rights.
The Court concluded that riparian rights include unrestricted access to free-flowing water, even in the presence of a dam obstruction. The Madras High Court also examined the rights of a riparian owner in the case of Sethuramalinga Ayyar v. Ananda Padayachi (1934). 27 The case concerned a conflict between upper and lower riparian rights, along with their application in artificial water bodies. The court ruled that there should be no notable reduction in water volume for lower riparian owners. However, riparian rights apply only to natural streams or rivers and cannot be extended to include artificial water bodies. The Indian Easement Act acknowledges the customary rights of individuals acquired through longstanding usage or local custom.
Nevertheless, these rights are subject to governmental regulation over the collection, storage, and distribution of water from rivers and streams within natural channels. The court in the case of Robert Fischer v Secretary of State (1908),28 held that the government does possess the authority to regulate the collection, storage, and allocation of water in the public interest, as long as it doesn't harm other riparian owners or reduce the supply they have historically relied upon. 29 The case of Tata Iron and Steel Company Ltd. v. State of Bihar (1958)30 is an important judgment in discussions about riparian rights in India. The verdict, issued by the Bombay High Court, concerns Tata Iron and Steel Company Ltd. 's claim to utilize water from the Swarnrekha River for industrial activities.
When the government enforced restrictions due to a scarcity concern, the company opposed, invoking riparian rights. However, the court dismissed this
25 M.C. Mehta v. Union of India, (1988) 1 SCC 471.
26 Vuppalapati Suryanarayaneswara Jogi Jagannadharaju v. Raja of Vizianagram, (1936) SCC OnLine Mad 291.
27 Sethuramalinga Ayyar v. Ananda Padayachi, (1934) SCC OnLine Mad 384.
28 Robert Fischer v Secretary of State (1908) 2 Ind Cas 325.
29 PANT, Supra
30 Tata Iron & Steel Co., Ltd. v. State of Bihar, (1958) 9 STC 267.
assertion, stating that absolute rights cannot be upheld. It underscored the principle of equal access to resources for all individuals and upheld the government's authority to impose restrictions under the law in the interest of the broader public. THE EXTENT OF NATIONAL PROPERTY The United Nations Convention on the Law of the Sea (1994) (UNCLOS), governs international waters and oceans. UNCLOS divides international waters into various zones, including Territorial Waters, Contiguous Zone Surface Waters, Exclusive Economic Zone Waters, Continental Shelf Surface Waters, International Surface Waters, and International Underground/Seabed Waters. Article 3 of UNCLOS stipulates that Territorial Waters extend up to 12 miles from a nation's coastline, where that country's maritime laws apply to all vessels, irrespective of their registration.
In the event of a maritime worker sustaining injuries aboard a vessel within these waters, they can pursue compensation through a maritime injury law firm, utilizing the laws of the country in question. So, if an oil rig were constructed within a 12-mile radius of the coast of a country, the laws of that specific country would be applicable. 31 Article 48 mentions the scope of the Contiguous Zone, the Continental Shelf and the Exclusive Economic Zone. The Contiguous Zone surface waters span from 12 up to 24 miles off a country's coast, granting limited jurisdiction to that nation. Laws in this zone may apply to vessels, their crews, and passengers on board, but they pertain solely to surface waters, excluding underground waters.
Taking the same example of an oil rig situated within this zone, the surface-level infrastructure would be subject to the laws of the nation, while the oil reserves beneath the seabed would not fall under the jurisdiction of that country's laws. 32 Within the Exclusive Economic Zone (EEZ), waters receive designated protections outlined in Article 56. Nations possess rights concerning research, exploration, and exploitation of marine resources, including oil. The EEZ extends 200 miles from the country's coastline, but beyond the Contiguous Zone, surface waters are considered international. This means that if another country wants to extract oil from one country’s EEZ, it would be subject to the latter’s jurisdiction.
33 Article 76 outlines that Continental Shelf Surface Waters denote the seabed and subsoil stretching beyond a coastal state's territorial sea to the outer limits of the continental
31 United Conventions Laws of the Sea, 1994, Art. 3.
32 United Conventions Laws of the Sea, 1994, Art. 48.
33 United Conventions Laws of the Sea, 1994, Art. 56.
margin or up to 200 nautical miles from the baselines. Restrictions in these waters are limited, akin to those in the Contiguous Zone surface waters. Depending on the situation, territorial waters laws of the country, Contiguous Zone laws, or laws of the ship's registration country may apply. 34 International Surface Waters are those where no single nation holds sovereignty. Instead, the laws of the country where a vessel is registered apply. For instance, if a ship is registered in the United Kingdom, then U. K. laws would govern. International Underground/Seabed Waters, also known as “The Area”, under Article 1(1),35 fall under the jurisdiction of the International Seabed Authority (ISA), which regulates research and exploration activities, especially concerning natural resources. In incidents not covered by ISA regulations, the laws of the vessel's registration country apply.
36 Structures erected in international waters, like oil rigs, are governed by the laws of the applicable maritime zones mentioned earlier, contingent upon their whereabouts. Article 136 asserts that "The Area" and its resources are the shared inheritance of humanity. This means that the oil that is found in international waters beneath the seabed, would be a common resource for all of mankind to use and would not be barred/restricted by any law. Therefore, oil rigs which are set up in international waters are not barred by any law and they are free to extract the oil from beneath the surface of the seabed. 37 WAY FORWARD In summary, the examination of water rights across the United States, the United Kingdom, South Africa, and India reveals a variety of legal approaches influenced by historical, environmental, and social contexts.
Each legal system attempts to balance individual property rights with comprehensive regulatory control, underscoring the critical importance of water management. Although riparian rights and governmental oversight are common themes, the methods of water regulation differ considerably, from the codified laws in the U. S. to the statecontrolled frameworks in South Africa and India. Additionally, international legal standards under UNCLOS underscore the complexities of managing resources in maritime zones. As global water issues become more pressing, these legal systems will need to adapt to ensure fair
34 United Conventions Laws of the Sea, 1994, Art. 76.
35 United Conventions Laws of the Sea, 1994, Art. 1(1).
36 How Does Maritime Law Enforcement Work in International Waters?, SCHECHTER SHAFFER & HARRIS,
(Dec. 24, 2024, 8:57pm), https://maintenanceandcure.com/maritime-blog/maritime-law-enforcement-ininternational-waters/.
37 United Conventions Laws of the Sea, 1994, Art. 136
and sustainable water access, balancing the rights of property owners with the broader public good.