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Property law (2022): Related topics: Water rights + Prior appropriation + riparian rights (Part One)
Season 17 Episode 44
Water right in water law refers to the right of a user to use water from a water source, for example, a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious. In other areas, especially arid areas where irrigation is practiced, such systems are often the source of conflict, both legal and physical. Some systems treat surface water and groundwater in the same manner, while others use different principles for each.
Types of water right.
Understanding ‘Water Rights’ first requires consideration of the context and origin of the ‘right’ being discussed, or asserted. Traditionally, a water rights refers to the utilization of water as an element supporting basic human needs like drinking or irrigation. Water Rights could also include the physical occupancy of waterways for purposes of travel, commerce and even recreational pursuits. The legal principles and doctrines that form the basis of each type of water rights are not interchangeable and vary according to local and national laws. Therefore, variations among countries, and within national subdivisions, exist in discussing and acknowledging these rights.
Utilization of water as an element.
Based on ownership of the land.
Often, water rights are based on ownership of the land upon which the water rests or flows. For example, under English common law, any rights asserted to 'moveable and wandering' water must be based upon rights to the 'permanent and immovable' land below.
On streams and rivers these are referred to as riparian rights, or littoral rights, which are protected by property law. Legal principles long recognized under Riparian principles, involve the right to remove the water – for drinking or irrigation- or to add more water into the channel – for drainage or effluence. Under riparian law, the water is subject to the test of ‘reasonable use’. The judiciary has defined ‘reasonable use’ principle as follows: “the true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not.” Because of the limits on use, the doctrine of riparian rights is often known as the "downstream user rule"—the downstream users have rights to the water which the upstream users may not abridge.
Published on 3 years, 4 months ago