What are Riparian rights in easements?
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(1) General: Riparian tenements and owners are spoken of only in connection with streams or rivers running in a defined channel. Riparian land may be described as land which is on the bank of a stream and which extends from the bank to a reasonable depth in land. AIR 1954 Pat, 320. Illustrations (f), (g) and (h) to section 7 are examples of the natural rights of riparian owners. Rights of riparian owner to use waters of the stream does not depend upon ownership of the soil of the stream. AIR 1965 Ori. 91.
(2) Rights of riparian owners: The word “riparian” is to the bank of a stream. The dictionary meaning of riparian is “of on, river bank”. Ripa is bank and riparian is an adjectival derivative thereof. So , to be a ripatian owner one has to own some land abutting on the natural stream concerned. In the country riparian land must be confined to land which is on the bank of a stream and which extends from that bank to a reasonable depth in land. AIR 1954 Pat. 320.
(3) Stream: As these riparian rights exist in favour of proprietors of land abutting on a ‘natural stream’ it is necessary to determine what a stream is and what characteristics are necessary for calling it a ‘natural stream.’ In the case of the Secretary of State v. Balwan, ILR 28 Bom, 104, the Bombay high court has laid down that a perennial flow is not a necessary condition to a legal conception of stream. Provided the source though irregular, be one of constant recurrence and not merely fortuitous or temporary. In short a stream of water is water which runs in a defined course. 35 IC 356.
(4) Private and public streams: These natural rights exist in favour of owners of land abutting on a natural stream whether it is public or private. They are not absent in the case of natural lakes or ponds and the existence of such rights over them finds a clear recognition in illustration (g) to section 7 of the easements act. AIR 1936 Mad. 550.
(5) Natural stream: The explanation to illustration (j) of section 7 defines a natural stream to be a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course. Every owner of land abutting on a natural stream has the natural right to use and consume its water for drinking, household purposes and watering his cattle and sheep and also to consume it for irrigating such land and for the purposes of any manufactory situate thereon, provided it does not thereby cause material injury to other like owners. [Illustration (j)]
(6) Subterranean stream: Subterranean stream means water running underground in a defined or ascertained course. Whether water should be regarded as flowing through a defined channel is not always an easy question to answer. The problem is more acute in the case of water flowing underground, where there are obvious difficulties in ascertaining whether the water is flowing in a particular channel. Illustration (g) to section 7 relates to the right which every owner of land has to collect and dispose of all water under the land which does not pass in a defined channel. Illustration (h) recognizes the right of a riparian owner that water flowing in a natural stream on the surface shall be allowed by other persons to flow in his limits without interruption and without material alteration in quantity, direction, force or temperature.
(7) Artificial watercourse: An artificial watercourse is a stream that emanates at its source by human agency or, if natural at the source, flows in an artificial channel. In contradistinction to a natural stream which flows at its source by operation of nature, ‘an artificial stream flows at its source by the operation of man”. Where a natural river channel or rill runs through patta lands, it may be assumed that the bed is a poramboke, for, private ownership of the bed in such rivers, channels or rills, is not a common feature. But the case of artificial channel particularly serving purposes of agricultural lands stands on a different footing. Often patta lands lying over vast stretches will have to be irrigated from the main supply channel by means of branch artificial channels dug up through patta lands. Such channels are not poramborke but continue to be the private property of the paattadars. There is a presumption that an artificial irrigation channel running through patta lands is not poramboke but private property owned in common by the pattadars. AIR 1964 Mad. 493.
(8) Alluvion: Accretions normally are of three kinds:
(i) gradual and imperceptible additions of sediment, so that the bank or the shore is extended into the water. This is accretion by alluvion;
(ii) to gradual retirement of the water from the shore by the lowering of its level. This process is known as reliction; and
(iii) the process, which is very rare, by which a large quantity of land is suddenly added to the shore by its severance bodily from its former location. This process is known as avulsion. There are some other forms of accretions, such as, the emergence of island in the bed of the river and the reformation in situ.
(9) Rights to river beds: The law regarding the matter is well-settled, and may be stated brodly in five propositions: (1) The bed of a navigable river in any part of the country whether tidal or not is vested in the Government and not in the Zamindar or other private person owning lands on both sides of the river, unless it has been granted to such private individual. (2) To create a title to the river bed in the Government the river should be navigable at that part of it where the disputed plots are situated. (3) The ownership of the bed of the river would depend upon its character in 1802, the time of the permanent settlement and the grant of the adjacent land to plaintiff. (4) A river in the country is not navigable in the legal sense unless it is navigable throughout the year, though it need not be navigable for portion of the day, as at low tide.(5) Facilities for passage of large river craft, which may not be capable of rising to the dignity of ships, seem to be generally considered sufficient to call a river affording such facilities a navigable river. AIR 1952 Mad. 510.
(10) Fishery rights: An exclusive right of fishing in a given place means that no other person has co-extensive right with the claimant of the right. The mere fact that some other person is entitled to fish is the fishery or that another person is entitled to fish at a certain time of the year does not destroy the right of exclusive fishing in any manner. AIR 1951 SC 247.
(11) Ferry rights: It is desirable to consider briefly the law relating to ferry rights in Pakistan. That law is governed by the Ferries act, XVII of 1878. The Ferries act deals with public ferries, that is ferries which under the provisions of that act are run directly by the Government authorities or by lessees from Government. There is no doubt, however that the customary law in Pakistan, unlike that in England, recognizes private ferries. The right to ferry is wholly unconnected with the ownership or occupation of the land and it is not necessary that a ferry owner should have any property in the soil of the river over which he has a right to ferry, nor again is it necessary that he be the owner of the landing places of the ferry, it being sufficient that they are in a public highway, or that otherwise he has a right to land upon time. The ferry owner does not occupy that highway over the river, but has merely a right to make a special use of it. AIR 1957 All. 455.
(12) Diversion and obstruction of streams: Unless some special right entitles him to do so neither a riparian owner nor an owner of an easement of water may alter the flow or bed of a river or stream so as to increase the burden of servitude upon the servient tenement, whether by increasing the strength of the current altering its direction, or otherwise. The right of a riparian owner to obstruct water of a running stream adjacent to his lands for ordinary and extraordinary purposes does not depend on the ownership of the soil of the stream. With respect to the water is not an unrestricted right. It is subject to the obligation of seeing that no injury was caused to the property of another. AIR 1951 Nag. 276.
(13) Pollution of water: In the absence of statutory authority a person may not pollute the water of a natural watercourse to the prejudice of other persons entitled to the use of the water. A person who has acquired a right to the use of the water in a watercourse or subterranean water can prevent the pollution of the water, whether he has acquired that right under the doctrine of prescription of otherwise. 91856) 26 LJ Ex. 34. Illustration to section 7 contemplates that every owner of land has a natural right that the water which naturally passes or percolates by over or though his land shall not before so passing or percolates be unreasonably polluted by other persons.
(14) Utilization of water: A riparian owner may use the water for ordinary or primary purposes for his domestic wants and the general and usual requirements of his tenement, and he may also, subject to compliance with certain conditions, use it for other purposes, sometimes called extraordinary or secondary purposes, provided they are connected with or incident to his land.
(15) Excessive and non-riparian user: The right of a riparian owner to an extraordinary use does not enable a water company to divert water to supply a town, nor does it enable a railway company which owns, a tenement on a stream to divert water to a place outside that tenement and use it to supply locomotive along its line nor does it enable water to be diverted to supply a lunatic asylum and county jail.
Rights of Government to regulate water: The right to regulate and distribute water from a Government tank or source entirely vests in the Government. It is for the Government, in appropriate cases, to decide whether it is not possible for oil engines to be installed to pump out water instead of the water being lifted either by picota or gudalu system without causing prejudice to the several ayacutdars. 1961 Andh LT 279.
Pleadings and proof: Where Government has taken up the position that suit lands were not gradual but were sudden formations and therefore belonged to Government but failed to make good that positive case, Government was not precluded from taking alternative plea that entire lands claimed by plaintiffs as riparian owners did not belongs to them as lateral accretions by alluvion but the Government is also entitled to a portion of it. AIR 1963 AP 94.
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