Riparian Rights – Living by the Water
If you own land with a body of water that is on, next to, or running through your property you may have wondered about your rights with respect to the use or enjoyment of that water.
What are riparian rights?
Riparian rights are not ownership rights. Rather, they are rights to use a body of water for individuals who own land around said water. To determine whether you have riparian rights in a body of water, you must first determine the limits of your property.
Limits of your property
Many landowners may be surprised to find out that their original deed or title creates a boundary that does not extend to the water’s edge.
Many homes are sold as “waterfront homes”, but the property itself does not actually abut the body of water. This is often the case with homes surrounding public beaches and conservation areas.
However, if your deed or title creates a boundary that is for example, “to the water’s edge”, or the boundary described nonetheless extends to the water’s edge, then you likely have riparian rights with respect to that body of water. Having riparian rights can be an important consideration for purchasers of cottages or any waterside homes. Many purchasers wish to ensure exclusive use of the lot up to the water’s edge.
“To the Water’s Edge”
If your deed or title creates a boundary that is “to the water edge”, or the boundary itself measures to the waterway, then you may have considered what happens during droughts or floods.
In Ontario, any boundary that is to the water’s edge means to the “low water mark” of the body of water — this is also known as the usual position of the water in ordinary years under natural conditions.
Without evidence to the contrary, the land granted will be up to the water, not up to the “high water mark”, river bank, or other environmental boundary.
Once it is determined that you indeed have riparian rights to use a specific body of water, the extent to which those riparian rights allow certain uses depends on the type of water body:
Riparian rights to access underground/percolating water are the most absolute at common law: landowners have the right to withdraw as much underground water as they like, without regard to the effect that this withdrawal might have on neighbouring landholders.
Rivers (Navigable Waterways)
The difference between rivers and streams can be summarized in a word, navigability.
In Ontario, everyone has the right to travel along every waterway deemed navigable. This right can be quite important as some waterways flow through what would otherwise be private land. Specifically, for landowners whose property contains a waterway that is considered navigable, they should know that the Crown owns said waterway and that the public can use it for transportation or recreation.
For the waterway to be considered navigable the waterway must:
(1) be physically capable of being traversed by a boat of some sort (this includes small canoes);
(2) be capable of facilitating transportation in relation to a public purpose (commerce, agriculture, recreation, etc.); and
(3) run from one point of public access to another, so that trespass on privately-owned land is not needed in order to access the waterway.
If a navigable river flows through or abuts your property, you will still have riparian rights to use and enjoy the river. However, you cannot sue for trespass persons using only the waterway.
You are also not permitted to use the river water for “unreasonable uses”. Unreasonable uses would be any commercial, large scale agricultural or other use that would affect the quality or quantity of water available to any downstream land owners.
(c) Non-navigable Waterways (Brooks, Creeks, & Streams)
A non-navigable stream, brook, or creek normally has a small flowrate. These are commonly used as storm drain offs or seasonal drains, but can also be permanent bodies of water. Any non-navigable waterway cannot be used by the public.
As they are non-navigable, by definition the only access to the body of water would be through trespass to property. Non-navigable waterways located on private property can be used for such purposes as the landowner sees fit. These bodies of water are considered private property.
Riparian rights in these bodies of water are similar to those of underground/percolating water, as the water can be used for any purpose and in any amounts.
Lakes are very similar to navigable rivers. If the landowner owns to the water’s edge (the low water mark) then that land cannot be traversed by the public, this is often called a “private beach” or “private shore”. The lake itself is owned by the Crown and can therefore be used by the public for, commercial, recreation, or travel purposes. The one exception to this is private or manmade lakes or ponds. These are lakes or ponds that are surrounded by privately owned lands. These cannot be accessed by the public without trespassing onto private property and therefore are not capable of being used by the public.
There are also municipal by-laws, and statutory exceptions which may impact your riparian rights. For more information about these permitted uses contact the team at Brown Beattie O’Donovan.