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Indiana Riparian Rights and Water Boundaries

by Gary on March 27, 2015

“Riparian Rights” are those rights associated with owners of property abutting rivers, streams, ponds and lakes. Because of the many waterways in Indiana (particularly lakes in the northern part of the state), the dramatic increase in the value of waterfront property in recent years, and the fact that waterfront lots are often quite narrow, there tend to be quite a few disputes relating to the use of the water in front of those lots and to the on-shore location of those lot lines themselves.

In this blog, we will outline some very basic characteristics relating to water boundaries in Indiana.

Riparian rights were spelled out by the Indiana Court of Appeals in its 2005 decision in Parkison v. McCue (831 NE 2d 118) as:
  1. the right of access to navigable water;
  2. the right to build a pier out to the line of navigability;
  3. the right to accretions; and
  4. the right to a reasonable use of the water for general purposes such as boating, domestic use, etc.
In short, riparian rights are those special rights relating to the use of water in a waterway adjoining an owner’s property.

Waterways are considered either navigable or non-navigable.  In Indiana, only certain authorities can determine navigability.  They are:
  1. A court
  2. The General Assembly
  3. The U.S. Army Corps of Engineers
  4. The Federal Energy Regulatory Commission
  5. A board of county commissioners
  6. The Natural Resources Commission
According to the Indiana Natural Resources Commission’s Information Bulletin #56 (2nd Amendment), whether or not a waterway is considered navigable depends on whether it "was available and susceptible for navigation according to the general rules of river transportation at the time [1816] Indiana was admitted to the Union. It does not depend on whether it is now navigable.... The true test seems to be the capacity of the stream, rather than the manner or extent of use. And the mere fact that the presence of sandbars or driftwood or stone, or other objects, which at times render the stream unfit for transportation, does not destroy its actual capacity and susceptibility for that use.”
  
Bulletin #56 includes a list of waterways in Indiana that have been designated navigable or non-navigable, but it is not all-inclusive because the status of many lakes and rivers has not been specifically determined.

Why is the issue of navigability important?  Because the beds of navigable waters are held in title by the State of Indiana; those beds are not owned by the abutting riparian owners.  Contrary to navigable waters, however, the beds of non-navigable waterways are owned by one or more of the abutting owners. The extent and terms of that ownership is as defined and described in the various deeds of conveyance.

Except possibly as related to Lake Michigan, the line of demarcation between an abutting private owner and the State of Indiana’s ownership of the bed of a navigable waterway is the “ordinary high water mark.” 

The ordinary high water mark is defined in the Indiana Administrative Code (312 IAC 1-1-26(1)) as:
  1. The line on the shore of a waterway established by the fluctuations of water and indicated by physical characteristics. Examples of these physical characteristics include the following:
  • A clear and natural line impressed on the bank.
  • Shelving.
  • Changes in character of the soil.
  • The destruction of terrestrial vegetation.
  • The presence of litter or debris.
One of the most pervasive types of boundary disputes in Indiana – particularly on lakes – has to do with the placement of piers.  As noted at the beginning of this blog, when one owns property abutting a river or lake, one has the right to build a pier out to the “line of navigability.”

While defining the line of navigability is beyond the scope of this blog, we can briefly address the lateral location of a pier with respect to an owner’s on-shore property.  The 1984 Indiana Court of Appeals case of Bath v. Courts (459 NE 2d 72) gave the Natural Resources Commission guidance as to what is called the “riparian zone,” which is the area in the water out in front of the riparian owner’s property.

According to Bulletin #56, within his or her riparian zone an on-shore owner has “has particular rights that are correlative to those of citizens, under the public trust, and exclusive of those of neighboring riparian owners.”  So, within the riparian zone, the on-shore owner has exclusive rights as to the placement of a pier.  But what is the extent of a given owner’s riparian zone?  The answer depends on the shape of the lake or river and the angle at which the on-shore boundaries intersect with the shore, but in all cases, the goal is to create an equitable distribution of the riparian zones between adjoining owners.

It is obvious that issues related to riparian rights and water boundaries are complex.  This blog is not intended to be substitute for legal advice. Professional surveyors can help determine where boundary lines are, but guidance from a good real estate attorney may be required if a water boundary problem becomes contentious.