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Water Log 19.1
Alabama Determines Landowner Rights
Wehby v. Turpin, 710 So.2d 1243 (Ala. 1998).
Brad Rath, 2L
In February 1998, the Alabama Supreme Court decided an issue of first impression by limiting the rights of riparian landowners. It heard the appeal of landowners who owned land on a man-made lake and who assumed they could use the entire lake for recreation. The Court determined that because the lake was artificial and non-navigable, the landowners only held rights to the surface-waters.
The land in dispute was a piece of property bordering Chelsea Place Lake located southeast of Birmingham. The story of the property begins with Clarence Hatcher who, in 1979, sold part of the property to a church when the adjoining lake bed was dry. The church repaired a dam, restoring the man-made lake, and flooded parts of Hatcher's property. Hatcher acquired a license to use the entire lake for recreational purposes but, in 1985, when the Wehbys purchased Hatcher's property, they failed to secure such a license. In fact, their title insurance policy stated "riparian rights are neither guaranteed nor insured." As riparian landowners, the Wehbys anticipated using the lake and claimed the right to use it ran with the property.
In June 1991, SouthTrust Bank acquired the neighboring church property and sought a court ruling that Hatcher had no right, title, or interest in the property or the lake. Eventually, the property was transferred to the Turpins, the defendants.
Meanwhile, the Wehbys attempted to sell their property in 1995, but confusion over the lake rights prevented the sale. As a result, the Wehbys sued the Turpins for the right to use the entire lake for recreational purposes. They claimed that the lake was "public" and open to their use. The Turpins countered that because the lake was private, the Wehbys' interest was limited to the portion of the lake overlying their property. The parties also disputed the existence of an easement. The trial court granted the Turpins summary judgment and the Wehbys appealed.
Fighting for Riparian Rights
On appeal, the Wehbys argued that because their land is partially flooded and contiguous to the lake, they had littoral or riparian rights in the entire surface waters above the lake bed.1 However, the question of control over the surface waters of a private, non-navigable lake is one of first impression in Alabama. As a result, the Alabama Supreme Court looked to the law of other jurisdictions "to gain a better understanding of the origins and evolution of littoral or riparian rights."2
Courts resolve this issue using two distinct rules. A majority of jurisdictions follow the common law rule which states that owners of land underlying the surface waters of a man-made, non-navigable lake are entitled to control of only that portion of the lake lying over the land they own. The civil law rule states that an owner of land abutting or extending into portions of a lake, navigable or not, is entitled to the reasonable use and enjoyment of the entire lake.
The Wehbys urged the court to follow the civil law rule. Even though the court acknowledged that the common law rule may "frustrate the beneficial use and enjoyment of an important recreational resource," it explained that Alabama is a common law state and is bound by the common law rule.3 By adopting the common law rule, the court limited the rights of owners of land beneath man-made, non-navigable lakes to surface water rights in the waters above their land. Thus, without a covenant, agreement or statute to the contrary, the landowners had no right to use that portion of the lake beyond their boundaries.
The Wehbys then argued that even if Alabama follows the common law rule, it should not apply to Chelsea Place Lake because it is a public water. The Wehbys relied on the Alabama law that states "any water impounded by the construction of any lock or dam . . . placed across the channel of a navigable stream is declared a public water."4 The Wehbys claim that the stream that feeds Chelsea Place Lake, the Yellowleaf Creek, is navigable. The damming of the creek created a public water, giving all landowners the right to recreate on its surface waters.
In order to determine if Yellowleaf Creek is a navigable waterway, the court turned to the federal and state tests for navigability. First, the court reviewed the standard the U.S. Supreme Court established in the 1870 case, The Daniel Ball, which requires a public navigable river to be "navigable in fact." A waterway is navigable in fact when it may be used "in [its] ordinary condition, as highways for commerce, over which trade and travel" may be conducted on water.5 The court also relied on the Eleventh Circuit rule that "the fact that a waterway is on occasion susceptible to navigability during brief periods of flood or high water" does not mean it is navigable.6 Finally, under Alabama law, a stream is navigable if it "has an aptitude for beneficial public servitude, capable of being traversed for a considerable part of the year."7
The Wehbys offered for evidence of navigability that Yellowleaf Creek is capable of being traversed by fishing boats and canoes during some parts of the year. The court rejected this evidence requiring that navigability exist for a considerable part of the year. Therefore, the creek was held to be non-navigable and the lake was deemed private under the Alabama Code, limiting the Wehbys use to only those waters over their land or to those lands for which they held an easement.
Court Encourages Use of Easements
Even though the court limited riparian rights along man-made, non-navigable waterways, it encouraged riparian landowners to acquire an easement for use of the entire lake.
The Wehbys argued that even though their other arguments failed, they possessed an easement, either express or implied, to use the entire lake for recreation. The court quickly found that the Wehbys held neither.
The previous owner, Hatcher, failed to obtain
an express easement from the church; rather, he merely obtained permission
in the form of a license which was not renewed at the time of the Wehbys'
purchase. An implied easement exists if there is "original unity of
ownership...and that use [is] open, visible, continuous and reasonably
necessary."8 Because Hatcher lacked a legal interest in the lake bed
and had no authority to transfer any personal right, the Wehbys did
not ensure an easement by virtue of purchasing the land and could not
claim surface water rights.
Alabama joins the majority of jurisdictions holding
that owners of land extending beneath an artificial, non-navigable lake
possess only surface-water rights in the waters above their land. This
decision serves as a caution to riparian landowners to establish an
easement to ensure their use of lakes such as Chelsea Place Lake.
1. Littoral rights are rights of the owners of land abutting surface waters of a lake or sea. Riparian rights are rights of owners of land abutting a stream. However, the term "riparian" commonly refers to water rights in either context. See 78 Am.Jur.2d Waters § 260; Defining Littoral Rights, 17:2 Water Log 3 (1997).
2. Wehby at 1246 - 47.
3. Id. at 1248 - 49.
4. Ala. Code § 9-11-80(a) (1998).
5. The Daniel Ball, 77 U.S. 557, 563 (1870).
6. U.S. v. Harrell, 926 F.2d 1036, 1040 (11th Cir. 1991).
7. Rhodes v. Otis, 33 Ala. 578, 597-8 (1859).
8. Wehby at 1250.
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