Water & Drainage
Water Rights
A landowners’ riparian rights are natural rights arising from his ownership of land containing or adjoining a body of water. Natural rights may be varied or supplemented by easements acquired in the usual ways. The easements may allow water to be diverted and taken.
There may be a right of drainage of water. Natural drainage rights may subsist when water runs from one property to another by gravity or otherwise. When water flows through pipes or other artificial means, it may do so only under easement right, but not under natural rights.
Riparian rights arise when a body of water flows through or abuts land. Each riparian owner may enjoy rights to the water or river, subject to the rights of enjoyment to which others are entitled. His right to the flow of water is subject to the ordinary use by persons upstream.
Underground waters, referring to water in unknown channels, are not the subject of riparian rights. This applies to all percolation and soakage of water through the soil. Riparian rights may only exist in watercourses and channels. Accordingly, water flowing through underground watercourses in defined and known channels enjoy riparian rights.
A defined channel is a bound channel, notwithstanding that its location and extent may be not fully known. In this context, known’ is knowledge which may be inferred from existing and observed facts. It need not be visible.
Riparian Rights
A riparian owner has a right of access to rivers and streams on his land. This may be exercised for the purpose of navigation. He is presumed to own the soil to the middle of the river. There is a public right of way over tidal rivers.
The riparian owner may moor vessels, construct a wharf or boathouse provided it does not interfere with the right of navigation in a tidal river. These common law rights are subject to modern legislation, such as the planning acts.
Subject to the rights of others, the riparian owner may take water from the stream or river for the purpose of consumption. Generally, this right is referable and limited to the ordinary purpose to which this water may be put on his land. This may be for drinking, agricultural uses, depending on the circumstances.
A riparian owner is entitled to protect and preserve the flow of water through a watercourse. He may restrain obstructions and damming by others by injunction. He may take action against owners upstream from him, even if they are some distance away. Action may be taken in respect of an apprehended or threatened injury, which is likely to occur.
The riparian owner may moor vessels, construct jetties and do other things in the bed of the watercourse, provided that he does not interfere with the rights of other owners or the public right of navigation. This is now subject to the requirement for planning permission.
The riparian owner has a private right of access to the water, lakes and sea adjoining and abutting his property. This includes a right over the foreshore when the tide is out.
Ordinary and Additional Use
The owner may be allowed to use water for an extraordinary purpose associated with the lands concerned, provided he does not cause damage to the rights of other riparian owners. If he uses the water for so-called extraordinary or secondary purposes, that use must be incidental to his land. He must not interfere with the rights of owners upstream or downstream.
The ordinary or usual purposes are generally drinking, washing, watering livestock and domestic purposes generally. Manufacturing and other commercial uses are generally deemed extraordinary.
Similarly, land irrigation, use for locomotive power cooling in a mill or factory are extraordinary. The extraordinary purpose must not sensibly interfere with the lawful use by lower or higher owners. A relatively small reduction in quantity may not constitute unlawful interference.
Pollution
Historically, a right to pollute could be acquired as an easement. It could not be such as amounted to a public nuisance or interference with public rights. A statutory authority was entitled to do what was required by its functions provided it did not do so negligently.
At common law, an owner has a right to preserve water flowing through the land in its natural state. The right to clean and wholesome water could be subject to established rights to pollute and foul, which had itself been established by long use.
Subject to these rights and their above limitations, the riparian owners have a common law right of action against other owners for polluting the water. Considerable statutory rights now exist against pollution and long use is no defence.
The whole area of water pollution has been radically changed by the modern Fisheries Act and later the Water Pollution Legislation. This allows parties to take injunctive action against any polluter of waters. Both the local authority and in some cases, Environmental Protection Agency have administrative powers to require cessation of pollution and may also seek an injunction to soe do.
Private owners may also take action based on anti-pollution legislation. They may seek an injunction to restrain unlawful pollutants.
Drainage & Escapes
The riparian owner may protect the flow of the water. In the case of a navigable river, a member of the public may take an injunction to restrain obstruction.
The rule in Rylands v Fletcher may be of relevance in the context of water flow. It does not apply to the natural use of land. However, some non-natural uses, involving the accumulation of water, followed by sudden escape and damage may lead to strict liability for its consequences under the rule.
The converse of the right to water flow is the right of drainage. This is the right to allow water to flow from one’s land away. The right of drainage does not prevent another adjoining owner from taking the necessary steps to prevent flooding, in order to protect his land. The right is not absolute. A person may do no more than necessary, acting with reasonable skill and care necessary to protect his own enjoyment. He may not act to injury or damage his neighbour.
If the downstream or adjoining owner prevents the flow, he may, if he acts unreasonably or negligently, be liable in nuisance or negligence to the adjoining owner.
In recent times the courts have applied principles of negligence to adjoining landowners. A higher or lower landowner may have duties of care to his neighbours. In this context, negligence would take account of the reasonableness, cost and expense involved.
Rights in pipes and artificial watercourses may subsist in accordance with the law of easements. Many artificial pipes are constructed under a statutory power. The Public Health legislation, later known as the Sanitary Services legislation, empowers local authorities to install pipes and drains to their areas.
Canals and waterways were constructed from the 18th century onwards under statutory powers.
Easements for Discharge
Historically an easement to pollute could be claimed. An easement to cause a public nuisance could never be acquired. Accordingly, an easement to flood, cause substantial pollution such as to endanger public health could never be acquired.
It is a principle that an easement may be acquired only for a lawful use. Accordingly, the extent to which an easement to pollute may now be acquired is now severely limited.
There may exist an easement to take land from a well. This may include the right to enter land and take the water.
An easement for an outfall pipe may be established. This may permit that which should otherwise be a nuisance. This is a so-called right of eavesdrop.
Maintenance
The right to enter land in order to clean drains and watercourses will generally inhere in the easement itself. The rights may be exercised by independent contractors or public authorities on behalf of the dominant owner.
The burden of keeping the watercourse in order lies with the dominant owner. The servient owner, in accordance with general principles of easements, will not generally be obliged to take any steps to repair, unless specifically obliged by covenant.