September 15, 2009
By: David K. Jaffe
Water Law & Access Rights to Lakes, Ponds & Streams
Connecticut has consistently followed the common law rule concerning ownership of land beneath bodies of water. With respect to man-made, nonnavigable 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.
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." 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. The maxim was warmly received in the United States as well, with it principle gaining recognition in American courts as early as 1832. A Connecticut case recognized the maxim with full use of the Latin phraseology in 1836.
Under this rationale, a landowner's right to property is understood "to extend from heaven to hell." The common law rule regarding access to the surface on nonnavigable lakes, then, is consistent with concepts of absolute ownership. An owner "is entitled to exclusive dominion over his land, including the areas above and below its surface."
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. 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.
The beauty of the rule is in its consistent application. Under the common law rule, a landowner is entitled to insist upon exclusive dominion, applied both to dry land, and to any waters that might cover those lands. 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.
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. The difference in terminology as between "riparian" or "littoral" does not affect the substantive rights of the defendants.
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. 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. 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.
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 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.
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. 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.
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.
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. Ace Equipment Sales, Inc. v. Buccino involved a dispute between two riparian owners on a nonnavigable pond. 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. 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. The Connecticut Appellate Court agreed, finding case law in Minnesota and Michigan instructive. 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.
 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 l