Riparian Rights in Nonnavigable Waters
Water Law & Access Rights to Lakes, Ponds & Streams
By Sally A. Roberts
Connecticut has consistently followed the common law rule concerning ownership of
land beneath bodies of water.1 With respect to man-made, nonnavigable2 bodies of water, the
prevailing view is the common-law rule that when a party owns a portion of the land beneath the
water in severalty, that party has exclusive rights over that portion, and riparian rights with
respect to that portion do not attach to other properties abutting the water.3
The common law rule is easy to understand. It is logical extension of Latin maxim –
cujus est solum, ejus est usque ad coelum et ad inferos, meaning “to whomever the soil belongs,
he owns also to the sky and to the depths.”4 The maxim cujus est solum has long been a part of
England’s body of legal literature, with eminent common law scholars such as William
Blackstone describing and applying the maxim in his 1776 commentaries on English property
law.5 The maxim was warmly received in the United States as well, with it principle gaining
recognition in American courts as early as 1832.6 A Connecticut case recognized the maxim with
full use of the Latin phraseology in 1836.7
Under this rationale, a landowner’s right to property is understood “to extend from
heaven to hell.”8 The common law rule regarding access to the surface on nonnavigable lakes,
then, is consistent with concepts of absolute ownership.9 An owner “is entitled to exclusive
dominion over his land, including the areas above and below its surface.”10
1
See Ace Equip. Sales, Inc. v. Buccino, 273 Conn. 217, 229 (2005).
The issue is only controversial when its application is restricted to water bodies that state laws deem nonnavigable.
In most states, waters that meet state definitions of navigability are open to public use. See A. William Goldfarb,
Water Law 85-87; see also Dan Tarlock, Law of Water Rights and Resources 8.28, at 8-45 to -52 (2002 & Supp.
2005). If members of the general public are entitled to access and nonconsumptive uses of the waters of these
navigable bodies, a fortiori, riparian landowners may do the same. It is only over nonnavigable waters, for which
state law generally imposes no right of public use.
3
See Ace Equip. Sales, Inc. v. Buccino, 273 Conn. 217, 228 (2005).
4
Black’s Law Dictionary 378 (6th Ed. 1990); accord Russ VerSteeg, Essential Latin for Lawyers 127 (1990); see
also Clement L. Bouve, Private Ownership of Airspace, 1 Air L. Rev. 232, 244 (1930) (tracing the origins of cujus
est solum).
5
See 2 William Blackstone, Commentaries on the Laws of England 18 (1766) (“Cujus est solum, ejus est usque ad
coelum, is the maxim of the law, upwards: therefore, no man may erect any building, or the like, to overhang
another’s land; and, downwards, whatever is in a direct line between the surface of any land, and the center of the
earth, belongs to the owner of the surface. … So that the word “land” includes not only the face of the earth, but
everything under it, or over it.”).
6
See Winton v. Cornish, 5 Ohio 477, 478 (1832) (“He who owns a piece of land … is the owner of everything
underneath in a direct line to the center of the earth and everything above to the heavens.”)
7
See Lyman v. Hale, 11 Conn. 177, 179 (1836).
8
See David H. Getches, Water Law in a Nutshell 234 (3d ed. 1997).
9
Id.
10
See 1 S.V. Ciriacy-Wantrup, et. al, Waters and Water Rights 52 (Robert Emmet Clark ed., 1967)
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The right to exclusive dominion does not cease merely because the privately owned land
is covered with water. The landowner has the right to the exclusive use and control of
everything above and below his land, including the waters lying immediately above his bed. Is
essence, the common law rule treats the waters overlying privately owned lakebeds as if they
were dry land.11 Thus the common law rule finds that one riparian landowner crossing the
boundary lines by steering his boat into the water overlying bed owned by another riparian
landowner, or merely casting a fishing line into water overlying bed owned by another, commits
a trespass.12
The beauty of the rule is in its consistent application. Under the common law rule, a
landowner is entitled to insist upon excusive dominion, applied both to dry land, and to any
waters that might cover those lands.13 It follows that under this rule, the right to make
nonconsumptive or recreational uses of the waters of nonnavigable lakes lies solely in the owner
of the bed immediately beneath that water.14
Historically, property rights in lakes or ponds were significantly different from property
rights in rivers or streams, and each had different names. Rights in rivers or streams were
“riparian,” while rights in lakes or ponds were “littoral.” Although rights in the Great Lakes, and
other large bodies of standing water still are treated differently from the rights of owners along
the shore of smaller lakes or ponds in some jurisdictions, the two terms generally have merged
and the term “riparian right” is now considered to encompass both types.15 The difference in
terminology as between “riparian” or “littoral” does not affect the substantive rights of the
defendants.16
Riparian rights are not an easement in the water or an appurtenance to the land. Rather,
they constitute a property right which is inseparably annexed to the ownership of land adjoining
a water course.17 Such rights are usufructuary in the water and entitle the owners of the land to
which they are annexed to make use of the water for the ordinary purposes of domestic life, the
watering of animals, bathing, boating and general recreational use.18 A riparian proprietor is the
owner of land bounded by a watercourse or lake through which a stream flows, and such right
could be claimed only by such owner.19
Title to the land under the stream is an important incident of riparian ownership. When
land is owned on both sides of a nonnavigable watercourse the riparian proprietor owns the
Recent cases, Waters and Watercourse – Nonnavigable Lakes; Right of Use in Bed Owners, 26 Minn. L. Rev.
569, 570 (1941-42).
12
James W. Cullis, Extent of Private Right in Nonnavigable Lakes, 5 U. Fla. L. Rev. 166, 176 (1952).
13
Joseph B. Gaudet, Water Recreation – Public Use of “Private” Waters, 52 Cal. L. Rev. 171, 174 (1964).
14
Id.
15
See generally Robert I. Reis, UConn Inst. Water Resources, Connecticut Water Law: Judicial Allocation of Water
Resources (1967).
16
See Water Street Associates, Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 769 n.5 (1994). Black’s
Law Dictionary (7th Ed. 1999) defines riparian as “of, relating to, or located on the bank of a river or stream (or
occasionally another body of water, such as a lake).
17
See Buddington v. Bradley, 10 Conn. 213, 218 (1834).
18
See Harvey Realty v. Borough of Wallingford, 111 Conn. 352, 359-61 (1930).
19
See Harvey Realty v. Borough of Wallingford, 111 Conn. 352, 358 (1930).
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entire bed for the full length of his property. If the riparian proprietor owns only on one side of
the watercourse, he holds title to the subaqueous land to the center of the stream and no further.20
For some examples from Connecticut case law, the Court has held that the right to take
fish from a pond belongs to the owner of the soil over which the water flows because ownership
of the soil carries with it ownership of the water.21 In a case where the abutting owner held title
to most of the land over which plaintiff had a right of flowage, the Court refused to restrict such
owner’s right to use the water for recreational purposes except for that portion of the lake where
the plaintiff held title to the bottom.22
Where the abutting owners sought to restrain the owner of the subaqueous land from
removing their docks which extended into the lake, the Court overturned the trial court’s
judgment in favor of the plaintiff since there was no basis for finding that the abutting owners
had any implied easement to maintain such docks. The Court recognized the subaqueous
owner’s right to remove the docks to the water’s edge.23
The Connecticut Supreme Court has recently addressed the issue of whether the owners
of property abutting a man-made, nonnavigable pond have the right to use the pond for
recreational purposes when the majority of the land beneath the pond is privately owned by
another party.24 Ace Equipment Sales, Inc. v. Buccino involved a dispute between two riparian
owners on a nonnavigable pond.25 The plaintiffs, including two recreational fishing clubs, were
owners of ninety-nine percent of the bed of a twenty-acre manmade pond. They stocked the
pond and used it for recreational fishing. The Defendants, the Buccinos, owned almost none of
the bed of the pond, but owned the property on which the dam controlling the pond was
erected.26 After the Buccinos began granting permission to a fly fishing club to use the pong, the
plaintiffs constructed a twelve-foot high fence along the pond’s border. The intent was clearly to
prevent use by the defendant-riparians. The plaintiffs filed suit, seeking an injunction to prevent
the Buccinos and their guests from “trespassing” on the water.
Essentially, the plaintiffs argued that because they owned nearly the entire bed of the
pond, they were entitled to exclude others from the water overlying that bed. The Buccinos, in
contrast, urged that their fellow riparian landowners on a nonnavigable pond had no right of
ownership in the water and that, as owners of land abutting a pond - they were entitled to make
recreational use of those waters, even when covering bed owned by another.
The trial court ruled for the Buccinos, finding that owners of land abutting a
nonnavigable body of water have riparian or littoral rights that are not dependent on the genesis
of the body of water as artificial or natural, or on the ownership of the subaqueous land.27 The
20
See Parker v. Griswold, 17 Conn. 288 (1845).
See Turner v. Selectman of Hebron, 61 Conn. 175, 188 (1891).
22
See Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 367 (1940).
23
Schroder v. Battistoni, 151 Conn. 458 (1964); see also Peck v. Edelman, 2000 Conn. Super. LEXIS 1903.
24
Ace Equip. Sales, Inc. v. Buccino, 273 Conn. 217 (2005).
25
Id.
26
There was some dispute as to whether the Buccinos owned any portion of the lake bed at all. The Connecticut
Supreme Court remanded to the trial court to resolve this factual question.
27
Ace Equip. Sales, Inc. v. Buccino, 2002 Conn. Super. LEXIS 156.
21
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Connecticut Appellate Court agreed, finding case law in Minnesota and Michigan instructive.28
Both Minnesota and Michigan allow all riparian owners to access the entirety of the surface of
nonnavigable lakes, provided such use is reasonable and does not unduly interfere with the
exercise of similar rights on the part of other abutting owners, regardless of the ownership of the
bed thereof. Thus, the plaintiffs were required to remove their fence and allow the Buccinos
access. The Connecticut Supreme Court rendered a decision reversing the trial and appellate
court rulings and granting the plaintiffs the exclusive use of the waters above the pond bed they
owned.29
28
29
Ace Equip. Sales, Inc. v. Buccino, 82 Conn. App. 573 (2004).
Ace Equip. Sales, Inc. v. Buccino, 82 Conn. App. 573 (2004).
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