10.8 General Riparian Rights

• Library: Real Estate Practice Deskbook (2019 Ed.)

2. (§10.8) General Riparian Rights

Generally, rights to use water are considered property rights and are ordinarily regarded as constituting a part of the land in or on which water is found. This concept was set forth in Armstrong v. Westroads Development Co., 380 S.W.2d 529, 537 (Mo. App. E.D. 1964), in which the court defined a "riparian owner" as "an owner of land bounded by a watercourse or through which a stream flows"; that is, riparian land must actually touch a watercourse.

As explained in §10.10 below, rights regarding subterranean water are governed by rules similar to those governing riparian rights, though the definition of the word "riparian" relates to the banks of rivers, streams, and lakes.

Reasonable Use Rule. To balance rights of multiple owners, Missouri has adopted a modified reasonable use rule, which considers various factors, including the economic value of the use, the social value of the use, the harm involved, and the cost of avoidance of that harm, to be balanced in determining what is reasonable, i.e., the comparative reasonable use rule. Higday v. Nickolaus, 469 S.W.2d 859 (Mo. App. W .D. 1971); see also Ripka v. Wansing, 589 S.W.2d 333 (Mo. App. S.D. 1979) (adopting factors from the Restatement (Second) of Torts § 850A (1977)). For a case discussing various types of riparian uses that are unreasonable, see Dardenne Realty Co. v. Abeken, 106 S.W.2d 966 (Mo. App. E.D. 1937).

The reasonable use rule is comparative, requiring all water users to accommodate each other's reasonable uses of water, and that, as

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