Who Owns the Water?
In Village of Four Seasons Association, Inc. v. Elk Mountain Ski Resort, Inc., a panel of the Pennsylvania Superior Court recently tried to answer the question: “Who owns the Water?” Or at least frame the question for a lower court to subsequently decide. Elk Mountain Ski Resort owns a small pond that abuts a lake used by the Village of Four Seasons. The lake has a breach in its berm that feeds the Elk Mountain’s snow-making pond. The Village of Four Seasons sought an injunction to close the breach in the lake that fed the snow-making pond. The Superior Court reversed a lower court ruling that found the Village of Four Seasons owned the land under its lake and, therefore, owned all of the water in the lake.
The Superior Court provided a good summary of Riparian Law in Pennsylvania. The Commonwealth owns navigable bodies of water. In contrast, non-navigable, land-locked bodies of water are privately owned by those who own land beneath the water surface and the land abutting it. The lake and pond in Elk Mountain’s case are non-navigable, but that does not answer the question. Non-navigable bodies of water that are flowing or a tributary of a flowing body of a water course are not owned by anyone. Each owner of land adjacent to the non-navigable water course has the right to make reasonable use of the water flowing on or past his property. Therefore, if Elk Mountain can establish that the water flowing through the lake and the snow-making pond is moving water with an inlet and an outlet, Elk Mountain would have the right to make reasonable use of the water so long as it does not interfere with the reasonable use of the water by the Village of Four Seasons. The case was referred back to the lower court for trial on this factual issue.
The case presents an interesting factual question that must be answered before one can even answer the ultimate question of “who owns the water?” What is flowing water? Is a pond or lake fed by underground springs that have an “on-again off-again” overflow breech or spillway, a flowing body of water? As a side note in this case, the court also reinforced the fact that a consumptive use permit granted to Elk Mountain by the Susquehanna River Basin Commission confers no ownership rights to the water covered by the withdrawal permit. The SRBC has no power to determine or regulate property or riparian rights, but the withdrawal permit does raise a factual issue whether the pond and lake are part of a watercourse that eventually drains into the Susquehanna River. Presumptively, this must be the case for SRBC to exercise its jurisdiction.