Many of our clients are lucky enough to enjoy a water feature as a part of their property, whether it be a river, loch or coastal boundary. In this note we’ll concentrate on rivers, and in the next few editions of this e-bulletin we plan to look at other aspects relating to water rights.
The first point to be made is that the importance lies in the ownership of the alveus (the bed) of a river, rather than the water itself. If a river is tidal, it is presumed that the alveus is owned by the Crown. If non-tidal, one can envisage three main ownership scenarios:
1 If the entirety of a river lies within one property then it belongs wholly to the owner of that property;
2 If a river runs through several different properties then each section will belong to the owner of each of the properties; and
3 If a river runs along the boundary of two properties, there is a presumption that the owner on either side owns up to the medium filum (the mid-point) of the river.
Of course, the presumption noted at 3 above can be rebutted by the title deeds of either owner; if the titles are silent, the presumption applies. It is therefore vitally important to be familiar with your title deeds; you may own more or less than you think!
Another noteworthy aspect of the law in this area relates to the way in which the Registers of Scotland (the executive agency which handles the registration of land in Scotland) treats water boundaries.
You may be familiar with the indemnity system, which is a feature of land registration in Scotland. Basically speaking, it is a state guarantee allowing the public to rely on the Land Register in the knowledge that, if loss is suffered as a result of that reliance, the loss will attract indemnity.
However, where a boundary feature is a river, that indemnity will be excluded, and a note will be inserted on the Land Certificate along these lines:
NOTE: The boundary between the points lettered A - B in blue on the title plan is the medium filum of the River A. Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss arising as a result of the said boundary being declared or found to follow a different line from that shown on the title plan at any time.
This policy was adopted for two main reasons – firstly because of the fact that the boundary may change from day to day due to the nature of the river, and secondly because of the difficulty of interpreting old titles, the descriptions in which may be unsatisfactory.