Encyclopedia of the Great Plains

RIPARIAN DOCTRINE

The riparian doctrine is a system of water law that gives the owner of land bordering a stream or river, or riparian land, the legal right to use the water of the stream. The right to water use comes from the spatial connection between the stream or river and the riparian land. The riparian right cannot be bought or sold. Nor can a riparian right be extinguished due to nonuse or ine.cient use of the water. The riparian right cannot be separated from the land and thus is a permanent benefit of owning riparian land.

Riparian rights are correlative, which means all riparian landowners have an equal right to use the stream or river. Under the riparian doctrine, a riparian landowner has the right to use a reasonable amount of stream water to supply needs naturally arising from living next to a watercourse. However, uses of water must not significantly reduce stream quantity, diminish the quality of the water, or change the spatial pattern of flow, as these alterations may affect the rights of others living along the stream.

Normal riparian uses are not extensive. Traditionally these include domestic water uses, such as supplying household needs and stock watering. Some nonconsumptive commercial uses such as powering a mill are also acceptable. Alternate uses are presumed to be legitimate so long as the use does not negatively affect other riparian rights to the same stream. Riparian rights are based on the theory that most of the water used on riparian land will eventually return to the stream because the water is used in the same drainage basin.

The riparian doctrine was the pioneering water law in the legal landscape of the Great Plains. The first riparian rights were introduced into Texas by the Spanish more than 200 years ago. Subsequently, the riparian doctrine, bundled as part of the common law, came to the Great Plains with the westward expansion of European American settlement in the nineteenth century.

The riparian principles of water law had worked well for settlers in the eastern parts of North America. However, as settlers moved to the drier climates of the western Plains, riparian methods of environmental adaptation did not necessarily yield the same results as those achieved in more humid environments. As population in the marginal environments of the Great Plains increased, and as the settlers tried to duplicate the lifestyles and population densities of the east, demands for water also increased. This led to competition for scarce water and a demand for more efficiency in water usage. Early disputes centered over irrigation diversions, and riparian rights were increasingly circumscribed by allowing only "reasonable" uses of water. Court decisions in Dakota Territory (1866), Nebraska (1903), and Kansas (1905) established this principle. Gradually the competing doctrine of appropriation rights displaced riparian rights in Plains states, with the exception of Texas. But even in Texas, grants of state lands have not conveyed riparian rights since 1895.

Theron Josephson Ferris State University

Dunbar, Robert G. Forging New Rights in Western Water. Lincoln: University of Nebraska Press, 1983.

Hutchins, Wells A. Water Rights in the Nineteen Western States. Washington DC: Government Printing Office, 1974.

Trelease, Frank J., and George A. Gould. Cases and Materials on Water Law, 4th ed. St. Paul MN: West Publishing Company, 1986.