HomeNewsRollin’ in the Deep…an interesting topic of riparian rights

Rollin’ in the Deep…an interesting topic of riparian rights

Costello, Cooney & Fearon’s Dan Rose recently received a favorable decision by the Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department in a riparian rights case, Webster Golf Club, Inc. v. Monroe County Water Authority, 2023 N.Y. Slip Op. 4280 (4th Dep’t 2023), which also serves as an important reminder for developers.

Love Thy Neighbor and Respect Their Riparian Rights

For developers, compliance with stormwater management plans and DEC regulations can present certain challenges, but developers also need to be conscious not to interfere with neighbors’ common-law riparian rights. A riparian right is a special type of right to the use and enjoyment of natural water found on land. Importantly, the rules surrounding riparian rights depend upon the classification of water underlying the claim of right. A riparian right is a right to the use and enjoyment of water as it flows in a natural watercourse. By contrast, surface waters are defined as an accumulation of natural precipitation on the land and its passage thereafter over the land until it either evaporates, is absorbed by the land, or reaches stream channels.

Earlier this month, the Fourth Department upheld the old, yet important, principle holding owners have an unfettered right to “get rid of [surface water] in any way [it] can, provided only that [it] does not cast it by drains, or ditches, upon the land of [its] neighbor,” even if the landowner “prevents the water from reaching a natural water-course, as it formally did.” Webster Golf Club, supra (internal citations omitted).

The Fourth Department’s Decision

In Webster Golf Club, Inc. v. Monroe County Water Authority, plaintiffs alleged the Water Authority (“MCWA”) depleted the water in a stream to such a degree that plaintiffs could no longer irrigate their golf course. The stream at play was fed was two (2) tributaries, one of which originates on MCWA’s property. Around 2010, MCWA began work on the Webster Water Treatment Plant, which involved the development of a previously undisturbed parcel of land on Basket Road in the Town of Webster. The plaintiffs alleged that MCWA reduced the flow of the stream by collecting and diverting rainwater at the Webster Plant site, and prevented it from reaching the tributary that fed the stream.

The Supreme Court substantially denied MCWA’s motion for summary judgment holding plaintiffs’ had riparian rights to the waters feeding the stream. On appeal, Partner and Litigation Department Chair, Dan Rose, and Associate Maggie French successfully argued that the plaintiffs’ submissions described the contested water as “groundwater” and “surface water” that flowed from the surface and “wetlands” on MCWA’s property. Therefore, MCWA established through plaintiff’s own pleadings, and the Appellate Division unanimously agreed that “[t]here was no natural water-course over [MCWA’s] lot. The surface water, by reason of the natural features of the ground, and force of gravity, when it accumulated beyond a certain amount… passed upon and over” MCWA’s property. Id.

Construction Law Questions?

Cases surrounding riparian rights are few and far between. Webster Golf Club re-emphasizes the old, yet significant, right for an owner to do as it pleases with surface water in developing its property, so long as it does not substantially interfere with the flow of water already in a stream.

Costello, Cooney & Fearon, PLLC’s experienced attorneys represent owners and construction contractors throughout the development process, including when litigation arises.  If you have any questions regarding the content of this alert or need legal counsel related to a development project, please contact Dan Rose, or Bob Smith, head of our Construction Law team.

Margaret A. French
Margaret A. French