On the positive side, rivers provide a nice, convenient border and if you are lucky, fishing. On the negative side, they have a nasty habit of flooding and changing course between editions of estate plans, causing problems regarding boundaries along the way. That said, most estates of any size will include at least one river, or other watercourse, so they are worth examining in this series from the point of view of the legal framework which governs them.
Flowing water in itself is not capable of being owned by anyone (which, I would suggest, makes sense when you consider that it is famously impossible to step in the same river twice) but it is possible to have rights over it. There are two ‘bits’ of property in a river that can be owned: these are the bed and soil and the fishing rights. In practice, these are often owned by the same person, but can be split up. This is what tends to happen where the fishing rights are particularly valuable.
In relation to the bed and soil, the starting point is that where the river forms the boundary between two pieces of land, the landowners on each side of the river are presumed to own the bed and soil up to the middle line of it (the ‘ad medium filum’ presumption). The landowners on either side are known as the ‘riparian’ owners, from the Latin ‘ripa’ for ‘(river)bank’. If there is an island in the stream, then it is also owned by the riparian owner whose side of the river it falls in, or, if both, it is again split along the imaginary middle line between the two banks. If the stream lies wholly on your land, then you own all of it. However, as this is only a presumption, express wording to the contrary will negate it. This can mean that by agreement, one owner can own all of the bed and soil of the whole river and the next person’s ownership may only start on the opposite bank. This often occurs where a larger estate has been split up and bits of it sold off to third parties. The whole of the river (and usually the fishing rights) is often kept by the estate.
The right to fish in a river, commonly called ‘fishing rights’, is a class of legal interest called a profit à prendre and is often the most valuable part of the river. Sporting rights also fall into this category along with the slightly more obscure, such as the right to remove peat for fuel (‘turbory’ if you are interested, or want to set really tough pub quiz questions). It is not an interest in the land as such, like being the owner of it, or having a tenancy of it, but rather the right to do something with a certain part of the land; in this case, the water. The fishing rights can be bought, sold and leased independently of the land (‘in gross’), or together with it, depending on what the owner wishes to do. The fishing rights can also be registered with their own, independent title at the Land Registry.
If you are buying a property with a river, the most important points to check are: whether the fishing rights are included (and or whether they have been let to anyone and if so, on what terms) and whether there are any specific provisions regarding where the boundary is as these will override the presumptions above. Enquiries of the seller are the place for any specific questions, such as providing records of the fishing and any history of flooding. The time I was once asked how a little island with a duck house, with no visible means of access was accessed, however, was probably a question too far. It had been a bad day: I replied ‘swim’. Disappointingly, the other side failed to see the joke and instead, retaliated by asking whether it had been cultivated for agriculture.
As a final thought, remember that it is in the nature of a river to change its course. For such circumstances, the law, of course, has an answer. If the change is slow and imperceptible, then the boundary will continue to follow the median line of the river with the corresponding riparian owners having a greater and lesser amount of land accordingly. However, if the change is sudden, the boundaries remain as they were before. Needless to say, the distinction between what constitutes a slow change and what a sudden change, has kept many barristers in new silk and Claret over the years.
Despite being one who feels the cold, Elizabeth braved a move to Northumberland and has worked there as a solicitor with the firm of Dickinson Dees LLP, in the Agriculture, Farms and Estates Team, where she started life as a trainee in 2003. As part of this specialist and nationally renowned team, she works both for a number of larger estates and trusts on an ongoing basis and also on one-off matters, covering the range of rural property law, including; sales and purchases, sporting rights,rights of way, easements and tenancies, to name a few. Outside the office, she nearly managed to get sent to the North Pole, loves the occasional hunt with the CVNNH and continues to try and break the 4-hour mark for a marathon. She lives with her husband, a terrier and a very silly basset.
She can be contacted through Dickinson Dees at 0191 279 9000