Whatever Floats Your Boat: Riparian Principles

(Note: this post includes excerpts from the Introduction and Chapter 1 of "Whatever Floats Your Boat: Riparian Principles; Kline; 2024)

Introduction

The complex of riparian & littoral boundaries and related property rights remain one of the more confusing areas of law for land use professionals today. In my first book on the subject—published in 2015—I presented a list of common misconceptions relating to riparian law followed by an overview of generally accepted principles. Since that time, I have presented numerous seminars relating to riparian issues and discovered a wealth of additional information related to them.

There are several fundamental roadblocks in any attempt to derive consistent national standards or definitions for resolving riparian and littoral disputes in the United States. First, the size and complex history of the nation presents myriad problems. Second, existing property titles are a result of many interlocking—and sometimes conflicting—principles involving specific physical features interpreted by laws derived from several nations. Finally, variations in topography, precipitation and weather patterns result in bodies of water with similar names—yet with wildly different characteristics. One person’s river is another’s creek.

Courts often apply identical terms to dissimilar bodies of water. Artificial reservoirs often are referred to simply as ‘lakes,’ encouraging the disputing parties to apply inappropriate standards. A variation of this issue occurs when courts apply specific regulatory definitions to long-standing property titles that existed prior to any regulatory scheme.

As a general proposition, much of the Law of Waters in the United States is based primarily on the English legal system. However, American authorities have long recognized that some aspects of the British system must be modified in the United States, due in large part to the differences between a major continent and an island nation. Principles in several regions of the United States also are governed by the Code Napoleon or La Siete Partidas.

Given this complex background, it is indefensible for state courts to create ‘one-size-fits-all’ definitions to apply equally to oceanfront, swamps, wetlands, mountain rivers, the Great Lakes, the Mississippi River, artificial reservoirs, and inland non-navigable ponds. Courts frequently highlight the difference between physical conditions in the island kingdom of England and the North American Continent, yet fail to recognize the variations that exist within the United States.

The scope of topics available is daunting and includes: treaty boundaries; artificial dredging/filling; pierhead lines; oyster beds; artificial lakes and natural lakes modified by artificial structures. These topics are further complicated by the need to relate the rights in dispute to the specific body of water that is the locus.

My original plan for a ‘second edition’ to the 2015 book was tempting, but ultimately was rejected because I wanted to apply an entirely new framework to my study and analysis of riparian/littoral legal principles.

When dealing with the Law of Waters, there is no upward limit to the theoretical length of this book. My intention is to create a more comprehensive guide to those legal principles most relevant to the determination of property boundaries associated with riparian/littoral features. Aspects related to flood control or tort liability have not been included. My focus throughout this book is on the legal aspects rather than the technical issues and calculations.

In reviewing other recent works relevant to riparian and littoral boundaries, I noticed a repeated emphasis on ocean shorelines, tidelands, and coastal rivers and bays influenced by the tides. Given that those areas have been comprehensively discussed by others, I chose to focus more heavily on inland rivers, lakes and streams. In my view, these features have been marginalized in previous works.

While Chapter 1 is titled “Framing the Principles,” the first six chapters could theoretically fit within that header. The reader is cautioned not to skip forward to the latter chapters without reviewing the material in the first 200 pages.

Four additional “bookkeeping” notes regarding the format of this book should be mentioned. To improve readability and as a result of space constraints, internal citations are generally omitted within quotations. Only where they serve to demonstrate the diversity of source material or in some way act as an aid to understanding are they included. Long quotations are highlighted in red to distinguish them from general commentary, while shorter phrases drawn from court opinions are enclosed in quotation marks.

This book does not use the standard footnote format found in most manuscripts of this type—rather, each citation is included with the opinion currently under consideration. This is a planned departure from custom, since the citations and quotations are perhaps the most indispensable portions of this book. This design also stems from my frustrating attempts to pick through and find sources in footnotes that often were located on different pages and printed in tiny fonts.

All primary court citations are highlighted with a bold red font, and the corresponding quotes are represented by red text. Secondary sources, statutes and primary source names repeated for clarity may be recognized by their bold blue font, along with cross-references to other chapters and sections. Land descriptions, statutory quotes or agreements included as examples from court rulings will be highlighted in blue text.

The index includes significant words and phrases, and also lists referenced U.S. Supreme Court decisions (in bold red font). The index is also cross-referenced by state (in bold blue font.)

(Chapter 1)

Section 2:   Categories of Waters

The unique nature of each body of water creates significant challenges when attempting to determine the category that best fits the specific watercourse under consideration. Some water features may exhibit characteristics of more than one subgroup. A single deeded tract may include or border on more than one type of watercourse. One description could include calls to several discrete and unconnected waters, while others could reference several waters that interconnect without clear division. One good example of the latter scenario would be a shallow salt marsh cut by deeper channels wandering between shallower areas.

Common categories of waters that can be subject to disputes:

1. Oceans.

2. Tidelands between high-water and low-water mark.

3. Incidental Rights below the low-water mark.

4. Beaches above the mean high-water mark.

5. Rivers, subject to tidal influence.

6. Freshwater rivers, navigable in the technical sense.

7. Freshwater rivers, navigable in the popular sense.

8. Streams & Creeks subject to tidal influence.

9. Streams & Creeks above tidal influence.

10. The Great Lakes/Great Salt Lake.

11. Smaller Natural Lakes.

12. Artificial/Natural drainage.

13. Subsurface Water.

14. Enhanced Waters (freshwater or tidal).

Many gray areas exist along the shores of the Gulf Coast states, where inland bayous, rivers, streams and lakes may be well inland and beyond the reach of a daily tidal influence, yet subject to extreme storm surge or sustained high water levels in coastal rivers. Coastal areas may be a patchwork of shallow streams, swamps, interconnected with larger coastal rivers and lakes. Similar complications may arise on rivers and lakes in the vicinity of the great rivers such as the Mississippi and Missouri Rivers. Further discussion of these issues may be found in Chapter 3.

Categories of Disputes

It is critical that different types of watercourses be considered in light of the ultimate issue of the dispute. Each case should be analyzed according to the appropriate legal standards. Separate areas of law exist, each applicable to specific disputes based on the ultimate issue. Without clear identification of the nature of the dispute, the appropriate law cannot be applied.

There are at least eight common categories relevant to this book that may be considered by the courts:

1. Fee title to the bed of the watercourse.

2. Rights & access to mineral estates under the water.

3. Right to navigate over the water.

4. State rights to regulate a watercourse.

5. Extent of Admiralty Law.

6. Extent of Federal Authority under the Commerce Clause.

7. Rights Incident to the upland tract.

8. Prior Appropriation for irrigation (Western states.)

9. Rights of Fishery.

In addition to these general categories, several additional controversial issues are becoming increasingly common:

10. Rights to Shellfish in Tidal Zones.

11. Bulkheads associated with fill areas along coastlines.

12. Reasonable Use Doctrine—usufructory rights.

13. Subterranean water (known stream or unknown source).

14. Floodwaters.

15. Surface flow prior to water entering a recognizable channel.