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THE OWNER OF LAND HAS AN ABSOLUTE PROPERTY RIGHT IN THE SURFACE WATERS COLLECTED ON THAT LAND AND CAN DIVERT IT BEFORE IT FLOWS INTO A DEFINITE WATER COURSE (A STREAM, FOR EXAMPLE) (FOURTH DEPT).

The Fourth Department, in this dispute over water rights, noted that the Monroe County Water Authority (MCWA) owned surface water on its land and could divert it before it entered a definite water course:

… [W]e agree with MCWA that the court erred in determining that plaintiffs ( a golf course) have riparian rights to the surface waters collecting on MCWA’s property. “The owners of land on a water-course, are not owners of the water which flows in it” … , and “the law has always recognized a wide distinction, between the right of an owner, to deal with surface water falling or collecting on [its] land, and [an owner’s] right in the water of a natural water-course” … . “In such [surface] water, before it leaves [the owner’s] land and becomes part of a definite water-course, the owner of the land is deemed to have an absolute property, and [the owner] may appropriate it to [its] exclusive use, or get rid of it in any way [it] can, provided only that [the owner] does not cast it by drains, or ditches, upon the land of [its] neighbor; and [the owner] may do this, although by so doing [it] prevents the water reaching a natural water-course, as it formerly did, thereby occasioning injury to . . . other proprietors on the stream” … . Webster Golf Club, Inc. v Monroe County Water Auth., 2023 NY Slip Op 04280, Fourth Dept 8-11-23

Practice Point: A property owner owns the surface water collected on the property and can divert the surface water before it reaches a definite water course like a stream or river.

 

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