Law Offices of Matthew  Emrick

OVERVIEW OF RIPARIAN WATER RIGHTS 

Riparian rights allow an owner of property adjacent to a water source to take water for use on the property.  Riparian water rights were developed under English common law and originally applied in the Eastern states.  The early legislature of California adopted the English common law and with it the law of riparian water rights.  Gin S. Chow v. City of Santa Barbara (1933) 217 Cal. 673, 695.

Riparian water rights are acquired by the mere ownership of riparian land.  Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 528.  Riparian land is that land that abuts a water course or lake and that is entirely within the watershed of the water course or the lake.  Id. at 529.  Ownership of the riparian land is all that is needed and generally no other water related permit or other authorization is necessary.  The right to take water from an abutting stream is considered part and parcel of the riparian property.  Fall River Valley Irrigation District v. Mt. Shasta Power Corp. (1927) 202 Cal. 56, 65.

Riparian rights attach to both swamp and overflow lands and lands abutting the high water mark of streams.  Gerlach Live Stock Company v. United States (1948) 76 F.Supp 87.

The riparian right extends only to the smallest tract of land held under one title in the chain of title leading to the present owner.  Rancho Santa Margarita, supra, 11 Cal.2d 501, 528-529, 534.  All land conveyed or subdivided from the original tract of land loses its riparian rights unless specifically reserved or unless the severed land continues to abut the water source on its own.   Riparian land cannot regain a riparian right by being rejoined to the remaining property or to any other riparian property.  Rancho Santa Margarita, supra, 11 Cal.2d 501, 537-540.

Riparian rights can only be used on riparian lands. Rancho Santa Margarita, supra, 11 Cal.2d 501, 527-528.   In this respect, riparian water rights are more limited than appropriative rights.

As with appropriative rights, water taken under a riparian right must be put to a reasonable and beneficial use and not wasted.  Water Code § 100. 

Unlike appropriative rights, a riparian right is not limited to a specific quantity of water and there is no priority of use against other riparian rights holders.  Carlsbad Mutual Water Company v. San Luis Rey Development Co. (1947) 78 Cal.App.2d 900, 910-914.  The riparian right is known as a “correlative” right.  Each riparian owner is allowed to divert and use a proportional share of the water from a stream necessary for their uses without harming other riparian users.  Id.   However, as with appropriators, domestic purposes generally have priority over other riparian uses during times of shortage.   Deetz v. Carter (1965) 232 Cal.App.2d 851, 854-855.

In many circumstances, riparian rights are given a priority of use over appropriative rights.  Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424.  But this is not always the case. Utt v. Frey (1895) 106 Cal.  259.

There is generally no right to the long term storage of water under a riparian right – again unlike appropriative rights.  Herminghaus v. Southern California Edison (1926) 200 Cal.  81, 111.  Long term storage deprives other riparian users of their proportionate share of the stream flow.  Short term, temporary storage, however, may be allowed depending on the circumstances.  Seneca Consolidated Gold Mines v. Great Western Power Co. (1930) 209 Cal. 206, 215-216, 219.

Riparian rights attach only to the natural flow of streams and lakes.  Chowchilla Farms v. Martin (1933) 219 Cal.  1, 19.  Unlike appropriative rights, riparian rights generally do not attach to foreign waters or groundwater discharged into a watercourse.   Crane v. Stevinson (1936) 5 Cal.2d 387, 392-395. 

Riparian rights do, however, attach to the underground flow of a surface water course.  Rancho Santa Margarita, supra, 11 Cal.2d 501, 555.   This includes parcels of property that do not abut the surface flow of the stream but which do overlie the underflow of a stream course.  Peabody v. Vallejo (1935) 2 Cal.2d 351, 375.