Daily Development for
Thursday, February 11, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

WATERS AND WATER RIGHTS; NAVIGABLE WATERS: Artificial lake and creek created by dam are not "navigable" waters and owners of property bordering portion of artificial lake had no express or implied easement to use entire lake for recreational purposes; surface water rights in artificial lake extend only to surface waters above property owned by claimant.

Wehby v. Turpin, 710 So.2d 1243 (Ala. 1998).

Hatcher sold certain land, traversed by a small creek, to Church. Church repair a nonfunctional dam on the creek and built a lake on its property. The lake also flooded some of Hatcher's property, and also some of the dam works were built on Hatcher's property. In exchange for permission to so invade Hatcher's property, Church gave Hatcher permission to use the surface of the lake for recreational purposes. Indeed, all families with property abutting the lake used the lake for recreational purposes.

Some years later, Hatcher sold his land to Wehby. The Church later lost its property in foreclosure, and title to the Church's land passed to Turpin. Some time after that, Wehby attempted to sell his land, and Turpin informed both Wehby and the proposed buyer that Turpin believed that Wehby had no permanent rights to use the lake, although Turpin would not object to the buyer's using the lake. Wehby alleged that this conversation killed his sale, and sued Turpin.

The court addressed the fundamental question of whether Wehby actually had any permanent right to use the lake. Viewing this as a case of first impression in Alabama, the court adopted the "common law rule" respecting artificial lakes, which provides that owners of property under nonnavigable waters have no right to access these waters except for those surface waters superadjacent to their property. An artificial lake fed by a nonnavigable stream is itself "nonnavigable" for these purposes.

The court acknowledged that a minority of jurisdictions which it characterized as states in which lakes form a significant recreational resource have adopted a Civil Law approach granting to the owners of littoral property, even that abutting artificial lakes, with a general right of recreational access to all of the surface of the lake, regardless of the navigability of the source and regardless of the ownership of the lake bed. It cited cases in Illinois, Michigan, Missouri, Virginia, Minnesota and Washington.

The more widely recognized common law rule, however, holds that the right of use of the surface of an artificial lake belongs to the owner of the lake bed.

The court adopted the common law rule for Alabama stating that in general Alabama follows common law precedent. The court then proceeded to conclude that the creek that fed the lake in this case was not navigable at the point at which the dam was built. It pointed out that the fact that a stream is "on occasion susceptible of navigability during brief periods of flood or high water does not mean that the waterway is navigable in fact." Occasional canoeing or boating on the creek was not enough.

The court then had to deal with the fact that the Church had authorized Hatcher to use the lake at the time that it flooded Hatcher's property and built dam works there. The court, relying entirely upon Wehlby's description of the situation, concluded that the verbal permission given to Hatcher was intended as a revocable license, and not as an easement, notwithstanding Wehlby's statement that Hatcher informed Wehlby that the right "ran with the land."

Comment 1: Distinguish this case from the subdivision situation in which a developer plats a subdivision with recreational amenities. Often the plat or other aspects of the transaction will give rise to an implied easement to all the amenities, including any artificial lakes. The court acknowledges that possibility here, but notes that there was no common ownership here. Church built the lake after Hatcher transferred the land to Church.

Comment 2: One of the problems with the civil law rule is that where rights of access to surface waters in an artificial lake exist, expectations arise as to the maintenance of the dam that created the lake. Often there is nothing written to carry out these expectations. What rights exist when the dam fails and the lake runs dry? This problem has bedeviled courts in Missouri, for instance, which in some cases have fashioned broad equitable remedies imposing equitable maintenance assessments on littoral property owners.

In a modern complex society, which relies upon market decisions to allocate land interests, we can and should expect that parties who claim the right to make permanent use of the surface waters of a lake they abut should work out that issue with the creator of the lake and the owner of the lakebed, so that we have a reasonably clear record of the expectations of the parties over time. Absent clear agreement, there is no reason to imply rights (except, perhaps, in the subdivision situation).

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