Third in a series on water boundaries.

There are several reasons why a surveyor might be asked to construct apportionment lines along waterfront parcels. The most common occurrence, and generally the most contentious, is when a party wishes to build or extend a pier in front of his or her upland holdings. Another occurs when accretion adds land to several contiguous upland parcels, or, conversely, when contiguous upland parcel owners also hold title to adjoining submerged lands. Each owner's property rights-either riparian or fee title-will be bounded by some lateral line extending from the point where his or her upland boundary intersects the line of submerged interest (usually either ordinary high or low water) or (in the case of accretion) the line of an "ancient bank."

Apportioning ownership lines in coves presents the classic and most frequently discussed problem of this genre. Since coves by definition curve away from open water, and are often narrower at the mouth than at their inner shorelines, anyone owning riparian, littoral, or fee interest to a portion of a cove will potentially find his or her interest conflicts with that of some of his or her neighbors.

Consequently there are a lot of cove cases and a lot of formulas to solve them. Any surveyor venturing into this field needs to be familiar with several different apportionment methods. First, the surveyor needs to know whether his or her own state has ruled one method preferable to the others and second, how to handle situations when one generally used method creates obviously untenable results. For the purpose of this article, I plan to use the word "apportion" to refer to any division of a cove by some logical plan, while I will use the word "proportion" to refer to an apportionment plan that depends on proportioning distances along a line.

One bit of confusion in this arena is created by the tendency of courts to mix and match theories. For example, probably the most common apportionment method involves proportioning distances along the cove's shoreline against distances along a line of deep water or navigability. The early examples of this rule come from cases apportioning alluvion along rivers, but nevertheless many courts have borrowed the method for apportioning submerged land areas in coves. This basic rule was adopted (from earlier Massachusetts cases) by the United States Supreme Court in Johnston v. Jones, 66 U.S. 209 (1861), and has been cited frequently since. Here is the Johnston court's description of the rule:

"The rule is-1, to measure the whole extent of the ancient bank or line of the river, and compute how many roads [sic], yards, or feet each riparian proprietor owned on the river line; 2, the next step is, supposing the former line, for instance, to amount to 200 rods, to divide the newly formed bank or river line into 200 equal parts, and appropriate to each proprietor as many portions of this new river line as he owned rods on the old. When, to complete the division, lines are to be drawn from the points at which the proprietors respectively bounded on the old, to the points thus determined, as the points of division on the newly formed shore. The new lines thus formed, it is obvious, will be either parallel, or divergent, or convergent, according as the new shore line of the river equals, or exceeds, or falls short of the old.... [T]o ascertain the extent of each proprietor's title on that margin, the general line ought to be taken, and not the actual length of the line on that margin, if it happens to be elongated by deep indentations or sharp projections.... To this rule we adhere. With the qualifications stated, it may be considered as embodying the views of this Court upon the subject." 66 U.S. at 213.

The Cases: Spath v. Larsen, 20 Wn. 2d 500, 148 P. 2d 834 (1944).

Spath is one of the best cove cases because the court gives an extensive analysis of the various rules in this arena before deciding to follow the above-quoted "Massachusetts rule." It is an excellent research tool in its own right, giving citations to Supreme Court cases from many other states. It concerns the division of privately owned tidelands in a cove. The court begins with a discussion of the rights that cove apportionment cases seek to protect:

"As a general proposition, one of the basic rights enjoyed by owners of adjoining tidelands is the right of access to open water at the line of low tide. The value of this element of the ownership of tidelands varies, of course, with each individual situation. In some instances it may be the chief element of value of tidelands; in other cases its importance may be insignificant; but, generally speaking, the right of the owner of tidelands to enjoy access to deep water is an important consideration." 20 Wn. 2d at 508.

The court, as have many others, stated that the problem of providing for access to open water to each proprietor in a cove was addressed first in America by the Massachusetts court:

"In the case of Rust v. Boston Mill Corp., 6 Pick. (23 Mass.) 158, the supreme judicial court of Massachusetts was called upon to adjudicate a controversy between two claimants to tidelands bordering on a cove, and the court's decision has been frequently considered and often followed in determining similar questions. In the course of the opinion, Justice Wilde, speaking for the court, said: "'And it appears to me that the supposed difficulty of making a division of the cove among the several proprietors of the land adjoining, is without foundation. Let us suppose that a line drawn across the mouth of the cove were 100 rods in length; and that the circular line of the cove at high-water mark were 200 rods in length. Then each proprietor of a lot abutting on the cove would be entitled to run his lines from the two corners of his lot in a direction to low-water mark, so as to include a piece of flats which would be at the mouth of the cove one half of the width of the lot at high-water mark; and thus by converging lines the whole cove might be divided without any intersecting lines.'

"¿In thus dividing flats in a cove or creek, we suppose that there is no natural channel within the cove, and that low-water mark is without the same." 20 Wn. 2d at 510-11.

The court then addressed a situation where there exists a cove adjacent to a second cove, with the low-water mark lying outside the mouths of both coves. It quoted from another Massachusetts case, Wonson v. Wonson, 14 Allen (96 Mass.) 71:

"The natural monuments indicating the boundaries of the cove are the headlands on either side. As the flats belonging to part of the upland which lies within the headlands extend to low water mark outside of a base line drawn across the mouth of the cove from headland to headland at ordinary high water, it is plain that the division cannot be confined to the flats within that base line; and we agree with the commissioners that the rule adopted by them, for ascertaining what flats outside as well as inside of that line are to be treated as within the boundaries of the cove, is substantially accurate, and of more easy practical application than any other. The simple and natural way of ascertaining what flats outside of the base line are to be considered as belonging to, and to be divided among, the estates within the cove, is to draw side lines at each end of the base line and at right angle with it to low water mark. The commissioners fixed the side line at the northerly headland in this manner, there being nothing in the form of the adjoining shore to require a variation in it. But at the southerly headland it appeared that the side line of this cove, if so drawn, would conflict with the side line, drawn on like principles, of the cove next adjoining; and as the line dividing the two coves could not therefore be extended at right angles to the base lines of both, it was properly projected at an equal angle to each base line so as to distribute equally between the two coves the angle of the flats which would be included between the lines drawn from that headland to low water mark at right angles to the base line of the two coves respectively." 20 Wn. 2d at 514.

The above quote does not describe how the surveyor is to compute the intersection point of the various side lines with the base line; however, the court further quotes Commonwealth v. Roxbury, 9 Gray (75 Mass.) 451, as stating:

"A deep cove, out of which the tide entirely ebbs at low water, is to be divided by drawing a line across its mouth, giving to each proprietor a width upon the base line proportional to the width of his shore line, and then drawing straight converging lines from the divisions at the shore to the corresponding points on the base line." 20 Wn. 2d at 515.

Proportioning, however, is not the only way to divide such a base line. The court next turned to a case from Rhode Island, Aborn v. Smith, 12 R.I. 370:

"The rule invoked by complainant (the proportionment rule) is a rule borrowed from a work on the civil law, which was applied by the Supreme Judicial Court of Massachusetts to the apportionment of alluvion in the bend of an innavigable [sic] river. The rule has been approved as a rule for the apportionment of alluvion in New York and in the Supreme Court of the United States. It has also been applied, but not invariably, to the apportionment of tide-flowed lands lying in a cove or littoral recess, among the owners of the upland. In Gray v. Deluce, 5 Cush. 9, flats lying in a shallow cove were divided among the owners of the upland by drawing parallel lines from the ends of the division lines of the upland at right angles with a base line across the mouth of the cove." 20 Wn. 2d at 515-16.

The Rhode Island court adopted the right angle to the baseline approach, which was not viewed favorably by the Washington court in this case. The Washington court expressed concern about differences that would arise between choosing right angles to a base line across the mouth of a cove and choosing right angles to a line around the shore of the cove. 20 Wn. 2d at 516. The court stated that the proportionment method had been adopted in Wisconsin and Michigan for certain Great Lakes while the right angle method had been adopted by other courts in New England. It finally reached the following decision:

"Taking the Massachusetts rule as our basic guide, we state the following general principles from which the disputed boundary line in this case may be determined:

"First: In adjudicating the ownerships of tidelands between adjoining upland owners on a concave shore line, each upland owner is entitled to a proportionate share of the tidelands extending to the low water mark.

"Second: The course of courses of the boundaries of the upland properties should be disregarded, each upland owner being entitled to share ratably [proportionately] in the adjoining tidelands, having regard only to the amount of shore line which he owns, lying between the points where the lateral boundaries of this upland beet the shore line or the government meander line, whichever, in the particular case, constitutes the water boundary of his upland.

"Third: Tidelands should be apportioned between the respective upland owners so that, as the whole length of the water boundary of the land within the concave shore, cove, or bay, is to the whole length of the low water line, so is each landowner's proportion of the shore line to each to each owner's share of tidelands along the line of low water. Tidelands may be divided between adjoining owners by erecting lines perpendicular to the general course of shore line only in cases where the shore line is straight, or substantially so." 20 Wn. 2d at 524-25.

Blodgett & Davis Lumber Co. v. Peters, 49 N.W. 917 (Mich. 1891)

This case, concerning sawmill docks on Green Bay, is one of those discussed by the Washington court in the Spath case. It is worth noting because it addresses a question that, in practice, is often the most difficult issue for applying the proportionment method in a cove. That question concerns determining the lateral limits of the lines to proportion against. In Blodgett a surveyor had prepared a map suggesting that a cove be apportioned by drawing a base line between headlands and constructing lines either at right angles to the base line or at courses that bisected angles between lines drawn from the intersections of government lot lines with the shore. The court disapproved of the survey, with these directions:

"The object to be kept in view in cases of this kind is to secure to each proprietor access to navigable water, and an equal share of the dockage line at navigable water, in proportion to his share on the original shore line of the bay. The lands bordering upon Green Bay derive the greater part of their value from the benefit of the public easement for landing places, docks, or wharves in the vicinity of manufacturing establishments, and this is more particularly essential to mill owners and manufacturers of limber. Upon consideration of the authorities cited, we think the rule adopted by Massachusetts will in cases like this secure a nearer measure of justice than those adopted by the courts of any other state. We cannot deal with Green Bay as we could with the rivers in this state, where the lines are to be drawn at right angles to the thread of the stream. The rules laid down for the boundaries of owners of land bordering upon the ocean and great inland seas are more proper for the disposition of the case before us. The rule early defined in Massachusetts is -First, to measure the whole extent of the ancient bank or line of the cove or bay, and compute how many rods, yards, or feet each riparian owner upon such line has; second, to divide the newly-formed line into as many equal portions as those contained in the shore-line, and then draw straight lines from the point at which the proprietors respectively bounded on the old to the points thus determined as the points of division on the newly-formed line." 49 N.W. at 918.

The court picked two small headlands on each end of the cove for beginning and ending points. The surveyor had picked three points to construct his base lines: a named point called Poplar Point on the north, a point 1000' long by 40' in width in the middle, and the headland at the north side of the mouth of the Menominee River at the south. The court picked the middle point and a smaller one just south of the two properties involved in the case, apparently using as its criteria the existence of an irregular shape to the meander line along the bay. It then instructed that the angles formed by the sides of the two points be bisected, and the bisectors be projected out to navigable water. This gave the court the necessary beginning and ending points for its proportioning.


Other methods of apportioning coves have been used. The Washington court in Spath specifically rejected the method formulated in Maine in Emerson v. Taylor, 9 Green (9 Me.) 42 (1832). That method involved drawing straight lines between the points where each property line intersected the shore of the cove, and bisecting the angles formed by the intersections of those straight lines. A New Jersey case, Stockham v. Browning, 18 N.J. Eq. 390 (1867) pointed out that a difficulty with the Emerson rule is that as new subdivisions of the upland properties create new lines intersecting the shore, the angles formed by the lines between the intersections would change. One of the most interesting methods is found in Stuart v. Greanyea, 154 Mich. 132, 117 N.W. 655 (1908) wherein fishing rights in a cove were apportioned by constructing base lines connecting promontories at the ends of a cove with a point at the "middle" of the shoreline of the cove, and then constructing another base line directly between the promontories. Next, distances along the shore were proportioned to the two base lines connecting the promontories with the middle of the cove, and then the process was repeated against the base line between the promontories.

Presumably the most important task for a surveyor beginning such a project would be to determine which, if any, of the available methods has been specifically adopted by the Supreme Court of his or her state. Do not forget, however, that none of these methods can be applied mechanically. This is especially true with the proportioning method. Matters such as determining whether to include the lengths of small indentations in the overall proportions, determining the beginning and ending points of the proportions, and determining the line of deep or navigable water, all take a considerable application of judgment on the part of the surveyor. The courts consistently require that the results of any apportionment be equitable and meet the purpose of apportioning such rights in the first place. These requirements in practice generally take such projects well out of the realm of simple mathematics.