Who Owns The Water?

Who owns the water in the lake? The answer may surprise you. The doctrine of "riparian rights" is part of the common law that America inherited from England, although water rights vary across the US. Most of the western states have gravitated away from the common law version, but here in New England, the common law still governs.

According to the common law, riparian rights are attached to the land. As such, they cannot be sold to others or transferred to any organization, such as SDRA. These rights cannot legally be separated from the land.

Here are several items that may help you understand the concept of riparian rights in Rhode Island.

First up, Wikipedia:

General principle

Under the riparian principle, all landowners whose property is adjacent to a body of water have the right to make reasonable use of it. If there is not enough water to satisfy all users, allotments are generally fixed in proportion to frontage on the water source. These rights cannot be sold or transferred other than with the adjoining land, and water cannot be transferred out of the watershed.

Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations. Riparian rights also depend upon "reasonable use" as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners.^[1].

In the western United States, water rights are generally allocated under the principle of prior appropriation.

Next, a law review article from Roger Williams Law School regarding the law in Rhode Island:

A Summary of the Requirement that Uses of Water Rights in Rhode Island Must be Reasonable

By Dale B. Thompson

Roger Williams University School of Law

February 5, 2003

For over one hundred and seventy-five years, the common law of Rhode Island has
restricted water rights by requiring that the use of these rights be reasonable. These restrictions
have applied to surface waters, including both those that are part of well-defined water bodies
and those that are not; and to groundwater.

In 1827, in the famous case Tyler v. Wilkinson, 24 F. Cas. 472 (D.R.I. 1827), the court
examined surface water rights under the riparian system of Rhode Island. It held that a surface
water right is the right to use water, not a property right in the water itself:
Prima facie every proprietor upon each bank of a river is entitled to the land, covered
with water, in front of his bank, to the middle thread of the stream, or, as it is commonly
expressed, usque ad filum aquae. In virtue of this ownership he has a right to the use of
the water ... . But, strictly speaking, he has no property in the water itself; but a
simple use of it, while it passes along. 24 F. Cas. 474 [emphasis added].

The court then examined what this riparian right to use water entailed. The court held
that “reasonable use[s]” of these waters were permitted: “There may be, and there must be
allowed of that [right], which is common to all, a reasonable use.” Id. In determining whether a
use was reasonable, “The true test of the principle and extent of the use is, whether it is to the
injury of the other proprietors or not.” Id.

To assess whether an injury occurred, the court then relied upon the principles of
nuisance law, quoting the maxim that serves as its starting point, “‘Sic utere tuo, ut non alienum
laedas.’” [Roughly: Thus to use yours so that you do not injure the property of another.] Id.

Nuisance law itself makes reference to the principle of reasonableness, finding that intentional
invasions of the use and enjoyment of land that are substantial and unreasonable are nuisances.
Thus, for a long time, the common law has held that riparian rights in Rhode Island are
limited by the requirement that the uses to which they are put must be reasonable.

A more recent case, Butler v. Bruno, 115 R.I. 264; 341 A.2d 735; 1975 R.I. LEXIS 1149;
93 A.L.R.3d 1183 (R.I. 1975), extended this principle to surface waters that are not “part of a
well-defined body of water or a natural watercourse.” 115 R.I. 267. In this case, the defendant
deflected rainwater runoff that previously had collected on defendants property instead onto the
plaintiffs’ property. To determine whether the defendant would be liable for damages from this
particular use of the water, the Rhode Island Supreme Court “adopt[ed] the rule of reasonable
use.” 115 R.I. 274.

The common law has also held that the use of groundwater must also be reasonable. In
1934, the Rhode Island Supreme Court in Rose v. Socony-Vacuum Corporation, 54 R.I. 411; 173
A. 627 (R.I. 1934), held that groundwater rights did not permit unreasonable conduct in the use
of that groundwater. See, 54 R.I.414-416. The court held that negligent acts in the use of
groundwater, and which injured another’s legal rights, would constitute a nuisance. Recall that a
negligent act is an act that is found to be “unreasonable” under the circumstances. Extension of
nuisance liability for negligent acts in the use of groundwater thus implies a limitation that
groundwater rights are limited to reasonable uses.

More recently, the Rhode Island Supreme Court extended this principle to find that
“unreasonable injuries” resulting from the use of groundwater would also constitute a nuisance.
In Wood v. Picillo, 443 A.2d 1244 (R.I. 1982), the Court held that in determining whether a
particular use of groundwater constituted a nuisance, “liability in nuisance is predicated upon
unreasonable injury rather than upon unreasonable conduct.” 443 A.2d 1247. Thus, under this
holding, groundwater rights do not entitle someone to use groundwater in such a way that causes
an unreasonable injury.

The upshot is that the property owners who abut Smith & Sayles Reservoir cannot transfer their riparian right to any other person or organization. Therefore, SDRA does NOT own the water in the lake. Never has. Never will.