The Doctrine Of Riparian Rights
It is an incontrovertible fact that water is a highly valued and sought after natural resource, especially considering the reality that water is pivotal to economic growth of a nation. Water scarcity is a common phenomenon in many countries, most especially in third world countries. Thus, conflicts between individuals over this free gift of nature would be a commonplace.
The existence of riparian rights speaks to the fact that the law seeks to leave no stone unturned with regards to protecting the interests of land owners. For the sake of clarity and a clear sense of direction, riparian rights refer to the rights a land owner possesses by virtue of him being in contact with a body of water, be it a stream or a river. The riparian rights doctrine is one which has its umbilical cords tied to the English common law. An exploration of this doctrine will enlighten us to the reality that by virtue of an owner of land being within a certain proximity of a body of water, such an individual is entitled by the law to make use such body of water as it suits and benefits him, as long as it doesn’t interfere with the rights of other land owners.
A Brief History On The Emergence of The Riparian Rights Doctrine
In the late eighteenth and early nineteenth centuries, water resources were quite pivotal to the economic growth and development of England, seeing as that was the time frame in which the entire western world was ushered into the Industrial Era. Those periods were bedeviled with much legal conflicts over water, typically over over domestic, agricultural and manufacturing interests striving for access to water. Attempts were made by factory owners to try and divert water from rivers for industrial purposes. Though legal decisions of some courts were made in a bid to prevent such occurrence, other courts adjudicated in favour of allowing riparian owners “reasonable use” of water for industrial purposes, as long as it did not affect the rights of other riparian owners.
From 1750s, the common-law courts developed a large but unstable body of legal doctrine specifying strong property rights in flowing water attached to riparian possession, and also limited rights to surface and underground water. Over time a modified theory surfaced, whereby riparian owners could make use of water as it suited the needs for their land. It would not be far-fetched to say that the riparian doctrine at some point was just as unstable as the subject matter of the doctrine itself. Trying to claim possession over flowing water is like trying to catch a cloud and pin it down, as it cannot be possessed in a tangible fashion like land, only quasi-possessed or appropriated.
The Riparian Rights Doctrine
The word “riparian” is derived from the Latin word “riparius”, which simply refers to “inhabiting or situated on the bank of a river”[1]. This doctrine regulates the use of surface water. It states that owners of land are entitled to reasonable use of water adjacent to them for their benefit. The general principle is that “every riparian proprietor is entitled to the water of his stream, in it’s natural flow, without sensible diminution or increase and without sensible alteration in it’s character and quality”[2].
According to Butterworths on The Law of Torts, this general proposition can be broken down into six specific rules. First, a riparian owner is entitled to take water from the stream for ordinary purposes connected with his riparian land, such as domestic use and watering of cattle[3]. Second, a riparian owner is entitled to take water for other purposes connected with his riparian land, such as irrigation, provided that the water is restored to the stream substantially undiminished in volume and unaltered in character [4]. Third, a riparian owner has no right to take water for a purpose unconnected with his riparian land [5], for example the supply of a neighbouring town [6]. Fourth, an upper riparian owner has no right to divert the stream to the detriment of lower riparian owners [7]. Fifth, any other interference which substantially alters the flow of water-such as raising the bed of the stream-is actionable at the suit of an upper or lower riparian owner whose property whose property is adversely affected [8]. Finally, anyone who pollutes a stream, for the example by discharging sewage or industrial waste into it, can be sued in nuisance by those whose riparian interests are affected [9]. Interference with these riparian rights will constitute as private nuisance.
Water Resources Act, 2004
It is not surprising that Nigeria has a Water Resources Act, seeing as the common law is quite an integral part of our legal system. In line with the common law position
concerning riparian rights, this statute was enacted. The aim of the Act is to promote the optimum planning, development and use of Nigeria’s water resources as well as other matters attached to it.
By virtue of the provisions of Section 2 of the Water Resources Act 2004, a person who has statutory or customary right of occupancy to land adjoined to a body of water, may take the water for his domestic purpose or for watering his livestock from that watercourse.. Additionally, such a person is entitled to use the water for fishing or for navigation so long as it is not inconsistent with any other law for the time being in force. Interestingly, Section 4 of the Water Resources Act 2004, notwithstanding the provisions of Section 2 of the Act, is to the effect that the Minister of Water Resources is vested with the power to define the places from which water can be taken from, the manner in which the water is to be extracted as well as the time frame for such extraction. Naturally, he has the power to also revoke the right to use or take water where such a right is likely to override public interest. A full view on the powers of the Minister can be found in Section 8 of the Act, some of which include:
- Ask for and obtain from any person plans relating to the use, control, protection, management or or administration of water projects;
- Prohibit storage, diversion, pumping or use of any water or the construction, maintenance, operation, repair or alteration of any borehole or any hydraulic works;
- Prohibit or regulate activities carried out on land or water which are likely to interfere with the quality or quantity of any water in any watercourse or ground water.
Conclusion
The crucial role that water plays in the carrying on of activities by mankind cannot be over-emphasized. It is one of the three essential’s that man needs to survive in life. A world where one would be unable to enjoy his right to use the body of water within a reasonable proximity to him, in order to cater to his domestic needs, water his livestock or even catch some fish, is a world that the law seeks to prevent through the establishment of the riparian rights doctrine. The Federal Government must ensure that the riparian rights of landowners are protected, in order to fashion a society that the guarantees the safety of such rights belonging riparian owners.
References
- Definition of “Riparian”, https://www.collinsdictionary.com/dictionary/english/riparian
- John Young & Co v Bankier Distillery [1893] AC 691 at 698, per Lord MacNaghten
- Milner v Gilmour (1858) 12 Moo PCC 131 at 156, 14 ER 861 at 890, per Lord Kingsdown.
- Bully&Co v Clark, Son & Morland [1902]
- McCartney v Londonderry and Lough Swilly Rly Co [1904]
- Swindon Waterworks Co v Wilts and Berks Canal Navigation Co (1875)
- Mason v Hill (1833)
- Orr-Ewing v Colquhoun (1877)
- Wood v Waud (1849)
- Stephen Hodgson, Modern Water Rights: Theory and Practice (2006), 4.
- Joshua Getzler, A History of Water Rights at Common Law, (OUP 2004).
- Butterworths Common Law Series, The Law of Tort, (Reed Elsevier Ltd 2002), 921.
- Water Resources Act, (Cap W2, LFN 2004).
About Author
Ukwenya Victoria Arewa-Ojoh is an undergraduate law student in her third year, at the prestigious institution of Ahmadu Bello University, Zaria.
