If a Creek Runs Through Your Property, Do You Own It?

In addition to contacting our experienced team, here's what property owners need to know:

Factors Impacting Creek Ownership in Virginia

Let's unpack three of the elements a lawyer will consider when answering your question about creek ownership:

• Navigability
• Deed
• Riparian Rights

Navigability

Is the waterway deep enough for a ship or small vessel to navigate it?

Believe it or not, the Commonwealth does not define specific depths or widths for a waterway to be considered navigable - it's a gray area up to interpretation based on a variety of nuanced points.

Many factors, including if there is a history of the creek on your property being utilized for transportation / commercial purposes, will help an attorney answer the question of navigability.

Your deed, alone, does not give you ownership or control of a navigable creek - which is why an appropriate legal determination is critical if you want to establish and defend your property rights.

While we're on the subject, you may be interested in learning how colonial Virginia property law still plays a role in determining this sticky issue.

What is a deed and how does it impact creek ownership?

A deed is a legal document that transfers ownership of real estate from one party (the grantor) to another (the grantee). The description of the property, transaction history, along with any covenants play an important role in determining what rights the grantee has upon taking possession.

This could mean that even though your property has a creek running through it, someone else has the legal right to alter your waterfront view or utilize the creek for things like duck hunting with the installation of a duck blind.

Riparian Rights: The Commonwealth's Water Rights Doctrine

I've previously covered Virginia Riparian Property Rights in great detail. I encourage you to take a moment and read it if you're unfamiliar with the term.

It directly impacts your ability to access the water from your property, install / modify structures (piers, docks, etc.) and outlines one of the ways your property could naturally expand - known as accretion. Again, all of this is covered in more detail in the article linked above.

As a waterfront property owner, you need to understand how the framework of your property rights change once you transition from land to water. A creek may flow through your property, but how do you know if it belongs to you, or the state of Virginia?

If the bottomland is state-owned and if you have the funds, it may be worth completing a riparian survey to better understand the riparian zone that you control, in comparison to your neighbors. This involves taking measurements along the waterfront, as well as the depths of the creek at various points to determine your riparian boundaries.

Recap: 3 Factors Impacting Creek Ownership

Above, I've outlined the importance of determining navigability, the content and history of the deed for the property with a creek, as well as establishing a legally defensible riparian zone.

There are additional elements and every situation is unique. Understanding the above will help you save time and money when working with an experienced waterfront lawyer to ascertain the best legal advice possible in Virginia.

Long Creek Residential Property - Virginia Beach, VA
Shutterstock: Daniel Hogan

If I do own a creek, what am I allowed to do with it?

Once you legally establish ownership of a non-navigable creek, do you have unlimited rights to modify it as you see fit?

No. The Commonwealth of Virginia, as well as the Federal Government, have strict guidelines to protect the environment that we all share and enjoy.

Here are some things you're not allowed to do:

• Significantly or entirely divert the creek's waterflow
• Pollute the creek (i.e. dumping chemical or other harmful waste)
• Prevent your neighbors from utilizing their portion of the creek

The good news is that once ownership is established, with clearly-defined riparian boundaries, you are allowed to install, or prevent the installation, of piers, docks and other waterfront structures.

Why is defining ownership of a creek so important?

Creeks usually enhance the value of a property. Of course, this is tied to desirability, which will become incredibly important if you choose to market your waterfront property for sale, or use it as collateral to fund another project.

Creeks with poorly defined ownership also often lead to disputes between neighbors. Our phones ring all the time because a property owner discovered stakes in the water they thought they owned - only to learn that their neighbor is installing a structure that will obstruct their view.

We can mount a defense to stop or continue construction, but if the creek's ownership is poorly defined, we'll need to address that first. This involves a battle in Virginia Circuit Court. Each side will have the opportunity to present evidence (hopefully including a thorough riparian survey).

Don't forget that living on the water, which includes owning a creek, means you'll need to budget for the additional costs that go with owning waterfront property. This includes erosion control and measures to deal with flooding. Implementing protective measures can be expensive - who gets stuck with the bill?

Just like above, it comes down to who owns the section of the creek requiring work to be completed. This is another situation we help with quite often.