Section 2 General Riparian Rights

• Library: Real Estate Fundamentals 2011

There are two basic common-law theories articulated in the United States controlling the diversion, pollution, and consumption of water in or from a natural watercourse:

1. Natural flow theory

2. Reasonable use theory

Paul A. Hanna, Property—Rights of Riparian Owner in Missouri With Respect to Obstruction of a Natural or Artificial Watercourse, 18 Mo. L. Rev. 67, 71 (1953); Donald E. Burrell & Donald G. Stubbs, Comment, The Rights of a Riparian Landowner in Missouri, 19 Mo. L. Rev. 138, 139–40 (1954). Under the natural flow theory, each riparian owner has a right to have the body of water maintained in its natural state. The reasonable use theory permits each riparian owner to be free only from an unreasonable interference by others with the owner’s use of the water.

Missouri has adopted a modified reasonable use theory by adding a requirement that 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, 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....