28-Water Rights-What Really Matters Legal Issues!

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Encroachments

An encroachment is an intrusion of a building, improvement, or an object from one property owner’s land onto another property. Five of the most common encroachments include:

 

  • Drivewaysdownload
  • Fences
  • Garages
  • Trees
  • Walls

 

The rights of the owner of the property that has been encroached upon vary, but could include damages or the ability to force the other owner to remove the encroachment. Generally, these encroachments are inadvertent and remain undiscovered until the property is surveyed in the process of selling a property. The fact is that property lines exist on maps, not the ground, Which can lead to mistakes in placing improvements or objects onto land.

Quick Quiz

Fill in the Blank:
Encroachment is an of a building, improvement, or an object from one property owner’s land onto another .

An inspection of the property and land surrounding it may show an encroachment from neighboring property. Preliminary title report issued by the title company may also identify encroachments. And, of course, one of the best sources to determine the boundary of a property is to have a survey done. In some states, homeowners who have been encroached upon can secure the title to the property that is encroaching, especially if the owner can show that the encroaching neighbor knew about the intrusion for a specified number of years and yet did nothing to remedy the problem. Upon any discovery of encroachment, landowners should take steps to resolve the situation. And it is good to know that solutions to encroachment do not have to result in conflicts or legal action. For instance, in the event a tree is the cause of encroachment, property owners can simply share the need to prune, spray, and water the tree.

download (1)Water Rights

Water rights laws were enacted as a result of the natural environmental, climatic and topographical conditions of an area. Every state has laws that govern water use, and these laws were established early in American history. Many of these laws are based on English and Spanish concepts and were established at a time when 90 percent of the population was engaged in agriculture. The evolution of American society and economic culture to a more urban and industrial way of life has required adjustments in these laws. Additionally, these laws are increasingly shifting from being solely based on human demand to ecological considerations. In most states, governmental water resource agencies manage how the citizenry uses water. These agencies have the responsibility to conserve, protect, and manage natural water resources. This means managing water rights, monitoring water use, and ensuring that state laws are being adhered to. This is a particularly important responsibility for those states that are experiencing the highest population increases. Take Nevada for instance. Recent census data has shown that the state has been the fastest growing state for two decades, yet it is also the driest state in the union. In locations near streams or lakes, states rely upon or two common-law doctrines:

1) Riparian

2) Littoral Water Rights.

And where water is less abundant, states may have applied appropriation water rights instead. When climatic and topographic regions vary – in California, for example – it is not uncommon to see all three of these measures of control applied within the same state.

Quick Quiz

Fill in the Blank:
Water rights   were enacted as a result of the natural environmental climatic and topographical conditions of an.

download (2)Riparian and Littoral Water Rights

Under riparian water rights, a landowner is allowed to make “reasonable” use of water that is flowing in a stream or river adjacent to the owned property. Riparian water rights are based on English common law and mostly used in the eastern United States. Most often, these rights apply to domestic uses but can also apply to fishing, swimming, warts, or other structures. In certain cases, water may be allocated among users. Littoral water rights involve property adjacent to lakes or the ocean. Littoral means the shore or the zone between the high and low tide points.  Usually, littoral rights involve the use and enjoyment of a shoreline. In general terms, these types of water rights are unlimited, provided they do not pollute the body of water, modify the natural flow of the water, or interfere with other water-right owners’ use of the body of water.  

NOTE: These water rights cannot be sold or transferred other than with the adjoining land, and they cannot be transferred to non-riparian owners. Instead, they are attached to the land, and, as such, cannot be retained by a previous owner or sold separately from the land.

Riparian and littoral rights commonly include the right to:

  • Swim
  • Boat
  • Fish
  • Erect structures such as docks or piers (the point of navigability)
  • Use the water for domestic purposes
  • Use the water for agricultural purposes
  • Protect views of the water

Riparian owners do not have any actual ownership of the water itself, and as such may not legally divert the water to land that does not adjoin the stream.

Quick Quiz

Fill in the Blank:
Riparian   rights are based on English common law and mostly used in the United States.

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