SIMON
FACT
SHEET NUMBER 9
WATER
LAW
1. BOUNDARIES
The
general rule is that where title cannot be deduced, there is a rebuttable presumption that an owner of land abutting a
watercourse or lake owns to the middle line. (Medium filum).
Where
the bed and bank are in different ownerships, the boundary is the ordinary high
water mark of the river, meaning that what lies above this is the bank and what
lies below is the bed.
Where the course of a river changes slowly over time then the
riparian boundary moves with it.
Thus where riparian land is extended by slow addition (accretion) or is
lost to the action of water (dereliction) then the respective boundaries will
move with these natural alterations.
However if there is a sudden change in a water course , eg a river breaking through a bend to form a new channel,
riparian ownership will accrue to the owner of the land over whose land the new
channel runs.
2. RIPARIAN
RIGHTS
Whilst
there is no ownership of the water itself, rights exist in favour of the owner
of the bed of the river or lake.
Such rights only exist where water flows in a defined channel. There are therefore no property rights
in relation to percolating water.
A
riparian owner has the right to receive water from another riparian owner without
sensible alteration in quantity or quality. Therefore a cause of action can be
established if that right is infringed.
However all riparian owners are entitled to use the flow of water
passing their land for whatever purpose they wish subject to their obligations
to neighbouring owners. An
exception to this proposition concerns the right to remove water for
agricultural purposes. Provided
that such use is an “ordinary” use then an owner can take as much
water as he wishes even if he exhausts the supply of water by such use. Thus a riparian owner can discharge into
a river, divert a watercourse, place an obstruction or structure in a
watercourse, clear the channel or use water for milling purposes provided that
the rights of other riparian owners are not materially affected.
In
addition to these rights the owner of the bed of a watercourse owns the right
of navigation and the right of fishing.
For more details on these subjects see Fact Sheet 2 - Navigation and
Fact Sheet 7 - Registration of Fishing Rights.
3. EASEMENTS,
PROFITS AND PRESCRIPTION
It
is possible to acquire rights over water by grant or as a result of long
usage. The basic requirements must
be met, namely, that there is a capable grantor and grantee and there is a
dominant and servient tenement.
Thus any of the rights identified above could be granted by the riparian
owner to a third party. Most
commonly this would be the grant of a profit a prendre of fishing rights.
It
is also possible that rights can be acquired by prescription. Generally it is necessary to show that
the right claimed has been enjoyed for an uninterrupted period of more than
twenty years, openly, without force and most importantly without the
owner’s consent.
Again
a full range of riparian rights could be acquired in this manner. In principle it might be possible to
acquire by prescription a right to do what would otherwise be unlawful, eg, to pollute a river or abstract beyond ordinary
usage. There is a doubt however if
a lawful right can be acquired to do something that would be a criminal offence
eg an offence under the Salmon and Freshwater
Fisheries Act 1975.
4. FLOODING
AND DRAINAGE
Water
related legal issues arise not only with watercourses and lakes and ponds but
also with water flowing in artificial channels or undefined channels. With flooding events becoming more
common the rights and duties of landowners can come into sharp focus.
In
the case of watercourses, the law derives from the principles of riparian
rights and duties set out above.
Broadly speaking a lower riparian owner is entitled to the natural flow
of a river from a higher owner; therefore one owner may not do something that
substantially interferes with the natural flow of another owner. However the law provides that a riparian
owner may protect his adjacent land from flooding or keep a watercourse from
changing its course provided that this action does not cause significant
prejudice to his neighbour. But
this is a right and not a duty.
Therefore in normal circumstances there is no duty on a landowner to
take action by way of flood defence work to prevent flooding of a
neighbour’s land.
Correspondingly there has historically been no duty on a riparian owner
to cleanse or scour a watercourse to reduce the risk of flooding of
neighbouring land. However the
general law of nuisance (see below) is now more likely to impose a duty on a
riparian owner to take steps, for example, to remove obvious natural
obstructions that might create flooding of neighbouring land.
In
relation to water in artificial and undefined channels, it has been explained
that these do not result in riparian ownership and consequently riparian rights
and duties do not apply. However
the general principles of nuisance do apply. Whilst the law relating to riparian
rights and that relating to nuisance have much in common, both are concerned
with the impact one landowner may have on a neighbour. Courts in nuisance cases have been
increasingly willing to find landowners liable where they fail to take steps to
deal with a risk that it was foreseeable would cause damage to a
neighbour. In order to establish a
claim in nuisance a claimant needs to show that the wrongdoer’s action or
inaction caused the problem, that the consequences of the action or inaction
were foreseeable, that there was an unreasonable use of the land and that the
claimant has suffered physical damage or interference with the use and
enjoyment of their land.
It
is accepted at common law that in general there is a right of natural drainage,
whether over the surface or underground from higher land to lower. However the law also suggests that a
lower owner may take steps to protect himself against
the consequences of that drainage notwithstanding that this results in damage
to the higher owner.
However
where one owner undertakes works or fails to deal with an obstruction that
results in water damage to a neighbour then, provided the requirements of
nuisance are met, liability can be established. This would extend for example to the consequences
of a failure to maintain a culvert (which is an artificial channel).
As
with riparian rights, it is possible to acquire by grant or prescription rights
in water flowing in undefined or artificial channels.
Of necessity the above is a very brief overview
of the complex and developing law relating to watercourses and percolating
water.
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Please note that this fact sheet
is intended to give general guidance on the stated area of law. We cannot accept any responsibility
for the consequences of relying on this fact sheet in relation to particular
circumstances of which we are not aware.
Simon Jackson
Solicitors
The Office
Tyn Celyn
Llansilin
Oswestry
SY10 7JW
Tel: 01691 791439
Fax: 01691 791583
e-mail. srbj@btconnect.com