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TRADITIONAL ENGLISH
COMMON LAW AND
INDIANA WATER RIGHTS


The basic concept of riparian rights is that an owner of land abutting a waterway has the right to have the water continue to flow across or stand upon the land, subject to the equal rights of each owner to make strictly limited use of the water. The origins of this concept are ancient and have been variously attributed to Roman Law, the Code Napoleon, or English common law7.


As stated by the United States Supreme Court:
As long ago as the institutes of Justinian
running waters, like the air and the sea,
were res communes-- things common to
all and property of none. Such was the
doctrine spread by the civil-law com-
mentators and embodied in the Napo-
leonic Code and in Spanish law.
This concept passed into common law.8

In the middle 19th century, courts in England and in the United States were faced with determining rights to groundwater. For the most part, the courts opted for the concept that the landowner held absolute ownership to its groundwater.9

The basic legal regime for water usage in Indiana has been characterized as "regulated riparianism."" Although the right to use the water is ordinarily associated with the ownership of land beside or within which the water is located, there has been a growing legislative inclination to buffer the most rigid applications of traditional riparian doctrine. Four categories of water sources are recognized, and these categories have implications for the ownership of the water.10

The first category is surface water that flows in a permanent channel or is located in another permanent body of water. Included in this permanent body of water. Included in this category are rivers, streams, lakes, and ponds. At common law, each riparian or littoral owner has "an equal right" to the water, but "no one has a right to use it to the material injury" of another riparian or littoral owner.11 By statute, a withdrawal for a domestic purpose has "priority and is superior to all other uses."12 The common law has also been modified by several statutory provisions governing permanent surface waters. Included among these statutory modifications are those applicable to inland lakes,13 to Lake Michigan and other navigable waters,14 and to the emergency regulation of lakes or ponds containing at least ten acres.15

The second category is dispersed surface waters. Generally, a landowner may use these waters in any manner that suits the landowner's convenience. "[T]he wild water that lies upon the surface of the earth, or temporarily flows over it as the natural or artificial elevations or depressions may guide or invite it, but without a channel . . . fall within the maxim that a man's land extends to the center of the earth below the surface, and to the skies above, and are absolute in the owner of the land."16 This common law principle has been codified in Indiana. "Diffused surface water flowing vagrantly over the surface of the ground is not considered to be public water. The owner of the land on which the water falls, pools, or flows has the right to use the water."17

The third category is water in subterranean streams. Although no case directly addressing this condition has been located in Indiana, a reference from a landmark decision of the Indiana Supreme Court suggests the same standards apply as apply to the first category (surface waters in channels).18

The fourth category is "percolating groundwater" or groundwater that lacks a defined channel. "Groundwater is part of the land in which it is present and belongs to the owner of that land." Where a person uses or disposes of percolating groundwater for a beneficial purpose to the landowner, damage that results to another is generally not actionable unless the damage is deliberate or gratuitous.19 Statutory exceptions have been applied to the common law. The most important is probably the emergency surface water act,20 but a recent decision recognizing another exception for surface coal mining reaffirms the ability of the Indiana General Assembly to change the common law of groundwater ownership.21

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