Common Law Treatment

Riparian is derived from the Latin word ripa, meaning the bank of a stream. The phrase "riparian rights" was traditionally used to describe a bundle of rights concerning the relation of the owner of a stream bank or river bank to various opportunities provided by the river or stream. In many jurisdictions, including Indiana, riparian has also come to identify those rights adjacent to lakes as well, although the traditional term "littoral rights" is still sometimes used for Lake Michigan.

The bundle of riparian rights includes at common law:
(1) Access to the water.
(2) The placement and maintenance of wharves and piers.³⁴
(3) The use of water without transforming it.
(4) The consumption of a fair share of the water.
(5) The acquisition of soils accumulated through natural accretions and relictions.
(6) For non-navigable waters, the right to ownership of the bed.³⁵

Each of these riparian rights can form the basis of private common law claims. Those bearing most directly upon coastal dynamics are items: (2) the placement of wharves and piers: and, (5) the acquisition of soils accumulated through natural accretions and relictions.

The courts may enjoin the placement of a pier or wharf if the placement would constitute a nuisance.³⁶ A pier can be ordered removed if it interferes with the usage of a neighboring riparian owner's property.³⁷

A discussion of land ownership along waterways requires an overview of terms used in association with the gain and loss of title due to the movement of rivers and lakes:³⁸
(1) "Accretion" is the gradual enlargement of land through the accumulation of sediment on a floodplain by river action or the deposition of sand upon a beach.
(2) "Avulsion" is the process by which the action of water causes a sudden, perceptible loss of or addition to land.

(3) "Erosion" is the process by which the earth's surfaces are worn or carried away by waves, ice, rainfall, wind, or running water. In this context, erosion is the opposite of accretion.

(4) "Reliction" is the exposure of the bed of a river or lake due to the slow retreat of water.

(5) "Submersion" is the inundation of land by adjoining waters, and in this context, is the opposite of reliction.

Generally, the process of accretion, reliction, and erosion carry the boundary of the landowner along with the change, a rule accepted in virtually every state and sometimes called the "doctrine of accretion."³⁹ Similarly, land that is gradually submerged by a rising navigable lake reverts to ownership of the state.⁴⁰ Also, a riparian owner may acquire land through accretion or reliction, even if brought about by an artificial obstruction caused by a third person where the riparian owner had no part in erecting the obstruction.⁴¹ The opposite legal consequence generally follows an avulsion. The common law rule is that avulsive changes, such as a river breaking through the narrow neck of an ox bow, do not affect the boundaries of riparian lands.⁴²

Land title adjacent to a navigable waterway is transitory, and generally unaffected by language in a deed, though dependent upon determining the ordinary high watermark of the navigable waterway. A similar result follows for determining land title as between two private property owners along a non-navigable waterway, where ownership is typically described as being to the center or thread of the waterway, although contrary deed language may control.⁴³ Where the waterway border changes as a result of an avulsion, however, the title boundary typically is not altered.

The usual remedies for the protection and enforcement of rights in respect of real property are available to the loss of land through erosion. A landowner who suffers a loss as a result of the wrongful activities of another may successfully maintain a civil action for damages.⁴⁴ Access to these remedies may be lost if they are not timely enforced. If a change is made to a natural waterway through the construction of an artificial structure, and a riparian owner fails to protest the change, the acquiescence will later preclude restoration of the water to its prior condition.⁴⁵


Regulation of Shoreline Structures

Because Lake Michigan is a navigable water of the United States, permits are required pursuant to the Rivers and Harbors Act for the placement of piers, wharves, jetties, breakwaters, and similar shoreline structures.⁴⁶ Before 1970, permits were not required under federal law shoreward of an established harbor line.⁴⁷ A permit is also required for the placement of a pier or wharf on the shore of Lake Michigan from the Indiana Department of Natural Resources pursuant to IC 14-29-1-8.[UPDATE: The Natural Resources Commission adopted rules to assist with the evaluation of permit applications for construction activities along and within the shoreline of Lake Michigan. These address both emergency construction and permanent construction. Issues considered include environmental impacts, hazards to safety or property, and shoreline dynamics. Please see 312 IAC 6-7 and 312 IAC 6-8 that became effective in February 2001.] The regulation of shoreline construction is also discussed in Lake Michigan and Navigable Tributaries.

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