Historically, state courts have adopted one of two rules governing surface rights over nonnavigable waterways: the common law rule or the civil law rule. [2] Under the common law rule, the owner of part of the lake bed has exclusive use and control rights to the water extending from that property. [3] If ten landowners have equally sized lots adjacent to a pond, each landowner will have exclusive use rights to one tenth of the pond extending from his property. This rule corresponds to the traditional common law view that the "ownership of a parcel of land entitles the owner to the exclusive use and enjoyment of anything above or below the property." [4] It also avoids the vagueness associated with the reasonableness standard found in the civil law rule, as discussed later. The common law’s fragmented ownership approach gives landowners an incentive to come together and agree on use, or otherwise risk being limited to using just the water above one’s land. In a 1999 Indiana Supreme Court decision, the landowners at issue did just that by setting up a lake management association prescribing precise use rules. [5] The Court reaffirmed the common law rule as it was last applied in 1934. [6]

Contrary to the common law rule, under the civil law rule "the owner of a part of a lake bed has a right to the reasonable use and enjoyment of the entire lake surface." [7] Courts that adopt the civil law rule generally note the difficulties of establishing and enforcing set property lines created by the common law rule. [8] Proponents of the civil law rule also point out that it promotes recreational use of waterways by permitting use of the entire waterway for all reasonable activities. [9] The reasonableness standard embedded in the rule is perhaps its greatest weakness. Owners are never fully aware of their true rights. Opponents argue the rule is over-reliant on the courts to determine what indeed is reasonable.

In 1988, the Illinois Supreme Court faced the surface water rights issue for the first time in its history. [10] It did not follow Indiana and adopted the civil law rule, concluding that the common law rule would only frustrate the mutually beneficial use of an important state resource. [11]

As demand for recreational water use continues to grow, some have called for the development of a new regime that incorporates the positive aspects of the common law rule and the civil law rule. One proposal is to permit all the landowners to assign their ownership rights to a trustee who will oversee use rights. Another proposal is for the law to make it easier to develop private management regimes and permit a super-majority of land owners to make rules governing the use of a lake. [12] The supermajority requirement would encourage cooperation yet avoid the pitfalls of having a single holdout landowner. It would also permit landowners to determine the extent of the reasonableness of water use activities without court interference. While not perfect, these types of arrangements should certainly be considered when deciding which water use regime to adopt.

[1] See ERIC T. FREYFOGLE, NATURAL RESOURCE LAW 95 (Thomson West 2007) (A nonnavigable waterway is a waterway which is only open to use by riparian land owners and which is not open to use by any member of the public).

[2] Id. at 106.

[3] See Smoulter v. Boyd, 209 Pa. 146, 150 (1904).

[4] Id.

[5] See Carnahan v. Moriah Property Owners Assc, Inc., 716 N.E. 2d 437 (Ind. 1999).

[6] Id.

[7] Duval v. Thomas, 114 So. 2d 791, 792 (Fla. 1959).

[8] Freyfogle, supra note 1.

[9] Freyfogle, supra note 1.

[10] Beacham v. Lake Zurich Property Owners Assc., 123 Ill. 2d 227, 229 (1988).

[11] id.

[12] Freyfogle, supra note 1.