What Rights Does an Owner of a Riverside Have to Use The River?
February 16th, 2023 by Paul Reimer
A person who owns land along a river or other body of water is called a “riparian owner”. The rights that a riparian owner has to use of the river are called “riparian rights.”
A riparian owner does not own the river itself. Pursuant to The Water Rights Act of Manitoba, all property in the water of a river or other body of water is vested in the provincial Crown. Riparian rights are therefore grounded in a private person’s ownership of property abutting the river, not ownership of the water in the river itself.
It is worth noting that not all ‘riverfront properties’ are truly riparian properties. In 1934, the Province enacted The Crown Lands Act which provided that in grants from the provincial Crown of land on the shore of “any navigable water”, the Crowns reserves “a strip of land one and one-half chains in width, measured from ordinary highwater mark” (“one and one-half chains” in width is equivalent to 99 feet). This means that many parcels of land created from more recent grants from the Crown are not truly “riparian” properties, as they do not own the banks of the river, since 99 feet from the “ordinary highwater mark” of the river is reserved to the Crown.
Under English common law, riparian owners have considerable rights to use of the river. Riparian rights include the right to receive the continual flow of water. At common law, riparian owners have the right to have the water of the river arrive in its ‘natural state’.
Riparian rights also include the right to the reasonable use of the water as the riparian owner pleases, provided that such use is not inconsistent with other riparian owners’ right to also receive the water in its natural quality and quantity. At common law, riparian owners have the right to use of the water for ‘ordinary’ uses (including the watering of animals and use for domestic purposes) and the right to reasonable use of the water for ‘extraordinary’ uses (such as manufacturing or crop irrigation), provided that such ‘extraordinary’ use does not unduly interfere with access to water for riparian owners downstream.
At common law, riparian rights also include the right to access all parts of the river that borders the riparian owner’s land. Riparian owners have the right to construct a floating dock or wharf moored to the shoreline or to moor a boat along the bank, provided that it does not interfere with the public right of navigation down the waterway.
At common law, riparian owners also have the right to accretion. This means that if the shoreline of the river naturally recedes, the dry land left behind may be considered to have been added to the riparian owner’s property.
If someone interferes with a riparian owner’s riparian rights, the riparian owner can seek relief through court action. Interference with riparian rights is a recognized cause of action. For example, if someone upstream obstruct the natural flow of water, the riparian owner downstream may be able to seek damages or injunctive relief.
Notably however, riparian rights at common law can be altered, abridged or even abolished by legislation.
The Water Rights Act of Manitoba, for example, contains considerable limitations to riparian rights that are otherwise recognized at the common law. For example, The Water Rights Act requires a riparian owner to have a license from Manitoba Conservation to use or divert water or to construct certain works or structures such as dams, canals, drainage ditches, etc. The Water Rights Act does, however, permit riparian owners (i.e. persons with “lawful access to the water”) to a limited amount of unlicensed use of water for “domestic purposes”, meaning “for household and sanitary purposes, for the watering of lawns and gardens, and the watering of livestock and poultry”.
The Water Resources Administration Act of Manitoba is another example of legislation that curtails common law rights of a riparian owner in certain designated areas and waterways.
Other legislation may also apply to limit riparian rights in the Province of Manitoba. The by-laws of a local municipality (such as zoning by-laws) may also contain rules or restrictions on a riparian owner’s use and enjoyment of the river and development by a riparian owner along the riverbank.
Ultimately, before undertaking to use the body of water (for purposes such as diverting water, mooring a floating boat or constructing a dock or wharf), riparian owners in Manitoba should contact Manitoba Conservation, their local municipality and other applicable governing authorities to inquire on the rules applicable to their watercourse. While under English common law, riparian owners have fairly broad rights to use of the river that their property abuts, modern-day legislation, regulations and by-laws may significantly curtail the extent of the riparian owners’ rights at common law.
Notice: The articles on our website are provided for general information purposes only and should not be relied upon as legal advice or opinion. They reflect the current state of the law as at the date of posting on the website, and are subject to change without notice. If you require legal advice or opinion, we would be pleased to provide you with our assistance on any of the issues raised in these articles.
